Nirmul Chunder Bandopadhya vs Srimati Saratmani Debya

This appeal arises out of an application by a lady, named Saratmoni Debya, for the probate of a Will, dated the 15th November 1895, alleged to have been executed by her husband, Janaki Nath Mukherjee. The Will was undoubtedly registered on the 18th of November 1895. Janaki Nath died on the 11th of December 1895; and it was propounded on the 17th of January 1896. Caveats were entered : one by a person, named Nirmul Chunder Banerjee, on the 24th February 1896, and the other on the 23rd January 1897, on behalf of the minor Shibdhone Banerjee by his father and guardian Moni Lal Banerjee. In the caveats the factum of the Will was impugned. It was stated that the alleged testator was not in a disposing mind; and it was contended that if the Will was executed, its execution was not proper under the law.

A considerable body of evidence has been adduced on behalf of the propounder of the Will. Nirmul, who was the contesting objector, gave no evidence, and the learned District Judge, upon the circumstances and facts deposed to by the witnesses for the lady, Saratmoni Debya, held that the Will was genuine, that the testator was of a disposing capacity, and that there was proper execution.

The caveator No. 1 has appealed to this Court, and learned counsel on his behalf has raised the same questions which were raised by the objector in the Court below. We shall deal with the questions relating to the factum of the Will and the capacity of the testator under one head, leaving the question regarding the proper execution to be dealt with separately both upon the facts as well as upon the law.

Upon the evidence of Tara Prasanna Mukherjee there can be no doubt that on the 21st of July 1895, Janaki Nath Mukherjee had the intention of making a testamentary deposition; and, in order to carry that intention into effect, he gave instructions to Tara Prasanna Mukherjee to make a draft embodying his wishes with respect to his property, &c. Janaki Nath was a resident of Boinchi. It does not appear, nor is it alleged, that besides one distant kinsman, who has deposed in this case, there were any other near relatives of Janaki residing in that place. Nirmul and his family appear to live at Uttarpara; and Moni Lall Banerjee, the father of the minor caveator, lives at Kidderpur.

Janaki appears to have adopted, some time before his death, a young lad of the name of Hrisikesh Mukherjee; and although in the caveat the objectors raised some questions regarding the validity of his adoption, we may take it upon the evidence given in the case that the objection was not of a serious character, or that there was any serious intention to contest the adoption. It is not necessary, however, to express an opinion on that subject. Bui one point is beyond doubt, namely, that the boy Hrisikesh was regarded by Janaki as his adopted son. For some time before his death Janaki suffered from paralysis and what is called in medical language locomotor ataxy. He was unable to write with his own hand, or to feed himself, or to perform the ordinary functions of nature without being held by some body. But Tara Prasanna Mukherjee''s evidence leaves no room for doubt that on the 21st July he was perfectly conscious and intelligent, and able to understand what he was doing. He understood, as a matter of fact, the draft which had been prepared by the pleader when it was read over to him. Tara Prasanna had been his pleader for the last 15 years: and he deposed that during this period, he advised him in all family matters and drew up deeds, etc., for him. And we may accept, as the learned Judge in the Court below has done, the statements of Tara Prasanna implicitly with regard to all the facts he has deposed to. As already pointed out, Tara Prasanna was sent for on the 21st July; he arrived there some time in the early part of the day; was there five or six hours; took his meals there; made the draft; read it over to Janaki and then left the place. The draft which he made is marked as Exhibit 1. With the exception of one paragraph which appears in the draft, hut is omitted in the Will, the provisions contained in Exhibit 1, prepared by Tara Prasanna are substantially in accord with the document now propounded. A day or two after, it appears that one Binode Behary Mitter, a servant of Janaki, took the draft to Tara Prasanna and that in consequence of statements made by him (Binode) certain alterations and amendments were made by Tara Prasanna. Those amendments have been exhibited also in these proceedings; and the paper on which they are contained is marked Exhibit 2. Both those papers, Exhibits 1 and 2, contain a clause to the effect that the lady Saratmani, whom Janaki proposed to appoint as executrix, would not have the power of dismissing his old servants who are referred to there. That clause is omitted from the Will, and the omission certainly is not in support of the theory that the Will has been fabricated by the servants. The Will recites the fact that the alleged testator had been ill for some time in Chait or Baisack last for about a month and a half or two months, that his illness had abated, and that he was in a position to judge what was good and bad for him. Then he states that he had taken a son in Dataka form, named Hrisikesh Mukherjee; and he goes on to empower his widow, whom he appoints as guardian of Hrisikesh, in the event of the boy''s death to take other sons in adoption; and he makes certain provisions in case of the abjuration by Hrisikesh of the Hindu religion. He then dedicates certain properties for the performance of the debsheba, the sradh and other ceremonies. By the 6th clause he directs that Saratmani Debya shall be manager of the property until the boy attains majority and even after that period and in case of any misunderstanding between the two on his attaining majority, he directs that he should receive an allowance of Rs. 100 from the estate; that the whole of the property should remain in her hands, but that she should have no power of disposition over the same; that upon her death Hrisikesh should receive the property without any power of alienation; that on his death his son, or sons, should become full proprietors of the properties devised under the Will. As the learned Judge remarks this is a Will which does not bear the semblance of being inofficious or uncalled for. There is no indication anywhere that he was so greatly attached to the sons of his sisters, namely, the present caveators, as to make it improbable that he should make a disposition of the character which is made by the Will now propounded. It is clear that he had adopted a son and that it was necessary, considering his age, to make some provision for the management of the property during the minority of the lad; and the circumstances show, apart from the evidence of Tara Prasanna, that there were reasons which would induce a person in the position and condition of Janaki to make a disposition of that character. Having those facts before us--the fact that on the 21st July he had the intention of making a Will--an intention effectuated by directions given to his legal adviser--having also in view the fact that there were circumstances in his family which would naturally induce him to make a disposition such as is contained in the Will,--what is there to suggest that he did not make the document now propounded?

