S.A. Masud, J.
1. In this matter the Will of one Sm. Rajlakshmi Dassi of No 7 Fariapukur Street, now known as Sibdas Bhaduri Street. Calcutta has been challenged by the defendant, hereinafter described as 'Mohanta.' According to the plaintiff. Bechulal Das, the sole executor, Rajlakshmi executed her will on November 28, 1929 and thereafter on December 18, 1929 she died. Under the said will the testatrix has provided for a life interest in the said premises No. 7 Fariapukur Street in favour of her younger sister Sm. Saraswati Dassi. It is also provided that on the death of Sm. Saraswati Dassi the brother of the testatrix Shri Gopal Chandra Das and his daughter Sm. Jagatomohini Dassi shall enjoy the said property in equal shares during the period of lifetime of each of them. The Will further states that on the death of the said Gopal Chandra Das and Sm. Jagatmohini Dassi 5 persons, i.e. Surendra Nath Das, Ganendra Nath Das, Ananda Nath Das. Dwijendra Nath Ghosh and the plaintiff Bechulal Das will get the said property in equal shares absolutely. The testatrix under the Will also devised to the plaintiff Bechulal Das her 1/3rd share absolutely in a brick built house at. Nabadwip immediately on her death, On December 17, 1933 Saraswati and Jagatmohini separately executed two wills in respect of their respective 1/3rd. share in the Nabadwip property in favour of the said Mohanta. On December 2, 1944 Mohanta made an application in Nadia for probate of the will of Saraswati (probate Case No. 101/1944). Some tune in 1947 Gopal Chandra Das died. The plaintiff and Jagatmohini contested the probate proceeding in respect of Saraswati's will and also filed written statement on October 6, 1947 probate was granted to Mohanta in respect of the will of Saraswati and simultaneously a compromise took place. In the said proceedings it was agreed that Mohanta will sell 1/3rd share of Saraswati in premises No. 111, Bowbazar Road. Nabadwip to Bechulal and in fact the sale took place on Oct. 7, 1947 and the probate was granted to Mohanta on October 10, 1947. On March 15, 1958 Jagatmohini died. Mohanta who was also the executor of Jagatmohini's will applied for probate. in the Court at Nadia, Bechulal contested the said probate proceedings and filed a written statement where he mentioned the existence of Rajlakshmi's will. Bechulal contested the said probate proceedings, but towards the later part of the hearing he did not appear and consequently probate was granted to Mohanta on April 9, 1962. On September 20, 1963 Mohanta filed a suit in this court against Bechulal claiming the Calcutta property under the will of Jagatmohini. In the said suit on February 11, 1964 Bechulal filed a written statement. On June 6, 1967 Bechulal made an application before this court for grant of probate to him as the executor to Rajlakshmi's will. On July 29, 1967 probate was granted to Bechulal in common from without special citation in favour of Mohanta. On March 5, 1968 Mohanta's suit appeared in the list of Deb, J. for hearing. Next day Bechulal's solicitor sent a copy of the probate to Mohanta's solicitor stating that under Rajlakshmi's will Mohanta had no right, title and interest in the Calcutta property. On July 30, 1968 on the application of Mohanta the said order for grant of probate of Rajlakshmi's will to Bechulal was revoked by consent. On September 3, 1968 Mohanta entered caveat and the present proceeding before me arises out of Bechulal's original application for grant of probate. Mohanta is seriously challenging the existence and the validity of Rajlakshmi's will. The following issues have been raised and settled:--Issues.
1. Is the alleged will genuine?
2. Was it validly executed?
3. Did the testatrix have testamentary capacity at the time of execution of the said will?
4. To what relief, if any, is the petitioner entitled?
In my view the evidence relating to issues Nos. 1. 2 and 3 may conveniently be discussed together.
2. The first witness called by Bechulal is Durgagati Chakraborty, a retired Government servant of 69 years age. His evidence may be stated as follows.
