Judgement Appeal from a judgment and decree (January 11, 1909) of the Court of the Judicial Commissioner, partly affirming and partly reversing a judgment and decree of the Subordinate Judge of Hardoi (February 4, 1908). The respondent, as plaintiff in a suit in which the appellants were defendants, alleged that a will purporting to have been made on October 21, 1904, by the deceased husband of the first appellant was a forgery. The will in question was attested by the testators diwan, by another servant, and by his confidential clerk, and it further bore the additional attestation of one Mohammed Nusrat Ali, who was a person of some standing, this additional attestation bearing date April 20, 1905. The will was, their Lordships held, in its terms reasonable, natural, and proper. At the trial the attesting witnesses and the additional attesting witness were called, and the last named was not cross-examined with a view to shewing that he was upon the date of the additional attestation at a place inconsistent with the truth of his attestation. The Subordinate Judge by his judgment, delivered on February 4, 1908, found that the will was genuine. For reasons not material to this report, he held, however, that it was invalid and inoperative in regard to part of the property with which it dealt. Both parties appealed to the Court of the Judicial Commissioner. Upon the hearing of the appeal, the Court, acting under the Code of Civil Procedure, 1882, s. 568 (b) (which is set out in the judgment of their Lordships), allowed additional evidence to be produced. This evidence was to the effect that on April 20, 1905, Mohammed Nusrat Ali was present at a meeting at Lucknow at an hour which rendered it impossible that he could have attested the will at Sandila upon that date as he had sworn. He was not called to contradict or explain this evidence. The Court of the Judicial Commissioner by its judgment, delivered on January 11, 1909, found that the will was a forgery. The learned Commissioners were of opinion that the evidence produced in favour of the will was open to suspicion and unreliable, and that, having regard to the above-mentioned additional evidence, the testimony of Mohammed Nusrat Ali should be rejected. De Gruyther, K.C., and Amiend Jackson, for the appellants. The learned Commissioners were of opinion that the evidence produced in favour of the will was open to suspicion and unreliable, and that, having regard to the above-mentioned additional evidence, the testimony of Mohammed Nusrat Ali should be rejected. De Gruyther, K.C., and Amiend Jackson, for the appellants. There are concurrent findings that the disposition made by the will was one which the testator probably would have made. The fact that the will was attested by the testators servants should not, under these circumstances, have furnished any grounds for suspecting its genuineness. Upon the evidence the due attesta tion of the will was satisfactorily proved. The present case is similar to Shama Churn Kundu v. Khettromoni Dasi. (( 1899) L. R. 27 Ind. Ap. 10.) The Appellate Court should not have admitted the additional evidence at all; the power given under the Code of Civil Procedure, 1882, s. 568, should only be used where there is a lacuna or gap in the evidence Kessowji Issur v. Great Indian Peninsula Ry. Co. (( 1907) L. R. 34 Ind. Ap. 115.) In any case the additional evidence should not have been admitted without giving the witness whose testimony was impugned an opportunity to answer or explain it. Ross, K.C. and Dube, for the respondent. The additional evidence was called in the Appellate Court without any objection on the part of the appellants, who are not now entitled to object to its admission. [Mr. Ameer All The respondent, upon discovering the fresh evidence, should have applied to the Subordinate Judge to hear it and to review his decision under the Code of Civil Procedure, 1882, s. 623.] (Counsel for the respondent addressed their Lordships upon the facts of the case and, in the course of the argument, admitted that the signature appearing on the will was genuine.) No reply was called for. The judgment of their Lordships was delivered by LORD SHAW OF DUNFERMLINE. This is an appeal from a judgment and decree of the Court of the Judicial Commissioner of Oudh, dated January 11, 1909. This partly affirmed and partly reversed a judgment and decree dated February 4, 1908, of the Court of the Subordinate Judge of Hardoi. The only question raised-at the Bar of the Board was whether a will executed on October 21, 1904, by one Kuar Narindra Bahadur is or is not a genuine will. This partly affirmed and partly reversed a judgment and decree dated February 4, 1908, of the Court of the Subordinate Judge of Hardoi. The only question raised-at the Bar of the Board was whether a will executed on October 21, 1904, by one Kuar Narindra Bahadur is or is not a genuine will. Its provisions are substantially these That after his death his widow should be proprietor of his estate in the Kheri district, and should have absolute power over the estate in the Hardoi district and hold proprietary possession over all his estate. . By the third clause