R.C. Mitter, J.
1. Devraj Mukherjee was a leading pleader of the Suri Bar. He died at the age of about 76, in his Bolpur House on 15th February 1943. At the time of his death the following persons were his near relations: Sm. Kasi Kamini Devi, his widow, three sons viz., Charu Chandra, Kshitish Chandra and Tararanjan and four sons of Charu Chandra, viz., Dilip Chand, Manik Chand, Gouranga Sundar and Shankar Lal. His grandson Dilip had become pleader sometime ago and had acted as a junior to his grandfather Debraj Kshitish Chandra, Tararanjan and Dilip Chand applied for probate of his will said to have been executed by him on 23rd December 1942 at his Suri house. The will was registered at Suri on the same day. The objector is Charu Chandra who by the will has been practically cut off from the testator's estate. Only a small provision for his maintenance and of his wife and for his residence at the village house of the testator at Kalgram have been made for him.
2. By the terms of the will a trust was created of the remaining portion of his property save and except the Kalgram house. Kshitish Chandra and Tararanjan have been appointed trustees with a provision that a son out of the four sons of Charu Chandra was to be a trustee with Kshitish Chandra and Tararanjan. There is provision for the appointment of succeeding trustees. The trust is to last up to the lifetime of the great grandsons of the testator. The trustees were to perform the Deb Seba of the deity, installed by the testator viz., Sri Sri Iswari Dakshina Kalika Devi. The surplus left after meeting the expenses of the Deb Seba is to be distributed in certain shares to Khitish Chandra and his descendants, Tararanjan and his descendants and to the descendants of his eldest son Charu Chandra. In the last clause of the will the testator directed his trustees to arrange for his funeral and the funeral of his wife and also to arrange for their Sradhs. After the termination of the trust, the properties were to vest in the deity Sri Sri Iswari Dakshina Kalika Devi.
3. His eldest son, Charu Chandra only opposed the will. His case was that (i) that the document propounded was not a testamentary one, (ii) if it was a will it had not been properly executed, (iii) that he had no testamentary capacity, (iv) that it was executed under the undue influence exerted upon the testator by his own son, Dilip, (v) the applicants were not entitled to probate inasmuch as they were not the executors under the will and (vi) they could only apply for letters of administration with a copy of the will annexed even if the will was proved, but by their acts they had disqualified themselves from applying for letters of administration with a copy of the will annexed. The last mentioned point is not noticed in the judgment of the learned District Judge. The learned District Judge found that (i) the document propounded was a testamentary one, (ii) that it was duly executed, (iii) Debraj had testamentary capacity, (iv) there was no undue influence exerted over him as alleged by the objector, and (v) the applicants were entitled to apply, for probate inasmuch as they although not expressly mentioned as executors in the will of the testator were executors according to the tenor of the will. He accordingly, granted probate of the will to the applicants.
4. Charu Chandra has preferred this appeal. The learned advocate appearing for him did not attack the finding of the learned District Judge to the effect that the document propounded was a will and the further finding? that there was proper execution. He pressed before us only four points; viz., (i) that the testator had no testamentary capacity, (ii) the will was the result of undue influence exerted on him by his grandson, Dilip, (iii) that in any event applicants were not entitled to probate because they were not executors according to the tenor of the will and (iv) letters of administration with the copy of the will annexed cannot be granted because by their conduct they have precluded themselves from applying for the same.
5. We will deal with the points in the above order. The testator was aged about 76 at the time of his death. The evidence of Mr. Hem Chandra Mukherjee, a Pleader on whom the learned District Judge has placed great reliance comes to this: at the time of the execution of the will he was in normal state of mind. He had sharp intelligence all through his career. Although he had retired from actual practice he had taken out a licence at a reduced fee in order to enable him to do chamber work, and that practically up to his death he was attending his chamber. He used to drink but not excessively. Mr. Hem Chandra Mukherjee is an attesting witness. He had been practising at Suri since the year 1928 and acted as Debraj Babu's junior as long as the latter was in active practice. He is a disinterested witness and was competent to speak about Deb Raj's mental capacity by reason of his long association with him. His evidence establishes that Debraj had testamentary capacity. The case of the objector is that his son Dilip had great influence over the testator and the will is the result of his undue influence. In deciding the question as to whether the will was executed under undue influence or not, the following observations of Sir J. P. Wilde in Hall v. Hall (1864-65) 1 P. & D. 481, have to be kept in view. His observations are as follows:
To make a good will a man must be as free agent. But all influences are not unlawful. Persuasion, appeals to the affections or ties of kindred, to a sentiment of gratitude for past services, or pity for future destitution, or the like these are all legitimate, and may be fairly pressed on a testator; on the other hand, pressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overpower the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator's judgment, discretion or wishes, is overborne, will constitute undue influence, though no force is either used or threatened. In a word, a testator may be led out, not driven; and his will must be the offspring of his own volition, and not the record of some one else's.
The evidence in this case falls far short of the requirements noticed in the above mentioned observations. On the other hand, there is the positive evidence on the record given by Mr. Hem Chandra Mukherjee on the point. He said that Debraj Babu was a very obstinate man. He was not a man to be influenced or guided by any body. It is unnecessary for us to refer to the other evidence on the record to which the learned District Judge has made detailed reference. We hold that it has not been established that the will had been executed by Debraj under undue influence.
6. The next question is whether the applicants are the executors by implication. They are the trustees appointed by the testator to carry out the trust created by his will. It is well settled that the fact that a person has been made a trustee would not by itself make him an executor by implication. In order that a trustee or any other person may be held to be an executor according to the tenor of the will, it is necessary to find out from the will what was the intention of the testator. If the intention of the testator was to clothe him with the powers of an executor, he would be an executor by implication. Collection of the assets of the testator, payment of his debts, arrangement for his funeral rites and payment of probate duty are the important functions of an executor and if there is any indication in the will that he intended a person named as a trustee by him to perform any of these functions, the person named by him as a trustee would be held to be an executor according to the tenor of the will. In the case before us the trustees are given the power to manage the estate generally. That by itself would not lead to the conclusion that they were appointed executors by implication, for the right to management is also a right which a trustee had qua trustees. But in the will there is a clear direction upon the trustees to arrange for his funeral rites and sradh. That is the function of the executor. In Kali Charan Thakur v. Annada Kanta Bhattacharjee ('11) 15 C.W.N. 1 a testator gave all his properties to a deity in absolute right. He had appointed certain persons as shebaits of the deity, but in the last paragraph of the will, he directed that on his death a certain sum of money will have to be spent for the performance of his first sradh and dedication of bulls and offerings of pinda at Gaya. There was a further direction that the shebaits for the time being will cause those things to be done. It is by reason of the existence of this last mentioned clause that Sir Lawrence Jenkins C.J., and Doss J. came to the conclusion that the shebait had been made an executor by implication. On the authority of that case and on the principles that we have formulated above, we hold that the trustees in the case, before us had been appointed executors by implication, and therefore they were entitled to probate.
7. In view of our decision on this point, the last point urged by the learned advocate for the appellant does not arise. An executor is disqualified from applying for probate only if he had renounced in the presence of the Court. There is no other way by which an executor can disqualify himself from asking for a probate of the will. This has been laid down by a Division Bench of this Court in Sailabala Dasi v. Baidyanath Rakshit : AIR1928Cal580 a decision which we respectfully follow.
8. The result is that this appeal is dismissed with costs, hearing fee three gold mohurs.
9. I agree.