S.K. Ghose, J.
1. The appellants Sudhir Chandra Pal and Manorath Chandra Pal applied for the probate of a will said to have been executed by Jugalram Pal or in the alternative, for Letters of Administration with a copy of the will annexed. The will in question is dated 3rd Pous 1814 corresponding to 19th September 1907. Jugalram died on 5th Pous following and it is said that he was then in a boat on his way to get the will registered. By the will the testator bequeathed his properties to his son Surjya Kumar Pal and be further provided that in the case of Surjya dying without male issue his nephews Ram Mohan Pal and Dhanram Pal would get the properties and he also appointed these two persons executors to the will. Surjya died on 16th March 1924 and he left no issue. Dhanram died on 3rd January 1925. Ram Mohan died on 18th December 1927. The petitioners claim that according to the provisions of the will they have become entitled to the properties of the testator and accordingly they make the application as above. The objectors are Uttara Sundari Pal, the widow of Surjya Kumar, and Sashi Bhusan Pal, the son of his sister. Their case is that the will was not executed by Jugalram Pal who was ill and unconscious for 8 or 10 days before his death and that he had no testamentary capacity and they further allege that after the death of Jugalram and during the lifetime of Surjya Kumar the properties used to be managed by Ram Mohan Pal. He colluded with the sons of Dhanram who tried forcibly to make Uttara Sundari affix her thumb impression on a blank stamp paper with a view to having a document written in respect of the properties left by Surjya Kumar. This led to criminal cases and ultimately Uttara instituted two civil suits against the petitioner Manarath and others claiming certain sums of money. During the pendency of the suits the present application for probate was filed. The learned Judge held that the will was genuine. But he further held that the gift over in favour of Dhanram and Ram Mohan was inoperative and in that view he found that the petitioners had no locus standi to make the application. Accordingly he dismissed the application. Hence this appeal.
2. As regards the question of locus standi the learned Judge no doubt refers to Sections 232 and 233, Succession Act. He was entitled to read the will in order to see whether in the circumstances the petitioners could come in as residuary legatees or their representatives. But he has gone further than that. He has construed the will in order to see whether the gift over in the will was a valid one or not and he has held that it was invalid. This is a question which s beyond the scope of the Probate Court:
The function of the Probate Division is to determine what documents are testamentary, and who is entitled to be constituted the personal representative of the deceased.' (Tristram and Coote's I robate Practice, Edn. 17, p. 5.)
3. The learned Judge was therefore clearly wrong in going beyond the terms of the will and in deciding a question of title which ought to be gone into in another Court. The real question therefore is whether the learned Judge is right in holding the will genuine. On this point the learned Judge has accepted the direct evidence as to execution which was adduced on behalf of the petitioners. Mr. Gunada Charan Sen, for the respondents has pointed out that there are certain circumstances which go to show that this direct evidence is open to suspicion. Surjya Kumar died on 16th March 1924. The present application was filed on 13th December 1928. During this period Ram Mohan, Dhanram, and their sons entered into transactions treating Uttara Sundari as heir to the properties left by Surjya Kumar. Ex. O, is copy of the plaint in a suit of 1924 in which Uttara was a co-plaintiff with Ram Mohan and Dhanram and subsequently Sudhir was substituted in place of Dhanram deceased. It is pointed out that in the plaint it was definitely Stated that Surjya Kumar had died leaving his widow, plaintiff 4, as his heir to the properties left by him.
4. On the other hand the suit had reference to properties which were purchased after the death of Jugalram. Ex P is copy of the plaint in another suit of 1924 in which Sudhir was one of the co-plaintiffs and Uttara one of the pro forma defendants was similarly described as heir to Surjya Kumar. It was however a simple money suit. The plaint recited that certain dues had been partitioned amongst plaintiff and pro forma defendants, but Uttara herself in her deposition stated that there was no partition of the ancestral properties. Moreover these are cases of litigation with third parties and it does not seem essential that a reference should have been made to the will.
