P L D 1966 Dacca 154 (PLP)

ABDULLA, J.‑This appeal is against the order of the District Judge of Jessore granting to the respondent Letters of Adminis tration with a copy of the will annexed in respect of the properties mentioned in the Schedule of the plaint. The plaintiff‑respondent‑applied for Letters of Administration under section 278 of the Indian Succession Act. It was alleged that the applicant Aghorananda was the nephew of testator Bepin Bahari Sikder, who executed a will on the 20th Chaitra, 1362 B. S. The application was opposed by the appellant Sarala Bala Sikder, the widow of the said Bepin Behari Sikder. It was alleged in the written statement filed by the said Sarala Bala Sikder that the alleged will was forged and a fabricated one as on the alleged date of the execution of the will the testator was seriously ill and it was not possible at all on his part to execute the will. It was further alleged that the will was against the natural probabilities as it sought to exclude the heirs of the testator, namely, the widow and the three daughters left by the testator. The case of the plaintiff has been sought to be proved by 11 witnesses whereas the defendant has examined 8 (eight) witnesses in support of her case. The learned District Judge, on an analysis of the evidence, came to the conclusion that the will was executed by the testator. Bepin Behari Sikder, of his own free will and it was duly and legally executed and attested and that the will was a genuine will and not a forged one. Having come to that finding, the learned District Judge decreed the suit in full on contest against the defendant. The widow, Sarala Bala Sikder, has preferred this appeal. Mr. Ruhul Islam, learned Advocate appearing on behalf of the appellant, has, first argued that the testator had no disposing mind or in other words, the testator had no testamentary capacity when the will is alleged to have been executed. In support of his, contention, he has drawn our attention to the evidence of P. Ws. 1, 2 and

6. The relevant evidence of the said witnesses are as follows: P. W. 1 Abdul Hamid Howlader has stated, "Begin Sikder was bed‑ridden. On seeing us he rose from bed and sat upon it. At that time he had no capacity to walk. The same P. W. 1 has also stated in cross‑examination, "One of the persons who were present there raised the question as to why. Begin Babu was depriving his wife and son. But Bepin Babu did not give any answer of it." . P. W. 2 Rajendra Nath Pal, has stated, "He (Begin Babu) died of fever on 22nd Chaitra, 1362 B. S. at his village home. He executed a will two days' before his death in favour of his elder brother Rajendra Nath Sikder's son Aghorananda Sikder." P. W. 6 Aghorananda Sikder, has stated, "At the time of execution of the will, Bepin was not unconscious but his physical condition was not good." He has further stated, "Begin died at the age of 50/55. He became infirm. I and my brother used to look after him and nurse him." In cross-examination he has stated, "Begin died of heart failure. He went to pass stool and when returned to bed he died of heart failure". From these evidence Mr. Ruhul Islam, wants us to hold that the testator Bepin Behari Sikder was not in his sense and he had no testamentary capacity. The evidence pointed out by Mr. Ruhul Islam, in our opinion, does not establish that Bepin Behari had no testamentary capacity at the time of execution of the will. Section 59 of the Succession Act reads as follows: "

59. Every person of sound mind not, being a minor may dispose of his property by will." Explanation l.‑A married woman may dispose by will of any property which she could alienate by her own act during her life. Explanation 2.‑Persons who are deaf or dumb or blind are not thereby incapacitated for making a will if they are able to know what they do by it. Explanation 3.‑A person who is ordinarily insane may make a will during an interval in which he is of sound mind. Explanation 4.‑No person can make a will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing." Illus. (iii).‑A being very feeble and debilitated, capable of exer cising a judgment as to the proper mode of disposing of his property, makes a Will. This is a valid Will. Mr. Rubul Islam has drawn our attention to Explanation

