Das, J.:— This is an appeal by the objector Satipada Chatterjee against the decision of N. Chakravarty, the learned District Judge of Nadia, dated 26-4-1951, granting letters of administration to the estate of Akshoy Kumar Chatopadhaya, with a copy of the will annexed.
2. The testator Akhoy Kumar Chatopadhaya executed his last will and testament on 26-8-1939. It was registered on the same date at Krishnagar. The testator survived the will by about 10 years and died on 16-1-1949. The present application for the grant of letters of administration was made on 15-12-1949, the applicant being one Annakali Debya. The application was opposed by the appellant Satipada Chatterjee, nephew of the testator. His objection was pressed on two grounds (1) that the will was not duly attested and (2) that the testator had no testamentary capacity. As a result of contested hearing the learned District Judge found in favour of the genuineness of the will and of its due attestation and also of the testamentary capacity of the testator.
3. In this appeal Mr. Sen Gupta, learned Advocate appearing on behalf of the objector appellant, has raised two points: In the first place, he has contended that the will was not duly attested and in the second place he has contended that the testator has not been proved to be possessed of testamentary capacity at the date of the will. I shall take up these points in the above order.
4. The first question to be considered is whether the will was duly attested. The execution of the will is not disputed. The will purports to bear the attestation of 4 persons; (1) Barkatulla Sarkar, (2) Narayandas Choudhury, (3) Radhika Prosad Das and (4) Ahibhusan Chattopadhaya. Of these 4 persons whose names appear on the will under the head attesting witness, the first three hail from Krishnagar and the last one hails from Billagram, the ordinary place of residence of the testator. Mr. Sen Gupta has contended that the attestation of Barkatulla Sarkar cannot be regarded as that of an attesting witness. His contention is founded on the ground that Barkatulla was the writer of the will. At the end of the will the following words occur:
“Ishadi Lekhak Sri Barkatulla Sarkar.”
5. On this it is contended that the intrinsic evidence afforded by this entry, amounts to this that Barkatulla wrote out the will and by way of anticipation wrote out the words “Ishadi Lekhak”. The suggestion is that Barkatulla signed before the testator put his signature on the will and as such, cannot be regarded as an attesting witness. This contention is rested mainly on a Bench decision of this Court in the case of — ‘Nirode Mohan Roy v. Charu Chandra Majumdar’, AIR 1950 Cal 401 (A). That decision does not lay down any inflexible rule. It is there pointed out that the question whether a scribe can be regarded as an attesting witness has to be gathered from the circumstances of each case, the main test being whether the scribe signed the document with the intention of attesting the signature of the executant. The mere fact that the scribe wrote out the entire will as also the endorsement “Ishadi Lekhak” does not necessarily lead to the conclusion that he has signed before the testator.
6. Reference to the deposition of Barkatulla, P.W 1, does indicate that he signed after the testator. No question was put to him in cross-examination to this end. We are, therefore, left to speculate in this matter. In my opinion, the normal course of event is that the executant of a document first signs the document and this is followed by the signatures of the attesting witnesses. The name of Barkatulla on the will appears after the word, “Ishadi” and this, in my opinion, is sufficiently indicative of the fact that he purported to attest the will and did in fact put his signature on the will after the testator had signed the will. I shall quote the evidence of Barkatulla in connection with the second branch of the first contention put forward by Mr. Sen Gupta. The second branch of the contention is that there is nothing to show that the requirements of attestation as provided in Section 63 of the Succession Act were complied with so far as Barkatulla is concerned. The testator was a literate person and in his case the requirements of Section 63 of the Succession Act were as follows:
(a) That the testator must have signed the will..
(b) That his signature should have been so placed that it shall appear therefrom that he intended to give effect to the writing as a will.
(c) That his signature must bear the attestation of at least two witnesses both of whom must have seen that the testator signed the will in their presence or must have received an acknowledgment of his signature from the testator and further that the attesting witnesses must have signed the will in the presence of the testator.
