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Kedar Nath Tushnial and ors. Vs. Raj Kumar Das and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKolkata
Decided On
Reported inAIR1939Cal674
AppellantKedar Nath Tushnial and ors.
RespondentRaj Kumar Das and ors.
Cases ReferredSugden v. Lord St. Leonards
Excerpt:
- s.k. ghose, j.1. the appellants before us were the petitioners in the lower court and they are the heirs of one damodar das tushnial who was a creditor to the estate of joyram das, deceased. in these' proceedings, they seek to establish that joyram validly executed a will bearing: date 31st bhadra 1334 corresponding to 17th september 1927. it is not disputed that prior to that date, that is to say, on 9th falgoon 1318 corresponding to 21st-february 1912 joyram had validly executed another will which was registered. at that time, joyaram had two wives, two daughters and four sons. at the time of the disputed second will, one of the wives and one of the daughters had died and three of the sons had attained majority. the main difference between the two wills may be stated as follows: by the.....
Judgment:

S.K. Ghose, J.

1. The appellants before us were the petitioners in the lower Court and they are the heirs of one Damodar Das Tushnial who was a creditor to the estate of Joyram Das, deceased. In these' proceedings, they seek to establish that Joyram validly executed a will bearing: date 31st Bhadra 1334 corresponding to 17th September 1927. It is not disputed that prior to that date, that is to say, on 9th Falgoon 1318 corresponding to 21st-February 1912 Joyram had validly executed another will which was registered. At that time, Joyaram had two wives, two daughters and four sons. At the time of the disputed second will, one of the wives and one of the daughters had died and three of the sons had attained majority. The main difference between the two wills may be stated as follows: By the first will Joyram dedicated all his immovable-properties to an idol and bequeathed his moveable properties to his sons. He appointed his sons as shebaits and named two executors who were to administer the estate until the sons had attained majority. By the second will, only a portion of the immovables was made debutter and the remaining immovable properties were given to the four eons. Certain other provisions were made in favour of his wife and one daughter who were then living. Joyram died on 5th October 1927. It is further alleged that five days before his death, on 30th September 1927, Joyram executed a deed of gift in favour of his second son, Jitendra in respect of a piece of immovable property. This deed of gift was registered after Joyram's death, but the second will remained unregistered.

2. For some time after Joyram's death, no application for probate was made in respect of either of the two wills. It appears that on 22nd January 1929, Joyram's sons took a loan of Rs. 6000 by mortgaging some of the immovable properties which would pass to them by the terms of the second will. This loan was given by a land mortgage Bank and the evidence is not now disputed that at that time the second will was shown to some of the directors of the Bank by way of proving the title of the mortgagors. About two months later, on 28th March 1929, the four sons of the testator again raised a loan of Rs. 2000 by mortgaging some of the properties which would pass to them by the second will. This document was also shown to the mortgagors and was in fact made over to them for keeping as title deed. One of the mortgagors has deposed and the evidence on that point is not questioned. On 13th August 1930, Mohendra Chandra Das who was one of the four executors named in the second will filed an application for probate of that will. The proceedings continued for four months until 12thDecember 1930 when the case was dismissed for default. It may be noted here that to that application for probate one Manindra Kumar Dey as an attesting witness to the second will signed his name in verification of the application. Then followed another transaction. On 7th December 1931, the four sons applied to Damodar Das Tushnial for a loan of Rs. 9000 upon a mortgage of properties bequeathed to them by the second will. At that time, this document was in the custody of the Court having been there since the filing of the application for probate on 13th August 1930. The loan was given by Damodar Das Tushnial and a part of the money went to pay off the debt due to the land mortgage Bank. Then a step was taken which may be described as curious. On 4th January 1932, two affidavits were sworn, one by Mohendra Chandra Das and the other by Dayadra Nath Das who were two of the four executors named in the second will. In these two affidavits, these two persons stated that they would not take probate or letters of administration of the will in question. These affidavits were filed in Will Case No. 65 of 1930. The other two executors named in that will were Jitendra and Jamini, two of the four sons of the testator.

