JNANADA GOVINDA CHOUDHURY Vs. BIRENDRA NATH GOSWAMI

JUDGEMENT

(1.) This is an appeal from a decision of the District Judge of Rajshahi granting letters of administration with copy of the will annexed. The substantial question in the appeal is whether the will is genuine or not. The will was propounded more than 33 years after the death of the testator. The testator was one Mayananda Goswami who died in or about the month of February 1903, and the will is said to have been executed five months before his death, namely on the 5 September 1902. He left two widows, Shama Sundari and Khemankari, and three sons, one by the first wife, named Bipin, and the other two by his second wife, named Sures and Murari, who were both minors at the time. He also left two unmarried daughters. The will makes no provision for the marriage of these daughters and the whole object of it appears to be to ensure the due perform, ance of the sheba of the family deity Sri Sri Iswar Lalji Deva Thakur and certain religious festivals. It recites that the properties of the testator shall remain in charge of his eldest son, and he is enjoined to perform the debsheba and the other religious services out of the income as also to maintain the minor sons, unmarried daughters and wives of the testator. It is then provided that after the minor sons came of age, all the three sons shall equally "inherit" the properties and carry on the deb-sheba, etc., out of the income. If the sons should fail or refuse to perform these religious duties, they shall not be entitled to enjoy the properties, and in that case, a near kinsman shall inherit the estate and carry on the debsheba. In the last clause it is laid down that none of his sons shall be entitled to sell, encumber or make a gift of any of the properties and that the properties shall not be liable to be sold in auction for their debts. The appellants suggest thats the will made an absolute bequest in favour of the sons subject only to a charge for debsheba, etc., while the propounders contend that the properties were given away to the idol with only rights of management to the sons and rights of maintenance to the sons, daughters and wives. This is a question of construction of the will, and is pertinent in these proceedings only in so far as it may be supposed to throw any light on the question of its genuineness. As will be seen later, the respondents own case in their application for letters of administration is that their object in propounding the will was to save the properties from the hands of creditors on the ground that the properties had been made debutter by the will. The will is attested by three witnesses, Pran Govinda Goswami, Gopal Chandra Sircar and Kedareswar Chakrabarti, and the scribe is one Praneswar Chakrabarti, all residents of Bajurbhag, the village where the testator lived.

(2.) Of the sons of the testator, Sures and Murari both died before Bipin. They died unmarried and intestate, and left Bipin as their heir. Bipin died in 1931, leaving two sons, Birendra and Hirendra, who are the petitioners for the grant and respondents in this appeal. Birendra is a young lad of 19, and his brother Hirendra is much younger. In support of the execution of the will, the petitioners examined the scribe Praneswar, the attesting witnesses being all dead. It is mainly on the strength of the evidence of the scribe that the learned District Judge has made the grant. In a case where it is a question of appraising the oral testimony of a witness, the Court of Appeal will no doubt attach a great deal of importance to the opinion of trial Judge regarding the value of such testimony. All the same, there are certain facts and circumstances in this case which cannot be overlooked, and though the learned Judge relied on the evidence of Praneswar, we do not think it would be quite safe to act on that testimony. The petitioners own case carries certain elements of suspicion, and it is hardly necessary to point out that the Court should, in such circumstances, insist on a very strict standard of proof, and ought not to make a grant unless it was satisfied that the suspicion had been removed.

(3.) In the first place, it is to be observed that there is a remarkable variance between pleading and proof. The application for letters of administration, again, is itself remarkable in this way that without attempting an explanation of the undoubted delay which had occurred in making it, it complacently stated that it had become necessary to put forward the will in order to defeat the claims of certain creditors. It is not the petitioners case as set out in the application that they or their father had been unaware of the will until about the time when the application was made. On the other hand, the petition after reciting the fact of the execution of the will goes on to state in detail how Bipin, and after his death his sons, the petitioners themselves, had been acting as shebaits and carrying on the worship and other services of the family deity in accordance with the directions of the will. Then at the end it is stated that one Jnanada Govinda Chaudhuri (the appellant before us) having recently obtained a mortgage decree in respect of a debt contracted by Bipin and put the mortgaged properties to sale in execution of such decree, it was necessary to try and protect the said properties on behalf of the debutter estate, and it was for this purpose that the wil was being propounded. This case made in the petition is supported by an affidavit which was affirmed by the scribe Praneswar. In the affidavit also, it is categorically stated that Bipin and after him his sons were carrying on the deb-sheba, etc., as directed by the testator in his will. In the evidence which was led on behalf of the petitioners however a new story was set up for the first time and it was to the effect that the will had been lying in a box unknown to the parties till quite by an accident it happened to come to light about the mon September, 1935. We shall have occasion to refer to this later on; we are only concerned to point out at this stage why on the petitioners own showing the case with which they come to Court demands the strictest scrutiny.