Pigot and Banerjee, JJ.
1. This is an appeal from an order of the District Judge of Nuddea directing that probate be granted of the will, dated the 25th Falgoon 1297 (8th March 1891), of Mohim Chunder Biswas of Bhabanipore, thanah Meherpore of that district.
2. Mohim died on Cheyt 5th, 1297 (or March 18th 1891). The application for probate was made by Rashmohini Dassi, his widow, and Khettra Natt Chowdhry, who were named as executrix and executor in the document propounded as the will. It was filed on the 5th May 1891. Three other persons named therein as executors did not join in the petition for probate, and a few days after that petition was tiled, Khettra Nath filed a petition on May 18th renouncing the office of executor.
3. Mohim left one child, a minor daughter, by his wife Rashmohini, a sister and a nephew, his sister's son, about 3 or 4 years old. He left two paternal uncles surviving him, the elder Tara Chand, an old man of about 80 years o1 age; the younger is Woomesh Chunder Biswas, the caveator, with whom according to the evidence, Mohim was on bad terms, although Woomesh and some of the members of his family visited Mohim during the illness of which he died, up to near the time of his death.
4. The will is in 12 paragraphs, and shortly provides as follows: (1) power is given to the wife to adopt sons from one up to two; (2) four executors and Rashmohini as executrix are appointed. They are to make over to the son who may be adopted by Rashmohini, the property that is to go to him when he arrives at majority, and to the daughter's son on his attaining majority, the property that is to go to him; (3) Mohim's daughter is to be married with customary display to be paid for out of income; (4) his sister, and after her death her son, is to receive Rs. 300 from the income annually; (5) his father and mother-in-law are to receive Rs. 5 per mensem; (6) of his moveable and immoveable properties which he has, and which he may hereafter obtain, or may obtain under the will of his uncle Tara Chand, one-half except his dwelling house at Bhabanipore, is to vest in his daughter and her son or sons, the other half in the adopted son, if any, be adopted; (7) if no son be adopted, or the adopted son, etc., should die, then his share is to vest in the daughter and daughter's children, in the absence of daughter and daughter's children their share is to vest in the adopted son, if any; in the absence of either, the entire estate is to vest in his wife, and in the absence of his wife, in his nephew, or any full brother he may have. (8) Gives a provision of Rs. 600 annually for his wife for the performance of her religious observances, and also maintenance for her; (9) states circumstances connected with a dispute between Mohim and his uncle Woomesh, states certain terms already settled by a pending arbitration, and directs the executors to carry out the arbitration; (10) provides that the wife is to use the house at Bhabanipore which is to go ultimately to the adopted son; (11) makes a provision of Rs. 300 for the marriage of his cousin Biprodas Biswas; and paragraph 12 is as follows: 'My hands are paralysed. 1 am unable to sign this will myself. I have read through all the terms of the will, and I have in sound mind signified my acceptance of them in the presence of witnesses and have had my name signed by the pen of Trailakha Nath Biswas, the scribe. This is admitted by me. Dated the 25th Falgoon 1297 B.S.'
5. The will, therefore, first, gives to Rashmohini, who propounds it, a more limited immediate interest than she would have on an intestacy; second, makes provision for an adoption which it would be natural that Mohim should be anxious to do; third, and thereby as well as by its other provisions, wholly excludes Woomesh from all hope of succession.
6. Khettra Nath, who was cousin and manager and trusted adviser of Mohim, and who, according to the plaintiff's case, was the person who was active in attending to the preparation of the will and in carrying out the arrangements for the execution of it, takes nothing under the will. He was made executor, but renounced before caveat was entered.
7. The petition for probate was filed on the 5th May 1891; on June 11th the caveat in the case was tiled by Woomesh.
8. Mohim was about 29 years of age. He was, according to Khettra Nath, a very intelligent man, a statement which was not denied. The grounds on which the will is disputed arise chiefly out of the circumstances and nature of the illness of which he died.
9. On the 12th Magh (24th January) preceding the date of the will, Mohim had an attack of paralysis, his right side became paralysed. On the 12th Falgoon his illness increased. On the 19th Falgoon, he had another fit. On the next day, Dr. Bepin Behari Chatterjee, an M. B. of the University of Calcutta, and one Jasoda Koomar Dutt, a native doctor (both of whom are witnesses for the defence), were called in to attend him.
10. The medical evidence for the defence is to the effect that Mohim was suffering from some 'syphilitic deposit in the brain, known among doctors as guminata.' The plaintiff's medical evidence seems rather to agree with this diagnosis. The words are those of the witness. Perhaps by 'deposit' he means 'tumour.'
11. After the fit on the 19th it was resolved to remove Mohim to Calcutta for treatment. Khettra Nath says that Mohim himself proposed this on the 20th. Some of the defendant's witnesses seem to put it as having been suggested after this, some two or three days before the 26th of Falgoon. The 26th was certainly the day fixed for the removal.
12. Dr. Bepin says he was opposed to the removal, the reason which he assigns for this being that the condition of the brain was such (the whole of the brain being diseased) that if the patient received any shock the probability was that he would got apoplexy. If he then entertained this apprehension, what took place showed that it was well founded.
13. On the 26th the attempt to remove the patient was made, and on that day, while he was being assisted or actually carried [as to which the evidence is conflicting] from his room for this purpose, he had another fit, after which the intention to remove him had to be abandoned. From that time he had little, if any, consciousness; and he died on the 5th Choitro (March 18th).
14. The will is said to have been made on the 25th Falgoon, the day before the attempted removal.
15. The lower Court found in favour of the will. The caveator Woomesh appeals. An objection was taken before us that he had no interest such as to entitle him to come in and dispute the will, but this point not having been taken in the Court below, we decline to entertain it.
16. The chief ground of argument in appeal related to the capacity of the alleged testator, supposing the form of execution of the will to have been gone through as alleged.
17. But besides the questions raised as to this, it was also contended that the whole transaction was surrounded with circumstances of secrecy, and of other grounds of suspicion, such as to cast doubt upon the whole story as to any execution at all such as alleged by the plaintiff, or at any rate such as to confirm any doubt of Mohim's testamentary capacity which might arise on the evidence, as indicating that those who put forward the will ultimately, did not believe that it was duly executed.
18. It will be necessary to refer at some length to the subject of testamentary capacity, even before deciding the question raised in the case, and in doing so to refer to some of the evidence; so that it will be convenient to refer to these points of suspicion later on, after some of the evidence has been touched on.
19. In argument before us it was contended for the appellant that the plaintiff was bound to show that Mohim was of sound and disposing mind at the date of the will, and that she had failed to show this; and further that, upon the whole evidence, not merely was there an absence of sufficient proof that he was of testamentary capacity, but the evidence actually showed that he was not capable of making a will at the time the alleged will is said to have been made.
