B.N. Maitra, J.
1. The plaintiff is the alleged executor of the Will of one Kiron Sashi Dasi. He has alleged that on 15-5-1968 she executed a Will and appointed him executor. Then on 16-6-1968 she died childless at Gormi, P.S. Dum Dum. The beneficiaries of the Will are her brother's sons.
2. The defendants Nos. 5 and 6 contested the suit by filing a written statement. It has been alleged inter alia that she has no mental and physical capacity to execute the alleged Will. She was bedridden for more than six months before the execution of the alleged Will. She was under the supervision and care of the defendant Broja Bala Dasi. It was a forged and fabricated Will with a view to depriving her natural heirs.
3. The learned Additional District Judge rejected the plaintiff's contention and dismissed the suit by observing that the suspicious circumstances had not been removed. Hence this appeal by the executor.
4. It has been contended on behalf of the appellant that there are no suspicious circumstances. The learned Judge did not consider the contents of the registered sale deed Ext. B executed and registered by her on 17-5-1968. That conclusively shows that she had physical and mental capacity to execute the sale deed on 17-5-1968, which had been executed only two days after the execution of the alleged Will Ext. 2. The case has been proved by the evidence given by P.W. 2 Bijay.
5. The learned Advocate appearing on behalf of the respondent has stated that Kiron Sashi was about eighty at the execution of the alleged Will. She was a childless and illiterate lady. No relation was consulted when the Will was executed. The evidence of P.Ws. cannot be believed. The draft of the Will has not been produced. There is discrepancy as to who read out the contents of the alleged Will Ext. 2 to her. Further there is discrepancy regarding the date of execution of the alleged Will be-cause it appears from the Will Ext. 2 that there is an overwriting whether it is executed on the 1st Jaisthe or 2nd Jaistha, 1375 B.S.
6. It is true that presence of suspicious circumstances makes the initial onus heavy. It is in connection with Wills that present such suspicious circumstances that the decision of the English Courts often mentioned tests of the satisfaction of judicial conscience. This has been stated in the case of Barry v. Butlin in (1838) 2 Moo PC 480 and followed by Gajendragadkar. J. in the case of H. Venkatchala v. Thimmajamma reported in : AIR1959SC443 .
7. P.W. 1 Probodh was the alleged executor. He says that Kiran was his father's sister and after her husband's death she lived at Gorui. P.W. 2 Bijay Narayan says that the Will was written by P.W. Adhir in his presence and he was an attesting witness. He has been corroborated by P.W. 3 Adhir, who is the scribe. He says that he scribed the Will according to the instruction given by Kiran. It is true that there is discrepancy as to who read over the alleged Will Ext. 2 to Kiran. But this is a minor one and not a major discrepancy,
8. About non-production of the alleged draft of the Will the learned Advocate appearing on behalf of the appellant has referred to the latest case of Indubala v. Manindra Chandra reported in : 1SCR1188 to show that where there is no evidence to show that there was any invariable practice that the draft of the Will had to be preserved, that question was of no importance. Kiran Bala was an illiterate aged widow. A long time has expired and at this stage of the proceedings it is immaterial if the draft of the alleged Will was not produced,
9. Let us now turn to the evidencegiven by the objectors. D.W. 1 Narendra Das has stated that Kiran was not at Hoogly on 17-5-1968, though that statement is being belied by contents of the registered sale deed Ext. B executed by her on 17-5-1968. There her address has been given as Hooghly Jagudaspara. That document is very important because it was executed on the 3rd Jaisthe 1375 B. S. corresponding to 17-5-1968, that is, only two days after the execution of the alleged Will on 15-5-1968. In such circumstances, it has been rightly contended on behalf of the appellant that she had physical and mental capacity on 15-5-1968. This version finds corroboration from the statement of D.W. 1 Narendra Das, who has stated in his cross-examination that when that sale deed Ext. B was executed, Kiran was in sound mind. Of course he has stated that Kiran's house at Jagudaspara was not broken. It has been pointed out on behalf of the appellant that she had executed the registered kobala Ext. B on T7-5-1968 because her house at Jagudas-para had been razed to the ground. There is no manner of doubt that D.W. 1 Narendra Das is not at all a witness of truth. This is evident from the fact that the deed itself Ext. B reveals that both Narendra Das and Bhabendra Nath Das, sons of Panchanan Das, are the confirming parties to that document. The discrepancy about 1st and 2nd Jaistha is not material, as the English date was correctly written in the Will.
10. It is a simple Will, which contains no complications. There was a natural dispensation in favour of Kiran's brother's sons. She was residing there. It is, therefore, clear that the conscience of the Court has been satisfied that the evidence given by P.Ws. on this is acceptable. We believe this evidence and find that the disputed Will Ext. 2 was duly executed and attested, that Kiran Sashi had testamentary capacity at that time and it is not at all a forged and fabricated document.
11. The appeal is allowed. The judgment and decree appealed against are set aside and the suit is decreed. Let a probate be granted to the plaintiff-executor with a copy of the Will annexed.
12. There will be no order as to costs.
13. The records be sent down to the court below as early as possible.
14. I agree.