- (1.) This is an appeal on behalf of the propounder of a will alleged to have been left by one Baikuntha Nath Hota The learned Subordinate Judge has refused to grant letters of administration with a copy of the will annexed, as according to him, although due execution and attestation had been proved, the will had subsequently been revoked by the testator. In the present appeal, the Respondents have not questioned the findings so far as due execution and attestation of the will are concerned. The only point for decision in this appeal is whether the will had been revoked by the testator before his death. To appreciate the point in issue, it is necessary to refer to some of the circumstances attending the execution of the will and also other steps taken by the testator after such execution. On December 1, 1939, Baikuntha Nath executed a deed of gift in favour of his grandsons Hemanta and Ram Chandra who are Defendants Nos. 4 and 5 in the present proceedings and are the sons of Baikuntha's daughter Lakshmi Priya. Seven days later Baikuntha executed a will. Five schedules were attached to the will and he bequeathed particular properties to certain relations including the grandsons, Defendants Nos. 4 and 5 above mentioned, and to Hemangini, the daughter of his predeceased and only son Ashutosh. Ashutosh's widow Sailabala was also given a life interest in certain properties. Two other persons, Sasanka and Kalimohan who are Defendants; Nos. 8 and 9, and are distant agnatic relations of the testator, were given certain properties. The will was registered by Baikuntha on January 3, 1940. The deed of gift in favour of Defendants Nos. 4 and 5 although executed before the will was registered on January 4, 1940. On September 24, 1940, Baikuntha filed a suit for setting aside the deed of gift in favour of Defendants Nos. 4 and 5. This suit was ultimately compromised. The deed of gift was set aside, but it was followed by another deed of gift which included the properties which had been bequeathed either to Defendants Nos. 4 and 5 themselves or to some other persons.
(2.) Hemangini, the daughter of the predeceased son Ashutosh, was given in marriage about July, 1942. Shortly thereafter, Baikuntha executed another deed of gift in favour of Guruprosad, the propounder of the present will and husband of Hemangini. That deed of gift has not been produced, and we do not know the properties which were the subject-matter of that deed. Shortly thereafter, Baikuntha died in October, 1942. The will which had been executed in December, 1939, was not probated. In January, 1949, about eighteen months after the death of Hemangini, Guruprosad applied for the issue of letters of administration with a copy of that will annexed.
(3.) Various issues had been raised questioning due execution and attestation of the will and the testamentary capacity of the testator as also other points. It is not necessary in the present appeal to go into those questions, as the only point discussed in the present appeal is whether the will after being executed was revoked or not. The learned Subordinate Judge had found in favour of the propounder on all the points except on the question of revocation.;