SARADINDUNATH RAI CHAUDHURI Vs. SUDHIR CHANDRA DAS

JUDGEMENT

(1.) This appeal is directed against the grant of Letters of Administration with copy annexed of a Will alleged to have been executed by Sris Chandra Das, a wealthy banker and land-owner of Dacca. The Will is said to have been executed and registered between 9 and 10 A. M. on the 11 December 1904; the testator died between 3 and 4 p. m. on the following day. The names of the members of his family are set out in the following pedigree:

(2.) The testator left him surviving his mother Preomoyi, his widow Rasheswari, and his four daughters, Sarojini, Indumati, Promila and Sukumari. Sarojini bad been married to Bankim and had three sons Nirmal, Bimal and Amal. Indumati had been married to Bipin, a Pleader at Dacea and had one daughter. Promila bad been married to Ghanda Nath and Sukumari to Shdhidendra Nath. These two sons-in-law belonged to well-to-do families, while Bankim and Bipin had very little property of their own. The testator appointed his widow Rasheswari and his cousin Rajani Mohan to be executrix and executor of the estate left by him, and empowered them to take Probate without security. The directions contained in the Will were two fold, namely, first, that his widow would adopt Nirmal, his grandson by his daughter, and, in default, any other boy,--the adopted son to be the proprietor of the estate; and, secondly, that his first two daughters would receive two houses and a monthly allowance of Rs. 100 each. The Will purported, on the face of it, to have been written out by Ananda Charan Chakrabarti, a Pleader of Dacea, and attested by seven witnesses, all of them persons of position and respectability. On the 19 February 1905 Indumati, the second daughter of the deceased, presented a petition to the Collector of Dacea, stating that a false Will had been propounded in respect of the estate left by her father. On the 22 February, 1905, Rasheswari and Rajani applied for Probate in the Court of the District Judge and on the same date, Indumati filed her caveat. On the 29 March 1905, Indumati filed her petition of objection, challenging the Will as spurious. On the 22nd May, 1905, Indumati withdrew her objection, stating that she had ascertained on enquiry that the Will was genuine and her objection could not be maintained. This was, as might be easily surmised, a mere euphemistic statement; for it has since transpired that Indumati exacted a substantial price for this concession; she was given, over and above what she would get under the Will, two houses and a sum of Rs, 30,000, and thereupon she destroyed a letter, which she bad in her possession, from Col. Campbell, one of the medical attendants of her father during his last illness, expressing the opinion that he was at the time of the execution of the alleged Will unable to execute a document. But in whatever manner Indumati might have been persuaded to withdraw her op. position, the fact remains that the Will was thereupon proved formally and Probate was granted in common form. On the 26 April 1906, Rasheswari took in adoption her daughter's son, Nirmal, who assumed the name of Sudhir. Rasheswari and Rajani administered the estate as executrix and executor for many years, and matters proceeded smoothly till 1912 when differences unhappily arose between Rasheswari and her son-in-law Bankim, which culminated in a suit instituted, at the instance of Bankim, by Promila as the next friend of Sudhir against the executors, for accounts of the estate on charges of waste and mismanagement. This was followed by an application in 1913 by Sarojini to the District Judge for removal of Rasheswari from the guardianship of Sudhir; the result was an order by the District Judge for the appointment of Sarojini as a joint guardian with Rasheswari, The breath between the parties steadily widened, and on the 11 April 1917, Trailokhya, brother of Rajani, the executor, applied to the District Judge to revoke the Probate on the ground that citations were not properly served on Bimal and Amal, the infant brothers of Nirmal alias Sudhir. Sudhir contested the application, but on the 28 August 1917 the District Judge revoked the Probate and re-called the grant. On appeal to this Court, the order of the District Judge was substantially affirmed on the 15 August 1918 by Woodroffe and Hude, JJ. On the 20 September 1918 Rasheswari was tailed upon by the District Judge to prove the Will in solemn form as directed by this Court. On the 20 November 1918, Rasheswari intimated to the court that she would not prove the Will and prayed that the Probate case might be dismissed. Thereupon, on the 25 January 1919 Sarojini, on behalf of Sudhir, filed a petition for Letters of Administration to the estate of Sris with copy of the Will annexed. Such in brief outline is the history of this belated application for enquiry into the question of the genuineness of a Will alleged to have been executed and registered so far back as the 11th December 1904.

(3.) The case has been elaborately investigated in the Court below, and in a careful judgment which accurately analyses the evidence on the record, the District Judge has pronounced in favour of the Will. In his opinion it is abundantly proved that the Will was in fact executed by the testator between 9 and 10 a. m. on the 11 December 1904 and was duly signed by the attesting witnesses. The only question seriously in controversy is whether at that time Sris had testamentary capacity. Upon this point, the District Judge has held that he wag in no condition to settle the terms then, but that the Will was drawn up in accordance with instructions given by him two months previously to his legal adviser Mahendra Kumar Ghosh. The District Judge has also found that, at the time of execution, the testator was conscious, that be understood the provisions of the Will when put to him, that he was able to express his assent by monosyllables, and that he affixed his initials to the document. In this view, the District Judge has applied the principle of the decisions in Parker V/s. Felgate (1883) 8 P.D. 171 : 52 L.J.P. 95 : 32 W.R. 186 : 47 J.P. 808 and Perera V/s. Perera (901) A.C. 354 : 70 L.J.P.C. 46 : 84 L.T. 371 : 17 T.L.R. 889, and has upheld the Will as a valid and operative testamentary instrument. This conclusion has been vigorously attacked in this Court, and the evidence has been minutely scrutinised on behalf of the appellants; but on a careful review of the evidence, we have arrived at the conclusion that the view taken by the District Judge cannot be successfully assailed.