Ernest Fletcher, J.
1. This appeal is preferred against the decision of the learned District Judge of Birbhum, dated the 5th January 1918, and it arises out of an application that was made by the respondent to the Court of the District Judge propounding a certain document which he alleged was the last Will of a deceased Hindu, named Ram Ranjan Chowdhury. The Will is stated to bear date the 29th December 1912 and the death of the testator took place on the 30th December 1912 The Will was not propounded in the Court of the District Judge until the 11th July 1917. The learned Judge, having heard such evidence as was offered before him, came to the conclusion that the Will was genuine, and, therefore, he granted Probate of it. Against that decision, this appeal has been preferred.
2. The respondent to the appeal is not a relation of the dead man, Ram Ranjan. The relationship subsisting between them was purely one of a spiritual nature--the respondent being the spiritual guide of the deceased. How and in what manner Ram Ranjan on the day before he died became anxious that his properties should pass to his spiritual guide is not altogether clear on the evidence. The story as shown is this: that this Will, which was made, as I have said, on the 29th December 1912, that is, one day before the testator died, was made while the respondent was in the premises. It does not appear from the evidence where he was whether in the room or in some other place--and it is also not clear exactly where the deceased man was--whether he was in the room or in the verandah. However, what happened was this. The Will had 12 witnesses. The deceased Ram Ranjan, according to the evidence, did not sign his own name but his name was written by his uncle, one Nidhiram. What sort of uncle he was does not clearly appear. But the unfortunate part of the case is this. When the first witness on behalf of the petitioner was giving his evidence and named five witnesses and proceeded to prove their signatures appearing on the document, the learned Judge suggested, as his note in the record shows, that it was not necessary for him to prove more. That is a view that I cannot agree with. This is a Will that requires a very careful scrutiny. It was a deathbed Will and made in the interest of a person who claimed to have spiritual influence over the dying man. This is a case in which the Court ought to be careful to see that that spiritual influence was not exercised improperly either by terrifying the dying man or by holding out hopes of benefitting his soul. The learned Judge ought not to have stated that it was not necessary to give all the evidence, because it was a case in which it was necessary to place before the Court all the available evidence so that the learned Judge could form a right conclusion having a free mind. The procedure adopted by the learned Judge was also defective in another respect. The learned Judge neglected the duty cast upon him by the Code of Civil Procedure of properly framing the issues that arose between the parties; and so as far as I can see, the issues tried were purely with reference to the question whether the Will was or was not a forgery. Under the terms of the Civil Procedure Code in this country the issues are not solely settled on the pleadings. The Court has got to settle the issues on the pleadings and after hearing the Pleaders. It is obviously a case where, at any rate, some sort of enquiry ought to have been made as to how this spiritual adviser same to be named in the Will as the universal legatee subject to a small amount in favour of the widow. I think the case ought to be re-heard by the learned District Judge of the Court of first instance after settling proper issues in the case so as to have a proper guide as to what the case is. The judgment of the Court below ought to be set aside on the ground that there has been a mis-trial before the learned Judge, and the case must be sent back to the primary Court to have a new trial on proper issues to be settled as indicated above. Costs will abide the result of the re-trial before the learned District Judge. We assess the hearing fee in this Court at three gold mohurs.
3. I agree.