P L D 1961 Dacca 360 (PLP)

HAMOODUR RAHMAN, J.‑This appeal is against the judgment and decree of the learned District Judge, Dacca, passed in probate Suit No. 1 of 1958/12 of 1957 granting letters of administration with a copy of the Will annexed.

2. The petitioner applying for the Letters of Administration, sought to prove the Will of his father Rajendra Nath Roy of village Satkhamair within p. s. Sreepur in the District of Dacca executed on the 2nd of July, 1942, corresponding to the 17th of Ashar 1349 B. S. It was his case that his father who was a man of about 75/80 years of age, was in sound health and in a healthy state of mind when he executed the said will of his own free will and accord in the presence of some 15 attesting witnesses and the scribe who was a neighbour of his.

3. The said Rajendra Nath Roy died on the 18th of November, 1942, corresponding to the 2nd of Agrahayan 1349 B.S. leaving, two son., namely, the petitioner and one Jugesh Chandra Roy (P. W. 5), three grandsons being sons of his predeceased son Manindra Kumar Roy and one daughter. The testator had in his life time installed a thakar in his homestead called Sree Sree Ramkrishna Paremangsha Dev and was the shebait thereof. By his Will, therefore, he dedicated some of his properties to the aforesaid thakar for the maintenance and due performance of the sheba puja and out of the rest of the properties, he made certain specific bequests setting aside a special portion for his eldest son, the petitioner in these proceedings. The reason for giving this special benefit to the petitioner, as stated in the will, was that the petitioner could not be given a proper education, as he was an ailing person from his boyhood and was in his present circumstances unable to maintain his family. The rest of the properties mentioned in schedule `Ga' to the Wall were bequethed jointly to the sons and grand‑sons of the testator in proportion to their respective share which they would have got by inheritance namely, one‑third to the petitioner. one‑third to P. W. 5 and one?-third to the grand‑sons.

4. The Will it was claimed, was the last Will and testament of the said testator and indeed, in the Will itself it was recited as follows :‑ "This is my last Will. I did not make any Will earlier and I do not intend to change this Will in future."

5. The application for Letters of Administration, was made by the petitioner alone, as his brother and his nephews did not join in the matter.

6. The grandsons contested the said proceedings by filing a joint written objection through their constituted attorney one Abdul Gafur Pathan. They denied cost of the allegations con?tained in the petition and claimed that the Will was on ante‑dated document and was neither legally executed nor duly attested. According to them, the testator had, from some five or six months before his death, became anile being over 100 years old and was not in his proper sense so as to know what he was doing ; that he was under the complete control and sway of the petitioner who had, in collusion with his own near relations and other persons under his influence, got a Will written and made out to suit his own cupidity. They further asserted that the signature of the testator was obtained on the Will without letting him know the contents thereof. In any event, they claimed that the testator was for four or five months before his death, which occured in Aswin, 1349, B. S. and not in Agraheyan, 1349, B. S. as alleged by the petitioner, not in a fit mental or physical condition to execute any Will. They also stated in paragraph 3 of their petition of objection :‑ "That the writing annexed along ,with the petition is 'not the Will, far less the last Will of the deceased Rajendra Nath Roy." They further claimed that this application for probate had been find to frustrate the partition suit already filed by them for the partition of the estate of the said Rajendra Nath Roy as on a intestacy.

7. At the hearing, however, the only issues that were raised were as follows (1) Is the Will a genuine one and was it duly .executed and attested ? (2) Had the testator testamentary capacity at the time of execution of the Will ? (3) To what relief if any, is the petitioner entitled ?

8. This Will, it appears, was registered in the office of the Sub‑Registrar, Joydebpur where it was presented for registration on the 5th of October, 1942, according to the endorsement of the Sub‑Registrar by the testator himself. The testator on being duly identified, admitted execution of the Will before the Sub?-Registrar and the Will was actually registered on the 28th of October 1942.

