Rajendro Nath Holdar v. Jogendro Nath Banerjee BS649471

Rajendro Nath Holdar v. Jogendro Nath Banerjee BS649471 PRIVY COUNCIL

Before:-Members of the Judicial Committee - The Right Hon. Sir James William Colvile, the Right Hon. Sir Joseph Napier, Bart. and the Right Hon. the Lord Justice James.

Assessor :- The Right Hon. Sir Lawrence Peel.

0 D/d. 7, 08.02.1871

Rajendro Nath Holdar - Appellants

Versus

Jogendro Nath Banerjee - Respondents

On Appeal from the High Court of Judicature at Fort William, Bengal.

For the Appellant :- J.D. Bell.

For the Respondent :- Mr. Doyne.

Hindu Law - Adoption - Power to adopt with his mother's consent given to widow by Hindu testator by will - Suit against adopted son in possession for declaring adoption invalid long after adoption by testator's heir - Evidence of long recognition of adopted son, Presumptions in favour of validity of adoption given rise to - Legitimacy of son. Analogy to long recognition of - Loss of rights in natural family of adopted son to be considered - Costs.

[Para ]

A Hindoo Testator by his Will gave authority to his Widow, with the consent of his Mother, to adopt a Son; in pursuance of which a Son was adopted, and the other provisions of the Will acquiesced in by the family for twenty-seven years, when a suit was brought by one of the Testator's heirs claiming the estate then in possession of the adopted Son, on the ground that the adoption was invalid. Held (reversing the decree of the High Court at Calcutta), that although the Defendant was bound to prove his title as adopted Son, as a fact, yet from the long period during which he had been received as adopted Son, every allowance for the absence of evidence to prove each fact was to be favourably entertained, and that the ease was analogous to that in which the legitimacy of a person in possession had been acquiesced in for a considerable time, and afterwards impeached by a party, who had a right to question the legitimacy, where the Defendant, in order to defend his status, is allowed to invoke against the Claimant every presumption which arises from long recognition of his legitimacy by members of his family; and that the case of a Hindoo, long recognised as an adopted Son, raised even a stronger presumption in favour of the validity of his adoption, arising from the possibility of the loss of his rights in his own family by being adopted in another family.

On reversal by the Judicial Committee of the decree of the High Court, such costs, as were allowed by the practice of the Courts in to a successful Plaintiff suing in forma pauperis, and paid, were ordered to be restored to the Defendant.

As the heir-at-law in contesting the appointment of an adopted Son had a decree of the High Court in his favour, no costs of appeal were given on such reversal.

In this appeal, the suit was instituted in the Court of the Principal Sudder Ameen of the 24 Pergunnahs by the first Respondent in forma pauperis, against the appellant, and the other Respondents, as nominal parties, to recover a moiety of landed property situate at Kalighat, which he claimed as heir of one Kalli Prosad Holdar Sister's Sons. The Appellant, and such of the Respondents as contested the suit, denied his title, on the ground of Kalli Prosad Holdar having made a Will disposing of his property which instrument also empowered his Widow, with the consist of the Testator's Mother, to adopt a Son, under which power it was insisted by the Appellant, that he had been duly adopted by the Widow, with the Mother's consent.

The facts and points raised on the appeal are fully stated in their Lordship's judgment.

The case was argued by

JUDGMENT

Judgment was delivered by

The Right Hon. Sir James Colvile :- This case had been extremely well argued on both sides; but their Lordships having had time to examine the evidence, and having now weighed the arguments on both sides, have come to a clear conclusion, that this appeal ought to be allowed, and the grounds of that conclusion I am now instructed to state.

The question is one touching the right of succession to the estate of one Kalli Prosad Holdar, a Brahmin, who seems to have been possessed of a considerable estate, including certain spiritual rights and privileges connected with the worship of the Goddess Kalee, in the well-known Temple in the vicinity of Calcutta. Kalli Prosad Holdar died on the 16th Assin, 1244, a day which corresponds with some day in September, 1837. He left a Widow, a Mother, and four Sisters. The Mother pre-deceased the Widow, and died in 1855; the Widow died in July, 1864. Of the four Sisters, two are dead; one of them without issue, the other leaving a Daughter. And of the two surviving Sisters, one is childless, and the fourth only has male issue, namely, the Respondent, Jogendro Nath Banerjee, and the infant Respondent, Kameeka Nath Banerjee, and these two persons, if Kalli Prosad Holdar died intestate, are the persons who, according to Hindoo law, would he entitled to inherit the estate in succession to the Widow.

