Judgement

Appeal from a decree of the High Court (Aug. 19, 1893) eversing a decree of the District Judge of

Nuddea (Aug. 10, 1891) which granted probate.

The facts are stated in the judgment of their Lordships.

Cohen, Q.C., and C. W. Arathoon, for the appellant.

Mayne, for the respondent.

[The case of Parker v. Felgate (( 1883) 8 P. D. 171.) was referred to.]

The judgment of their Lordships was delivered by

LORD MACNAGHTEN. In this case the appellant Rash Mohini Dasi propounded a document as the

will of her late husband Mohim Chunder Biswas, who died on March 18, 1891. The District Judge of

Nuddea admitted the document to probate. The High Court on Appeal reversed his decision, and dismissed the appellants petition with costs.

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

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 plaintiffs 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 shewn 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 he knew or approved of the contents of the will."

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.

Mohim died at the age of twenty-nine. 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 January 24, 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 March 2 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.

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.

It seems that Dr. Bepin, either on the first day of his attend ance, 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 Mohims estate, there should be a j will made. Dr. Bepin himself asserts that what he said was that, " considering Mohims 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