BAMA SOONDARI DEBI Vs. TARA SOONDARI DEBI

JUDGEMENT

(1.) THE question to be decided in this appeal is whether a will alleged to have been executed by the deceased Dwarka Nath Chuckerbutty, bearing date the 3rd of January, 1886, two days before the death of the alleged testator, is genuine or a forgery. The District Judge of Mymensing, who tried the case, pronounced in favour of the will, but on appeal his decision was reversed by the High Court at Fort William in Bengal, who rejected the application for probate of the will.

(2.) THE alleged will was registered five days after the date it bears. The petition for probate was presented by the father of the alleged testator, who was appointed executor. The document is in all respects formal, and purports to have been signed, not only by the deceased, but by the witnesses said to have been present when it was executed; and the application for probate was accompanied by a declaration by two of these persons in the ordinary form, testifying that they were present, and saw the testator sign the will. The defence stated was that the deceased never executed any will, and that the will propounded was fictitious and false, and fraudulently got up, and in the course of the inquiry much evidence was given as to the state of the deceased, who, at the time when the deed is said to have been executed, was admittedly suffering from the serious illness of which he died- the Defenders having under their general defence maintained and endeavoured to prove that the deceased was in such a state of mental and physical incapacity as to be unfit to make a will on the date when he is alleged to have done so.

(3.) THE genuineness of the will having been challenged, the Petitioner, the father of the deceased, and six other witnesses were examined in support of it. Five of these had signed as testamentary witnesses to the document, and all of them deposed that they were present and saw it executed. It is common ground that, unless the deceased desired to die intestate, it was obviously necessary that he should make a will, for he had been suffering from serious illness, and was in a dangerous condition. The facts affirmed by the Petitioner's witnesses were that, some days before the will was executed, the deceased requested his father to send for his ordinary man of business, Goluck Buttacharji, who lived at some distance away, who came on the Thursday; that Goluck Buttacharji had interviews with the deceased after his arrival at the deceased'-s house, and at a time when there is no doubt the deceased was quite capable of giving instructions for the preparation of his will, as well as with the father of the deceased, to whom his son had explained the provisions he desired to be made; that thereafter Goluck Bhttacharji dictated the draft to Rojoni Kant Das, the person living in the house, who usually wrote such papers as the deceased required to be written; that on the Saturday this draft was read over to the deceased in his bed, when he approved of it; and that on the following day, Sunday, between one and two o'clock in the day, the will was signed in the presence of the testamentary witnesses, after it had been read over, when at the same time the deceased executed an anumati patra to enable his wives to adopt sons who should succeed to the estates in their order, in the event of his infant son dying in minority. The writer of the will, who declared that he saw it signed by the deceased, and the other witnesses, some of whom were, according to the evidence, expressly called in to see it executed, agree in the material facts to which they speak, and there is really nothing in their evidence which could justify or support the inference that there was any want of capacity on the part of the deceased, mental or physical, to understand and execute the will. They concur in their account of the serious nature of the illness of the deceased, and in describing him as being in a weak condition, but they do not support the defence that the deceased was not able fully to understand the act he was performing; and they concur in saying that he sat up in his bed, which was on the floor, leaning against the pillows which were propped up, and so signed the document. It is clear that with this testimony, and keeping in view the fact that nothing can be said against the reasonable nature of the provisions of the will (which is always a material element in such questions, from its bearing on the probabilities of the case), it would require a strong case in defence to lead to the result of holding that the will had been forged. The Judge who saw and heard the witnesses seems to have remarked nothing in their demeanour to induce him to think they were not speaking the truth, or to lead him to the conclusion that they were combined in a conspiracy fraudulently to set up a false deed. Taking the view now presented of the evidence adduced by the Petitioner, the District Judge properly observes that "the burden is on the Defendants to prove that the Court ought to refuse probate either on account of the incapacity of the testator at the time of alleged execution, or on any other ground," and on careful examination of the evidence for the defence he came to the conclusion that this onus had not been discharged.