1. This is an appeal against the judgment and decree of the Subordinate Judge of Malda granting probate of the will of one Jagalal Saha to the respondent Dhanapat Saha. The material facts briefly are as follows: Jagalal Saha, a Hindu governed by Dayabhag School of Hindu law, died on 28th Kartick, 1347 B.S. (the 14th November 1940). He had previously on 22nd Sravan 1346 B.S. (the 7th August 1939) executed and registered a will. Under the provisions of that will, Jagalal Saha directed that his eldest daughter, Rajmoni Dasi should receive Rs. 5 per year during her life time, and that the testator's brother's son Dhanpat Saha should pay this sum each year. The will further provided that certain specified properties be given to the second daughter, Srimati Jadubala Dassi and certain other specified properties be given to another daughter Sri Kamini Bala Dasi, and that certain specified properties be given to Surendra, son of still another daughter named Akali, There was then a provision that if the testator failed to instal in his life time an image of Siva, his brother's son Dhanpat Saha should instal such an image, and should pay for the expenses of the idol and periodical worship of the image. Lastly, there was a provision that the said brother's son Dhanapat Saha should continue to enjoy and possess all the remaining properties set out in the schedule to the will, that he should be entitled to sell the properties, that he should bear the expenses of the sradi ceremony of the testator and of the testator' s wife, that he should bear the expenses of the pilgrimage, and that he should look after and protect the property of the testator, and that he should have the power to sell the property in order to pay off the debts and do other things. There was a provision that if the said brother's son failed to comply with certain conditions set out in para. G of the said will, the bequest or appointment in his favour should be cancelled.
2. As stated above, the testator lived nearly a year and a half after executing this will. Dhanapat Saha, the said brother's son, applied for letters of administration of the will on 10-1-1944, in the Court of the Subordinate Judge of Maldah. His application was opposed by Jadubala Dasi, one of the daughters of the testator. It was contended by the objector that the will was not duly executed inasmuch as it was brought about by the fraud of certain persons named in the petition of objection, and it was alleged that the testator was not of sound mind and of disposing capacity at the time of the execution of the will. It was further contended that even if the will be accepted as a genuine and valid will, there was no appointment of an executor under the will, and the objector being a nearer heir than the propounder was herself entitled to letters of administration; and the petition of objection contained a formal prayer for the grant of such letters of administration to herself.
3. Evidence was adduced by both the parties. The learned Subordinate-Judge held that 'the will was duly executed and was a valid will. He held further that the propounder of the will, Dhanapat Shaha, was appointed executor according to the tenor of the will and was entitled to probate of the same. He accordingly granted probate of the will to the propounder thereof; and it is against that order that the present appeal has been brought by Jadubala Dasi.
4. It was argued in the first place that the learned Judge who passed the order had no jurisdiction to do so in that he did so as District Delegate, and the application for letters of administration was a contentious one. It seems to us that this description of District Delegate in this particular case was a clerical mistake. Apparently, orders have been issued by this Court under Section 23, Bengal, North Western Frontier Province and Assam Civil Courts Act (12 [XII] of 1887) enabling the District Judge of Maldah to transfer to a Subordinate Judge contentious matters and enabling the Subordinate Judge of Maldah to take cognizance of contentious matters which cannot be disposed of by a District Delegate; and the learned Subordinate Judge, in fact, disposed of this matter as a Subordinate Judge to whom such a matter had been transferred by the District Judge under the orders of this Court. Such being the case, the learned Subordinate Judge had power to dispose of the matter, but not as a District Delegate.
5. It was next contended on behalf of the respondent that no appeal lies to this Court in such a case; that inasmuch as the value of the property was less than Rs. 5000, appeal lies under Section 21, Bengal, North Western Frontier Province and Assam Civil Courts Act, to the District Judge. In the said Civil Courts Act, there is no clear and obvious provision as to the forum of appeal in such cases, but in our opinion Section 24 of the Act leads to the inference that the appeal from an order of a Subordinate Judge in such a case lies to the High Court and not to the District, and we find that the same view has, been taken in Baroda Debya v. Phutnmani ('33) 20 A.I.R. 1933 Pat. 276. We are satisfied that an appeal does lie in the present case to this Court.
6. The next question for our consideration is whether it has been proved to the satisfaction of the Court that the document propounded in this case was duly executed and attested, and was executed by the testator when of sound mind and testamentary capacity. In view of the fact that the will was subsequently registered by the testate himself, it has not been questioned in this Court that the document was actually executed by him and duly attested according to law, but it is still argued that there was no evidence to show that the testator was of sound mind and had disposing capacity at the time of the execution of the will. Our attention was drawn to a namber of circumstances, and it was suggested that those circumstances are of such a nature as to arouse suspicion regarding the testamentary capacity of the testator at the time of the execution of the will, and that these are not removed by the evidence on record. It was pointed out that the will was inofficious in so far as it purported to disinherit the near relatives of the testator and gave preference to a distent relative. It was pointed out that there was great delay on the part of the propounder of the will in applying for letters of administration, and it was pointed out that one, at least, of the attesting witnesses to the will had purchased a property from the widow and daughters of the testator as though there had been an intestacy. In view of these circumstances, we are asked to hold that there was suspicion regarding the testamentary capacity of the testator at the time of the execution of the will. If the question was whether the testator executed the will or not, or whether the will was obtained from him in circumstances indicating that he did not understand the contents, there might be some force in this argument; but the real suggestion in this case is not that the testator lacked testamentary capacity, but that the will was obtained from him by coercion, fraud and undue influence. There is not a word of evidence on record to support this suggestion, and in our opinion the circumstances referred to by the learned advocate are not such as to justify us in doubting that the testator had full understanding and testamentary capacity. The witnesses examined on behalf of the propounder stated that he had such capacity, and there was no evidence to the contrary. In our opinion, the evidence on record was sufficient to show that the will was duly and properly executed and was a valid will.
7. It was next objected by the appellant that the respondent propounder of the will was not appointed executor according to the tenor of the will, and ought not to have been granted probate. It was then argued that if letters of administration were to be issued, the appellant had preferential claim to the same, and letters of administration with a copy of the will annexed ought to have been issued to the present appellant. It appears that the order of the learned Subordinate Judge was passed on 19-12-1944, directing that probate be granted to the propounder Dhanapat Saha. The appeal was filed by the present appellant on 5-2-1945. After the filing of the appeal, Dhanapat Saha died on 6-6-1945, and his heirs were substituted in this appeal. In other words, the person to whom probata was granted has died, and the question whether probate or letters of administration should have been issued in the case does no longer need to be decided. Probate was issued to Dhanapat Saha, and for the period of his life time, there was a probate on which he could have acted. If there is any part of the estate still unadministered and requiring to be administered, letters of administration de bonis non will have to be issued under the provisions of Sections 258 and 259, Succession Act. The present appeal in so far as it refers to the appointment of the executor has, therefore, become infructuous; but any of the parties to the appeal or any of the persons interested in the estate may, if so advised, apply to the lower Court for letters of administration under Section 258, Succession Act, and their application will have to be dealt with by that Court. The present appeal on that ground is infructuous, and must be dismissed.
8. This appeal is dismissed. We make no order as to costs in this Court.
G.N. Das, J.
9. I agree.