NITAI CHAND SAHA BANIKYA Vs. NAGANI DASYA

JUDGEMENT

(1.) This appeal is directed against a decree of the Subordinate Judge of Dacca by which he has granted to the respondent Letters of Administration with a copy annexed of the will alleged to have been executed and registered so far back as the 29 May 1873 by a lady named Tulsi Money. The evidence indicates that she died in 1874, but no application for Letters of Administration was made till the 13 September 1906. Tulsi Money had three sons, Kukuri, Rabi Das and Dwarka Nath. Dwarka Nath was apparently dead at the time of the execution of the will. Kukuri has subsequently died leaving a widow Nagani Dassya one of the petitioners. Rabi Das married thrice. By his first wife Kamini he had a daughter Brajeswari the second petitioner. His third wife was Binodini who is one of the objectors. Dwarka Nath had two sons Sonatan and Narayan Peari Money, the widow of Sonaton is the second objector. The proceedings have been contested substantially by the purchasers from persons who would take the estate upon an intestacy. The learned District Judge has found that the evidence although not very full establishes the genuineness of the will and this view has been assailed before us by the learned Vakil for the appellant on three grounds, namely, first, that as the loss of the original will has not been proved, secondary evidence ought not to have been received; secondly, that as the original is not forthcoming, the presumption arises that it was destroyed with a view to revoke the will; and thirdly, that the evidence is not sufficient to show that the requirements of Clause 3 Section 50 of the Indian Succession Act have been complied with.

(2.) So far as the first of these contentions is concerned, it appears that in the Court below an affidavit was filed on behalf of Nagani Dossya before the appellants were treated by the District Judge as necessary parties to the proceedings. In this affidavit it was stated that the will was in existence after the death of the testatrix, that it was in the custody of Nagani Dossya, that subsequently it was completely destroyed by white ants, and that, therefore, a certified copy had been produced. After the appellants were allowed an opportunity to contest the proceedings, no objection was taken on their behalf to the use of this affidavit nor "was any suggestion made that Nagani Dossya should be examined either in Court or on Commission. We must take it, therefore, that this affidavit is part of the record and reliance may rightly be placed upon it. It is also clear from the proceedings in the Court below that no objection was taken on behalf of the appellants to the reception of secondary evidence of the contents of the will. The first objection, therefore, cannot be sustained.

(3.) So far as the second ground is concerned, it is clear from the affidavit of Nagani Dossya that the will was in existence after the death of the testatrix. In this view of the matter no question, of revocation by destruction arises. But it may be pointed out that even if this evidence was not forthcoming, the objection could not be sustained in view of the decision of this Court in the case of Anwar Hussein V/s. Secretary for State 31 C. 885. The second objection, therefore, fails.