9. In support of their cases both sides examined, five witnesses respectively. Of the witnesses examined, neither the petitioner himself nor anyone of the objectors gave evidence in this case. But the first four witnesses examined on behalf of the petitioner claimed to be attesting witnesses to the Will and the last witness was the second surviving soil of the testator who also claimed that he was present at the time of the execution and the attestation of the Will. This last witness is a practicing Muktear at Dacca and is a person who has received a little less than his brother, the petitioner, under the said Will. All these witnesses have uniformly and consistently stated at the time of the execution of the Will the testator was in full possession of his mental capacities and was in good health and that he was about 75 or 80 years old at the time of his death. The Will, it appears from their evidence, was written out at the same sitting in the presence of the attesting witnesses by one Benode Behari Das with reference to a draft said to have been made by a pleader by Nilkamal Chekraborty. After the Will was written out, the witnesses say that the testator read the Will and then signed it in the presence of the attesting witnesses and the attesting witnesses attested the signature of the testator thereafter in the presence of each other. The Will itself contains the declaration that :‑ "In sound health and mind and sitting in the assembly present and having fully read and understood the contents of this Will, I execute this Will this the 17th of Ashar, 1349 B. S. corresponding to 2‑7‑42 A. D."

10. Out of the first four witnesses, witness Nos. 1, 2 and 3 were in no way related to the testator. Indeed, the first two witnesses were residents of another village called Baka Sahara situated at a distance of little over half a mile from the house of the testator but it appears that they were, well known to the testator and were on visiting terms with him. Witness No. 1 actually also attended the funeral of the testator. Witness 2 even visited him during his last illness just before his death. The evidence is that the testator died of typhoid fever contacted, just ten or fiftteen days before his death. Witness No. 3 was Muslim and the President of the Bermi Union Board. He was a resident of the same village as the testator and knew hire well. He also corroborated the other witnesses fully with regard to the capacity of the testator, to understand what he was doing and as to the valid execution and attestation of the said Will. He denied that the Will was a fabricated document or that the deceased was, either due to senility or disease, incapable of executing the Will at that time. According to him, it took about an hour to write out the Will during which time he was present and then the testator read it over for 10 or 15 minutes and compared the same with the draft which he had with him and it was after that stage that the Will was executed by the testator and attested by the attesting witnesses. The Will itself shows that some 15 witnesses attested the Will, of whom five were Muslims. According to this witness, the testator was not more than 80 years old at the time.

11. It may be mentioned here that although each of these witnesses was cross‑examined on behalf of the objector, the cross‑examination was directed only to elicit as to whether the testator had the capacity to execute the Will at the time and whether any valid Will was in fact executed or attested as alleged by the petitioner. Indeed, to one it has been suggested that the petitioner took a written Will to the houses of different witnesses and produced their signatures. This was, of course, denied by the witness. There is no suggestion, however, to any witness that this is not the last Will or testament of the testator or that the testator did, in fact, execute any other subsequent Will or codicil.

12. As against this, the objector also examined one of the attesting witnesses mentioned in the Will and four other witnesses to establish that the testator died in Aswin, 1349, B. S., and that he was not in a state of health to be able to execute the Will or i to understand what he was doing at the time that the Will was alleged to have been executed by him.

13. The first witness stated in his examination‑in‑chief that hearing of the serious illness of the testator he went to the latter's house and at that time his son, the petitioner, brought the Will and asked him to sign it, and, therefore, he signed it as .an attesting witness. At that time the testator was incapable of even talking. In cross‑examination, however, he clarified that this was at the time of the illness of the testator from which he never recovered but he could not say how long after he signed the Will the testator died. He admitted that at the time he put his signature on the Will as an attesting witness the Will had already been signed by some others who were present in the house, when he went there together with many other people. He mentioned the names of two persons, namely, Nabeb Ali and Bujrak Ali, as being persons who had already their signatures on the Will as attesting witnesses and was forced to admit in cross‑examination that these persons also requested him to sign the Will. He enquired from them if they had done so and when they said that they have done so and he saw their signatures on the Will, he put his own signatures thereon. It appears that on his own admission this witness is a T. B. patient in a T. B. Hospital and came from the Hospital to give evidence in this case.

