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Benodini Debya Vs. Hridoy Nath Ghoshal - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in45Ind.Cas.187
AppellantBenodini Debya;durlav Das Bysak
RespondentHridoy Nath Ghoshal;durlav Das Basak;hridoy Nath Ghosal and anr.
Excerpt:
probate, delay in taking, consequences of. - .....hindu lady harasundari debi propounded a document dated the 21th july 1896 as the last will of harasundari. the grant of probate was opposed by the first appellant benodini debya who is the widow of the only son of hara sundari and also by the second appellant who is a mortgagee.2. the case put forward was that hara sundari made this will on the 24th july 1896 and died in the year 1896 or 1897, the state of affairs was that she had three daughters and one son hari das. hari das died on the 28th november 1913 and the will was not put forward for proof until after his death. the case was clearly one demanding careful investigation having regard amongst other reasons, to the long time which elapsed between the death of the testatrix and the date on which the document was put forward for.....
Judgment:

1. These two appeals are preferred by the objectors in a Probate application. The respondent in the present appeal who is a daughter's son of a deceased Hindu lady Harasundari Debi propounded a document dated the 21th July 1896 as the last Will of Harasundari. The grant of Probate was opposed by the first appellant Benodini Debya who is the widow of the only son of Hara Sundari and also by the second appellant who is a mortgagee.

2. The case put forward was that Hara Sundari made this Will on the 24th July 1896 and died in the year 1896 or 1897, the state of affairs was that she had three daughters and one son Hari Das. Hari Das died on the 28th November 1913 and the Will was not put forward for proof until after his death. The case was clearly one demanding careful investigation having regard amongst other reasons, to the long time which elapsed between the death of the testatrix and the date on which the document was put forward for Probate and also because Hara Sundari was an illiterate Hindu lady, the case would have to be carefully scrutinized. On that footing the prior history is not unworthy of consideration in this case. I think that if the Will was made there could be little doubt that it was made because the only son of the deceased Hara Sundari was of loose morals and addicted to dissolute and drunken habits. The evidence seems to show that he had early in his career disposed of two gardens or garden houses for the purpose of satisfying his pleasures in these ways. There seems to be no doubt that this property formed the subject of a deed of gift that was given by Hari Das to his mother Hara Sundari and the reason of that deed of gift was to preserve a certain portion of the estate which was the property of Hari Das from being wasted and spent by Hari Das. The case would, therefore, be that unless this lady Hara Sundari had left a Will, in the ordinary course, the property would go back to her son Hari Das and the deed of gift would have been presumably a useless transaction.

3. Now in a case like this the Judge had before him in the primary Court direct evidence proving the preparation and execution of the Will. It is quite true that that evidence is not without certain discrepancies. But the learned Judge having seen the witnesses and beard them give their evidence and observed their demeanour, has come to the conclusion that these witnesses are witnesses of credit. That is the first point that arises on the present appeal. What has the learned Vakil in support of the appeal been able to place before us to lead us to come to a different conclusion with regard to these witnesses from that of the learned Judge who saw them in the witness-box give their evidence P. He has been able to suggest nothing except that the case was one for careful scrutiny and enquiry which it clearly was. But the learned Judge had to come to a conclusion one way or the other. After careful enquiry and having heard the witnesses on both sides, he came to the conclusion that these witnesses are witnesses of credit. Nothing has been shown to us which would entitle us to come to a different conclusion from that of the learned Judge in the Court below.

4. The witness to whom the learned Judge paid considerable attention was a Brahmin witness named Shamapada Chatterjee who had reached the mature age of 80 years and retired to the city of Benares with a person who is called in the evidence either his relative or pseudo relative. The case put forward by the learned Vakil for the appellant which he statos on his own knowledge is that many people retire to Benares for some indirect reason or other, that they go there because they may more easily marry their family or for some similar reason. Making every allowance far the personal knowledge of the learned gentleman a Hindu of the mature age of 80 years, would not ordinarily have unmarried children, none of this witness's family went to Benares with him except that woman who cooks his meal and who is described as a relative or psfitdo relative. The relationship between them appears from the evidence to be a slender one. The line of erobs-examination of this witness as to his relationship with this relative, seems to suggest that soine inore tender relationship existed between these two persons than what the witness was willing to disclose. That may or may not be so. That is no reason for disbelieving this man. Then it is said that his memory improved as he went through this long and tedious examination and cross-examination before the Commissioner. Well his memory did improve. But it is not unnatural if we find that on the 19th day from the commencement of his examination be was able to repeat the contents of the Will by heart. I expect that not only he but also every Pleader and Commissioner wonld have known the contents of the Will by that time. The evidence of this witness seems to be substantially in acsord with the evidence of the witnesses who appeared before the learned Judge and whom the learned Judge believed. On the other hand, against this evidence which the learned Judge has believed, there is nothing except the witnssses who stated that they did not hear anything of the Will.

5. The second point put forward against these witnesses is that if their evidence is true why such a long period elapsed between the death of Hara Sundari and the propounding of the Will. There seems to be many reasons for this, one of them being that Wills in this country sometimes, I do not say always, are not propounded until it becomes necessary to propound them. Avoidancg of Probite duty is in some cases sufficient reason for keeping the Will back until there is a strong reason for putting forward. Although a Will put forward so late as this one, must give rise to a case in which the Court is bound to scrutinize the evidence very carefully, there is no rule of the law of evidence that a Will propounded 17 years after the death of the testatrix, is incapable of being proved.

6. Nothing has been shown to us in this case which would entitle us to displace the finding of fact made by the learned Judge in the Court below on the evidence of the attesting witnesses whom he saw give their evidence before him. He came to the conclusion on that testimony that this lady Hara Sundari did in fact execute the Will. That being so, we must accept that the document in fact was the last Will of Hara Sundari. That being so, the present appeals fail and must be dismissed with costs. We assess the hearing fee in these two appeals at Rs. 250.


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