JUDGMENT
Das, J.
1. This is an appeal against the judgment of the learned Dist J. of Cuttack, granting probate to one Fagu Prusti, of the will of one Narayan Prusti. The appct is the brother of the testator, who is also the executor under the will. The objector, who is the applt before us, is the wife of the testator. The will is said to have been executed on 30-5-38. The testator admittedly died two months thereafter on 2-8-1938. He was about 35 years old at the time of his death. He left him surviving the applt, his wife Nilambar Bewa, and a daughter aged about 6 years, Padma Dei. Subsequent to the birth of his daughter, he appears to have had two male children, one after another, but they had both died before the date of the alleged will. It would appear from the evidence of the applt that the second of the male children was born about a year prior to the testator’s death & died when he was a baby less than 10 months’ old. The will purports to be executed in favour of one Brajabandhu Prusti, the minor son of Fagu Prusti, the resp. In support of the due execution of the will, two persons purporting to be the attestors thereof, nave been examined as P. Ws. 1 & 2 & the will has been marked as Ex. 1. The wife who has examined herself as D. W. 1 & who appears to be literate & claims to be acquainted with the writing & signature of her husband, denies that the signature in the alleged will is that of her husband. The will also purports to bear the thumb impression of the testator. No documents have been filed on either side for comparison of the alleged signature or thumb impression in the will. The will has not been registered & it has been produced by the resp for the first time in the year 1941 in connection with certain land revenue proceedings. It would appear that the applt, Nilambar Bewa, applied for mutation of her name in the place of her deceased husband in respect of his properties. But the resp, Pagu Prusti objected on behalf of his minor son & produced the will in support of his objection before the Revenue Ct as appears from Ex. 4, the order in the land-revenue proceedings dated 24-10-41. The proceedings terminated against the applt & we have been informed at the Bar that the applt has thereupon filed a title-suit which is now pending & has been stayed to await the disposal of this appeal.
2. The applt has, in addition to challenging the genuineness of the will, contended that her husband died undivided, implying thereby that the will is invalid. This contention has presumably been raised with a view to take advantage of the provisions of the Hindu Women’s Rights to Property Act of 1937, which has been made applicable retrospectively to the agricultural property in Orissa by Orissa Act of 1944. She has also raised the contention that the properties of the testator disclosed in the probate proceedings & specifically mentioned in the will are far less than what the testator died possessed of. Neither of these questions, namely, as to the testamentary capacity of the testator or the extent of the properties in respect of which the will may become operative are matters with which the Ct is concerned in these probate proceedings. It is therefore unnecessary to say anything regarding the same. It may also be mentioned that under the terms of the alleged will, the appct is to be the executor only during the minority of his son who, at the time of the alleged execution of the will, was 14 years old as spoken to by P. W. 1 & who therefore must have been major by 1944 when this appln was made. It is doubtful whether under the circumstances, the appct had a right to apply for the probate. No such question has been raised before us & it is unnecessary therefore to say anything further about it.
3. When an appln is made for the grant of probate of a disputed will, the Ct called upon to do so has to be fully satisfied that the document has been duly & validly executed & attested & that it is the legal declaration of the intention of the testator with respect to the property which he desires to be carried into effect after his death. The onus, in such cases, rests on the person who propounds the will to establish that it is the will of a free & capable testator who at the time had a sound disposing state of mind. But where circumstances exist, which excite the suspicion of the Ct, it is for those who propound the will to remove such suspicion & to prove affirmatively that the testator knew & approved the contents of the document. This onus is all the greater where the person who propounds the will takes a benefit. These propositions are well established & beyond any question. See ‘Barry v. Butlin’, (1838) 2 Moore PC 480: (46 R R 123); ‘Tyrrell v. Palnton’, (1894) PD 151: (70 LT 453. No doubt mere unreasonableness or inofficiousness of a will is not to be treated as a suspicious circumstance, if there is cogent & reliable proof of valid execution by the testator in a sound disposing state of mind. See ‘Monghibhai v. Pragji Dayal’, AIR (12) 1925 PC 198: (89 IC 88). Nor should any mere circumstantial improbabilities be allowed to outweigh reliable & positive testimony. See ‘Chotey Narain Singh v. Ratan Koer’, 22 Cal 519: (22 IA 12 P C). It is also true to say that bare conflict of testimony as to the factum of valid execution by the testator or as to his capacity is not to be treated as an item of suspicion within the meaning of the rules laid down in ‘Barry v. Butlin’, (1838) 2 Moo PC 480: (46 RR 123) & ‘Tyrell v. Painton’, (1894 PD 151: 70 L T 453). See ‘Jarat Kumari v. Bissessur Dutt’, 39 Cal 245: (13 IC 577); ‘Sarojini Dassi v. Haridas Ghose’, AIR (9) 1922 Cal 12: (49 Cal 235); & ‘Prasannamoyi Debi v. Baikuntha Nath’, AIR (9) 1922 Cal 260: (49 Cal 132). But where there is such conflict of evidence and the best evidence relating to the factum of the execution & the circumstances relating thereto has been given, the Ct may well hold the will not proved. See ‘Bindeshri Prasad v. Mt. Baisakha Bibi’, AIR (7) 1920 PC 70: (61 IC 431) & AIR 1930 PC 140 (sic). It is in the light of these well-established principles that the evidence & the circumstances in this case have to be considered. A perusal of the learned Judge’s judgment discloses a lack of grasp of the above principles & it therefore falls to us to make an independent appreciation.
