1. This appeal is against an order refusing Letters of Administration with copy of the will annexed.
2. The Will was executed by one Suresh Chandra Ghose on the 12th May, 1920, was registered on the 17th May, 1920, at 5 P.M. and the testator died that night. It appears that the testator was about 21 years of age at the time of his death. He had lost his father and mother and ha was for about two months before his death suffering from fever and diarrhoea, and was residing at the house of one of his paternal uncles Nabin, whose wife Brajeswari nursed him during that period. The will purported to give practically all the properties of the testator to Brajeswari after making provisions for a minor sister. Brajeswari propounded the will and two of the paternal uncles of the testator contested the will. The execution of the will by the testator is not disputed but the Court below has found that it was not properly attested, and that the testator was not of a sound disposing mind at the time of the execution of the will.
3. Brajeswari appealed to this Court and it is contended that the testator had not a sound disposing mind when he executed the will. There are six attesting witnesses to the will, three of them namely, Janmejoy, Harish Chandra and Lalit, have been examined besides a few others who were not attesting witnesses including Nabin, the husband of Brajeswari. The Court below was not satisfied on the evidence that the testator bad a sound disposing mind at the time. Nabin stated that the testator read the will and signed his name and that he was then in possession of his faculties. Harish deposed that the testator said that he had bequeathed the properties to his aunt and that he asked two or three questions to the testator to which the latter gave replies. Guru Charan said that when the testator died he was in possession of this faculties. Janmejoy was the scribe of the will and he said that he drafted the will at the request of Nabin, that Nabin called him to write out the will, and that he dictated the terms or the Will to him. Lalit another witness said that he was called by Nabin to witness the will and that the testator told him that unless he executed a will they would not nurse him and he would die. The witnesses Janmejoy and Lalit were declared hostile witnesses in the Court below. Now so far as the evidence of Janmejoy goes it would appear that instructions as to the will were given by Nabin but we are asked to live that evidence out of consideration because in the lower Court he was declared as a hostile witness. It appears that he was present before the Sub-Registrar and identified the testator. But leaving aside the evidence of Janmejoy and Lalit there is no evidence to show under whose instructions the will was prepared; whether such instructions were given by the testator or by Nabin as stated by Janmejoy.
4. Ordinarily, it would be sufficient if it were proved that the testator had approved the will, although there might be no direct evidence as to his giving any instructions. But in the present case the circumstances are these: the testator was a young man of about 21 years of age. He was suffering from diarrhoea and fever for at least two months before his death, and he was enfeebled both in body and mind at the time he was being nursed by his aunt who has set up the will. We think that in these circumstances it was necessary for her (the propounder of the will) to prove that instructions for the will ware given by the testator, at any rate that the terms of the will were understood by the testator and approved by him. Then in the next place we have to remember that the mere fact that the testator could say that it was his will or could answer some simple questions which were put to him does not show that he had a sound disposing mind at the time. As was pointed out in the case of Harwood v. Baker (1840) 3 Moor. P.C. 282 by the Judicial Committee ' that in order to constitute a sound disposing mind, a testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extant of his property, and the nature of the claims of others, whom by his will, he is excluding from all participation in that property: and that the protection of the law is in no case more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration and therefore, the question which their Lordships propose to decide in this case, is not whether Mr. Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.'
5. 'If he had not the capacity required, the propriety of the disposition made by will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity.' In the case of Langford v. Purdon 1 L.R. Ir. 75 it was observed; 'A man is competent to make his will if ho has sufficient memory and intelligence to be able to comprehend the nature of his property to remember and understand the claims of relations and friends and to have judgment of his own in disposing of his property; if a man possesses this amount of memory and intelligence, he is a competent testator; if he is not able to perform the mental acts mentioned, then he is not a competent testator.' In Seften v. Hopwood (1858) 1 F. and F. 578 it was said by Cresswell, J.: It is not sufficient in order to make a will that a man should be able to maintain an ordinary conversation and to answer familiar and easy questions. He must have more mind than suffices for that. He must have what the old lawyers called a disposing mind; he must be able to dispose of his property with understanding and reason. This does not mean that he should make what other people may think a sensible will or a reasonable will, or a kind will. But he must be able to understand his position, he must be able to appreciate his property, to form a judgment with respect to the parties whom he chose to benefit by it after death; and if he has capacity for that it suffices' [See also Woomesh Chunder Biswas v. Rash Mohini Dassi (1894) 21 Cal. 279 affirmed on appeal by the Privy Council in Bash Mohini Dasi v. Umesh Chunder (1898) 25 Cal. 824, Susil Kumar Banerjee v. Apsari Debi (1915) 20 C.L.J. 501, and Surendra Krishna Mondal v. Ranee Dassi (1921) 47 Cal. 1043]. Where the oases on the point are collected and discussed. As stated above the will practically gave all the properties of the testator to Brajeswari. The testator had three sisters, two of them were married and the third was a minor living with him. The only provision made with regard to the minor sister was that Brajeswari was to give her in marriage and if she failed to do so she would not get the properties mentioned in schedule Ka of the plaint which consisted of a homestead on 2 cottahs of land and the will directed that in that event the minor was to be maintained from the income of that homestead. That is all the provision with regard to the minor sister and nothing was said about the married sisters. The aunt certainly was not in the line of heirs at ail. It is true that she nursed him during his last illness. But the question is whether at that time he was able to understand his position to appreciate the property and to form a judgment with respect to his relations and their claims upon his bounty. Having regard to the circumstances of the case we are unable to differ from the Court below in the finding that he was not of a sound disposing mind. Had it been shown that the testator had himself given instructions for the will and that the will was prepared in accordance with his instructions it would have been a different matter. It is pointed out in the ease of Parker v. Felgate (1883) 8 P.D. 171 'If a testatrix has given instructions for her will, and it is prepared in accordance with them, the Will will be valid though at the time of execution the testatrix merely recollects that she has given those instructions but believes that the will which she is executing is in accordance with them.' There is no evidence of the testator having given any instructions for the Will.
6. It appears that the testator was attended by a Doctor named Radha Raman who has not been called nor the petitioner who nursed the testator has been examined though some steps appear to have been taken at an early stage for her examination on commission. These two witnesses would have been very competent witnesses to depose to the mental and physical conditions of the testator. The onus of proof was upon the applicant for Probate who was to satisfy the conscience of the Court that the testator had a sound disposing mind. The Court below came to the conclusion that it had not been proved and we are unable to differ from it. It is unnecessary in this view to consider the question whether the will was properly attested.
7. The appeal accordingly fails and is dismissed with costs, hearing fee being assessed at one gold mohur.