S.A.Masud, J. - (1.) In this matter the Will of one Sm. Rajlakshmi Dassi of No 7 Fariapukur Street, now known as Sibdas Bhaduri Street. Calcutta has been challenged by the defendant, hereinafter described as "Mohanta." According to the plaintiff. Bechulal Das, the sole executor, Rajlakshmi executed her will on November 28, 1929 and thereafter on December 18, 1929 she died. Under the said will the testatrix has provided for a life interest in the said premises No. 7 Fariapukur Street in favour of her younger sister Sm. Saraswati Dassi. It is also provided that on the death of Sm. Saraswati Dassi the brother of the testatrix Shri Gopal Chandra Das and his daughter Sm. Jagatomohini Dassi shall enjoy the said property in equal shares during the period of lifetime of each of them. The Will further states that on the death of the said Gopal Chandra Das and Sm. Jagatmohini Dassi 5 persons, i.e. Surendra Nath Das, Ganendra Nath Das, Ananda Nath Das. Dwijendra Nath Ghosh and the plaintiff Bechulal Das will get the said property in equal shares absolutely. The testatrix under the Will also devised to the plaintiff Bechulal Das her 1/3rd share absolutely in a brick built house at. Nabadwip immediately on her death, On December 17, 1933 Saraswati and Jagatmohini separately executed two wills in respect of their respective 1/3rd. share in the Nabadwip property in favour of the said Mohanta. On December 2, 1944 Mohanta made an application in Nadia for probate of the will of Saraswati (probate Case No. 101/1944). Some tune in 1947 Gopal Chandra Das died. The plaintiff and Jagatmohini contested the probate proceeding in respect of Saraswati's will and also filed written statement on October 6, 1947 probate was granted to Mohanta in respect of the will of Saraswati and simultaneously a compromise took place. In the said proceedings it was agreed that Mohanta will sell 1/3rd share of Saraswati in premises No. 111, Bowbazar Road. Nabadwip to Bechulal and in fact the sale took place on Oct. 7, 1947 and the probate was granted to Mohanta on October 10, 1947. On March 15, 1958 Jagatmohini died. Mohanta who was also the executor of Jagatmohini's will applied for probate. in the Court at Nadia, Bechulal contested the said probate proceedings and filed a written statement where he mentioned the existence of Rajlakshmi's will. Bechulal contested the said probate proceedings, but towards the later part of the hearing he did not appear and consequently probate was granted to Mohanta on April 9, 1962. On September 20, 1963 Mohanta filed a suit in this court against Bechulal claiming the Calcutta property under the will of Jagatmohini. In the said suit on February 11, 1964 Bechulal filed a written statement. On June 6, 1967 Bechulal made an application before this court for grant of probate to him as the executor to Rajlakshmi's will. On July 29, 1967 probate was granted to Bechulal in common from without special citation in favour of Mohanta. On March 5, 1968 Mohanta's suit appeared in the list of Deb, J. for hearing. Next day Bechulal's solicitor sent a copy of the probate to Mohanta's solicitor stating that under Rajlakshmi's will Mohanta had no right, title and interest in the Calcutta property. On July 30, 1968 on the application of Mohanta the said order for grant of probate of Rajlakshmi's will to Bechulal was revoked by consent. On September 3, 1968 Mohanta entered caveat and the present proceeding before me arises out of Bechulal's original application for grant of probate. Mohanta is seriously challenging the existence and the validity of Rajlakshmi's will. The following issues have been raised and settled:--Issues. 1. Is the alleged will genuine? 2. Was it validly executed? 3. Did the testatrix have testamentary capacity at the time of execution of the said will? 4. To what relief, if any, is the petitioner entitled? In my view the evidence relating to issues Nos. 1. 2 and 3 may conveniently be discussed together.