20. In all oases in which, as in the present, the evidence is conflicting, it is the duty of a Court of Appeal to have great regard to the opinion formed by the Judge in whose presence the witnesses gave their evidence, as to the degree of credit to be given to it; and probably the advantage of hearing the witnesses give their evidence is of special value, where there is conflict between them as to the mental capacity of a person whose conduct they have observed and whose state of mind they depose to; for the original Court has not merely the better opportunity of judging of the truthfulness of the evidence, from the manner in which it is given, but also of judging how far the witnesses possess those qualities on which depends much of the value of evidence given in good faith, power of observation, of judgment, accuracy of expression, general intelligence, which are of special importance in cases of this nature.
21. One of the most serious difficulties in this difficult case arises from the limited scope of the issue as to testamentary capacity to which (as there is much reason to think) the Judge appears to have directed his attention, and which upon the conflict of evidence he decided in favour of the plaintiff.
22. It is necessary, in order to explain this, to refer shortly to the general scope of the story told by each side.
23. The plaintiff's story includes, first, what was done about the will before its execution; second, the narrative as to the execution of the will; third, statements as to the condition of Mohim before and at the time of execution, but chiefly as to his condition at that time. So far as it is necessary for the present purpose to refer to it, it may be taken from Khettra Nath's and Rakhal Dass's evidence; through Khettra Nath everything was done, and it is he who conducts the plaintiff's case. According to the evidence of Khettra Nath, the arrangements connected with the preparation and execution of the will were carried out by him in consultation with Mohim and with his authority. He says that the propriety of Mohim's making a will, having regard to his illness, was mentioned by some of his friends before the 20th Falgoon; it was not, however, until that day, after the second fit, that the preparations for the will were commenced. Ho says that Dr. Bepin said on that day, considering Mohim's state, there should be a will made. He says he told Mohim this; that Mohim said, 'Let a will be made, then I shall go to Calcutta;' that he and Mohim consulted that night; that on the 21st or 22nd he made a draft, which Mohim saw on the morning of the 23rd, and directed that it should be sent to be revised by Abinash Babu, the pleader at Meherpore; that he sent it to the pleader on the 24th by Tarak Nath (a witness in the case); that the pleader returned it by Tarak Nath on the same day; that on that night the draft was made by Mohim, and on the following day this draft was copied out in Mohim's presence by Trailakha Nath, the scribe [a blank for the name of the scribe had been left in the draft]; that the copy to be made was signed for Mohim by Trailakha Nath as his will, and by his directions, and was then at Mohim's request attested by the persons whose names appear as witnesses.
24. Part of the evidence of Khettra Nath in direct and cross-examination is as follows: 'I was present at the time of the execution of the will. The will was executed on the 25th Falgoon. I think it was executed 4 dandas before sunset. The will was executed in the house in which he (Mohim) used to sleep. Trailakha Nath Biswas wrote out the will from a draft. * * * Mohim saw the draft on the night of the 24th and he saw the original will on the next day. He read them. The draft he read in the night and the fair copy on the next day. Mohim requested Trailakha to sit in his room and write out the will. After fairing it out, he handed it over to Mohim, who said, 'I will touch the pen, you write my name.' Trailakha wrote his name accordingly. Mohim said to Shama Churn, who was among the witnesses present. 'Take it, and do all of you witness it.' First Trailakha made the signature, then he gave the will to Mohim, and he handed it over to Shama Churn, who read it out in the hearing of all the people. After that he signed it himself, and the others signed after him. Pran Chand, Tarak Nath, Mothura Nath, Rakhal Dass, Bhushun Chunder, Sree Nath, and Dino Math signed as witnesses. This is that will. This is the signature of Mohim which Trailakha wrote, and all these are the signatures of the witnesses. The witnesses signed their names in the presence of Mohim. The place where the witnesses signed their names was close to Mohim. When Mohim's name was written, the witnesses were present. * * Mohim touched the pen. Dino Nath Biswas gave the will to Mohim, after that Mohim gave me the will to keep. He was in full possession of his senses at the time. I put the will away in my own hand-box. Woomesh Biswas is my maternal uncle and Mohim's paternal uncle. Mohim had disputes about shares with him. * * * After Mohim's death, I make known the fact of the will having been made. He forbade us to make known the fact of the will having been made before his death. He forbade it that his uncle (jetha) might not know he was going to die, and that his enemies might not know about the will.'
25. In cross-examination he says: 'It took 10 or 12 minutes to read Mohim's will. That was on the night of the 24th. He read it to himself. He read it in a low voice. He did not ask to have any alterations made; it had been well drawn up. He lay on his right side in the night. He sat up on the next day, the 25th, and read the will. He could not write with his left hand. He could do other things. He could take his food and move articles about. He could hold the pen. We did not ask him to put a mark with the left hand, nor did we ask him to try and sign. Mohim asked all the people to witness the deed; all of them were not (his) servants. Shama Churn Biswas and Rakhal doctor were not (his) servants. Shama Churn is my brother-in-law. * * I think Rakhal and Shama Churn came to the assembly where the will was executed, 10 or 15 minutes before it was signed. I called and fetched them. I also called and fetched others from the cutcherry. Our cutcherry adjoins Woomesh's cutcherry. * * * I was careful that neither Woomesh nor his sons, nor anybody else, should know. I placed one Mohesh Ghose outside, and told him to apprise me if they wanted to come in. This I think I did 5 or 6 minutes before I called the witnesses. I only went once out of the assembly where the will was executed. Mohesh Ghose was close to the door of the room. He was coming to our room. I sent him away, asking him to see that the other party did not come. He did not ask what was going on. There were 8.'
26. It may be convenient to add a part of the evidence of Rakhal Doss, a physician who had attended Mohim before Dr. Bepin; and who is a witness of the will: 'Again I was called on the 25th Falgoon. Earn Churn told me a letter had been received from Bhabanipur [Mohim's residence]. Hence I and Earn Churn Pran Chand and Srinath started at 1-30 or 2 o'clock on the 25th Falgoon. We arrived at Mohim's house at 3 or 3-30 o'clock. After getting there we sat down in the verandah of the cutcherry. Khettra Chowdhry himself invited us in. I and Pran Chand, Khettra, Srinath, Mathura Biswas, and Dino Biswas went in and found Mohim lying down in a side room. I went and sat down on a chair near him. After taking my seat, I asked, 'How are you?' He replied,' I am somewhat better to-day.' Then I felt his pulse. Other conversation about the going do Calcutta for the purpose of medical treatment took place. He said, 'You will have to go with me.' It was settled that we were to go within two dandas of the next day. Shama Churn, Mohim, Khettra Nath, servants and I--these persons were to go to Calcutta. Those words were understood. There was distinctness. Some words I could understand after asking him two or three times. He had had a paralytic stroke; his right side was paralysed. Khettra said 'Mohim will go to Calcutta to-morrow, and he has made a will.' Trailakha put a paper on Mohim's bed. Khettra said, 'Raise Mohim and make him sit up.' He got up and sat. Bhushun made him sit up supported by a pillow. He read that paper. He held the paper in his left hand, and looked at it, and then requested Shama Babu to witness it. Shama Babu read it. After that Mohim requested Trailakha to write his (Mohim's) name. Trailakha wrote the name, standing by Mohim's side. Mohim could see it. Mohim then looked at the signature of his name. After that he said, 'Do you people sign your names as witnesses.' I also signed my name. This is that will. This is my signature. This is Mohim's name written. Mohim saw the witnesses signing their names from close. Mohim was in possession of his senses. Hearing him speak I thought his mind was in a good enough condition to make a will.'
