JUDGMENT Kaul, J. - This is an application for grant of probate of what is raid to be a privileged will. It is alleged to have been executed by Edward Michael Bennett, Sergeant Major, 115 Railway Operating Coy , who died on the 26th of January, 1944, while serving in Libya, Africa. The application was nude by F.D. Stimpson who was appointed the executor. The sole legatee under the will is Mrs. G.M. Lyons who is described as the testator's sister in the said will. The application is opposed by Mrs. Agnes Bennett, wife, and Miss. Alice Bennett, daughter, of the deceased testator. 2. The material facts are as follows: Edward Michael Bennett was employed with the East Indian Railway. He resigned his job on the 18th of April, 1929. He accepted a fresh appointment on the same Railway on the 6th of October, 1930. When he resigned his post the provident fund money that was due was paid over to him on the 4th of May, 1929. He was confirmed in his new post in January, 1931. He-began to subscribe again to the provident fund from February 19Jl, the first subscription being accounted for in the month of March of that year. The application for probate relates (1) to the provident fund money due to the deceased (Rs. 9,038-10-0) ; (2) Rs. 300 value of 30 shares owned by the deceased in the East Indian Railway Employees Co-operative Credit Society Ltd. and . (3) "Other petty articles" of the value of Rs. 160. 3. After the outbreak of the war E. M. Bennett enlisted in the Army sometime about the end of 1941, while he was yet in railway service. He left Jhajha, where he was posted for the time being, on the 15th of November, 1941, and went to Moghal Sarai. From there he went to Jullandar where he was put under training. He was sent overseas on the 22nd of January, 1942. In April, 1944, the present applicant F.D. Stimpson, received a communication from Mr. R, Sen Gupta, Assistant Secretary to the Government of India, which ran as follows : As you are the executor of the above-mentioned will, a photo-stat copy of it is forwarded for necessary action. Please acknowledge its receipt at an early date. 4. Reference is to the Will of the late Warrant Officer E. M. Bennett 116 Ind. R, Sen Gupta, Assistant Secretary to the Government of India, which ran as follows : As you are the executor of the above-mentioned will, a photo-stat copy of it is forwarded for necessary action. Please acknowledge its receipt at an early date. 4. Reference is to the Will of the late Warrant Officer E. M. Bennett 116 Ind. Ry-Operating Coy , I E." (Ex. 4). F. D. Stimpson thereupon made a request for being furnished with the original will of the late E. M. Bennett and on receipt thereof made the present application. 5. It appears from Ex. 21/1 dated the 2lst of April, 1945 a letter from Major C, R. L. Phillips (writing for the Deputy Secretary to the Government of India, Defence Department) that the original will of the late C. S. M. Bennett was found among his effects by the standing Committee of Adjustment, G. H. Q , 2nd Echelon, Middle East Force who forwarded it to the War Office, Liverpool. On receipt of a request from F. D. Stimpson, the Defence Department of the Government of India asked the War Office to sent the original will and on its receipt it was passed on to him. The will in question is on the printed " form (Army Form B. 2089) of will to be used by a soldier desirous of leaving the whole of his property to one person. " Mrs. G.M. Lyons, who is described as the testator's sister, (though in fact she was not related to him in any way) is the sole legatee and her brother, F.D. Stimpson was appointed the sole executor under this will. 6. E. M. Bennett, the alleged testator, left his wife Mrs. Agnes Bennett and a daughter, Miss Alice Bennett as his heirs. It appears that relations between the testator and his wife Agnes Bennett had not been happy for a number of years. On the 26th of August 1931, Mrs. Bennett filed application against her husband in the Court of the District Judge, Burdwan, for judicial separation. The application was ultimately dismissed. The deceased and his wife apparently did no Move together after that. There is however evidence to show that F.M. Bennett was attached to his child Alice Bennett and occasionally (used to give her money. 7. Mrs. Lyons though described in the will as his sister was not related to the deceased E, M. Bennett. The application was ultimately dismissed. The deceased and his wife apparently did no Move together after that. There is however evidence to show that F.M. Bennett was attached to his child Alice Bennett and occasionally (used to give her money. 7. Mrs. Lyons though described in the will as his sister was not related to the deceased E, M. Bennett. She lived with him for three years before he enlisted as his house-keeper and mistress. 8. The objectors challenged the genuineness of the will Ex. 1. It was also contended on their behalf that it was not a privileged will. They further pleaded that inasmuch as F. M. Bennett had made a declaration Ex. A5, by which he nominated his wife, Mrs. Agnes Bennett, as the person entitled to receive payment of the entire provident fund money that might be due to him, the sum due vested in her Simultaneously with the death of the deceased and did not form part of the assets of the late F. M. Bennett. A plea to the effect that this Court had no jurisdiction to entertain the application for grant of probate was also raised on behalf of the objectors. 9. In reply to this defence it was urged on behalf of the applicant that the provisions of the Provident Funds Act could not override the will, and the declaration relied on by Mrs. Agnes Bennett was challenged as invalid on the ground that it was made before E. M. Bennett became a subscriber to the provident fund. 10. The following issues were framed on these pleadings by my Lord the Chief Judge before whom the matter originally came up for hearing. 