3a. The will purports to be addressed in favour of Brajabandhu Prusti, son of Fagu Prusti, as the donee thereunder. At the outset, it specifies the property which at the time is said to be owned by the testator. Its provisions may be translated as follows:
“I have been suffering from ‘Vatha Roga’ for a long time. I have no child excepting a daughter named Padma Dei. I have no expectation of having any children in future. I have been looking on you Brajabandhu Prusti from your childhood with affection as a son. You have also been conducting yourself like a son, being obedient & well-behaved. I am therefore very much attached to you. Consequently, I am placing much hope in you for future. My father-in-law Gopal Sahu having seen my weak condition, has kept away my wife, his daughter, for a long time in his house. He is also a habitual litigant & I am therefore apprehensive that he will after me, involve any property which I may leave, in waste & loss. In order to avoid disputes & for securing proper arrangement for the offering of Pindas, in order to secure salvation in the other world, & because there is uncertainty as to what may happen to me in course of time, I am executing this will, of my own accord freely with a sound & settled mind. The above mentioned Brajabandhu Prusti will after my death get, & in my place become the owner & possessor of all the property which I have mentioned above & all other property which I may acquire during my lifetime. No other person can raise any objection to this. Any such objection will be untenable in view of this will. This is proper for you (Brajbandhu Prusti) the donee under this, viz., you as well as Pagu Prusti whom I am appointing as executor during your minority, will carry out duly the arrangement hereunder mentioned for Khork Poshak (maintenance) of my daughter Padma Dei & of my wife Nilambara Dei, viz., for the mother annually 2 bharans of paddy & eighteen rupees & for the daughter till her marriage annually one Bharan of paddy & twelve rupees, will be regularly supplied, also for the marriage of my daughter an expense of not less than Rs. 150/- will be incurred ,also towards her Jautuk (marriage gift) one mana of Sarad paddy land in Ratisinga village will be given. If she is unwilling to take the land, she will be given the value thereof. Also according to family usage, her usual requirements will be met. The funeral ceremonies of myself & my wife will also be duly performed. So long as my wife & daughter are in Joint mess like me or if they leave our ancestral house & go anywhere else, they will not be entitled to receive maintenance as above. If my wife leaves the ancestral house & goes away elsewhere, she will not be entitled to take my daughter with her, if my wife goes outside as above, my executor will look after my daughter as her guardian. If necessary, he can for the purpose have resort to Ct in his capacity as guardian. Also if you both give any trouble in the matter of supplying maintenance as above they will be entitled to take the necessary proceedings through Ct & realise what is due to them. I have appointed your father Pagu Prusti an executor in order that he may look after all matters as above stated in case I happen to die during your minority. You will be entitled to take over all the responsibility from Pagu Prusty, on your attaining majority if you so choose.”
This is written by one Krupasindu Das of Talakusuma, & attested by four persons, (1) Laxman of Gurupailo, (2) Harekrishna Gochhait of Baharana, (3) Dharanidhara Das of Soralio, & (4) Dadhi Sahu of Tala Kusuma. It has also been signed , by the resp, Fagu Prusti, & one Jagannath Prusti, another co-sharer in token of their agreement to the will. Out of these seven persons connected with the will only the attestors, namely, Dharanidhara Das & Harekrishna Gochait have been examined as P. Ws. 1 & 2 respectively. The testator is a resident of the village Baharana. P. W. 1 who is a resident of a different village gave evidence that he happened to go over to the testator’s village that day in order to place some orders for preparation of certain ornaments with one Hari Sahu, whose house is close to the testator’s house. He says that when he was sitting there, he was called by the testator for attesting the will. He went to the testator’s house & saw there the scribe preparing a draft & remained there for about an hour. The executant signed & thumb-marked the will in his presence & in the presence of others who all attested the will in the presence of each other & in the presence of the testator. P. W. 2 who belongs to the same village as that of the testator, is his neighbour, with one house intervening. He says that the testator executed a will two months prior to his death & that one Krupasindhu scribed the will & he & others attested the will. He says that a draft was prepared first, that it was read to the executant, & that a fair copy was made & also read over, that the executant signed & thumb marked the same & that all the rest of them thereupon attested. This is practically all the evidence on the strength of which the learned Judge has found in favour of the will.
