JUDGMENT 1. This appeal arises out of a petition of Dharma Nath Deb Sarma for probate of an alleged Will of Narendra Narayan Sarma, dated the 24th of Jaista 1315. A caveat has been filed by Musstt. Padma Priya Debya, the widow of the deceased Narendra Narayan. The learned Judge after considering the evidence has ordered that probate should issue and the caveatrix has appealed. Narendra Narayan died on the 25th of Jaista 1315, Sunday, at night. He is said to have executed this Will on the previous day. He died of cholera with which disease he was attacked on the 24th of Jaista, the Saturday. In these matters of probate it is essential that the propounder of a Will should prove to the satisfaction of the Court beyond all possible doubt, or, as it has been said in a well-known case which is often cited, he must "satisfy the conscience of the Court," that the Will was executed by the alleged testator, that it was executed in accordance with law and that the testator at the time of the execution was in a state of mind and body to be able to execute the Will and to fully appreciate what he was doing in the disposition of his properly. The question before us is whether in this case the profounder has discharged this onus. After hearing the pleaders on each side and carefully reading the evidence, we are of opinion that he has not. In the first place, as to the testator's condition of mind and body, he was, as we have said, seized with cholera, and it is suggested that though in the throes of that disease he still was able to summon the profounder who was his nearest male relation to get him to call in writers and witnesses, to dictate this Will which covers a page of foolscap paper, to have a draft prepared, to have the Will fresh copied and then to execute it. To show that the testator was in a position to do this, having regard to his condition and the illness from which he was suffering, very cogent evidence would have to be called. We have on the record the evidence of Dharma Nath Deb and of the writer Bali Narayan Choudury and of the witnesses. But they say very little with regard to the condition of the testator's mind or body. We have on the record the evidence of Dharma Nath Deb and of the writer Bali Narayan Choudury and of the witnesses. But they say very little with regard to the condition of the testator's mind or body. All they say is that the testator was in his sound senses. That is hardly, in a case of this kind, sufficient. Then, there are material discrepancies in the evidence of the witnesses themselves, particularly with regard to the removal from the house of all the moveable property and as to a list of the property being prepared when it had been removed into the courtyard: they do not agree with regard to the making, of this list. Again, there is an element of doubt as to whether the Will was legally executed in the sense that it was executed by the testator in the presence of the witnesses. We are left in some doubt as to whether they actually saw the testator sign or whether he saw them sign: Their exact positions are not precisely stated : the testator is said to have been reclining on a cot just within the door of his house, and the witnesses are said to have been under the eaves in the courtyard-whether they could see or not does not appear. Then there is some doubt with regard to the signature itself. The signature is extremely like the one on Ex. A, which was made by the testator 15 years before The similarity is very striking indeed-so striking as to cause suspicion. We may say that the learned District Judge was clearly in error when he took into consideration the opinion of the Government expert in handwriting, who was not called as a witness in the case and therefore not subjected to cross-examination by the other side. The opinion of the expert was clearly inadmissible under those circumstances. Then we have a fact which appears from the Will itself, the fact as to the death of the testator's son. In the alleged Will the testator is made to say, 'I had a male child, but it lived only for two months and then died.' That would rather indicate death at some distance of time. Then we have a fact which appears from the Will itself, the fact as to the death of the testator's son. In the alleged Will the testator is made to say, 'I had a male child, but it lived only for two months and then died.' That would rather indicate death at some distance of time. One of the witnesses, Bali Narayan, says that the child died 4 or 5 days before the testator : The mother, however, and the child's uncle, who are in a much better position to give evidence with regard to such matter and who were under no inducement to tell an untruth,-both swear that the child died the same day as the testator, that is to say, on the Sunday. If that is so-and there is no reason to disbelieve that evidence-it is impossible that the testator should have made such a remark in his Will, which (be it remembered) he is said to have dictated; he must have known whether his child was alive or dead at the time he dictated the Will. Under those circumstances it appears to us that there are considerable elements of suspicion in the case and that probate ought not to issue to the Petitioner. 2. We accordingly set aside the judgment and decree of the learned District Judge and dismiss the application for probate with costs in both Courts. We fix the hearing fee in this Court at three gold mohurs.