NABAGOPAL SARKAR BAHADUR Vs. MRSSARALA BALA MITTER

JUDGEMENT

(1.) This appeal has been preferred from the decision of the Additional District Judge, 24- Parganas, granting probate of the will of one Mrs. Bipin Bala Sarkar. She is alleged to have executed a will on 5 July 1922 and got it registered on 17 September 1923. She died on 6 March 1925. Mrs. Sarala Bala Mitter, the executrix named in the will and to whom the entire bequest was made, applied for probate. Notices were issued on the testatrix's husband Rai Bahadur Nobo Gopal Sircar, her brother Dr. S.K. Bose, and her sister Mrs Kiran Bala Chaudhury. The husband and the sister contested the proceedings, and in this appeal the former alone is the appellant. To deal with the questions which have arisen in this appeal a short history of the life of the testatrix will not be out of place. (After giving a long detailed account of her life and describing as to how she came in contact and lived with the executrix, the judgment proceeded). As regards the execution and attestation of the will there is hardly any dispute. It is a registered will of which the whole of the contents were written by the testatrix with her own hand and its execution was admitted by her before the Registrar. The two attesting witnesses Dr. Bejoy Krishna Chaudhury and Mrs. Suniti Laura Ghose have given evidence. In our opinion execution and attestation have been duly proved, and indeed they have not been challenged on behalf of the appellants.

(2.) It has then been argued that the testatrix since her bereavements and in consequence of her illness was not in a fit state of mind to understand what she was doing, that she was wanting in rationality and that she was not intelligent enough or had no sufficient mental capacity to grasp the contents of the will. (After discussing the evidence, His Lordship proceeded). To sum up then there was in her a defect, a weakness of the mind; but however much it may be regarded as a disorder of the mind it was in no sense an intellectual disorder and in no degree reflected on her intellectual capacities. To be such mental weakness as would be sufficient to constitute testamentary incapacity, such incapacity, it is well settled, must be qua the will in question. Mrs. Mitter was the only lady who from 1913 or a short time before down to the date of the will was regularly looking after her, taking proper care of her, keeping her company in plains as well as in the hills and providing for her diversions; and it is only natural that all her feelings, her affections and her wishes would be centred round her; so the will was not at all an unlikely production. The will is a very short document which a lady of the calibre of the testatrix who had some little education in her childhood, had travelled to England, and had borne the company of Anglo-Indian ladies for a series of years and had lived with Mrs. Mitter for nearly 10 years or so would find no difficulty in comprehending. In these circumstances it must beheld that the appellants contention in this respect fails. (After rejecting the argument regarding the date of the execution of the will, the judgment proceeded). It has been contended in the next place on behalf of the appellant that the will was the result of undue influence exercised by Mrs. Mitter on the mind of the testatrix. Leaving the question of fraud apart as distinct from undue influence the matter stands thus: From 1910 or at all events from 1912 or 1913, Mrs. Mitter exercised considerable and weighty influence over the mind of the testatrix. This influence no doubt, in so far as it was beneficial, was duly recognised by the husband; she made her happy while she was miserable before. It may also be that Mrs. Mitter to a certain extent dominated the will of the testatrix and had latterly, as the letters referred to above in detail suggest, succeeded in having ascendancy over her mind in such a way that the testatrix regarded her counsel as supreme.

(3.) It is also not an unreasonable inference to make from the said letters that Mrs. Mitter, although she in the beginning had been acting with the best of motives, latterly conceived the idea of getting from Mrs. Sarkar little by little all that her husband had in order that ultimately all that would coma to her under the will. It is also not unlikely that in her offer to provide for a house of her own for Mrs. Sarkar Mrs. Mitter was really arranging to have her own house made, as the change of mind from time to time on the part of Mrs. Sarkar as disclosed by the letters suggest. Certain statements in Mrs. Sarkar's letters, the truth of which has been denied by Mrs. Mitter but which it is impossible to regard as really untruth proceeding from Mrs. Sarkar, clearly demonstrate that Mrs. Mitter was making false representations to her to serve her own purposes in the matter of raising loans for the erection of the houses and so on. But then all this would not amount, in law, to such undue influence as would be sufficient to vitiate a will: see Wingrove V/s. Wingrove (1886) 11 P D 81, Bandains V/s. Richardson (1906) A C 169 and Craig V/s. Lamourex (1920) A C 349. Mrs. Mitter may have acquired an ascendancy over the will of the testatrix but the testatrix was a person of competent understanding and in doing what she did the testatrix could not have said: "This is not my wish but I must do it." The will however brought about either by good offices truly rendered to the testatrix or by show of false affection or concern for the good and welfare of the testatrix or by using the testatrix as a means for securing a purely selfish end, must, in our judgment, be regarded as the expression of the testatrix's own wishes. We reject with confidence the evidence that has been adduced to show that the testatrix was ever ill treated or unkindly treated by Mrs. Mitter or that the testatrix had during her last illness spoken to her husband about the will having been extorted from her.