14. The next witness is the constituted attorney of the objector himself. He claimed that he knew the testator well, as his house was within 100 or 150 cubits from the house of the testator. According to him, he never heard of the Will of the said testator and the testator having been ill for about a year before his death, could not move out and did not possess the physical capacity to go to Joydebpur from Setkhamair at the time of the Will. He also did not possess mental capacity to understand the contents of the Will. In cross examination however, he had to admit that the house to which he referred as his house was the house of his maternal uncle to which he came only in 1347 or 1348 B. S. and that since then he had pur?chased all the properties of his maternal uncle who was now living by begging. It was suggested to him that he had filed the objec?tion to these probate proceedings on the strength of a general Ammuktearnama given to him by the objector without consulting the objector and his brother. He denied the same but he admitted that he had in fact written to the objector to come and depose ?in this case but the objector had declined to do so.

15. The third witness, also a resident of the same village as the testator, claimed to be on visiting terms with him so much so that he maintained had he made any Will he would have known it. Curiously enough, in spite of such great intimacy he could not give the year of the death of the testator nor could he give the month or year in which he last saw the testator. Nothing is, however, stated to show as to how he came to acquire this intimacy with the testator. The testator was certainly a man of means and position but unfortunately we have not even been furnished with the occupation of this witness and hence, we are not in a position to say that the social status or position of this witness was or whether he could at all be on such terms of intimacy with the testator.

16. The next witness examined on behalf of the objector was also said to be a resident of the same village and although he tried to give evidence in support of the objector's case in his examination‑in‑chief by stating that from the' previous Chaitra or Baisakh of the 'ear 1349 B. S. the testator could not go to hat or bazar or understand the contents of any document, however, in cross‑examination he stated that he went to see the testator three days before his death but he could not remember on what other occasions previous to that he saw him On this occasion, however, when he went to see him before his death, the testator actually told him that he was approaching the end of his life. This is a significant admission. If the testator was then, even according to the statement, in a position to say these things to him, it indicated that he was in his full senses and not, as sought to be made out, without any mental capacity. In any event, this witness is an uncle by village courtesy to the constituted attorney of the objector.

17. The evidence of this last witness also does not disclose how he came to know the testator. He claimed that 10 or 15 days before the testator's death he went to see him and on that occasion although he himself had no talk with the testator, he saw the testator talk to his own relations. He also admitted that the testator actually died of fever although he could not say the year in which he so died.

18. Upon this evidence, the learned District Judge have come to the conclusion that the Will was legally executed and attested and that the testator Rajendra Nath Roy was quite sound physically and mentally at the time of making the Will and that he fully understood the contents of the Will at time of its execution.

19. It appears further that notwithstanding the evidence of the witnesses examined on behalf of the objector that the testator died in Aswin, 1349 B. S., and not in Agrahyan, 1349 B. S., the learned pleader for the objector conceded at the time of argument that Rajendra Nath Roy died on the 18th of November 1942, as stated by tile witnesses examined on behalf of the petitioner, and noted in the death register which was produced in Court and thereby admitted that .his own witnesses were liars. In these circumstances, the learned District Judge has allowed the probate.

20. The learned advocate appearing on behalf of the appellants in this case has, however, contended that the evidence of the witnesses examined on behalf of the petitioner should not have been relied upon, firstly, because some of the witnesses were not residents of the same village as the testator, whilst one was the son of the testator himself and the other the son‑in‑law of the testator. In other words, according to the learned Advocate, the first three witnesses should not be relied upon because they were not related to the testator and the other two should not be relied upon because they were related to the testator. We are afraid we are unable to appreciate the logic of this argument. We feel that the learned District Judge has rightly relied upon the consistent evidence of three disinterested and independent witnesses whom he has alto characterised as respectable witnesses.

21. So far as the evidence of the witnesses examined on behalf of the objector is concerned, we feel that we need say no more than that even the learned Advocate appearing for the objector did not consider their veracity beyond question. In any event, the evidence which has already been discussed above, will disclose that by cross‑examination it has been sufficiently elicited that they are not disclosing the whole truth. We do not consider, them, therefore, reliable in the present case.

