JUDGMENT 1. One Benode Behari Hazra died childless on the 25th of November, 1922. He was survived by a childless widow of the name Ushabala and childless widowed sister of the name Khirodabala. The other relations of his were distant agnates. Among them were Nagendra, the propounder and Panchkari, the objector. Ushabala enjoyed the immovable properties left by Benode till her death which occurred on 22nd of July, 1943. On the 23rd of August, 1944, Nagendra propounded a Will said to have been executed by Benode on the 17th of February, 1921, that is to say, about a year and nine months before his death. The document propounded by Nagendra is an unregistered one. He filed his application for probate before the District Delegate. There being no contest the District Delegate issued probate to him. Thereafter, Panchkari made an application for revocation of the grant on the ground that proper citations had been issued, or it may be that his case was that citations had been suppressed. He succeeded in his case and the grant was revoked. Thereafter on the 10th of July, 1945, Nagendra made the second application for probate of the said document before District Judge. Panchkari opposed the grant. He raised two points; namely, (1) that the document propounded is a forgery and (2) that even the Court came to the conclusion that the document is not a forgery and had been properly executed and attested, probate cannot be granted in law in respect of the whole document propounded but portions which are of a non-testamentary character ought to be excluded from the grant. The learned District Judge came to the conclusion that the document propounded is a genuine document which had been executed by Benode and that it had been attested in accordance with law. On the second point, he expressed the opinion that a part of the document which dealt with the immovable properties of Benode constituted a present disposition but sitting as a probate Court i.e. could not enter into that question and exclude that portion of the document from the grant. Panchkari has preferred the appeal and his learned Advocate has pressed before us both the points raised by his client before the learned District Judge. 2. Panchkari has preferred the appeal and his learned Advocate has pressed before us both the points raised by his client before the learned District Judge. 2. Before we deal with the points raised before us we think it necessary to give a summary of the document in respect of which probate has been prayed for. The document has been marked Ext. 1. The document begins by saying that the executant Benode was in broken health, that he had no children and had no hope of getting any and that it was necessary for him to make provision about his landed properties etc. Then there is the following clause: - I make provision by (this) Will containing the following terms. This is my last Will. The executors will be engaged in their work in accordance with the terms of the Will and will act accordingly. 3. The document is thereafter divided into paragraphs. There are eight paragraphs in all. In the first paragraph he states that there are his ancestral deities, Sree Sree Iswar Lakshmi Janardan Jew and Sree Sree Iswar Taraknath Jew and that those deities have debutter properties situate in the Mouza Tazpore and Basantapore, assigned for their sheba and that he along with his co-sharers have been performing the seba. Then he states that "it may be that after his death his wife may, out of foolishness that is natural with women, transfer the properties left by him and that in those circumstances he dedicates all his mal and niskar properties and his residential house standing on the debutter land for the sheba of the said two deities, Sree Sree Iswar Lakshmi Janardan Jew and Sree Sree Iswar Taraknath Jew." The second paragraph begins by saying that he shall, during his life-time, continue to perform the duties of shebait in respect of the properties dedicated by him together with the ancestral debutter properties and continue to manage the same and that after his death his wife Ushabala shall continue to do the same till her death and after her death his nephew Nagendra shall do the same; failing Nagendra, his sons shall be appointed shebaits. The third paragraph deals with the damaged roof of the existing Thakurghar. In the fourth paragraph he makes a provision for the maintenance of his widowed sister by assigning to her the income of four bighas out of his mal lands. The third paragraph deals with the damaged roof of the existing Thakurghar. In the fourth paragraph he makes a provision for the maintenance of his widowed sister by assigning to her the income of four bighas out of his mal lands. The fifth paragraph deal with his movables. It says that on his death his wife shall get, in absolute right, the brass and bell metal utensils, wooden furniture, cow and other movables that he has. In paragraph 6 he directs his executors to repay the debts if he left them unpaid. In paragraph 7 he enjoins his executors to perform his Sradh. In paragraph 8 he appoints his wife Ushabala, the propounder Nagendra Nath Hazra and another gentleman of the name of Amarendra Sing Roy as his executors for carrying out the provisions of the Will. He empowers the executors to appoint new trustees and executors for the purpose of the work of debsheba, etc., if and when necessary. Besides the scribe Mahammad Azizal Huq, four persons appear as attesting witnesses, namely, Priyanath Ghose, Jatadhari Singha Roy, Mahafazar Rahaman and Jnanendra Nath Saha. The scribe and two of the attesting witnesses died some years back and during the life-time of the testator's widow Ushabala. The surviving witnesses Mahafazar Rahaman and Jnanendra Nath Saha have been examined on behalf of the propounder. The propounder has also examined himself and three other witnesses, one of them his son Anil Kumar Hazra. The two surviving attesting witnesses examined on behalf of the propounder have deposed to the effect that after the draft of the Will had been approved by a pleader, Adhar Babu, of the Serampore Court at Serampore, the draft was fair-copied by the scribe Mahammad Azizal Huq and the document was signed by Benode in the presence of the four persons whose names appear on the document and those four persons signed in presence of Benode in the sherista of the said pleader Adhar Babu in the Court compound. The propounder who was then the clerk of the said pleader has also deposed to that effect. His son Anil corroborated the propounder in respect of the manner in which the Will came into the possession of the propounder