17 February 1964
Supreme Court


Case number: Appeal (civil) 758 of 1963






DATE OF JUDGMENT: 17/02/1964


CITATION:  1965 AIR  354            1964 SCR  (6) 814

ACT: Will-Genuineness-Credibility    of     witnesses-Surrounding circumstances  and  probabilities, if court can  look  into- Removal  of suspicious circumstances, if propounder  has  to satisfy the court.

HEADNOTE: The  appellant filed a suit claiming the property of  one  R which was in possession of R’s widow on the allegation  that R had executed a will bequeathing almost his entire property to  the  appellant and practically excluding his  widow  and daughters.  The ground on which the widow and the  daughters were excluded is said to be the strained relations which had developed  between  R and his wife.  The  widow  denied  the execution   of   the  alleged  will   and   challenged   the genuineness.   The  Trial Court holding that  the  will  was genuine  decreed  the  suit.   On  appeal,  the  High  Court dismissed  the  suit holding that the win was  not  genuine. The finding of the High Court was based on the evidence  and the  attending  circumstances  appearing in  the  case.   Or appeal to this Court by a certificate granted: Held:  (i)In order to judge the credibility of the  witness, the  Court  is  not confined only to the way  in  which  the witnesses have deposed or to the demeanour of the witnesses, but  it  is  open  to  it  to  look  into  the   surrounding circumstances  as well as the probabilities, so that it  may be able to form a correct idea of the trustworthiness of the witnesses.   This issue cannot be determined by  considering the  evidence  adduced  in the  Court  separately  from  the surrounding  circumstances brought out in the  evidence,  or which  appear  from  the  nature and  the  contents  of  the document itself. (ii) It is necessary for the propounder to satisfy the court about the genuineness of the will by removing all suspicions which naturally from the various circumstances. Surat  Kumar  Bibi v. Sakti Chand, (1928), L.R. 56  LA.  62, Krishto  opal  v. Baidyanath, A.I.R. 1939  Cal.  87,  Chotey Narain Singh V. Ali.  Ratan Koer, (1894) L.R. 22 I.A. 12, H. Venkachala Iyengar v. N. Thaimmajamma,   [1959]   Supp.    1 S.C.R. 426, Shashi Kumar Banerjee v. Subodh Kumar  Banerjee, C.A.  No. 295 of 1960. dt.  Sept. 13,  1963  (Non-reportable and Tyrell v. Painton, (1894) P. 151, referred to.



JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 758 1963. Appeal  from the judgment and decree dated February  of  the former  Bombay High Court in Appeal  of 1957  from  original decree.  815 J.   B.  Dadachanji, Ravinder Narain and O. C.  Mathur,  for the appellant. Girish Chandra and Sardar Bahadur, for respondents Nos. 1, 2 (i) to 2 (iv), 3 and 4. February 17, 1964.  The Judgment of the Court was  delivered by: - MUDHOLKAR, J.-The question which arises for consideration in this  appeal by a certificate granted by the High  Court  of Bombay  is whether a will alleged to have been  executed  by one Ramdhan on May 23, 1947 is genuine or is a  fabrication. By  this will, Ramdhan is alleged to have bequeathed  almost his entire property consisting of 16 fields assessed to land revenue  at  Rs. 425/- per annum, five houses,  a  shop  and movables  consisting  of 800 tolas of gold, 1,000  tolas  of silver,  Rs.  50,0001/-  cash and  Rs.  15,000/--  due  from debtors   as  well  as  cattle,   agricultural   implements, utensils,  etc., to the appellant, and practically  excluded his  widow.  Sitabai and his three married  daughters.   The appellant  is the grandson of one of the  three  predeceased uncles of Ramdhan, and the ground on which the widow and the daughters were practically excluded by Ramdhan is said to be the  strained relations which developed between Ramdhan  and his wife during his last days. Ramdhan  died on October 31. 1948, and Sitabai, who was  all along  living  with him, came into possession  of  Ramdhan’s property.  Admittedly, the appellant did not try to  disturb her  possession.   According to him, he allowed  Sitabai  to remain  in possession on his behalf, and that for some  time she  was managing the estate in a satisfactory  way.   Later on,  however,  she, in utter disregard  of  the  appellant’s interests, began to give away some portions of the  property to  her daughters and strangers, even though she  knew  that the property had been bequeathed to him by Ramdhan. and that she  was entitled to receive only a maintenance of Rs.  40/- per  month under the will of Ramdhan.  It may  be  mentioned that Ramdhan was a resident of Peepalgaon in the district of Parbhani,  and  the  entire property,  movable  as  well  as immovable, is at Peepalgaon itself. Upon  these allegations, the plaintiff instituted  the  suit out of which this appeal arises, in the District Court at 816 Parbhani.  Sitabai denied the execution of the alleged  will by Ramdhan, and also denied the relationship claimed by  the appellant  with Ramdhan.  According to her, after  Ramdhan’s death she was in exclusive possession of the property,  that she  is a helpless widow without a male issue, and that  the appellant taking advantage of this fact ha,. set up a  false will and laid claim to Ramdhan’s property.  While  admitting that  the immovable property had been correctly set  out  in the  plaint, she challenged the correctness of some  of  the items  of the movable property, During the pendency  of  the suit, one Madanlal was joined as a party to it on the. basis of  his  claim to be the adopted son of  Ramdhan.  lie  also challenged  the genuineness of the will.  According to  him, he  was  adopted by Ramdhan in the month of  Chait,  Samvat, 1999  according  to the prevailing custom in  the  State  of



