SURENDRA KRISHNA MONDAL Vs. SREEMATI RANEE DASSI

JUDGEMENT

(1.) This appeal is directed against the grant of Letters of Administration, with a copy of the Will annexed, to the estate of one Raj Krishna Khan who died on the 20th November 1917. He was born in 1897 and in 1914 was married to a girl twelve years old. At the time of his death, he left him surviving his mother, his minor widow and an infant brother. He was a member of the well-known family of Khans of Mankundu of the District of Hooghly and possessed properties of considerable value. He had taken to evil ways very early and was addicted to wine and women; for six or seven years before his death, he had kept a woman of the name of Sosilabala whom he did not abandon even after his marriage. On the 4th November 1917, he went to Puri for a change; the party consisted of five persons besides himself, namely, his manager, Bibhnti Bhusan Mukerjee, his mistress, Susila, another woman of the name of Puti, who apparently cooked for them, a hanger-on of the name of Binod and a sarvant Bipatram Kahar, who had been in his employ for about a year and a half, Raj Krishna had been to Puri in the year previous and had stayed in the house of one Krishna Chandra Guchika, a Panda of the temple of Jagannath. On the occasion of the second visit also, he took up his residence in a house of the Panda near the gate of the temple. On the 15th November Raj Krishna was taken ill at Puri, and it is said that as his condition did not improve he executed the disputed Will on the forenoon of the 19th November 1917. He died the afternoon of the 20th November 1917. The party returned to Calcutta on the morning of the 22nd November. On the 23rd March 1918, Rani Dasi, the mother of the testator, applied for Letters of Administration with copy of the Will annexed, for the use and benefit of her infant son, Bankim Chandra Khan. The estate was valued at Rs. 3,09,708. The application was supported by the affidavits of two of the attesting witnesses. A caveat had been already lodged on the 27th November 1917, by Surendra Krishna Mondal, the father of Bhramarbala Dasi, the widow of the deceased. After a protracted trial, Mr. Justice Chauduri name to the conclusion that the Will was genuine and had been duly made and attested. This conclusion has been sternuously assailed on behalf of the appellant and the judgment under appeal has been subjected to a searching criticism.

(2.) The Will, as already stated, is, alleged to have been executed on the forenoon of the 19th November 1917. There is practically no evidence as to what happened to the testator during the first ten days of his stay at Puri; but we know this much that his manager, Bibhuti Bhusan Mookerjee, who had accompained him from Calcutta on the 4th November, left Puri the very next day and returned to Calcutta. On the 15th November, Bipatram telegraphed to Bhibuti as follows: "Babu sick; moneyless; wire money; otherwise come". Bibhuti, on receipt of this message, forwarded Rs. 25 by money order, and next morning (15th November) wired back: "Sent Rs. 25 by money order yesterday." The case attempted to be made out in the evidence is that the illness of Raj Krishna did not take a favourable term, and he was attended, from the 16th November, by a medical practitioner named Haris Chandra Rao. On the evening of the 18th November, while Raj Krishna was apparently in considerable distress, he expressed an apprehension that he might not survive. On this Susila began to cry. Thereupon Raj Krishna promised to make provision for her and asked Bipatram to procure one or two demi papers so that he might make his Will, Early next morning, Susila, Puti and Binod went to take a bath in the holy tank of Markanda, Bipatram, during their absence, procured the demi paper. Raj Krishna dictated and Bipatram took down on slips of paper what Raj Krishna said. Bipatram, it must be mentioned here, did not know how to write Bengali and was probably very imperfectly acquainted with the Bengali language. He accordingly wrote down in Kaithi character what was said by his master and the result was a jargon of an extraordinary and unprecedented character. The draft was read out and was altered in one respect, namely, as regards the amount of maintenance for the wife of the testator, which was raised from Rs. 40 to Rs. 50. Bipatram then copied the contents of the pencil draft on the demi paper in think and read out the document. His master thereafter asked him to make an addition, which was written out by Bipatram on the left hand margin of the document. Bipatram then signed his name by order of his master, and made over to him the pencil draft and the demi paper. Raj Krishna tore off the draft, kept the demi paper under the pillow and asked Bipatram to go and fetch the Panda and the Doctor. On the way, he met the Charidar (an officer of the Panda) and requested him to send the Panda. He then went to the Doctor who promised to call at 11 o clock. He next went to the Telegraph office and sent a message to the manager at Calcutta in the following terms: "Babu seriously ill; moneyless; come immediately," This telegram, as appears on the face of the message, was handed in at 11-30 a.m. and reached Calcutta 12-34 p.m. Bipatram has sworn, however, that be made over the paper to the Telegraph clerk actually much earlier than the time noted on the message. He then returned to the house. The Panda, the Charidar and the Doctor arrived at about 11 o clock. Raj Krishna took out the document from under the pillow. After some conversation, the document was, at the request of Raj Krishna, read out by Bipatram, Raj Krishna then executed it, affixing his signature in two places, once under the main writing, and again under the marginal note. The document was next attested by the Panda Krishna Chundra Guchika, the Charidar Hari Bandhu Mahanti, and the Doctor Haris Chandra Rao, it was then placed inside a portmanteau. Next morning Bibhuti arrived from Calcutta. There has been some controversy as to whether Bibhnti was at Puri on the 19th November, when the Will is said to have been executed. There is no room for doubt that the Doctor is mistaken on this point, and the evidence shows conclusively that on receipt of the telegram sent on the 19th November Bibhuti started from Calcutta in the evening and arrived at Puri the next morning. When Bibhuti arrived Raj Krishna made over the Will to him. On that day a telegram was sent by Bibhuti to Calcutta in the following terms: "Raj Krishna better; we start to morrow; send Gari." This message was, as noted on the telegraph form, handed in at 3-5 p.m. and reached Calcutta at 4-5 p.m. The evidence shows that Raj Krishna died that afternoon, and there has been much speculation as to why this false message was sent; it is sufficient to say that the point has not been satisfactorily cleared up. Bibhuti and other members of the party left Puri on the 21st and arrived at Calcutta the next morning. On that very day the Will was taken to the Solicitor for the propounder. Such in outline is the story of the events which are alleged to have taken place at Puri between the 15th and 20th November 1917, and we have to determine whether this version is substantially true.

(3.) There has been some discussion at the Bar to the burden of proof in this class of cases where a Will is set up as executed under unusual circumstances. It is sufficient to recall, in this connection, the observations of Baron Parke in Baker v. Batt (1838) 2 Moo. P.C. 317 : 12 E.R. 1026 : 46 R.R. 52: If the party upon whom the burden of the proof of any fact lies either upon his own case, where there is no conflicting testimony, or upon the balance of evidence where there is, fails to satisfy the Tribunal which is to decide of the truth of the proposition which he has to maintain, he must fail in his suit. And thus in a Court of Probate where the onus probandi most undoubtedly lies upon the party propounding the Will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the paper in question does contain the last Will and testament of the deceased, it is bound to pronounce its opinion that the instrument is rot entitled to Probate. And it may frequently happen that this may be the result of an inquiry, in cases of doubtful competence in particular, without the imputation of wilful perjury on either sides, or it may be; the Judge may not be satisfied on which side the perjury is committed, or whether it certainly exits.,