Judgement

Consolidated Appeal (No. 21 of 1927} from a decree of the High Court (December 9, 1925) reversing a decree of the District Judge of Bhagalpur.

The consolidated appeal arose out of an application by the respondents for a grant of probate of a will dated July 24, 1923, of which they were four of the five trustees.

The facts are fully stated in the judgment of the Judicial Committee.

The trial judge dismissed the application.

From his decree there were two appeals, one by the present respondents, and the other by the testators sister, Rajdulari Bibi.

The High Court (Das and Foster JJ.) allowed the appeals and directed that probate should issue.

1928. Nov. 8, 9. De Gruyther K.C. and Wallach for the appellant.

Sir George Lowndes K.C. and E. B. Raikes for respondents 1 to 4.

A. Pocock for the respondent Rajdulari Bibi.

Nov. 30. The judgment of their Lordships was delivered by

SIR LANCELOT SANDERSON. These are consolidated appeals by Sarat Kumari Bibi against two decrees of the High Court of Judicature at Patna dated December 9, 1925, whereby the decree of the learned District Judge of Bhagalpur dated June 23, 1924, was reversed.

The respondents, Rai Sakhi Chand Bahadur, Babu Ganesh Lal, Madusudan Das and Maulvi Jamaluddin Khan, who are four out of the five trustees named in the will purporting to have been made by one Raghunandan Lal on July 24, 1923, filed an application for probate on February 27, 1924, in the Court of the said District Judge of Bhagalpur.

Raghunandan died on August 31, 1923, leaving two daughters, Raj Kumari Bibi and Sarat Kumari Bibi. His other near relations were his widowed sister Rajdulari Bibi and Krishna Bibi, the widow of Raghunandans brother, Jadunandan Lal.

Caveats were filed by the two daughters and by Krishna Bibi; but objections were filed by Krishna Bibi and Sarat Kumari Bibi only. In these appeals the Board is concerned only with the objections raised by the daughter, Sarat Kumari Bibi, who is the sole appellant.

At the hearing of the appeals before the Board the four above-named executors and Srimati Rajdulari Bibi, who is one of the respondents in the second appeal, appeared by learned counsel. Krishna Bibi was not represented.

Three issues were framed by the learned District Judge as follows (1.) Was the will validly executed and attested ? (2.) Was the testator in a sound disposing state of mind at the time of execution of the will ? (3.) Was the will executed under the undue influence of Maulvi Jamaluddin Khan?

The learned judge answered the second issue in the affirmative and the third issue in the negative. On the first issue he held that the will was not validly executed, and he answered the first portion of the issue—namely, as regards execution— in the negative and the second portion—namely, as regards attestation—in the affirmative.

The ground of his decision was that the propounders of the will had failed to satisfy him that the testator was aware of the contents of the will and that the will expressed his intention. He was of opinion that a very active part in the preparation of the will was taken by Jamaluddin, who was the manager and confidential servant of the testator, and that he took a substantial benefit under the will. Applying the principles laid down in Barry v. Butlin (( 1838) 2 Moo.

P. C. 480.) and Tyrrell v. Painton ([ 1894] P. 151.), the learned judge held that the circumstances in connection with the preparation of the will aroused suspicion, that such suspicion had not been removed, and that he was not satisfied that the testator was aware of the contents of the will. He accordingly refused to grant probate of the will to the executors.

Rajdulari Bibi and the four above-named executors appealed in two separate appeals to the High Court of Judicature of Patna.

The learned judges of the High Court on December 9, 1925, allowed the appeals, set aside the decree of the learned District Judge, and directed that probate should issue as prayed. They held that the will