27. Trailakha Nath's evidence is to the same effect. He does not witness the will. Besides Rakhal Dass, six of the other witnesses of the will are called, who give general evidence (some with particulars also) of Mohim's being in a condition to 'make a will,' although no doubt affected by his illness in respect of distinctness of speech and otherwise.
28. For the defence, Dr. Bepin and Jasoda, already mentioned, and also Woo-mesh the caveator, Hurrinath a gomasta, Paran Krishna Gangopaddhya and Nobin Chundra, servants of Woomesh, give evidence which is generally to the effect that Mohim was in such a state that he could not have made a will. They describe him as having been, when they saw him, in a state of almost complete apathy or stupor, from the time of the fit on the 19th up to the 25th, and unable to 'make a will.'
29. This evidence, particularly, of course, that of the two doctors, relates to the whole of the six days; but it is hardly going too far to say that, so far as it describes what the witnesses allege as to the period before and including the 25th, it is pointed chiefly, if not wholly, to Mohim's state on that day, as leading up to it, and as tending to show that-on that day Mohim could not 'make a will.'
30. This is the compendious expression used, as to Mohim's condition, by the witnesses on both sides, and by the Judge, and it is the use of it by them and by him, in the meaning which it is to be feared he attached to it, which constitutes a difficulty (we have to deal with) as affecting the value of the Judge's opinion upon the conflict of evidence in the case, so far as regards some of the questions which necessarily arise. The objections taken in the caveat are--
1. The caveator does not admit that the will was duly and actually executed.
2. The alleged testator was in such a state of body and mind on the date borne by the will that it was quite impossible for him to have executed any will.
3. Many fake statements are made in the will filed, and it is quite impossible that the late Mohim Chundra Biswas should have executed such a will in his senses and in a sound state of mind.
31. Nothing was made of this last point at the trial, so far as appears. Had it been pressed it might have led the defendant, however inadvertently, to go into the question whether Mohim was proved, or ought to be presumed, to have known and approved of the contents of the will; and in that case, we might have had something from the learned Judge on that subject, more definite than we can find in the judgment.
32. The Judge's summary of the questions raised by the caveat, and the issue framed by him, are as follows:
Grounds of objection.
1. Denies due execution of the will.
2. Denies physical and mental capacity to execute will on dates of alleged execution [the word dates must mean date].
3. Certain expressions in will which render execution improbable.
Issue.Was the will duly executed by testator according to law?
33. Now, no doubt this issue does raise all the questions which should be determined in the case, if the terms of it are properly understood. Dr. Lushington in delivering the judgment of the Judicial Committee in the case of Mitchell v. Thomas 6 Moo. P.C. 150 says:
When I use the term 'duly executed' I do not mean merely the technical sense of it, the fact of execution by the testator and the subscription of two witnesses as required by the Statute, but I mean by the term 'duly executed,' proof of execution which carries with it a conviction that the testator knew, and approved of, the contents of the instrument. This of course involves, in the proposition that the testator knew and approved of the contents of the instrument, the proposition that he was a free and capable testator, since knowledge implies his possession of the capacity without which he could not know the contents of the will, and approval cannot be real and complete without a free exercise of the will.
34. The judgment of the original Court is however chiefly, if not wholly, directed to the question whether on the 25th Mohim was in such a state of mind as to be able to authorize and to know that he was then authorizing the execution of the document as his will on his behalf, by Trailakha Nath, and the attestation of it by the witnesses. It was denied by the defendant that Mohim was in such a state of mind as to be capable of this. If he was not, the will was not executed at all. It was, of course, a vital issue in the case, and the Judge was bound to find on it. He decided it in favour of the will.
35. But there was the other question which certainly arose on the evidence, though it seems not unlikely that it escaped the attention of the pleaders in the Court below, and on which the Judge did not, as he ought to have done in this case, definitely express his opinion. That question is whether Mohim was able to know and understand the contents of the will and did know and approve of them.
36. It does not matter whether such a question was or was not expressly raised by the defendant. It lay on the plaintiff to prove that the will was Mohim's will. In ordinary cases execution of a will by a competent testator raises the presumption (sufficient if nothing appears to the contrary to establish) that he knew and approved the contents of the will. Also, under ordinary circumstances the competency of a testator will be presumed, if nothing appears to rebut the ordinary presumption. As the result of these two presumptions in ordinary cases, at least in many cases, proof of execution of the will is enough.
37. But where the mental capacity of the testator is challenged by such evidence as there is in the present case, the Court ought to find whether upon the evidence the testator was of sound disposing mind and did know and approve of the contents of the will. There is evidence in the case which, if believed, is perhaps enough to establish this : but the Judge has not pronounced, or at any rate distinctly pronounced, his opinion upon it.
38. In consequence of this defect in the judgment, it is desirable in deciding this appeal to draw attention to some of the rulings which bear on this class of cases.
39. The first of the two rules laid down in Barry v. Butlin 2 Moo. P.C. 482 is as follows: 'This onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator.' Later on at page 484 of the report, the judgment in that case lays down. 'In all cases the onus is imposed on the party propounding a will; it is in general discharged by proof of capacity and the fact of execution from which the knowledge of and assent to the contents of the instrument are assumed.'
40. In Cleare v. Cleare L.R. 1 P. and D. 657 Lord Penzance says, 'I hold it to be clear, since the careful decision in Sutton v. Sadler 3 C.B.N.S. 87 : 26 J.J.C.P. 284, that in all cases, whether through the medium of a presumption unrebutted, or of positive evidence to that end, the party who puts forward a document as the will of a testator, must establish the fact that the testator was competent to make a will when he executed it. This competency forms part of the proposition that the will was made. For if there is no competency, no testable capacity, there can be no will. We are of opinion that the testator's knowledge of the contents of his alleged will stands upon the like footing. That he knew and approved of the contents is a proposition implied in the assertion that a will was made by him. For if a man were to sign a paper of the contents of which he knew nothing, it would be no will; Hastilou v. Stobie L.R. 1 P and D. 64. That the testator did know and approve of the contents of the alleged will is therefore part of the burden of proof assumed by every one who propounds it as a will. This burden is satisfied prima facie in the case of a competent testator by proving that he executed it. But if those who oppose it succeed, by a cross-examination of the witnesses, or otherwise, in meeting this prima facie case, the party propounding must satisfy the tribunal affirmatively that the testator did really know and approve of the contents of the will in question before it can be admitted to probate.*
41. As to what constitutes a 'sound and disposing mind.' A 'sound mind' is the expression used in Section 46 of the Indian Succession Act. Illustration (A) to Explanation 4 of that section is framed on the law as long laid down in the English cases. It may be as well to refer to one or two cases on the subject, as in the present case it does not seem to have attracted the attention of the parties or of the Court. In Harwood v. Baker 3 Moo. P.C. 282 (290) the Judicial Committee says, 'But their Lordships are of opinion that in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard, but that he must also have capacity to comprehend the extent of his property and the nature of the claims of others whom by his will he is excluding from all participation in his property;' and later on their Lordships say, 'The question * * is not whether Mr. Baker knew when he was giving all his property to his wife and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.' If he had not the capacity required, the propriety of the disposition made by the will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question of his capacity.
