KRISTO GOPAL NATH Vs. BAIDYA NATH KHAN

JUDGEMENT

(1.) This is an appeal on behalf of one Kristo Gopal Nath who was the defendant in a proceeding for revocation of a will alleged to have been executed by a lady of the name of Bhusanmoyee. The will is said to have been executed on 4 January 1928, and the lady died more than a month after, viz. on 7 February 1928. On 9 April 1929, Kristo Gopal, who had been appointed executor of the will, applied for probate and obtained probate in due course. On 23 April 1930 Bansi Lal Nath, the husband of Bhusanmoyee, applied for revocation of the grant, alleging that he had not had any notice of the proceedings for grant of probate and that the proceedings were consequently "defective in substance". It appears that between the date of the death of the lady and the date of the application for probate, Bansi purported to sell one of the properties which had been disposed of by the will to one Bolai Chand Nath. On 2nd August 1930, Bolai filed an independent application for revocation of the probate. The two revocation cases, which were numbered 26 of 1930 and 29 of 1930 respectively, were heard together and disposed of by the same judgment. The learned District Judge of Hooghly who heard these cases disbelieved Bansi's statement as to his not having been served with notice of the probate proceedings. He definitely found upon the evidence that such notice had been served and in that view, rejected Bansi's application for revocation. As regards Bolai's petition, he held that as Bolai claimed to be a purchaser from the heir-at-law of the testatrix, he was a person interested in the estate of the deceased, and consequently entitled to citation, and that as no citation had been issued on him, he was entitled to have the will proved again in solemn form in his presence. He accordingly allowed the application. Against this order, there was an appeal preferred to this Court, being appeal from original decree No. 70 of 1931. The judgment of this Court will be found at pages 8 to 11 of the paper book in the present appeal. The learned Judges overruled the decision of the learned District Judge. They were of opinion that Bolai was not a person entitled to citation and that the proceedings for the grant of probate could not therefore be regarded as defective in substance, merely because he had not been cited. The reason for so holding was that it had not been shown that the applicant for probate, Kristo Gopal, knew at the date of the application that Bolai had purchased the property. Their Lordships however went on to say that there still remained another objection put forward on behalf of Bolai Chand which had not been dealt with by the learned District Judge, namely that the will was not a genuine document. In that view, their Lordships, while setting aside the judgment of the learned District Judge, remanded the case to him for a finding on the question as to the genuineness of the will. Pursuant to this order, the matter has been investigated by another learned District Judge, and the present appeal is directed against his findings on such remand.

(2.) A few relevant facts may be first set out. One Peary Mohan Nath died on 3 April 1906, leaving two sons Sasi and Bansi. Sasi had two wives, Basanta Kumari and Tincori. By the first wife he had five sons, viz. Satis, Bejoy, Suren, Naren and Kristo; and by the second wife, he had one son of the name of Nanda. Bansi who was married to Bhusanmoyee, the testatrix in the present case, had no issue, male or female. Peary died leaving a will, by which he purported to bequeath among other properties half share of premises No. 2, Rajendra Nath Mullick Street, to Bansi, and the other half to the five sons of Sasi. Bhusanmoyee, as already stated, was the wife of Bansi, and she had inherited certain properties from her father as her stridhan. Now, one of these properties which Bhusanmoyee purported to dispose of by her will, being the will now in dispute, was also No. 2, Rajendra Nath Mullick Street, Calcutta. In the petition for revocation which was filed by Bolai, the case which he made was that this property was part of the estate of" this lady, and that upon her death it was inherited by her husband Bansi as her heir-at-law, and that in that right Bans sold it to him. As we shall see, that case was afterwards changed, and it was alleged that the property really belonged to Peary at first from whom a half share devolved on Bansi under Peary's will. The importance of this question in the present casa-lies in this that on it will depend whether or not Bolai would have the right to maintain his application for revocation. The learned Judge has correctly pointed out that it is only if Bolai claimed as purchaser from Bhusanmoyee's legal heir that he would have locus standi in these proceedings. On the other hand, if his case is that the property never belonged to Bhusanmoyee, but had been obtained by Bansk from his father Peary it would be a claim outside the will, which would at once put the applicant out of Court. We must consequently hold that for the purposes of this appeal Bolai must accept the position that the property belonged to Bhusanmoyee from whom her husband would inherit as her sole surviving heir, if there was no will.

(3.) Turning now to the merits of the appeal, we may say at once that the judgment of the learned District Judge seems to us to. betray a lack of appreciation of the correct, method of approach applicable in proceedings of this kind. The application is one for revocation of the grant of probate. The applicant consequently takes upon himself the burden of displacing the evidence which there is regarding the execution and attestation of the will. The will in this case, Ex. A, was not signed by the testatrix herself, but she put her mark upon it and also her thumb impression, and her name was, written out or signed for her by the pen of her husband Bansi. It was attested by-three witnesses, viz. Pulin, Rajani and Dhirendra Nath Ray, the last named being a homeopathic medical practitioner. The will is said to have been written by one Debendra Nath Ghose. On behalf of the defendant, the present appellant before-us, all the three attesting witnesses were-examined, and there is nothing in the evidence which they have given to show or suggest that they were not witnesses of truth. In any case, there can be no question that their evidence constitutes direct, positive testimony as to execution and attestation. That evidence is in circumstantial detail, and reading that evidence by itself one cannot but be struck with its cogency or concurrent character. If any of these witnesses is believed, there is obviously an end of the case of the applicant for revocation. The learned District Judge however instead of applying his mind to a dispassionate consideration of this evidence, starts off making all kinds of speculations as to what he calls circumstances of suspicion" and in view of the opinions which he has led himself to form regarding such circumstances, proceeds to throw aside the whole of this positive evidence as if it did not exist at all. This, we do not think, was the right way of dealing with the case.