22. Lastly and this appears to be in the main argument advanced on behalf of the appellants, it is argued that in so far as none of the witnesses have stated that the Will sought to be propounded was the last Will of the testator and as there is no clear finding of the learned District Judge that this is the last Will of the testator, there is a serious lacuna in the proof of the Will and, therefore, the letters of Administration should not, in the circumstances, have been granted.

23. The argument appears to be that the onus of proof in every case lies on the person seeking to prove the Will to satisfy the conscience of the Court that the instrument so propounded is the last Will of the testator, and unless this onus is discharged the Will cannot be allowed to be propounded.

24. In support of this contention reliance has been placed on a decision of the Judicial Committee in the case of Pendock Barry v. James Butlin ((1838) 2 Moore P C 480). In this case the Will sought to be propounded had been executed in duplicate and the validity thereof was disputed by the objector on the ground that the execution was procured by fraud and conspiracy of certain person at the time when the deceased was of unsound mind and wholly incapable of making or executing a Will or doing any act requiring thought, judgment and reflection. It does not appear from the report that there was any question as to the Will sought to be propounded not being the last Will in point of time. On these facts, Parke, B. in delivering the opinion of the Board observed as follows : "The rules of law according to which cases of this nature are to be decided, do not admit of any dispute, so far as they are necessary to the determination of the present appeal ; and they have been acquiesced in on both sides. These rules are two ; the first that the onus probandi lies in every case upon the party propounding , a Will : and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. The second is; that if a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased." But later he himself explained the rule as follows :‑ "The strict meaning of the term onus probandi is this, that if no evidence is given by the party on whom the burden is cast, the issue must be found against him. In all cases the onus is imposed on the party propounding a Will, it is in general discharged by proof of capacity, and the fact of execution, from which the knowledge of and assent to the contents of the instrument are assumed, and it cannot be that the simple fact of the party who prepared the Will being himself a legatee is in every case; and under all circumstances, to create a contrary presumption, and to call upon the Court to pronounce against the Will unless additional evidence is produced to prove the knowledge of its contents by the deceased."

25. The same view was, it appears, also expressed by their Lordships of the Judicial Committee in another case reported in the same volume namely, in the case of William Baker v. James Batt ((1838) 2 Moore P C 317). In that case, too, there was no question as to whether the Will set up was or was not the last Will in point of time. But the only question was whether the Will which was 'in that case prepared by the testarix's husband's solicitor, unknown to the testatrix, upon instructions given by the husband and by which the husband was himself appointed the sole executor and residuary legatee of the Will, had been obtained under influence and control of the husband on her death‑bed.

26. In the case of Tyrrel v. Painton and another (1894 L R Probate Div. 151) this rule was further explained and it was observed by Lindley, Lord Justice that the rule. "Extends to all cases in which circumstances exist which excite the suspicion of the Court and wherever such circums?tances exist, and whatever their natural may be, it is for those who propound the Will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the Will to prove fraud or undue influence, of whatever else they rely on to displace the case made for proving the Will." In the Courts in India, however, it appears that a caution has been sounded to the effect that notwithstanding the value of these decisions :‑ "It must not be forgotten that the law is laid down for us in clear and imperative terms by Acts of the Indian Legislature, and it is by the provisions of those Acts that must be guided." This was the warning sounded by Chief Justice Jenkins in the case of Jarat Kumari Dassi v. Bissessur Dutt (I L R 39 Cal. 245) after referring to the rule in Barry v. Butlin. The learned Chief Justice while consider?ing the provisions of a Hindu Will, first' of all pointed out the conditions necessary for a valid Will under those laws and then observed as follows : "Next we have to see how the existence of those conditions is to be established. For this T turn to the Evidence Act, which declares by section 3 that a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists ?????. Accepting the external test which experience commends, the Evidence Act, in conformity with the general tendency of the day, adopted the requirements of the prudent men as an appropriate concrete standard by which to measure proof." In the same case Woodroffe, J., expressed himself as follows "I would observe that the rule in Tyrrell v. Paintan applies in my opinion to cases where the circumstances of suspicion arise from the nature of the case as put forward by the pro?pounder. In such cases the propounder must remove the suspicion which his own case creates. Where, however the alleged suspicion against a Will arises from facts which form part of the impugnant's case then the Court must see whether the facts which are said to give rise to the suspicion are proved or whether the plaintiff's case is proved The rule, therefore, does not apply where the question is simply which set of witnesses should be believed."

