Banerjee and Wilkins, JJ.
1. This appeal arises out of an application by the respondent, Hem Chunder Lahiri, for probate of the will of the late Jibun Kristo Gossami, uncle of the petitioner's wife's father, by which the petitioner and his wife have been appointed executors.
2. The will propounded by the petitioner is dated the 20th September 1895, that is, about six months before the death of the testator. The application for probate was opposed by the appellants, Kunjo Behari and Debendernath Gossami, two of the nephews of the testator, mainly on the grounds that the testator-was not of sound disposing mind at the time the will propounded is alleged to have been executed, and that he was completely under the influence of the petitioner and his wife; and that the execution of the will should be held to have been brought about by coercion and undue influence.
3. The case was transferred by the District Judge, in whose Court it had been instituted, to the Court of the Subordinate Judge under the provisions; of Section 23, Sub-section 2, Clause (d) of Act XII of 1887. Upon the case being so transferred, an objection was taken on behalf of the defendants to the jurisdiction of the Subordinate Judge to try the case. The learned Subordinate Judge has overruled that objection, and upon the evidence be has held that the will propounded had been duly executed by the testator, and that it was not invalid by reason of any want of mental capacity on his part or by reason of the execution of it having been brought about by coercion and undue influence; and be has accordingly ordered probate to be granted upon security being given by the petitioner under Section 78 of the Probate and Administration Act.
4. In appeal it is contended on behalf of the objectors, first, that the Court below was wrong in holding that it had jurisdiction to try the case; and, secondly, that upon the merits it ought to have held that the will was invalid by reason of want of mental capacity on the part of the testator, and also by reason of the execution of it having been brought about by coercion and undue influence on the part of the petitioner and his wife.
5. It is further contended that the Court below was wrong in making the objectors bear their own costs, and that, having regard to all the circumstances of the case, it ought to have directed that their costs should come out of the estate of the testator.
6. In support of the first contention, it was argued that the provision of Act XII of 1887 that has been relied upon, applies only to incidental proceedings, such as those relating to the testing of security and the like, and that it does not authorize the trial of a probate case by a Subordinate Judge, jurisdiction to hear such cases being vested exclusively in the District Judge, and in the District Delegate where the proceeding is not a contentious one.
7. We are of opinion that this contention is not correct. Section 23, Sub-section 2, Clause (d), enacts that the High Court may, by 'general or special order'---we quote only so much of the section as bears upon the present case---'authorize any Subordinate Judge to take cognizance of or any District-Judge to transfer to a Subordinate-Judge under his administrative control, proceedings under the Probate Act, 1881, which cannot be disposed of by District Delegates.
8. The proceeding in the present case is one under the Probate and Administration Act (V of 1881), and is one which the District Delegate cannot dispose of having regard to the provisions of Section 52 of that Act. The case, therefore, comes clearly within the scope of Section 23, Sub-section 2, Clause (d). A slight contention was raised as to whether a probate case, where there is contention, can come within the meaning of the term 'proceeding' in Section 23, the argument being that such a case is really a 'suit' and not a 'proceeding'; but the very section of the Probate and Administration Act (Section 83) which says that a contentious probate case shall take as nearly as may be the form of a suit, itself describes the case as a 'proceeding.' There is nothing then in the language of Clause (d) of Section 23 of Act XII of 1887 to take the present case out of its operation and scope. And if one looks to the reason of the enactment, it becomes clear that it was intended to cover cases of this description.
9. The object of Section 23, as we understand it, is to enable a District Judge, in whose Court, and in whose Court alone, certain proceedings are ordinarily to he instituted, to transfer these proceedings under a general or special order of the High Court to a Subordinate Judge. In regard to probate proceedings, the District Judge may transfer them in certain cases to the District Delegate, hut then such transfer is limited to non-contentious proceedings only. As regards contentious proceedings, the only way in which a District-Judge may be relieved is by acting under Clause (d) of Sub-section 2 of Section 23.
10. We are, therefore, of opinion that the Court below had jurisdiction to entertain this case, and that the first contention urged on behalf of the appellants must fail.
