This appeal is directed against the grant of letters of administration, with a copy of the Will annexed, to the estate of one Haralal Banerjee who died on the 22nd August 1895. Haralal Banerjee was the eldest of three brothers, of whom the second was Kaliprasanna Banerjee and the youngest was Sarat Chandra Banerjee. In 1890, a suit for partition had been brought by the youngest brother, and when Haralal died, the brothers had apparently ceased to be members of a joint family. Haralal left a widow, Nistarini (who is described as his second wife), a daughter by her named Earing alias Sukumari, and four other daughters by his first wife Gangamoni, who had predeceased him, namely, Apsari, Puti alias Sarojini, Baraburi alias Pramila and Chotaburi alias Sarasibala. At the time when Haralal died, his wife Nistarini was in the family way and was on the 15th November 1895 delivered of a posthumous son, subsequently named Susilkumar Banerjee. On the 19th February 1912, more than sixteen years after the death of Haralal, his three daughters by the first wife (other than Pramila who had died meanwhile) applied for letters of administration to his estate with copy annexed of a Will alleged to have been executed by him on the day of his death. The application was opposed by the infant son of Haralal through his mother, on the ground that the alleged Will was not genuine and that his father had no testamentary capacity at the time when he is said to have executed the instrument. The District Judge has pronounced in favour of the Will, and has directed letters of administration to issue to the three surviving daughters by the first wife, each of whom is a legatee under the Will. On the present appeal, preferred by the infant through his mother, it has been argued that the genuineness of the Will has not been established, and that the propounders have failed to discharge the burden which lay upon them to prove that the deceased had testamentary capacity at the time of the alleged execution of the Will. Before we examine the evidence, it is desirable to set out briefly the provisions of the Will.

The Will recites that the executant had been suddenly attacked with illness, that his body had become very weak, and that he was in apprehension of death. The Will then states that the testator had no male issue, that he accordingly thought it advisable to make some arrangement, and that to carry out his directions, he appointed his brothers Kaliprasanna and Sarat Chandra as the executors. Then follow two schedules: in the first, the debts and assets are stated; in the second, various legacies are specified. In the first schedule, in the enumeration of the assets, a sum of Rs. 5,525 is mentioned as money for purchase of a house; this, it has been said, is an erroneous statement, as a house had been purchased precisely for that sum on the 12th November 1893 (Ex. B). In the second, schedule, there is a legacy of Rs. 2,000 for the eldest daughter Apsari, Rs. 1,500 for her daughter, Rs. 1,000 each for Puti, Baraburi and Chotaburi, Rs. 2,000 for the marriage of Faring (the daughter by the second wife) and an additional sum of Rs. 1,000 for her. There is also a direction to pay Rs. 100 to one Nani Gopal Mookerjee, possibly the sister's son of the testator. There is finally a direction that the balance do belong to his wife Nistarini. The Will purports, on the face of it, to bear the signatures of two attesting witnesses, Satya Charan Mookherjee and Chandra Kumar Banerjee, both residents of the locality where the testator resided, the former a medical practitioner, the latter a Government pensioner.

Before we determine whether the alleged testator was of sound mind, within the meaning of sec. 46 of the Indian Succession Act, we must consider how far the case for the Petitioners is affected by the fact that there has been a delay of many years before the Will has been actually produced in Court. The District Judge has held, that satisfactory explanation has been offered in this respect, and that the mere fact of delay does not tend to throw doubt upon the genuineness of the Will. In concurrence with the District Judge we hold that, after the death of Haralal, the Will was in the custody of the youngest brother Sarat Chandra, and that after the death of the latter, the Will was found amongst his papers by his son Krishnahari, who, after some delay, made it over to Apsari, the eldest daughter of the testator. The evidence shows that Krishnahari found the Will among the papers of his father in April 1911, but did not make it over to Apsari till November 1911; as he explains, he took time to consider whether he should make over the Will which had been kept by his father in the iron-safe so long. It is needless to consider whether this is an absolutely true explanation of his conduct; it is not altogether improbable that he decided to deliver the Will to Apsari, only after his mother had been sued by the infant son of Haralal for recovery of money due on a promissory note executed by his father. It is only necessary to observe that it is proved that Apsari did not obtain possession of the Will till within three months of the date when she, along with her two sisters, applied for letters of administration. In these circumstances, we hold that the delay in the production of the Will has been sufficiently explained.

