JOGESH CHANDRA SHAHA Vs. BHIKU SAU PARAMANIK

JUDGEMENT

(1.) This appeal is against an order of the District Judge of Birbhum refusing to grant Probate of the Will of one Rasaraj Saha. He is said to have executed the Will on the 2nd November, 1919, at about 10 a.m. He died the very sumo day at about 4-30 p.m.

(2.) The petitioner who propounded the Will its a distant agnate of the deceased. The objector is the first cousin (father's brother's son). He lived at a different place about 12 miles away and had no concern with the deceased. On the other-hand, Rasaraj used to take his food in the house of the petitioner and was evidently more intimate with him. Under these circumstances, we think the learned Judge was right in holding that the deceased, if he had testamentary capacity when he is said to have executed the Will, would in all probability have excluded the objector and that the Will in favour of the petitioner could not be said to be unnatural.

(3.) The learned Judge, however, found that the deceased had no testamentary capacity at the time when the Will is said to have been executed and that the Will was not executed by the deceased. The judgment then discussed facts and proceeded: Upon a consideration of the entire evidence he came to the conclusion that the deceased had no testamentary capacity at the time when the Will is said to have been executed. The witnesses were before him, and, after considering all the circumstances, we are unable to hold that the-Judge is wrong in the view he has taken.