Udaipur.  Sitabai died during the pendency of the suit,  and her daughters, Champabai, Rambhabai, and Rajubai as also Ram Pershad,  one of Sitabai’s sons-in-law, who was  alleged  to have obtained possession of the property after the death  of Sitabai, were brought on record as the legal representatives of Sitabai. The trial Court held in favour of the appellant that he  was related  to  Ramdhan, as alleged by him, and that  the  will executed   by  Ramdhan  was  genuine.   It  also   negatived Madanlal’s  claim  of having been adopted  by  Ramdhan.   On these  findings,  that Court decreed the  appellant’s  suit. The. legal representatives of Sitabai thereupon preferred an appeal  before the High Court, which held that the will  set up  by  the appellant is not genuine, and  on  that  ground, dismissed his suit. In support of the will, the appellant examined himself,  the scribe, Venkat Rajaram and three of the attesting witnesses, Raja  Kaniahprasad,  Rasheeduddin Ahmed and  Wamanlal.   The appellant  also  examined some witnesses in support  of  his contention  that  the property bequeathed to him  under  the will  was  entrusted by him to Sitabai after  the  death  of Ramdhan.   On  the  other hand,  the  respondents  have  led evidence  to  show  that  Ramdhan could  not  have  been  at Hyderabad  where the will is alleged to have been  executed, on May 23, 1947, because till the afternoon of the  817 previous  day he was at a village nearly 300  miles  distant from Hyderabad. The  High Court, on a consideration of the  entire  evidence adduced by the parties, came to the conclusion that the will was prepared under highly suspicious circumstances, and that the  evidence  adduced by the appellant was not such  as  to satisfy it that the alleged will was a genuine one.  Accord- ing  to the High Court, the circumstances appearing  in  the case indicate that the alleged will was "in all probability" a   false  document  brought  into  existence  without   the knowledge  of Ramdhan.  The High Court rightly  pointed  out that  the  nature of proof which was required in a  case  of this  kind was that laid down by the Privy Council in  Sarat Kumari Bibi v. Sakhi Chand(1), where it has been stated that in all cases in which a will is prepared under circumstances which  arouse  the suspicion of the Court that it  does  not express  the mind of the testator, it is for the  propounder of the will to remove that suspicion.  According to the High Court,   the   evidence  led  by  the   appellant   was   so unsatisfactory that it was impossible to give any effect  to the alleged will. Mr.  Dadachanji’s  grievance, however, is  that  the  entire approach of the High Court to the evidence in this case  was wrong, because it first took into consideration the  various circumstances,  and then judged the credibility of the  wit- nesses  in the light of those circumstances.  In support  of his contention, he has relied upon the following observation of Biswas, J. in Kristo Gopal v. Baidya Nath(2):               "It is difficult to avoid the conclusion  that               the  learned Judges for some reason  or  other               must  have formed the idea that the  will  was               not a genuine document, and that having formed               such,  an idea. he looked at the  evidence  of               each  of the witnesses with a suspicious  eye.               On  no  other  hypothesis is  it  possible  to               explain the criticism which he has led himself               to make." The  learned Judge has supported his observation by  quoting the  following observations of Lord Watson in Chotey  Narain