3. It may be stated here that there is further evidence that the testator's sons were dealing with the properties as if these properties had passed to them as secular properties in accordance with the terms of the second will. This evidence will be referred to later. Up to this time, the first will had not been mentioned in Court. It appears that the firm of Abdul Majid obtained a money decree against the four sons and started execution case on 16th July 1932, and proceeded to attach the moveable properties. On 15th August 1932, the sons filed a petition alleging that the decree had been adjusted. The point to note is that two days before this, on 13th August 1932, an application for probate of the first will was made for the first time. This application was filed by Raj Kumar Das, one of the executors named in the will. The evidence is that the first will was all along in the custody of Raj Kumar. As a result of this application, probate was granted on 3rd September 1932. Then Raj Kumar filed a claim case in the execution case. This claim case appears to have been dismissed on 27th May 1932. Meanwhile, on 27th September 1932, the present appellants filed two applications, one for the revocation of the grant of probate in respect of the first will and the other for letters of administration with the second will annexed. Petitions of objection were filed by Raj Kumar, by Hemangini the widow of the testator, and by the sons. Hemangini and one of the witnesses Radhika Mohan Dutt were examined on commission. The other witnesses were examined in Court before Mr. Masih, the District Judge. He gave judgment holding in favour of the applicants, namely that the second will was proved and that the first will stood revoked. Against that judgment, Raj Kumar Das filed an appeal to this Court. By the judgment, dated 4th February 1937, D.N. Mitter and M.C. Ghose JJ. set aside Mr. Masih's decision and remanded the case for re-hearing with a direction that the idol should be represented by a proper guardian before the Court. This was done and some of the witnesses were recalled and cross-examined before the then District Judge, Mr. Younie. He gave judgment taking a view contrary to that of Mr. Masih and held that the alleged second will had not been validly executed by Joyram. He accordingly dis. missed the application. Against that judgment these appeals have been filed.

4. It is quite clear that if the second will be held to be validly executed, the first will will necessarily stand cancelled and the probate already granted of that will will stand revoked. The question in these proceedings is whether the second will has been proved to have been validly executed. It is not disputed in this Court that the second will was in fact signed by the testator and that a ceremony, if it may be so called, of execution and attestation was gone through. Mr. Gupta appearing for the respondents in this Court does not dispute this fact and indeed, as mentioned already, probate of the second will had once been applied for. The question raised in this Court upon the evidence is with regard to testamentary capacity and proof of attestation. The document does not contain the signature of the testator. It purports to bear a mark and his name was signed for him by the scribe, Raman Bihari De. The names of eight attesting witnesses appear in the document, out of which one Banka Behari Sen has died since the date of the document; another witness Manindra Kumar De and also the scribe Raman Behari De are absent. The other witnesses have been examined. (After discussing evidence his Lordship concluded as follows.) So far therefore the evidence leads to the inference that the second will was validly executed by Joyram. It is a document of five pages.

5. Dr. Basak for the appellants in this Court has stated that it is not his case that the first page is genuine. He concedes that there is evidence to show that the original first page is lost and that another page has been substituted. His further case is that the remaining four pages are genuine. When the case went back on remand the appellants applied to the Court that Raj Kumar who had been contesting the proceedings at the first trial and had taken out probate of the first will should be appointed guardian of the idol for the purpose of these proceedings. This was on 30th March 1937. On the same day, Raj Kumar filed a petition stating that his interests and those of the idol were not identical and suggesting the names of three persons who might be appointed guardian of the idol. The first name was that of Pradyumna Kumar Sen who was related to him and living with him in the same house. Accordingly Pradyumna was appointed guardian to represent the idol. On 1st May 1937, Pradyumna filed a petition of objection in respect of the idol and in para. 21 of that petition he stated that he had reason to believe that the sons of Joyram in collusion with their karmachari Raman Behari had manufactured the will and that he further suspected that specially the first page and the signatures of Baikuntha and Radhika were forged. On 3rd May following, he filed a petition in the course of which he stated that he suspected that the first cartridge paper used in the will had been issued by Government long after the alleged date of execution. Thereupon, the sons of the opposite party were called upon to produce the original sheet but this they were unable to do. Evidence was taken of an officer in the office of the Controller of Printing, Stationery and Stamps, Calcutta, and it was to the effect that the first sheet was not in existence on 17th September 1937, that is to say, the date on which the will purports to have been executed, but the other four sheets were in existence at the time. Mr. Younie has found that this spurious first page was substituted for the original one and as to the motive for the substitution, there is the evidence of Surendra to the effect that in the original first page reference was made to Joyram's previous will, but the first page as it now stands contains no such reference. I see no reason why this evidence should not be accepted. The question was raised after remand and it certainly shows special knowledge on the part of the objector Prodyumna who was representing the idol. Further, the evidence goes to show that the altered page as it now stands is the same as the original first page except the reference to the previous will is omitted. Mr. Younie has been impressed by this evidence which is described as a dramatic development having taken place since the idol was made a party and from this he draws the inference that the entire will has been fabricated.

