C.C. Ghose, J.
1. This is an appeal against the judgment and decree of the learned Subordinate Judge, Third Court, 24-Pargannas, dated 30th August 1930, by which he granted probate of the will of one Jogendra Nath Roy Chowdhury of Behala. The will is dated 23rd April 1910. The testator died on 17th August 1928. The application for probate was filed by his widow Sm. Rajlakshmi Devi in Court on 22nd April 1929. The will in question is a registered will and it appears from the Sub-Registrar's endorsement that it was registered on the day of its execution. It appears that the testator had been married four times and the present applicant Sm. Rajlakshmi Debi was his fourth wife. The other wives of the testator had all died before the testator's marriage with Rajlakshmi. But there was a son by the third wife, named Jatindra Nath Roy Chowdhury. This last named person is the present objector in these proceedings.
2. In the said will the testator stated that Jatindra had been residing as a member of the family of his younger brother Rajendra Nath Roy Chowdhury and had throughout been disobedient and had not given him any satisfaction whatsoever by his conduct. The testator however thought it proper to bequeath to Jatindra one-half of his share in the ancestral ejmali dwelling house including tanks, etc., as also the entirety of his interest in a joint garden known as Ranir Bagan and all his interest and share in all other ancestral immovable property except Mouzah Kandberiah being Touzi No, 347 in the Collectorate of 24-Pargannas. As regards his wife, Sm. Rajlakshmi Devi, the testator stated that she had been living with him and had been nursing him and that she was the proper person to be appointed executrix under his will and to be allowed to remain in charge after his death of all his properties except those given to the son and the sister's sons mentioned in para. 2 of his will. The executrix was empowered to sell a portion of the self-acquired properties of the deceased for the purposes of paying off certain debts if the amount of the debts could not be paid off from the income of the self-acquired properties and was further empowered to redeem certain pledged ornaments by paying off the amount of money raised on pledge. Various other directions were given such as that the debt to the mother-in-law of the deceased should be paid off, that there should be a payment of a sum of Rs. 100 to the paternal Guru or spiritual guide and a sum of Rs. 50 to the priest and so on. The executrix was also to pay a sum of Rs. 10 a year for the worship of the family idol during the turns of worship of the deceased and the said sum was to be made over to the sister's sons Brojendra Nath Mukhopadhaya and Narendra Nath Mukhopadhaya for the worship of the idols, and if the latter failed to worship then the money was to be utilized in the best way possible by the executrix.
3. It appeared further from the terms of the will that the testator had been helped considerably in his family affairs by his brother-in-law Haridas Bandopadhaya. Haridas had died leaving an unmarried daughter who was placed in charge of the testator and the testator thought it proper to make provision for the marriage of the girl by allotting a sum of Rs. 1,000 for the expenses of her marriage. It also appeared that the testator wanted to establish the idol Siva in a temple and directions were given to the executrix in that behalf, the temple to be created in a house purchased by him and all expenses of the worship were to be defrayed from the income of the properties that would remain after defraying the expenses mentioned in the earlier portion of the will. He further gave directions that the said income was to be treated as debutter and was to be spent for the worship of the idol Siva, the executrix being the first shebait. The executrix was given power as shebait to nominate her successor from his sister's sons or sapindas or from his descendants provided that the successors was considered to be a religious person.
4. On this present application for probate being made the objector Jatindra Nath Roy Chowdhury put in a petition of objection and thereupon the suit became a contentious one. Jatindra objected to the grant of the probate on the ground that the will was an inofficious and unnatural one as the bulk of the properties had been given to the wife of the deceased, the objector being given only a nominal share in the properties left by the testator and that the circumstances relating to the execution of the will were such that a probate Court could not but look upon the will with very considerable suspicion. It was further contended that at the time of the execution of the will the deceased was not in a sound disposing mind and had no capacity whatsoever to understand the extent of his properties and the nature of the claims of those who were near and dear ones upon his bounty. Jatindra further contended that he was practically excluded from all participation in the benefits of the properties belonging to the testator and that was because the testator suffered from mental disorders from and after 1905 and that he was so seriously ill in 1910 at the time when the will was alleged to have been executed or shortly before that date, that he could not understand anything and he could not exercise his free and unfettered judgment in making a testamentary disposition of his properties.