Singh v. Mt.  Ratan Koer(3): (1)(1928)  L.R. 56 I.A. 62. (2) A.I.R. 1939 CaL 87.  (3)  22 I.A. 12. 23. 134-159 S.C.-52 818               "The  theory  of improbability remains  to  be               considered;  and the first  observation  which               their  Lordships,  have to make  is  that,  in               order to prevail against such evidence as  has               been  adduced by the respondent in this  case,               an improbability must be clear and cogent.  It               must  approach very nearly to, if it does  not               altogether constitute, an impossibility." The learned Judge has then observed as follows:               "In  a  case where.  attesting  witnesses  are               produced  and  they  give  clear  and   cogent               testimony  regarding  execution,  one   should               require very strong circumstances to repel the               effect  of such testimony.  It will not do  to               talk airily about circumstances of  suspicion.               It is no doubt true that a person who takes it               upon  himself to dispute the genuineness of  a               will cannot be expected to prove a negative in               many cases.  At the same time, the  difficulty               in  which,  on  his  own  seeking,  he  places               himself, will not relieve him of the burden-it               may  be  a  heavy  burden-of  displacing   the               positive  testimony on the other side.  If  he               rests  his  case on suspicion,  the  suspicion               must   be   a  suspicion   inherent   in   the               transaction  itself  which is  challenged  and               cannot  be a suspicion arising out of  a  mere               conflict of testimony." Then the learned Judge went on to observe that if there  was evidence  to show that the will was actually made, it  would not be relevant to enquire whether there was any occasion or motive-for  the  execution of the will, and that if  such  a test  were  to  be  applied in every  case,  no  will  could probably be proved at all. The  questions which we have to consider are  whether  there was,  in fact, a will, that is to say, whether  Ramdban  did execute  a will during his lifetime, and if so, whether  the document upon which the appellant relies is a will  executed by  Ramdhan and duly attested by witnesses.   The  appellant can  prove these facts only by adducing evidence of the  due execution  of  the will by Ramdhan and of  its  attestation. The  challenge  before us is as to the  credibility  of  the witnesses  819 who  have come forward to say that the document  upon  which the  appellant  relies  not merely bears  the  signature  of Ramdhan but represents the disposition made by Ramdhan, that is  it  was  executed by Ramdhan,  and  that  the  attesting witnesses attested the execution of the will by Ramdhan.  In order  to judge the credibility of the witnesses, the  Court is not confined only to the way in which the witnesses  have deposed or to the demeanour of witnesses, but it is open  to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses.  This issue  cannot be  determined  by considering the evidence adduced  in  the Court  separately from the surrounding  circumstances  which have also been brought out in the evidence, or which  appear from the nature and contents of the document itself.  We  do not understand the observations of Lord Waston to mean  that



the testimony as to the execution of the document has to  be considered  independently  of the  attendant  circumstances. All  that  he  says  is that where  there  is  a  large  and consistent  body of testimony tending to show the  execution of  a  will  by the testator, that evidence  should  not  be lightly set aside on the theory of improbability. Dealing  with  the mode of proof of a will, this  Court  has observed in H. Venkatachala lyengar v. B. N. Thimmajamma and Others(1):               "As in the case of proof of other documents so               in the case of proof of wills it would be idle               to  expect proof with mathematical  certainty.               The test to be applied would be the usual test               of  the  satisfaction of the prudent  mind  in               such matters.               However, there is one important feature  which               distinguishes  wills  from  other   documents.               Unlike  other documents the will  speaks  from               the death of the testator, and so, when it  is               propounded  or  produced before a  court,  the               testator,  who has already departed the  world               cannot say whether it is his will or not;  and               this aspect naturally introduces an element of               solemnity  in the decision of the question  as               to whether the document pro pounded is  proved               to be the last will and testa- (1)  [1959] S.C.R. Supp. 1. 426. 443. 820               ment  of the departed testator.  Even  so,  in               dealing with the proof of the wills the  court               will start on the same enquiry as in the  case               of  the  proof of documents.   The  propounder               would  be called upon to show by  satisfactory               evidence  that  the  will was  signed  by  the               testator,  that the testator at  the  relevant               time  was  in a sound and disposing  state  of               mind, that he understood the nature and effect               of  the dispositions and put his signature  to               the document of his own free will.  Ordinarily               when  the evidence adduced in support  of  the               will   is  disinterested,   satisfactory   and               sufficient  to prove the sound  and  disposing               state of the testator’s mind and his signature               as required by law, courts would be  justified               in   making  a  finding  in  favour   of   the               propounder.   In other words, the onus on  the               propounder  can be taken to be  discharged  on               proof of the essential facts just indicated.               There  may,  however, be cases  in  which  the               execution  of  the will may be  surrounded  by               suspicious    circumstances.    The    alleged               signature  of  the testator may be  shaky  and               doubtful  and  evidence  in  support  of   the               propounder’s   case  that  the  signature   in               question is the signature of the testator  may               not remove the doubt created by the appearance               of  the  signature; . . . .  the  dispositions               made  in the will may appear to be  unnatural,               improbable or unfair in the light of  relevant               circumstances;  or,  the  will  may  otherwise               indicate that the said dispositions may not be               the  result  of the testator’s free  will  and               mind.  In such cases the court would naturally               expect  that all legitimate suspicions  should               be  completely removed before the document  is