Shortly after the Widow's death, in 1864, the Respondent, Jogendro Nath Banerjee, suing in forma pauperis, commenced this suit, in which he claims to recover an eight annas share of the estate from the Appellant, who claims under an adoption by the Widow, alleged to have been made by virtue of a testamentary disposition of her Husband, and from the other persons claiming interests in the estate under that testamentary disposition. The infant Brother is made a Defendant pro forma on the record, and is represented by his Father and Guardian, Kasseeputtee Banerjee.

The appeal, however, has been argued as if the litigation were confined to the adopted Son of the Widow, who is in possession, that is, the Appellant, and the Respondent, Jogendro Nath Banerjee; and in that point of view it will be convenient to consider it.

The issues are these:-"Whether or not the suit is barred by the Statute of Limitations ? Whether or not the Will, the Dan Unnoomottee puttro, of the 6th Assin, 1244 B.S., alluded to in the written statement filed by the Defendant, Rajendro Nath Holdar, was a genuine document ? if so, whether the Defendant had been, according to the Shastras, adopted by Matunginee Dabea Widow of Kali Orosad Holdar, deceased ?" The next, whether, in the event of the aforesaid Deed of gift being not proved, the Plaintiff is entitled, under the Hindoo law, to succeed to the estate or property included in the suit ? and if so, whether he is entitled to possess the whole estate or not?

Of these issues, the second alone, and perhaps only part of the second, is material. The first issue, that upon the Statute of Limitations, was originally determined by the Principal Sudder Ameen (Baboo Koonjoo Lall Bannerjee), the Judge of the Court of First Instance, in favour of the Defendant. His decision was reversed on appeal, and it has been candidly and fairly admitted at the Bar by Mr. Bell that it is impossible to impeach that decision; that, according to the authorities in India, time would only begin to run against the first Respondent from the date of the Widow's death.

Again, the third issue, it may be assumed, would, if it were necessary to try it, be necessarily found in favour of the first Respondent, the Plaintiff in the suit, to the extent of the interest claimed by him in the estate, namely, a moiety, or eight annas.

With respect to the second issue, it has been suggested by Mr. Doyne that it may admit of the contention on his part, that the adoption of the Appellant was invalid, because it was not made with the consent of the Testator's Mother, which the Will made a condition precedent to an adoption. But their Lordships, as they have already intimated, do not consider that point is in terms open upon the issue, the latter part of the issue being "whether the Defendant had been, according to the Shastras, adopted by Matunginee Dabea, Widow of Kalli Prosad Holdar, deceased." Those words really raise only the question, whether all the ceremonies, and whatever other requisites the Hindoo law has made essential to an adoption, had been complied with. Their Lordships would not have held the parties strictly bound to the terms of the issue, if they had seen any trace that it had been understood in any other sense in the Court below. But they cannot find that was the case, that it ever was raised in the Court below that the Testator's Mother had not given her consent to that adoption; and they are confirmed in this by looking at the grounds of appeal which were filed by the first Respondent in the High Court in which he takes these two points with reference to the adoption: "The Lower Court has failed to consider that Matunginee Dabea had no right to adopt under the existing Hindoo law of adoption. There is no proof to show that the ceremonies and formalities prescribed by the Hindoo law were legally performed, and the Defendant's adoption ought to have been cancelled on that score." There is not a word suggesting that the Testator's Mother's consent had not been given. Under these circumstances, if the Mother's consent were necessary under the Will, as to which their Lordships give, no opinion, it must be presumed that consent was given.

That part of the issue which relates to the validity of the adoption according to the Shastras was found by the Court of First Instance in favour of the Appellant. The High Court has intimated no opinion, as it was not necessary for them to decide that point, whether the judgment in that respect was right or not; but their Lordships have heard no reason whatever, and no grounds have been shown before them at the Bar, for impugning that part of the decision of the Principal Sudder Ameen.