42. This case is often cited as laying down the general test of capacity to be applied in such cases. It was greatly relied upon by the appellant before us. It is to be observed that in Harwood v. Baker, a state of facts existed of a kind to invite the vigilant attention of the Court. The will was made by the testator on his deathbed, in favour of his wife to the exclusion of the other members of his family; the disposition in the will being a total departure from the previously expressed intentions of the testator, and he being of an impaired capacity at the time from disease affecting the brain which produced torpor, and rendered his mind incapable of exertion unless roused. The will was executed five hours before the testator's death and two hours before he was found by his medical attendant in an unconscious and dying state.
43. A further passage in the judgment in this case will be referred to hereafter.
44. The general rule is thus laid down in Longford v. Purdon Ir. R. Ch. 75 (77) by Warren, J.--' A man is competent to make his will if he has sufficient memory and intelligence to be able to comprehend the nature of his property, to remember and understand the claims of relations and friends, and to have a judgment of his own in disposing of his property; * * if a man possesses this amount of memory and intelligence, he is a competent testator; if he is not able to perform the mental acts mentioned, then he is not a competent testator.'
45. In Sefton v. Hopwood 1 F and F., 579 Cresswell, J., said: 'It is not sufficient in order to make a will that a man should be able to maintain an ordinary conversation and to answer familiar and easy questions. He must have more mind than suffices for that. He must have what the old lawyers called 'a disposing mind;' he must be able to dispose of his property with understanding and reason. This does not mean that he should make what other people may think a sensible will or a reasonable will, or a kind will. * * * But he must be able to understand his position, he must be able to appreciate his property, to form a judgment with respect to the parties whom he chose to benefit by it after death; and if he has capacity for that it suffices.'
46. Another case like the last (it was a case tried with a jury) is that of Swinfen v. Swinfen 1 F. &. F. 584. It was an issue devisavit ve lnon sent by the Master of the Rolls. The marginal note may be taken as a sufficient summary of the facts of the case. 'At the time of the will the testator was in extreme old age and in the last stage of bodily infirmity, bedridden, utterly helpless and dependent on the care of the plaintiff (sole devisee of the reality) and of a nurse (the only legatee) and a physician, an attesting witness and an intimate friend of the devisee, her own attorney (another witness) having prepared the will upon instructions elicited by himself from the testator by interrogatories, they having a few days before represented him as quite incapable of managing his own affairs or taking care of his person, and it being admitted that two or three days before he was not competent to make the will, etc., etc.'
47. In charging the jury, Byles, J. said, 'The case for the defendant is that the testator's mind had been gradually decaying; it had become feeble and fatuous, so that at the time of the execution of the will, he was on that ground incompetent to make it; and that is the sole question in the case, whether he was upon the evidence competent.
To constitute a good testamentary disposition the testator must retain a degree of understanding to comprehend what he is doing-- to have a volition or power of choice; so that what he does really be his own doing, and not the doing of anybody else.
The faculties in those two great divisions, of the understanding and the will, must still exist. They have declined from their former comprehensiveness and vigour, they may be, and often are, on such occasions, weak and actually on the point of being extinguished; still though they may be as it were flickering in the socket, yet if they suffice to show the genuine and last behests of a rational creature, and a free agent, that is a good will in point of law. Wills are too frequently made by the sick and dying; the degree of understanding therefore which the law requires is such as may reasonably be expected from persons in that condition. It is not enough that a testator is able to answer familiar and usual questions. That has always been laid down. He must be able to exercise a competent understanding as to the general nature of the property, as to the state of his family, and as to the general condition and claims of the objects of his bounty, as to the nature of the instrument which he executes, and as to the general nature and general objects and the provisions which it contains; if he can do that, though he may be very feeble and debilitated in understanding, and be at the point of death, it is enough.
48. These observations are of importance. They do not qualify, indeed, they state, the rule already stated in the cases above referred to, but they are important as illustrating the manner in which it is to be applied, in that multitude of cases in which the testator's mind has been in some measure debilitated by illness, and the weakness which often comes before death and they were made in a case in which it is plain the learned Judge was himself of a different opinion from that which was adopted by the jury. The jury found for the will. Lord Romilly, M. R., refused an application for a new trial made on the ground that the verdict was against the weight of evidence, agreeing with the verdict arrived at: see Swinfen v. Swinfen 29 Beav. 148.
49. In connection with this, reference may be made here to a second passage in the judgment in Harwood v. Baker 3 Moo. P.C. 282 (313), which we said we would notice. At the close of the judgment their Lordships say, 'Now, if their Lordships had found from the other evidence that Mr. Baker had, while in a state of health, compared and weighed the claims of his relations, and had formed the deliberate purpose of rejecting them all in favour of his wife, but had omitted to carry that purpose into effect before the attack of illness, under which he died; and that during that illness he had acted upon that previous intention, and executed the will in question, less evidence of the capacity to, weigh those claims during his illness might have been sufficient to show that the will propounded really did contain the expression of the mind and will of the deceased;' and their Lordships then refer to the wholly different intentions entertained by the testator up to immediately before the execution of the alleged will, as casting the utmost doubt upon its containing Mr. Baker's real mind and will.
50. There is but one further quotation to make; it is from the judgment of Dr. Lushington in Darnell v. Corfield 1 Rob. Eccl. 63. After saying that he is not aware that the doctrine laid down in Barry v. Butlin 2 Moo. P.C. 482 (the first proposition in which has above been here referred to) differs from that formerly acted on, namely, in substance that proof of knowledge of contents of the will may be given in any form, and that the degree of proof depends on the circumstances of the case, he says that although in perfect capacity knowledge of the contents may be inferred, yet when the capacity is impaired and the benefit to the drawer of the will is large (a circumstance not arising in the case of this will of Mohim's), suspicion is strong and proof must be most stringent, and the Court must be satisfied of proof of knowledge of the contents beyond the proof of execution by the testator. And, he says, one ingredient--' the nature of the instrument executed, its simplicity or complexity, because when you are measuring the power of a weakened intellect the quality of the subject to which it is to be applied must always be an important test.'
51. The Judge therefore ought, under the circumstances of this case, in which the ordinary presumption of full capacity cannot be made, to have expressed his belief upon the evidence as to whether Mohim being a capable testator, did or did not know and approve of the provisions of the will which he executed.
52. It is necessary in deciding this appeal to deal with these questions: it is unfortunate that this must be done, without much assistance to be derived from any opinion formed by the learned Judge. The defendant's contention is, that the whole transaction of the alleged will was a pretence throughout: and he does not admit even that the assembly in Mohim's room at which the will is said to have been made, really met at all: or that the form of making a will, which at best is all that, as he says, could have taken place, was ever really gone through, as it would have been very difficult, if not impossible, that it should take place, without its being known either to Dr. Bepin or to Jasoda, or to Woomesh, and the members of his immediate family whose cutchery and place of residence are next door, and who were visiting during Mohim's illness : also that it is negatived by some express evidence.
