SHAMA CHURN KUNDU Vs. KHETTROMONI DASI

JUDGEMENT

(1.) THE principal question in this appeal is whether probate of the will of Modhu Soodhun Kundu, who died on October 9, 1892, ought to be granted. The appellant was the applicant for the probate, and in his petition for it presented to the District Judge on January 20, 1893, he stated that he was the adopted son of Modhu Soodhun and one of the executors mentioned in the will. He also stated that another will had been executed by Modhu Soodhun on October 4,1892, which was revoked by the later will and was filed in court. The application was opposed by Nistarini Dasi, the widow of Modhu Soodhun, in a petition put in on January 31, 1893, in which she denied the genuineness of the second will, refused to admit the first will, and also asserted that Shama Churn, the appellant, was not the adopted son of the deceased. On February 23 Nistarini presented a petition withdrawing her objections. Thereupon, on February 27, 1893, the respondent, who is one of the daughters of the deceased, filed a petition of objection denying the genuineness of the will, asserting that Shama Churn was not the adopted son, and that the withdrawal by Nistarini was the result of collusion, and praying to be made a party to the suit. The District Judge having refused to do this, the will was proved in common form and probate granted. The respondent appealed to the High Court, which set aside the decision of the District Judge, and remanded the matter in order that she might have an opportunity of contesting the case and that the will might be proved in solemn form. On June 25, 1894, the District Judge decided in favour of the will; he found that it was executed by Modhu Soodhun, and that he was then of sound and disposing mind. As to the adoption of Shama Churn he said: I have mentioned that an allegation was made by the objector denying that Shama Churn was the adopted son of Modhu Soodhun in order to show that it was not probable the deceased should have executed such a will. Evidence was given that Shama Churn was treated by Modhu Soodhun as an adopted son, was spoken of as an adopted son by Modhu Soodhun when giving evidence. Not a particle of testimony to support the objector's allegation was given. Though two sons-in-law, a cousin, and a servant of Modhu Soodhun were examined not one of them was asked a single question whether Modhu Soodhun had adopted Shama Chum. The alleged improbability therefore fails.

(2.) THE evidence in the record fully supports this opinion.

(3.) THE first witness examined in support of the will was Sri Narain Babu, the writer of it. His evidence was that Tincowri Banerji, another witness, was sitting near Modhu Soodhun and repeated what he had said although the witness could hear it himself; that at the time of the will being written out Modhu said, "There are Rs. 6000 due to me on mortgage. Of this sum Rs. 2000 are to be given to Kedar Nath, Prio Nath, and Bhut Nath each "; that just then someone came in and said that Bhut Nath was dead, and someone asked what was to be done with the Rs. 2000 allotted to Bhut Nath. Modhu Soodhun said, "Let Rs. 1000 be given to his widow and Rs. 1000 to his mother." The witness said he made provision accordingly in the will; he forgot whether it had already been written in the will that Bhut Nath was to get Rs. 2000, or whether this had only been mentioned by Modhu Soodhun, he could not say without looking at the will. Now, the second paragraph of the will contains a gift of Rs. 2000 to Bhut Nath, and the ninth the gifts of Rs. 1000 each to his mother and widow. Tincowri Banerji deposed that Sri Narain wrote the will, and he asked questions, and Modhu Soodhun "made known the terms of the will"; that he said Rs. 6000 would be given to his three nephews: this was written, and then the document was read over, and Modhu Soodhun signed it and after him the witnesses. Someone said, "Let the will remain in Tincowri's keeping "; and so it was given to him and he took it. He went on to say that afterwards Kedar said to him, "What is written in the will is false." He said, "How is that?" Kedar said, "My brother is dead, and he has been given Rs. 2000" (Bhut Nath having shortly before died of cholera). Tincowri said, "He did not know of your brother's death. If you wish I will inquire from Modhu Soodhun to whom he wishes that Rs. 2000 to be given. Then three or four of them went and said, 'Your nephew is very ill; if he dies, to whom should his money be given?' He thought for a long time, perhaps a quarter of an hour, and said, 'Let Rs. 1000 be given to his wife and Rs. 1000 to his mother.' Then this was inserted in the will. This was after the will had been executed. There was a space and the provision was inserted. There was no signature of the testator or the witnesses." The District Judge, who had the will before him, was satisfied with this evidence, and accordingly excluded this addition to the will from the probate. No doubt there is a discrepancy between the evidence on this point of Sri Narain and that of Tincowri. But Sri Narain may have forgotten the exact circumstances under which the ninth paragraph was inserted, or may have been over-zealous in his desire to support the whole will. At any rate, the District Judge accepted Tincowri's version, and on that basis their Lordships cannot agree with the learned judges of the High Court, who thought that the discrepancy between the second and ninth paragraphs, had not been satisfactorily explained, and that it was a circumstance to excite suspicion. Peari Mohun, one of the attesting witnesses, deposed to the execution of the will, and said that "Modhu Soodhun was all the time in his senses." Kedar Nath Kundu, a pleader, one of the nephews of the testator to whom the Rs. 6000 were given, who was present during part of the time when, as he said, "Sri Narain was writing and Tincowri was asking Modhu and then telling Sri Narain what to write," added that "Modhu Soodhun was in his senses. He seemed to understand everything that was said to him and he was able to give replies." The District Judge says in his judgment that it was clear to him that Kedar Nath was an unwilling witness. In his evidence he appears to have been dissatisfied with what he took under the will, and, being one of the executors, was unwilling to join in the application for probate.