This is an appeal from the judgment and decree of the District Judge of Cachae refusing probate of a will. [2] The will was propounded by Chandi Dassi, widow of the alleged testator, and the will purported to have been executed by her husband, Kularam Das, on 15th chaitra 1338 B. 3. corresponding to 28th March 1932. The will was not registered, it bears no signature or thumb impression of the testator, but it bears a mark said to have been made by the testator, and the testator's name purports to have been written by one Kalachand Das in token of execution. Under the terms of the will, the testator's two eons were disinherited, the testator's widow was given a life interest in the estate, and thereafter the property was to devolve upon the grandsons, if any should be alive. Kularam died within a year or two of the date of alleged execution of the will. At the time of the testator's death, his widow, his two sons and one grandson were living. [3] In the years 1934 and 1935, the two sons of Kularam executed deeds of sale in respect of 6 kears of land in favour of one Jiauddin Mia, alleging that they had inherited the same from their father. They then executed kabulyats in respect of that land in favour of the transferee. The transferee instituted a suit against the sons for arrears of rent, and in that suit, made the widow of Kularam a party defendant. [4] Thereafter the present petitioner filed her application for probate. [6l Jiauddin Mia, the transferee from the sons, entered a caveat. He denied that the will had been executed by the late Kularam, and urged that it was a forgery made subsequent to the death of Kularam, to defraud him of the property which he had purchased. [6] Two witnesses, the petitioner herself and a next-door neighbour named Gagan Chandra Das, were examined on the side of the petitioner. The caveator examined himself only. [7] The will purports to have been written by one Krishna Charan Das, and to have been attested by Nirodram Das, Gagan Chandra Daa and Kalachand Das and the name of the testator purports to have been written by Kala Chand Das. Of these persons, only Gagan Chandra Das was examined.
The caveator examined himself only. [7] The will purports to have been written by one Krishna Charan Das, and to have been attested by Nirodram Das, Gagan Chandra Daa and Kalachand Das and the name of the testator purports to have been written by Kala Chand Das. Of these persons, only Gagan Chandra Das was examined. Admittedly Kala Chaud and Nirodram are alive; there is no suggestion that the scribe Krishna Charan is dead. [8] According to the evidence of Chandi Dassi, the witness Nirod was too ill to come to Court; according to the Judge, both Nirod and Krishna Charan were said to be too ill to come to Court. But no attempt was made to have their evidence taken on commission. From the judgment, it also appears that Kalachand was said to be kept out of Court by the caveator. [9] The learned District Judge, in view of all the circumstances, was dissatisfied with the evidence of execution and dismissed the application. [10l Hence this appeal. [11] For the appellant, it has been argued that the law only requires the examination of one attesting witness, and that therefore, probate ought not to have been refused more particularly as the District Judge did not say that he disbelieved that attesting witness. [12] It is true that it is sufficient to examine one attesting witness only and that, if that wit- ? ness is believed, probate may be granted. But if execution of a will is denied, and the will is challenged as a forgery, the propounder of the will would be well advised to examine all the available witnesses thereto, and if the propounder omits to examine the scribe and other attesting witnesses without sufficient cause, the Court may draw the inference that those other witnesses would not support the case of the propounder. [13] In the present case, it seems to be admitted that one of the attesting witnesses, Kalachand, was siding with the caveator. [14] The learned District Judge referred to the delay in filing the petition for probate and to the evidence of Chandi Dassi, wherein she was unable to give any answer to the question why she had waited so long before applying for probate as an important defect in the petitioner's case.
[14] The learned District Judge referred to the delay in filing the petition for probate and to the evidence of Chandi Dassi, wherein she was unable to give any answer to the question why she had waited so long before applying for probate as an important defect in the petitioner's case. [15] In our opinion, the fact that the will bears no signature or thumb impression of the alleged testator, and the delay in propounding the will until after the disinherited sons had sold the paternal property, are circumstances sufficient to excite suspicion as to the genuineness of the will. The failure to examine the scribe and attesting witnesses, other than the next door neighbour, Gagan Chandra Das, increases that suspicion, and the evidence of Gagan Chandra Das does not, in our opinion, read like truthful evidence. [16] In these circumstances, we consider that the District Judge was right in refusing probates and we order that the appeal be dismissed with costs. Appeal dismissed