EARNEST BENTO SOUZA Vs. JOHN FRANCIS SOUZA

JUDGEMENT

(1.) The appellant of this appeal is the propounder of the last will and testament said to have been executed by a Goanese Indian Christian woman who instead of being described by her long name may simply, be described as Mrs. D'Souza. She was the widow of one Cactano Paul Souza and was domiciled at Asansol where she had been living since 1906 and where she died on the 2nd March, 1953. The will in question bears the date of 8th March, 1952, and it was registered at the subregistry office at Asansol on the llth December 1952. The testatrix left two sons, John Francies Souza and the propounder Earnest Bento Souza, and she also left two daughters, Mrs. Mary Angelica Goves and Mrs. Rosamunda D'Silva. The two daughters and the elder son John Francies Souza filed objections to the application for probate of the will, their contention being that the will was not genuine and it was not legally executed and attested and that the testatrix had no sound disposing mind at the date of the will, having been subject to various physical and mental infirmities. It was further contended that the disputed will was secured by the propounder from the testatrix in collusion with pleader Kshitish Bhusan Sarkar and J. Rule Femandez who were attesting witnesses to the will taking advantage of her loss of intellect and power of discrimination and without lett-ing her know the contents of the will.

(2.) Upon these objections the following issues were raised in the Court below:

(3.) The propounder adduced evidence in support of his case that the testatrix executed the will with full knowledge of its contents and while in possession of full testamentary powers-and the will was attested according to law. The objectors adduced counter evidence in support of their contentions already mentioned. Upon a consideration of the evidence and the circumstances of the case the Court below held, in. the first place, that the will was antedated and was not attested according to law; secondly, the Court below held that the testatrix did not understand the contents of the will and had no sound disposing mind at the date of the will, and lastly, the Court below held that the will was brought into existence as a result of collusion and undue influence. In view of these findings the Court below refused to grant probate and so the propounder has preferred this appeal. The correctness of all these three findings has been challenged in this appeal on behalf of the appellant, and we shall presently consider whether there is any substance in this challenge.