6. On the other hand, Dr. Sen Gupta for the appellants in this Court contended that if the change in the first page was necessary, it only goes to show that the original first page was something different and therefore the will could not have been forged. I think this argument is reasonable and should be accepted. As to the time and the motive for the alteration one can only speculate, but so far as the evidence goes, it would be sufficient to infer that the alteration of the first page took place at the time when the application for the probate of the second will was made by Mohendra and the document itself was filed in Court. Possibly, at that time the interested parties had decided that the first will should be suppressed. The present appellants had nothing to do with it. But whatever that may be, it is possible for us to come to the finding, that the original first page of the will in question is lost and that this is not due to any action on the part of the testator himself, that the first page as it stands is in the same terms as the original first page of the will which was executed by the testator except that the reference to the previous will is omitted, and that the remaining four pages are genuine. Now, the first page contains the signature of Radhika Mohan which appears to have been identified by him as being his genuine signature on the false copy, but the signatures, of the other attesting witnesses including that of Basanta appear on the remaining four pages of the will and this evidence leads to the inference that Radhika did validly sign the will as an attesting witness on the original first page.

7. In these circumstances, the question arises whether the petitioners will be entitled to the grant of the probate of the second will. Leaving out the first page, the remaining four pages contain all the secular dispositions made by the testator. There are two schedules mentioned at the end of the document. Of this, Schedule 2 explains itself because the heading is, 'rules for the sheba and puja, etc,.' Schedule 1 does not explain itself but para. 3 provides that the sons shall be the owners of all immovable properties after excluding those described in Schedule 1. The portion above para. 3 which occurs on the second page, leaving the first page aside, contains some directions as to debutter properties. It is not necessary for the purpose of this case to construe the will by excluding the first page in respect of the properties comprsied in Schedule 1. But even leaving out the first page, there is no difficulty in understanding the disposition with regard to properties mentioned on the four pages. In this state of affairs, there is no difficulty in granting probate by taking the second to the fifth page of the will as genuine and by taking the first page as proving the contents of the original first page except that reference to the previous will is omitted. Under Section 238, Succession Act, probate may be granted if the whole will is lost but the contents are proved. But if only a part of the will is lost, probate may also be granted if the contents are proved. In Kedar nath v. Sarojini Dasi (1899) 26 Cal. 634 only a portion of the will was produced and there was no evidence as to the contents of the remainder of the will. The question arose as to whether probate could be granted of the portion of the will which was produced. McLean, C.J. observed:

It must, I consider, be taken as settled law in England, see Sugden v. Lord St. leonards (1876) L.R. 1 P.D. 154 that probate can be granted of a portion of a will, though, if the extant portion be only the residuary Clause, some question may arise, as was pointed out by Lord Herschell in Woodward v. Goulstone (1886) 11 A.C. 469. We are not, however, dealing with any such clause in the present case. It must be taken to be established by the English decisions that, where the contents of a lost will are not completely proved, probate can be granted to the extent to which they are proved. The present will is proved to the extent of the first sheet.

8. The present case, however, is stronger. All but the first page are found to be genuine, and as to the first page the evidence is sufficient to show the contents. In these circumstances there is no difficulty, in my judgment, to grant probate of the will. The appellants are therefore entitled to succeed. The result is that the application for letters of administration with a copy of the will annexed will be granted on this understanding, that in the document as it stands the first page will be taken to be not the genuine first page, but its contents will be taken to be the same as the contents of the original first page, except that in the latter there was reference to the previous will, and the remaining four pages of the document will be taken to be genuine. As the result of this, the probate granted in respect of the first will will stand revoked. The appeals are accordingly allowed. The appellants will be entitled to their costs throughout which will come out of the estate of the testator. A consolidated hearing fee of five gold mohurs is allowed in both the appeals.

B.K. Mukherjea, J.