5. Then there is Kobala Ex. F of 1928 which was executed after the death of Ram Mohan by Sudhir and his brother. It is pointed out that the share mentioned therein would be correct on the supposition that Uttarpara was the heir of Surjya Kumar. This however is not strong evidence and Mr. Sen has conceded that in so far as the question of the genuineness of the will is concerned this does not carry the matter any further. Mr. Sen however has drawn our attention to certain Jamabandi papers, Ex. R series and Ex. U series in which the name of Uttara Sundari was mutated in place of her deceased husband. This only goes to show that so far as the Collectorate proceedings were concerned the parties continued to treat Uttara as one of the family and in fact the name not only of Uttara but also of her mother-in-law Brahma Mayee was substituted in place of Surjya. The learned Judge does not expressly refer to these documents, but he points out that so long as there was no dispute in the family Ram Mohan and his brother might not have thought it necessary to go to the expense and trouble of obtaining probate of the will. I think this is quite a reasonable supposition. There is however evidence that towards the end of Ram Mohan's life trouble arose in the family. Uttara brought a criminal case against Sudhir, his brother Bepin, and others making charges under Sections 355 and 352, I.P.C. The case ended on 26th June 1928, the accused being convicted and fined. Uttara says that this case was brought during the lifetime of Ram Mohan who died while it was pending. Brahma Mayee the step-mothar-in-law also brought a cross-criminal case which was dismissed on 1st November 1928.
6. On 5th September 1928 Uttara filed these two civil suits referred to above against Sudhir and others. According to the petitioners Monorath found the will and the draft of it amongst his father's old papers in an almirah about a month after his death. Mr. Sen has contended that it is significant, having regard to the circumstances, that the application for probate was filed on 13th December 1928. This no doubt is a matter which has to be carefully considered. It is quite clear upon the evidence that for a long time after the death of the testator the parties lived in amity. Surjya Kumar lived until 1924 and until his death at least Ram Mohan or his brother did not feel any necessity to apply for probate. Dhanram died in 1925, but the evidence is that Ram Mohan managed the properties. It is no doubt a curious circumstance that Ram Mohan did not divulge the existence of the will to his son and the latter found it by accident at a time when it was most opportune. But on the other hand the dispute as evidenced by the criminal cases did not arise until towards the end of Ram Mohan's life. For a very long time he had treated Uttara as one of the family without raising any troublesome question as to her right to the properties. Whether advisedly or not he had not been acting on the will and in the circumstances it is not improbable that he did not speak about the will at all to his young son.
7. On the other hand the petitioners have produced a body of direct evidence in support of their case of the execution of the will. The document was witnessed by four persona of whom one had since died and another was ill. Two were examined before the Court and they were believed by the learned Judge. As regards Brindaban Chandra Pal, P.W. 4, Mr. Sen has contended that he made certain false statements with regard to another document Ex. C and therefore to that extent he was disbelieved, by the learned Judge. But really the statements do not seem to have been made deliberately falsely. The witness was not quite literate and he corrected himself almost immediately, There is also no reason why the other witness, P.W. 2, should be disbelieved and the same applies to the evidence of Dwarka. The argument that these witnesses are relations has really no force. There is a draft, Ex. 2, which is said to have been written by one Gopal Gobinda. This man could not be produced and the evidence is that he is the uncle of Sashi Bhusan De who is looking after the case for Uttara. This will appear from the evidence of the pleader, petitioners' witness 8. Gopal was cited as witness by the petitioners, but he did not appear and notice was ordered to be served by special messenger. Even then he did not appear and warrant was applied for. These proceedings are on the record and it is certainly a circumstance which makes the story of fabrication of the draft improbable.
8. Then looking at the document itself I am unable to hold that it could have been fabricated at the time as alleged by the objectors. It is a document of three pages and each page was signed by all the witnesses. The recitals and terms of the will clearly indicate that it came into existence at a time when Surjya Kumar was not married and was also not in good health and Ram Mohan and Dhanram were the only two other near relations in whose welfare the testator must have been closely interested. There is a curious recital in the very last passage of the will and it refers to certain corrections made in the body of the document. These and the various detailed provisions made to meet future contingencies in case Surjya Kumar should die unmarried or should die without a son and so forth, to my mind make the story of fabrication improbable. The petitioners have also examined the Doctor, P.W. 3, and his evidence is inconsistent with the objectors' case that Jugalram was ill and unconscious for days together, while the boatman, P.W. 6 corroborates the petitioners' case that Jugalram died on the boat on the way to the registration office. Mr. Sen has referred to the case of Vellaswami Servai v. Sivaraman Servai , in which it is held that where a will is propounded by the chief beneficiary under it, who has taken leading part in giving instructions for its preparation, etc., it is necessary that the evidence should clearly prove that the testator approved the will. Applying this standard of proof to the circumstances of the present case I cannot differ from the learned Judge and hold that the direct evidence in support of the execution of the will ought to be disbelieved. I agree with him in holding that the will was duly executed by Jugalram as alleged on 3rd Pous 1314. The petitioners are therefore entitled to Letters of Administration with a copy of the will annexed.
9. The appeal is accordingly allowed with costs in both Courts. We assess the hearing-fee at Rs. 300. The cross-objection is dismissed with costs two gold mohurs.
C.C. Ghose, J.
10. I agree.