1 (a) Did Mr. Edward Michael Bennett execute the will Ex. 1 as alleged by the petitioner ? (b) Is it a privileged will and if so was he competent to execute it ? 2 (a) Did Mr. Edward Michael Bennett sign the form of declaration, Ex. A-5, as alleged by the objector and if so what is its effect ? (b) Can the provisions of Sections 3 to 5 of the Provident Funds Act (XIX of 1925) override the will, Ex. 1 ? 3. What is the amount of the assets of the deceased ? i. Has this Court jurisdiction to entertain the application for probate in view of the objections raised in paras. (b) Can the provisions of Sections 3 to 5 of the Provident Funds Act (XIX of 1925) override the will, Ex. 1 ? 3. What is the amount of the assets of the deceased ? i. Has this Court jurisdiction to entertain the application for probate in view of the objections raised in paras. 5 and 6 of the written statement ? Findings. Issue 7 (a). Ex. 1 purports to bear the signatures of the testator E. M. Bennett at two places. The rest of the document which is on a printed form was filled in by some other person. The geniuses of the signatures of the testator on this document is challenged by the objectors. No direct evidence to prove that E. M. Bennett signed this document was called. It appears to have been executed on the 16th of January, 1942, six days before Sgt. Major E. M. Bennett was sent overseas. Presumably he was at Jullandar at that time. Reliance has been placed on behalf of the applicant on the evidence of certain persons who claim to be acquainted with the hand-writing and signature of the deceased and who pledged their oaths that the signatures purporting to be those of E. M. Bennett on Ex. 1 were his. Four witnesses were examined on this point. They were A. W. 1 F. D. Stimpson, A, W. 2 Mrs. A.V. Ristell, A. W. 3, Nur Mohammad, Clerk, Loco Running Shed, Cawnpore, and A. W. 4, Mrs. G. M. Lyons. F. D. Stimpson is the applicant for probate. He is the brother of Mrs. Lyons the sole legatee under this will. He saw E.M. Bennett write only once and when shown certain genuine signatures of the deceased on Ex. A6 frankly admitted that he was not in a position to say definitely whether those signatures were of E. M. Bennett or not. His evidence as a person who can identify the signature of the deceased is of no value. The second witness Mrs. Bistell is the sister of Mrs. Lyons. She claimed to be able to identify the signature of E. M. Bennett as she had received seven or eight letters from him. She has preserved none of these letters. His evidence as a person who can identify the signature of the deceased is of no value. The second witness Mrs. Bistell is the sister of Mrs. Lyons. She claimed to be able to identify the signature of E. M. Bennett as she had received seven or eight letters from him. She has preserved none of these letters. That her claim to be able to identify the signature of E. M. Bennett was not well founded is abundantly proved by the fact that on being shown some admittedly genuine signatures of the deceased (on Ex. A6) she stated that they were not his signatures. The third witness Nur Mohammad also failed to identify correctly the genuine signature of E. M. Bennett on Ex, A6. He definitely stated that they were not E. M. Bennett's signatures. His evidence also can be of no assistance to the applicant. There remains A. W. 4 Mrs. Lyons. She is naturally a most interested witness. She claimed to be acquainted with the signature of E. M. Bennett. She had been living with the deceased for three years as his mistress and it is no matter surprise that she should be acquainted with his handwriting. She pledged her oath that the name of E. M. Bennett appearing at two places on Ex. 1 was in his own hand- writing. On the other hand we have the evidence of Bennett's daughter, Miss Alice Bennett who had often seen her father write and sign papers that the signatures purporting to be those of E. M. Bennett on Ex. 1 were not his. As already stated the document was found among - the effects of the deceased after his death. This will purports to have been executed by the deceased on the 16th of January, 1942. Why he did not fill in the whole printed from on which the will is writ- ten, himself, is not clear. Except the name of the testator which occurs at two places on this document, the rest is in the handwriting of some other person whose identity could not be ascertained. Another feature which attracts attention in this will is that the legatee, Mrs. Lyons, who was in fact E M. Bennett's mistress, but was in no wav related to him, is described as his sister. It is difficult to believe if Bennett himself would describe his mis- tress as his sister. Another feature which attracts attention in this will is that the legatee, Mrs. Lyons, who was in fact E M. Bennett's mistress, but was in no wav related to him, is described as his sister. It is difficult to believe if Bennett himself would describe his mis- tress as his sister. This casts considerable doubt on the genuineness of Ex. 1. The matter was put to Mrs. Lyons while she was in the witness-box. She attempted an explanation which does not carry conviction. She stated that even after she became his mistress E, M. Bennett sometimes used to address her as sister in his letters to her. No such letter was produced and I am unable to accept this explanation, The form on which the will is written is a page from a soldier's service and pay book. There is no evidence to show that this page was extracted from E. M. Bennett's service and pay book. On the other hand there is