Two points now require consideration, namely, first, whether what purport to be the signatures of the testator on the Will were made by his hand, and, secondly, whether he had at the time sound mind within the meaning of sec. 46 of the Indian Succession Act. As regards the first question, we are inclined to adopt the view that the signatures are genuine. No good reason has been assigned to discredit in this respect the testimony of the two witnesses who have deposed that the testator signed the document. We are fortified in this opinion by a comparison of the signatures in the Will with the admitted signatures of the testator. There is a striking resemblance between the two sets of signatures, but not that absolute identity which, in many instances, may furnish indications of deliberate imitation by the careful forger. The first signature, however, on the face of it, gives ample indication that it had been written by a man in a very feeble state of health. The second signature consists of initials and ends in a scrawl, as if the effort to make the first signature had proved too much for the strength of the executant. We now proceed to consider the second question, namely, that of testamentary capacity, on the assumption that the Will was signed by Haralal.

It appears from the evidence on both sides that Haralal had been ill for about ten or twelve days before he died. It is also clear that he had an attack of fever, but the medical witness for the Petitioners adds that he had also dysentery. He was, during the first week of his illness, under the treatment of a kabiraj. Three days before his death, Satya Charan Mookherjee, an Allopathic Medical Practitioner, was called in. He treated him for two days. On the third day, he called in, for purposes of consultation, Dr. Rajendra Nath Mullick. This was on the day that Haralal died. The evidence on both sides shows that Dr. Mullick came to see the patient in the afternoon between 5 and 6; according to Satya Charan, Dr. Mullick attended also in the morning. It further appears, from the evidence on the side of the objector, that on the same day, at about 2 P.M, Manimohan Mookerjee, father-in-law of Haralal called in another physician, Dr. Mahendra Nath Roy. Satya Charan admits that he himself came to see the patient twice on that day, once in the morning and a second time in the afternoon. Haralal died early in the evening. The evidence indicates the time as between 7 and 8 o'clock, possibly a little later. We have, therefore, the fact that the physicians attended on the dying man five times in the course of the day, namely, Satya Charan twice, Dr. Mullick twice and Dr. Roy once. The Will is said to have been executed by Haralal in the afternoon between 5 and 6 p.m, i.e, about two hours before his death. The frequent visits of the different physicians indicate plainly that the condition of the patient was grave and there are other circumstances which unmistakably indicate that the illness had taken a serious turn at least two or three days before his death. We have first the fact that the mode of treatment was changed, and Satya Charan, in whose-charge the patient was placed, found it necessary to call in a consulting physician on the third day after he had taken him in hand. We have, in the second place, the fact that messengers were sent to bring in the daughters of Haralal. Nani Gopal, his nephew, went away to Jessore on the night of the 20th August and returned with Apsari on the morning of the 22nd August, the day on which Haralal died. The other daughters arrived late in the same evening after Haralal had passed away. All these circumstances incontestably show that the illness of Haralal had caused serious anxiety to his relations at least three days before his death, and that, on the day of his death, his condition was such as to necessitate the attendance of three physicians on five occasions at his bed-side. The Court must, consequently, scrutinize with care and caution the evidence as to his testamentary capacity at the time when he is said to have executed the Will.