He knew Rajlakshmi personally who died on December 18, 1929. He frankly has admitted that Bechulal was his friend and occasionally he went to visit him at his house and in that connection he came to know Rajlakshmi. Bechulal used to call Rajlakshmi 'pisirna' i.e. paternal aunt and was residing with her at No. 7 Fariapukur Street. On November 28, 1929 at about 3 p.m. he went to Rajlakshmi's house. He went there and found some witnesses there; Rajlakshmi was present and her younger sister Saraswati was also present. He went there at the request of Bechulal who asked him to be present there for being a witness to the execution of the said will. One Ashutosh Ghosh read over the will to Rajlakshmi and after hearing the contents of the said will she approved the same. Thereafter she put her signature in his presence and after her signature, Sunit Chandra Mitra, a pleader and Dr. M.L. Sarkar and thereafter Ashutosh Ghosh and Nidhuram put their signatures one after another. He signed the document after all of them. He has identified the will and also encircled the signature of Rajlakshmi, himself and other witnesses i.e. Sunit Chandra Mitra. Dr. M.L. Sarkar and Nidhuram. According to him all the signatures were made at the same sitting. He in fact identified the signature of Rajlakshmi in all the pages of the will (Q. 19 to 47). Various questions were put in the cross-examination by Mr. Banerjee on behalf of the said Mohanta. In answer to Q. 178 he said that Rajlakshmi was not very much conversant with reading and writing and the substance of the will was read over to her. Rajlakshmi could not read and write but could just put her signature somehow (Q. 179).
3. Mr. Ghosh on behalf of the plaintiff next called Sunit Chandra Mitra a lawyer of 74 years age. The substance of his evidence may thus be stated. He has identified his own signature and also the signatures of Rajlakshmi and Ashutosh Ghosh in the will. Apart from Ashutosh Ghosh he has also mentioned Durgagati Chakraborty. According to him about 8 or 10 persons were present at the time of the execution of the will. Ashutosh, who happens to be a distant relation one day came to him and took him to the house of Rajlakshmi. He introduced him to Rajlakshmi and told him that she had decided to get her will executed and also wanted him to be the witness in that will. Sunit however, told Ashutosh that as he received his licence recently he suggested the help of his senior lawyer Nalini Nath Ghosh an advocate in Alipore Court. Thereafter Sunit took Ashutosh to Nalini Babu. The will was written out by Haridas Ghosh. the clerk of Nalini Babu. On the date of execution Ashutosh took him to Rajlakshmi's house at Fariapukur Street where he saw two or three persons present. Few other persons came thereafter. Ashutosh called Rajlakshmi and she came there and Ashutosh read over the document to Rajlakshmi. Rajlakshmi approved the same and put her signature (Q. 40). He has identified his own signature and also that of Rajlakshmi in the will. He has been shown an endorsement below the signature of Rajlakshmi which reads as follows:--
'The testatrix of this will Sm. Rajlakshmi Dassi signs in our presence having perused it and she is known well to us.'
He had admitted that the said endorsement was done by him after Rajlakshmi and the attesting witnesses put their respective signatures. He did the same as he thought that with such endorsement the will would not be complete (Q. 42-47). According to him Rajlakshmi was well at the time of the execution of the will and he has denied that Rajlakshmi was completely bed ridden or in a comatose condition on that date, In cross-examination the questions have been asked whether Rajlakshmi read out the will herself. His definite answer is that she did not read the will herself and the endorsement which he added was incorrect. He reiterated that such an endorsement was made by him as he thought wrongly that such endorsement was necessary (Q. 140 to 157). He has frankly admitted that many persons signed the will but among them he remembers Ashutosh and Durgagati Chakraborty (Q. 186). The evidence of this witness has impressed me inasmuch as he has given the evidence frankly. He has admitted his mistakes and his ignorance in the matter of the preparation of a will. He appears to me to be a truthful witness.