on record a communication from the Officer in Charge of Military Records Jullundar Cantonment, dated the 24th July, 1944, Ex. Al stating that to pay book of E. M. Bennett, 115 Indian Railway Operating Coy. received in that office showed that no will was made by the deceased. Thus it may be taken that the form on which Ex, 1 was written was not a page from the pay book of E. M. Bennett. An examination of Ex. 1 further shows that it was an incomplete document. The form on which it .V. is written is not one meant for privileged wills. In the service and pay book supplied to soldiers (see page 20 of Ex. A4) there is another form which a soldier is directed to use under orders for active service. The form used for Ex. 1 requires attestation. There is an entry there in which runs as follows : Signed and acknowledged by the said Edward Michael Ben lett, the same having been previously, Reid over to him as and for his last will, in the presence of us, present at the same time, who, in his presence at his request, and in the presence of each other have hereunto subscribed our names as witnesses. But the space where the witnesses' names should be written is left blank. The document bears no attestation. But the space where the witnesses' names should be written is left blank. The document bears no attestation. If Bennett intended this "to be a privileged will he .would Have scrod out this entry. Thus we find that there is no explanation forth coming why E M Bennett did not fill in the whole of this form himself; nor is there any thing to explain why he wrongly described Mrs. Lyons his mistress as his sister. He could have described her as a "friend". The document on the face of it is incomplete. Though it was meant to have been attested it was never attested. There is no direct evidence showing that it was signed by E. M. Bennett. The evidence that the signatures proposing to be those of E. M. Bennett were his consists of the statement of only Mrs. Lyons who is a very interested witness. This document was executed as far as can be seen while E. M. Bennett was still in Jullundar. If he had executed this document and intended to leave alt his property to his mistress we would expect him to inform her of it. No such letter or writing from E. M. Bennett has been produced. There is the sworn testimony of his* daughter that the signatures on Ex. purporting to be those of E. M Bennett were not his. She is also an interested witness, but taking the entire evidence and the surrounding circumstances into consideration I hold that the applicant has failed to prove the execution of this will by the deceased E M. Bennett. Issue 1(b). A will made by a soldier being employed in an expedition or engaged in actual warfare is a privileged will (Section 65 of the Indian Succession Act) There is no evidence to show that E. M. Bennett was employed in an expedition on the 16th of January, 1942. All that we know is that he had enlisted about the end of l"4l and was under training at Jullundar at that time. We further know that he was sent overseas on the 22nd of January, six days after. It was contended on behalf of the applicant that the expression " employed in an expedition " should receive a liberal construction. This may be true. We further know that he was sent overseas on the 22nd of January, six days after. It was contended on behalf of the applicant that the expression " employed in an expedition " should receive a liberal construction. This may be true. It may further be conceded that in view of the fact that he left India for overseas six days after the date of this document may lend support to the suggestion that he must have received orders for leaving India before the date of this document. But there is no evidence on the point and as he was only under training at Jullundar, in the absence of other evidence, I am unable to hold that he was employed in an expedition on that date. Had he been under orders for active service on 16-1-1942. Bennett would have used the form found on page 20 of his pay book for making a will. Ex. 1 therefore cannot be held to be a privileged will. Issue 2 (a). That the declaration Ex. A5 was executed by E M. Bennett is abundantly proved by the evidence of the two attesting witnesses whose names appear on that document. They are B. Sishadhor Banerji and Bijoy Krishna Chakreverty. Their evidence was recorded on commission and has been brought on record. There is no evidence in rebuttal. I answer the issue in the affirmative, Issue 2 (b). The validity of this declaration is challenged because it was made by E. M. Bennett on the very day that he was reappointed that is the 6th of October, 1930. He did not begin to subscribe to the fund till February, 1931. The rules require that the nomination of the person entitled to receive the provident fund should be made by a person who is a subscriber to the fond (rule 1334, State Railway Establishment Code Vol. 1). The declaration relied on having been long before E. M. Bennett became a subscriber to the fund is accordingly not a valid declaration. Another point was raised in this connection by the learned Counsel for the applicant. He contended that E. M. Bennett executed a service agreement Ex. 1). The declaration relied on having been long before E. M. Bennett became a subscriber to the fund is accordingly not a valid declaration. Another point was raised in this connection by the learned Counsel for the applicant. He contended that E. M. Bennett executed a service agreement Ex. 24 under which he was to be governed in the matter of provident fund by the rules and conditions of the East Indian Railway service as they stood on the 31st of December, 1924, and that he .could have no right to claim by virtue of service