Judgement Appeal from a decree of the High Court (March 3, 1904) reversing a decree of the District Judge of Gaya (August 6, 1901). The issue related under the circumstances stated in their Lordships judgment to the genuineness of a will dated December 21, 1900, purporting to have been executed by Chhote Narayan Pershad, who died on the next day. There were five attesting witnesses, of whom three were examined. The other two and the appellant Law Rep. 36 Ind. App. 221 ( 1908- 1909) Jagarnath Pershad V. Hanuman Pershad 112 applicant tendered themselves for cross-examination, which was declined by the respondents, who, however, called three witnesses to prove that the testator was unconscious on the said December 21. The District Judge said "It appears to me on the whole that the testimony to the genuineness of the will and the competency and animus testandi of the testator is overwhelming and that the evidence by which it is attempted to be rebutted is altogether untrustworthy." The High Court at the hearing of the appeal ordered with the consent of parties on January 28, 1904, the examination in the High Court, in accordance with s. 568 (b), C. C. P., as witnesses for the appellant, of the three persons who had been tendered for cross-examination in the Court below. The order was made to enable this Court to decide the appeal satisfactorily. Their depositions were taken by the High Court, which also admitted in evidence certain extracts from books of account kept by the testator. In the result the High Court found that the genuineness of the will was not proved and dismissed the application. De Gruyther, K.C., and G. D. Jackson, for the appellant, contended that the fresh evidence was improperly admitted by the High Court and referred to Kessowji Issar v. Great Indian Peninsula By. Co. (( 1907) L. R. 34 Ind. Ap. 115.), which construes s. 568 and defines the occasions on which according to its true construction fresh evidence may be admitted. Although no objection was taken, no "substantial reason" was given as required by the section. The books of account were not properly proved. Ross, for the respondent Manna Koer, heiress and legal representative of Hanuman Pershad, contended that as the parties had agreed before the High Court the objection could not now be taken for the first time. Although no objection was taken, no "substantial reason" was given as required by the section. The books of account were not properly proved. Ross, for the respondent Manna Koer, heiress and legal representative of Hanuman Pershad, contended that as the parties had agreed before the High Court the objection could not now be taken for the first time. The High Court more fully investigated the case than did the District Judge, and its judgment should stand unless shewn to be wrong. De Gruyther, K.C., in reply. The judgment of their Lordships was delivered by SIR ARTHUR WILSON. This is an appeal from a judgment and decree of the High Court of Bengal dated March 3, 1904, which reversed those of the District Judge of Gaya of August 6, 1901. The main question raised on the appeal is as to the genuineness of the will purporting to have been made by one Chhote Narayan Pershad and dated December 21, 1900. Chhote Narayan died on the morning of the next day to that on which the will bears date, and left a widow, the respondent Manna Koer, and a daughter, Lakshmi Koer. Chhote Narayan was the adopted son of one Jokhi Lal. After Jokhi Lals death one of his widows adopted the respondent Hanuman Pershad. The appellant is the brother by birth of Chhote Narayan Pershad, their father being one Ram Rekha Lal. The will purported to make various provisions for the testators wife and daughter, and appointed the now appellant, the testators brother by birth, as residuary legatee and executor. The appellant applied for probate of the will in the Court of the District Judge of Gaya. Caveats and written statements were filed in answer, and the case was heard before the District Judge. Three of those who appear as attesting witnesses to the will were called at the hearing. The other two attesting witnesses and the appellant himself were not examined by the applicant; they were tendered for Law Rep. 36 Ind. App. 221 ( 1908- 1909) Jagarnath Pershad V. Hanuman Pershad 113 cross-examination but not cross-examined. Evidence was called on the other side. The District Judge was satisfied that the testimony to the genuineness of the will and the competency and animus testandi of the testator was overwhelming, and the evidence on the other side altogether untrustworthy, and he granted probate accordingly. 221 ( 1908- 1909) Jagarnath Pershad V. Hanuman Pershad 113 cross-examination but not cross-examined. Evidence was called on the other side. The District Judge was satisfied that the testimony to the genuineness of the will and the competency and animus testandi of the testator was overwhelming, and the evidence on the other side altogether untrustworthy, and he granted probate accordingly. The respondents appealed to the High Court of Bengal. That Court made an order at the hearing of the appeal for the examination as witnesses of the appellant himself and the two witnesses to the will who had not been examined in the first Court. Those persons were accordingly examined. The High Court also admitted certain extracts from books of account alleged to have been kept by the testator. In the result the High Court held that the circumstances connected with the alleged execution of the will were involved in suspicion, and that the will was not sufficiently proved, and accordingly a decree was passed which set aside that of the District Judge and dismissed the application for probate with costs. Against that decree the present appeal has been brought. On the argument of the appeal it was objected that the examination of the three witnesses by the Court of Appeal was irregular; but it appears that that examination was taken with the assent of both sides. It is not open, therefore, to anybody to complain of it now. It is objected, secondly, that the admission of the account books on appeal was irregular. But there is nothing to shew that that admission was objected to at the time. Their Lordships thus have to face the position that on a pure question of fact the two Courts in India have differed, and the materials before those two Courts have not been entirely the same. The question their Lordships have to answer is whether they shall advise His Majesty that the decree of the High Court should be reversed. That they cannot do unless they are satisfied that the decree appealed against was wrong, and they are not so satisfied. Their Lordships will humbly advise His Majesty that the appeal should be dismissed. The appellant will pay the costs of the respondent Mussummat Manna Koer, who alone defended the appeal.