4. The next witness is Bechulal Das. the propounder of the will. Although he was not one of the attesting witnesses he was present at the time of the execution of the will (Q. 7). This witness happens to be a distant relation of Rajlakshmi and was earning his livelihood by private tution since the age of 13 or 14. He is now 68 years old. He also served M/s. Martin Burn & Co. from 1936 to 1956. But as he fell seriously ill he had to retire prematurely. He has explained the circumstances under which the will was executed (Q. 30 to 94). Rajlakshmi expressed her desire to make a will whereby she wanted to settle her properties in a particular manner. Her sisters Saraswati and Jagatmohini were childless widows and were living with her in the said premises at No. 7 Fariapukur Street. It is Bechulal's evidence that since 1929 he used to stay with his own family members and also his elder brother and his family members in the said house with Rajlakshmi. Saraswati and Jagatmohini. Rajlakshmi wanted that after her death Saraswati Dassi should get a life-estate in the said Calcutta property and after her death. Gopal Ch. Das. and Jagatmohini will have a life-estate and thereafter the Calcutta property was to be divided among 5 persons including Bechulal. It was her definite desire that 1/3rd of the property at Nabawdip would be given to Bechulal absolutely after her death. Accordingly this will was later executed in accordance with her desire with the help of Bechulal's friend Ashutosh, Sunit Mitra one of the distant relatives of Ashutosh and also Nalini Nath Ghosh the senior lawyer of Sunit Mitra. Ashutosh brought Nalini Babu to Rajlakshmi's house. He introduced him to Rajlakshmi and thereafter Rajlakshmi gave him instruction to draft a will. Nalini Babu drafted the said will but he expressed his unwillingness to sign as an attesting witness as he was busy. The will as drafted by Nalini Babu was handed over to Rajlakshmi and the said will was executed on the 28th November 1929 in presence of the attesting witnesses who were earlier informed about the date of the execution of the will (Q. 38 to 63). Bechulal has corroborated other witness on material points. Although his evidence has got to be examined with caution inasmuch as he being the propounder and also a legatee is naturally very much interested in getting the probate. Durgagati, Sunit and Bechulal have given evidence that Rajlakshmi understood the contents of the will and put her signature in the will at the same sitting and in the presence of Dr. M.L. Sarkar and Nidhiram Das. Rajlakshmi has put her signature not only at the the bottom of the last page of the will but also put her signatures on 4 other pages of the same.
5. Mr. Banerjee on behalf of the Mohanta has strenuously argued that the probate should not be granted to Bechulal inasmuch as there are extraordinary circumstances which show that the alleged will of Rajlakshmi is not genuine. It is now necessary to discuss Mr. Banerjee's objections. Firstly, the inordinate delay on the part of Bechulal in making an application for the grant of probate 38 years after the execution of the will has not been satisfactorily explained, and, as such, the court should consider this fact as a suspicious circumstance which cannot justify grant of probate to Bechulal. I agree with Mr. Banerjee that this unusual delay on the part of Bechulal in making an application to this court for grant of probate raises doubt as to the genuineness of the will. The will was executed on November 28, 1929. Rajlakshmi died on December 18 1929. Bechulal. the executor of the will, did not apply to this court for grant of probate until June 6, 1967. Admittedly. Mohanta was known to Bechulal. Mohanta was the executor to the wills of Rajlakshmi's sister Saraswati and also her brother's daughter Jagatmohini which were executed on the same day i.e. on December 17, 1933. On December 2, 1944 Mohanta made an application in the Nadia court for probate of the will of Saraswati. In the said probate proceedings written statements were filed by Bechulal along with Jagatmohini. The most natural thing on the part of Bechulal would be to mention the existence of the will in the said written statement but he did not do so. Mr. Banerjee continues to argue that obviously Bechula'l was not relying on Rajlakshmi's will for the simple reason that the same was never executed by Rajlakshmi. At first this argument of Mr. Banerjee impressed me and I was satisfied that Rajlakshmi's will never existed. It must have been manufactured subsequently by Bechulal to grab the Calcutta property. But on examination of other evidence and the surrounding circumstances I am satisfied that the delay cannot be fatal to Bechulal's application as the delay has been explained satisfactorily.