under the Government of India any of the benefits allowed from time to time by the State Railway Rules. It is necessary to state a few facts in order to bring out the significance of this contention. The East Indian Railway was till the 31st of December 1924 a Company managed line. It was taken over by the Government of India and became a State Railway on the 1st of January 1925. Most of the employees of the East Indian Railway Company were re-employed by the Government of India when it took over the management of this Railway system. All those employees who were in the service of the East Indian Railway Company and were re-employed by the Government were asked to execute this service agreement which governed the conditions of their service. But as we know E, M. Bennett resigned his post in 1929 and was re-employed in 1930. His service when it began in 1930 was clearly service under the Government of India. He was not a person who could normally be asked to execute the service agreement under which his conditions of service could be governed by the rules and regulations prevailing at a time when this line was managed by the East Indian Railway Company, This service agreement, though it was executed by E. M. Bennett on the 27th of March, 1931, after his re-employment, appears to have been executed under some misapprehension. His service when it began in 1930 was under the Government of India and had nothing to do with his previous service in the East Indian Railway Company. The fact that he executed a service agreement under a misapprehension cannot have the effect of changing the conditions of his service. It was executed under a mistake of fact. His service when it began in 1930 was under the Government of India and had nothing to do with his previous service in the East Indian Railway Company. The fact that he executed a service agreement under a misapprehension cannot have the effect of changing the conditions of his service. It was executed under a mistake of fact. He must be governed by the State Railway Establishment Code. The service agreement to which reference has been made could be executed only by persons who were formerly in service of the East Indian Railway Company on the 31st of December, 1921, and whose services were retained by the Government of India when it took over the management of this Railway system. It could not be executed by a person who resigned his job in 1929 and was re-employed afresh in 1930. The service agreement must, therefore, be left out of consideration for the decision of the matter in issue. It was contended that the provisions of sections 3 and 5 of the Provident Funds Act, XIX of 1925 could not " override " the will executed by an employee of a State Railway who was a subscriber to the provident fund. In view of my finding on issue 1, this question does not arise. Issue 3. It was contended on behalf of the objectors that in view of the provisions of section 3 of Act XIX of 1925, the provident fund money did not form part of the assets of the deceased. According to sub-section (2) of that section ' any sum standing to the credit of any subscriber to, or depositor in, any such Fund at the time of his decease and payable under the rules of the Fund to any dependant of the subscriber or a depositor, or to such person as may be authorized law to receive payment on his behalf, shall...west in the dependant, and shall, subject as aforesaid, be free from any debt or other liability incurred by the deceased or incurred by the dependant before the death of the subscriber or depositor. "Dependant" according to section 2 (c) of the Provident Funds Act means" any of the following relatives of a deceased subscriber to, or a depositor in a Provident Fund, namely, a wife, husband, parent, child, minor brother, unmarried sister and a deceased son's widow and child, and where no parent of the subscriber or depositor is alive, a paternal grand-parent. " Under the Provident Fund Rules (Chapter 13, State Railway Establishment Code, Vol. 1 page 119) "family" means " in the case of a male subscriber, the wife or wives and children of the subscriber, and the widow or widows, and children of a deceased son of the subscriber... 11. Under rule 1336 "subject to the provisions of Rule 1337 (which deals with deductions) on the death of a subscriber before the amount standing to his credit has become payable, or where the amount has become payable before payment has been made- If no nomination subsists, or if the nomination relates only to a part of the amount standing to his re-edit in the Fund, the whole amount or the part thereof to which the nomination does not relate, as the case may be, shall subject to the provisions of clause (i) become payable to themembeis of his family in equal shares." Accordingly on the death of E. M. Bennett as no valid nomination made under rule 1334 subsists, the provident fund money due to him vested in his widow and daughter. The sum of Rs. 9,038-10-0 cannot be said to form part of the assets of the deceased. The assets of the deceased in the present case would, therefore, include only the value of the shares held by him in the Railway Employees Co-operative Credit Society and all the petty articles to which reference is made in the schedule of property appended to the application (Rs. 300 plus 160=460). 12. Issue 4. It was not disputed that the office of I the Chief Accounts Officer dealing with the provident fund money due to E. M. Bennett was within the jurisdiction of this Court. Accordingly this Court has jurisdiction to entertain the application. (Sec. 270 Succession Act XXXIX of 1925). In view, however, of my finding on issue 1 (a), the application is dismissed. The applicant shall pay the objectors' costs.