JUDGMENT 1. THIS is an appeal by Asit Nath das, the grant in whose favour, on november 29, 1961, of letters of administration, with the will dated march 3, 1920, annexed, of his grandfather Amrita Nath Das, has been revoked by a learned subordinate judge on January 31, 1967, under section 264 of the Succession Act, 39 of 1925, for short, "the Act" hereafter. 2. THE property over which this litigation rages is 119 Rasbihari Avenue, shortened hereafter into "119". Asit Nath Das, the appellant before us and the unsuccessful defendant in the revocation case in the court of first instance, is a descendant of Rani rashmani of hallowed memory. What the case is about can best be stated by inserting part of a. pedigree which is not disputed : rani Rashmani amrita Nath Das (Died on. April 17, 1921). = wife Nanibala (Died on June 9, 1931). Son anilendra son atindra = wife Subhasini son anadi son abani son asit Nath (Appellant) Son aswini Nath son asthoke Nath son ajay Nath. In the application bearing date june 29, 1962, by Sm. Snehalata Debi, now respondent, for revocation, under section 264 of the Act, of the grant, on november 29, 1961, of letters of administration with the will dated March 3, 1920, annexed, of Amrita Nath, on the foot of Asit Nath's application dated august 23, 1961, - more than forty years after the death of the testator amrita Nath -, Asit Nath and his three brothers, named in the pedigree, were opposite party 1 to 4, and their mother Subhasini and father Atindra nath opposite party numbering 5 and 6 respectively. An application as this for revocation by Snehalata, now respondent, was converted under the rules of the court into a suit, which culminated in a decree in her favour. Hence this appeal by Asit Nath. 3. THE burden in a civil appeal -, and the one we are seized of is just that - is upon the appellant to show that the judgment under appeal is wrong. To quote Lord Buckmaster, from (1) Nabakishore Mondal v. Upendra Kishore Mondal, (1921) 26 CWN 322 : '"in appeals, the burden of showing that the Judgment appealed from is wrong lies upon the appellant. To quote Lord Buckmaster, from (1) Nabakishore Mondal v. Upendra Kishore Mondal, (1921) 26 CWN 322 : '"in appeals, the burden of showing that the Judgment appealed from is wrong lies upon the appellant. If all he can show is nicely balanced calculations which lead to the equal possibility of the judgment of either the one side or the other being right, he has not succeeded. " In the case on hand, what we see is nothing like any "nicely balanced calculations" which need proving and conning in order to find out where the judgment will fall. We see instead the broadest of broad considerations favouring Snehalata, the sole contesting respondent before us. 4. BUT who is Snehalata ? And how does she come in here ? That has got to be known first. And knowing this little is really knowing so much about this litigation, with particular reference to its background, its prior history. The will of the appellant's grandfather Amrita Nath is dated march 3, 1920: exhibit A. And the maker of such will, made so much of here and in the court below, died on april 17, 1921. With these two dates, not in the realm of controversy, and repeated at the risk of repetition, [let attention be called to the list of dates set out below, alongside which are enumerated, date by date, the events that tell: 1. August 20, 1929. . . . Atindra, the appellant's father, not Amrita' Nath, his grandfather, then dead, purchased, from the Calcutta Improvement Trust, a body corporate, vacant land (which is new "119") for Rs. 28,630, with a view to building upon it: vide the relative conveyance of August 20, 1929, exhibit 2, and the relative indenture of charge of even date, exhibit 3, by which was secured the sum of Rs. 14,000, representing the balance of consideration money not paid by Atindra on August 20 19519. 2. October 6, 1934. . . . . This day atindra paid to the vendor Rs. 14,030 with stipulated interest and released what is now "119" from the charge it was saddled with on August 20, 1929: vide the indenture of release bearing date October 6, 1934, exhibit 5. 3. January 3, 1950. . . . 2. October 6, 1934. . . . . This day atindra paid to the vendor Rs. 14,030 with stipulated interest and released what is now "119" from the charge it was saddled with on August 20, 1929: vide the indenture of release bearing date October 6, 1934, exhibit 5. 3. January 3, 1950. . . . Having purchased the land so,-land which admeasures 11 cottahs 7 chittaks and 11 square feet-, Atindra built thereupon "a partly two-storied and partly three-storied building": vide paragraph 7 of the written objections filed by the appellant in the couit below. And, what is more, on this day (January 3, 1956), he mortgaged "119" for a sum of rs. 60. 