JUDGMENT 1. This appeal is against an order of the District Judge of Birbhum refusing to grant Probate of the Will of one Rasaraj Saha. He is said to have executed the Will on the 2nd November 1919 at about 10 A.M. He died the very same day at about 4-30 P.M. 2. The petitioner who propounded the Will is a distant agnate of the deceased. The objector is the first cousin (father's brother's son). He lived at a different place about 12 miles away and had no concern with the deceased. On the other hand, Rasaraj used to take his food in the house of the petitioner and was evidently more intimate with him. Under these circumstances, we think the learned Judge was right in holding that the deceased, if he had testamentary capacity when he is said to have executed the Will, would in all probability have excluded the objector and that the Will in favour of the petitioner could not be said to be unnatural. 3. The learned Judge, however, found that the deceased had no testamentary capacity at the time when the Will is said to have been executed and that the Will was not executed by the deceased. 4. Seven witnesses have been examined by the petitioner. The learned Judge has considered the evidence of those witnesses. He has pointed out certain discrepancies in the statements made by some of them and has, upon a consideration of the various circumstances mentioned in his judgment, come to the conclusion that the deceased had no testamentary capacity. 5. We need not consider in detail the evidence of witnesses other than Rakhai, Noor Mohamed, Dr. Monmohan and Kaviraj. Brojendra Narain Sen, the last witness having been examined under orders of this Court passed by another Bench. 6. It appears that the Kaviraj saw the deceased once in the morning and the second time at about 10 A. M. On the first visit he prescribed Makaradhwaj and musk. At that time the patient was pulseless and weak. At that time the Kaviraj asked the deceased since when he felt so bad. He replild "from over-night." He again visited him at about 10 A.M. Rasaraj asked him if there was any chance of his surviving the disease and he told him that there was none. The Kaviraj says that he did not hear that Rasaraj was going to execute-. He replild "from over-night." He again visited him at about 10 A.M. Rasaraj asked him if there was any chance of his surviving the disease and he told him that there was none. The Kaviraj says that he did not hear that Rasaraj was going to execute-. any document but that he saw some sheets of white paper and pen and ink with Jogesh (the appellant) at 8-30 A.M., when the latter came to his house for medicine. What those papers were, he could not say. 7. As for the Doctor, he says he does not remember the hour at which he saw the deceased, that when he saw the deceased in the morning, he was seriously ill, but that he was in full possession of his senses. He does not remember, however, what, if any, conversation he had with him. He also says that there was no talk of any Will in the morning, but that in the evening he was in the house of the deceased, Rakhai Bistoc told him that the deceased had executed a Will and he saw a piece of paper lying in. the Angina. 8. Noor Mohamed, who is a clerk in the Birbhum Collectorate, says that on Sunday morning he heard Rasaraj was pulseless and in extremis and went to see him. He asked Rasaraj whether he was going to execute a Will in favour of Jogesh. He answered in the affirmative. That was at about 7 or 7-30 in the morning. He again saw the deceased at about 11-30 A.M. He could not speak then and made signs to express that he was not well. Sometime. after that, Rakhai (one of the witnesses to the Will) came to his house and requested him to be an attesting witness. The witness said that, as the paper was not stamped, his conscience did not permit him to be a witness as requested. 9. The learned Judge observes that the real reason why his conscience did not permit him to be a witness was that the Will, was not genuine and riot that it was unstamped. He has also commented upon the fact that, although there were Pleaders, Mukhtears and other respectable persons in the neighbourhood, none of them was called to attest the Will. 10. He has also commented upon the fact that, although there were Pleaders, Mukhtears and other respectable persons in the neighbourhood, none of them was called to attest the Will. 10. It is contended before us that it1 is not to be expected that such persons should come in for attesting the Will of a Saha and with respect to property valued at Rs. 1,300 only. Although we do not think there is much force in the comment made by the learned Judge, there were respectable persons available for the purpose, namely the Doctor, Kaviraj and Noor Mohamad who actually came to see the, deceased in his house. 11. Rakhai says that when the Doctor came to the deceased in the after-noon, he requested the Doctor to attest the Will, as he had heard about the Will in the morning. The Doctor does not say that he was asked to attest the Will, nor does he say that he had heard of any talk of the Will in the morning. 