5. The learned Judge had all the witnesses before him and after a very careful inquiry he came to the conclusion that the will could not be described to be an inofficious and unnatural will and that if one examined the provisions of the will carefully it was impossible to say that the terms of the will were such as must necessarily excite suspicion. The learned Judge came to the conclusion that the applicant for probate had shown conclusively that the testator was in a sound disposing mind at the date of the execution of the will and that such execution was made with full understanding of what he was doing. The trial Judge's findings on the specific points raised before him were as follows. (After giving the findings of the trial Judge, the judgment proceeded.) In the end the trial Judge granted as has been indicated above probate of the said will.
6. Now at the hearing of the appeal before us the learned advocate Mr. Sarat Chandra Roy Chowdhury, who appeared on behalf of the objector made it quite clear that he did not propose to argue before us that the will had been executed under 'undue influence' exercised by Sm. Rajlakshmi Debi although such question had been raised in the Court below. But Mr. Rai Chowdhuri's main contentions were that the will had been propounded under the circumstances of such grave suspicion that probate thereof should not and could not be granted. It was argued that it had not been established affirmatively that there was any bad feeling between the father and the son and there was no reason whatsoever why the objector should have been treated by the father in the way in which he had been done. It was also argued that the Sub-Registrar who registered the will had not been called.
7. In Mr. Rai Choudhuri's submission there was therefore no evidence worth the name for the purpose of establishing what was the state or physical condition of the testator at the time when the will was registered. It was also argued that as during the said long period of 18 years there had been several changes as regards the financial condition of the testator or as regards the properties which belonged to the testator it was reasonable to assume that if the testator had knowingly executed the will or had at any time since the date of the execution of the will been made aware that a will had been executed he would certainly have altered the provisions of his will. In support of this last argument reliance was placed on the fact that the testator during this long period of 18 years had not taken any steps whatsoever towards the establishment of the deity mentioned in his will nor had he taken any steps whatsoever towards the liquidation of the several debts mentioned in his will. Further the learned advocate laid considerable stress on the fact that although it appeared from the evidence that a draft of the will had been prepared by a pleader named Jnan Babu, such draft had not been produced and that the entire evidence looked at fairly and squarely showed to demonstration that the testator was so seriously ill at the time of the execution of the will, assuming that the will was executed by the testator, that no probate Court would grant probate of the said will. The questions raised in this appeal before us are all questions of fact. No doubt certain questions of law have been elaborately canvassed before us. But those questions of law depend for their solution on the view we take on the questions of fact raised. It is, to start with, impossible for us to overlook or minimize in any way the effect of the findings of the Court of first instance which had an opportunity which has been denied to us of seeing the witnesses for itself and for coming to a conclusion one way or the other as to whether or not the will had been executed in such circumstances as would entitle the applicant to obtain probate. From what has been stated it is not to be understood for one single instant that the present appellant is not entitled to invite us to coma to our own conclusions independently of what has been stated by the learned Judge. We have therefore very carefully considered the evidence in this case, we have taken time to consider the terms of our judgment and during this interval we have read and re-read the evidence several times. But we are bound to state that in our own view there is sufficient material on the record to enable us to say that in this case the conclusions arrived at by the Court below must be affirmed and in this connexion it may be stated at once that as our judgment will be one of affirmance we do not propose to go through the evidence of the various witnesses in detail or at length, but we will content ourselves by stating our conclusions within such brief limits as possible.