11. We now come to the second contention raised before us. The learned Vakil for the appellants has very properly not thought it fit to raise any question as to whether the will propounded by the petitioner was signed by the testator. There h ample evidence to show that the will was signed by the testator and presented for registration by the testator on the very day it was signed. The contention of the appellants was mainly directed to showing that the mental condition of the testator was such that it ought not to be held that the execution of the will by him was an intelligent execution; or, in other words, that he was not of sufficient mental capacity to execute a will. And it was further contended that, as regards the execution of this will, he was entirely under the influence and guidance of the petitioner and his wife Promoda Sundari, the person to whom the whole of the testator's property has been bequeathed.
12. In support of this contention, the evidence of the witness Gopal Chunder Gossami, a medical practitioner, examined on behalf of the petitioner, has been relied upon as showing that the testator was not of sufficient mental capacity to execute a will; and other witnesses examined for the petitioner and for the objectors have also been referred to as supporting the statements of the witness just named.
13. Upon a careful consideration of the evidence, the conclusion that we arrive at is th s, that, though by reason of old age and disease aggravated by an accident that injured his leg, and the taking of opium to which the testator was very much addicted, his mental capacity was somewhat enfeebled about the time of the execution of the will, it cannot be said that he had not sufficient capacity to execute a will such as the one that has been propounded in this case. Their Lordships of the Privy Council observe in the case of Sajid Ali v. Ibad Ali (1895) I.L.R. 23 Cal. 1; L. R. 22 I. A 171: 'Even in cases where the mental faculties of the person affected have been greatly enfeebled by physical weakness, he may still be capable of devising and intelligently executing a will of a simple character, although unfit to originate or to comprehend all the details of a complicated settlement.' And then their Lordships say: 'Nothing can be more simple than the changes which were made by the will impeached upon the terms of the second will which it was intended to supersede.'
14. These remarks, we think, apply with full force to the present case. For we find that the will propounded is not the only will that the testator executed. Before that, he had already executed two wills. By one of them, dated the 27th September 1875, executed in favour of his wife, he left all his property absolutely to her, with power to her to adopt a son if she felt inclined to do so. Then upon the death of his wife, he executed a second will on the 14th December 1891, by which he bequeathed almost the whole of his property to Promoda Sundari, the legatee under the present will, and made certain provisions for the maintenance of the worship of the family idol, and for a few other matters of minor importance. And the only points of difference between this last-mentioned will and the one now under consideration, are the omission of a certain provision for the maintenance of Omesh Chunder Gossami, one of the nephews of the testator; a slight variation in the direction for the expenditure of a sum of Rs. 1,000 for the performance of the first sradh of the testator and the omission to make any binding provision for the worship of the (sic) idols. These differences are, in our opinion, of such a slight character (sic) they cannot go to show, as the learned Vakil for the appellants contends they do, that the present will was not intelligently executed by the testator, if the will immediately preceding had been really executed by him.
15. Their Lordships then considered the evidence and concluded.
16. Upon the whole then we are of opinion that neither the allegation as to want of sufficient mental capacity, nor that of coercion and undue influence, has been established; and that, on the contrary, the evidence clearly goes to show that the testator, though enfeebled in body and also to some extent in mind through old age and disease, still had sufficient mental capacity to execute this will.
17. Upon the question of costs, we are of opinion, having regard to a portion of the evidence at any rate brought forward by the objectors, which we must say is not true, that the learned Subordinate Judge in the Court below was right in making the objectors bear their own costs. He has shown sufficient consideration to the fact of their being the heirs-at-law of the testator, and, as such, persons interested in seeing that the will is duly proved, when he has exonerated them from liability to pay the petitioner's costs. The cross-appeal on this point has very properly been abandoned.
18. It remains now to dispose of the question relating to the costs of this appeal. Considering the fact that the judgment of the Court below, which is a very clear and a very strong judgment, was against them, we cannot say that the appellants are entitled  to be exonerated from paying the costs of the respondent altogether. At the same time, having regard to the fact that this appeal was argued by the learned Vakil for the appellants very temperately, and no point was unduly pressed before us, we think the assessment of costs ought to be moderate. We accordingly order that the appeal be dismissed with costs, the hearing fee being assessed at ten gold mohurs. The cross-appeal not being pressed is dismissed without costs.