P.C. Mallick, J.
1. (First nine paragraphs not containing any point of law are not reported as being unnecessary for purposes of this report --Ed.)
10. The first question to be considered is whether the testamentary instruments in suit are tainted with suspicion. I do not consider the provisions of the will and codicil to be unnatural in the facts of this case. Putting myself in the arm chair of the testatrix, I feel that it was very natural that the provisions of the will and codicil would be as they are. As indicated before, the testatarix had very great love and affection for her step brother Gopinath and his family Had the lady died intestate the house would have devolved on her heir-at-law Lakshman -- her husband's sister's son then alive. Gopinath and his family would in such event have been thrown out from the house where they have been living for more than half a century. What is more natural for the loving sister to prevent this eventuality? On the other hand, Lakshman and his family are well off and never lived either with Adhar or the testatrix. They had their ownhouse to live in. It is therefore not at all unnatural for the testatrix to leave most of the house to her brother Gopinath. Nevertheless, in token of the recognition of the claim of Lakshman and services rendered by Lakshman in the past, she left a portion of the house to Lakshman though it must be conceded that the portion bequeathed to Lakshman is very small indeed. She remembered and made bequest in favour of every relation of herself in her father's side and husband's side some more some less. She made bequest of annuity in favour of the widows living with her. The only comment that can be made, and has been made, is that she did not provide for the residence of these widows. This might have been due to the trust the lady had in Gopinath and his children that they would never eject the widows with whom they have been living so long. I am therefore, apt to consider that the provisions of the will are very natural. It will not do for us to forget she had nobody else to whom she could be expected to bequeath this house. To grant probate to such testamentary instruments the conscience of the court is easily satisfied if satisfactory evidence is given in proof of execution and attestation of the instruments according to law. In the instant case, such evidence has been given as indicated above.
11. Mr. B.C. Mitra, learned counsel for the caveator, however contended that the facts proved in this case are bound to raise the suspicion ofthe court and once suspicion has been raised, probate will not be granted unless suspicion is removed. The facts relied upon to rouse the suspicion of the court may now be considered. On the evidence it must be held that the lady was very old. She was, in any event, above 80 years of age. I do not however accept the contention of the caveator that she was physically and mentally infirm due to old age or illness. It is proved beyond controversy that she herself went to the City Registration office to tender the will and codicil for registration. To mount the long stairs, to reach the City Registration office in the first floor is a convincing evidence of the physical fitness of the testatrix. There is also the evidence of all witnesses that she was not sufferingat all from senile decay and that she was mentally alert which evidence I accept. The internal evidence in the will itself of the disposition of the property convinces me that she had sufficienttestamentary capacity. The suspicion that might have been caused due to the old age of the testatrix has been removed by evidence of physical and mental capacity led by the propounder. The next fact to rouse the suspicion of the court is that the propounder is substantially benefited by the instruments and that he took active part in the matter of the preparation and execution of the testamentary instruments. Mr. Mitra cited the leading case of Tyrrell v. Painton, 1894 P. 151 and Barry v. Butlin, (1838) 2 Moo P. C. 480 and a number of other cases in support of his contention that if the facts are proved to the effect that the propounder is substantially benefited by the will and that he took active part in the preparationand execution of the will, the suspicion of thecourt would be roused. The facts proved in the instant case are bound to rouse the suspicion of the court and unless the suspicion is removed by the propounder by dependable evidence, he is not entitled to the grant. Ramesh along with his brothers are substantially benefited by the testamentary instruments though he is not the sole legatee. Ramesh denies that he had anything to do with the will except accompanying the lady to the Registration office. So also Bhabani and Manilal deny that Ramesh was not present at the time when instructions were given to prepare the will and codicil and there is no direct evidence in support of the case that Ramesh took active part in the preparation of the will and codicil. Nevertheless, Mr. Mitra contends that even though there is no direct evidence, even in the face of positive evidence to the contrary, the facts proved lead inevitably to the inference that Ramesh took some interest in the transaction. The Day Book entry shows that an agent of the testatrix called on the attorney to make enquiries as to whether the codicil was ready for execution. The name of the agent does not appear in the Day Book but it is proved at the trial that the agent referred to was Ramesh. Comment was made that the name of Ramesh in the Day Book was deliberately not mentioned by the attorney in order that Ramesh might not be proved to have anything to do with the will. This the attorney did as he was a friend of Ramesh and his family and he was a party in bringing into existence the fraudulent instruments. I reject this contention as being of no substance. I find in my experience, both in the Bar and in the Bench, that the name of the agent giving instructions to the attorney is seldom mentioned in the Day Book. I am, however, willing to stretch a point in favour of Mr. Mitra's client and to hold that Ramesh had something more to do than merely accompanying the testatrix in the Registration office both in the case of will and in the case of codicil. Mr. Mitra is therefore entitled to argue that some suspicion should be roused in the mind of the court and the propounder is not entitled to grant unless the suspicion is removed. Assuming that suspicion has been roused in law, it is the duty of the propounder to remove this doubt by leading evidence to the effect that the instrument referred to is the last will of a free and capable testarix. The court is required to be more careful and scrutinise the evidence of preparation and execution of the instrument. If there is convincing evidence on that behalf, the suspicion of the court is removed and the court is bound to pronounce in favour of the will.