4. It appears to us that this evidence is wholly insufficient to satisfy the Ct with reference to the standards above indicated. When a will which has not been registered during the lifetime of the testator, & has not seen the Jight of the day for about three years after the death of the testator is put forward & a probate is asked for, something more is required than the bare & formal proof of execution & attestation, by calling in a few only of the persons connected with it, as in this case. It has to be satisfactorily made out that it is the free & conscious act of the testator & for this purpose the best evidence of all the circumstances connected with the execution of the will has to be fully made out. When such evidence is available & not given, it raises grave doubts even as regards the truth of the case relating to execution & attestation. In the present case, apart from the non-registration & late production of the will, there are a number of other circumstances which have not been sufficiently explained. The most material witnesses have not been examined. All the attesting witnesses, excepting one, happen to be residents of villages different from that of the testator. In a case of this kind, the scribe is generally the most important witness, but he has not been examined. It was said by P. W. 1 that the scribe was his neighbour & that he was suffering from a severe type of diabetes. When cross-examined, he says that he saw the scribe only a month prior to his giving deposition. This is no proof that the scribe was not available as a witness in these proceedings owing to any serious illness. One of the important questions that arise in a case of this kind is as to the custody of the alleged will from the moment of its execution till it sees the light of the day. The resp, the proponent of the will, has produced it into Ct, but has not examined himself. Admittedly he was connected with the execution of the will & he has signed it in token of his consent. According to the evidence of P. Ws. 1 & 2, he was also present at the time when the will was written & the will itself was for the benefit of his son. He is obviously very much interested in the will, though he may take no direct benefit under it, excepting by way of management of the property till his son attains majority. On the evidence of P. Ws. 1 & 2, the testator was having joint mess with him at the time of the alleged execution of the will & for sometime prior thereto. In the circumstances, he was the best person to explain the circumstances relating to the execution of the will & the entire background of the testator’s situation which may have operated on his mind for making the particular provisions therein. He should also have been in a position to explain how the various persons from different villages happened to figure as attestors & why the will was not registered & in whose custody the will was after execution & how it came to his hands. The non-examination therefore of these two important witnesses, namely, the scribe & the resp, cannot but raise grave suspicion in the mind of the Ct as to the genuineness & bona fides of this will. Out of the two witnesses actually examined, P. W. 1 is in the nature of a chance witness. P. W. 2 says in his evidence that the testator was in a sound state of mind when he executed the will, but he adds curiously enough that he was ‘then’ having a fit of epilepsy. This clearly shows that, according to this witness, the will was executed when the attestor had at best probably just recovered from an epileptic fit. It is therefore obviously necessary to scrutinise the evidence carefully as to whether the alleged will represents a free & volitional act of the testator at a time when he was in a position to give his consideration to all the circumstances which would normally operate on a person’s mind when he proposes to make a will. The only evidence of this as given by P. W. 2 consists in his statement that the testator called him from his house & told him that since his wife had left him, he would execute a will leaving maintenance allowance for his wife & daughter, & that the scribe prepared a draft which was read over to the executant & was altered according to his suggestion. The other witness, P. W. 1 purports to corroborate this evidence as to the draft & alteration thereof at the suggestion of the testator. According to his evidence, he had been sent for’ & came to the place while the scribe was still preparing the draft. P. W. 2 however specifically says that by the time P. W. 1 came to the place, Ex. 1 (which was the original will) was almost written out. This, if true, must indicate that P. W. 1 was not on the scene at the time of the draft. P. Ws. 1 & 2 therefore cannot be said to corroborate each other in their evidence reflating to the draft of the will. The draft itself is not forthcoming, the scribe not having been examined. In these circumstances, it is difficult to accept the evidence of P. Ws. 1 & 2 as enough to satisfy the requisite standard of proof in such a case, though nothing specifically has been definitely or clearly brought out as against them for their speaking in support of a forged will. This difficulty is all the more strengthened when the provisions of the will & the background of the circumstances in which the will is said to have come into existence are scrutinised & examined.