The sole question, therefore, on which the determination of this appeal depends, is the validity of the Dan Unnoomottee puttro, which it will be convenient, as it is in its nature testamentary, to call in the observations which I shall hereafter make, "the Will." This Will purports on the face of it to have been executed on the day of the Testator's death. The effect of it, so far as it is necessary to read the passage, is correctly stated in the judgment of the High Court. The Judges say, "This Deed" (as they call it), "it will be observed, gives his Wife, Matunginee Dabea, permission, with the consent of his Mother, Jeomoney, to adopt one Son. It makes a present division of his property into seven annas and nine annas, but postpones the enjoyment of it by the parties for whom the several shares are intended, until the death of his Mother, who, during her lifetime, is to be the proprietor and Manager of the whole sixteen annas of his property, and to pay his debts out of the nine annas share and other expenses of maintenance, etc., out of the sixteen annas. On the death of his Mother, his four Sisters are to take possession of their seven annas share, and, in case of any one of them dying childless, her share is to descend to the children of the other Sisters. The nine annas share is to be the property, without power of alienation, of Matunginee Dabea during her life, and after her death it is to descend to her adopted Son." I stop there, because I am not clear that the Judges have really given the true construction of the concluding clauses of the Will in what follows, and it is unnecessary to consider, whether that construction is right or not.

The earliest production of the document was within ten months of the Testator's death, in August, 1838. In that month Jeomoney, the Mother of the deceased, came forward as Executrix, as we should say, under this Will, claiming to be substituted as Decree-holder in a suit in which her Son had recovered a decree in his lifetime. The Widow appeared on that occasion by her Mookhter to support her Mother-in-law's application. The Judge seems to have required, or the parties to have tendered, proof of this instrument. The Writer of the instrument was examined, and one, if not two, of the attesting Witnesses were also examined. The evidence, such as it was, seems to have satisfied the Judge, at all events for the purposes of the application, that the document was to be treated as a true document, and, accordingly, the Mother was substituted as the Decree-holder.

So far, therefore, the Widow, who was the heiress-at-law of the alleged Testator, was supporting the alleged testacy. In 1844, however, there seems to have been some change in her disposition in that respect, and some disagreement in the family, and she then made the application to sue in forma pauperis, in order to assert her rights as heiress-at-law. She appears from that document to have left her Husband's House at that time, and to be residing in her Father's House, where, of course, she would be under the influence of parties who would urge her to assert her extreme rights, and if they considered it necessary for her rights to do so, to dispute the Will. Whatever she may have actually done after that in the suit, does not appear, but it is clear, that in 1845 that litigation was compromised, and she reverted to her original position of a person supporting the Will and taking under it. The effect of the compromise was, that the Will was admitted as the foundation of the rights of the family, but the Mother retired from that position in which the Will placed her, of being Mookhter of the whole estate,-the person managing the estate with whatever beneficial interest that management might give her, and supporting the whole family out of the proceeds of the whole estate;--and that she thenceforward agreed to be entitled to receive maintenance only, and to put the Widow in the possession of that which the Will gave to her and the Sisters in immediate possession of that which the Will gave to them. Now, that compromise has been very much relied upon by Mr. Doyne as affording an argument against the validity of the Will. Their Lordships are unable to accede to the argument which he has laid before them. His contention is, that it must be presumed that the Mother would not have agreed to those terms unless she knew that the Will was a false document, and was afraid of its validity being contested in open Court. But, on the other hand, it may equally be said that the Widow would not have agreed to relinquish her claim to the whole estate if she had known that the document could not be proved in open Court, and that she had every chance of gaining her suit. Without imputing such a motive to the Mother, it seems not wholly unnatural to suppose that she might be guided in that by the advice of members of the family,--that they might have put before her that the estate would very likely be wasted in litigation,--that the proof of a Hindoo Will, when a true document, is always an uncertain thing, and that being advanced in years, and having her Daughters put in possession of seven annas of the property, her position would not be materially worse, and that she might fairly agree for the sake of peace to make the sacrifice which she did make. On the whole, their Lordships think, that it is impossible to draw any conclusion from that compromise which militates strongly against the evidence in favour of the Will.

