KAMAL KUMARI DEVI Vs. NARENDRA NATH MUKHERJI

JUDGEMENT

(1.) The first plaintiff appellant is the third widow of Rai Jadu Nath Mukerjee Bahadur, the testator. The second plaintiff is her minor son and the third is the minor widow of another son. The defendant respondents are the sons of the testator's deceased second wife Srimati Sattyabati Debi. The testator was the Government pleader of Hazaribagh and a man of considerable property. On the 16 November 1900, he executed a Will which was deposited in the Registry. This Will the Subordinate Judge has found to be a good family arrangement and according to the real intention of the testator. The defendants state that they are unaware of the steps which led to the execution of the Will. About four months, however, before the testator died, he left his house at Badambazar where all his children lived and went with the plaintiff and her relations to live in another house about a mile away called the Khirgram Bungalow. There are two circumstances in connection with this removal which are quite clear viz., that there was ill-feeling between the defendants, the sons of the testator's deceased wife, and the first plaintiff, their step mother, and, nextly at this time the testator was given to drinking. Owing to his ill-health Dr. Nott, the Civil Surgeon of Hazaribagh, prohibited the use of wine. According to the defendants evidence his sons seconded the doctor and used on some occasions to throw the bottles away, until his removal to the Khirgram Bungalow when according to the evidence of Lokendra he was beyond their reach. It is, however, alleged that the plaintiff and Kashi, a cousin of the testator, used on the contrary to encourage his drinking habits. It is said that he also used to take opium, but Rajani Kanta Roy, a pleader and witness for the plaintiff, says that this had been prescribed by the doctor in order to keep down the testator's drinking propensities. It is suggested that the plaintiff took her husband to the bungalow to keep him aloof from his sons and other relations and to get him to make a disposition favourable to her. This is denied and in her evidence she says "I never gave my husband wine or any intoxicating beverage, I never gave him opium or intoxicating beverage for the purpose of weakening his mental powers or having the Will (Codicil?) executed by him . . . the state of my husband's mind till before his last illness was perfectly sound. No derangement took place at any time." Her witness, the pleader Rajani Kanta Roy, says that when the testator found that there was too much strictness in his not being allowed to drink wine, then he and his wife removed to the Bungalow. The defendants allege that the testator was completely under the widow's influence and the plaintiffs witness the pleader, Rajani Kanta Roy, when cross-examined whether this was not so, states that the widow, her father and her brother used always to surround him. The plaintiff says that the testator went to the bungalow which was about a mile away of his own accord and for a change. After the testator had left the family house for the bungalow and two months before his death the testator executed, it is said, on the 28 April 1902, a codicil which was as well as the Will deposited in the Registry office. This codicil was very much more favourable to the plaintiff than the will which had been executed some 17 months previously. The plaintiff and her sons appear to have been left better off as regards the immoveable property. But the chief change was as regards the share of the monetary assets. For whereas under the Will the first plaintiff the testator's widow got a 4-48 share, under the codicil this share was increased to 18-48. The case for the defence is that the defendants had hoard a rumour about the Will but nothing whatever of the codicil until after the testator's death which took place on the 27 June 1902.

(2.) On the sradh day the Will and codicil were opened and the pleader of the widow supplied copies of it. Upon this there is no doubt that a dispute arose as to the codicil whatever may have been the case as regards other matters. I refer to the will and a claim which was also set up that some property disposed of by the will belonged to the maternal grandmother, Jagat Tarini Debi. The objection of the respondents was that the disposition of the properties was unfair and this disposition is attributed to the exercise of undue influence and to the administration of opium and intoxicating drinks. According to a letter in the hand-writing of the plaintiff (I refer to the adult plaintiff the testator's widow) a charge was even made that she had poisoned her husband. Writing (Exh. C 1) to the defendant Adhindra Nath she says "I hear all persons of the house say that I have poisoned the Babu to death ! Let God be the judge of that but then the ignorant doctors and Diga stopped giving him opium. It is for that reason that his illness became serious and he died." She adds that even her own daughter Pitan was accusing her. This daughter was living with and under the influence of the defendants and was probably only repeating their charges. There is no reason to suppose that the plaintiff deliberately caused her husband's death; however much, if it be the fact that she assisted him in giving way to his drinking habit.. We are not here concerned with the truth of these and other charges provided that they were not both fraudulently and groundlessly laid with a view to extort a settlement of dispute. These charges are stated in the ninth paragraph of the written statement as follows: "That during the lifetime of the defendants father plaintiff No. 1 deliberately and with obvious motives persuaded him to live in the Khirgram Bungalow, sequestered and estranged from the defendants and other members of the family and dishonestly prevailed on his weakened mind and disordered brain to execute the codicil, dated 28 April 1902, which the defendants verily believe was not executed at a time when the testator had a sound mind. Plaintiff No. 1 made it a point to administer opium and other intoxicating drinks to the lamented deceased, which made it impossible for him to understand things, far less comprehend the exact nature of what he was doing. The defendants submit the codicil was extorted by pressure of undue influence."

(3.) It is clear, however, that there was here full ground for a dispute of the character which is so often disastrous to families and family estates in this country.