12. The fact remains, however, that Rakhai attempted to get the Will attested by the Doctor in the after-noon just before the death of Rasaraj. 13. No explanation has been given as to why the Doctor was not asked to be an attesting witness, or even told of the execution of the Will either by Rasaraj or by Rakhai at the time when the Doctor saw the deceased at about 11 A.M., by which time, according to the petitioner, the Will had been executed. They could have got the Doctor as an attesting witness, and, in any case, there could have been an acknowledgment by Rasaraj to the Doctor about the execution of Will. 14. So far as the Kaviraj is concerned, we have already pointed out that he never heard of the Will although he went twice to the house of the deceased. He went there the second time at about 10 A.M. when the Will had already been executed according to the petitioner's case. 15. Noor Mohamed was also not asked by Rasaraj to attest the Will, nor was any statement made to him by Rasaraj that a Will had been executed by him, although he saw Rasaraj at, about 11-30 A.M. Rakhal requested him to attest the Will sometime after that in the house of the latter. 15. Noor Mohamed was also not asked by Rasaraj to attest the Will, nor was any statement made to him by Rasaraj that a Will had been executed by him, although he saw Rasaraj at, about 11-30 A.M. Rakhal requested him to attest the Will sometime after that in the house of the latter. The fact that none of these three witnesses, who are respectable persons, was asked to be an attesting witness, or was told by the testator that a Will had been executed, throws great suspicion upon the case. 16. Moreover, the attempt by Rakhal to get the Will attested at the time when Rasaraj was dead, or about to die, and the fact that neither the Doctor nor the Kaviraj nor Noor Mohamed had seen the testator execute the Will, nor received any acknowledgment from him about the execution, also go against the case for the petitioner. 17. According to' witness No. 4, Sasi Bhusan Saha, when the Kaviraj came, Kiron, the scribe, was writing the Will and Noor Mohamed also saw Kiron wiiting the Will. If so, there is no reason suggested why neither of them was asked to attest the Will and it. is to be noted that neither of them says that he saw the writing of the Will. 18. The witness Rakhal appears to have taken a good deal of interest in the matter. He is the manager of a Kalibari in that locality and there is a provision in the Will that Jogesh, in whose favour the Will is said to have been executed, was to erect a roof for the Kalibari and a nalshala. 19. The other witnesses are Satya, a grocer and a relation of Rakhal, Kiron, the scribe, who is a Pleader's clerk and who was called by Rakhal, and Surendra, a mason, who constructed the Kalibari. 20. The learned Judge points out that the name of the father of Rasaraj is stated in the Will to be Sibu Saha, whereas in the admitted documents, it was Shib Nath and that the name of Rasaraj is signed on the Will as Rasaraj Saha; whereas in the admitted document it was Rasaraj Sou: and although Saha can be spelt both ways as Sou or Saha, it is not likely that, having adopted one mode of spelling, he should sign in another way. On the whole, the learned Judge was inclined to disbelieve the signature of Rasarai on the Will. 21. Upon a consideration of the entire evidence he came to the conclusion that the deceased had no testamentary capacity at the time when the Will is said to have been executed. The witnesses were before him, and, after considering all the circumstances, we are unable to hold that the Judge was wrong in the view he has taken. 22. It has been pressed upon us that the Doctor stated that at the time of his first visit the deceased was in full possession of his senses and, as the Will was in existence at about noon, it ought to be held that the deceased had testamentary capacity at about 10 or 11 A.M. 23. But the mere fact that the testator had sense or consciousness, or that he was able to answer a question or two put by the Doctor or Kaviraj about his illness is not sufficient. 24. It is stated that the Will was written out under instructions from Rasaraj who, all the time the Will was being written out, was sitting up. The evidence of the Doctor However, shows that the patient could not sit up. 25. It is to be observed that no question was put to the Doctor or to the Kaviraj as to whether Rasaraj had sufficient capacity at the time to execute the Will, or any question about his mental faculties. Having regard to his physical, condition at the time, the plaintiff ought to have adduced evidence to show that he had testamentary capacity. 26. On a consideration of all the circumstances and the evidence, we think that the appeal must be dismissed with costs. 27. We assess the hearing fee at one gold mohur.