of the will it was provided that after her death "Raj Bahadur, my sisters son, shall be the absolute owner of all my property, movable and immovable, of every description." Other provisions, including certain annuities to the testators brother-in-law, occur in the will. Ex facie it was duly executed and properly attested, and the witnesses are, first, his diwan, or general agent; secondly, a servant, who appears to have had charge of the wardrobe and a certain power of supervision, including that of making purchases; and lastly, his treasurer, or confidential clerk. In the words of the Subordinate Judge, " The scribe of the will is the mukhtar, and the three attesting witnesses are the diwan, the treasurer, and the daroga of the late Kuar Narindra Bahadur, who were his respectable private servants, and used to be always in the house, as is the case with Indian gentlemen in the position of the Kuar." The domestic position of the testator and the parties was this Kuar Durga Pershad, the respondent, was remotely related to the testator Narindra, and for years had been on terms of enmity with him. Details of this are given, as, for instance, that they had not been on "eating and visiting terms," and that there" used to be no exchange of presents during marriages." Both the Courts below are clear upon the subject, the Judicial Commissioners opinion being so strong as this, that "the ill-feeling, however, which existed between the two men was quite sufficient to cause Narindra Bahadur to desire that his property should not go to the plaintiff or his branch of the family." On the other hand, the appellant, the testators sisters son, was treated with regard and affection by the testator, and upon this subject also both Courts have no doubt. In the language of the judgment of the Judicial Commissioner, "In respect of the feelings which existed in Narindra Bahadurs mind towards the defendant, Raj Bahadur, there can also be but little doubt .... Narindra Bahadur treated his sisters son as if he were his own son in every way.... This feeling of affection towards his sisters son by a childless Hindu is fairly common; and, after full consideration of the evidence on the point, I have no hesitation in holding that Narindra Bahadur did look upon defendant No. 2 more or less in the light of a son. It would, therefore, not have been a matter for surprise if he had made a will benefiting the latter." This being the state of the relations of the parties to the testator, it stands conceded that the will now challenged was in every respect; a natural will, and in accord with his feelings and tenor of life. Granted, therefore, that its execution is proved by anything like reasonable evidence, the presumptions of law are in favour of its being maintained. The Subordinate Judge, after a close analysis of all the evidence, affirms its validity and that without hesitation. Every kind of challenge was made of it,—of its execution, of the status, of the witnesses, of the health of the testator, and so on. But at the end of a long litigation upon the subject it was admitted by Mr. Ross, the learned counsel for the respondent, in his clear and candid argument at their Lordships bar, that the signature was genuine, nor could he venture to disturb what he admitted were concurrent findings on the subject of the appellants position in the testators household being equal to that of a son, nor upon the point of the estrangement between the testator and the respondent. This makes an end of a considerable portion of the judgment of the Judicial Commissioner, which treats the signature as suspect. The grounds of suspicion which that Court, notwith standing its view as to the complete propriety and naturalness of the will itself, nevertheless attaches to the execution, are threefold. (1.) In the first place, it is maintained that the witnesses might have been of a better class. The grounds of suspicion which that Court, notwith standing its view as to the complete propriety and naturalness of the will itself, nevertheless attaches to the execution, are threefold. (1.) In the first place, it is maintained that the witnesses might have been of a better class. Perhaj3s they might; but they were just those witnesses that the testator had about him; and a comment of this character has no force except upon something of a much higher level than mere suspicion, namely, proof which would thoroughly satisfy the mind of a Court that these persons had committed both forgery and perjury. In the case of a will reasonable, natural, and proper in its terms, it is not in accord ance with sound rules of construction to apply to it those canons which demand a rigorous scrutiny of documents of which the opposite can be said, namely, that they are unnatural, unreasonable, or tinged with impropriety. Their Lordships venture to repeat the judgment of Lord Watson in Choteynarain Singh v. Mussamat Ratan Koer (( 1894) L. R. 22 Ind. Ap. 12.) bearing upon the point of an attestation by a persons own servants and dependants. As has been shewn, the execution of this will was not only not improbable, but was in fact probable. The words of Lord Watson apply to this