It is unfortunate that of the three medical attendants, who saw the patient on that date, Dr. Roy and Dr. Mullick are both dead, and we are left with the testimony of the sole survivor, of whom it is no disparagement to say that he does not hold the diploma of any recognised medical institution. It is a matter for legitimate comment that no attempt was made on behalf of the Petitioners to obtain from the witness detailed information as to the nature of the illness and the condition of the patient. Satya Charan made the somewhat bald statement that Haralal died of fever and dysentery and was in full possession of his senses up till 5-30 or 6 p.m Satya Charan had been asked to produce his prescription-book; he did so and was at liberty to refresh his memory by reference thereto. It does not appear that he did so; but it seems probable that a reference to the prescriptions might have enabled him to give more definite information as to the condition of the patient than he actually did. It also appears from the evidence on the side of the objector that Dr. Mullick injected some medicine into the body of the patient when, he saw him in the afternoon. No attempt was made to get out from Satya Charan what happened when Dr. Mullick came in, though it is clear from the evidence that the two met and were with the patient for some time. We have, on the other hand, the assertion of the witnesses for the objector that the temperature of Haralal was very high and that he was delirious. Even if it be assumed that there is an element of exaggeration in the description given by the witnesses for the objector, who are laymen, it cannot be seriously disputed that the evidence adduced by the Petitioners is by no means convincing. The burden was upon the propounders to show that the testator had testamentary capacity, i.e, capacity to comprehend the nature and effect of his act; to discharge this burden, it must be shown that he was able to dispose of his property with understanding and reason, that he was able to realise his position, to appreciate his property and to form a judgment with respect to the parties whom he decided to benefit. The direct evidence, upon which the propounders rely, is, from this point of view, not of much assistance; an assertion by a witness that the man was in full possession of his senses is of little value; it is merely an expression of his opinion, the value of which depends in a large measure on the facts observed by him. As Williams, J., observed in Kinne v. Kinne(1), the opinions of witnesses as to competency are entitled to little regard, unless supported by good reasons founded on facts which warrant them. It is conceivable that, at this distance of time, the witness might have found it extremely difficult to recollect the facts he had then observed; we are not unmindful that lapse of time may sometimes account for the meagreness of the evidence or for lacuna therein. But it is a matter for legitimate comment that, in the present case, no attempt whatever was made on behalf of the propounders to obtain the details from the witness; it is not as if the witness was asked to give the information and failed to recollect what he had noticed many years previously.

The difficulty in the way of the Petitioners is further enhanced by the fact that no particulars are given as to the time and mode of preparation of the Will. The two attesting witnesses merely state that they signed the Will. Satya Charan does not state in examination-in-chief the name of the person who had asked him to be an attesting witness, but in cross-examination it has been brought out that the request came from the testator. Chandra Kumar Banerjee cannot recollect who asked him to become a witness. Neither witness is able to give any information as to whether there was a draft and whether instructions had been given as to the contents of the Will, and, if so, by whom. In these circumstances, the evidence of the writer would have been a valuable and in determining the question of validity of the Will. Satya Charan cannot say who the writer was. Chandra Kumar Banerjee has no personal knowledge of the subject, but adds that he had heard that one Annada Prasad Sarkar was the scribe. Krishnahari then comes forward with the story that they had two officers—Bishnupada Banerjee and Annada Prasad Sarkar—both of whom had left their services some years previously. He then states that the Will was in the handwriting of Annada Prasad Sarkar, and adds that Annada was in some village, not known, within Katwa in the District of Burdwan. This is said obviously with a view to explain why Annada had not been called. The next witness, Nibaran Chandra Mookerjee, however, asserts that Annada had a rice-shop in Kidderpore where the parties resided, and, though asked, had not agreed to give evidence. In cross-examination, it transpires that no corroboration could be obtained of the allegation that Annada had refused to give evidence, because none else besides the witness was present when Annada is said to have made the statement. We have consequently the fact that the writer has not been called; it is not proved beyond doubt that a serious effort was made to obtain his evidence; in any event, if the Petitioners had good reason to suppose that he could not be trusted to tell the truth, they might have asked the Court to summon him, with liberty to both parties to cross-examine him, if necessary. We have thus no information as to the instructions, if any, given by the testator for the preparation of the Will, except the bare statement by Satya Charan that he spoke about the Will for two or four days previously. Even this does not give any indication that the testator had expressed his intention to make a Will, or as to the details of its terms, or that he had consulted anybody about making a Will. We do not know when, if at all, instructions were given. We do not know that the provisions in the Will, as it stands, represent the wishes of the testator. In addition to this, we have the fact that there is no reliable evidence to show that the Will as drawn up was, before execution, read over to the testator, and its terms approved by him. Satya Charan, in his cross-examination, alleges that some one read out the Will, who he could not remember; he does not say, however, at what stage the Will was so read over. The person who read Over the Will, if the story be true, should undoubtedly have been examined. We have consequently a Will executed by a man about two hours before his death, when his condition was critical, and when, according to the evidence, he was restless with pain, without any information either as to the instructions, if any, given by him, or the time when and the person to whom the directions were given, and without any evidence to show that the Will as prepared was, before execution, read over to and approved by him. The Court called upon to pronounce in favour of such a Will, would, on well recognised principles, to which a brief reference will presently be made, refuse to hold in favour of the propounder.