A considerable body of evidence has been given on behalf of the propounder showing that at the date on which the Will purports to have been executed the document was read in the presence of witnesses, and Janaki''s name was attached under his instructions. We will refer to the deposition of Pyari Lall Sanyal later on. But Debendra Nath Gupta was his ordinary medical adviser; Basanta Kumar Mukherjee was his only relative resident in Boinchi, Bejoy Gopal Singh was the creditor of Janaki, and Benode Behari Mitter was one of his old servants and had been with him for 44 or 45 years. These all depose that on that date, the 15th of November 1895, Janaki was perfectly sensible; that his mind was clear; that he gave orders for the Will to be read out to the persons assembled and that he himself directed Beni Madhub Banerjee, his servant, to affix the impression of his name on the Will. If the evidence of these witnesses is to be trusted, there can be no question that on the day the Will was in fact executed (we are not dealing with the question of proper execution) on that day he was in a proper disposing mind. Nothing seems to us to have been elicited in the cross-examination of these witnesses to justify our holding that their evidence is such that we should not place credence upon it, or that we should differ from the Judge in the estimate he has formed of it. No doubt as regards Benode, the District Judge is inclined to discount his evidence. It would appear that while Janaki was in the condition he speaks of in his Will, some paper had been prepared by Benode Mitter. The District Judge says that Benode had fabricated a Will. There is nothing, however, in the evidence of Benode to suggest that there was any fabrication. What Benode says is that a draft had been prepared which was never carried further. However that be, we have the evidence of three men, Debendra Nath Gupta, the Doctor, Basanta Kumar Mukherjee, the relative, and Bejoy Gopal Singh, all of whom distinctly speak to the factum of the Will and the disposing capacity of the testator.

Mr. Woodroffe commented very strongly on certain words contained in a passage in the evidence of Pyari Lall Sanyal from which he contended, it appeared, Janaki had no idea at the time how the Will had come to be drawn up. The words are given in Bengali by Pyari Lall Sanyal, and recorded by the learned Judge. They occur in the following passage :-- "We were all in the room where the Balm lay; Basanta then enquired :-- Janaki Babu janite chahitechen je will ta kemon hoilo " (page 9, lines 31 and 32 of the Paper-book).

Whatever may be the meaning of the words, if used by a native of Calcutta, it appears to us that the construction which the pleader for the Respondent has asked us to place upon them is right and proper. Having regard to the district to which the witness belongs Babu Dwarka Nath Chakravarty said that the meaning of these words was not that Janaki Babu wanted to know how the Will came to be drafted, but that what he really wanted to know was, (using the phraseology common in Eastern Bengal) what was the idea which the witnesses had regarding the frame of the Will.

The learned Judge in the Court below, we may add, had a perfect knowledge of the Bengali language; and if there had been any substance in the contention now raised he would have been the first to appreciate it. To people who have never been in this country it may seem somewhat strange that an outsider to a particular community may have a better knowledge of the nuances of expressions familiar in that community than persons actually belonging to it. But to any one who has been in India it is by no means strange. Very often people who have been here are in a better position to appreciate these nuances of expression, to understand their motions and manners than the people in the community itself.

We think that the objection which has been urged against the evidence of Pyari Lall Sanyal is of no force and that all the circumstances point conclusively to the factum of the Will on that occasion -- factum in the sense that the testator was perfectly conscious and able to understand what he was doing, and that his name or the stamp of his name was attached to the Will under his direction.