shortly before the death of Ushabala. The propounder has also attempted to prove the signatures of the scribe and of the two attesting witnesses. His son Anil corroborated the propounder in respect of the manner in which the Will came into the possession of the propounder shortly before the death of Ushabala. The propounder has also attempted to prove the signatures of the scribe and of the two attesting witnesses. The objector has examined, besides himself, a number of witnesses. One of his witnesses is the son of Jatadhari Singha Roy. 4. Jatadhari's son at first admitted that the signature on the document propounded appeared to be his father's signature but later on the modified his statement and stated that the signature was not his father's. The other person named as executor, namely, Amarendra, was dead at the time when the case was tried. His son deposed on behalf of the objector and his deposition is that Binode did not execute any Will. This is the state of the oral evidence. 5. The learned District Judge has believed the statements of the two surviving attesting witnesses and he has relied, to a large extent, upon a post card Ext. 2, dated the 30th May, 1923. That is a post card written by the propounder Nagendra styling himself as one of the executors under the Will of late Benode Behari Hazra, to Ushabala Dasi. As we have already stated the post card was written on the 30th May, 1923, that is, within a few months of the death of Benode. It was a registered post card. The addressee Ushabala did not accept it with the result that it was sent back to the sender. There cannot be any doubt about the genuineness of this post card, Ext. 2. The post card is in the form of a warning notice to Ushabala. It states that under the Will of Benode the sender Nagendra was one of the executors, that all the propounder left by Benode had been specifically allotted for the sheba of his bastu deities, that accordingly Ushabala had no power either to sell or create any incumbrance or in any way transfer the immovable properties left by her husband till the said Will is probated. The letter winds up with a warning that if she acted otherwise, she will be dealt with according to law. At the time when this post card was written, there was no motive on the part of the propounder Nagendra to forge the Will. The letter winds up with a warning that if she acted otherwise, she will be dealt with according to law. At the time when this post card was written, there was no motive on the part of the propounder Nagendra to forge the Will. The post card shows that short after the death of Benode the fact that Benode had left a Will, the terms of which in board details agreed with the Will which is now propounded, was disclosed. This post card can only be explained on the hypothesis, as has been the contention of the learned Advocate appearing for the Appellant that Nagendra had forged the Will sometime after the death of Benode and before the date of this post card, that is to say, after the death of Benode and within about six months thereof. There was no motive on the part of Nagendra to forge the Will at that time. The widow was alive at that time. There is no evidence that she was in bad state of health and her age at that time could not have been, according to the evidence, more than 40 years. In these circumstances, the post card is an important document in the case and lends great support to the propounder's case that the document propounded is not forged document but had been executed by Benode. In these circumstances, we do not see any reason to disbelieve the testimony of the two attesting witnesses who have been examined in support of the propounder's case. We accordingly hold that the document propounded in the Will of Benode had been executed in accordance with law. 6. This leads us to the consideration of the second point argued on behalf of the Appellant, namely, whether the portion dealing with the immovable properties in favour of the family deities has to be expunged from the probate grant. We do not express any opinion as to whether the said portion constitutes a present disposition, that is to say, a disposition taking effect at and from the date of the execution of the instrument, namely, the 17th February, 1921, or not, but for the purpose of deciding the question of law we would assume that it does effect a present disposition. 7. 7. It is well settled that if a document which is propounded for probate is not a Will, that is to say, a document of a testamentary character, the probate Court would have no jurisdiction to grant probate. It is also a settled proposition that it is competent to the probate Court to grant probate of a part of the document propounded. There are many cases in the law reports which show the probate has been confined to a part of the document propounded. There are cases decided in different High Courts in India and at least one decided by their Lordships of the Judicial Committee [Sarat Kumari v. Sakhi Chand, 56 IA 62 (1929)]. But those cases are of the type where the Court excluded a portion of the document from the grant either because the Court came to the conclusion that that portion had been interpolated or put in without the knowledge and consent of the testator before execution or had been the result of undue influence, that is to say, the portion excluded was excluded on the ground that the portion was either not the act of the testator or if his act was not in exercise of his free Will. In our opinion, it is not only the proper function but also the duty of the probate Court to see as to whether a particular document propounded is the document of the testator, that is to say, whether it has in fact been executed by him and if executed by him whether he had executed it in the exercise of his free Will, that is to say whether he had executed the document or at the time of the execution he had a sound disposing mind and was free from coercion or undue influence and secondly, whether the law of attestation has been complied with. If the probate Court answers any of these questions in the negative, probate or letters of administration with copy of the Will annexed will have to be refused. If the probate Court answers any of these questions in the negative, probate or letters of administration with copy of the Will annexed will have to be refused. If the Court comes to the conclusion that a part of the document only and not the whole of it has not been proved to be the result of the testator's act or had been executed under undue influence it follows as a matter of principle that the probate Court would exclude from the grant those portions because the probate Court would have had the power to refuse probate altogether if the same thing had been proved in respect of the whole of the document. 