53. But I think that, on the whole, the statements of the plaintiff's witnesses that the assembly did take place cannot be rejected. No doubt a considerable time would be taken in copying out the document which it is said was done in Mohim's presence. But it was not until that was done, that Rakhal and Shama Churn and Mohim's cutcherry people were called in by Khettra to attest the will; after that the proceeding, according to the plaintiff's story, did not take very long, and during that time, according to Khettra, Mohesh Ghose was outside on the watch to prevent any interruption. There was secrecy, and probably haste, in what then took place, and the air of deliberation given to the proceedings in the evidence of some of the witnesses is probably colouring. But we think the meeting did take place, and the execution did take place; whether as a mere form and pretence or not is of course a different question.
54. Great stress was laid in the argument before us, on the secrecy with which the thing was done, and on the fact that Rashmohini, as was argued, was shown to have denied at first that any will had been made.
55. I think the fact that the intention to make the will was avowedly concealed from the members of Mohim's immediate family does cast suspicion on the transaction. Khettra says, Mohim did tell his wife and sister on the 24th and 25th Falgoon. He is not corroborated by them : they ought to have been called to prove it, but for some reason or other no application to examine them was made until the plaintiff's case was closing. It was then refused as to the sister and granted as to the widow, with some limitation made in the order which will be afterwards referred to. In the result, there is no evidence from them that they were even told of the will by Mohim (nor, as will be noticed, any evidence from them as to Mohim's state of mind).
56. There was, therefore, complete secrecy, the persons made witnesses of the will being all servants of the cutcherry of which Khettra then was, and now is, the manager, except Shama Churn Biswas, Khettra's brother-in-law, and Rakhal (the physician).
57. The truth is that the whole transaction was (except so far as Mohim himself was, if at all, concerned in it) carried out by Khettra. On him, almost alone, the proof of its validity must rest.
58. As has been observed, under the will, he takes nothing, and therefore the rule that a will made for a testator by one who takes a large interest under it is regarded with much jealousy, and requires the most conclusive proof, does not in terms strictly apply. Still this case does wear the aspect, looking at all the facts, of a struggle between Khettra and Woomesh in which the continuance of Khettra's management probably depends on the will: although no doubt Khettra, on pressure brought to bear on him, he says by all the members of the family, including Woomesh, did renounce his executorship, he still preserves the management and carries on this case.
59. The reason assigned for the secrecy with which the will was made is that Mohim was anxious that Woomesh should continue his visits, still paid regularly by him, notwithstanding the quarrel. No doubt Mohim would naturally desire that such a mark of respect should continue to be paid him by so near a relative. On the other hand, if Mohim's condition was at all such as the defendant says it was, this secrecy might be explained by Khettra's knowledge that the family would protest against a will being made for him in his then state.
60. On the plaintiff's own case, Mohim's condition was obviously most serious, and having regard to this, and not with standing the reason for secrecy which is set up, I think that a will made under such circumstances must be regarded with suspicion, or at any rate with a vigilance requiring very clear proof of the mental competence of the testator at the time. We think that upon the evidence it does appear that Rashmohini was prepared at one time to dispute the will. This fact does not, we think, carry the case very much further. People are often quite ready to raise questions of fact without much justifica-tion if their interests seem to require them to do so: and very possibly her objection as to the number of the executors appointed, which is mentioned by her uncle Ram Tarak (whom I see no reason to discred it), may have led her to resolve to oppose the will on any grounds she could set up. It does not weigh for much, still so far as it goes, it tells against her knowing from Mohim that the will had been made, and perhaps against her belief that he could have made it; and is an additional, though not very strong, circumstance of suspicion in the case.
61. As to Mohim's condition during the days that elapsed between the 19th and the 25th and his condition on that day, the evidence for the plaintiff represents, him as being able to speak, and even to converse; but this evidence is couched in that summary and unsatisfactory form which is of such frequent occurrence in our Courts : and it is not for the most part sifted on this point in cross-examination.
62. We shall refer to the different statements of the witnesses, as to what they say he said, leaving aside Khettra Nath for the moment, whose evidence has been in part set out.
63. Trailakha Nath says: 'After writing out the will I handed it to Mohim for signature. He said, 'I shall not be able to write. Let me touch the pen; you sign my name.' '
64. Now, if this language were to be taken literally, we should take the witness to mean it to be understood that Mohim actually said this. But in our Courts witnesses, at any rate uneducated ones, very often put in the form of a narrative of a conversation in actual words that which they wish to convey as the general effect of what happened. It is a form in which they often express themselves without meaning to decide.
65. Here Trailakha Nath had just copied out the will. In the 12th clause the testator says he was paralysed, unable to sign, and has had his name signed by Trailakha Nath, the scribe. The draft from which Trailakha Nath had just copied left a blank for the name of the scribe who might be employed; and this he has just filled up with his own name. We do not think the man can mean that he went through the empty form of asking Mohim to sign, and Mohim through that of solemnly saying he could not do so, etc., etc. He may only mean that Mohim told him, by word or gesture, to sign for him,--it is impossible to say which. He says later on: 'Mohim said the will has been well drawn up * * *.' He further said to me: 'You must come to Calcutta.' He does not depose to anything else said by Mohim.
66. Shama Churn, who was called in with the cutchery witnesses to the will, and Rakhal, says, 'Rakhal asked him, 'How are you?' He said 'Well.' Shama Churn said he asked him about Calcutta. He replied, 'Yes, you people must go with me.' Mohim could speak, but indistinctly. The will is brought and put into Mohim's left hand. He opens it (why had it been folded up? How did he need to open it? It had just been copied). He gives it to Shama Churn and says, 'Do you people witness the will.'? Then he said Khetra Chowdhry asked Mohim to sign his name on the will. He replied, 'I shall not be able to write my name.' He said, 'Trailakha, do you write my name, bakalam. etc., etc.' Here it is not Trailakha, Nath, but Khettra, who solemnly asks Mohim to sign. Then Mohim says, 'The will has been well drawn up.' Then Mohim says, 'Khettra, take and keep it ' Dino, the last witness, having handed it to him.
67. In cross-examination he says Mohim said to Ram Churn, 'I have determined to go to Calcutta,' and to this witness, who says he sat down and talked to him about going to Calcutta, he said, 'I do not think the medical treatment here is good; I will go to Calcutta; I shall take Rakhal doctor with me.'
68. It was perfectly well known, by everybody, Woomesh included, and Shama Churn must have known, that Mohim was going to Calcutta (he was going with Mohim), why should Mohim be at the pains of announcing it thus? This does look like an attempt at colouring, to represent something like a conversation, although Shama Churn says that on this day 'the indistinctness had somewhat increased, but we could understand well.' Rakhal, the next witness, says that at 3 or 3-30 on the 25th (when he went to attend at the making of the will) he sat down and asked, 'How are you?' He answered, 'I am somewhat better to-day.' Other conversation about the going to Calcutta for the purpose of medical treatment took place. 'It was settled that we were to go, etc., etc., Shama Churn, Mohim, Khettra, servants and I,--these persons were to go. These words were understood, there was indistinctness; some words I could understand after asking him two or three times,' But it had all been settled before this, the letter taken by Tarak Nath to the pleader at Meherpur early the day before had announced it, yet all these witnesses say Mohim then announced it; afterwards he makes Mohim say, after the business of the will is over, 'Do you people sign your names as witnesses;' and in cross-examination that 'Mohim said to Khettra Chowdhry and to all of us, see that there is no row about this matter;--' that is the caution about secrecy.
