The main legal point established in the judgment is the requirement to prove testamentary capacity, validity of the will, and the interpretation of jurisdiction provisions under the Succession Act.

JUDGMENT

J.P. Mitter, J. - This is a suit in the testamentary jurisdiction of the Court for the grant of probate of the Will of one Narsing Prosad Shaw, deceased. The plaintiff Maniklal is the executor under the Will and is the elder of the two surviving sons of the testator. The defendant Hiralal is the other son.

2. The original application for grant of probate was presented on 18th December 1947. Hiralal's name not having been mentioned in the said application as one of the sons of the testator, no citation was issued to him, and in due course, probate of the Will, which is dated 12th October 1946 was issued on 22nd December 1947. On 7th May 1948, Hiralal made an application for the revocation of the probate on the ground of absence of citation on him. This application was heard by Majumdar J. who held that the want of citation was a 'just cause' within the meaning of Section 263, Succession Act, and by his order dated 20th July 1948, he revoked the said grant. The directions given by Majumdar J. as to the filing of the caveat; and the supporting affidavit as also those in respect of discovery and inspection were complied with and the proceedings were marked as a contentious cause.

3. The testator Narsing Prosad Shaw, who was a Hindu governed by the Mitakshara School of Hindu law, lived at Dum-Dum. He had three sons, Maniklal--the plaintiff, Hiralal--the defendant and one Pannalal who predeceased the testator. Pannalal's widow Binapani and his son Mrityunjoy are living. The testator who was a well-known wrestler in the locality died on 5th November 1946, admittedly at a very old age. As I have said before, the disputed Will is alleged to have been executed on 12th October 1916, that is, less than a month before the testator's death. By the said Will, which is in the Bengali language and character, he bequeathed all his properties and credits to the plaintiff and his grandson, the said Mrityunjoy Shaw, in equal shares, and appointed the plaintiff the sole executor. Hiralal was completely left out. The reason for Hiralal's exclusion from the Will is stated in the within the following terms :

"My second son Sreeman Hiralal Shaw left me long ago and having built houses etc. at a different place is in the enjoyment and possession of the same. His financial position is also good. But it never strikes him that he ought to be tending and nursing his aged father."

4. Defendant Hiralal's case, inter alia, is that the testator was about 100 years of age when the Will is said to have been executed and that by reason of his old age and illness to which he later succumbed, his father had no testamentary capacity, that the alleged signatures of the testator in the Will did not appear to be in the handwriting of the testator and that, if the signatures be held to be genuine, the plaintiff in collusion with two lawyer friends of his--Surath Nath Ganguli and Sachindra Nath Mitra--caused the alleged Will to be executed by his father "by undue influence, fraud and coercion." No particulars of the allegations of undue influence and coercion and of fraud were given and, curiously enough, no particulars were asked for on behalf of the plaintiff. After the opening by learned counsel on behalf of the plaintiff, the following issues were raised :

"(1) Had the deceased any testamentary capacity at the time of the execution of the Will ?

(2) Was the Will validly executed ?

(3) Was the Will executed under the undue Influence of Maniklal ?

(4) Has this Court jurisdiction to entertain and try this suit ?"

To support his case the plaintiff, besides examining himself, called the two attesting wit-nesses to the Will--Surath Nath Ganguly and Bachindra Nath Mitra, as well as a neighbour by name Charu Chandra Samanta. (After dismissing the evidence His Lordships proceeded:) This brings me to the certified copy of the entry in the Register maintained by the Calcutta Corporation at the Cossipore Cremation Ghat. Chapter 31, Calcutta Municipal Act (1923) deals with the regi