Doubts about the testatrix's mental capacity at the time of executing the will were sufficient to refuse probate.

JUDGMENT

1. This is an appeal from a decision of the 2nd Subordinate Judge of Hooghly by which he granted probate of a will alleged to have been executed by one Manmohini Debi. The alleged testatrix was an old lady who had three brothers viz., Surendra Nath Lahiri the eldest brother who was the objector in the Court below and is the appellant in. this Court Jnanendra Nath Lahiri the youngest brother who propounded the will and is the respondent in this Court and another brother named Jitendra Nath Lahiri who is not connected with the appeal but has given evidence in support of it as witness 5 on behalf of the propounder. The will is a short document. By it the testatrix appointed Jnanendra Nath Lahiri as the executor, made a small bequest of Rs. 400 out of her estate in favour of her sister Srimati Subashini Debi, and gave a pair of bangles to one Sukumari Debi who is the wife of an eye specialist who had operated on her aye and is said to be a lady who was looked upon by the testatrix as her own daughter. By the will the testatrix also made provisions for the expenses to be incurred on account of her funeral obsequies and Sradh ceremony, it being provided that Rs. 500 should be spent for that purpose. The will further provided that the remaining moveable and immovable properties, money-lending business and the remaining ornaments of the value of Rs. 1,600 were to be given to the said Jnanendra Nath Lahiri absolutely with power of gift and sale. The will purports to have been written by one Rasik Chandra Das, and there is an endorsement on it that he read out the contents of the will to the testatrix. It bears the signatures, as attesting witnesses, of seven persons, viz., Surath Nath Goswami, Surendra Nath Bhattacharji, Pramatha Nath Goswami, Dhan Krishna Dhole, Ashutosh Bhattacharji, Panehu Gopal Goswami and Haran Chandra Das. Application for probate was made by the executor on 23rd December 1926 and it contained the usual verification made by one of the attesting witnesses to 'the will, viz., the aforesaid Haran Chandra Das. The appellant Surendra Nath Lahiri, objected to the grant of probate, alleging that the will was a collusive, fabricated and fraudulent document and also challenging the will on the ground that it was not the voluntary act of a free and capable testatrix. This last mentioned ground was put in these words:

Conceding for argument's sake that the alleged will is genuine, the testatrix could not exercise her free will at the time of execution of the said will it was created by exercising undue influence upon her. During the last illness of the testatrix her full sister Subasini and her younger brother Jnanendra used to live in her house. It was they who by nursing her and ministering to her comforts pleased her and brought her under their influence and led her by undue influence to cause only a paper transaction to be made in their favour and for their own benefit according to their pleasure, in collusion and concert with certain persons.

2. As already stated, the learned Judge has made an order for probate and Surendra has preferred this appeal.

3. On the question of genuineness of the will very little need be said. It was said to have been executed on 22nd Assar 1333 B. S. corresponding to 7th July 1926 and it was registered on the same day by the Sub-Registrar of Serampur who was called at the residence of the testatrix for the purpose of registration of the will. The lady died on 5th Sravan 1333 B. S. Of the witnesses whose names appear on the will, have been examined on behalf of the propounder, witness 1, Surendra Nath Bhattacharji, who is a medical practitioner, witness 2 Dhan Krishna Dhole, witness 3 Panehu Gopal Goswami and witness 4 Surath Nath Goswami and they have fully supported the will.. Jitendra Nath Lahiri, the second brother whose name does not appear in the will either as a recipient of any legacy or as an attesting witness, has also been examined as witness 5 and he has deposed to the effec