7. It is contended that the deposition of Barkatulla does not show that the attesting witnesses did sign the will after the testator had put his signature. I might quote at this stage the relevant portion of the deposition of Barkatulla. In his examination-in-chief Barkatulla said as follows:
“I wrote out the will at the instance of the testator. He himself read the will. He signed his name in the presence of attesting witnesses Radhikha Prosad Pal, Ahi Bhusan Chatterjee, Narayan Das Chowdhury and myself. The testator saw the attesting witnesses sign.”
8. In cross-examination the witness said:
“…. I have no independent recollection about this will.”
9. As regards this cross-examination it must be remembered that the witness was deposing to events which had taken place more than 10 years ago. He was a deed-writer at the Sub-Registrar's office and in normal course of events it is likely that he might have drawn up documents or attested the same many times. The mere fact that he had no independent recollection does not render his evidence inadmissible. In fact, he said that he refreshed his memory by looking at the will.
10. In my opinion, therefore, there is no reason to discard the evidence given by the witness in his examination-in-chief. A comment, however, is made that even assuming that what he stated an his examination-in-chief is correct there is nothing to show that the witness spoke to the attesting witnesses' signing the will or the signatures being made in the presence of the testator. It is to be noted that the witness states that the testator saw the attesting witnesses sign. This clearly implies that the attesting witnesses did sign.
11. In ordinary course of events the attesting witnnesses would sign after the testator himself had signed. The argument put forward by Mr. Sen Gupta loses sight of the presumption which attaches in cases of wills ‘ex facie’ regular. The presumption in such cases is based on the maxim ‘Omnia praesumuntur rite esse acta’, that is, the presumption of the regularity of acts which have been done. This maxim was applied in the case of wills as early as the case of —‘Lloyd v. Roberts’, (1858) 12 Moor PC 158 (B). The above decision was referred to and cited with approval in a later decision of the Court of Appeal in England, — ‘Wright v. Sanderson’, (1884) 9 P.D, 149 (C). At p. 163 Pry L.J observed as follows:
“The decisions cited in argument, and referred to by the Lord Chancellor, show that the Judges who have presided in the Court of Probate have long been accustomed to give great weight to the presumption of due execution arising from the regularity ‘ex facie’ of the testamentary papers produced, where no suspicion of fraud had occurred. In so doing they have, in my opinion, acted rightly and wisely.”
12. The facts of that case are somewhat similar to those before us. In that case the testator executed the will in 1878 about 4 years before his death. The testator was in hospital. He in tended to make a will and for that purpose called in his nurse and a nursery governess. At the trial these two attesting witnesses, viz. the nurse and the nursery governess, stated in their evidence that the testator took his own pen inside the room. The attesting witnesses then signed the will. None could, however, say that the testators signature was there before they signed. They both said that they did not see him sign. Even so, the President of the Probate Division held that the evidence led, taken along with the circumstances was sufficient to establish the due execution and attestation of the will. The decision of the Probate Court was affirmed by the Court of Appeal.
13. This case illustrates the length to which Judges presiding over Courts of Probate have gone in affirming the due execution and attestation of a will ‘ex facie’ regular. The view taken by the Courts of England has been applied in this country consistently ever since. I shall refer to a few of these cases in our Court. In the case of — ‘Sibo Sundari Debi…Plaintiff, v. Hemangini Debi…Defendant, .’, 4 Cal WN 204 (D) a Bench held that an affirmative proof of due attestation is not absolutely necessary in cases of wills but that the Court can make a reasonable inference. In that case there were 7 attesting witnesses. One of the attesting witnesses deposed that he had signed before the testator had put his signature. Two other at testing witnesses deposed that the testator merely acknowledged his signature. They stated that at the time there were other signatures on the will. Three attesting witnesses were dead, but their signatures were proved. One was not called. In these circumstances, the Court applied the presumption that the attestation was regular and was sufficient in law.