27. Again, in the case of Mt. Rajdulari Bibi and others v. Mt. Krishna Bibi and another (A I R 1926 Pat. 269) a Division Bench of the Patna High Court observed as follows : ‑ "That the rule to which expression is given in the two cases (namely, Pendock v. Barry James Butlin and Tyrrell v. Painton) cited above is a rule of prudence not a rule of law." But "the onus" under this rule, " is in general discharged by the proof of capacity and the fact of execution from which the knowledge of and assent to its contents by the testator will be assumed."

28. In the case of Surendra Nath Chatterjee v. Jahnavi Charan Mukherjee (A I R 1929 Cal. 484) the Calcutta High Court again after referring to the rule in Barry v. Butlin observed :‑ "That in India there was only one testator proof with regard to all civil cases," and went on to say. "That in all cases whether it is a Will case or a case with regard to say other document, the Court must be satisfied upon the evidence in order to make a decree in favour of the party relying on the document. There is no absolute test for weighing evidence, specially as regards oral evidence which is given by the contending parties in a Court of justice. The Judges should try their best to ascertain the truth and that can only be done in the manner provided in the Evidence Act, and the proof necessary to establish a Will in this country is not an absolute or conclusive one, but such proof as would satisfy a prudent man. Moreover it seems to me that the propounder of a Will has to remove only such suspicious circumstances as are suggested by the objectors."

29. On a review of these decisions, it appears to us that the rule, at any rate, as prevailing in this part of the world appears to be not as suggested by the learned Advocate appearing in support of this appeal, (sic) for, there is no rule of law as to the particular kind or description of evidence by the Court must be satisfied as the truth of a case. The degree of suspicion existed and the weight of the burden imposed on the person propounding the Will, must depend on the nature of the circumstances of each case.

30. In the facts and circumstances of this case, it appears that in the petition of the propounder it was clearly stated that the Will set up was the last Will of the testator. This fact was not specifically challenged in the petition of objection, for the case made out in the petition of objection was that it was not at all a Will. No specific issue was raised as to this fact, nor was any suggestion made to any witness examined on behalf of the propounder that this was not last Will or that any other later Will existed. Indeed, the case of the objector was that the ‑said testator had not executed any Will but died intestate and, therefore, he had filed a suit for the partition of his properties. In the circumstances, it seems to us that the averment in petition remained unchallenged and once the propounder had succeeded, as we have held, to prove the due execution and attestation of the Will by the testator in a sound state of health and mind with proper mental capacity and with full under?standing, the onus had been adequately discharged. In the absence of any other Will being `set up, it may well be assumed that this is the last Will of the testator and in the present case, in particular, we are relieved of this necessity of doubting this, for, in the Will itself the testator had stated that this was his last Will, and he does not intend to make any Will, thereafter. The evidence furthermore is that a few months after the execution of the Will, the testator died as a result of typhoid fever.

31. In these circumstances, there appears to us to be no suspicious circumstances before us which would entitle us to prove any further into this matter. Our conscience is fully satisfied that this was the last Will of the testator. Indeed, having regard to the fact that there is the testimony in this case of trustworthy witnesses of good position and undoubted respectability who were able to observe facts and draw inferences therefrom and who acted not in secrecy but with the utmost publicity in the midst of a large assembly having no intelligible motive to engage in a conspiracy for setting up a false testamentary instrument, it seems to us that the Will has been sufficiently established to be the last Will of a free and capable testator and that it was rightly propounded upon the overwhelming of five witnesses. For these reasons, we see no reason to interfere in this matter and dismiss this appeal accordingly with costs. SIDDIKY, J.‑I agree. K. B. A.?????????? Appeal dismissed.