(2.) The first witness called by Bechulal is Durgagati Chakraborty, a retired Government servant of 69 years age. His evidence may be stated as follows. He knew Rajlakshmi personally who died on December 18, 1929. He frankly has admitted that Bechulal was his friend and occasionally he went to visit him at his house and in that connection he came to know Rajlakshmi. Bechulal used to call Rajlakshmi 'pisirna' i.e. paternal aunt and was residing with her at No. 7 Fariapukur Street. On November 28, 1929 at about 3 p.m. he went to Rajlakshmi's house. He went there and found some witnesses there; Rajlakshmi was present and her younger sister Saraswati was also present. He went there at the request of Bechulal who asked him to be present there for being a witness to the execution of the said will. One Ashutosh Ghosh read over the will to Rajlakshmi and after hearing the contents of the said will she approved the same. Thereafter she put her signature in his presence and after her signature, Sunit Chandra Mitra, a pleader and Dr. M.L. Sarkar and thereafter Ashutosh Ghosh and Nidhuram put their signatures one after another. He signed the document after all of them. He has identified the will and also encircled the signature of Rajlakshmi, himself and other witnesses i.e. Sunit Chandra Mitra. Dr. M.L. Sarkar and Nidhuram. According to him all the signatures were made at the same sitting. He in fact identified the signature of Rajlakshmi in all the pages of the will (Q. 19 to 47). Various questions were put in the cross-examination by Mr. Banerjee on behalf of the said Mohanta. In answer to Q. 178 he said that Rajlakshmi was not very much conversant with reading and writing and the substance of the will was read over to her. Rajlakshmi could not read and write but could just put her signature somehow (Q. 179).
(3.) Mr. Ghosh on behalf of the plaintiff next called Sunit Chandra Mitra a lawyer of 74 years age. The substance of his evidence may thus be stated. He has identified his own signature and also the signatures of Rajlakshmi and Ashutosh Ghosh in the will. Apart from Ashutosh Ghosh he has also mentioned Durgagati Chakraborty. According to him about 8 or 10 persons were present at the time of the execution of the will. Ashutosh, who happens to be a distant relation one day came to him and took him to the house of Rajlakshmi. He introduced him to Rajlakshmi and told him that she had decided to get her will executed and also wanted him to be the witness in that will. Sunit however, told Ashutosh that as he received his licence recently he suggested the help of his senior lawyer Nalini Nath Ghosh an advocate in Alipore Court. Thereafter Sunit took Ashutosh to Nalini Babu. The will was written out by Haridas Ghosh. the clerk of Nalini Babu. On the date of execution Ashutosh took him to Rajlakshmi's house at Fariapukur Street where he saw two or three persons present. Few other persons came thereafter. Ashutosh called Rajlakshmi and she came there and Ashutosh read over the document to Rajlakshmi. Rajlakshmi approved the same and put her signature (Q. 40). He has identified his own signature and also that of Rajlakshmi in the will. He has been shown an endorsement below the signature of Rajlakshmi which reads as follows:-- "The testatrix of this will Sm. Rajlakshmi Dassi signs in our presence having perused it and she is known well to us." He had admitted that the said endorsement was done by him after Rajlakshmi and the attesting witnesses put their respective signatures. He did the same as he thought that with such endorsement the will would not be complete (Q. 42-47). According to him Rajlakshmi was well at the time of the execution of the will and he has denied that Rajlakshmi was completely bed ridden or in a comatose condition on that date, In cross-examination the questions have been asked whether Rajlakshmi read out the will herself. His definite answer is that she did not read the will herself and the endorsement which he added was incorrect. He reiterated that such an endorsement was made by him as he thought wrongly that such endorsement was necessary (Q. 140 to 157). He has frankly admitted that many persons signed the will but among them he remembers Ashutosh and Durgagati Chakraborty (Q. 186). The evidence of this witness has impressed me inasmuch as he has given the evidence frankly. He has admitted his mistakes and his ignorance in the matter of the preparation of a will. He appears to me to be a truthful witness.;