1. This is an appeal from a decree of the District Judge of Mymen-singh dated 25th May 1931, by which he granted what is described in the decree as letters of administration of a lost will. It appears that one Gopinath Biswas who was an aged and practising Muktear of Netrokona is said to have executed a will a short time before his death. The testator died on 26th September 1923. The will according to the case of the proponent was executed some time in October 1914. It was registered in the Local Registry Office as will appear from the paper which although not exhibited was filed along with other papers with the application for grant of letters of administration. That paper was one of the un-exhibited documents and has been printed in the last two pages of part II of the paper book. Unfortunately the Registration Office was burnt and we have not got a copy of the certified copy of the will. The case of the proponent is that the testator retired with his wife to Benares in November 1916. Along with him went his daughter Brajabala one of the objectors to the granting of the letters of administration and his son-in-law, Debendra. The testator is said to have returned in 1917 and as has already been stated died in 1923. It is significant that the present application for letters of administration was not made till 21st December 1929.
2. The objectors to the granting of letters of administration really raised two contentions before the learned District Judge. It was said in the first instance that as the will was not traced after the testator's death and could not be found the presumption is that the will must have been revoked by the testator. The second contention in opposition to the granting of letters of administration was that the oral evidence which had been given regarding the terms of the will is not such as should have been relied upon by the learned District Judge. After taking the evidence of both sides the learned District Judge has' over ruled the objections of the objectors and has granted the letters of administration and it is against that decree that the present appeal has been brought.
3. The first question which we have to consider in this appeal is as to whether on the evidence it has been established that the will was found after the death of the testator Gopinath and in the second place we have to determine whether all the evidence which the District Judge has relied on for the determination of the contents of the will on oral evidence was sufficient. With regard to the first point the learned District Judge has relied on the evidence of the proponent of the will viz., the widow of the testator and a number of witnesses to whom, it is alleged, she complained that shortly after the death of the testator the will had been taken away by her son-in law, Debendra. It is to be observed in this connection that Debendra did not live long after the death of the testator. He died on 6th January 1925; and the evidence on which reliance has been placed by the learned District Judge with regard to her complaint that the will was taken away by her son-in-law consists of testimony of a number of witnesses. With regard to the evidence of the witnesses to whom she is said to have made the complaint it may be mentioned that one Kamini Kumar Sinha whose evidence is to be found at p. 51 of the paper-book states that he heard the complaint five or six months after the death of Gopinath. It is pointed out on behalf of the appellants that this evidence contradicts the evidence of the widow as to the time when this complaint was made for it is the case of the widow that complaint was made to this witness only a few days after the death of the testator and even before the Sradh of Gopinath was performed. With regard to the other witnesses who speak to the complaint they all put it some time within one year of the death of the testator. It has been rightly complained on behalf of the appellants that such a testimony should not be admitted in evidence. It is said that the evidence of the complainant if made within a short time after the death of the testator might be admissible on the ground of such evidence being res gestae, but no such ground exists admitting the evidence of witnesses to whom complaint was made long after the death of the testator.
4. We are of opinion that the evidence of such witnesses may be discarded on that ground. But apart from that, even assuming that such evidence can be taken into account, they really are contradicted by the very important statement which is said to have been made on behalf of the widow in the certified copy of the petition filed on her behalf on 12th January 1926. This petition which is to be found at p. 37, part 2 of the paper book contains in para. 2 a very important statement on the question as to whether the will was traceable after the death of the testator. She states this:
The late Gopinath Biswas executed a will before his death, but the same not being traceable as yet though searched for, and there being no probability of the same being found out, petition is made for certificate on the present claim. The deceased has left no other heirs.
