Charles Chitty, J.
1. This is an appeal by Nagendra Nath Mukerjee against an order of the District Judge of the 24 Pergannahs refusing Probate of the Will of the petitioner's wife Raja Bala Debi. The lady died on 3rd May 1917. The Will propounded by the executor is said to have been executed on 8th April 1917 a little less than a month before her death. The caveat was filed by Sarat Kumari Debi, the only daughter of the testatrix who herself is a widow with one son and two daughters, all under age. The petitioner presented his application for Probate on 7th June 1917, so that there was no delay in that proceeding after Raja Bala's death. The contest between the father and his daughter has really reference to a suit which is pending and which was brought by Raja Bala and her mortgagee Kumar Arun Chandra Singha in 1916. Raja Bala had purchased a two-thirds share in a property known as Thakur Mahasay's garden in 1912 and in 1914 she granted an usufructuary mortgage of it to Kumar Arun Chandra Singha to secure Rs. 3,000. The Will has reference almost entirely to this suit and the property with regard to which that suit was brought. Indeed we are told that except for a few ornaments left by Raja Bala, which ornaments the caveatrix says that her mother gave her before her death, it does not appear that the lady died possessed of any other property. In her petition of objection the caveatrix maintained throughout that the Will propounded by her father was never, in fact, signed by her mother or executed by her as her Will. She did in paragraph 6 say that the alleged Will was not and could not have been executed by Raja Bala of her own free will and accord; but her case being one of forgery, no issue was raised except as to factum of execution of the Will and the learned District Judge in commencing his judgment says that the case of the caveatrix would appear to be that the Will was not duly executed by the deceased. He only raised one issue. Is the Will propounded the last Will and testament of Raja Bala Debi and was it validly executed by her? Ho came to the conclusion on the evidence, and this finding is not now disputed, that the Will was signed by Raja Bala Debi on the date specified and was duly executed in the sense that it was attested by two witnesses and that the formalities necessary for the execution of a Will were duly observed.
2. The learned Judge then proceeded to consider a point which was not raised in the written statement or in the issues, namely, whether Raja Bala was of free disposing mind at the time when she executed this Will. It is perfectly true that the Court must be satisfied on all points regarding a Will before it can direct Probate of that Will to issue; but in coming to its conclusion the Court must proceed on the evidence upon the record and have due regard to the contentions of the parties. Here it is in evidence and it is not disputed that Raja Bala Debi was a lady of good education. She could write and speak both English and Bengali. She was suffering from internal tuberculosis; but at the time when she is said to have made this Will, though her life was despaired of, her death was not supposed to be imminent. The evidence of the witnesses to the Will Annoda Prosad Bhattacharjee and Kiahori Mohan Das shows that she read the Will herself though not aloud and signed it after doing so. There is no indication that her husband took any part in the proceeding by way of persuasion, still less of coercion or anything of that kind, nor does the caveatrix in giving her evidence say that anything of that kind happened. The learned Judge goes entirely on the fact that the Will purports to leave everything to the husband Nagendra Nath and is in his handwriting. That no doubt could be of importance in a case where a testator is leaving the whole of his property to the person who has written the Will and is in close relationship to him; but in this case it appears that the property, which is in question in the suit to which I have referred, is the only property to which the lady had any title excluding the ornaments which her daughter now holds. The value of this property to Raja Bala or her heir is extremely problematic, inasmuch as it appears probable that the value of the property will be more than swallowed up by the mortgage and the expenses in that suit Indeed, in the petition for Probate the executor in stating particulars of the estates makes out that the liabilities will very largely exceed the assets. In the case which was cited by the learned Judge, the Privy Council were careful to remark that the decision in such a case must be come to after a careful consideration of all the evidence. Here admittedly there is no direct evidence of anything like undue influence or coercion, nor, indeed, is there any evidence which would point to any such influence or coercion. The learned Judge was bound to proceed upon the evidence and I do not think that he was justified in saying that ho was not satisfied with regard to the free disposing mind of the testatrix in view of the circumstances which had been laid before him. The result is that I would allow the appeal and grant Probate to the petitioner Nagendra Nath Mukerjee. Having regard to the relationship between him and his daughter, the caveatrix, we think that the parties should be left to bear their own costs throughout.
3. It is unnecessary to pass any order on the Rule, which is discharged without costs.
4. I agree.