4. What is stated in that explanation, is merely the general pro position that a man doing any act to which legal consequences are to be attributed, must do the act knowing what he is doing. Section 59, if read as a whole, clearly lays down that a person not being a minor but of sound mind, may dispose of his property by will. The soundness is that of the mind and not of the body. Even a deaf or a dumb or a blind person has the capacity of making a will, the only test is whether they are able to know what they are doing. Illustration (iii) has been deliberately included by the Legislature to bring out this aspect of the matter. A' person might be very feeble and debilitated, but if he is capable of exercising a judgment as to the proper mode of disposing of his property, and he executes a will, the will be a valid one in spite of the physical incapability which he may suffer. Mr. Ruhul Islam on an. analysis of the evidence himself, has conceded that the defendant's case that Bepin Behari was lying unconscious 3/4 days before his death could not be accepted. He has fallen back, therefore, on the evidence on behalf of the plaintiff which would show that Bepin was in a very feeble condition of body and from that he wants us to conclude that Bepin Behari had no testamentary capacity at the time of his death. But the evidence as recorded is consistent regarding the mental capacity of Bepin, P. W. 1, in the next sentence to that quoted above, has stated, "Begin Sikder had been maintaining proper sense at that time. Beptn Sikder asked Rajen Babu to write the will. The will was written according to the directions of Bepin Babu." This evidence clearly shows that Bepin was in his‑senses and knew what he was doing. Regarding the other statements of P. W. 1 pointed out by Mr. Islam that Bepin did not give any answer when it was pointed out to him why he was depriving his wife and sons the word `sons' must be a mistake as it is an admitted fact that Bepin left behind no son but only three daughters the suitable explanation is that Bepin did, not care to answer as he was giving in‑the will itself the full reasons why he .was making the will. The reasons given are that his eldest daughter was married to a person in West Bengal and that his second daughter was married to a person who was in afflunt circumstance and he also gave directions for the main tenance of his widow and the marriage of his youngest daughter and for the `Nayar' of all the three daughters in the will itself. It is well known that every Hindu gentleman has repugnance to the idea of the property traveling out of the family. As no son was born to him, it was only natural that he should bequeath the property to his nephew with 'whom he was living jointly. In accordance with the evidence adduced, he had affection for his nephew Aghorananda whose father was untraceable for the last 14/15 years, and who had looked after his property while Bepin was in jail and also after he was released from jail as Bepin's health had broken down. P. W. 1 categorically denies that Bepin had become senseless 4/5 days before his death. That Bepin was ailing was the case of both sides but that he was in his sense and he gave clear directions for the will was not only testified by the plaintiff himself but by the scribe as well as the attesting witnesses. We have no hesitation in accepting this evidence. The fact that Begin died only two days after his illness is not inconsistent with his possessing testamentary capacity on the date of execution of the will. Further the defendant has brought out in cross‑examination of the plaintiff the fact leading to the death of the testator. The fact that he died of heart failure after coining back from the latrine when he had gone to case himself, is of very common occurrence. It shows clearly that Bepin had enough physical capacity to have gone to the latrine himself. The case of the plaintiff, that he was in full sense two days before his death, finds support from this evidence also. Therefore, in our opinion there is no substance in the first contention of Mr. Ruhul Islam. Mr. Ruhul Islam then has argued that the will is a fraudulent one inasmuch as there is no evidence that the testator gave the detailed directions which are now found in the will. The will, as already stated, contains full reasons why he was making the will and also makes provisions for the widow as well as the unmarried daughters and also regarding the `Nayar' of the married daughter. Mr. Ruhul Islam has contended that nobody states that the testator gave these directions. But we find from the evidence of the P. Ws. already quoted that Rajen Babu, the scribe, wrote the will and that the will was written according to the directions of Bepin Behari. The scribe Rajendra has testified to the following effect: "I wrote this will on the asking of Bepin. The will after it was written, was read over to Bepin who admitting its cor rectness, signed his name. Exh. 1 is that will and Exh. 2 is the signature of Bepin Behari Sikder ltd Exh. 2(e) is my signature in the will." Therefore, it is clear that the will was written in accordance with the directions of Bepin Behari himself. Mr. Ruhul Islam has cited the case of Brajeswari Dasi v. Rasik Chandra Ghosh and another (A I R 1925 Cal. 739) to the effect that the conditions of the will must be given by the testator himself. But the ruling cited actually goes against the contention of Mr. Ruhul Islam. Even if it be accepted that there were no directions of Bepin prior to the writing of the will, but in accordance with the ruling cited by Mr. Islam, the effect of Bepin's approval of those details in the will by affixing his signature is that the directions become those of Bepin himself. The evidence is clear that the will was read over to Bepin and Bepin approved of the same and put his signature thereafter. These are the two grounds on which Mr. Ruhul Islam sought to attack the decision of the learned District Judge. As we have pointed out there is no substance in these two grounds, the appeal is therefore, dismissed. In the facts and circumstances of the case we make no order as to costs. K. M. HASA N, J.‑I agree. S. B. A Appeal dismissed.