5. This shows that the widow has now come forward with a new case that the will is not traceable and that Debendra had taken it away. One would have expected that in this petition, filed a short time after the death of Debendra, when she was filing this petition there was nothing to prevent her from stating that the will was found after the death of the testator but could not be produced because it has been taken away by Debendra and had been secreted by the son-in-law against whom allegations of ill-feeling are made in the present petition. In these circumstances we are of opinion that the evidence does not satisfy us that the will was traced at the death of the testator.. In addition to this we have to point out that in . the application for mutation of names which is to be found at pp. 50 to 52 of the paper book the widow Nrityamoyi applied to be registered as the proprietress 'holding life-interest by inheritance' and wanted to be substituted in place of her deceased husband, the late Gopi Nath Biswas. There is no mention whatever of her getting this property on the basis of any bequest. It is further to be noticed that her case is that this will was kept in a box along with other documents and yet we have been shown by the learned advocate for the appellants that a number of documents which have been produced in this case and on which she relied were kept in the same box. This circumstance discredits the story that the will was in the box which contained other documents also. In this view seeing that it could not be established that the will was found at the death of the testator the ordinary presumption arises that it must have been revoked by the testator. In this connexion reference may be made to the case cited at the bar of Allan v. Morris-son (1900) AC 604 decided by their Lordships of the Judicial Committee where the following observations were made by Lord Davey who delivered the judgment of the Privy Council:
It was not denied that there is a presumption, to use the language of Lord Wensleydale in Welsh v. Phillips (1836) 1 Moo PC 299, that if a will traced to the possession of the deceased and last seen there is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect unless there is sufficient evidence to rebut it. Whether this should be called a presumption of law or fact does not seem material. It may of course be rebutted, and, as said by Cockburn, C. J., in Sugden v. Ladst Leonards (1876) 1 PD 154, the presumption will be more or less strong according to the character of the custody which the testator had over the will.
6. It would appear that in this case the will was last seen at Benares where according to the case of the proponent the will had been taken by the testator when he went there with his wife, daughter and son-inlaw. One of the reasons which has been suggested as to why the will was taken away by Debendra is that there was considerable ill-feeling between Debendra and the testator when he (Debendra) came to know of the contents of the will, which is said to be a will giveing complete proprietary interest in favour of Nrityamayi and power to adopt five sons in succession. Our attention has been drawn to a number of letters which are proved and admitted to have been written by the testator to Debendra which would go to show that there was abundant good-feeling between the father-in-law and the son-in law. Reference may be made in this connexion to some of the letters which were printed in the paper-book at or about the time of the execution of the will. It is not necessary to refer to these letters in detail. It is sufficient to state that the letters satisfy us that there was much good-feeling between the testator and the son-in-law. A number of witnesses have spoken to the circumstance that after the death of the testator feelings between the mother in-law and the son-in-law were strained for some time and sometimes they were on the best of terms. This evidence has been relied on for the purpose of showing as to why an application for letters of administration was nob made earlier. Be that as it may it seems somewhat singular that, even if the feelings between the father-in law and the son-in-law were such as has been alleged on behalf of the proponent, that should be any reason for disinheriting the daughter and the daughter's son.
7. The contents of the will, as we shall discuss presently show that the will, in so far as the daughters and the daughters' sons were concerned is inofficious as they were disinherited. The will was also an unregistered inofficious will and the alleged contents have to be scanned carefully before it should be given effect to. We now proceed to deal with the other issue in the case, namely whether the evidence which has been given on behalf of the proponent of the terms of the will is sufficient to satisfy the conscience of this Court that those were the contents of the will of Gopinath. A number of witnesses have been examined and it is said that they are all witnesses of respectability. The learned District Judge has relied on their testimony and there is evidence even on behalf of the objectors to show that they were men of respectability. But is to be noticed that it is a rather singular coincidence that some of the important witnesses to the will are witnesses to a kabuliyat which was executed by one Mahim Chandra Sen in favour of Nrityamoyi Dasi and dated 10th September 1928. It was the contention of the objector that it is after this kabuliyat of 10th September 1928 was granted where for the first time an assertion was made that Nrityamoyi was the heiress of her husband as also the successor to his properties by purchase and bequest with the right of gift and sale that the idea was conceived of setting up a will. This indeed is a very important circumstance and has to be considered in determining the credibility of these witnesses. It is also to be borne in mind that the witnesses were speaking of an event which happened nearly 17 years before the death of Gopinath and no good reason has been given as to why the witnesses should remember the contents of the will at such a distant date. On the other hand it appears that some of the witnesses have not even seen the terms of the will.
