PRASANNAMAYI DEBI Vs. BAIKUTHA NATH CHATTORAJ

JUDGEMENT

(1.) The subject matter of the litigations which have culminated in these two appeals is the estate left by one Mandakini Debi, a Hindu lady, who died on the 16 September 1918. On the 1 October 1 18 Baiknntha Nath Chattoraj, the surviving brother of her deceased husband, Brahmananda Chattoraj, made an application for Letters of Administration to the estate It ft by her. On the 28 July 11H9 her sister, Prasannamayi, the widow of Rajballabh Chattora, another brother of her husband, applied for Probate of an unregistered Will alleged to have been excepted by her on the l4 September 1918, two days before her death. Tbe relationship of the members of the family is set out in the annexed genera-logical table:

(2.) By Consent of parties, the Administration land Prostate proceedings were tried on the tame evidence. In the Probate proceedings, the District Judge same to the conclusion that the genuineness of the Will had not been established; accordingly, he granted Letters of Administration to the petitioner in the other proceedings. Two appeals have, consequently, been presented to this Court by Prasannamayi: Appeal No. 31 of 1920 is dueled against the refusal of Probate; Appeal No. 35 of 1020 is directed against the grant of Letters of Administration. The Substantial point is controversy is the question of genuineness of the Will, 2. The Will purports, on the fate of it, to have been, executed by Mandakini whose name was signed by Natabar Mookerjee, who also signed his own name as the scribe, and there were in addition seven attesting witness. The scribe and four of the attesting witnesses have been examined on behalf of the propounds. The Will recites that Brah-mananda, the husband of the testatrix, had a brother Pajballav who had taken her sister, Prasannamayi, as his second wife. Brahmananda and Rajballabh used to live in joint mess and estate as members of a Hindu family, and since their death, Mandakini and Prasannamayi had likewise lived in joint mess arid estate. Rajballav had bequeathed his property to his widow, that is, to her sister Prasannamayi, and in his Will had appointed her husband as executor. Her husband had taken out Probate of the Will of his brother and had, out of the income and profits of his own property and of the estate left by his brother, acquired properties in his own name. All these proper-ties he bad bequeathed to her and had up- pointed her cousin (mother's siter's son), Kalibbusan Mookerjee, as executor. After these recitals, the testatrix proceeded to give directions for the disposal of her estate in five paragraphs. In the first clause, she dedicated a property to goddess, Durga, and appointed Baiknntha Nath (her husband's younger brother) and Asutosh (son of her husband's elder brother) as managers of the property so dedicated. In the sesond clause, she directed her brother-in-law and nephew-in- law to feed Brahmins annually on the occasion of the Durga Pooja, for the spiritual benefit of her husband, out of the income of two other properties. In the third clause, she directed Rs. 1,500 to be spent in the performance of her Sradh ceremony. In the fourth clause, she directed the residue of her estate to vest absolutely in her sister, Prasan-namayi. In the fifth clause, she directed the expenses of the annual Sradh ceremony of herself and of her husband to be met out of the income of the estate vested in her sister. These directions do not seem unnatural; on the other hand, they constitute the kind of disposition which might well have been made by an elderly Hindu lady in the position of the testatrix. She had children; her sister had married in the same family as herself, their husbands were brothers who bad lived joist in mess and estate and separate from their other brothers. Her nearest relations by marriage were her husband's younger brother and elder brother's son. In a family so constituted, it was not surprising that a pious Hindu lady would dedicate some property for the worship of the deity, appoint her brother-in-law and nephew-in law as managers thereof, make provision for her own Sradh ceremony and the annual Sradh ceremonies of herself and of her husband, and leave the residue of the estate to the sister whom she dearly loved. These provisions of the Will can in no sense be deemed inofficious or unnatural; on the other hand, they are prima facie reasonable, as they do not disregard the moral claims of the relatives of the testatrix whioh the ties of kinship suggest; they are consequently not calculated to excite suspicion as to the genuineness of the disposition: JagraniKosr v.Durga Parshad22 IncL Cas. 103 : 41 L. A. 76 : 36 A. 93 : 19 C. L, J. 165 : 26 M. h. J. 153 : 18 M. W. N. 521 : 15 M. L. 125 : 12 A. L. J. 125; (1914) M.W. N. 137 : 16 Bom. L, R I41 : 16 0. C. 386( 1 0. L. J. 57 (P, C.). Wenow proceed to consider the evidence as to the actual execution and due attestation of the Will by the testatrix; but before we do so, it is necessary to state the circumstances which led up to the discovery of the Will for, as will presently appear, their true bearing upon the question of genuineness of the Will has not been fully appreciated by the Trial Judge.

(3.) As previously stated, the applicant for Letters of Administration presented his petition to the District Judge on the 1 October 1918. On the same date, the District Judge made an order for the appointment of Babu Lalit Mohan Banerjee, a Pleader, as Commissioner to make an inventory of the articles and cash to be found in the iron safe and boxes belonging to the deceased. The Commissioner went to the residence of the deceased on the following day. Thereupon, Prasannainayi objected to the interference of the Commissioner on the ground that her sister, Mandakini, had bequeathed all her properties to her by means of a Will. She further stated that the key of the iron chest in which the moveable properties left by the deceased were kept was not with her, but was with Kalibhushan Mookerjee, the son of her mother's sister, who lived in Pakhanna 14 miles off. She added that she trusted no body else and would not open the iron chest or box till he came. She further declined to show anything as she had got everything in pursuance of the Will. What she stated was reduced to writing by the Commissioner, and, later on in the day, she asserted again that her sister, Mandakini, had bequeathed her property to her by means of a Will. The Commissioner submitted a report to the Court on the following day, in which he explained his inability to make an inventory. On the 3 October, the District Judge recorded that Prasannamayi claimed the property under a Will, directed her to show cause on the 6 November 1918 why she should not be criminally prosecuted for disobedience of the orders of the Court, and issued instructions that in the meantime the boxes and the safe containing the property, of which, an inventory was sought to be made, be kept by the Commissioner in a separate room under seal, the key of the room to remain in the custody of the Commissioner. On the 4 October the Commissioner again went to the residence of the deceased, collected the movables left by her, made a list there of and placed them in a separate room which was locked up and sealed by him. The contempt proceedings against Prasannamayi dragged on for sometime, but were subsequently abandoned. On the 21 December 181b a reference to arbitration was made at the instance of the parties, but this also, as might have been anticipated, proved anfractuous in the end, as the question of the genuineness of a testamentary instrument cannot be settled by compromise. Ultimately, the Commissioner again went to the residence of the deceased under the orders of the Court dated the 31 January 1919, He reached the place on Saturday, the 1 February, opened the room on the following day, and made a list of the safes, boxes and other articles as also of their contents. This list was filed in Court on the 3 February 1919 and contained the following entry: "IRON CHEST Contents. (1) Unregistered Will of Srimati Mandakini Debi by the pan of Natabar Mookerjee of Pratrasayar, dated 28ih Bhadra, 1325 B. S. (2) Draft of a Will by Srimati Mandakini Debi. These two are tied is a pie#@ of cloth."