1. This is an appeal from a decision of the 2nd Subordinate Judge of Hooghly by which he granted probate of a will alleged to have been executed by one Manmohini Debi. The alleged testatrix was an old lady who had three brothers viz., Surendra Nath Lahiri the eldest brother who was the objector in the Court below and is the appellant in. this Court Jnanendra Nath Lahiri the youngest brother who propounded the will and is the respondent in this Court and another brother named Jitendra Nath Lahiri who is not connected with the appeal but has given evidence in support of it as witness 5 on behalf of the propounder. The will is a short document. By it the testatrix appointed Jnanendra Nath Lahiri as the executor, made a small bequest of Rs. 400 out of her estate in favour of her sister Srimati Subashini Debi, and gave a pair of bangles to one Sukumari Debi who is the wife of an eye specialist who had operated on her aye and is said to be a lady who was looked upon by the testatrix as her own daughter. By the will the testatrix also made provisions for the expenses to be incurred on account of her funeral obsequies and Sradh ceremony, it being provided that Rs. 500 should be spent for that purpose. The will further provided that the remaining moveable and immovable properties, money-lending business and the remaining ornaments of the value of Rs. 1,600 were to be given to the said Jnanendra Nath Lahiri absolutely with power of gift and sale. The will purports to have been written by one Rasik Chandra Das, and there is an endorsement on it that he read out the contents of the will to the testatrix. It bears the signatures, as attesting witnesses, of seven persons, viz., Surath Nath Goswami, Surendra Nath Bhattacharji, Pramatha Nath Goswami, Dhan Krishna Dhole, Ashutosh Bhattacharji, Panehu Gopal Goswami and Haran Chandra Das. Application for probate was made by the executor on 23rd December 1926 and it contained the usual verification made by one of the attesting witnesses to 'the will, viz., the aforesaid Haran Chandra Das. The appellant Surendra Nath Lahiri, objected to the grant of probate, alleging that the will was a collusive, fabricated and fraudulent document and also challenging the will on the ground that it was not the voluntary act of a free and capable testatrix. This last mentioned ground was put in these words:
Conceding for argument's sake that the alleged will is genuine, the testatrix could not exercise her free will at the time of execution of the said will it was created by exercising undue influence upon her. During the last illness of the testatrix her full sister Subasini and her younger brother Jnanendra used to live in her house. It was they who by nursing her and ministering to her comforts pleased her and brought her under their influence and led her by undue influence to cause only a paper transaction to be made in their favour and for their own benefit according to their pleasure, in collusion and concert with certain persons.
2. As already stated, the learned Judge has made an order for probate and Surendra has preferred this appeal.
3. On the question of genuineness of the will very little need be said. It was said to have been executed on 22nd Assar 1333 B. S. corresponding to 7th July 1926 and it was registered on the same day by the Sub-Registrar of Serampur who was called at the residence of the testatrix for the purpose of registration of the will. The lady died on 5th Sravan 1333 B. S. Of the witnesses whose names appear on the will, have been examined on behalf of the propounder, witness 1, Surendra Nath Bhattacharji, who is a medical practitioner, witness 2 Dhan Krishna Dhole, witness 3 Panehu Gopal Goswami and witness 4 Surath Nath Goswami and they have fully supported the will.. Jitendra Nath Lahiri, the second brother whose name does not appear in the will either as a recipient of any legacy or as an attesting witness, has also been examined as witness 5 and he has deposed to the effect that such a will was executed in his presence. The propounder himself has also given his evidence in support of the will. Barring a few discrepancies to which our attention has been drawn by the learned advocate for the appellant there is very little in the evidence which may be said to be really conflicting as regards the fact of the execution of the will.
4. These discrepancies relate to such unimportant questions as to whether each one of the persons present at the execution requested the lady to put down her thumb-impression or whether some particular person amongst them did so; whether the lady put down her thumb impression' herself or whether she was assisted by somebody else to do; whether the contents of the will were read over by Rasik as stated in the body of the document or by Surath or by both. It has also been pointed out to us that the circumstance that the lady did not herself sign the will, although she had signed other documents within two months before the date of the will, the explanation offered being that her hands were shaky, throws considerable doubt upon the story relating to the execution. These matters, in our opinion, are not of sufficient importance so far as the question of execution of the will is concerned and it is only natural that there should be some conflict in the evidence as regards the details of the transaction. The fact remains that on that very day the will was registered by the Sub-Registrar; and when the Sub-Registrar acted upon the admission that was made before him by the testatrix herself that she had executed the will there is really nothing, which would justify us in holding that any suspicion arises as to the factum of the alleged execution. On behalf of the objector three witnesses were examined, viz., the objector himself, a' doctor of the name of Nani Lal Bhattacharji as witness 2 on his behalf, and a third witness namely Satya Charan Dirghangi who was called to prove certain signatures of the testatrix. The evidence which the objector produced as regards the question of the execution of the will is of a purely negative character and is not such on which implicit reliance may be placed for disbelieving the fact so well proved, namely, that the lady had executed the will.
5. The other question that arises for consideration is whether the execution of the will was the voluntary act of a free and capable executrix. The discrepancies that have been pointed out to us, though not very material on the question of execution, have an important bearing on this latter question, at least in so far as such discrepancies appear in the evidence relating to what the lady herself said or did at the time of the transaction. It appears upon the evidence that the testatrix had been suffering from diabetes for a long time that she actually fell ill about the latter part of June 1926, that later on gangrene set in and that ultimately she died. That she was about 70 years of age and was suffering from illness is a fact about which there can be no dispute. It seems also to be clear upon the evidence that for a few months before her death she was being looked after and tended and nursed by the propounder and his wife.
6. It further appears to be an admitted fact in the case that it was the propounder himself who procured the draft of the will, called together the witnesses, called in the Sub-Registrar and that it was he and one of the attesting witnesses, viz , Surath, who were the only persons present at the time of registration. Upon the will itself it appears that the propounder received the largest share of benefit under it. In the circumstances, the onus lies heavily upon the propounder to show that the testatrix wa3 a free and voluntary agent capable of understanding the nature of the disposition and was a willing party capable of exercising her judgment in the matter of the disposition that she was making. The objector's case was that the testatrix had no testamentary capacity at the time of the execution of the will and that at that time and for a fortnight preceding she had neither the sense nor the power to discriminate good and evil. As regards the mental capacity of the testatrix the first and most important witness should have been the doctor under whose treatment she was. With regard to this matter it appears that Nani Lal Bhattacharji who is a graduate of the Calcutta Medical College and is a practitioner at Serampur for about 20 years standing was the doctor under whose treatment she was. This doctor has, as already stated, been examined on behalf of the objector. On behalf of the propounder has been examined another doctor named Surendra Nath Bhattacharji who is also an Assistant Surgeon of the Calcutta Medical College but who appears to have no such extensive practice as the other one. The evidence of Surendra Nath Bhattacharji is that he used at times to examine Monmohini, that two or four days before the will he went to see her one day and he got Rs. 2 as his fee on that day. He says he was taken to see Monmohini in order to examine her so that he might report her condition to Nani Lal Bhattacharji. (After carefully considering the evidence, the judgment concluded). For the reasons we have given we are unable to hold in favour of the propounder upon the second of the two objections that were taken to the grant of probate. We accordingly think that a sufficient case has been made out for the objector to entitle us to say that probate of the will should not have been granted. The result is that the appeal must succeed. We accordingly allow the appeal, set aside the decision from which it has been taken and order that probate of the will be refused. There will be no order for costs in favour of any of the parties in this litigation.