             accepted  as  the last will of  the  testator.               The presence of such suspicious  circumstances               naturally tends to make the initial onus  very               heavy;   and  unless  it   is   satisfactorily               discharged, courts would be reluctant to treat               the document as the last will               of the testator."  821 This  Court  also  pointed out that  apart  from  suspicious circumstances  of  this  kind, where  it  appears  that  the propounder  has taken a prominent part in the  execution  of the  will  which confers substantial benefits on  him,  that itself  is  generally treated as a  suspicious  circumstance attending  the execution of the will, and the propounder  is required  to remove the suspicion by clear and  satisfactory evidence.   In other words, the propounder must satisfy  the conscience  of  the Court that the document  upon  which  he relies is the last will and testament of the testator. This decision has been recently referred to in a Judgment of this  Court  in Shashi Kumar Banerjee and others  v.  Subodh Kumar  Banerjee(1) (Civil Appeal No. 295 of 1966 decided  on September  13, 1963).  There, Wanchoo J. who spoke  for  the Court, has observed as follows :               "The   mode  of  proving  a  will   does   not               ordinarily  differ  from that of  proving  any               other  document  except  as  to  the   special               requirement  of attestation prescribed in  the               case  of  a  will  by  s.  63  of  the  Indian               Succession Act.  The onus of proving the  will               is  on  the propounder and in the  absence  of               suspicious   circumstances   surrounding   the               execution  of the will, proof of  testamentary               capacity and the signature of the testator  as               required by law is sufficient to discharge the               onus.   Where  however  there  are  suspicious               circumstances,  the onus is on the  propounder               to  explain  them to the satisfaction  of  the               court  before  the court accepts the  will  as               genuine.   Where  the caveator  alleges  undue               influence, fraud and coercion, the onus is  on               him  to prove the same.  Even where there  are               no such pleas but the circumstances give  rise               to  doubt it is for the propounder to  satisfy               the  conscience of the Court.  The  suspicious               circumstances may be as to the genuineness  of               the  signature of the testator, the  condition               of the testator’s mind, the dispositions  made               in  the  will being unnatural,  improbable  or               unfair in the light of relevant  circumstances               or  there  might be other indications  in  the               will to show that the testator’s (1)  C.A.  No.  295  of  1960,  D.  Sept.  13.  1963   (Non- reportable). 822               mind  was not free.  In such a case the  court               would  naturally  expect that  all  legitimate               suspicion should be completely removed  before               the  document is accepted as the last will  of               the testator.  If the propounder himself takes               part  in  the  execution  of  the  will  which               confers a substantial benefit on him, that  is               also a circumstance to be taken into  account,               and  the propounder is required to remove  the               doubts by clear and satisfactory evidence.  If               the   propounder  succeed  in   removing   the



