RAMESH CHANDRA DAS Vs. LAKHAN CHANDRA DAS

JUDGEMENT

(1.) (First nine paragraphs not containing any point of law are not reported as being unnecessary for purposes of this report --Ed.)

(2.) The first question to be considered is whether the testamentary instruments in suit are tainted with suspicion. I do not consider the provisions of the will and codicil to be unnatural in the facts of this case. Putting myself in the arm chair of the testatrix, I feel that it was very natural that the provisions of the will and codicil would be as they are. As indicated before, the testatarix had very great love and affection for her step brother Gopinath and his family Had the lady died intestate the house would have devolved on her heir-at-law Lakshman -- her husband's sister's son then alive. Gopinath and his family would in such event have been thrown out from the house where they have been living for more than half a century. What is more natural for the loving sister to prevent this eventuality? On the other hand, Lakshman and his family are well off and never lived either with Adhar or the testatrix. They had their own house to live in. It is therefore not at all unnatural for the testatrix to leave most of the house to her brother Gopinath. Nevertheless, in token of the recognition of the claim of Lakshman and services rendered by Lakshman in the past, she left a portion of the house to Lakshman though it must be conceded that the portion bequeathed to Lakshman is very small indeed. She remembered and made bequest in favour of every relation of herself in her father's side and husband's side some more some less. She made bequest of annuity in favour of the widows living with her. The only comment that can be made, and has been made, is that she did not provide for the residence of these widows. This might have been due to the trust the lady had in Gopinath and his children that they would never eject the widows with whom they have been living so long. I am therefore, apt to consider that the provisions of the will are very natural. It will not do for us to forget she had nobody else to whom she could be expected to bequeath this house. To grant probate to such testamentary instruments the conscience of the court is easily satisfied if satisfactory evidence is given in proof of execution and attestation of the instruments according to law. In the instant case, such evidence has been given as indicated above.

(3.) Mr. B.C. Mitra, learned counsel for the caveator, however contended that the facts proved in this case are bound to raise the suspicion of the court and once suspicion has been raised, probate will not be granted unless suspicion is removed. The facts relied upon to rouse the suspicion of the court may now be considered. On the evidence it must be held that the lady was very old. She was, in any event, above 80 years of age. I do not however accept the contention of the caveator that she was physically and mentally infirm due to old age or illness. It is proved beyond controversy that she herself went to the City Registration office to tender the will and codicil for registration. To mount the long stairs, to reach the City Registration office in the first floor is a convincing evidence of the physical fitness of the testatrix. There is also the evidence of all witnesses that she was not suffering at all from senile decay and that she was mentally alert which evidence I accept. The internal evidence in the will itself of the disposition of the property convinces me that she had sufficient testamentary capacity. The suspicion that might have been caused due to the old age of the testatrix has been removed by evidence of physical and mental capacity led by the propounder. The next fact to rouse the suspicion of the court is that the propounder is substantially benefited by the instruments and that he took active part in the matter of the preparation and execution of the testamentary instruments. Mr. Mitra cited the leading case of Tyrrell v. Painton, 1894 P. 151 and Barry v. Butlin, (1838) 2 Moo P. C. 480 and a number of other cases in support of his contention that if the facts are proved to the effect that the propounder is substantially benefited by the will and that he took active part in the preparation and execution of the will, the suspicion of the court would be roused. The facts proved in the instant case are bound to rouse the suspicion of the court and unless the suspicion is removed by the propounder by dependable evidence, he is not entitled to the grant. Ramesh along with his brothers are substantially benefited by the testamentary instruments though he is not the sole legatee. Ramesh denies that he had anything to do with the will except accompanying the lady to the Registration office. So also Bhabani and Manilal deny that Ramesh was not present at the time when instructions were given to prepare the will and codicil and there is no direct evidence in support of the case that Ramesh took active part in the preparation of the will and codicil. Nevertheless, Mr. Mitra contends that even though there is no direct evidence, even in the face of positive evidence to the contrary, the facts proved lead inevitably to the inference that Ramesh took some interest in the transaction. The Day Book entry shows that an agent of the testatrix called on the attorney to make enquiries as to whether the codicil was ready for execution. The name of the agent does not appear in the Day Book but it is proved at the trial that the agent referred to was Ramesh. Comment was made that the name of Ramesh in the Day Book was deliberately not mentioned by the attorney in order that Ramesh might not be proved to have anything to do with the will. This the attorney did as he was a friend of Ramesh and his family and he was a party in bringing into existence the fraudulent instruments. I reject this contention as being of no substance. I find in my experience, both in the Bar and in the Bench, that the name of the agent giving instructions to the attorney is seldom mentioned in the Day Book. I am, however, willing to stretch a point in favour of Mr. Mitra's client and to hold that Ramesh had something more to do than merely accompanying the testatrix in the Registration office both in the case of will and in the case of codicil. Mr. Mitra is therefore entitled to argue that some suspicion should be roused in the mind of the court and the propounder is not entitled to grant unless the suspicion is removed. Assuming that suspicion has been roused in law, it is the duty of the propounder to remove this doubt by leading evidence to the effect that the instrument referred to is the last will of a free and capable testarix. The court is required to be more careful and scrutinise the evidence of preparation and execution of the instrument. If there is convincing evidence on that behalf, the suspicion of the court is removed and the court is bound to pronounce in favour of the will.