69. Tarak Nath is the gomastha who was sent with the letter (Ex. 5) and the draft will to Abinash Babu, the pleader at Meherpur. He is the witness who corroborates Khettra as to Mohim's knowing of the draft of the will. He says, 'Khettra gave me a letter along with it (the draft) which I took and went. The letter was addressed to Abinash Babu. Mohim said, 'Take this letter and get the draft corrected by Abinash Babu and bring it back.' He said, 'There are four executors and my wife will also be executrix.' He further said, 'Rs. 300 is set apart for my wife's pilgrimage; it has to be made Rs. 600','--adding an injunction to Abinash to keep the will a secret.
70. He says that on the 25th Mohim asked him to copy out the draft. He asked Trailakha to copy it, and Mohim said, 'Very well, let him do it.' After this was done Mohim said, 'Raise me; I want to sit up.' Then after (Mohim's) reading it, Trailakha said to Mohim, 'Sign it.' Whereon he said, 'I am unable to sign, you sign my name,' etc. After the signature Mohim hands the will to Shama Churn and says 'Do you people become witnesses to the will.' Shama Churn reads the will, and then oddly enough Mohim asks, 'Is the will well drawn?' Shama Churn says 'yes' and the matter is then proceeded with. There is some slip here. He ought to have made Mohim ask the question before his signature.
71. This witness says he compared the will with Trailakha after it had been written out. When I was comparing it with Trailakha, Mohim was having a conversation with Shama Churn and Rakhal Doctor. What these persons say they heard Mohim say has been stated: they do not depose to any such conversation.
72. Pran Chand, another gomastha, says of the 25th: 'Mohim took the will in his left hand and began to look at it. Khettra said 'Please sign it.' The Baboo replied, 'My right hand is paralysed. I shall not be able to sign,' etc.; and that afterwards he said 'I have made this will, do you all sign it.''
73. Bhushun, the sudder mohurrir, and a cousin of Mohim, says Mohim asked Khettra to call in the people who were outside. When they came, he said 'I have made a will, do you subscribe your names as witnesses.' And then the will was handed to him. 'My hand is paralysed, you write my name.' He says he heard about the intended will on the 24th from Mohim. He says Mohim on the 26th spoke to Rakhal, Jasoda and Woomesh : told the latter that he was going to Calcutta still up to the last moment solemnly announcing it. Thereon Woomesh replied 'go.' Mohim said 'it will be settled how many days Rakhal will have to stay at Calcutta and how much he is to get.'
74. He represents Mohim as walking out (not carried) that morning, supported from his room, when the final fit occurred.
75. Mothura Nath, another mohurrir (who says that on the 26th Mohim came out by himself), says he stayed in Mohim's room during his illness: says they used to talk together every day, and Mohim used to give sensible answers. He does not say anything he heard Mohim say.
76. All these witnesses say that Mohim was in 'possession of his senses.'
77. This is very unsatisfactory evidence of the patient's condition. The question is, what mental state he was in with reference to the making of a will, his capacity for which is challenged by the defendant's evidence, and is rendered at least a matter for careful inquiry from the facts of his illness in the plaintiff's evidence itself. Paralysis on January 24th, an increase of illness on 23rd February, another and severe fit on the 2nd March, indistinct speech as stated by all the witnesses, increased by the 25th, according to Shama Churn, so greatly, that according to Rakhal Kaviraj, he had to be asked two or three times before his words could be understood.
78. Yet for the whole period of these six days there is nothing said by him deposed to, save as to his departure for Calcutta, or as to this will; as to the latter, no doubt, almost exactly the same two or three phrases are deposed to.
79. But from the persons who were near him for those days, there is nothing whatever save this, of proof, that he was of clear mind, as they say he was, and was able to speak, as these witnesses allege that on these two subjects he did.
80. No doubt Dr. Bepin says that after he was called in on the 20th he forbade any attempts to make Mohim speak. But then this is part of the case which he is called to support, viz., that Mohim was in a far more helpless state than the plaintiff's evidence will allow. The evidence of some of the plaintiff's witnesses just referred to would, if read by itself, convey the impression that Mohim's mind was quite alert, and his speech practically free, although a little indistinct and although he was physically weak and paralysed. If anything approaching to this was the truth, some proof of this might have been adduced, apart from the story common to all these witnesses, in which almost the same things are represented as said about the execution, and about going to Calcutta and nothing else whatever. The obvious comment on it is that they did not venture to leave this common ground because they were not stating what they remembered, but what it had been agreed should be said : a short story containing some easily remembered incidents of a kind which, if not closely enquired into by the defendant, would lead to a belief, on the part of the Court trying the case in Mohim's capacity.
81. Evidence of Mohim's state at this time ought to have been obtained from the females of his family,--his wife, his sister and apparently two aunts were actually in the house. Such evidence ought to have formed a principal part of the plaintiff's case. As is observed by Lord Romilly in Swinfen v. Swinfen, in a matter of this kind the evidence of persons familiar with him whose state of mind is in question, is of as high, or perhaps higher, value than even that of a medical man, who has not known him intimately before his illness. In the present case, if Mohim's state was as the plaintiff alleges, it seems impossible but that some of the large number of persons, including these ladies who were around him, could have deposed to communications with him during these six days. Whatever injunction as to silence was made was not, according to the plaintiff's own case, much observed; indeed Mathura Nath says he and Mohim used to talk together [he does not give particulars] every day. If this is to be believed, Mohim must have talked to persons other than this servant. We do not think this can be believed. We think a fair inference from the absence of evidence of this nature is, that such evidence could not be had from those best qualified to give it, if it could be truly given.
82. It is true that Rashmohini's evidence was apparently limited, by the order allowing her to be examined on commission to the point of her alleged opposition to the will, a limitation which appears to have escaped the recollection of the learned Judge when he gave judgment.
83. But there is nothing in this; the limitation was because the application came so late. The ladies of the family ought all to have been examined as part of plaintiff's original case or their not being so, explained. The plaintiff who propounds a will made under such circumstances as the present is bound to give the Court the most complete information for its guidance in its very difficult task, and must take the consequences if this is not done.