6. Saraswati had 1/3rd share in the Nabadwip property which she gave to Mohanto by her will. In Nabadwip property Gopal Das and Rajlakshmi also had 1/3rd share each. After Gopal's death Jagatmohini became entitled to his 1/3rd share. Rajlakshmi's 1/3rd share was the subject-matter of her alleged will. In the probate proceedings of Saraswati's will the properties belonging to Rajlakshmi were not directly affected. If the property of Rajlakshmi was also the subject-matter of Saraswati's will it would have been considered relevant. Saraswati did not dispose of any property belonging to Rajlakshmi. Bechulal and Jagatmohini, however, challenged the genuineness of the will on other grounds and naturally Bechulal's evidence on this point to the effect that it was not necessary for him to mention about Rajlakshmi's will in the said proceedings should be accepted. On the contrary, it is surprising that Mohanta has compromised the said probate proceedings of Saraswati's will and agreed to sell 1/3rd share of Saraswati in Nabadwip property to Bechulal. This is quite consistent with the evidence of Bechulal that Mohanta had knowledge of Rajlakshmi's will and Bechulal's claim as the owner to Rajlakshmi's 1/3rd share in Nabadwip property under Rajlakshmi's will. As the Calcutta property was not the subject-matter of the probate proceeding of Saraswati's will Bechulal thought that it was not necessary to mention Rajlakshmi's will. There is logic in the case of Bechulal when he has stated that it was not necessary for him to mention about Rajlakshmi's will in the probate proceedings of Saraswati's will. In the affidavit of assets filed by Mohanta the Calcutta property was not included. Saraswati's probate proceedings took place in 1944. In fact Mohanta himself came to know from the Corporation records in 1959 that Saraswati was recorded as the owner of the Fariapukur Street property. Thus Rajlakshmi's will was not a relevant factor in the probate proceedings of Saraswati's will in 1944 vide Mohanta Q 275-285. 505-616 and Ext. 'E'. In this connection reference may be made to the recital in the deed of conveyance which was executed by Mohanta in favour of Bechulal in 1947 in respect of Saraswati's 1/3rd share in Nabadwip property as stated above where it is stated that Mohanta was selling Saraswati's 1/3rd share in Nabadwip property to Bechulal who had also a share therein, (vide page 7 of Ext. E.). This recital substantiates the fact that Mohanta had knowledge of the existence of Rajlakshmi's will and Bechulal's claim under the same. In fact no satisfactory explanation has been given by Mohanta as to the reason why he agreed to sell 1/3rd share of Saraswati in Nabadwip property to Bechulal. It was suggested to Bechulal in cross-examination that Mohanta never examined the deed of conveyance but Mohanta stated in his evidence that he only examined the portion relating to the consideration money and the description of the property sold and did not take care to read the rest of the document. But it is difficult to accept this evidence of Mohanta inasmuch as the very sentence which refers to the consideration money contains also the fact that Bechulal had a share in the property: vide Mohanta Q. 294-350. Further Saraswati died in 1940 whereas Gopal died in 1947. If Rajlakshmi died intestate her Calcutta property was to be inherited by her brother Gopal and in the Corporation record Gopal's name should have been mentioned but as Mohanta himself has admitted that the Corporation record showed the name of Saraswati. This fact also supports existence of Rajlakshmi's will inasmuch as under Rajlakshmi's will Saraswati during her lifetime was entitled to enjoy the Calcutta property vide Ext. (w). It should also be remembered that both the wills of Saraswati and Jagatmohini were executed in 1933. i.e. about 4 years after the death of Rajlakshmi. But the said wills did not mention the Calcutta property at all. The omission of Calcutta property in the said wills is consistent with provisions of Rajlakshmi's will that the property ultimately could vest in 5 legatees including Bechulal. Further the appointment of Mohanta as the executor of Saraswati's and Jagatmohini's will shows that Saraswati and Jagatmohini had confidence in Mohanta. It is extraordinary that Saraswati and Jagatmohini never told Mohanta during their lifetime that either of them was the owner of the Calcutta property left by Rajlakshmi. According to Mohanta he came to know about the Saraswati's ownership in the Calcutta property after a search of Corporation records in 1959. Jagatmohini died after the Act of 1956 came into force. If Jagatmohini knew that she was really the owner of Calcutta property being the heir of Rajlakshmi she could have mentioned the Calcutta property by executing a Codicil. She did not do so nor did Mohanta remind her to do the same. On the contrary, the non-inclusion Of Calcutta property in any document in 1957 and 1958 shows that Jagatmohini had knowledge of the fact that Rajlakshmi under her will bequeathed the Calcutta property to Bechulal and four others absolutely subject to the life estate of Saraswati and Jagatmohini
