L D 1957 Dacca 548 (PLP)

CHOWDHURY, J.‑

This appeal arises out of the judgment and decree refusing to grant Letters of Administration to the plaintiff by the Subordinate, Judge, Jessor, in Testamentary Suit No. 26 of 1953. Facts of the case, shortly stated, are as follows: Late Khentamani, widow of Panchu, died on the 16th of Jaistha, 1358 B. S., corresponding to the 31st of May 1951. Before her death she willed away her entire properties in favour of the plaintiff Bishakha Gupta by an unregistered Will, dated the 12th of Jaistha, 1358 B.S. Plaintiff is Khentamani's brother's daughter, and she looked after her in her last days. She filed an application for Letters of Administration before the District Delegate. In that application it is stated that the plaintiff is the niece of late Khenta Bewa, and there are two great grand‑daughters, namely, minor Aruna Dasi and minor Khuki Dasi of Khenta Bewa by her grand‑daughter daughter's daughter). On the citation by the District Delegate these two minor great grand‑daughters of Khenta Bewa appeared by filing a power, and applied for time to enable them to file objection. At that stage the District Delegate returned the application to the plaintiff petitioner who filed the present suit in the Court of the District Judge who transferred it to the Subordinate Judge. When the matter was pending before the District Judge, Bepin Behari Biswas, the present respondent No. 3, filed an application for permission to appear in the case, and the learned District Judge allowed his prayer, and he filed a written statement. The two minor great grand‑daughters of late Khenta Bewa did not file any objection which they promised to file before the District Delegate, nor they have filed any written statement. In paragraph 6 of his written statement respon dent No. 3 Bepin Bahari Biswas stated that the property, the subject‑matter of the Will, was owned and possessed by Bolai Mondal, father‑in‑law of Khenta Bewa, and after the death of Bolai Mondal the property was inherited by his only son Panchu Mondal, who died without any son, and his widow Khenta Bewa got that property with a life estate of a Hindu widow, that while she is owning and possessing it as such, she got the land recorded in her name in the last District Settlement, and as such, Khenta Bewa really had a life estate in the property, and she had no right to execute any Will in respect of that property, and that on the death of Khenta Bewa, the objector, a nephew and heir of Panchu got the property as a reversionary heir to his maternal uncle, and has been owning and possessing the same on receiving the usufruct through the husband of his niece (sister's daughter), Matilal Mullick. In his written statement, he also asserted that the Will was forged and prepared one, and it was not properly executed and attested; that Khentamani's grand‑daughter Sushila and her husband Matilal Mullick used to reside with and look after her, and that Khenta Bewa executed one Will in favour of Sushila, but Sushila predeceased her, and thereafter Sushila's husband Matilal Mullick lived with Khentamani with his two daughters. It is also alleged that he (Bepin) used to look after Khentamani till her death, and he and Matilal performed her Sradh ceremony. He characterised Kiron Gupta, husband of the petitioner as a clever man, and accused him for preparing this false Will with intent to defraud this defendant, who is legally entitled to inherit the properties as a reversionary heir of Khentamani's husband Panchu Mondal. The learned Subordinate Judge has come to the con clusion that it was Bepin Behari Biswas and Matilal Mullick who looked after Khentamani and her affairs in her last days, and Kiron or his wife the present plaintiff took no care of her at any time. So it was natural that the testatrix should have executed a Will in favour of Bepin Behari Biswas or in favour of her two great grand‑daughters, and not in favour of the present plaintiff who had no connection with her. In this view of the matter he held that the present Will iii suit was not genuine, and it was not duly and legally executed and attested, and refused to grant Letters of Administration to the plaintiff. Hence this appeal by the plaintiff. Mr. Dutt, the learned Advocate for the appellant con tends that what is needed for the Court in a proceeding for Probate or Letters of Administration is to decide whether the Will was really the Will executed by the testatrix, and whether it was properly attested or not. But the Court below without deciding this material question, illegally refused to grant Letters of Administration to the plaintiff. We have gone through the judgment carefully. We do not find any finding whether the disputed Will was executed by Khenta Bewa in favour of the plaintiff, P. W. 1 Manindra Nath Mazumdar the scribe, P. W, 2 Rajendra Nath Biswas and P. W. 3 Bholanath Gupta sufficiently proved the execution of the Will by Khenta Bewa and attestation by them, but the learned Subordinate Judge could not accept the evidence of these three witnesses for three reasons. Firstly, the ink by which the body of the Will‑ was written differs from the ink by which the testatrix's name as well as the names of the two witnesses Rajendra and Bholanath were written. Secondly, that though it was asserted by Rajendra and Manindra, the scribe, that the ink of the thumb‑impression was prepared on plantain leave with oil and lamp, none of the thumb‑impressions bears any sign or marks of oil. Thirdly, that there is a discrepancy in the evidence of these three witnesses on the point of draft, out of which this Will was prepared, and of the production of the Will in favour of Sushilabala at the time of the writing of this Will. The scribe Manindra says that he did not prepare a draft for the purpose of writing out of the Will, but he wrote it out on the instruction of Khentamani who produced all necessary papers relating to the properties. P. W. 3 Bholanath stated that there was a sort of draft, and Sushila's Will was produced before the scribe. Whereas P. W. 2 stated that no draft was made, and he did not remember whether Sushila's Will was produced when the present one was executed. The learned Judge also referred to the fact that the Will itself contains a reference to Sushila's Will. We regret our inability to agree with the learned Subordinate Judge because the discrepancies referred to ate not on material particulars but minor discrepancies. It does not affect the material portion of the evidence, namely, execution and attestation of the Will, which is most material for the purpose of decision in a Probate proceeding. He did not apply his mind to that aspect except a reference to his careful observation