12. In the instant case, the evidence of Bhabani is that the testatrix herself gave instruction not merely in respect to the pecuniary legacies and annuities but in respect to the immovable properties as well. I do not see any reason to reject this evidence. People when (sic) make a testamentary disposition make a disposition of the entire estate. In the instant case I see no reason why the testatrix should intend to make a will to provide certain pecuniary legacies and annuities only. The argument that she only intended to provide for the widows only is belied by the factthat over and above the widows, other relations of her husbands are made pecuniary legatees as well. The names in the slip wherein the instructions given by the testatrix were recorded by Bha-bani include the names of all relations of the testatrix on her husband's side and father's side except Gopinath and Lakshman. I find no reason of exclusion of these two relations, On the other hand, on the evidence before me I have no doubt that the testatrix was very much attached to her step brother and his family. Lakshman did some service to her in the management of her estate when she was out of Calcutta during the bombing scare. There is the express approval of the lady endorsed on the first draft in her own handwriting and her signature in the final draft as well. The sum total of these facts leads to the inevitable conclusion that the testatrix intended to make a testamentary disposition of the entire estate and that she did not intend to exclude Gopinath and Lakshman from her will. It is however clear that while she intended the other relations to be left with small pecuniary legacies and annuities, she intended to give the most valuable immovable property to Gopinath and Lakshman. As indicated before, there are reasons to give Gopinath the largest portion of the house. Gopinath had a large family and this family was in actual enjoyment of practically the whole house except the portion let out to tenants. On the other hand, Lakshman was well off and at no point of time did he side with Adhar and the testatrix. The evidence of Bhabani becomes very much acceptable not merely because it is corroborated by Manilal but also because it is consistent with proved facts and probabilities of this case.
13. I am invited to scrutinise the evidence as to instruction and preparation with care and to reject the evidence of Bhabani and Manilal on that point. It is contended that the lady never gave instructions as to immovable properties and the manner the same was to be divided and allotted to Gopinath and Lakshman. It is stated before that at the time when the will was finally approved the plan showing division of the properties as indicated in the plan did not come into existence. The final draft records that the bequest of the immovable property to Gopinath and Lakshman was as indicated in the plan. The plan admittedly not having been prepared then, the draft cannot be said to have been finally approved on that date i. e. on 20th May. It may very well be contended that before the preparation of the plan, the draft will could not have been finally approved- The plan intended to be annexed to the will, in my judgment, is the most important part of the will and so long as the plan is not finally approved, even though the draft is strictly in terms of the instructions given by the testatrix, it would not be complete. The evidence in the instant case is that the plan was prepared by Bhabani himself according to the instructions of the lady. The line of demarcation was indicated by the lady right at the beginning when instructions were given. Bhabani prepared the plan on that basis. There is force in the contention of Mr. Mitra that the 'lady could not have, and in factdid not, give instructions as to casement right appearing in the will. Bhabani himself admitted that no such instructions were given and he introduced these provisions to the easement right as being consequential provisions necessary to give effect to the intention of the lady as to the division of the property in the manner indicated. The plan does not appear to have been explained to the lady before the execution of the will. Evidence is that it was explained by Bhabani at the time of execution and there appears the signature of the testatrix in the plan itself. It was strenuously contended by Mr. Mitter, and in my judgment with reason, that not only no instructions were given by the lady as to the provision of easement but also the lady was incapable of understanding the provisions about easements of the will, so that even if the evidence of Bhabani is accepted the lady did not understand these provisions. The result, therefore, is that the testatrix executed the document without fully and properly understand ing the provisions as to the easement right. It must therefore be held that it was not a proper execution and the instrument cannot be considered to be the last will of the lady as to the disposition of her immovable property.
