The central legal point established in the judgment is the mental capacity required for a testator to execute a will, emphasizing the need for a disposing mind, understanding of property, and the ability to comprehend and deliberate on the distribution of property.

JUDGMENT

1. This appeal is against an order refusing Letters of Administration with copy of the will annexed.

2. The Will was executed by one Suresh Chandra Ghose on the 12th May, 1920, was registered on the 17th May, 1920, at 5 P.M. and the testator died that night. It appears that the testator was about 21 years of age at the time of his death. He had lost his father and mother and ha was for about two months before his death suffering from fever and diarrhoea, and was residing at the house of one of his paternal uncles Nabin, whose wife Brajeswari nursed him during that period. The will purported to give practically all the properties of the testator to Brajeswari after making provisions for a minor sister. Brajeswari propounded the will and two of the paternal uncles of the testator contested the will. The execution of the will by the testator is not disputed but the Court below has found that it was not properly attested, and that the testator was not of a sound disposing mind at the time of the execution of the will.

3. Brajeswari appealed to this Court and it is contended that the testator had not a sound disposing mind when he executed the will. There are six attesting witnesses to the will, three of them namely, Janmejoy, Harish Chandra and Lalit, have been examined besides a few others who were not attesting witnesses including Nabin, the husband of Brajeswari. The Court below was not satisfied on the evidence that the testator bad a sound disposing mind at the time. Nabin stated that the testator read the will and signed his name and that he was then in possession of his faculties. Harish deposed that the testator said that he had bequeathed the properties to his aunt and that he asked two or three questions to the testator to which the latter gave replies. Guru Charan said that when the testator died he was in possession of this faculties. Janmejoy was the scribe of the will and he said that he drafted the will at the request of Nabin, that Nabin called him to write out the will, and that he dictated the terms or the Will to him. Lalit another witness said that he was called by Nabin to witness the will and that the testator told him that unless he executed a will they would not nurse him and he would die. The witnesses Janmejoy and Lalit were declared hostile witnesses in the Court below. Now so far as the evidence of Janmejoy goes it would appear that instructions as to the will were given by Nabin but we are asked to live that evidence out of consideration because in the lower Court he was declared as a hostile witness. It appears that he was present before the Sub-Registrar and identified the testator. But leaving aside the evidence of Janmejoy and Lalit there is no evidence to show under whose instructions the will was prepared; whether such instructions were given by the testator or by Nabin as stated by Janmejoy.

4. Ordinarily, it would be sufficient if it were proved that the testator had approved the will, although there might be no direct evidence as to his giving any instructions. But in the present case the circumstances are these: the testator was a young man of about 21 years of age. He was suffering from diarrhoea and fever for at least two months before his death, and he was enfeebled both in body and mind at the time he was being nursed by his aunt who has set up the will. We think that in these circumstances it was necessary for her (the propounder of the will) to prove that instructions for the will ware given by the testator, at any rate that the terms of the will were understood by the testator and approved by him. Then in the next place we have to remember that the mere fact that the testator could say that it was his will or could answer some simple questions which were put to him does not show that he had a sound disposing mind at the time. As was pointed out in the case of Harwood v. Baker (1840) 3 Moor. P.C. 282 by the Judicial Committee " that in order to constitute a sound disposing mind, a