BRAJABALA DHAR Vs. NITYAMAYEE BISWAS

JUDGEMENT

(1.) This is an appeal from a decree of the District Judge of Mymen-singh dated 25 May 1931, by which he granted what is described in the decree as letters of administration of a lost will. It appears that one Gopinath Biswas who was an aged and practising Muktear of Netrokona is said to have executed a will a short time before his death. The testator died on 26 September 1923. The will according to the case of the proponent was executed some time in October 1914. It was registered in the Local Registry Office as will appear from the paper which although not exhibited was filed along with other papers with the application for grant of letters of administration. That paper was one of the un-exhibited documents and has been printed in the last two pages of part II of the paper book. Unfortunately the Registration Office was burnt and we have not got a copy of the certified copy of the will. The case of the proponent is that the testator retired with his wife to Benares in November 1916. Along with him went his daughter Brajabala one of the objectors to the granting of the letters of administration and his son-in-law, Debendra. The testator is said to have returned in 1917 and as has already been stated died in 1923. It is significant that the present application for letters of administration was not made till 21 December 1929.

(2.) The objectors to the granting of letters of administration really raised two contentions before the learned District Judge. It was said in the first instance that as the will was not traced after the testator's death and could not be found the presumption is that the will must have been revoked by the testator. The second contention in opposition to the granting of letters of administration was that the oral evidence which had been given regarding the terms of the will is not such as should have been relied upon by the learned District Judge. After taking the evidence of both sides the learned District Judge has over ruled the objections of the objectors and has granted the letters of administration and it is against that decree that the present appeal has been brought.

(3.) The first question which we have to consider in this appeal is as to whether on the evidence it has been established that the will was found after the death of the testator Gopinath and in the second place we have to determine whether all the evidence which the District Judge has relied on for the determination of the contents of the will on oral evidence was sufficient. With regard to the first point the learned District Judge has relied on the evidence of the proponent of the will viz., the widow of the testator and a number of witnesses to whom, it is alleged, she complained that shortly after the death of the testator the will had been taken away by her son-in law, Debendra. It is to be observed in this connection that Debendra did not live long after the death of the testator. He died on 6 January 1925; and the evidence on which reliance has been placed by the learned District Judge with regard to her complaint that the will was taken away by her son-in-law consists of testimony of a number of witnesses. With regard to the evidence of the witnesses to whom she is said to have made the complaint it may be mentioned that one Kamini Kumar Sinha whose evidence is to be found at p. 51 of the paper-book states that he heard the complaint five or six months after the death of Gopinath. It is pointed out on behalf of the appellants that this evidence contradicts the evidence of the widow as to the time when this complaint was made for it is the case of the widow that complaint was made to this witness only a few days after the death of the testator and even before the Sradh of Gopinath was performed. With regard to the other witnesses who speak to the complaint they all put it some time within one year of the death of the testator. It has been rightly complained on behalf of the appellants that such a testimony should not be admitted in evidence. It is said that the evidence of the complainant if made within a short time after the death of the testator might be admissible on the ground of such evidence being res gestae, but no such ground exists admitting the evidence of witnesses to whom complaint was made long after the death of the testator.