BALMAKUND Vs. RAMENDRANATH GHOSH

JUDGEMENT

(1.) The question to be decided in this first Appeal is whether the document which was exhibited as Ex. 4 in the Court below, and which was propounded as being the last Will of Ram Rup Ghose, ought to have been admitted to probate by the District Judge. Ram Rup Ghose was once a head master and had been living for a number of years in Allahabad after his retirement on pension. It is admitted on both sides that on the 2 February, 1920, Ram Rup Ghose executed a Will, which was registered. At that time the members of Ram Rup Ghose's family, who were alive and in whom he was necessarily interested, where his wife, his son Ramendra Nath Ghose, his daughter-in-law Mirnalini Debi (the widow of a deceased son) and her three children (two sons and one daughter). By his registered Will, marked Ex. A, Ram Rup arranged for the distribution of his property after his death. He appointed four executors to his Will, and directed that one half of the annual income of his estate should be paid to his wife and his son Ramendra Nath until his wife's death. After his wife's death one half of the estate was to be made over to his son Ramendra Nath subject to a deduction of Rs. 2,000 Which was to go towards the marriage expenses of the testator's granddaughter Kanak Champa Debi.

(2.) The other half of the income was to be devoted to the maintenance of the testator's daughter-in-law Mirnalini Debi and her children. Provision was made for the education of the two grandsons and it was provided that when his grandsons attained full age half of the estate was to vest in them, subject to a charge for the maintenance of their mother Mirnalini Debi, and subject to a contribution of Rs. 2,000 towards the marriage expenses of the grand daughter. The will also provided that while the wife of the testator was alive, the family were to live with her. The property disposed of by the Will consisted of Government Promissory Notes, shares in certain companies, a one-third share in two houses in Mirzapur and certain moveable property. The document Ex. 4, which was brought into Court by Babu Balmakund, one of the executors, purported to revoke this earlier Will. Ex. 4 as it stands is the draft of a Will, It is not pretended that the testator, the deceased Ramp Rup Ghose, who died on the 25 of September 1923, ever signed this document, nor again does it bear the attestation of any witnesses. Nevertheless it was put forward as being the last Will of. Ram Rup Ghose, the case for the applicant being that this document, although informal in the manner just indicated, nevertheless had been prepared at the express request of Ram Rup, and with an express declaration by him that it contained his last wishes regarding the disposal of his property.

(3.) The document made a different distribution of the property to that which was provided in the registered Will of the 2 February, 1920. The son Ramendra Nath was given a one-third share in a house in Mirzapur and was also given certain shares in the Tata Iron and Steel Works of the face value of about Rs. 3000. The income of the rest of the property, was to be devoted to the maintenance of the daughter-in-law and grand children of the testator and the remaining corpus of the property was to vest in the grandsons on their attaining majority, subject to the maintenance of their mother. The same provision was made in this Will as in the earlier Will, namely that Rs. 4000 was to be spent on the marriage of the testator's grand daughter. There was a gift over to the Kayestha Patshala in certain events. Provision was also made by which certain ornaments, which belonged to the testator's wife, were to be given to the grandsons, and lastly it was declared in Clause 14 of this document that the earlier registered Will of the 2 February, 1920 had been cancelled.