9. I agree with my learned brother in holding that these appeals should be allowed, The appellants before us are the heirs of one Damodar Tushnial who was a mortgagee of certain properties belonging to one Joyram Das, a resident of Sylhet, the mortgage being effected by the sons of Joyram after the death of the latter. The two connected appeals arise out of two applications made by Damodar, while he was alive, for letters of administration in respect of the last will of Joyram which purported to have been executed on 17th September 1929, and for revocation of probate granted to one Raj Kumar Das in respect of an earliar will of the same testator. Damodar died pending these proceedings and the present appellants were substituted in his place. Both the applications have been dismissed by the District Judge of Sylhet and it is against these orders of dismissal that the present appeals have been taken. To appreciate the point in controversy in both these appeals, it is necessary to give here a succinct narrative of the material facts. Joyram Das, who was a prosperous businessman in the town of Sylhet died on 5th October 1937, leaving a widow Hemangini, and four sons, to wit, Jogendra, Jitendra, Jamini and Janaki. He also left surviving him a daughter named Sukeshini who was married to one Basanta Kumar Das.

10. It is admitted that Joyram executed a will on 21st February 1912 which was duly registered. By this will, all his immovable properties were made debutter and were dedicated to the family deity Sri Sri Giridhari Jew. Certain legacies were given to the testator's first wife Radharani and to his daughter Sukeshini, and the rest of the moveable properties including the karbar were given to the four sons in equal shares. The sons were directed to pay Rs. 6 a month, out of the income of the moveable proper, ties, for defraying the expenses of worship of an idol called Shamsundar Jew which was installed by the testator at Navadwipa and Rs. 3 a month, as maintenance allowance to the testator's mother-in-law. The executors named in the will were Raj Kumar Das and Dayadra Nath DAS. The dispute is as I have said above with regard to a later will, which Joyram was alleged to have executed on 17bh September 1927, just eighteen days before his death. By this will some of the immovable properties of the testator which were made debutter by the first will were given to the four sons in absolute right, and the rest were dedicated to the deities Giridhari Jew and Sham, sunder Jew, the latter idol having been brought down from Navadwipa and in-stalled in the family dwelling house at Sylhet. The will gave a legacy of Rs. 2000 to Hemangini, the second wife of the testator, and another legacy of Rs. 200 to his daughter Sukeshini. The moveable properties that would remain after paying off the debts of the testator were also given to the sons in equal shares. There were four persons named as executors in this will, namely (1) Mohendra Chandra Das, (2) Dayadra Nath Das, (3) Jitendra and (4) Janaki, the last two being the second and third sons of the testator.

11. From the evidence it appears that very soon after the testator's death even though no application for probate of the second will was made, the sons began to deal with the properties left by the testator in accordance with the provisions of the second will. Those immovable properties which were dedicated to the deities were treated as debutter property while the rest were enjoyed and disposed of as secular properties belonging to the sons in absolute ownership. On 22nd January 1929, the three major sons borrowed from the Sylhet Co-operative Land Mortgage Bank, a sum of Rs. 6000 on a hypothecation of some immovable properties which were made debutter by the first will of Joyram, but were given to the sons by the second will. Ramani Mohan Das, a retired District Magistrate who was the Chairman of the Bank at that time, swears that a will was shown to him by Jamini, one of the sons of the testator, and he was satisfied on a perusal of the same that the properties which the sons were going to mortgage were not made debutter by the testator. On 28th March 1929, the sons again borrowed a sum of Rs. 2000 from Mohini Mohan Das and others on mortgage of some properties and Jogendra Mohan Das, one of the mortgagees, has stated in his evidence that a will purporting to be executed by Joyram Das was not only shown to him, but was actually kept in his custody for more than a year.

