JUDGMENT

Macnaghten, J. - In this case the appellant Rash Mohini Dasi propounded a document as the will of her late husband Mohim Chunder Biswas, who died on the 18th of March 1891. The District Judge of Nuddea admitted the document to probate. The High Court on appeal reversed his decision and dismissed the appellant's petition with costs.

2. The sole question in issue before the High Court was the testamentary capacity of the alleged testator.

3. After a very careful review of the evidence from which nothing is omitted, and in which nothing seems to have been unduly pressed, the learned Judges of the High Court state the result of their opinion as follows: " We think that the evidence of Dr. Bepin "---Dr. Bepin was a duly qualified doctor who attended Mohim during the latter part of his illness---" aided by the admissions of the plaintiff's witnesses, the history of the illness and the circumstances of suspicion which arise in the case, lead to the conclusion first that Mohim is not shown to have had due testamentary capacity ; secondly, that the balance of evidence in this difficult case is on the whole to the effect that he had not testamentary capacity ; and that there is no adequate proof whatever that be knew or approved of the contents of the will."

4. Their Lordships agree so entirely with the conclusions at which the learned Judges have arrived and with their estimate of the evidence that it will not be necessary for them to go through the facts in any detail.

5. Mohim died at the age of 29. Besides his widow he left an infant daughter and two uncles, the younger of whom Umesh Chunder Biswas, the present respondent, opposed the grant of probate. Mohim had a paralytic stroke on the 24th of January 1891. A native doctor named Rakhal was called in and attended him for about five or six days. Then he was treated by a kobiraj or native practitioner whose name does not appear. On the 2nd of March he had another seizure. Two doctors were then called in, Dr. Bepin and a native practitioner called Jasoda. They attended him constantly until his death. It seems to have been determined rather against the advice of the doctors that if possible Mohim should be moved to Calcutta on the 9th. However, as preparations were being made for his removal, and as he was being carried through the house he had another seizure, which after a few days proved fatal.

6. The story of the preparation of the will is told by Khetter Chowdry Khan, a cousin of Mohim and his manager and trusted adviser. He was the principal, if not the sole, actor in the drama.

7. It seems that Dr. Bepin, either on the first day of his attendance or a day or two afterwards, said something about a will. It is not very clear what was said. Khetter states that the doctor said that considering Mobim's state there should be a will made. Dr. Bepin himself asserts that what he said was that " considering Mohim's condition they should be ready to get a will executed in case he became at all better." Whatever it was that Dr. Bepin said Khetter acted on the hint and set about getting a will made at once. He says he told the patient " Bepin Babu is saying that you should make a will." . . . . . . Mohim said : " Let a will be made and then I shall go to ' Calcutta.' " ... . I and Mohim consulted together that night. I drew out a list of the properties which were to be included in the will. No one was present there at that time. Neither his wife nor his mother-in-law was asked at the time about it. I did not tell him to ask either his wife or mother-in-law about it., He did not forbid me to speak of it to any one except his uncle and his enemies. I did not speak of it to Mohim's sister, and one of his aunts. I did not also tell his wife. I did not speak of it to Mohim's wife and family or any one else, but Mohim spoke of it to his sister and wife on the 24th and 25th Phalgoon (7th and 8th of March). There were five executors. I did not let them know before the will. I did not tell Umesh or