7. In the probate proceedings of Jagatomohini's will (probate case No. 69 of 1970) before the District Judge, Nadia. Bechulal contested the grant of probate to Mohanta and the probate case was marked as a contentious cause and numbered as P.C. No. 10 of 1960 Bechulal in his written statement challenged the will on the ground of undue influence and coercion and also mentioned the existence of Rajlakshmi's will executed about 30 years ago. It was necessary for Bechulal to mention the existence of Rajlakshmi's will on this occasion inasmuch as under the will of Jagatmohini Mohanta was to get all her properties. As stated earlier she did not mention specifically the Calcutta property. But Mohanta on the assumption that Jagatmohini has inherited the Calcutta property as her legal heir under the Hindu Succession Act 1956 claimed the Calcutta property also, which was one of the properties mentioned in Rajlakshmi's will and naturally Bechulal mentioned Rajlakshmi's will in his written statement. According to Bechulal he could not be present at the final hearing of the said testamentary matter on April 9, 1962 when the probate of the will of Jagatmohini was issued in his absence. As Bechulal was in continuous possession of the Calcutta property for more than 30 years Mohanta filed a suit in this court for declaration of his title and recovery of possession. When the said suit was pending on June 6. 1967 Bechulal made an application in this court for the grant of probate of the will of Rajlakshmi (Matter No. 120 of 1967). On July 11, 1967 Bechulal obtained an order for issue of general citation and publication of the same in Dainik Basumati. No citation to Mohanta was prayed for. On July 29, 1967 the probate was granted to Bechulal by this Court. On March 7, 1968 when Mohanta's suit appeared in the list for hearing before Deb. J. the solicitor for Bechulal wrote to Mohanta's solicitor the Bechulal was granted the probate of Rajlakshmi's will. On May 10, 1968 Mohanta made an application to this court for revocation of the grant of probate to Bechulal. On July 30. 1968 the grant of probate was revoked without any contest by Bechulal. Mr. Banerjee has made strong comments of Bechulal's conduct in getting the probate without citation to Mohanta and also in selling 1/3rd share of Rajlakshmi in Nabadwip property for Rs. 1500/- soon after Retting the said probate. There is no doubt that this conduct on the part of Bechulal does create a suspicion. But it appears that in Bechulal's application for grant of probate of Rajlakshmi's will he mentioned the claim of Mohanta in theCalcutta property in the pending suit against him. The general citation was published in Dainik Basumati on July 14, 1967 under the orders of the court and the court did not issue any special citation to Mohanta presumably because Bechulal's counsel did not ask for the same. But in any event Mohanta cannot have any grievance now as the said grant of probate was subsequently revoked. Similarly the sale of 1/3rd share of Rajlakshmi in Nabadwip property by Bechulal cannot be construed as fatal to this application. Mohanta has not claimed any share in Nabadwip property under Rajlakshmi's will. Mohanta's omission to claim Nabadwip property in the pending suit in the Calcutta or elsewhere also corroborates the fact that Mohanta perhaps had knowledge of Rajlakshmi's will whereby Bechulal was given the said property absolutely. Secondly Bechulal got the probate on July 29, 1967 and Bechulal sold his 1/3rd share of Rajlakshmi in Nabadwip property on April 8, 1968. It is quite possible that Bechulal was in need of money, as he has stated in his evidence, for his family expenses and also for meeting the litigation expenses in the High Court. Thus it cannot be said that the suspicious conduct of Bechulal cannot be explained.