12. On 13th August 1930, it appears that an application for probate of the second will was actually made by Mahendra who was one of the executors named in the will, but strangely the application was not proceeded with and it was allowed to be dismissed for default on 12th December 1930. On 7th December 1931, the sons executed a mortgage bond in favour of Damodar Das Tushnial to secure a loan of Rs. 9000. Out of this sum of Rs. 9000, only Rs. 1908 annas odd was taken in cash, and the rest was retained by the mortgagee to pay off the Sylhet Land Mortgage Bank, and take back the mortgage deed. There was also a deed of exchange executed by the sons on 27th June 1932, and by this deed they transferred to one Newali Chand Das certain properties to which they could claim title only under the second will. It appears that one Abdul Majid, a creditor of the sons, attached some property of theirs in execution of a money decree some time in July 1932. After the attachment was made Raj Kumar Das, one of the executors under the first will, who was staying elsewhere, now came forward and presented an application or probate of the first will on 13th August 1932. The probate was granted ex parte on 3rd September 1932. On 27th September 1932, Damodar Das, who, as said above, had advanced money to the sons on mortgage of some of the properties, presented two applications before the District Judge of Sylhet: one for revocation of the probate granted to Raj Kumar Das in respect of the first will on the ground that there was suppression of the fact of the existence of the second will when the grant was made and the other for grant of letters of administration with a copy annexed of the second and last will of Joyram.

13. The applications were contested by Raj Kumar as well as by Hemangini and her sons and daughter. The learned District Judge, by his judgment dated 29th March 1934, held in favour of Damodar Das and allowed both the applications. There were appeals taken against this decision to this Court by Raj Kumar Das and these appeals {viz., F.A. 83 and 84/34) were heard and disposed of by D.N. Mitter and M.C. Ghose, JJ. on 4th February 1937. The learned Judges set aside the judgment of the District Judge and sent both the oases back for rehearing on the ground that the deity who was the principal legatee under the first will was not properly represented in the proceedings. It was directed that the Court should appoint a proper guardian for the deity and allow him to contest the probate proceeding. After the cases went back, Mr. Prodyumna Kumar Sen was appointed guardian of the idol, and a fresh objection was filed on its behalf. Most of the witnesses who had been examined before, were produced and cross-examined on behalf of the idol. The idol also led additional evidence in the shape of examining Mr. Sanat Kumar Chatterjee, an officer in the stationery department of the Government, to show that the first page of the will was a subsequent fabrication; the water mark on the sheet showing that the paper did not exist at the date when the will purported to be executed. The District Judge by his judgment dated 23rd December 1937 dismissed both the applications whereupon the petitioners have preferred these appeals.

14. The only point in controversy in both the appeals is, as to whether or not the alleged second will of Jpyram was a valid testamentary document duly executed by a free and capable testator. If this question is answered in the affirmative, the appellants are not only entitled to letters of administration in respect of the second will, but the grant of probate in respect of the first will must be revoked. On the other hand, if a negative answer is given to, this question both the applications of the appellants must be dismissed. Now, it is not disputed by the respondents before us, that the alleged second will of Joyram was in existence at the date of the death of Joyram or rather at the date when it purported to be executed. It is not a document which was fabricated subsequently. Their case is that a ceremony of execution was gone through and the document was brought into existence actually on 17th September 1927. It was not however according to them a will of Joyram. It was the will of the sons prepared at their instance and for their benefit and with the assistance of some of their friends and dependants, they managed to stage a show of execution and attestation though the testator had no testamentary capacity and neither could nor did comprehend what the document was. It is true that the sons acted upon the second will and made use of it for the purpose of borrowing money from others for some years after the testator's death. But that, it is said, was quite in accordance with their plan and the circumstances that the sons acted upon the will is not at all material to prove that it was genuine. The last contention is undoubtedly sound, but I think that though the conduct of the sons is not much relevant in this connexion yet some weight might be attached to the oonduct of the exeoutor under the first will.

15. Raj Chandra Das, the executor under the first will, did not apply for probate till five years after the testator's death. He says that he was at Brindaban and the reason why he did not apply for probate earlier was that the sons did not pay him the expenses. But he says at the same time that he was paying the costs of probate out of his own pocket. The application for probate was necessary to file a claim in the execution case started by Abdul Majid. The fact that the sons had been mortgaging several immovable properties left by Joyram was too well known, and it is some-what strange that Raj Kumar, whose intention, as he says, was to prevent waste by the sons, did not care to come in and apply for probate earlier. A suspicion is also raised by the fact that on 7th January 1931 two of the executors under the second will, viz. Mohendra and Dayadra filed two sworn declarations in Court, declaring that they would never apply for probate of that will. If the sons were really behind this move, it is apparent that having taken as much advantage as they could of the second will, they wanted to give it a decent burial and a way was being prepared to bring in the first will which alone could save the properties mortgaged or attached from the clutches of creditors. As neither of these persons have come forward to depose in the case in spite of strenuous efforts by the petitioners, it is difficult to say what exactly was behind the declarations which they made. It cannot be denied that Mahendra at any rate admitted the execution of the second will in his application for probate of the same.

