Venkatarama Ayyar, J. - (1.) This appeal arises out of an application filed by respondent 1 for probate of a will dated 28-11-1943 executed by one Bhabesh Charan Das Gupta. The testator died on 27-10-1944 leaving him surviving two sons, Paresh Charan Das (respondent 1), Naresh Charan Das (the appellant), and a daughter, Indira (the second respondent). The estate consisted of a sixth share in some ancestral lands at Matta in the District of Dacca, and a house No. 50, South End Park, Calcutta, built by the testator on a site purchased by him. By his will, he directed that a legacy of Rs. 10 per mensem should be paid to his younger son, the appellant, for the period of his life; that his daughter should be entitled to a life estate in five specified rooms in the house to be enjoyed either personally by her and the members of the family, or by leasing them to others; that a legacy of Rs. 10 per mensem should be paid to one or the other of two hospitals named, and that subject to the legacies aforesaid, respondent 1 should take the estate perform the sraddha, and pay one-sixth of the expenses for the worship of the diety installed in the ancestral house.
(2.) The first respondent who was the sole executor under the will, applied in due course for probate thereof. The appellant entered caveat, and thereupon, the application was registered as a suit. He then filed a written statement, and on that, the following issues were framed: (1) "Was the Will in question lawfully and validly executed and attested (2) Had the testator testamentary capacity at the time of the execution of the Will (3) Was the Will in question executed under undue influence and pressure exerted by Paresh Charan Das Gupta - The Additional District Judge of the 24 Parganas who tried the suit held in favour of respondent 1 on issues 1 and 2, but against him on issue 3, and in the result, probate was refused.
(3.) Respondent 1 took the matter in appeal to the High Court, and that was heard by G. N. Das and S. C. Lahiri, JJ. Before them, the appellant did not contest the correctness of the finding of the Additional District Judge that the testator had testamentary capacity when he executed the will. The two contentions that were pressed by him were (1) that the will in question was executed by the testator under undue influence of respondent 1, and (2) that it was not validly attested, and was therefore invalid. On both the questions, the learned Judges held in favour of respondent 1, and accordingly allowed the appeal, and directed the grant of probate. Against this judgment, the caveator prefers this appeal, and contends that the findings of the Court below on both the points are erroneous.;