From that time forth, with perhaps one exception, the family appear to have acted consistently upon the Will. This compromise was filed in the year 1845. The adoption was, I think, in 1848; but, intermediately, there are several proceedings both before and after the adoption in which all the family put forward this Will, claiming under the Will; and, in fact, there is nothing except the document to which I am now about to refer which shows that the Will was questioned by any of the immediate family of Kalli Prosad Holdar. That document is the one filed on the part of the Respondents. It is the petition of the Widow when a party, a relation of the family who had recovered a decree for costs against the Mother, was seeking, after the Mother's death, to get these costs from the Widow; and she, after stating that she had no connection with the Widow as heir, that the heirs of the Mother were her Daughters, no doubt does in the second paragraph of her petition speak of having been induced to consent to a division of the whole sixteen annas by collusion. But this document is filed in the Court by her Mookhter; it does not seem to have been signed by her, and their Lordships, considering that in this very document] she describes herself as the Mother and Guardian of the Son adopted under the Will, cannot ascribe any importance to it, or suppose that this statement is anything but one of those statements which a native Mookhter is so apt to put in without much regard to the truth of what is alleged in it, in order to gain some immediate object in the suit in which it is filed. The adoption took place with great publicity and formality, was known to all the members of the family, and must be presumed to have been made under the Will.

We, therefore, find that for a period of twenty-seven years this Will was, with the exceptions I have mentioned, acted upon and recognised by the whole of the family of Kalli Prosad Holdar, and that the legal status of the Appellant was acquired under it with the knowledge of all the members of the family. If the document had been a fabrication, and if there were persons who might have intervened and have contested the Will, the presumptive heir, who was in existence before his title was defeated by the birth of the present contesting Respondent, might have come forward in one way or another and contested the Will. Therefore, there arises from all these circumstances a very strong presumption, which their Lordships do not feel themselves at liberty to disregard, in favour of the Will. No doubt these circumstances, as the law stands, are not conclusive against the first Respondent. He has the right to call upon the Appellant, the Defendant in the suit, to prove his title; but their Lordships cannot but feel that while he has that extreme right, every allowance that can be fairly made for the loss of evidence during this long period, by death or otherwise-every allowance which can account for any imperfection in the evidence--ought to be made; and, on the other hand, that in testing the credibility of the evidence which is actually given, great weight should be given to all those inferences and presumptions which arise from the conduct of the family with respect to the Will and to the acts done by them under the Will. The case seems to their Lordships to be analogous to one in which the legitimacy of a person in possession is questioned, a very considerable time after his possession has been acquired, by a party who has a strict legal right to question his legitimacy. In such a case the Defendant, in order to defend his status, should be allowed to invoke against the Claimant every presumption which reasonably arises from the long recognition of his legitimacy by members of the family or other persons. The case of a Hindoo claiming by adoption is perhaps as strong as any case of the kind that can be put; because when, under a document which is supposed and admitted by the whole family to be genuine, he is adopted, he loses the rights-he may lose them altogether-which he would have in his own family; and it would be most unjust after long lapse of time to deprive him of the status which he has acquired in the family into which he has been introduced, except upon the strongest proof of the alleged defect in his title.

With these observations, their Lordships proceed to consider the direct evidence as to the validity of this Will. They do not propose to go into it at any great detail. It was fully considered in the first instance by the Principal Sudder Ameen, himself a Brahmin, who has embodied his conclusions in a judgment, the careful preparation and expression of which seem to their Lordships to be highly creditable to that native Judge. He came to a clear conclusion, that the Witnesses who were called by the first Respondent to show that Kalli Prosad Holdar was in such a state of body that it was impossible that he could have executed this Will, were persons of no credit, and not to be believed. He, also weighing all the circumstances, giving weight to the probabilities of the case, and considering the positive testimony which had been adduced before him, came to a clear conclusion that the Will was genuine and ought to have been affirmed. Upon appeal to the High Court, the learned Judges of that Court, Messrs. C. Travor and F.A. Glover, for reasons which they have not recorded, but which may easily be presumed to have been a desire to examine the subscribing Witnesses for themselves, and also to examine the subscribing Witness who had not been called in the Court below, the Father of the Respondent, re-examined the three Witnesses who had been examined, and examined for the first time Kasseeputtee Banerjee. Of the evidence then taken, it may be said that the Witnesses who were re-examined do not appear to have been in any degree shaken, and the cross-examination of one of them, Shiboram Chatterjee, elicited some fuller account of the preparation of the Will, which is not altogether immaterial, if true, to the Appellant's case. Of the evidence of Kasseeputtee Banerjee it is sufficient to say that it amounted only to this, that though his name did appear upon the document, it had been added some twenty days after the death of the Testator at the instigation of the Mother, who told him that the arrangement was for the benefit of his future Son, and that her consent was necessary to any adoption. He does not venture to express a conviction one way or the other as to the truth or falsehood of the Will, and it is obvious that his statement, taking it in the most favourable sense, that he merely put his signature at that time to a document of which he had not witnessed the execution, on that persuasion, does not entitle him to very much credit. If, on the other hand, he did it believing the document to be a forgery, he would, of course, be entitled to much less credit, and, therefore, his evidence is, not that upon which any reliance can be placed, and the Judges of the High Court do not appear to have grounded their judgment upon it. All they say as to the evidence of Kasseeputtee Banerjee is, "We think it better to form our opinion on the merits of this case irrespective of anything contained in it. Although, notwithstanding the equivocal position in which he stands on his own showing, we are inclined to think that there is some truth in what is stated as to the origin of the Deed now before the Court." That, therefore, may be left out of consideration.