5. The testator was only about 35 years old by the time he made the will. It is clear that he was having children in the usual course through his wife. The last of his children having died within about a month or two prior to the date of his making the alleged will, there is no apparent reason for thinking that by that time, he had lost all hope of having any male children. It is true that he died within, about two months after the alleged execution of the will, but this is by itself no indication that he was then apprehensive of death. Both according to the wife, D. W. 1 as also according to the neighbour,- P. W. 2, he died accidentally by getting drowned in a tank when he had an epileptic fit. There is some evidence that the testator was subject to attacks of epileptic fits, but whether he was so afflicted with this as a disease so as to make him apprehensive of death or whether thereby he was in any state of prolonged illness or debility, does not appear from the evidence. The will itself does not refer to any such health-condition of the testator, but merely states that the testator was suffering from “Bata Roga”. Therefore it has not been satisfactorily established that either the family condition or the health condition of the testator was such at the time as would predispose him at the age of 35 to make a will. This is a matter on which the resp, Pagu Prusti, could have thrown some light by examining himself.
6. There is some suggestion in the will that the testator was greatly attached to the legatee, Brajabandu Prusti, of which, however, there is absolutely no proof. Some attempt has been made in the evidence to make out that the testator & his wife, the applt, were not pulling on well with each other & that the applt had left her husband’s house about three or four years prior to his death & stayed away with her parents & that she came back to the husband only within 21 days prior to his death. But there is absolutely no mention of any thing of this in the will itself. P. Ws. 1 & 2 have given some indefinite evidence to the above effect without categorically & definitely affirming it. The applt has been cross-examined on this point, but has strongly repudiated the suggestion. According to her, she was throughout with her husband until his death, but had gone to her father’s place three years prior thereto to attend a marriage ceremony there & stayed there on that occasion for about 15 days & returned. Here again the resp Fagu Prusti, with whom the testator was said to be having joint mess during his wife’s absence was the best person to speak to this matter & his non-examination tells against this story. Learned counsel for the resp also relied on Ex. 3, which is a portion of a post card dated 19-4-36 purporting to have been written to the testator. This post-card was shown to the applt when she was being examined & she admitted that portion was to be her handwriting. That portion Ex. 3 may be translated as follows:
“Marriage is not yet settled. If the motor comes, the marriage will not take place. If the motor is only for Rs. 600/-, it may take place. The daughter-in-law is not yet fixed. If you would have given horoscope we should have got it seen. You might have given Padma’s horoscope. The disgrace you have offered is uncommon in this world. Please write how your health is. What more can I say? Anyhow you have offered disgrace. My father is not in Nua Bazar. How are you managing mess & drink.”
This is relied on to show that the husband & wife were not pulling on well with each other at the time. Apart from the fact that the contents of this portion have not been specifically put to the applt in her cross-examination there is nothing in the disjointed & rather unintelligible sentences in this letter to lead to an inference that there was any ill-will between the husband & the wife at the time or that the same continued until his death. It is therefore clear that no alleged ill-will between the husband & the wife as an operative cause for the making of the will has been made out.
7. The provisions of the will completely disinherit the wife & the only young daughter of the testator & give the property to the nephew. No such family situation has been established which would prima facie have predisposed the testator to have made such a will. It has been urged that a provision has been made for the maintenance of the wife and the daughter & for the marriage & other expenses of the daughter & that that provision was fair & reasonable having regard to the extent of the property & that therefore there is no reason to attribute any unnaturalness to the will. It has been pointed out also that the property is small & has been valued even by the Collector only at Rs. 2100/- & that the provision for maintenance for both the mother & daughter together comes to about 3 bharans of paddy & Rs. 30/- annually & is reasonable. It is suggested that the testator may well have been unwilling that the family property should get into the hands of his father-in-law, who being a litigant would waste it away so as not to make the property ultimately available to the family members or reversioners. There is absolutely no proof that the father-in-law is a litigant. The only thing that has been brought out, is an answer in the cross-examination of the applt, wherein she stated that her father goes to Cuttack, say once a week in connection with his Ct affairs, which may well be quite bona fide & honest on his part in connection with his own affairs. The provision for maintenance itself is rather curious. It says that the wife & the daughter will not be entitled to receive the maintenance so long as they are in joint mess like him (that is presumably with the brother Pagu Prusti); or if they leave the ancestral house & go anywhere else. The provision for maintenance thus appears to be hedged in with unreasonable restrictions apart from the question whether in quantum it is fair in relation to the property. The will also says that if the wife leaves the ancestral house, she will not be entitled to take the minor daughter with her & enjoins on the executor to take steps, if required, to assert his rights as guardian of the minor daughter. Admittedly the applt & her daughter have left the ancestral house of the testator shortly after his death, but no proceedings have so far been taken, which is unlikely if the will is true & meant to be acted upon.
8. It is clear, therefore, looked at either with reference to the inherent probabilities or as regards the positive evidence given, that there is every reason to doubt the genuineness or bona fides of the will, Ex. 1. In my view, the resp has not discharged the burden which lies heavily on him. The will, Ex. 1 must be held not to have been proved. The appln for probate must accordingly be dismissed.
9. The appeal is therefore allowed with costs both here & in the Ct below.
Panigrahi, J.
10. I agree.