of each one of the five thumb- impressions, and in none of them he could find any trace or mark of oil as if thumb‑impression with ink prepared with the help of oil and lamp in a plantain leaf must bear some impression of oil. Sometimes thumb‑impressions may leave a trace of oil perceptible to eyes if sufficient oil is inadvertently used in preparing the ink with the help of oil and lamp on the plantain leaf, but it is not generally the case where the ink is prepared with a thin layer of oil placed on the plantain leaf, which are usually done by the village people. So, we cannot persuade ourselves to be one with the learned Subordinate Judge on this point. As to the difference in ink, the evidence is that when the scribe finished the writing and read it out to the executant, Rajendra took her thumb‑impressions on each sheet of the Will, and wrote her name by the fountain pen of Kiron. It is also in evidence that after taking the thumb‑impressions of the testatrix, Rajendra wrote her name and then he signed, and then Bholanath signed in her presence. The inks used in the circumstances by the witnesses which are of the same type must be the ink of the fountain pen of Kiron. The learned Subordinate Judge has not discarded the execution of the Will and attestation on the ground of difference in ink though he referred to the difference in ink in the writing of the Will, and in the writing of the name of testator, and of Rajendra and Bholanath. We have carefully examined the Will, thumb‑impressions of the testatrix, and signature of the attesting witnesses. We think in the circumstances there is no reason to create any suspicion as to the proper execution and attestation of the Will. Besides the contesting defendant Bepin Behari Biswas has not challenged these thumb‑impressions to be those of Khendra Bewa. He simply stated in his written statement that the Will is false and prepared by Kiron, whom he characterised as a clever man, but did not deny that those are the thumb‑impressions of the executants nor adduce any evidence. In course of cross- examination of the plaintiff's witnesses the only suggestion put to P. W. 1, the scribe, is, whether he wrote it long after the date given in the Will which he emphatically denied and said: "It is false that I wrote it long after the date given. I did not know Khentamani beforehand." It appears from the deposition of D. W. 1 at page 23 of the Paper Book that his anxiety was to prove only that it was he and Matilal who looked after Khenta Bewa in her last days, and not Kiron or the plaintiff. He in his deposition also stated: "It is false that Khenta executed a Will in favour of plaintiff. It is undoubtedly true that prima facie the burden lies on the plaintiff to prove the Will. We think the plaintiff has led evidence sufficient to prove that Will was executed by Khentamani, and it was attested by the three witnesses, P. Ws. 1, 2 and 3 mentioned above." It is no doubt true that natural affection and ties of the testatrix may be taken into consideration to ascertain whether the Will was really executed by the testatrix in favour of the‑ legatee as a circumstance where there is dispute or doubt that the testatrix had no testamentary capacity at the time of the Will or that the Will is not a genuine one, but if it is established by evidence beyond doubt that it is the Will executed by the testatrix, then that fact will outweigh the other circumstances. Further, what we find is that the plaintiff is nearer to Khenta Bewu as she is a brother's daughter than to two great grand‑daughters of Khenta Bewa, and in view of the fact that after securing a Will executed by Khenta Bewa in her favour, Sushila, the grand‑daughter, left the place along with her husband Matilal to their native village Gratore where she died, and did not look after her. We think it is natural that Khenta Bewa left the property to the plaintiff. Therefore, we hold that the plaintiff is entitled to get Letters of Administration with the copy of the Will annexed. Another aspect of the matter raised in this appeal which we like to discuss here before we part with the appeal is that from the facts stated, it appears that neither of the two great grand‑daughters of Khenta Bewa claimed any interest in the property either before the District Delegate or before the learned Subordinate Judge. They simply filed a Vakalatnama, and an application for time to enable them to file objection, but in fact no objection was filed before the District Delegate nor they have filed any written statement in the suit opposing the claim of the plaintiff. Only Bepin Behari Biswas, defendant No. 3, who with the leave of the District Judge appeared in the case, filed a written statement. In his written statement as well as in his deposition he claimed the property as a reversionary heir of Panchu, husband of Khenta Bewa, and denied the absolute character of Khenta Bewa's title. Therefore, his claim is not through Khenta Bewa, the testatrix, but adverse to her. In the circumstances he cannot be called a caveator under section 284 of the Succession Act, and has got no locus standi to enter into "contention" under section 286 of the Act. A caveat can be entered by any person having or asserting an interest in the estate of the deceased person but he must show that he has that interest by inheritance or otherwise. A title adverse to that of the testator or to, his estates or any portion thereof is not sufficient to sustain', the interest. The test is generally this: Will the grant of Probate to the petitioner displace any interest to which the caveator is otherwise entitled? If so, he has an interest? if not, he has none. In support of this view reference may be made to the case of Swatantranandji v. Lunidaram Jangaldas (A I R 1937 Bom. 397). Where the interest alleged on behalf of caveator is that the testator purported to dispose by the Will any property belonging to the caveator as if they belonged to the testator himself, the interest is not such as to support a caveat. In support of our view reference may also be made to the case of M. K. Sowbhagiammal and another v. Komalangi Ammal and another (A I R 1928 Mad. 803). In the present case defendant No. 3 is claiming the interest in the property not through Khenta Bewa, but as a reversionary heir to her husband Panchu. If he is aggrieved by the Will his remedy is not before the Probate Court, but before the ordinary Court of law. The result, therefore, is that this appeal is allowed with costs. The judgment and decree of the Court below are set aside, and we direct that Letters of Administration with a copy of the Will annexed be granted to the plaintiff -appellant. HASAN, J.‑I agree. K. B. A. Appeal allowed.