case, therefore, a fortiori "The theory of improbability remains to be considered, and the first observation which their Lordships have to make is, that, in order to prevail against such evidence as has been adduced by the respondent in this case, an improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, impossibility. To give effect to the argument pressed upon this Board by the appellants, which seems to have found favour in the Court of first instance, would be equivalent to holding that the will of a Hindu gentleman, attested by his own servants and dependants, must be held to be invalid, unless it is shewn that the testator, at the time assigned for its execution, was placed in such circumstances that he could not secure the attendance of persons of a higher rank; That is a proposition which verges too closely on the absurd to be seriously entertained. There may be cases in which attestation by servants only is an important element to be taken into, account in considering whether a will has been validly executed—cases, for example, in which there is reasonable ground for suspicion that the will is not the voluntary act of the testator, but has been procured by the undue influence of members of his household. This case does not, in the opinion of their Lordships, belong to that class.” This point, however, is at an end because the execution and attestation are proved. 1. 2. The second ground of suspicion in the minds of the Judicial Commissioners was that the paper upon which the will was written appeared to be old instead of fresh, and proof was given that the paper was official paper in general use, together with evidence that some other people had been in the habit of having forms or sheets which they signed in blank. In the language of the judgment of the Judicial Commissioner, " That men of the deceaseds position in life do sign blank forms and blank sheets, especially for the purpose of valakatnamas being drawn up thereon for use in cases in the subordinate district courts, is not an unheard-of thing." Various forms were produced, signed by people other than the testator, and with none of which the testator had anything to do. In their Lordships opinion, such evidence should not have been allowed to influence the mind of a Court. It should not have been admitted, as it was not relevant to the present cause. 2. 3. The third matter appears, however, to their Lordships to be more serious. By s. 568 of the Code of Civil Procedure it is provided that if " the Appellate Court requires any document to be produced, or any witness to be examined, to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence to be produced or document to be received or witness to be examined." In the course of the hearing of this appeal by the Judicial Commissioners, a question was asked as to the additional attestation of the will, which bore to have been made on April 20, 1905 (that is, on a date about six months after execution), by Mohammed Nusrat Ali. This gentleman appears from the record to be a person of stand ing, the judgment mentioning that he is the honorary secretary or assistant secretary of the British Indian Association. He is also a member of the Municipal Board of Lucknow, Lucknow being thirty miles by train from Sandila, where the will was ordered to be registered. On this date, April 20, a meeting of the Municipal Board had been held, followed by a special meeting, both meetings being early in the day and being of some duration. Inquiry was made, and it was proved before the Judicial Commissioners that Nusrat Ali was present at these meetings. If this was so, then, it was argued, he could not at the same hours of April 20 have been in Sandila. Nusrat Ali had been examined before the Subordinate Judge, but nothing had been asked of him on the point, and he was not examined by or before the Judicial Commissioners. Their Lordships disapprove of the procedure which has permitted doubt to be thrown upon his evidence in the course of procedure taken on appeal by the Judicial Commissioners, " to enable them to pronounce judgment," without the witness whose testimony is impugned having been afforded the opportunity of clearing up the mistake and having been convened for that purpose. No witness, whatever his standing, would be safe from adverse judicial comment under such procedure. It may quite well be that Nusrat Ali could have clearly explained the whole point of difficulty, and their Lordships would be slow to conclude, in the absence of his own evidence on the point, that the rest of his testimony, otherwise quite unimpeachable, was perjury. Fortunately, there is no necessity for further procedure or expense in regard to the matter, for the case that the Board is now dealing with is a case in which the signature of the will, whether the deed was additionally attested on the date stated or not, is proved and is properly attested. In these circumstances their Lordships do not doubt that the judgment of the Subordinate Judge should be restored. They will accordingly humbly advise His Majesty to that effect. The respondent will pay to the appellant the costs of this appeal, and in the Courts below.