16. Before I turn to the evidence relating to execution of the will and the presence or absence of testamentary capacity in the testator, it would be convenient to look at the provisions of the second will as compared with those of the first. To me, it seems that the provisions of the second will are quite natural and the changes are necessary in view of the altered state of circumstance since the first will was executed. The first wife of Joyram had died already and hence a legacy was given to Hemangini by the second will and not to the first wife. The idol Shamsundar Jew had been brought down from Navadwipa and the second will makes the dedication in favour of both the deities and not to Giridhari Jew alone. Rupees 2000 were set apart for education expenses of the minor son. The material change was that some of the properties which were made debutter by the first will were given to the sons by the second. Raj Chandra says that the business of Joyram which was the only valuable m moveable property had dwindled down very much during the last five years of his life. It seems to me to be very natural that having regard to the declining state of his business, the testator thought it proper to bequeath some of the immovable properties to his sons. If the business failed they had nothing else to fall back upon and it might be necessary to raise money for carrying on the karbar itself. I am not impressed by the argument advanced on behalf of the respondents that Joyram, a religious man as he was, could not think of taking back some of the properties which were already given to the deity.

17. In the first place, a gift by a will is not effective till the death. Even assuming that there was a mental dedication, it appears that the testator himself found it necessary to sell some of the properties that were made debutter by the first will, before his death. Two deeds of sale of the year 1924 in respect of some of the immovable properties have been made exhibits in this case: vide Exs. 23 and 32, and they strengthen the view that after the execution of the first will conditions had changed which induced the testator to alter his plan of making all his immovable properties debutter. The other argument which found favour with the District Judge, is that the testator was not in good terms with his sons and as one of his sons was mentally defective, he could not have any reason for altering the debutter. I don't think that this contention has much weight. As the karbar was not expected to bring much income, some of the immovable properties were given to the sons. The fact that the eldest son was mentally defective and the youngest was a minor could not possibly affect the situation. The second son indeed was once implicated in a criminal case, but it does not appear that the father had lost his natural affection for this son. The story of Hemangini, that this son was turned out of the house, does not appear to be a credible one. After all the sons were all treated alike, and no distinction was made between one son and another in the first will of Joyram. As the debutter created by the first will was an absolute debutter, I fail to see, how the sons who were made she baits could derive any substantial secular benefit from the debutter properties.

18. Coming now to the evidence relating to execution of the will, it is undoubtedly true as was contended by Dr. Basak, that the appellant had to encounter a great difficulty in the way of producing the attesting witnesses before the Court. Many of them, including the scribe, did not appear even after issue of warrants. Those who came and deposed were unwilling witnesses and some turned positively hostile. The burden of proving due execution of the will is always on the propounder, and the burden is not lessened by the fact that the propounder is a stranger to the family and the attesting witnesses are men of the opposite camp. The Court is of course competent to disregard the testimony of some of the attesting witnesses and pronounce in favour of the will, if it is satisfied from the evidence collectively or from the circumstances of the case, that the requirements of law have been complied with and that the wit-nesses who had spoken against the will had not spoken the truth: vide Brahma Dutt v. Chaudan Bibi (1916) 3 A.I.R. Cal. 374. (After examining some evidence his Lordships proceeded further.) If the story of the draft is accepted, and there is no reason why it should not be accepted, there re-mains no doubt that the will was really the will of Joyram. Radhika Mohan Dutt is the last witness whose evidence is material on the point. He was present when the will was being written by Raman Behari and he saw the testator putting his mark. He himself as well as Dr. Baikuntha and Hem Chandra, also signed the will as attesting witnesses. On being asked about the mental condition of the testator the witness says nothing definite. He could not say whether he had intelligence or not though he was not unconscious, and adds that had he not intelligence, he would never have executed a will. I think this witness corroborates the story of execution and attestation as given by Basanta, and his evidence does not show that the testator had no testamentary capacity.