8. The strongest point of Mr. Banerjee is that the court should not exercise its discretion in granting probate to an executor who has applied for the same 37 years after the death of the testator. In support of his contention that delay is not always a ground for refusal of probate. Mr. Ghose has referred me to the following decisions:-- Manindra Chandra Lala v. Mahaluxmi Bank Ltd., AIR 1945 PC 105; Durgapada Bera v. Atul Chandra Bera, 41 Cal WN 1204 at PP. 1208-1209 = (AIR 1937 Cal 595); Kristo Gopal Nath v. Baidya Nath Khan, AIR 1939 Cal 87 and Tyrrell v. Painton, (1894) PD 151. In my view if there is positive proof of execution of the will by oral and documentary evidence delay, by itself cannot be a ground for refusing grant of probate. Further if suspicious circumstances can be given a possible explanation court should not refuse grant of probate when the attesting witnesses have otherwise proved voluntary execution of the will and the testamentary capacity of the testator. Reliance may be placed on AIR 1939 Cal 87 (supra); AIR 1945 PC 105 (supra). Bechulal was in possession of the Calcutta property all along and nobody has threatened to dispossess him. The Nabadwip property was tenanted and there is no evidence to show that there was a dispute in respect of the rent of 1/3rd share of Rajlakshmi. Mohanta could have led evidence to the effect that the rent in respect of the said 1/3rd share of Rajlakshmi property was being collected by persons other than Bechulal. On the contrary Bechulal's definite evidence isthat as he could not have any interest in the Calcutta property until the death of Saraswati and Jagatmohini, he did not think it necessary to apply for a probate. Of course, Bechulal has raised the plea that he did not make the necessary application for want of fund as he has a large family to maintain and also to get several daughters married. Mr. Banerjee has pointed out that Bechulal was earning money as a tutor and also as an employee in Martin Burn Co. and also collected sale proceeds of 1/3rd share of Saraswati's will and 1/3rd share of Rajlakshmi's will in the Nabadwip property. This explanation also does not seem to be very improbable in view of the fact that the sale proceeds would not exceed a sum of about Rs. 2500/-. But Mr. Banerjee laid stress on the fact that even assuming Bechulal had no interest in the Calcutta property until Jagatmohini's death in 1958, there is no justification for his delay in making an application in 1967. On this point also explanation given by Bechulal is not improbable. Jagatmohini died in 1958, Mohanta applied for probate of Jagatmohini's will in June 1960 which may be said to be the first threat to Bechulal's title in the Calcutta property. The said proceeding came to an end on April 9, 1962. On February 2, 1962 I find an affidavit by Ashutosh Ghosh who as an attesting witness has stated that the will was duly attested. On September 20, 1962 Mohanta filed a suit in this court for declaration of title in respect of the Calcutta property. Bechulal had to get money to contest the said suit and also to make an application for grant of probate of Rajlakshmi's will in this court. As the said suit was not ready for hearing he was not keen to make the application earlier. In June 1967 when Mohanta's suit appeared in the list for hearing he must have been advised to make the necessary application for grant of probate which he did on June 6, 1967. It may be remembered that Bechulal filed a written statement on February 11, 1964 and also affidavit of documents on March 20, 1964, Even assuming that his plea of financial difficulties is rejected in my view the delay of about 7 or 8 years cannot by itself warrant the dismissal of this application.
