SURADHANI DEBYA CHOUDHURANI W/O LALIT KISHORE ACHARYA CHOUDHURY Vs. RAJA JAGAT KISHORE ACHARYA CHOUDHURY

JUDGEMENT

(1.) The appeal before us is against the decision of the District Judge of Mymensingh passed in a suit for obtaining a probate of the will of one Dwijendra Kishore Acharya Choudhury, a Hindu inhabitant of Muktagacha in the District of Mymensingh. The propounder is Raja Jagat Kishore Aeharya Choudhury, a somewhat distant relation of the testator, and there were several objectors including the testator's mother who is the only appellant before us. The testator died on 6 March 1930 and the two testamentary documents propounded by the plaintiff are a will and a codicil which are alleged to have been executed on 8 August 1928 and 3 October of the same year, respectively. Dwijendra did not marry and at the time-of his death he had as his near relations his mother, Suradhani, the appellant before us, two sisters, viz. Charuhaahini and Tarubala of whom Charuhashini is a widow and four sisters sons, to wit Santi, Sudhansu, Gobinda, Dhirendra and Dabi. Santi is the son of Sailabala, a sister of the testator who died during the latter's lifetime. Sudhanshu Gobinda is the son of Cbaruhashini, whereas Dhirendra and Dabi are the two sons of Tarubala, the youngest sister of the testator. By his will Dwijendra gave away the whole of his properties, moveable and immovable, to the propounder Eaja Jagat Kishore Acharya Choudhury and by the codicil which was executed about two months later, he made some provisions for the maintenance and residence of his mother and his widowed sister Charuhashini. The mother was given a maintenance allowance of Rs. 520 a year and the sister was given Rs. 300 annually. They were allowed to reside in the family dwelling house and were given life-estates in certain small plots of land contiguous to the residential building. The propounder Raja Jagat Kishore to whom practically the entire estate has been given is, as I have said above, a somewhat distant agnatie relation of the testator. His connexion with the testator and his family can be seen from the following diagram.

(2.) It will be found from the genealogical table given above that Ram Kishore and Golok Kishore were two brothers. Ram Kishore was taken in adoption by his paternal uncle Gour Kishore, and Jagat Kishore is the son of Ram Kishore. Ram Kishore's brother Golok Kishore on the other hand took Lalit Kishore as his son in adoption and Lalit was the father of the testator. Lalit Kishore died in 1903, when the testator and all his brothers were minors. Lalit left behind him a will and under the terms of the same Suradhani, his widow, managed the estate as an executrix till 1910 when Dwijendra attained majority. In the meantime, Krishnendra, the youngest son of Lalit, died and his 1/3 rd share devolved upon his mother Suradhani. It appears from the evidence that there were disputes between Suradhani and Dwijendra after the latter attained majority, regarding the accounts of the estate during the period of her management. The dispute was settled by the lady's conveying the 1/3 share which she inherited from Krishnendra and Dwijendra in his turn transferred half of this 1/3rd share to his brother Narendra; so that in the year 1914 when these documents were executed, both Dwijendra and his brother Narendra came to have a moiety share each in the estate left by Lalit Kishore. On 6 June 1920, Dwijendra executed a putni putta in respect of the bulk of his zamindary property in favour of Maharaja Sasi Kanta Acharjya Choudhury who was a natural son of Raja Jagat Kishore but was taken in adoption by Maharaja Surjya Kanta Acharjya of Mymensingh, reserving an annual rental of Rs. 5000. Two years later, Dwijendra removed from his ancestral house at Muktagacha and went to Benares where he stayed for a number of years. It was in Benares that the will was executed on 8 August 1928. Just six days before that, both the brothers Dwijendra and Narendra executed, at Benares, a deed of gift in favour of Raja Jagat Kishore in respect of some of their properties and they were given to the Raja for the purpose of defraying the expenses of the puja and seva of the family deities of the donors. The deed of gift executed by the testator was registered at Mymensingh on 25 August following. The will which was executed on 8 August was kept in the custody of the Allahabad Bank. The codicil which is dated 3 October 1928, was executed at Muktagacha and was kept with one Basanta Kumar Pal who was the scribe of the document. The testator returned to Benares after the codicil was executed and about a year later he went to Puri where he died of phthisis in March 1930.

(3.) The application for probate was filed by the propounder on 5 August 1930. Special citations were issued on the mother, brother, sisters and sister's sons of the testator. Narendra, the brother, did not appear and three sets of objections were filed, one on behalf of the mother and the other two on behalf of the sons of Tarubala and Charu Hashini. Most of the witnesses who were at Benares were examined on commission and the learned Judge by his judgment dated 8 September 1933 found in favour of the propounder and granted probate. Against this decision, Suradhani, the mother of the testator, has alone filed the appeal. The appeal came on for hearing before this Court some time last year and by an order dated 20th July 1937 records were sent down to the lower Court in order that the appellant might be, given an opportunity to examine herself as well as a doctor from Ranchi on commission. This additional evidence which was taken by the District Judge has now been sent up to this Court and the appeal has been argued on the entire evidence on the record. Mr. Bose who appears for the appellant has, at the outset, taken a point that the procedure followed by the District Judge was in one respect entirely irregular and this irregularity according to him vitiated the whole trial. His argument is, that Narendra, the brother of the testator who was made a party to the probate proceeding, was a lunatic and as no guardian was appointed to represent him in the suit and put in proper objections on his behalf, the whole proceedings were irregular. It appears that in the written statement of Suradhani the point was specifically taken that Narendra was a lunatic and on this allegation the trial Judge had framed. Issue 4 which was worded as follows: Whether this proceeding can proceed without the appointment of a guardian of Narendra Kissore Acharjya Choudhury, brother of the alleged testator?