             suspicious circumstances the court would grant               probate,  even if the will might be  unnatural               and  might  cut  off wholly or  in  part  near               relations.   It  is  in  the  light  of  these               settled  principles that we have  to  consider               whether  the  appellants  have  succeeded   in               establishing  that the will was duly  executed               and attested." In  Sarat Kumari Bibi’s case(1) on which the High Court  has relied  and  which  is  also  relied  upon  in  Venkatachala lyengar’s  case(2)  just  cited,  it  was  found  that   one Jamaluddin  who  took benefit under the will, had  taken  an active part in the preparation of the will, and,  therefore, the  rule  made  by Lindley and Davey L.JJ.  in  Tyrrell  v. Painton(3) that where circumstances exist which would excite the  suspicion  of  the  Court,  the  burden  is  upon   the propounder  of the will to remove such suspicion  and  prove affirmatively  that  the testator knew and approved  of  the contents of the document, was applied. The  High Court has analysed the entire evidence adduced  by the  propounder  of the will to prove its due  execution  by Ramdhan,   and  along  with  that  evidence,  it  has   also considered   certain  attendant circumstances.  One  is  the fact  that  the  will  is said  to  have  been  executed  at Hyderabad, which is a place where the appellant resides  and carries on his profession as a medical practitioner and  not at Peepalgaon, where Ramdhan resided.  The evidence  adduced in the case shows that on the day prior to the one on  which the  will  purports to have been executed,  Ramdhan  was  at Ghanegaon till the afternoon.  This place is 8 miles distant from Peepalgaon, and (1) [1928] L.R. 56 I.A. 62.  (2) [1959] Supp. 1, S.C.R. 426, 443. (3) [1894] P. 151, 157, 159.  823 the nearest railway station is 20 miles distant from Peepal- gaon.  The will is said-to have been executed at about noon, and  though  it is not impossible, it is  highly  improbable that  Ramdhan  could  have  been present  at  the  place  of execution  by that time.  The third thing is that  the  will was  executed  in the house of the appellant.   One  of  the circumstances is that there was no particular reason why the will  should have been executed at that time, because  there is  no suggestion that Ramdhan was not keeping good  health. Then  again, the property is very considerable, and  instead of employing the services of a trained lawyer to draw up the will,  a  layman  like Venkat Rajaram,  who  has  given  his profession as "Jagirdari" had been enlisted.  The scribe  as well as the attesting witnesses are not the personal friends of Ramdhan, though they say they knew him, but appear to  be either the friends or neighbours of the appellant.  Yet, the appellant wants the Court to believe that all these  persons were collected by Ramdhan after his arrival at Hyderabad  on the  morning  of  May  23.  This, in  itself,  would  be  an improbable thing indeed, because Ramdhan would not have  had enough  time at his disposal for doing it.  Again, there  is no  explanation why he should collect only the  friends  and acquaintances of the appellant rather than persons, who were his own friends. The High Court has further pointed out that the document  is inscribed on a flimsy paper.  It is in high-flown Urdu,  and is  alleged to have been dictated by him in  that  language. No doubt, the evidence indicates that Ramdhan could speak in Urdu, but it also indicates that he cannot read or write  in Urdu.  It would, therefore, be legitimate to infer that  the



