BRAJESWARI DASI Vs. RASIK CHANDRA GHOSH

JUDGEMENT

(1.) This appeal is against an order refusing Letters of Administration with copy of the will annexed.

(2.) The Will was executed by one Suresh Chandra Ghose on the 12 May, 1920, was registered on the 17 May, 1920, at 5 P.M. and the testator died that night. It appears that the testator was about 21 years of age at the time of his death. He had lost his father and mother and ha was for about two months before his death suffering from fever and diarrhoea, and was residing at the house of one of his paternal uncles Nabin, whose wife Brajeswari nursed him during that period. The will purported to give practically all the properties of the testator to Brajeswari after making provisions for a minor sister. Brajeswari propounded the will and two of the paternal uncles of the testator contested the will. The execution of the will by the testator is not disputed but the Court below has found that it was not properly attested, and that the testator was not of a sound disposing mind at the time of the execution of the will.

(3.) Brajeswari appealed to this Court and it is contended that the testator had not a sound disposing mind when he executed the will. There are six attesting witnesses to the will, three of them namely, Janmejoy, Harish Chandra and Lalit, have been examined besides a few others who were not attesting witnesses including Nabin, the husband of Brajeswari. The Court below was not satisfied on the evidence that the testator bad a sound disposing mind at the time. Nabin stated that the testator read the will and signed his name and that he was then in possession of his faculties. Harish deposed that the testator said that he had bequeathed the properties to his aunt and that he asked two or three questions to the testator to which the latter gave replies. Guru Charan said that when the testator died he was in possession of this faculties. Janmejoy was the scribe of the will and he said that he drafted the will at the request of Nabin, that Nabin called him to write out the will, and that he dictated the terms or the Will to him. Lalit another witness said that he was called by Nabin to witness the will and that the testator told him that unless he executed a will they would not nurse him and he would die. The witnesses Janmejoy and Lalit were declared hostile witnesses in the Court below. Now so far as the evidence of Janmejoy goes it would appear that instructions as to the will were given by Nabin but we are asked to live that evidence out of consideration because in the lower Court he was declared as a hostile witness. It appears that he was present before the Sub-Registrar and identified the testator. But leaving aside the evidence of Janmejoy and Lalit there is no evidence to show under whose instructions the will was prepared; whether such instructions were given by the testator or by Nabin as stated by Janmejoy.