84. For the defence the principal witnesses are of course Dr. Bepin and Jasoda. Woomesh and the other three witnesses who saw Mohim, as they say, two of whom are in Woomesh's employ, and the third Hurrinath, a former servant of Mohim, is at variance with Khettra Nath about nikash accounts, must be treated as more or less partial witnesses. These last four represent Mohim's state as one very nearly of stupor. We should not attribute much weight to their evidence standing by itself. Hurrinath says expressly that in obedience to Bepin's orders he did not try to speak to Mohim from the 21st to the 26th. Pran Krishna comes to describe Mohim as ill and unconscious when spoken to; he did not speak, tears used to fall down from his eyes, etc. This witness does not remember dates, etc., etc. His evidence may contain the truth or not; it probably contains what he has heard. Nobin Chundra says he saw Mohim at 3 o'clock on the 25th, when he says he was lying back senseless. From that time until 8 that evening he says he remained there, and Mohim was unconscious. This is to disprove the whole story of the execution of the will on that afternoon. He says it was arranged to take him to Calcutta on the 25th. On the whole, this witness's evidence is of a sort that need not be much discussed. The Judge has not accepted it; and there seems no reason for regarding it as disproving the fact of execution.
85. Woomesh deposes to the same effect; that is, that from the time of the fit on the 19th or shortly after it, until the 26th, Mohim was unconscious, or so nearly so, that when shouted to he only showed some sign of having heard the voice; would state, but not with consciousness.
86. His evidence, too, is also directed to proving that the will could not have been executed. He says he went five or seven times to see Mohim, day and night, on the 25th, and that his condition was very bad.
87. Dr. Bepin, who knew Mohim before his illness, is the most important witness. He certainly attended Mohim from the 20th to his death. A suggestion made in the evidence of Trailakha Nath and of Tarak Nath that Bepin and Jasoda were dismissed from attendance before the time when the will was executed in contemplation of the departure for Calcutta, is against the rest of the evidence and need not be regarded, save so far as it may manifest a wish to get them out of the way, at. that time without foundation; in fact Bepin's attendance was constant. No doubt he speaks with some vagueness, which seems strange enough, as to his having been there every day. On the whole, the balance of evidence is that he was there every day. There can be no doubt that he had ample opportunity of judging of Mohim's condition. He says that for the first day or two Mohim replied to questions with great difficulty; after that he could not speak at all, but used to try and make sounds; after I had repeatedly shouted to him, he used to try and make a sound.
88. He says that after this Mohim got worse. In this he does seem corroborated somewhat by what has been noticed as said by Shama Churn and by Rakhal.
89. He admits that he suggested a will; this indeed is common to the case on both sides. He does not positively deny that he did so on the first day, as Khettra says he did. But he thinks it was not until two or three days after his first visit. His advice, he says, was only given with reference to the case of Mohim's getting better; for the patient was not then, he thinks, able to make a will (by which we think he must mean, able consciously and intentionally to go through the form of execution).
90. There is some little obscurity about this reasoning. That he should have been made to think of suggesting a will in case of Mohim's getting better, by observing, as he says he did, that he was getting worse, seems a little contradictory, though perhaps not seriously so. On the whole, I think the probability is that he suggested a will on the first day. Woomesh, who says Dr. Bepin attends professionally at his house, was against a will being made, when Bepin made the suggestion to Khettra in his presence, and probably he did not suggest it again. He says he only spoke of it once.
91. This suggestion is the only part of Bepin's evidence which at all favours plaintiff's case, and to some extent it does so.
92. Towards the close of his evidence he describes Mohim as only showing signs of attention when he spoke to him, after he had 'hammered' as he expresses it, and asked four, fire, or six times; and as then being unable to make a sign. We are disposed to attribute this evidence to the period after the fit on the 26th; at any rate, I am not sure it refers to the earlier period.
93. But upon the whole of Bepin's evidence it is clear that unless it is deliberately false, Mohim was in a state of great and increasing apathy amounting almost to stupor, certainly after the first one or two days which followed the fit of the 19th, and that he was not master of himself even on those two days.
94. Jasoda's evidence was given on commission which was granted during the examination of Bepin, whom he was to be called to support. We do not think that good ground appears for this, and evidence given in such a way is not satisfactory. He certainly was in communication with Bepin during the latter's evidence on the subject of it, which affects the weight of his evidence and in some measure that of Bepin too. We do not think he can be much relied on. In his direct evidence he says, 'During the first day or two, whenever he or others shouted to Mohim, he would answer indistinctly 'well.' If he were asked five, seven, ten or twenty times in a loud voice 'Are you well he would occasionally utter that word indistinctly.' But in his cross-examination, after he had been pretty briskly brought to task about his communications with Bepin, he said, 'One day he spoke clearly. I did not on any other day hear so as to be able to deny if he could understand and answer. Naturally I concluded that he could not. He spoke clearly for a day or two, after I first saw him. That was on the first or second day. When he replied clearly to my question, Bepin Babu was not present.'
95. He is not examined or re-examined as to what he means by 'clearly;' whether he refers to some monosyllabic answer given clearly, or to much more; indeed, one of the great difficulties in this whole case arises from the deplorable manner in which the witnesses on both sides were examined. But so far as this goes, it is somewhat in support of plaintiff's case as to the first day or two; save in this, he goes rather beyond Dr. Bepin's evidence.
96. Now, what the Judge has found, in favour of the plaintiff upon the conflict of evidence, amounts, we think, to this, that on the 25th Mohim had his senses sufficiently to know that what was being executed was to be his will, and to consent to and authorise it being executed for him. He uses the word 'consciousness' throughout. He does not seem to think either of volition or of intelligent comprehension. He points out that 'it is admitted by Dr. Bepin that Mohim had slight consciousness all along up to the 26th,' that during the first two or three days he could give intelligent answers to his questions, etc. It is also admitted that even when Mohim ceased to give any answers (that we understand to mean after the first two or three days) he could recognise people and shed tears when questioned. If Mohim was utterly helpless and lost all consciousness from the 20th to the 25th, he could not be made to sit though assisted by others, etc.
97. He finds that Mohim had consciousness,--in what degree he does not say. He means, we understand, that he was not in a state of stupor, a term applied to that partial loss of consciousness 'in which, for instance, a patient seems to be asleep but opens his eyes for a moment when spoken to and then relapses into his former state.' He does no more than find that he had so far a higher degree of consciousness than this, that he was capable of sanctioning the execution of the paper as his will.
98. This might perhaps, though it is doubtful, involve such an amount of capacity as is referred to in the final paragraph of the judgment in Harwood v. Baker above mentioned, where their Lordships refer to the case of a will made in pursuance of an intention deliberately formed in a state of health, and carried out in illness. There is nothing of the sort in this case as to previous intention, nor is the degree of capacity found, such as we understand their Lordships in that passage.
99. The evidence as to the preparation of the will, given by Khettra Nath and by Tarak Nath, which alone supports any case of knowledge and approval of the contents of the will by Mohim, must now be considered.