language which he could speak was the unlettered man’s  Urdu and  not  high-flown Urdu. which contains  an  admixture  of Persian  words.  Indeed, such words have actually been  used in  this  document.  The signature of Ramdban is  itself  in Modi  script,  which would not have been the  case  if  were well-versed  in  Urdu.  When we turn to the reverse  of  the sheet on which the document is inscribed, we find that as we go  lower  down, more and more words seem to be  crammed  in each  line  and  the  spacing between  two  lines  tends  to decrease,  even though there appears to have been plenty  of room for the signature of Ramdhan to be scribed lower down 824 on  the  paper.  It would be legitimate to infer  from  this that  the  signature was already there before the  will  was scribed.   This  feature  of the document  as  well  as  the quality  of  the paper used would suggest that  a  piece  of paper  bearing Ramdhan’s signature has been utilised by  the scribe for engrossing what purports to be a will. Finally,  there  is the circumstance that the  will  is  un- natural in the sense that though Ramdhan left property worth several lakhs, he made no provision for a residence for  his wife   but  gave  her  only  Rs.  40/-  per  month  as   her maintenance, and made only paltry bequests to his daughters. It  is  true  that the daughters  are  married  in  affluent families,  but in the absence of a male issue, a  father  is normally  expected to give at least substantial bequests  to his  daughters.  Instead, the wiil gives almost  the  entire property to a distant relative, who, it may be noticed,  was neither  brought  up by the testator, nor was a  person  who looked after the testator during, his declining years.   All this  is  said to have been due to the fact  that  Ramdhan’s relations  with his wife had become strained.   Indeed,  the relationship between Ramdhan and his wife had become so  bad that Ramdhan, according to the appellant, suspected that she was  trying  to poison him.  Curiously enough, in  spite  of this, Ramdhan continued to live with Sitabai right till  his death,  and had made no arrangement for a person other  than her  to  take  charge of the cash and the  gold  and  silver ornaments of the value of a couple of lakhs of rupees or so, in  the  event of his dying suddenly.  There is  nothing  to suggest that Ramdhan’s food was cooked by any one other than Sitabai. To  prove  the  appellant’s  allegations  that  Ramdhan  and Sitabai were not getting on well, the main evidence is  that of  the  appellant  himself,  who  is  the  person  who  has obviously taken an active part in procuring the execution of the document which he has set up as the will of Ramdhan.  He must  be  held to have taken an active  part,  even  though, according  to  him, he did not do so, because the  will  was written not only at Hyderabad where he lives and carries  on his  profession but also in his own house, and  the  persons who  played  one part or the other in  this  connection  are either   his  friends  or  his  neighbours.   It  is   these circumstances   which  have  to  be  borne  in  mind   while evaluating the testimony of the witnesses bear-  825 ing on the execution of the will.  Further, it is  necessary for  the  appellant to satisfy the conscience of  the  Court about   the  genuineness  of  this  will  by  removing   all suspicions   which   naturally   flow   from   the   various circumstances, which we have set out above.  There is not an iota  of evidence in this regard, and we are  not  satisfied that the suspicion created by the circumstances referred  to by  us  has  been removed.  Learned  counsel  has  taken  us through the evidence of the appellant, the scribe and  three



attesting witnesses examined by him.  All this evidence  has been  critically examined by the High Court but for  reasons given by it in its judgment, not accepted by it.  We find no reasons for viewing the evidence differently. We  have  already adverted to the fact  that  no  particular reason  has been even indicated by the appellant as  to  why Ramdhan  thought of executing a will long before his  death. If  his  idea  in  doing so was to  make  certain  that  his property  does not fall in Sitabai’s hands after  his  death one  would  have expected him to make some  arrangement  for -keeping  the movables out of her reach.  He, however,  made no such arrangement.  Further, he would have also taken  the precaution of registering the will, so that any challenge to its genuineness could not have been successfully made. Further, there is no unimpeachable evidence to show that the will was brought to light immediately after Ramdhan’s death, which  would have been the case if it were a  genuine  will. On the other hand, there is one circumstance which  suggests that  the claim on the basis of Ramdhan’s will was not  even thought of by the appellant till long after Ramdhan’s death. The circumstance is the continuance of Sitabai in possession of  the cash, gold and silver articles and  other  movables, even   subsequent  to  Ramdhan’s  death.   Of  course,   the appellant  has given the explanation that he allowed her  to remain  in  possession on his behalf, but  his  evidence  is wholly  incredible.  Indeed, the appellant has said that  he instituted  the suit because he found Sitabai  parting  with portions  of Ramdhan’s movables in favour of  her  daughters and  strangers  after the death of Ramdhan.  At  least,  one thing  will follow from this that according to  him  Sitabai was  more  interested  in her daughters than  in  him.   If, therefore, he had a genuine claim to Ramdhan’s property,  he would not have 826 allowed  Sitabai  to  remain  in  possession  of   Ramdhan’s movables.   At  least,  he would have obtained  from  her  a document containing the list and description of the movables and  also an admission to the effect that she was  entrusted with  them  by the appellant and that she had  no  right  in them.  Had she refused to execute such a document, one would have  naturally expected the appellant to institute  a  suit for  their possession immediately.  There is no  explanation for the absence of such a document, and thus this is also  a circumstance which militates against the genuineness of  the will. In the circumstances, we hold that the High Court was  right in rejecting the evidence of the attesting witnesses and the scribe  as well as of the appellant with regard to the  exe- cution of the will by Ramdhan. We  accordingly uphold the judgment of the High  Court,  and dismiss the appeal with costs. Appeal dismissed.