8. The second fundamental principle is that it does fall within the function of a probate Court either to construe the provisions of a Will or to pronounce upon the validity of any of its provisions. As a natural consequence of this fundamental principle it would follow that the probate Court would not be entitled to exclude any portion of the propounded document from the probate on a ground which requires the decision of the probate Court on a point of construction or on a point which touches the validity of the bequests. 9. Appeal. Chakravartty is support of his contention that if a part of the propounded document contains a present disposition of the testator's property and a part of it is of a testamentary character, probate can only be limited to the portion of the document which is of a testamentary character, has cited the decision of the Allahabad High Court in the case of Chand Mal v. Lachmi Narain, ILR (1900) 22 All 162 . We do not think that that decision supports his contention. In that case the document propounded for probate contained provisions which were said to be of a testamentary character and also provisions in respect of the property which constituted a present disposition. The District Court rejected the application for probate on the ground that the document was not a Will thereby meaning that the whole of it was not of a testamentary character. An appeal to the Officiating Chief Commissioner was dismissed. Thereafter there was a reference to the High Court. The learned Chief Justice with whom Appeal. The District Court rejected the application for probate on the ground that the document was not a Will thereby meaning that the whole of it was not of a testamentary character. An appeal to the Officiating Chief Commissioner was dismissed. Thereafter there was a reference to the High Court. The learned Chief Justice with whom Appeal. Justice Banerjee concurred held that if even a part of the document propounded is of a testamentary character probate could not be refused. He made a remand in order that it may be found out whether even a part of the document was of testamentary character. There was no direction given that only that part which was of a testamentary character is to be admitted to probate. He referred to the judgment delivered in the case of Doe. d Elizabeth Cross v. Arthur Cross, (1845) 8 QB 714 and to a passage in Jarman on Wills (5th Edition, Vol. 1, page 25) to the effect that "there was no objection to one part of an instrument operating in praesenti as a deed and another in future as a Will." It appears to us to be a reasonable conclusion to hold that the whole of the document and not a part of it only was admitted to probate in Cross v. Cross. So far as this point is concerned the matter is concluded by a decision of Division Bench of this Court in the case of Baisnav Charan Das Bairagi v. Kishore Das Mohanta, (1911)15 APPEAL 1014, 1017 . In that case the document in respect of which probate was asked for was considered partly to be a deed evidencing the devolution of a trust and as such was not of a testamentary character. By the other portions of the document which dealt with the residuary estate of the testator were of a testamentary character. In these states of facts it was contended, as before us, that probate should be limited to that portion of the document which was of a testamentary character. This contention was overruled. We will quote the relevant portion of the judgment; - Now it appears to us clear on all authorities that this Will must be admitted to probate as a whole. If there are any declarations of trust which cannot take effect as a Will, that is a matter which is not for us to deal with. This contention was overruled. We will quote the relevant portion of the judgment; - Now it appears to us clear on all authorities that this Will must be admitted to probate as a whole. If there are any declarations of trust which cannot take effect as a Will, that is a matter which is not for us to deal with. The parties will decide their civil rights in another tribunal. But it might very well be that the trust which is imposed on Kishore Das may operate as an obligation upon him to look after the trust property until such time as the lawful trustee is invested with the shebaitship. But this is an obligation which is consequent upon his taking the residuary estate of the testator. 10. As regards the partial admission of Will to probate the law is very clearly set out with the cases which govern it in Williams Law of Executors and Administrators 10th Edition, Vol. 1 page 291. It states that a Will may be in part admitted to probate and in part may be refused, - "if the Court shall be satisfied that a particular clause has been inserted in the Will by fraud without the knowledge of the testator in his life time, or by forgery after his death, or if he has been induced by fraud to make it part of his Will, Probate will be granted of the instrument with the reservation of that clause; or where a clause has been introduced per incuriam and the deceased executes the papers not having given any instruction for such clause and it not having been read over to him, probate would be granted of the remainder of the paper omitting such clause; but the Court cannot even by consent order a passage of the Will to be expunged which the testator being of sound mind intended to form part of it." 11. We fully agree with this passage and in our judgment we have made an attempt to put the law as laid down in Williams on Executors on a fundamental principle. We accordingly overrule the second point also. 12. We fully agree with this passage and in our judgment we have made an attempt to put the law as laid down in Williams on Executors on a fundamental principle. We accordingly overrule the second point also. 12. We make it quite clear, however, that the question as to whether the provisions relating to the dedication of the immovable properties to the deities constitute a disposition in praesenti or whether that provision or any other provision in the Will is valid or not is a matter which is left open the ground that sitting in appeal in a probate proceeding we have no jurisdiction to entertain them. Those questions, if necessary, will have to be litigated between the parties in the Civil Court in proper proceedings. 13. The result is that the appeal is dismissed with costs; - hearing-fee being assessed at three gold mohurs.