19. If, as I have said above, the will is a natural one, and due execution is proved, testamentary capacity is ordinarily presumed. None of the attesting witnesses, including the family doctor, says anything from which it can be inferred that the testator had no clear idea of the extent of his property or the claims of those who were entitled to his bounty. The beneficiaries with certain minor exceptions were the same as in the earlier will, and if the testator had the first will in his mind, the few changes that were introduced by the second will did not at all make it a complicated instrument which a man of his age-even though suffering from illness could not comprehend. Besides, the objector's specific case was that the testator was unconscious, and this I think has not been, established by any reliable evidence. The evidence of Hemangini on this point is no worth acceptance. That the testator had' testamentary capacity is also proved by a deed of gift which was executed after this will. I cannot agree with the learned advocate for the respondent that the deed of gift was manufactured after the death of Joyram and it was the result of Kala's blackmailing. The document was admitted in evidence under Section 89, Evidence Act, and unless there-is something to the contrary proved by proper evidence we must presume that it was properly executed and attested. There is nothing unnatural in this deed. The small plot of land at Navadwipa was lying vacant and it was given to one of the sons of the donor. The result is that I do not agree-with the view taken by the learned Judge, and in my opinion, the evidence and circumstances of the case do establish that the second will was duly executed and. attested and was the work of a free and capable testator. Ordinarily I would have-been reluctant to disagree with the trial Court on questions of fact which depend mainly on oral evidence, but here the major portion of the evidence was recorded not by Mr. Younie against whose judgment the-present appeals have been laid, but by Mr. Masih, who actually pronounced his decision in favour of the propounder. Mr. Younie had before him, the witnesses only when they were cross-examined on behalf of the idol.

20. Then there remains another question, as to whether, having regard to the finding of the trial Court which has not been challenged in appeal, that the first page of the will, as it is before the Court, is not genuine, we can grant letters of administration in respect of the will either in whole or in part. It can not be taken to be proved, that the first page of the original will has been tampered with and a new page was substituted in its place. Dr. Basak on behalf of the appellants argues that even if the first page of the will is left out he is entitled to probate in respect of the remaining sheets of the will about which there is no dispute, and relies upon the decision in Sugden v. Lord St. leonards (1876) L.R. 1 P.D. 154. It was held by Cockburn, C.J. in that case, and this was agreed to by Sir George Jessel, M.R., that if all the contents of a lost will are not before the Court, probate should be allowed of that which it has, so long as it is satisfied that it has the substantial part of the will made out. This case was discussed and considered in Woodward v. Goulstone (1886) 11 A.C. 469. There the only part of the will with regard to which convincing evidence was available was the residuary clause and nothing was known about the legacies. In such a case, it was held the principle in Sugden v. Lord St. Leonards (1876) L.R. 1 P.D. 154 cannot be made applicable. Though there is no statutory provision covering such cases in the Succession Act, the principle in Sugden v. Lord St. Leonards (1876) L.R. 1 P.D. 154 together with the qualification as indicated in (1886) HAG 469s has been held to be applicable in India: vide Kedar nath v. Sarojini Dasi (1899) 26 Cal. 634. In the case before us, the four sheets of the will, about the genuineness of which no question can arise, contain complete disposition of all the properties of the testator save and except those which are described in Schedule (l). We know for certain what the properties in Schedule (1) are and therefore there is no difficulty in saying that we have got here a substantial part of the will and the legacies mentioned there are not in any way dependent on the gift of Schedule (1) properties.

21. But I think, we can go further in this case, and say that the contents of the first page are sufficiently established by other evidence. The second page of the will begins with the latter portion of para. (2). Para. 1 and a part of para. 2 therefore are wanting. From the rest of the will the conclusion is irresistible that para. 1 contained a disposition of Schedule (1) properties. We think that the evidence of Surendra who carried the instructions of the testator to the pleader Rajendra Das makes it clear that the first page of the will as it now stands is a reproduction of the first page of the original will, subject to this, that the present sheet does not contain any clause regarding the revocation of the previous will which the original sheet did. The internal evidence also shows that the first page contained a disposition of Schedule (1) properties in favour of the deities. We hold therefore that both the appeals should succeed. The petitioners are entitled to letters of administration with a copy annexed of the will of Joyram dated 17th September 1927, and the first page of the will must be taken to be the first page of Ex. (1) with an additional clause that the previous will of 1912 had been revoked by this will. The probate granted to Raj Kumar in respect of the first will must be revoked.


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