000 in favour of one Ramani mohan Roy Chowdhury: vide paragraph 10 ibid, and paragraph 8 of the appellant's plaint, exhibit B, in Title suit No. 20 of 1962 in the third court of the subordinate judge at Alipore against Snehalata and others, read with paragraph 4 of Snehalata's application, converted into a plaint, in this litigation. 4. July 28, 1954. . . . The mortgage having not been redeemed by the mortgagor Atindra, the appellant's father, the mortgagee Ramani Mohan Roy chowdhury raised an appropriate action in the proper court: Title Suit no. 106 of 1953 (Mortgage), and got in the end a final decree for sale this day, i.e., on July 28, 1954, as is stated before us by counsel for both parties. 5. June 5, 1958. . . . Execution having been levied of the aforesaid decree: title Execution Case No. 55 of 1955, arising out of Title Suit No. 106 of "l953: for recovery of the decretal dues (Rs. 85,650), "119", with valuation put upon it at Rs. 1,06,140, was put to sale and auction-purchased by Snehalata in such court-sale for Rs. 1,85,000: vide the relevant sale-certificate, exhibit 1. 6. January 14, 1959. . . The aforesaid sale was confirmed this day, an application by Atindra to set aside the sale having been dismissed on the day previous: January 13, 1959. 5. MARCH 13, 1961 (Not April 14, 1961, as stated in the plaint). . . . . . 1,85,000: vide the relevant sale-certificate, exhibit 1. 6. January 14, 1959. . . The aforesaid sale was confirmed this day, an application by Atindra to set aside the sale having been dismissed on the day previous: January 13, 1959. 5. MARCH 13, 1961 (Not April 14, 1961, as stated in the plaint). . . . . . Atindra's appeal to this court: First Miscellaneous appeal No. 136 of 1959: against the order refusing to set aside the sale of "119", was disposed of this day in terms of settlement, by virtue of which he was to pay Snehalata, the auction-purchaser, rs. 2,20,000 within one month and a half from March 13, 1961. On such payment, the sale of "119" would be set aside. But on failure to make such payment, Atindra's appeal would be dismissed, and the sale would stand. More, atindra gave an undertaking to court to vacate, in favour of Snehalata, the portion of "119", he was in possession of. Other terms of settlement come to by atindra and Snehalata need not be noticed, save that Atindra was given the liberty to withdraw the balance of the sale-proceeds (Rs. 1,85,000 minus rs. 85,650 or thereabouts, the decretal dues), in case the sale stood. The sale indeed stood, as will presently be seen. And, it is said, Atindra did withdraw the aforesaid balance. (We have taken these terms of settlement from the original record in this court of First miscellaneous Appeal No. 136 of 1959.)7. No more need be chronicled date by date. We have covered up to March 13, 1961. Amrita Nath's will of March 3, 1920, has not come into view as. yet. One Krishna Kumar Goswami, aged 30 and son of Debnath Goswami, (since dead), who again v/as the son of the preceptor of the family of Amrita Nath, in the course of handling a box full of books, such as the Gita, the Bhagabat, the Chandi and the Chaitanya Bhagabat, discovered this will lying at the bottom thereof. That was in July 1961, and in krishna Kumar Goswami's house at goswami Malipara within the jurisdiction of Dadpur police-station in the district of Hooghli. Krishna Kumar is the third witness of the appellant. Such a one unfolded the will, which he had found folded and read it. He then came down to Calcutta to hand it over to Asit nath, the appellant. Krishna Kumar is the third witness of the appellant. Such a one unfolded the will, which he had found folded and read it. He then came down to Calcutta to hand it over to Asit nath, the appellant. But, reaching the new Alipore residence in Calcutta of sashi Bhusan Sarkar, the appellant's maternal grand father and necessarily atindra's father-in-law, Krishna Kumar goswami met him (Sashi Bhusan) and made over the will to him instead in July 1961. 6. SASHI Bhusan Sarkar, the next witness of the appellant, witness No. 4, says, he got the will from "some goswami", whose name he does not remember. But he remembers, that goswami is the son of Atindra's gurudeva. He remembers too, he got the will from such a one in Asarh 1366 b. S., which would correspond to mid June to mid-July of 1959. And he, in turn, made over the will to the appellant Asit Nath, the day after he had received it from "some Goswami". Sashi Bhusan is a septuagenarian, to be exact, seventy-five years of age, on the date he gives evidence in court (January 20, 1967). On the discovery of the will, the evidence of the appellant Asit Nath remains. The second witness on his behalf, he says, he got the will from his maternal, grand-father Sashi Bhusan Sarkar in Asarh or Shravan 1388 B.S., which would correspond to mid-June to mid-August of 1961. And he lost no time in applying for