9. There are other reasons why Bechulal's explanation should be accepted. It appears from the oral and documentary evidence that Mohanta had always been stating that Rajlakshmi died in 1920. The obvious reason for making out such a false plea was to prove that the will could not have been executed in 1929. Secondly, Mohanta's evidence that Rajlakshmi was in a state of coma in November, 1929 cannot be accepted inasmuch as according to Mohanta himself he did not visit Rajlakshmi for more than two occasions. In fact different versions were given by Mohanta as to the number of his visits to Rajlakshmi. Thirdly, there is also evidence to show that in connection with the present proceedings Mohanta was going to several attesting witnesses with the obvious object to dissuading the witnesses from giving evidence in the present proceeding. Fourthly, as stated earlier, the deed of conveyance by which he sold Saraswati's 1/3rd share in Nabadwip property to Bechulal shows that Bechulal had shares in Nabadwip property. This fact supports Bechulal's case that Mohanta had knowledge of his right under Rajlakshmi's will. Fifthly, as stated earlier Saraswati's will and Jagatmohini's will did not contain any reference to the Calcutta property. Sixthly, in the Corporation assessment record Saraswati was shown as the owner of the Fariapukur property. The inclusion of only Saraswati's name can only be explained by the fact that Saraswati had a life estate under Rajlakshmi's will and. as such, her name was recorded as the owner of the said house during her lifetime. At the time of Saraswati's death the assessment record dated December 29, 1959 shows that Sm. Saraswati Dassi has been described as the owner of the Fariapukur street property. But her name is written above the words, 'estate Rajlakshmi Dassi.' If Rajlakshmi died intestate there was no reason for mentioning the said words, 'estate Rajlakshmi Dassi.' It may be remembered that Rajlakshmi died on December 18, 1929 and Saraswati died on October 14, 1940. After Rajlakshmi's death the name of her brother Gopal Chandra Das should have been substituted instead of Saraswati. But the fact that Saraswati's name was mentioned substantiates the petitioner's case. Bechulal was residing with Rajlakshmi in Fariapukur Street since long prior to Rajlakshmi's death. He was living not only with his family but also with his brothers family in the said house. After Rajlakshmi's death Saraswati, Gopal Chandra Das or Jagatmohini never protested, against their occupation in the said property. Afterall Bechulal is a very distant relation and he had no legal right to stay in the said Calcutta house with his family under the law of Intestate Succession. Even Mohanta at any stage never complained to anybody against. Bechulal's occupation. These facts show that Bechulal's legal right as executor under Rajlakshmi's will was recognised by Saraswati, Gopal, Jagatmohini and Mohanta.
10. Mr. Banerjee has next contended that Rajlakshmi had no testamentary capacity at the time of the execution of the will inasmuch as she was seriously ill and was living in a semiconscious condition. This contention of Mr. Banerjee cannot be accepted. Durgagati in his evidence (Q. 23, 197-205. 210-212, 211-215) Sunit in his answers to Q. 40-49, 117,123. 128, 129. 132, 134, 141. 146 and Bechulal also in his answers to Q. 66 to 79. 166-172. 716-722 have without any contradiction stated the will was read over to Rajlakshmi and she approved the contents of the will and then put her signature on the document. According to Mohanta himself, he was not a regular visitor to the said Calcutta property. There is no evidence to corroborate Mohanta's story that Rajlakshmi could not have executed the will as she was in a comatose condition in the last few months of 1929.