8. As has been pointed out already in connexion with the first point the case of the widow regarding the contents of terms of the will as spoken to by the witnesses is inconsistent with the lady's own application with regard to the matter in the Land Registration Office where she distinctly said that she was possessing the life interest of a Hindu widow in respect of her claim to her husband's properties. It is to be noticed that the application was filed by Sashi Kumar Chakravarty a pleader who is said to be one of the witnesses to the will ; and the suggestion which is made by the learned advocate for the appellant is that the idea of setting up this will was really conceived of for the first time when Sashi appeared on the scene and that the application, Ex. B, was made in 1926. An indication was given in the said application that there was a will which was not traceable. It also appears that some of the witnesses to the will were not on good terms with Gopinath and complaint is made and rightly made that it is not likely that these witnesses who were inimically disposed towards Gopinath should be called as attesting witnesses to the will; and the suggestion is that the real attesting witnesses were not called. It has already been pointed out that if we compare the names of the witnesses as given in the ijara for Rs. 200 with the names of the witnesses who have been called to prove the will-it will appear that they were all interested parties as they baa to support this ijara and it could only be effective if Nrityamoyi had an absolute interest in the property as it was set up in that document. For the respondent comment has been made that even if she had no absolute interest in the property as the ijara was only for a term of nine years it was one which she Could grant as it would be good for her life-time. The point is that in that document a statement is made to the effect that she had an absolute right in the property. It is very difficult at this distance of time to rely on loose statements based on the recollection of the witnesses with regard to what was contained in a will made several years before the death of the testator. In this connexion it would not be inappropriate to refer to a passage from the decision of their Lordships of the Judicial Committee in the case of Edward Francis Woodword v. Ebrabeth Goulstone (1886) 11 AC 469. Lord Hersohell, L. C., said this at page 475 of the report:
Now I cannot but be alive to the extreme danger of establishing a will merely by parol evidence,of its contents. The legislature has endeavoured to safeguard the interests and rights of testators by requiring that the expression of their testamentary intentions shall be authenticated in such a manner as to leave no doubt, if possible, that the Court has before it that which really expresses the will and intention of the testator. It is not enough that it is in his own handwriting; it must even if in his own handwriting, be authenticated by witnesses who must be present and see the testator sign, and must sign in each other's presence. But if upon mere loose statements of the recollection of witnesses as to what has been said to them at some time or other, you were to grant probate of, and to establish as the will of the testator, something which no one had ever seen or purported to be able to depose to from recollection, it seems to me that you would be doing that which would be in the highest degree dangerous, and the more so when those statements are statements of witnesses (and one knows how fallible human memory is even when there is no interest to bias it) who have the strongest possible interest in remembering what they remember and in forgetting what they forget. I think therefore that in order to support a will propounded, when it is proved by parol evidence only, that evidence ought to be of extreme cogency, and such as to satisfy one beyond all reasonable doubt that there is really before one substantially the testamentary intentions of the testator.
9. Keeping these observations in mind we are of opinion that having regard to the character of the evidence, having regard to the witnesses deposing to the events which happened 17 years ago, having regard also to the fact that there is no special reason for these witnesses for remembering the contents of the will, having regard further to the fact that one of the these witnesses made statement of including a provision with regard to a bequest in favour of Lord Biseswar which has not been spoken to by other witnesses, and having regard also to the fact that the will excludes the daughter and the daughter's sons, we do not think that we should be justified in granting probate or letters of administration on this oral evidence. We are also alive to the circumstance that the learned District Judge had the advantage of examining the witnesses himself which we have not. Considering all these circumstances and probabilities of the case and the facts to which we have already referred we are of opinion that it has not been established that the contents of the will were as alleged and the order directing grant of letters of administration of the will should be set aside. The result is that this appeal is allowed. The order of the Court below granting letters of administration is set aside. The respondent must pay to the appellants all the costs incurred by them both in this Court as also in the Court below, The hearing-fee of this Court is assessed at five gold mohurs.
10. I agree. I cannot place any reliance on the evidence on which the petitioner relies to establish the contents of the will. As my learned brother has pointed out, the learned Judge had the advantage of seeing the witnesses himself, but the circumstances which have led us to reject their testimony are in no way connected with their demeanour in the witness box.