14. I do not think that this contention of Mr. Mitra is right. The lady intimated to Bhabani that she wanted the front portion of the house to be given to Gopinath and the back portion to Lakshman and she indicated the line of demarcation. Bhabani was instructed to prepare a testamentary instrument to give effect to her intention. The testamentary instrument was intended to have a plan annexed indicating the division of property and its allotment. The attorney, in my judgment, was impliedly authorised to make such provision in the instrument as to easement rights as between divided parts to ensure quite enjoyment of the share of each legatee. The testatrix left all technicalities of law in the hands of the lawyer and the lawyer was justified in introducing the easement provisions in the will even though he was not expressly asked by the lady to do so and even though she could not understand these provisions. The failure on the part of the lady to understand the provisions as to easement does not mean that the instruments propounded do not represent her will as to the bequest made about the immovable property. She wanted the house to be divided into two parts and the division could be effected by drawing a line at the point indicated. I find that the division has been effected accordingly and the lawyer entrusted to do the division thought fit to make provision about easement rights which might be beyond the understanding of the testatrix . In my judgment, this inability, to understand the provisions as to easement right does not matter and certainly does not vitiate the will. There are authorities for the proposition that when the testatrix is able to give to the lawyers the outlines of the manner in which the estate is to be disposed of and was able when the lawyer's efforts were read out to him (her ?) to understand that the instructions of the will had been complied with, the requirement of a valid will is complied with, Reference has been made on the point to the decision of Bombay High Court in the case of Gordhandas Nathalal v. Bai Suraj, reported in AIR 1921 Bom 193 and the cast of Ganaoatrao Khanderao v. Vasantrao Ganapatrae reported in AIR 1932 Bom 588. In the first case of Gordhandas Nathalal, AIR 1921 Bom 193 Macleod C. J. in delivering the judgment made the following observation at p. 194 of AIR 1921 Bom;
'It is well settled now that it need not be proved that a testator, in order that his will may be found good by a court, was in a perfect state of health, or that his mind was so clear as to enable him to give complicated instructions. It is sufficient if it is proved that he was able to give the outlines of the manner in which his estate was to be disposed of, and was able, when the result of the lawyer's efforts was read out to him, to understand that his instructions in the main had been complied with.'
15. Reference was also made to a decision in the case of Smt. Kusum Kumari Dassi v. Satishen-dra Nath Bose decided by a Division Bench of this court and reported in 13 Cal WN 1128.
16. In the instant case I find that the instrument propounded represents the last will of the testatrix as to the disposition of the entire estate including the immovable property. Her intention about the division of the house has been carried out when it was lead out and explained to her at the time of execution, she understood that her instructions have been embodied in the instrument even though she was unable to properly appreciate and understand the easement rights recorded in the instrument.
17. Mr. Das cited the decision of the Judicial Committee in the case of Sm. Sarat Kumari v. Sakhi Chand, reported in 33 Cal WN 374: (AIR 1929 PC 45) in support of his contention 'that even if it is held that no provision as to easement right was included in the instrument without instructions and the testatrix signed the instrument without understanding it, the instrument is not vitiated in toto. The court should grant probate to the will except the portion dealing with easement right. In the view that I have taken, it is not necessary to further consider this contention of Mr. T. P. Das.
18. For reasons given above, I pronounce in favour of the will. The caveat is discharged and there will be an order for grant as prayed for.
19. The propounder's cost as between attorney and client will come out of the estate. The Cost of the caveator assessed at Rs. 200/-will also come out of the estate. Certified for twocounsel.