SUKUMAR BANERJI Vs. RAJESWARI DEBI

JUDGEMENT

(1.) This is an appeal from a decision of the District Judge of the 24-Par-ganas, dated 5th October 1936, whereby he dismissed an application made by one Sukuma r Banerji, for grant of letters of administration in respect of the will made by a lady named Uma Sashi Debi. The application was on the basis of a petition which was filed on 19 May 1936. In that petition it is set forth that Uma Sashi died at a place called Barasat within the French territory at Chandernagore on 4 February 1936, leaving a will directing distribution of her properties. The will is dated 31 January 1936, from which it would appear that her chief, if not her only, assets consisted of some moneys due to her on the basis of a hatehita from two persons named respectively, Sree Nath Adhya, living at Hari Sabha Lane, Kidderpore, and Pran Krishna Mukherji, of Singur, Apurbapur. No executor was named in the will, but the distribution of the property was left to Sukumar Banerji, who was the younger brother of the testatrix to be disposed of in the manner directed by the will. The will had been written out by the notary of Chandernagore, Sadhu Charan Mukherji. It appears from what is stated in the will itself that the notary took down the provisions of the will at the dictation of Uma Sashi who, at the time of the will, was lying sick and so was not capable of signing her name or giving her thumb impression. The petition states that the said will was written by the notaire of French Chandernagore according to her direction and in her presence and was properly executed and attested according to the law prevalent there (para. 2). In para. 3 it is stated that: On her death an intimation of the same being given to the notaire an authenticated and duly-proved copy of her last will and testament under the seals and signatures of the notaire, the Presiding Judge of the Tribunal and the Administrator of Chandernagore was duly made over to your petitioner and the said copy is annexed herewith.

(2.) It is important to notice the opening-para of the will which is in these words: I, the undersigned, Sadhu Charan Mukherji, inhabitant of Sadhupara, Chandernagore, am the Notaire of the town of Chandernagore. Sreemati Uma Sashi Dabi, wife of late Jogendra Chandra Mukherji of Baraset in the said city, by caste Brahmin, and without any occupation, has this, day appeared before me in the presence of the witnesses : (1) Charu Mani De, son of late Mahesh Chandra De, by caste Tili, by profession trader of Baraset, Chandernagore, (2) Krishna Chandra. De, son of late Sarat Chandra De, by caste Tili, by profession trader of Baraset, Chandernagore, (3) Dhirendra Nath Das, son of Kedar Nath Das, by caste Tantubai, by profession medical practitioner of Hazinagore in Chandernagoro, and (4) Shailendra Nath Nandi, son of late Hari Charan. Nandi, by caste Tili, by profession trader of Baraset in Chandernagore, who are all of full age and are lawfully competent witnesses.

(3.) The importance of that opening paragraph is this, that it indicates the particular kind of will which was being made under the provisions of French law as laid down in the Code Napoleon wherein are described the several methods of making a last will and testament. We find from Bichard's translation of the Code that para. 969 lays down that a will may be an olographe, or made by public act or in the mystic form. Art. 970 provides that: An olographis will shall not be valid unless it be written throughout, dated and signed by the hand of the testator : it is not subjected to any other formality.