1. This appeal is from the judgment of the District Judge of Midnapore, dated the 11th April 1907, refusing probate of a Will.
2. The alleged testator, Amarendra Nath. Basu, was a leading practitioner of the Munsif's Court at Midnapore He was apparently in a prosperous condition. By his own earning he had acquired considerable properties. In September 1899, he obtained from two out of his three surviving brothers an acknowledgment of his exclusive right to his self-acquired ' properties under a deed of release; and under a similar deed, dated the 23rd August 1902, he obtained an acknowledgment of his exclusive right to those properties from his third brother. He had also purchased some little properties which belonged to his father-in-law and the kinsmen of the latter and also the homestead in which they lived.
3. He suffered from diabetes for some years. A short time before his death consumption supervened and he ultimately succumbed to it. He died on the 31st October 1906, Wednesday, between 11 and 12 a.m. At the time of his death, he left his wife, who has propounded the will in question, three out of his six brothers (the other three had pre-deceased him) and a sister, but he left no children. The will is opposed by his three surviving brothers.
4. The principal objector, Brojendra Nath Bose, is a higher grade pleader practising at Midnapore.
5. The will is said to have been executed on the previous day, that is, Tuesday, the 30th October, between 11 and 12 a.m. The will is a somewhat prolix document but in substance it is of the simplest character. It gives an absolute estate to his wife in all the properties save and except a few small parcels which he bequeathed to his brother-in-law and it creates a charge of Rs. 15 per month on his properties for the maintenance of a school which he had established in memory of his mother.
6. The case of the petitioner is that the testator was of sound disposing mind when he executed the will in question and that it 'was duly executed, and duly attested by witnesses. The case of the objectors is that for two or three days previous to his death, the testator was in a comatose state, that the will was never read out to him and that the will which has been propounded as the will of the alleged testator is not his Will at all.
7. The Will is attested by five witnesses. Of them the first witness, Kumuda Charan Ghose, is a half-brother of the testator's father-in-law and is also a pleader in the Munsifs' Court. During the life-time of the testator he conducted on his behalf the litigations in connection with his estate as also his suit for recovery of certain properties belonging to his maternal grandfather.
8. The last witness, Nanda Lal Ghose, is a doctor of considerable experience, and of respectable position in life. He was for 30 years in Government service as a teacher in the Medical Schools at Dacca, Nagpur, Patna and other places.
9. The will was registered by the Sub-Registrar at the house of the testator on the day on which it was executed, but later on in the afternoon. The Sub-Registrar was at first unwilling to come because the application had been made to him at a late hour when he had closed his fee-book. The brother-in-law of the testator appealed to the Collector and it was upon his intervention and under his orders that the Sub-Registrar went to the house of the deceased and registered the Will.
10. The learned District Judge has come to the conclusion that it has been fully established by the evidence of the Sub-Registrar, to whom the testator admitted the execution of the will, by the evidence of Dr. Nanda Lal Ghose, who attended the deceased from the 24th October, and by the evidence of the other witnesses who were present at the time that the will had been executed with all the legal formalities necessary for its due execution; but he has refused probate of the Will solely on the ground that he is not satisfied that at the time when the testator set his hand to the Will, he was of sound disposing mind. From this order, the petitioner has appealed.
11. The sole question for determination in this appeal is whether at the time the testator signed the will, he possessed sufficient testamentary capacity.
12. Before I proceed to deal with the evidence, I should remark that there is not the faintest suggestion in this case that the testator and his wife lived otherwise than on the best of terms. Therefore, in regard to the devolution of his properties after his death the only. alternatives he would have to chose between would be whether his wife should have a Hindu widow's estate with a reversionary interest in his brothers or whether she should have an absolute estate.
13. The testator was a lawyer of some emi-nence in the profession, he knew fully well that if he left no Will, his wife would, under the law, get the qualified estate of a Hindu widow and his brothers would get the reversionary estate; whereas, if he made any Will at all, the primary object of it would be to give an absolute estate to his wife. Therefore, once the due execution of the Will is established to the satisfaction of the Court, there remains but little else besides for the petitioner to prove, because, as I have said, the object of the execution of a Will in the circumstances of this case would primarily be the gift of an absolute estate to his wife and that is what has been done under the Will.
14. Now, coming to the evidence in this case, it is to be observed that the learned District Judge has placed the fullest reliance upon the evidence of the Sub-Registrar and the doctor and he has also believed the other witnesses who were present at the execution of the Will.
15. Kumuda Charan Ghose, the first attesting witness, says that he prepared a draft of the Will and completed it on the morning of the 29th October and sent it on to the testator through his clerk, Kherode Nath Bose, who was accompanied by Soshi Bhusan Ghose and Nagendra Nath Ghose. He then says that about 11 o'clock in the forenoon when he was about to proceed to Court, he was sent for by the testator, that he went there and in his presence the testator signed the Will and he then signed the Will in the presence of the testator and the other witnesses also signed in the presence of the testator. He says that at the time of the execution of the Will, the testator was in his full senses
16. Doctor Nanda Lal Ghose says that he signed the Will in the presence of the testator between 11 and 12 o'clock in the forenoon when the testator was fully in his senses, that he saw the testator two or three hours before his death and that he was even then in his senses but he was weak.
17. Akhoy Kumar Ghose, the Sub-Registrar, says that he asked the testator if he had given his property to his wife and his brother-in-law and the latter admitted that he had. Then he asked his name and the testator told his name. The third question which he put to him was if he admitted the signature to the Will ;. the testator answered in the affirmative. He further says that he was helped by an attending woman to sit up in his bed. He could hardly have done so, if the objectors' case, that since two or three days previously he had been in a comatose condition, were true.
