1. This appeal is against an order of the District Judge of Birbhum refusing to grant Probate of the Will of one Rasaraj Saha. He is said to have executed the Will on the 2nd November, 1919, at about 10 a.m. He died the very sumo day at about 4-30 p.m.
2. The petitioner who propounded the Will its a distant agnate of the deceased. The objector is the first cousin (father's brother's son). He lived at a different place about 12 miles away and had no concern with the deceased. On the other-hand, Rasaraj used to take his food in the house of the petitioner and was evidently more intimate with him. Under these circumstances, we think the learned Judge was right in holding that the deceased, if he had testamentary capacity when he is said to have executed the Will, would in all probability have excluded the objector and that the Will in favour of the petitioner could not be said to be unnatural.
3. The learned Judge, however, found that the deceased had no testamentary capacity at the time when the Will is said to have been executed and that the Will was not executed by the deceased. The judgment then discussed facts and proceeded:
Upon a consideration of the entire evidence he came to the conclusion that the deceased had no testamentary capacity at the time when the Will is said to have been executed. The witnesses were before him, and, after considering all the circumstances, we are unable to hold that the-Judge is wrong in the view he has taken.
4. It has been pressed upon us that the Doctor stated that at the time of his first visit the deceased was in 'full possession of his senses' and, as the Will was in existence at about noon, it ought to be held that the deceased had testamentary capacity at about 10 or 11 a.m.
5. But the mere fact that the testator had|! sense or consciousness, or that he was able to answer a question or two put by the Doctor or Kaviraj about his illness is not :| sufficient.
6. It is stated that the Will was written out under instructions from Rasaraj who, all the time the Will was being written out, was sitting up. The evidence of the Doctor, however, shows that the patient could not sit up.
7. It is to be observed that no question was put to the Doctor or to the Kaviraj as to whether Rasaraj had sufficient capacity at the time to execute the Will, or any question about his mental faculties. Having regard to his physical condition at the time, the plaintiff ought to have adduced evidence to show that he had testamentary capacity.
8. On a consideration of all the circumstances and the evidence, we think that the appeal must be dismissed with costs.
9. We assess the hearing fee at one gold mohur.