100. Khettra Nath says he and Mohim 'consulted' on the night of the 20th, after Mohim had been told what Bepin had said. He does not say what passed between them--whether Mohim said anything to him, or only listened to whatever he may have said,--except that Mohim mentioned the names of executors. He says in cross-examination, 'I do not remember whether I or Mohim spoke about the terms of the will.' That is a remarkable statement, and in my opinion is not seriously qualified in its effect by the correction and contradiction which immediately follows it; 'Mohim spoke about the terms. I gave my opinion. I did not myself suggest any of the terms.' We are disposed to believe as to this, 1st, that the correction is made on seeing that he had made a slip in the first answer, and that the correction which contradicts it is untrue; 2nd, that the first answer itself is untrue. It is impossible that he should have forgotten whether he or Mohim spoke of the terms. It is equally impossible that, if it was Mohim who did so, he should have at first forgotten that. The conclusion we draw is that he alone spoke of them to Mohim, that he at first tried to avoid a plump falsehood by saying he did not remember, and then seeing he had made a slip, told a plump falsehood to get out of it. To return to the earlier part of his cross-examination with which we have just been dealing, he says he made a list of the properties on the 20th which he does not produce. He made a draft from the list on the 21st or 22nd; and this draft Mohim saw on the 23rd. When he was getting worse, Mohim said to me I do not know whether what you have done will be according to law. Go and get it revised by the pleader of Meherpur.' I sent it on the 24th through Tarak Biswas. The draft came back on the night of the 24th Falgoon. It contained just an alteration here and there. What I wrote was there, but two conditions were added.
101. That ia what he says about sending Tarak Nath. That witness, called on the following 'day, expands it thus:
On the night of the 23rd Falgoon, it was suggested that a will should be made, and I was sent to Meherpur. On the morning of the 24th I went to Meherpur. A draft of the will was made. Khettra Chowdhry gave me a letter along with it, which I took and went. The letter was addressed to Abinash Babu. Mohim said ' Take this letter and get the draft corrected by Abinash Babu and bring it back.' He said there are four executors, and my wife also will be executrix. He further said ' Rs. 300 is set apart for my wife's pilgrimage ; it has to be made Rs. 600.' He further told me to ask Abinash 'to keep this a secret, that there may be no row.
102. He then describes his visit to the pleader, which I see no reason to doubt: says he came back with a draft from Abinash, which he gave, with the draft he had taken, to Mohim. This of course means to Khettra. This original draft is not produced-a very important omission.
103. In cross-examination he says, ' I am Mohim's gomastba at Dariapur, etc. What he told me orally was also written down in the letter. Mohim asked Khettra to mention in the letter two matters which had been omitted in the draft: that was why he wrote. He wrote the letter inside Mohim's rooms because it was to be delivered secretly.
104. Now if this be truthful evidence, how is it that Khettra Nath said nothing about it It is the only evidence save the one fact stated by Khettra Nath about executors, and that in cross-examination, to show that Mohim knew of anything that was in the will 'as drafted. Then, what can it possibly have meant Why should such a letter be written for such a reason A draft is sent containing at any rate instructions, it may be supposed from this evidence, that*Rs. 300 was the sum mentioned in it. Then why not alter the draft in place of writing a letter, and why write about the executors
105. The draft was there. If plaintiff had produced the draft, this evidence might perhaps be tested. As it is, the draft being not produced, the evidence is simply meaningless, and I cannot avoid the conclusion that it was devised to fill up a gap, which, on considering Khettra's evidence (which closed the day before this man was called), was found to exist there; namely, the absence of all statement in it of Mohim's knowledge of anything in the will This had not been thought of, as I conclude, when the evidence to be given by Khettra Nath in chief was considered. The part of the cross--examination to which we have referred, as to conversation between Khettra and Mohim about the terms of the will, drew attention to this defect, but too late to supply it in Khettra's evidence: so it was supplied the next day in Tarak Nath's, and in this childish manner. We do not believe this story of Mohim's conversation with this witness on the morning of the 24th.
106. Hurrinath Dutta, mohurrir of Abinash, produces the letter (Ex. 5) dated 23rd Falgoon. Abinash, he says, is unwell and cannot appear to give evidence ; and we must say be gives a very unsatisfactory account of that gentleman's illness as furnishing reason for his absence from the witness-box. He does not prove Ex. 5. But if it be that which Tarak Nath took to him, then nothing was said about either Rs. 300 or Rs. 800 in the letter, and Tarak Nath's story, as to Mohim's speaking of this matter, wants corroboration,-one might indeed gay is contradicted in that particular.
107. If this letter is genuine, there is one passage in it which invites explanation. The letter begins by mentioning the illness of the 20th, the attendance of Bepin, the intention to go to Calcutta, and then states the intention to make a will. 'Having regard to the nature of my illness, my relatives suggest that it is necessary that I should make a will. I have written to Nurrohurry Babu by post for a draft. But as it is doubtful whether I shall get it before I leave for Calcutta, I have got one made at home. It is doubtful whether it is according to law. You know what disputes there are with my co-sharers. You will send me such a draft as may be perfectly legal,' etc., etc.; then refers to the draft. We quote from rough translation. The letter is not in the paper book.
108. It does not appear from evidence, or from the letter, what this doubt was. Was it a doubt on the part of Khettra, the writer of the letter, conveyed, however, verbally by Tarak Nath, as to the validity of Mohim's will, if he made one in that state? About this we are told nothing. However this may be, this letter confirms us in the disbelief with which, without it, I should regard Tarak Nath's evidence as to Mohim's speaking to him. It is unfortunate that Abinash Babu did not give his testimony.
109. There only remains, on this point, Bhushun, who says Mohim told him on the 24th, after the will had been brought back from Meherpur, 'that it would be written out to-morrow.'
110. Upon the whole evidence I am wholly unable to say that the plaintiff has given satisfactory proof that the will propounded is that of a free and capable testator, or that there is any satisfactory evidence that Mohim knew and approved the contents of the will. We feel much doubt whether he was, on the 25th, in a condition even to know that a will was being executed for him, and to authorise this. But even if he was, we do not believe that, at the time when Khettra, says they consulted about it, he was in a state to consider, and to make a disposition of his property. Nor do I believe that at the time when Khettra says he showed him the draft, he was in a condition to consider it. Nor that, on the 24th he was in a condition to consider the draft prepared by the pleader. We wholly disbelieve that on that occasion (the 24th) he read it over to himself in a low voice, as Khettra ventures to assert; we do not regard the apparent contradiction of this which is in Mothura Nath's cross-examination. We disbelieve it, because we disbelieve that Mohim was capable of doing it. We think it would be idle to give any weight to the statements of the witnesses given in different places that Mohim read the will, such as might justly be given to the fact of reading by a person shown to be in a state of active intelligence. We do not believe that he did or could read it; we think that the evidence of Dr. Bepin, aided by the admissions of the plaintiff's witnesses, the history of the illness, and the circumstances of suspicion which arise in the case, lead to the conclusion, 1st, that Mohim is not shown to have had due testamentary capacity; 2nd, that the balance of evidence in this difficult case is, on the whole, to the effect that he had not testamentary capacity, and that there is no adequate proof whatever that he knew or approved of the contents of the will. It is distressing to be compelled to this conclusion. The will seems a proper one. The power of adoption given by it, one would desire, were it possible, to maintain. We have anxiously gone over this record several times for that reason, chiefly. But we think it would be impossible, without violating the principles of law repeatedly laid down for the guidance of Courts of Justice in such cases, to let this will stand. We cannot make a will for Mohim, or grant probate to a will that has been made for him and is not shown to be his will, however proper its provisions may be.
111. We think the appeal must be allowed, the decision of the lower Courts set aside, and the application for probate dismissed with costs.