8. Where a will is propounded the onus probandi is on the party who propounds the will. It is for him to show that it is the act of the testator and the first point to be ascertained was whether the will was duly executed. What is meant by 'due execution' need not detain us at length because Mr. Roy Chouhduri drew our pointed attention to the classical definition of due execution' in a case decided by this Court [Piggot and Banerjee, JJ., Woomesh Chunder Biswas v. Rashmohini Dasi] (1894) 21 Cal 279. If therefore in a case of this description 'due execution' is established the next point for consideration is whether at the date of the death of the testator the will was in existence; and if it was not, then the ordinary prima facie presumption is that it was destroyed by the testator with intention to revoke. This presumption is one which is always rebuttable by the production of further and other evidence. It is perfectly true that where the mental capacity of the testator is challenged by evidence to the effect that it is very doubtful whether the testator's state of mind at the time of the execution was such that he could have 'duly executed' the will in question, the Court must be satisfied before granting probate that the testator was of sound disposing mind and did know and approve of the contents of the will. In this case the will has been produced before us, the will was registered and the will itself shows the Registrar's endorsement made on the date of the execution. Therefore all these circumstances must be given their proper weight and effect. No doubt in all testamentary acts performed in the last stages of one's life the Court looks with vigilance and jealousy to the evidence by which they are supported. In the present case those considerations do not arise because the will was executed eighteen years before the death of the testator. We shall refer presently to the circumstances that the Sub-Registrar has not been called and we will have to say something on the submission which was made by Mr. Roy Chowdhury, namely, that it cannot be disputed that the Sub-Registrar is still alive and that steps ought to have been taken to call the Sub-Registrar to the witness-box. Leaving that matter aside for the moment, it is undoubted law that ordinarily a party propounding a will is bound to call one at least of the attesting witnesses if he can be produced, to prove 'due execution.' But if such witness fails to prove due execution' the propounder is bound to call the other attesting witness or other attesting witnesses although the propounder may know that the other witness or the other attesting witnesses are adversely disposed to the propounder. It is also undoubted law that the propounder is not under any obligation to prove the execution of a will by calling all the attesting witnesses. In this case out of the seven attesting, witnesses the witness scribe and one attesting witness are dead. But the applicant for probate has done what was humanly possible in the circumstance, namely, that she has called four of the attesting witnesses, and as regards the last attesting witness the same has been produced before the Court although not at the instance of the applicant. This last attesting witness is the witness named Dirghungi and who has been called by the objector. It has already been pointed out that the evidence of the witness Dirghungi has not been accepted by the trial Court. As indicated above the Court must be satisfied that the testator knew and approved of the contents of the will at the time he signed the same and if the circumstances be as excite one's suspicion, the fact of 'due execution' of the will by the testator is sufficient to prove that he knew and approved of its contents. But this last proposition is subject to one qualification, namely, that although the testator did know and approve of the contents of the will, the will may yet be refused probate if it be proved that any fraud or 'undue influence' had been practised or exercised on the testator in obtaining execution of the will. Further a will procured by a party who is benefited by it is not void, but this circumstance forms a just ground of suspicion against the document and calls upon the Court to be vigilant and jealous and unless clear and satisfactory proof be given that the will contains the real intentions of the testator such will not be admitted to probate. In stating the above propositions we have merely paraphrased what has been stated by eminent Judges from time to time since the dates of the early cases reported in 2 Moore's Privy Council cases. In coming to our conclusions on the evidence adduced in this case we have not been unmindful of the rules of law as laid down in the cases cited by Mr. Roy Chowdhury at the Bar. (After discussing the evidence, the judgment proceeded.) In our opinion the fact that the testator executed the document in question cannot be challenged. There is no evidence to suggest to any unbiassed mind that the testator was suffering continuously from mental disorders from and after 1905 or even that he was in an unconscious state when the will in question was alleged to have been executed. The fact that the will was registered by the testator on the day of its execution completely negatives in our opinion the theory that it had been executed and registered while the testator was in an unconscious state.
