SURENDRA NATH CHATTERJI Vs. JAHNAVI CHARAN MUKHERJI

JUDGEMENT

(1.) This is an appeal by the applicant for probate of a will and a Codicil against a portion of the decree of the District Judge of Hoogly. The will was alleged to have been executed by one Ram Lal Mukherji, dated 6 September 1914 and the Codicil was executed by the same gentleman dated 11 September 1920. Ram Lal died on 9 April 1923, He was a gentleman of considerable properties and died at a good old age. It is said that he was 85 years of age at the time of his death. It is unnecessary to state in detail the members of his family at the time of his death and shortly before that as the facts have been fully set out in the judgment of the District Judge. It is sufficient to say that he was survived by four sons, Mritunjoy, Ganga Charan, Jahnavi Charan and Jahnavi Prosad and two daughters and a large number of grandchildren. Ho became a widower in the year 1890, and after that he went to live more or less as a recluse in a house built on a rock near the town of Monghyr in the province of Bihar. Previouly he was a permanent resident of Boinchee in the district of Hoogly. The house in which he lived at the time of his death was described as Pirpahar. None of his sons lived there and it appears from the evidence that if any of them ever visited him it must have been on rare occasions. The most curious thing is that one of the sons, Ganga Charan, practised as pleader at Monghyr and lived about 2 miles from the house of his father, but even he seems to have seldom visited his father.

(2.) It appears that on one occasion when he required some money for the marriage of his daughter, he wrote to his father by post about the money and on another occasion it appears that Ram Lal wanted information from Ganga Charan about the repair of a motor car belonging to himself and the information as to where the motor car could be repaired was intimated by Ganga Charan by a letter written through the post. Again it appears that Jahnavi Prosad one of the sons, who is one of the respondents here, wanted to have some money from his father a short while before his death and he went to Monghyr from the district of Hoogly and lived with his brother Ganga Charan from which place he asked for permission to see his father. Apparently that permission was not granted and from the correspondence it appears that Jahnavi Prosad came back disheartened on account of his father not allowing him to see him. It appears further from the evidence that two of his grandsons by his first son Mritunjoy, named Kashipati and Pashupati used to live with Ramlal, that they were both favourites of Ramlal, but that Pashupati was much more so than Kashipati. One test of this greater affection which Ramlal felt for Pashupati is that in 1904 he made a gift of the house at Pirpahar to Pashupati and the fact that that gift was a genuine gift appears from the statement made by Ramlal in 1920 that the house in which he lived belonged to Pashupati's widow, Pashupati having died at that time. Kashipati died in 1918 and Pashupati died in May 1919 at Benares. Certain other grandchildren had also died about that time. These things must have been as the learned Judge observed, a serious blow to the old man. It will be seen later what effect these bereavements had on his mind as regards his power of discrimination. The will of 1914 was attested by several respectable witnesses including Lt. Colonel Megaw, I.M.S. (them Major) who afterwards became the Director of Tropical School of Medicine in Calcutta, Babu Baidya Nath Bose who was the -well-known Principal of the College at Monghyr and his son Babu Hem Chandra Bose, a pleader of the place who was apparently in good practice as he was Public Prosecutor of that place for some time. The will was deposited with the Sub- Registrar under the provisions of the Registration Act, and the usual note was made on the sealed cover by the testator himself, which we have seen. The Codicil was also attested by several witnesses. With this Codicil I shall have to deal in detail, and it is unnecessary to deal with this Codicil alone having regard to what I am just going to say. The application was resisted by two of the sons of Ramlal, Jahnavi Prosad and Jahnavi Charan. The other sons and the grown up grandsons did not take part in these proceedings. But this is a matter of very little importance one way or the other. Those other persons might think that it was not worth their while to fight the case, and no presumption can be made either in favour of the applicant on account of their silence nor against the objectors on that ground.

(3.) The grounds on which the two objectors resisted the application of the petitioner, shortly stated were that the will had been executed when the alleged testator was 76 years of age, and the Codicil when he was about 82 years old, that from about 12 years before his death he became weak and infirm both physically and mentally and incapable of managing his own affairs owing to softness of the brain, that other persons wielded considerable influence over his mind and the alleged testator became a mere creature in the hands of these persons. Amongst those persons was his grandson Pashupati and other persons connected with him including Surendra Nath Chatterji, the appellant before us and petitioner before the lower Court. It was alleged specifically that the deceased was not in a sound disposing state of mind at the time of the alleged will or of the alleged Codicil and that therefore the application for probate should be refused. The learned Judge in an elaborate judgment considered all the circumstances of the case and in the result allowed the application of the propounded in part. He made an order granting probate of the will of 1914 and refused probate of the Codicil dated 11 September 1920. From the part of the decree refusing probate of the Codicil the petitioner in the Court below appeals to this Court. The objectors in the Court below, the respondents here, prefer a cross-objection against that part of the decree by which the District Judge granted probate of the will of 1914.