Now, if the two judgments are looked at in opposition to each other, it would appear that the learned Judges of the High Court have, in the first place, differed somewhat from the Principal Sudder Ameen in his appreciation of the probability that such a document as this should have been executed. They say,-"As the Principal Sudder Ameen has remarked, it is contended by the Plaintiff that Deed was a concoction of Kalli Prosad Holdar's Mother, Jeomoney, who fabricated it to provide for her Daughters, for whom a Hindoo Mother has greater affection than for male children, and that it was only to quiet the Wife that nine annas of the property was allotted to her; whereas by the Defendant it is urged, that Kalli Prosad Holdar's four Sisters were, according to the custom of the family, married to Koolin Brahmins, who never take their Wives to their home or otherwise maintain them; that, mindful of their helpless situation and of his own salvation, he made a provision for the former at the same time that he provided for the maintenance of the latter; and that as a dutiful Hindoo Son, he made the Mother Manager and proprietor; that, moreover, Kalli Prosad Holdar's income was about Rs. 800 a year, and that one-quarter of seven annas of that sum, viz., Rs. 85 per annum, was not an out-of-the-way sum for each of his Sisters. There is no doubt that this Deed is for the benefit of the Sisters of Kalli Prosad Holdar, and that it is only in case his adopted Son has issue that nine annas of the property can remain away from the Sisters or their heirs eventually. Without going so far as saying that there is an antecedent improbability in this distribution of the Testator's property, the Court has no hesitation in saying that distribution is unusual. A permission is not given to the Wife to adopt more than one Son, and the adopted Son's patrimony is cut down, and it does not become vested in him until after his Mother's death, and if he dies issueless the property goes to the Testator's Sisters and their heirs. As to the necessity of Kalli Prosad Holdar providing for his Sisters married to Koolins by a Deed of that sort, that is not so apparent; whilst they live in the family house the obligation would remain on Kalli Prosad Holdar and his heirs to maintain them and their children, but to divide his estate in this way is to go beyond the obligation which the Hindoo law imposed on Kalli Prosad Holdar. Again, the Court does not see the justice of considering the adopted Son a stranger, and of contrasting him in the position of a stranger with that of the Testator's Sisters. After the adoption, the adopted Son is no longer a stranger; he is the person who procures the salvation of his adopting Father, and, therefore, in the face of so great a benefit accruing to the Testator from the Son adopted, any permanent diminution of the property left to him, even to the amount of four times Rs. 85, equal to Rs. 340 a year, bears the semblance of injustice."

On this it is to be observed, that the principal point upon which they differ from the Sudder Ameen is, the probability of the provision made for the Sisters, by giving them specific shares in the property, instead of giving them mere allowances for maintenance; and, it may be very true, as the learned Judges say, that these Sisters being married to Koolin Brahmins, there would remain the obligation on Kalli Prosad Holdar, or his successors, to maintain them. The whole question was, however, raised before the Principal Sudder Ameen, who, as a Brahmin, is at least as likely as the Judges of the High Court to know what a Brahmin would be likely to do in those circumstances, and he has expressed an opinion, that the provision was not an unnatural one for the Testator to make in those circumstances. Again, it is no doubt true that greater power is given to the Mother than she would have naturally under the Hindoo law, and that the interest of the adopted Son is postponed, and that the disposition is altogether different from that which might have been made by a man who had in his mind the single object of leaving an adopted Son.