It is unnecessary to dwell further upon these two questions, because we agree with the District Judge in the opinion formed by him that, in spite of the infirmity from which Janaki suffered, and in spite of his paralysis and the difficulty he was under with reference to motion, etc., he was a person fully competent to make a Will, and that he understood fully what he was doing at the time. There remains now the question whether, if the Will was executed on the 15th of November 1895, it was properly executed. We have already mentioned that it was registered on the 18th of November 1895. The Sub-Registrar who has now retired, has given evidence, and he has proved that he went to the residence of Janaki whom he found perfectly conscious, that he had a talk with him, that he acknowledged the Will, that at his instance he affixed his thumb-marks to the different pages, and that thereupon he attached his own signature to the Will. And another witness, named Jaga Bandhu Banerjee, did the same. The Sub-Registrar stales that all this was done in the room where Janaki was lying and in one of the same assembly (sic.); giving rise to the distinct inference of fact that the witnesses to the impression of the thumb-marks, altogether three persons including the Sub-Registrar, attached their signatures to the document about the same time in the presence of the testator and in the same assembly. The evidence being to that effect, assuming that the contention to which we shall presently refer was well-founded and assuming even that the Will was not properly executed on the 15th November 1895, inasmuch as Janaki himself did not attach his signature or mark to it, the defect would be removed and there would be proper execution before the Sub Registrar. But over and beyond this, it appears to us that the objection, which has been taken by the learned counsel regarding the proper execution of the Will on the 15th of November, is not well-founded. His contention is that the stamp of Janaki''s name was attached, not by Janaki, but by somebody else; that consequently the act does not come within the meaning of sec. 50 of the Indian Succession Act which was made a part of the Hindu Wills Act, and that therefore the execution was not valid under the law. Now sec. 50 runs thus:-- " Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or a mariner at sea, must execute his Will according to the following rules :--First, the testator shall sign or shall affix his mark to the Will or it shall be singed by some other person in his presence, or by his direction * * * * It is unnecessary to refer to the 2nd and 3rd clauses. The 1st clause gives sufficient indication of the objection raised. It is contended that the affixing of the stamp with the facsimile of Janaki''s name does not amount to proper execution, inasmuch as the only person under the section who is authorized to make a mark is the testator himself and no body else; and that if any other person is directed to sign for the testator he may not affix his name-stamp, as that is equivalent only to a mark. Now, under the English Wills Act it has been held that the affixing of the facsimile of a name either by the testator or by somebody else is sufficient under the law. Sec. 9 of 1 Victoria, Chapter XXVI, provides as follows:--

That no Will shall be valid unless it shall be in writing and executed in manner hereinafter mentioned; (that is to say) it shall be signed at the foot or end thereof by the testator, or by some other person in his presence and by his direction. The rest is immaterial. It will be noticed that in the English Act the words relating to the affixing of a mark do not occur; the reason for the introduction of these words in the Indian Act seems to us to be obvious. In England there are not so many illiterate persons as in this country; and probably the Legislature considered it necessary that in order to cover the case of the vast majority of the people, who are not sufficiently literate to be able to sign their names, some provision should be made to enable them to make their Wills by marks. In order to understand exactly the difference between signing as used in the section and affixing the mark, it is necessary to explain what we think is meant by these words. We understand the word "signing" to mean the writing of the name of a person so that it may convey a distinct idea to somebody else that what the writing indicates is a particular individual whose signature or sign it purports to be. A "mark" is a mere symbol and does not convey any idea to a person who notices it--very often, probably even to the person who made it. The Legislature provided that so far as the testator was concerned, if he was literate he might either sign his name, which would convey a distinct idea regarding the executant of the document or if illiterate might fix his mark as an indication of his act as executant of the Will. In the case of somebody else writing for him it requires that he should write the name or put it in such a manner as would lead any body else to see at once who the person was who executed the document. If that view be correct, it is evident that the impression of the facsimile of the name is not the making of a mark, but really the affixing the name to the document. The use of a pen and ink does not seem to be necessary for the purpose of putting on the signature required. In the case of Jenkins v. Gainsford 3 Sw. and Tr. 93 the Judges indicated that the use of pen and ink was not necessary for signing, and that argument may be well applied to this case also. A person may "sign" or put his name down by means of types or if he uses a facsimile for signing his name he may use it for his signature.

Now let us see what the facts of this case are. It appears that for a number of years Janaki had been in the habit of using a name-stamp as he was unable to read or write. That name-stamp used to be kept by a servant and under Janaki''s direction used to be attached to any document or papers he wanted to sign. That being so, it appears to us that the learned District Judge was perfectly right in holding that the execution of the Will in this case was proper and came strictly within the meaning of the words used in sec. 50. We think, therefore, for all these reasons that the order of the District Judge was right, and that this appeal ought to be dismissed with costs. We assess the hearing fee at Rs. 100.