14. In a later decision viz. the case of — ‘Netai Chand v. Nagani Dassya’, 10 Cal LJ 499 (E) the facts were as follows: All the attesting witnesses except one were dead. The attesting witness who was alive stated that the will was executed in the assembly when the attesting witnesses were present. The witness did not depose to the requirements as mentioned in Section 63 of the Succession Act. The evidence merely was that the testatrix who was an illiterate lady had touched the pen and thereafter the scribe Kalicharan signed the testatrix's name. The evidence was held to be sufficient in proof of attestation. Mookerjee J. who delivered the judgment made the following pertinent observation at page 501:
“Under these circumstances, we think that this is a case in which the presumption arises, in the absence or evidence to the contrary, that the will was duly executed and attested.”
15. In a still later case, —‘Brahmadar Tewari v. Chaudan Bibi’, AIR 1916 Cal 374 (F), to which our attention was drawn by Mr. Roy, learned advocate for the respondent, the facts were as follows: There were 13 attesting witnesses 6 of whom were dead, 3 were not examined, 2 proved hostile and only two were examined and these latter witnesses merely stated that they signed as witnesses but they had no recollection if they saw the testator sign or that they received an assur ance from the testator of his signature. The same learned Judge (Mookerjee J.) reiterated his views expressed in the earlier case and observed at page 376 as follows:
“It is necessary, however, that affirmative evidence should be forthcoming that the testator did as a matter of fact see the attesting witnesses put their signatures or that the attesting witnesses did actually see the testator sign the document. It is enough if the circumstances show that their relative position was such that they might have seen the execution and the attestation respectively, or as Wilde J., said in ‘Re Trimmell, (1865) 11 Jur. (N.S) 248 (G)’, the true test is whether the testator might have seen — not whether he did see — the witnesses sign their names.”
16. In these cases to which I have referred, though the witnesses did not depose to the formalities required, the Court drew the presumption in favour of due attestation not only in cases where there was absence of any evidence to the contrary, but also in cases where the witnesses had perjured themselves but the circumstances indicated that their testimony was false and/unreliable. The above presumption of regularity of acts is embodied in Section 114 of the Evidence Act and was applied by the Judicial Committee of the Privy Council in the case of — ‘Munnalal v. Mst. Kashibai’, AIR 1947 P.C 15 (H), where the testamentary capacity of the testator was in controversy. The point to be noted, however, is that in regard to proof of wills the Judicial Committee applied the presumption of regularity of acts as enunciated in Section 114 of the Evidence Act.
17. The above review of the cases, in my opinion, leads to the conclusion that in cases where the evidence of the attesting witnesses is not specific but vague or doubtful or even where it is conflicting upon the same material facts, the Court may take into account the surrounding circumstances of the case and judge from the same, whether the requirements of the statute have been complied with.
18. In this case the evidence discloses and it is also borne out by the recitals in the will, the execution of which is admitted, that the testator was a man advanced in years, that he had lost his wife and two sons, that his only surviving son was unheard of for several years and that the propounder of the will Sm. Annankali Debya who was a young widowed lady and was related to him as his sister-in-law, nursed him with care. The evidence also discloses that the objector was residing away from Billagram, the ordinary place of residence of the testator, and as such was not in a position to look after him.
19. In this state of his family the disposition in the will whereby he devised his estate to Sm. Annakali Debya was a natural disposition. The facts that the testator had gone all the way from Billagram to Krishnagar to have a will executed on the aforesaid terms, that at the time of execution the attesting witnesses were present and that it was presented for registration by the testator on the same day, all indicate that the testator duly executed the will and had it attested in accordance with law. The mere fact that there is a lacuna in the evidence of P.W 1 is not conclusive of the matter.
20. This lacuna may be due either to the fact that the Judge before whom the trial took place was not cautious enough or that the learned pleader who conducted the case on behalf of the propounder did not take steps necessary in cases like this, to have the necessary evidence recorded. In my opinion the mere fact that the requisite evidence was not recorded does not establish that all the requirements of the Statute (sic. were not complied with?) and does not render the will ineffective. In my opinion, the evidence of Barkatulla in this case must be taken to be sufficient compliance with the requirements of Section 63 of the Succession Act.
