MOHITOSH GHOSE Vs. MOLIN BEHARI DUTT

JUDGEMENT

(1.) This matter concerns an application for probate of the will of a man named Hari Pada Mitra, which is dated 26 June 1927. It is said that will was deposited with the Registrar of Assurances on 28 June 1927 and deposited, so it is said, by Hari Pada Mitra in person, and he was identified by a man named Rajendra Nath Bose. One of the attesting witnesses to the will was a man named Tulsi Charan Mitra, and the other witness was Dr. K.B. Mukherji, who was dead at the time when these proceedings were instituted. The position therefore was that the proving of the will was wholly dependent upon the testimony of Tulsi Charan Mitra. The executor of the will was a man named Molin Behari Dutt, and he filed a petition in the ordinary course asking for probate of the will. Sometime before that petition was filed, however one Mohitosh Ghose, who is a nephew of the testator Hari Pada Mitra, entered a caveat and on 27 May 1933 a notice was served upon him requiring him to file an affidavit in support of his caveat within eight days from the service of the notice. In response to that notice an affidavit was filed by Mohitosh Ghose. That affidavit is dated 5 June 1933, and in the last paragraph of that affidavit he said: I submit that no probate should be granted of the alleged will because of the following amongst other grounds: (a) The said alleged will was not duly executed by the deceased; (b) the deceased did not know and could not approve of the contents of the said will.

(2.) In a previous paragraph the caveator had stated: I say that the signature of the said Hari Pada Mitra, deceased, does not appear to be his genuine signature.

(3.) It is to be observed therefore that the case made by the caveator was to some extent a suggestion, if not a definite averment, that the will which was being put forward was not a genuine will and had been obtained by undue influence. However, on 6 June 1933, the solicitor for the caveator wrote a letter to the executor and his attorney in which it was stated that: Referring to the affidavit in support of the caveat entered by my client in the above, please note that my client merely insists upon the will being proved in solemn form of law and only intends to cross-examine the witnesses produced in support of the will.