1. This appeal is directed against a decree of the Subordinate Judge of Dacca by which he has granted to the respondent Letters of Administration with a copy annexed of the will alleged to have been executed and registered so far back as the 29th May 1873 by a lady named Tulsi Money. The evidence indicates that she died in 1874, but no application for Letters of Administration was made till the 13th September 1906. Tulsi Money had three sons, Kukuri, Rabi Das and Dwarka Nath. Dwarka Nath was apparently dead at the time of the execution of the will. Kukuri has subsequently died leaving a widow Nagani Dassya one of the petitioners. Rabi Das married thrice. By his first wife Kamini he had a daughter Brajeswari the second petitioner. His third wife was Binodini who is one of the objectors. Dwarka Nath had two sons Sonatan and Narayan Peari Money, the widow of Sonaton is the second objector. The proceedings have been contested substantially by the purchasers from persons who would take the estate upon an intestacy. The learned District Judge has found that the evidence although not very full establishes the genuineness of the will and this view has been assailed before us by the learned Vakil for the appellant on three grounds, namely, first, that as the loss of the original will has not been proved, secondary evidence ought not to have been received; secondly, that as the original is not forthcoming, the presumption arises that it was destroyed with a view to revoke the will; and thirdly, that the evidence is not sufficient to show that the requirements of Clause 3 Section 50 of the Indian Succession Act have been complied with.
2. So far as the first of these contentions is concerned, it appears that in the Court below an affidavit was filed on behalf of Nagani Dossya before the appellants were treated by the District Judge as necessary parties to the proceedings. In this affidavit it was stated that the will was in existence after the death of the testatrix, that it was in the custody of Nagani Dossya, that subsequently it was completely destroyed by white ants, and that, therefore, a certified copy had been produced. After the appellants were allowed an opportunity to contest the proceedings, no objection was taken on their behalf to the use of this affidavit nor 'was any suggestion made that Nagani Dossya should be examined either in Court or on Commission. We must take it, therefore, that this affidavit is part of the record and reliance may rightly be placed upon it. It is also clear from the proceedings in the Court below that no objection was taken on behalf of the appellants to the reception of secondary evidence of the contents of the will. The first objection, therefore, cannot be sustained.
3. So far as the second ground is concerned, it is clear from the affidavit of Nagani Dossya that the will was in existence after the death of the testatrix. In this view of the matter no question, of revocation by destruction arises. But it may be pointed out that even if this evidence was not forthcoming, the objection could not be sustained in view of the decision of this Court in the case of Anwar Hussein v. Secretary for State 31 C. 885. The second objection, therefore, fails.
4. The third ground, which is the substantial ground in the appeal, raises a question not quite free from difficulty, Krishna Prosad Shaha who is the only surviving witness to the will was examined in the Court below. He is an old man of 72, and had evidently not a very clear recollection of events which had taken place more than 32 years before. It is also fairly clear that his examination was not conducted with the care necessary in these cases, questions which might and should have been put to him were not apparently put, and in this matter we must observe that the learned District Judge was not quite as cautious as he might have been. Krishna Prosad, however, deposed that the will was executed in the presence of himself and of all in the assembly, and that the testatrix touched the pen of Kali Charan Chakravarty, the writer who then signed her name. In his examination-in-chief he stated that he could not remember who were present in the assembly, but in his cross-examination he added that Gopi Mohan, Kali Charan and he himself were present at the execution. The names of these person appear on the face of the instrument as those of attesting witnesses. He was not asked whether the witnesses signed in the presence of the testatrix, and, therefore, there is some force in the contention of the appellant that the evidence does not explicitly bring out facts sufficient to establish directly compliance with the requirements of Section 50, Sub-section (3) of the Indian Succession Act. At the same time the evidence taken as a whole does, in our opinion, indicate that the will was duly executed. The witnesses were all present in the assembly. The testatrix signed in their presence and so far as we can gather the witnesses must have put their signatures in that assembly. Under these circumstances, we think that this is a case in which the presumption arises, in the absence of evidence to the contrary, that the will was duly executed and attested. This presumption was applied in the cases of Lloyd v. Roberts 12 Moors P.C. cases at p. 165 and Wright v. Sanderson L.R. 9 Pr. D. 149. It was contended, however, by the learned Vakil for the appellant that this presumption was for more than one reason inapplicable in this country.
5. It was suggested in the first place that the presumption is applied in England because ordinarily there is in English wills an attestation clause. It is clear, however, that in England the presumption has been applied in cases in which there is no attestation clause. It is sufficient to refer to the case of Burgoyne v. Showler 1 Robertson 5 : 3 Notes of Gases 201 where it was pointed out that if upon the face of a will to which there is no memorandum of attestation there be signature of the testator at the foot or end thereof and the subscription of two witnesses, in the absence or death of the witnesses, the prima facie presumption is that the testator signed in the joint presence of the witnesses and that they subscribed in his presence. It was ruled in the same case that if the subscribing witnesses did not remember the facts attendant upon the execution of the will, the same presumption was applicable but that if the subscribing witnesses deposed against compliance with the requisites of the statute, the will could not be pronounced for, unless their evidence was rebutted by showing that the witnesses could not be credited or that upon the statement of facts, their memories were defective.
6. It was suggested in the second place that the presumption ought not to be applied in this country in view of the statutory provisions contained in Section 50 Sub-section (3) of the Indian Succession Act. In answer to this argument it is sufficient to refer to the decision of this Court in the case of Sibo Sundari Debi v. Hemangini Debi 4 C.W.N. 204 in which the presumption was applied and reliance was placed upon the decision in Wright v. Sanderson L.R. 9 Pr. D. 149. In fact the application of the presumption does not supersede the statute. All that the Court does is to presume from the circumstances of the case, compliance with the provisions of the statute. We must, therefore, hold that in the case before us the presumption is applicable.
7. It was further argued that the evidence as to the testamentary capacity of the testatrix was unsatisfactory and that as the burden was upon the petitioner to prove that the will was duly executed, as laid down by this Court in the case of Ameer chand v. Mohanund Bibi 6 C.L.J. 453 it must be taken that the burden has not been discharged. Reliance was placed in this connection upon the endorsement made by the Sub-Registrar in which he stated that the testatrix was seriously ill. But in the same endorsement, the Sub-Registrar stated that he found her in her senses. It must, further, be remembered that the testatrix was alive for about a year after the will had been executed. We must take it, therefore, that although the evidence is somewhat meagre, it is sufficient to establish the genuineness of the will. The view taken by the District Judge must, therefore, be upheld.
8. As regards the costs, it is quite clear that the appellants were justified in contesting the proceedings. Their costs, therefore, in the lower Court as well as in this Court, must come out of the estate. Subject to this variation the order of the Court below will be affirmed and this appeal dismissed with costs. We assess the hearing fee in this Court at two gold mohurs.