KEDAR NATH TUSHNIAL Vs. RAJ KUMAR DAS

JUDGEMENT

(1.) The appellants before us were the petitioners in the lower Court and they are the heirs of one Damodar Das Tushnial who was a creditor to the estate of Joyram Das, deceased. In these proceedings, they seek to establish that Joyram validly executed a will bearing: date 31 Bhadra 1334 corresponding to 17 September 1927. It is not disputed that prior to that date, that is to say, on 9 Falgoon 1318 corresponding to 21st-February 1912 Joyram had validly executed another will which was registered. At that time, Joyaram had two wives, two daughters and four sons. At the time of the disputed second will, one of the wives and one of the daughters had died and three of the sons had attained majority. The main difference between the two wills may be stated as follows: By the first will Joyram dedicated all his immovable-properties to an idol and bequeathed his moveable properties to his sons. He appointed his sons as shebaits and named two executors who were to administer the estate until the sons had attained majority. By the second will, only a portion of the immovables was made debutter and the remaining immovable properties were given to the four eons. Certain other provisions were made in favour of his wife and one daughter who were then living. Joyram died on 5 October 1927. It is further alleged that five days before his death, on 30th September 1927, Joyram executed a deed of gift in favour of his second son, Jitendra in respect of a piece of immovable property. This deed of gift was registered after Joyram's death, but the second will remained unregistered.

(2.) For some time after Joyram's death, no application for probate was made in respect of either of the two wills. It appears that on 22 January, 1929, Joyram's sons took a loan of Rs. 6000 by mortgaging some of the immovable properties which would pass to them by the terms of the second will. This loan was given by a land mortgage Bank and the evidence is not now disputed that at that time the second will was shown to some of the directors of the Bank by way of proving the title of the mortgagors. About two months later, on 28 March 1929, the four sons of the testator again raised a loan of Rs. 2000 by mortgaging some of the properties which would pass to them by the second will. This document was also shown to the mortgagors and was in fact made over to them for keeping as title deed. One of the mortgagors has deposed and the evidence on that point is not questioned. On 13 August 1930, Mohendra Chandra Das who was one of the four executors named in the second will filed an application for probate of that will. The proceedings continued for four months until 12thDecember 1930 when the case was dismissed for default. It may be noted here that to that application for probate one Manindra Kumar Dey as an attesting witness to the second will signed his name in verification of the application. Then followed another transaction. On 7 December 1931, the four sons applied to Damodar Das Tushnial for a loan of Rs. 9000 upon a mortgage of properties bequeathed to them by the second will. At that time, this document was in the custody of the Court having been there since the filing of the application for probate on 13 August 1930. The loan was given by Damodar Das Tushnial and a part of the money went to pay off the debt due to the land mortgage Bank. Then a step was taken which may be described as curious. On 4 January 1932, two affidavits were sworn, one by Mohendra Chandra Das and the other by Dayadra Nath Das who were two of the four executors named in the second will. In these two affidavits, these two persons stated that they would not take probate or letters of administration of the will in question. These affidavits were filed in Will Case No. 65 of 1930. The other two executors named in that will were Jitendra and Jamini, two of the four sons of the testator.

(3.) It may be stated here that there is further evidence that the testator's sons were dealing with the properties as if these properties had passed to them as secular properties in accordance with the terms of the second will. This evidence will be referred to later. Up to this time, the first will had not been mentioned in Court. It appears that the firm of Abdul Majid obtained a money decree against the four sons and started execution case on 16 July 1932, and proceeded to attach the moveable properties. On 15 August 1932, the sons filed a petition alleging that the decree had been adjusted. The point to note is that two days before this, on 13 August 1932, an application for probate of the first will was made for the first time. This application was filed by Raj Kumar Das, one of the executors named in the will. The evidence is that the first will was all along in the custody of Raj Kumar. As a result of this application, probate was granted on 3 September 1932. Then Raj Kumar filed a claim case in the execution case. This claim case appears to have been dismissed on 27 May 1932. Meanwhile, on 27 September 1932, the present appellants filed two applications, one for the revocation of the grant of probate in respect of the first will and the other for letters of administration with the second will annexed. Petitions of objection were filed by Raj Kumar, by Hemangini the widow of the testator, and by the sons. Hemangini and one of the witnesses Radhika Mohan Dutt were examined on commission. The other witnesses were examined in Court before Mr. Masih, the District Judge. He gave judgment holding in favour of the applicants, namely that the second will was proved and that the first will stood revoked. Against that judgment, Raj Kumar Das filed an appeal to this Court. By the judgment, dated 4 February 1937, D.N. Mitter and M.C. Ghose JJ. set aside Mr. Masih's decision and remanded the case for re-hearing with a direction that the idol should be represented by a proper guardian before the Court. This was done and some of the witnesses were recalled and cross-examined before the then District Judge, Mr. Younie. He gave judgment taking a view contrary to that of Mr. Masih and held that the alleged second will had not been validly executed by Joyram. He accordingly dis. missed the application. Against that judgment these appeals have been filed.