But in the present case we have the additional fact that the contents of the Will tend materially to confirm the conclusion against the operative character of the instrument. As we have already stated, the Will contains a serious misstatement, inasmuch as it includes amongst the assets a sum of money for the purchase of a house which, as a matter of fact, had been purchased by the testator twenty months earlier; the recitals in the conveyance, together with the details of the currency notes paid to the vendor, show that the transaction had been completed. But, in addition to this misstatement in the Will, we have what cannot but be regarded as a serious omission from the Will. As we have already mentioned, the wife of the testator was in the family way and a posthumous son was born within three months of his death. It may safely be assumed that testator was aware of the condition of his wife; yet the Will makes no provision whatsoever for the possible child, though legacies are given to everyone of the daughters and even to the granddaughter. The Will recites that, up to that time, the testator had no male issue; yet it makes no reference to the possible child and makes a disposition of the properties which would completely disinherit the son, if one was born. It is difficult to believe that if the Will, as drawn up, was really the act of the testator and represented his wishes and judgment, no reference should be made to the possible child and no provision made for it, whether a daughter or son. On the other hand, if the terms of the Will were practically settled by the brothers or other well-meaning relations of the testator, when enfeebled by mortal illness and almost within sight of the end, they might have arranged for provisions like those we find in the Will, in ignorance of the condition of the testator's wife. It is further clear that if the available cash alone was taken into account, very nearly the whole of it was given away in legacies, and practically nothing but the houses was left for the widow. The provisions of the Will are consequently such as are calculated to excite suspicion. No doubt, as pointed out by the Judicial Committee in Bulli Kunwar v. Bhagirathi, a Court will not reject a Will merely because its terms appear extraordinary, against clear evidence of due execution by a competent testator. But where the terms are unusual and the evidence of testamentary capacity doubtful, as the Judicial Committee observed in Dufaur v. Croft and Harwood v. Baker, the vigilance of the Court will be roused, and, before pronouncing for the Will, the Court will require to be satisfied beyond all reasonable doubt that the testator was fully cognizant of its contents and in a condition to exercise, and valid exercise, thought, judgment,: and reflection, respecting the act he was doing: Tyrrell v. Painton(5). Upon a careful scrutiny of the entire evidence, we are of opinion that the propounders have failed to establish that the testator had sound and disposing mind when he is said to have affixed his signature to what purports to be his Will.

The principle applicable to cases of this character is now settled beyond possibility of dispute. Mere ability to sign one's name does not necessarily imply the possession of the full mental powers requisite for a valid disposition of property. Nor is it sufficient to show that the testator was conscious when he executed the instrument. As Creswell, J., said in Sefton v. Hopwood, “it is not sufficient in order to make a Will that a man should be able to maintain an ordinary conversation and to answer familiar and easy questions. He must have more mind than suffices for that. He must have what the old lawyers called a disposing mind; he must be able to dispose of his property with understanding and reason. This does not mean that he should make what other people may think a sensible Will or a reasonable Will or a kind Will. But he must be able to understand his position, he must be able to appreciate his property, to form a judgment with respect to the parties whom he chose to benefit by it after death; and, if he has capacity for that, it suffices”. Sir John Nicholl observed in Marsh v. Tyrrell, “it is a great but not uncommon error to suppose that because a person can understand a question put to him and can give a rational answer to such question, he is of perfect sound mind and is capable of making a Will for any purpose whatever, whereas the rule of law, and it is the rule of common sense, is far otherwise. As Redfield, J., said in Converse v. Converse(8), “in order to execute a valid Will, one must have sufficient active memory to recall his family and his property and to form a rational judgment in regard to the deserts of the one, and the disposition of the other with reference to such deserts” [Delafield v. Parish(9)]. The position is somewhat different where a testator has given instructions for his Will while his mind is still in vigour, and then, with the requisite degree of knowledge, executes the instrument shortly before his death: Parker v. Felgate(10), Woomesh Chandra v. Rash Mohini(11) affirmed by the Judicial Committee on appeal [Rashmohini v. Umesh(12)]. As Lord Macnaghten said in Perera v. Perera(13), where a testator is of sound mind when he gives instructions for a Will, but at the time of signature accepts the instrument drawn in pursuance thereof, even though not able to follow its provisions then, he must be deemed to be of sound mind when it is executed. The case before us does not fall within this rule, of which the cases of Kusum Kumari v. Satishendra(14) and Venkata v. Baggiammal(15) may be mentioned as recent illustrations.