It is possible, and it has occurred to their Lordships, considering that as there is evidence which points to the provisions of the Will having been discussed a day or two before its actual execution, and to the relations subsisting between the members of this family, there may have been something like a compromise in the Testator's mind, namely, that there may have been some pressure upon him on the part of his Mother to make a larger provision for his Sisters: while on the other hand, that he was anxious to carry out the principle, dear to every Hindoo, of having an adopted Son, and that the actual disposition may have been the result of some such compromise. But their Lordships have to observe, that they are not dealing here with a question, whether a disposition has been obtained by any undue influence or under any pressure, but upon the issue, whether this document is a forgery or is the Will of the Testator.

Another point upon which the learned Judges of the High Court have intimated some dissent from the Principal Sudder Ameen was the credit to be given to two of the Witnesses examined, namely, the two young men, Denonath Holdar and Koylas Chunder Banerjee. The Court observes, "We do not believe the statement of Denonath Holdar and Koylas Chunder Banerjee on this point. They were both Boys : no intelligible reason is given for their being at House at such a time, and the evidence before us as to the duration of Kalli Prosad Holdar's sickness, as to his state two days before his death, and as to his state on the day of his death, even if it be credited, does not admit of our believing at the same time that he entered into those explanatory conversations with the Witnesses, which in their depositions they detail." The observation that is founded upon the age of these two Witnesses might have some force if this document were now produced for the first time and their names were found upon it as subscribing Witnesses. But the argument is all the other way, when it is considered that the document was beyond all question produced in 1838; because it is in the highest degree improbable that, if persons were concocting a forgery, they would call into their councils two Boys sixteen or seventeen years old, who would be manifestly, from their youth, not likely persons to be entrusted with the secret. They have given an explanation which seemed plausible to the Principal Sudder Ameen, and seems plausible to their Lordships, for their presence on that occasion. The explanation is, that a message came to the Father of one of them to go to the House, that he was prevented by business from going to the House, and he said to his Son, "Will you go?" The Son met a companion, also apparently a relation of the family, and they went together. There may be some little exaggeration as to the amount of explanation given, but their Lordships see no reason, as the Principal Sudder Ameen saw no reason, why their statement that the Testator did actually acknowledge before them that the document was his Will, should be discredited.

Therefore, going through the whole of these two judgments, it appears to their Lordships that really the ratio decidendi, or at least the turning-point in the minds of the learned Judges, was the impression which they derived from the inspection of the letter "M" (for Munzoor, or confirmed). Now, that point was not taken for the first time before the High Court. The suggestion seems also to have been made in the Court of the Principal Sudder Ameen, and he, as we understand his judgment, thought that there was nothing in it. Now, with great respect for the knowledge which the two learned Judges of the High Court possessed, as their Lordships doubt not, of the Bengalee language, their Lordships cannot but think that upon such a point as that, the native Judge, examining a letter in his own alphabet, is more likely to be a competent Judge than the two European Judges. But independently of that, it appears to their Lordships to be a very unsafe ground of decision. The evidence as to the absolute prostration and insensibility of the Testator at the time has been discredited. No doubt the Appellant's own Witnesses state, that he put this letter, feeling too weak to write his name at full. But it is impossible, from the mere inspection of the letter, as it appears to their Lordships, to be able to predicate with any degree of certainty or accuracy, that he was too weak to make the impression with his pen which he is said to have made. It is impossible to say what momentary rally of strength might take place to do an act of such brevity as that; and, therefore, their Lordships are unable to give to that, which is after all merely the impression of these two Judges derived from actual inspection, the weight which has been given to it. They cannot but think (considering that the evidence, supported as it is by the presumptions to which reference has been made), on the whole greatly preponderates in favour of the genuineness of this instrument; that the mere appearance to the eyes of those Judges of that letter is sufficient to outweigh it; and, therefore, their Lordships, however great their respect for the judgment of the High Court, feel that it is their duty in the present case to advise Her Majesty to allow this appeal, to reverse the judgment of the High Court, and to direct that in lieu thereof an Order be made dismissing the appeal to the High Court. The party having sued in forma pauperis, their Lordships will further recommend, that an Order be made dismissing the appeal to the High Court, with such costs, if any, as according to the practice of that Court are given to an Appellant suing in forma pauperis, and the repayment of any costs that have been paid by the Appellant; and their Lordships, considering that they are dealing with an heir-at-law questioning this Will, and supporting a judgment which has really been in his favour, setting aside the Will, are not disposed to make any Order as to the costs of this appeal.