11. Mr. Banerjee has also raised the point that the signatures of Rajlakshmi in the will show that they were not written voluntarily or with ease. No issue of undue influence has been specifically raised. A lawyer, a doctor and Government servant have given evidence to the effect that Rajlakshmi put her signatures in the document in their presence. No admitted signature has been produced so that the court might be in a position to compare her genuine signature with her signatures in the will. Mohanta has not categorically stated that the signatures in the will were not signatures of Rajlakshmi. If it would have been a forged document it was not necessary for the forgeror to put Rajlakshmi's signature on every page of the will. A forgeror would not ordinarily make a mistake with respect to the spellings of Rajlakshmi's name. On the contrary, the existence of discrepencies give indication that the will was signed by a person who is not sufficiently literate. In fact, the witnesses in support of the petitioner's case have stated that Rajlakshmi was not literate; vide Durgagati Q. 178, 202. Bechulal Q. 542-544 and for the said reason it is natural for Rajlakshmi to put her signatures with difficulties.
12. Mr. Banerjee has also argued that the will is not a natural document. In my view there is no sufficient force in the said contention. Both Saraswati and Jagatmohini were childless widows and Rajlakshmi had provided a life estate for them. Rajlakshmi allowed Bechulal to stay in the house and naturally Rajlakshmi has made provision for Bechulal along with others after the death of Saraswati and Jagatmohini. No evidence has been adduced to the effect that Rajlakshmi had a great affection for Gopal Das. Nor did I find any evidence showing that Gopal Das was protesting against Bechulal's stay in the family or claiming an interest as an heir in the Calcutta property on intestacy.
13. Lastly Mr. Banerjee has drawn my attention to several contradictions In the evidence of Durgagati Sunit and Bechulal. The first contradiction according to Mr. Banerjee was that their evidence as to the number of persons present at the time of the execution of the will was different. I have carefully examined the evidence of Durgagati (Q. 431-444) Sunit (Q. 40-41, 106-112. 118-121, 181-186 and also Bechulal (Q. 30, 31, 536, 541, 557-581). Most of the witnesses have stated that several persons were present. Sunit has stated that when he came into the house about 2 or 3 persons were there but some other persons came later. Similarly a comment has also been made that Durgagati has stated that the date on which the will was executed was a holiday or a Sunday. But Mr. Banerjee has drawn my attention to the 100 years calendar showing that 28th November 1929 was not a Sunday. There is nothing to show that November 28, 1929 was not a public or a local holiday. Durgagati himself in Q. 19 has stated that most probably it was a holiday. Similarly contradictions have also been pointed out in respect of the subsequent endorsements below the signature of Rajlakshmi in the will as mentioned earlier. Durgagati has also stated with respect to the said endorsement that he cannot remember definitely (Q. 181-183, 193). He was specifically asked whether the endorsement was there when he put his signature on the alleged will. His answer was 'Yes'. In Q. 193 he was asked whether the endorsement was made after Rajlakshmi has put her signature or before she put her signature. His definite answer is that he cannot exactly remember. In my view the contradictions are not substantial enough to enable me to reject other positive evidence. It should be remembered that the witnesses are giving evidence in 11970 about an incident that happened in 1928-29. Apart from that fact that the witnesses have given their evidence after about 40 years, in my view the evidence should be examined collectively and in doing so oral, documentary and surrounding circumstances should be taken into consideration. Before an evidence is rejected on grounds of discrepancies the court must satisfy itself that those discrepancies cannot be explained on account of defective memory, failing power of observation. Reliance may be placed on Kedar Nath Tushnial v. Raj Kumar Das. 69 Cal LJ 394 at pp. 399, 415 = (AIR 1939 Cal 674) and Kishorilal v. Chunilal, (1908) 13 Cal WN 370 (PC).
14. For all the reasons stated above the issues should be answered in the following manner:--
(4) The probate of the will of Rajlakshmi Dassi dated November 28, 1929 should be granted to the petitioner as the sole executor to have effect throughout the State of West Bengal.
15. In the premises there will be order in terms of prayer 'B'. The plaintiff will realise the costs out of the estate and the defendant will bear his own costs.