9. As we indicated above Mr. Roy Chowdhury made some comment on the Sub-Registrar not being called; it was suggested at the Bar that there is no evidence to show that the Sub-Registrar had died; in fact the information at the disposal of the appellant was to the effect that the Sub-Registrar was still alive; but in this matter we must point out at once that this point was never taken in the Court below. It was not suggested in the Court below that the Sub-Registrar was still alive, it was not suggested that what was stated on behalf of the applicant, namely, that the Sub-Registrar could not be found was untrue and it follows from what has been stated that we cannot go into this question now at this stage. To embark upon an elaborate inquiry as to whether the Sub-Registrar was alive or not or whether he was still drawing his pension from the treasury would be to embark upon an inquiry where he would be obliged to take additional evidence. Such a course as has often been pointed out by their Lordships of the Judicial Committee would be entirely inconsistent with the ordinary procedure which regulates proceedings of this nature. We therefore propose to pay no attention whatsoever to what was argued before us, namely, that the applicant had not produced the entirely of the evidence bearing on the question of the due execution and registration of the will. In our opinion, if we may repeat once more, it has been amply proved that the testator had duly executed the will. No doubt the will does not indicate generosity on the part of the testator towards his only son, but one has known of such instances in the past and we are unable to say in the circumstance of the present case that circumstances by itself throws suspicion on the due and proper execution of the will. Admittedly the feelings between the father and the son were very bitter. See in this connexion the evidence of Prionath, Chintamoni and Akshoy. Whether there was any justification whatsoever on the part of the testator to entertain feelings of enmity and bitterness towards his only son is a problem which pertains more to the domain of psychology than to the domain of law.
10. There is, in our opinion, no evidence to suggest that the present applicant Sm. Rajlakshmi Devi although she was the fourth wife of the testator was in any way responsible for the terms of the will. In other words, there is no evidence to show that Rajlakshmi had procured the will for her own benefit knowing that the terms of the will were as they would be found in the will and that those terms showed that for all practical purposes the only son had been disinherited. We are further of opinion that no safe or proper conclusion can be drawn from the fact of the non-alteration of the terms of the will by the testator during a period of 18 years since the date of the execution of the will. Mr. Roy Chowdhury drew our attention to the properties which had been given to the son and to the properties in respect of which the applicant had been given disposing power by the testator. We were invited by Mr. Roy Chowdhury to go into the question of valuation of the respective properties. There again it was a matter which should have been properly gone into by the Court of first instance. It is too late at the appellate stage of an appeal to go into questions of this description. But we should not have hesitated to go into these questions if they became necessary for the determination of the question as to whether the will had been duly executed; we would not have hesitated if it were the case that the respondent admitted that such valuations were just and free from objections. But the respondent strenuously objected to these matters being brought to our notice as they were not to be found within the four corners of the record before us. In these circumstances we must refuse to embark on an inquiry of this nature. Further, in our opinion no conclusion adverse to the applicant can be drawn from the fact of the non-establishment by the testator during his life time of the deity mentioned in his will or from the non-liquidation of the debts specified in his will. Now, there is one observation which we shall permit ourselves to make and it is this: that in considering whether a will should be admitted to probate or not it is of the very first importance to remember at the time and always that a will is not to be presumed to be a forgery primarily from a consideration of its contents, nor is it permissible to us to hold that the contents of the will are so extraordinary that the Court may safely allow that circumstance to over-balance the direct or positive evidence as regards the execution of the will. In other words, if we may paraphrase what has been said by Judges of the eminence of Lord Davey, Lord Watson, and Lord Dunedin, that it is not permissible for the Court to do what Courts are often invited to do on behalf of objectors, namely, to make up our minds about the iniquitous character of the contents of a will and then to look at the positive or direct evidence in favour of the execution of the will from that standpoint. Such a course has been condemned by their Lordships of the Privy Council and in the circumstances of the present ease and on the record before us it is sufficient to say that we are in entire agreement with the trial Judge in his findings and in his view or survey of the entire evidence adduced before him. The observations that we have made in our opinion Sufficiently meet the arguments advanced before us and it is unnecessary to burden the record by any further observations. Taking therefore into consideration the entire evidence on the record we are of opinion that this appeal must fail and be dismissed. As regards the costs we think and we have come to this conclusion after a very careful and anxious consideration that the appellant may be excused for having carried the matter to this Court and in the circumstances we are of opinion that there should be no order as regards the costs of this appeal.
S.K. Ghose, J.
11. I agree.