18. That Kumuda Charan Ghose had prepared the draft and sent it on to the testator is fully corroborated by the evidence of Negendra Nath Ghose who in answer to a question put to him in cross-examination by the pleader for the objectors stated that there had been a talk about the Will between the testator and Srinibash Babu, Mukhtear, 4 or 5 days before his death, that the testator gave instructions to Srinibash for the preparation of a draft and Kumuda Charan Ghose. prepared the draft in accordance with the instructions so given by the testator. To my mind this piece of evidence is most important and extremely valuable. It is not open to any suspicion of previous tutoring, because, as I have indicated it was elicited for the first time in cross-examination. The testator himself was a lawyer, the person whom he had entrusted the preparation of the draft was a lawyer and was fully conversant with the state of his affairs and was apparently on intimate terms with him. There would, therefore, be ample reason for the testator believing that the will placed before, him was in accordance with his instructions. If then under this belief he set his hand to the Will, it would, I think, under the law be considered to be his Will and it would not be necessary for the petitioner to show that at the time the testator set his hand to the Will, he was capable of understanding all the provisions thereof. In Perera v. Perera (1901) L.R.A.G. 354 : 1 S.E.C. (N.S.) 37 : 70 L.J.P.C. 46 : 84 L.T. 371 where a similar question as to the testamentary capacity of the testator was under consideration, their Lordships of the Privy Council thus observed: The learned Counsel for the appellant did not contend that the witnesses in support of the Will were acting in conspiracy or saying what they knew to be false. He said that the Will may have been, and probably was, read Over to the testator, but that there was nothing to show that he followed the reading of the Will or understood its meaning. He adopted the arguments of Lawrie, J., to the effect that it was not enough to prove that a testator was of sound mind when he gave instructions for his Will, and that the instrument drawn in pursuance of those instructions, was signed by him as his Will, if it is not shown that he was capable of understanding its provisions at the time of signature. That, however, is not the law.' In Parker v. Felgate (1883) 8 P.D. 171 : 52 L.J.P. 95, 32 W.R. 186 : 47 J.P. 186 Sir James Hannen lays down the law thus : If a person has given instructions to a solicitor to make a a Will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good Will, if executed by the testator, is that he should be able to think thus far : '.I gave any solicitor instructions to prepare Will making a certain disposition of my property; I have no doubt that he has given effect to my intention and I accept the document which is put before me as carrying it out.' Their Lordships think that the ruling of Sir James Hannen is good law and good sense.'
19. I think those observations fully apply to the circumstances of this case, but perhaps it is not necessary here to go so far, because it appears to me that upon the evidence of the doctor, the Sub-Registrar and Kumuda Charan Ghose, the fact that the testator was of sound disposing mind is fully established and that he was not merely supposing that he was executing a will but possessed at the time sufficient intelligence to be able to understand the provisions of the Will which, as I have stated, are of the simplest character, though he might not possibly have been able to follow every sentence of the Will. No suggestion has been made before us that these witnesses were not truthful, nor any suggestion made in the cross-examination of these witnesses to induce the Court to believe that they were not entitled to the fullest credence. It is impossible to believe that these witnesses, all independent persons of respectable position in society, could have entered into such a foul conspiracy for the purpose of robbing the testator's brothers of their reversionary interest.
20. Now, what is the evidence adduced on the side of the objectors? They have not examined any witness who was present at the time of the execution of the Will nor any witness who was capable of deposing to the state of the mind of the testator. The learned Judge below has based his judgment entirely upon the evidence of Babu Hemanga Chandra Bose, a retired Subordinate Judge. To my mind that evidence is not in the least degree inconsistent with the evidence adduced on behalf of the petitioner. The disease of, the testator took a serious turn on the 24th October. Upon that, Babu Hemanga Chandra sent his wife and his sons to see the testator. He did not go personally. When his wife and sons returned, they told him that the testator had expressed a, wish to see him. He went to see the testator on Thursday, the 25th. He saw him again on Saturday and Sunday mornings the 27th and 28th October, but he did not see the testator afterwards. He admits that when he saw the testator he had tided over the crisis, and that he was able to speak to him. It was because the disease took a serious turn that the principal objector, Brojendra Nath Bose himself sent for Doctor Nunda Lal who attended the testator throughout his illness until his death. I do not think that the evidence of Babu Hemanga' Chunder Bose is destructive of the case of the petitioner. The objectors also called Babu Sarat Chunder Dutt, an Assistant Surgeon. He attended on the 29th October in the evening and he did not see the testator afterwards. All that he said is that the last time he saw the testator, his pulse was not good and he was semi-conscious. That was on the evening of the 29th October Monday. There is no reliable evidence whatever on the side of the objectors to show that on the next and the following day the testator was not of sound disposing mind.
21. The learned District Judge was apparently influenced by what seems to me to be an erroneous idea. He says that the dispositions made were of the simplest character; the testator was a lawyer; why did he make such an elaborate Will? Why did he not dictate his Will in a few words? I think the lawyers are more wedded to forms and precedents than a lay man is. When lawyers make a disposition of their property or enter into any transaction relating to a property in which they are personally interested, they are particularly careful to see that the instrument to which they set their hand, is in accordance with the most approved forms and precedents.
22. For these reasons I am clearly of opinion that the will is genuine, and that the testator was of sound and disposing mind when he executed it. The appeal is, therefore, decreed, the judgment and decree of the Court below are set aside and it is ordered that probate of the Will be granted.
23. I entirely agree in the conclusion arrived at by my learned brother.