The presumption of regularity of acts and the presumption of testamentary capacity can be rebutted by evidence to the contrary, but in the absence of such evidence, the presumptions will prevail.

( 1 ) THIS is an appeal by the objector Satipada Chatterjee against the decision of N. Chakravarty, the learned District Judge of Nadia, dated 26-4-1951, granting letters of administration to the estate of Akshoy Kumar Chatopadhaya, with a copy of the will annexed.

( 2 ) THE testator Akhoy Kumar Chatopadhaya executed his last will and testament on 26-8-1939. It was registered on the same date at Krishnagar. The testator survived the will by about 10 years and, died on 16-1-1949. The present application for the grant of letters of administration was made on 15-12-1949, the applicant being one Annakali Debya. The application was opposed by the appellant Satipada Chatterjee, nephew of the testator. His objection was pressed on two grounds (1) that the will was not duly attested and (2) that the testator had no testamentary capacity.

( 3 ) AS a result of contested hearing the learned District Judge found in favour of the genuineness of the will and of its due attestation and also of the testamentary capacity of the testator.

( 4 ) IN this appeal Mr. Sen Gupta, learned Advocate appearing on behalf of the objector appellant, has raised two points: In the first place, he has contended that the will was not duly attested and in the second place he has contended that the testator has not been proved to be possessed of testamentary capacity at the date of the will. I shall take up these points in the above order.

( 5 ) THE first Question to be considered is whether the will was duly attested. The execution of the will as not disputed. The will purports to bear the attestation of 4 persons; (1) Earkatulla Sarkar, (2) Narayandas Choudhury, (3) Radhika Prosad Das and (4) Ahibhusan Chattopadhaya. Of these 4 persons whose names appear on the will under the head attesting witness, the first three hail from Krishnagar and the last one hails from Billagram, the ordinary place of residence of the testator. Mr. Sen Gupta has contended that the attestation of Barkatulla Sarkar cannot be regarded as that of an attesting witness. His contention is founded on the ground that Barkatulla was the writer of the will. At the end of the will the following words occur: "ishadi Lekhak Sri Barkatulla Sarkar. " on this it is contended that the intrinsic evidence afforded by this entry, amounts to this that Barkatulla wrote out the will and by way of anticipation wrote out the words "ishadi Lekhak". The suggestion is that Barkatulla signed before the testator put his signature on the will and as such, cannot be regarded as an attesting witness. This contention is rested mainly on a Bench decision of this Court in the case of -- 'nirode Mohan Roy v. Charu Chandra Majumdar', AIR 1950 Cal 401 (A ). That decision does not lay down any inflexible rule. It is there pointed out that the question whether a scribe can be regarded as an attesting witness has to be gathered from the circumstances of each case, the main test being whether the scribe signed the document with the intention of attesting the signature of the executant. The mere fact that the scribe wrote out the entire will as also the endorsement "ishadi Lekhak" does not necessarily lead to the conclusion that he has signed before the testator. Reference to the deposition of Barkatulla, P. W. 1, does indicate that he signed after the testator. No question was put to him in cross examination to this end. We are, therefore, left to speculate in this matter. In my opinion, the' normal course of event is that the executants of a document first signs the document and this is followed by the signatures of the attesting witnesses. The name of Barkatulla on the will appears after the word, "ishadi" and this, in my opinion, is sufficiently indicative of the fact that he purported to attest the will and did in fact put his signature' on the will after the testator had signed the will. I shall quote the evidence of Barkatulla in connection with the second branch of the first contention put forward by Mr. Se