BRATINDRA NATH DEY Vs. SUKUMAR CH DEY

JUDGEMENT

(1.) This is an application on behalf of Bratindra Nath Dey, a grandson of the deceased testator for the grant of letters of Administration to the estate of the deceased. The testator Triguna Charan Dey also known as Joy Chandra Dey died on the 27th of October 1959 at his residence at Dey Para in Chinsura in the district of Hooghly leaving the following persons as his legal heirs and near relations: -

(2.) Now, taking into consideration the facts and the surrounding circumstances it appears to me that the testator was an unhappy man on account of the fact that his two and one daughter were not normal. The daughter, who had committed suicide must have developed insanity after her marriage, otherwise she would not have been married at all. Be that as it may, there is nothing to show that in August 1950 the testator's physical and mental conditions were such that he was not in a position to understand the contents of the Will. On the contrary the evidence of the doctor is that he was in a position to understand things. Relying on Bhojraj v. Sita Ram AIR 1936 PC 60, it has been argued by Mr. Ghosh, Counsel for the respondent, this admission should be relied upon in the context of other evidence. But there is no evidence on behalf of the respondent or any witness that the testator had no capacity to understand things in August 1950. The signature in the Will has not been challenged at all. The name was signed by the testator in a clear legible way. Dr. Chatterjee has admitted that there was lapse of sanity and insanity occasionally. The Will written statement executed in August 1950 and the testator died in 1959. It is not the case of the respondent that during the period between 1950 and 1959 he was insane continuously. Assuming that he was suffering from insanity in 1950, there is no evidence showing that during long nine years he discussed the Will or wanted to change it. His wife has been carefully preserving the said will. If the will would have been unnatural or if the will would have been concocted or if the will would have been executed under some conspiracy, collusion or undue influence, his widow after the death could have destroyed it. As a Hindu widow she would have expressed her views that it was not her husband's intention to give effect to the provisions of the Will. It is true that she as executrix did not apply for grant of the probate, but it should be remembered that the testator died on 27th October, 1959 and she died on 26th August 1961. It is quite possible as suggested by Counsel for the petitioner, that she did not take the trouble of taking steps to pay the Estate Duty during the year of mourning. Her decision to preserve the Will shows that she did not consider the Will to have been executed by the testator involuntarily, nor she wanted to have the administration of the estate disturbed during her lifetime. The normal condition of the testator at the time of the execution of the Will has also been confirmed by the attesting witness and also the present applicant.

(3.) Relying on Umesh Chandra Biswas v. Rashmohini Dassi, (1894) ILR 21 Cal 279, Mr. Ghosh has argued that due execution of a Will implies not only that the testator must be in such a state of mind as to know the execution of the document as his Will but that he knew and approved the contents of the Will. According to him the petitioner was failed to prove that the alleged Will is the testator's Will and that he knew the contents of the Will. In my view this case is not of much assistance to the respondent. As stated earlier, there is evidence of the attesting witness and also the propounder of the Will and Dr. Chatterjee to the effect that in 1950 the testator did not suffer from any physical or mental ailment. There is also evidence that the attesting witness has signed his name in the Will in presence of the testator and other attesting witnesses. The signature of the Will has not been challenged as a forged one. The execution of the Will also has not been raised as an issue by the respondent. Although a feeble attempt has been made that the execution was done under the undue influence of the petitioner no particulars have been stated in the affidavit of the respondent to raise the plea of undue influence. Besides the petitioner was only 12 years old at the time of the execution of the Will. There is no suggestion in the cross-examination that the Will to which the testator put his signature was not the testator's Will. In the absence of any positive evidence on the part of the respondent it is not possible for me to hold that the testator did not know the contents of his Will. Further, the facts of the said decision in (1894) ILR 21 Cal 279 (supra) are distinguishable. There in the grounds of objection execution of the Will, physical and mental capacity of the testator and improbability of execution have been mentioned and only one general issue was raised which is as follows: - "Was the Will duly executed by the testator according to law." In this decision the High Court has relied upon an observation of Judicial Committee in Mitchell v. Thomas (1847) 6 Moo PC 150 where the learned Judge has made the following observations: -