D.N. Mitter, J.
1. This is an appeal from a decision of the Subordinate Judge of 24 Parganas, dated 19th September 1930, by which he granted probate in respect of a will of a lady of the name of Nitya Kali Debi. The will is said to have been executed on 25th May 1918 and was subsequently registered. The lady lived for nearly 11 years after the execution of the will, and died on 15th December 1929. The will is attested by a number of witnesses. Two of them were pleaders of Alipur Court and one of them was Dr. Satyendra Nath Roy a well--known physician of the city. The will is to be found printed at p. 50, part 2, of the paper book, and its provisions are to the effect that a small provision for maintenance should be left with regard to some members of the family of testatrix and the residue of the estate should go to the two daughters of her deceased brother, Sm. Malina Bala Debi and Sm. Latika Bala Debi. There is also a further provision for her son--in--law Dasarathi Mukherjee who is one of the executors to the Will. It appears that the husband of Nitya Kali Debi, Pashupati Ganguly died in 1890. He was practising as a Mukhtear in the Court of Alipur and amassed considerable fortune. After the death of Pashupati a dispute arose between Pashupati's surviving brother Mohendra Chandra Ganguly who was also a pleader of Alipur and Nitya Kali with regard to the joint estate and a suit for partition of the estate was instituted in 1909, and the partition suit resulted in a compromise.
2. It was arranged by that compromise that certain properties would belong absolutely to her and that she would be holding them as her stridhan. By her will she has made disposition with regard to her stridhan properties. The attestation and execution of the will have not been challenged before us in appeal. The only question which has been argued before us by Mr. Chakravarty is that the will was induced by undue influence by Dasarathi, who according to the recitals in the will was the person who was looking after her properties to a large extent and had benefited her in various ways. On this recital it was urged that Dasarathi was in a position of active confidence with respect to this lady and therefore the burden lay on the propounder of establishing the good faith of the transaction; In this connection reliance is placed on Section 111, Evidence Act, to support this contention. We have examined the evidence given on behalf of the propounder including the evidence of Dasarathi which show that no sort of influence was exercised by him over this lady in order to induce her to make the provision giving 1/3rd of the property she possessed in favour of Dasarathi. As a matter of fact the appeal has now been confined to those properties bequeathed to Dasarathi and it is said that probate should be refused with respect to the 1/3rd of her properties in respect of which there is a bequest in favour of Dasarathi. Our attention has been drawn also to the decision of their Lordships of the Judicial Committee of the Privy Council in support of the position that it is for the propounder who has taken the benefit of the provision of the will to remove any suspicion with reference to the execution of the will, and with reference to the due understanding of the will by the testatrix. It is said that the burden in the present case is more heavy because the testatrix is a lady advanced in years, weak in health and easily liable to be influenced by a person who was looking after her affairs.
3. It is rather unfortunate for the appellant that what has been elucidated in the evidence by the cross--examination of Dasarathi does not disclose any circumstance which would show that he actively participated in the matter of the execution of the will or in giving instruction in connection with the contents of the will. It is not suggested, as it was in the case before the Privy Council, viz., the case of Sarat Kumari Debi v. Sakhi Chand 1929 P 0 45., that a particular provision in favour of Dasarathi did not exist in the draft of the will. It appears from the judgment of the Subordinate Judge that a faint suggestion was made before him to the effect that the probate should be refused at least with regard to this portion of the will. The Subordinate Judge in his judgment rightly says this:
It has neither been made out that any part of the will need be deleted by reason of its being vitiated by fraud, coercion, undue influence or concealment of facts.
4. The question as to whether Section 111, Evidence Act, would apply to a case of will may be considered and possibly having regard to the general language of the statute the burden of proving the good faith of the transaction would lie on the propounder. In England there is a conflict of opinion on the point. See the remarks of Sir John Woodroffe in his commentary on Section 111, Evidence Act, in particular the last paragraph. But the language of the Indian Statute is general and we think Section 111 applies to the case of wills. We have examined the evidence, and having regard to the evidence in the case it is difficult to say that that burden has not been discharged. In this case we asked the defendant--appellant to show any evidence on his side which has been tendered in this case and which might show that any undue influence was exercised on the testatrix. No such positive evidence is either forthcoming. In these circumstances we have to accept the testimony of Dasarathi. Besides, the learned Judge of the Court below had an additional advantage of watching the demeanour of the witnesses and of seeing Dasarathi himself. In the absence of any evidence to the contrary we do not think that we should be justified in holding that the will is vitiated by undue influence. The result is that this appeal fails and is dismissed with costs--hearing fee 5 gold mohurs.
5. I agree.