On behalf of the Respondents, the view, however, has been earnestly pressed upon us that a Court of Appeal should be extremely slow to disagree with the primary Court on a question of appreciation of oral evidence. We are not unmindful that, in the words of Lindley, M.R, in Coghlan v. Cumberland(16), quoted with approval by Lord Collins in Shunmugaroya v. Manikka(17), it is always difficult for Judges, who have not seen and heard the witnesses, to refuse to; adopt the conclusion of fact of those who have [Shama Charan v. Khettramoni(18) and Marmavula v. Annapurni(19)]. The principle mentioned, no doubt, embodies the general rule, but is not of universal application, and cases are by no means rare where an Indian Appellate Court has taken a different view on the facts with reference to the validity of a Will from that taken by the primary Court, and the conclusion of the Appellate Court has been ultimately affirmed by the Judicial Committee: Rashmohini v. Umeshchandra, Gangamoyi v. Troilakhya Nath(20) and Bullikunvrar v. Bhagirathi. Here, however, the case is one, not so much of estimate of credibility of the witnesses for the Petitioners who have been believed by the Trial Court, as of the effect of their statements on the assumption that they have spoken the truth. The decision of the District Judge is vitiated by his failure to test the evidence from the standpoint of the fundamental principle that the testator must be of sound and discerning mind and memory, so as to be capable of making a disposition of his property with sense and judgment, in reference to the situation and amount of such property and to the relative claims of different persons who are or might be the objects of his bounty. It does not necessarily follow that in order to entitle us to disagree with the conclusion of the Trial Court, we must disbelieve the witnesses who have been accepted as truthful by that Court. In this connection, the observations of Baron Parke in Baker v. Batt may be usefully remembered: “In a Court of probate where the onus probandi most undoubtedly lies upon the party propounding the Will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the paper in Question does contain the last Will and testament of the deceased, the Court is bound to pronounce its opinion that the instrument is not entitled to probate; and it may frequently happen that this may be the result of an enquiry in cases of doubtful competency in particular, without the imputation of wilful perjury on either side; or it may be, the Judge may not be satisfied on which side the perjury is committed, or whether it certainly exists”. To the same effect are the observations of Lord Brougham in Panton v. Williams: “there is no duty cast upon the Court to strain after probate, and to grant it where grave doubts remain wholly unremoved, and great difficulties oppose themselves to our progress, which we are quite unable to surmount. It may suffice to say that the proof eminently lies on him who sets up a Will, and further that it is more fatal than to his adversary if he leaves difficulties entirely without explanations. It is much less material that those who seek to impeach a testamentary instrument should be unable to explain certain things in their case and should be forced to admit that their argument is not in every point consistent with all the facts, than that they who seek to establish the Will should give no rational, consistent or intelligible solution of those difficulties which encumber their suppositions and obstruct the path towards the conclusion they would have us arrive at”. In the case before us, we are unable to say that the propounders have satisfied us that the instrument put forward as the last Will of Haralal Banerjee was executed by him when he had a sound disposing mind.

The only other matter for consideration is, whether the case should be retried and the propounders allowed an opportunity to fill up the deficiencies in the proof offered by them; after an anxious examination of all the circumstances we have arrived at the conclusion that the matter should not be reopened. There would be a real danger of manufacture and manipulation of evidence if witnesses were now allowed to be brought forward to speak to events which happened nearly twenty years ago.

The result is that this appeal is allowed, the decree of the District Judge set aside and the application for letters of administration made on the 19th February 1912, with reference to the alleged Will of Haralal Banerjee, dismissed. We direct however that the parties do bear their own costs throughout these proceedings.

Appeal allowed.