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TMI Blog1922 (12) TMI 5X X X X Extracts X X X X X X X X Extracts X X X X ..... 5. She is opposed by Baikuntha Nath, her husband's younger brother, and by Ashutosh Chattoraj, Radha Ballav's son. The interest of the objector is not in dispute. 6. The District Judge pronounced against the will and granted letters of administration to Baikuntha Nath. The High Court reversing this decision, ordered and decreed that probate of the will should issue to Prasannamoyi, and that the application for letters of administration made by Baikuntha Nath be dismissed. 7. The outline of the story as to the preparation and execution of the alleged will as presented on behalf of the proponent is briefly as follows. On the 13th of September, Natabar Mukerji, it is said, chanced to call on Mandakini, whom he described as his Dharam mother, and found her suffering from fever. He was told by the night of that day that she intended to execute a will, and that he should manage its execution. On the 14th at 2 P.M. he was asked to arrange for the execution of the will, and on his protesting that he had no experience in will drafting, he was given a draft that had been prepared for Mandakini by a pleader named Upendra Nath. A pleader named Babu Bhut Nath Mandal was then cal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ink he had turned hostile. 15. On this part of the case therefore it only remains to consider the evidence of the writer, Natabar Mukerji, and the two attesting witnesses Bhut Nath Mandal and Trailokhya Karak. 16. In a sense Natabar is the most important figure. The part he is said to have taken has already been indicated. 17. Though his home was in the neighbourhood of Kundu Pushkarni where Mandakini's bari was, he was actually employed at the date of the alleged execution at the Nakarka colliery 300 or 400 miles distant. His story is that in September 1918, hearing of his wife's illness, he returned to his home, which is 6 miles from Mandakini's bari, having taken seven days' leave for that purpose. He went on the 13th of September to see Mandakini reaching her bari about noon. On the 14th there was the preparation and execution of the will, which has already been sufficiently described, for the present purpose. If this be accepted, as it was by the High Court, as a true story, there would be no difficulty in holding the will proved. But the District Judge before whom the witness was examined, did not believe Natabar's testimony. In arriving at this c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame effect to whom allusion will be made later. 22. Bhut Nath Mandal is not only an attesting witness, but is said to have dictated the will using for that purpose the draft Ex. 2. Though he is a pleader of the Burdwan Court, his persistent attempt to evade his obligation to give evidence does not inspire confidence in him as a witness. The District Judge was unable to believe him; he certainly was in the best position to judge of his credibility, and no sufficient reason has been shown for disturbing his appreciation of this witness's testimony. 23. Trailokya Karak is a junior servant of Prasannamoyi on the small pay of Rs. 48 a year. 24. He deposes to the due execution of the paper writing, but the trial Judge did not think him a witness on whose testimony its genuineness could be supported. And it is significant that while Trailokya is called? his senior and superior in service, Raj Narayan Biswas, the chief gomasta, though an attesting witness, was not cited. 25. Prasannamoyi was examined on commission. She does not depose to the actual execution, of the paper writing, and her evidence does not materially strengthen her case. 26. This will be an appropriate p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the absence of Mandakini's relations and connections invites comment, as does Prasannamoyi's conduct and her delay in putting forward the will after Mandakini's death. 31. In contradiction of the story of execution, several witnesses have been called who declare that, notwithstanding the opportunities of observation they possessed, Natabar was not seen by them at Mandakini's bari and no will was mentioned. Another witness, Kalipada Roy, described as a doctor, deposed that he was asked by Kandarpa Ghose and Ram Lal Gossain to become a witness to a will alleged to have been executed by Manadkini and further to say that he ' had attended Mandakini during her last illness and that she executed a will in presence of such and such persons.' This, he says, was after the death of Mandakini. The District Judge did not disbelieve him. 32. The High Court regarded this witness as 'obviously unreliable,' apparently under the impression that his evidence was that he had been asked to be an attesting witness to a will then in the safe. But that is not the sense in which their Lordships read his evidence, for the expression used by him points to a request, t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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