21. One of the attesting witnesses Radhika is dead and so far as he is concerned the evidence of Barkatulla, in my opinion, proves the attestation by him also. Hence, in my opinion, the evidence of Barkatulla taken by itself establishes due attestation of the will by at least two attesting witnesses, viz., himself and Radhika. It is unnecessary, therefore, to consider the effect of the evidence of P.W 2, Ahibhusan Chatterjee. But in my opinion, that evidence also lends support to the fact of execution and due attestation of the will by the testator. The evidence of Ahibhusan Chatterjee, P.W 2, in his examination-in-chief is as follows:
“…..I was an attesting witness to the will executed by him in favour of the propounder. …..Akhoy Chatterjee was present when I signed the will, I did not see Akhoy sign the will.” In cross-examination he stated that he did not see any other attesting witness sign the will. In other words, by his evidence the witness wanted to destroy the fact of execution by Akhoy and of his being an attesting witness. His evidence that he did not see the testator sign was obviously intended to that end. But, in my opinion, having regard to the circumstances of this case it is open to the Court to discard that part of his testimony whereby the witness repudiated the fact of attestation of the will. Such instances are not rare in the reports.
22. In the case of — ‘Nubo Kishore v. Joy Doorga’, 22 W.R 189 (I), it was held that the mere fact that the attesting witnesses repudiated the will does not invalidate the will if it can be proved by evidence of a reliable character that they have given false testimony. Having regard to the circumstances disclosed in the evidence, the mere fact that the attesting witness Ahibhusan repudiated the execution of the will by the testator does not invalidate the will. In my opinion, the evidence of Ahibhusan Chatterjee must be regarded with suspicion. I entirely distrust his statement that Annakali was present and actively interested herself in the matter of execution and attestation of the will.
23. It might well be that she had accompanied the testator to Krishnagar but, in my opinion, it is hard to believe as has been said by P.W 2 that Annakali was present at the ‘Majlis’ where the will was being executed and attested. In my opinion, the presumption arising out of the will itself, supported as it is by the clear and convincing testimony of Barkatulla, leads me to hold that the evidence of Ahibhusan Chatterjee must be regarded with caution and can be believed to the extent to which it supports the fact of attestation of the will. In my opinion, the evidence on record clearly establishes that the will was duly executed and attested.
24. Before I conclude this point it is necessary to refer to an argument put forward by Mr. Roy on behalf of the respondent that the Registrar must be regarded as an attesting witness. In support of his argument He referred us to a decision — ‘Abdul Karim v. Salimun’, 27 Cal. 190 (J), and to certain other cases. The view so taken has now been overruled by the Judicial Committee of the Privy Council in the case of — ‘Surendra Bahadur Singh v. Thakur Behari Singh’, AIR 1939 P.C 117 (K), to which Mr. Sen Gupta drew our attention. As the Judicial Committee pointed out there must be evidence to show that the Registrar signed in the presence of the executant and that the executant signed in the presence of the Registrar. In the absence of such evidence no inference can be drawn from the mere signature of the Registrar that he is an attesting witness. It is to be noted that the law does not require the Registrar to sign in the presence of the executant and no such inference as aforesaid can be drawn. In my opinion, therefore, the first point raised by Mr. Sen Gupta must be overruled.
25. The second point deals with the testamentary capacity of the executor. As has been observed by the Judicial Committee of the Privy Council in AIR 1947 P.C 15 (H), the testamentary capacity of the testator who makes a sane disposition and knows what he is about to do, might be presumed. In this case apart from the presumption there is positive evidence of the objector himself that the testator used to come to Court and looked after his litigation and that he also used to look after his properties. The dispositions under the will are natural. There is thus no reason to suggest that the testator was not possessed of testamentary capacity at the time. The testator survived the will by about 10 years and he took no steps whatsoever to disaffirm the provisions contained in the will. The second contention must also be overruled. This appeal, therefore, fails and is dismissed with costs — hearing fee three gold mohurs.
Debabrata Mookerjee, J.:— I agree.
B/V.R.B
26. Appeal dismissed.