JUDGMENT

1. 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.

2. 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.

3. 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.

4. 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.

5. 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 mad