letters of administration with this will annexed. Indeed, so he did no August 23, 1961, as noticed: paragraph 3. And on November 29 following, he got ex parte, just what he had prayed the court for: grant of letters of administration with the will annexed of Amrita Nath. 7. MEANWHILE Atindra, the appellant Asit Nath's father, over whom was hanging the undertaking he had given to this court on March 13, 1981, to deliver to Snehalata vacant possession of that part of "119" he was then in possession of, found himself in deep water in that he could not pay Snehalata rs. 2,20,000 within one month and a half from March 13, 1961, with the result that the sale of "119" to Snehalata stood. Worse still, the undertaking automatically emerged-an undertaking he did not honour either. 2,20,000 within one month and a half from March 13, 1961, with the result that the sale of "119" to Snehalata stood. Worse still, the undertaking automatically emerged-an undertaking he did not honour either. Appropriate proceedings in contempt initiated and a rule issued, he initially pleaded that "he would make amends for his contumacious conduct" by vacating ''119" by 6 p. m. on January 6, 1982, but he failed to act up to his pleading. Result: he was adjudged guilty of contempt of court and sentenced to imprisonment for six months on January 9, 1962: vide the original records of the contempt rule, bearing No. 1860 of 1961. Apparently, the grant of letters of administration to the appellant Asit Nath on november 29, 1961, did not stand his father Atindra in good stead. Indeed, the grant was not even produced before the court hearing the contempt rule. And the learned judges did not believe the story told by Atindra for the first time that he was not the owner of "119". 8. "119" ADMITS of a dichotomy tenanted portion and portion in occupation of the owner. Snehalata in the meantime obtained possession of the tenanted portion ; that is, the tenants started paying rents to her. But the other portion baffled her. Worse, on march 5, 1962, she came to know of the grant, on November 29, 1961, of letters of administration with the will dated march 3, 1920, annexed, of Amrita Nath, because of the suit filed against her: title Suit No. 20 of 1982: on February 8, 1962, the plaint whereof is exhibit B, followed by an injunction, the aforesaid grant having been disclosed therein: paragraph 12 of the said plaint, exhibit b. Hence, an application by her on june 29, 1962, under section 26-1 of the act, for revocation of the grant,- an application, which, converted as a suit, was allowed on January 31, 19g7-, as noticed. This introduces Snehalata, now respondent, making it clear how she comes in here. Such is the prior history of the grant on November 29, 1961, followed by its revocation on January 31, 1967. This introduces Snehalata, now respondent, making it clear how she comes in here. Such is the prior history of the grant on November 29, 1961, followed by its revocation on January 31, 1967. It is a history rested on "matters of record", as the appellant rightly pleads :in paragraph 10 of his written objection in the court below, such "matters of record" having been in the realm of admissions, with nothing like a denial by the appellant in his pleading, save that the High Court not believing the existence of the will is said to be "not correct". But we are not going by the belief or disbelief of this court about that. We are going by the hard fact of atindra having broken his undertaking to the court and having been imprisoned for that, the will not standing between him and jail: paragraph 10. And disbelief expressed by the court, hearing the contempt rule, is there too (paragraph 10), as we see on our own from the original record in this court of Rule nisi No. 1860 of 1961. 9. MR. Asoke Kumar Sen Gupta, opening the appeal, makes a grievance of the finding by the learned judge that amrita Nath's will of March 3, 1920, is fabricated, with a view to fleeing the mis. chief that has been done to "119" by atindra, and the effect thereof. But what Atindra did and what effect it pro-duced bear recounting: mortgage of "119" culminating in a final decree for sale on July 28, 1954, the consequential execution culminating in auction-purchase by Snehalata of "119" on June 5, 1958, in a court-sale confirmed on january 14, 1959, after dismissal, on January 13 previous, of Atindra's application for having the set aside, the carrying of the matter to this court on appeal which ultimately failed, because Atindra could not pay to Snehalata Rs. 2,20,000, as he had agreed to do, within the stipulated time; with the result that the sale to Snehalata of "119" stood; and what is more, the giving of an undertaking to court by Atindra to deliver possession to Snehalata-an undertaking which Atindra broke only to go to civil jail on or about January 9, 1962. Mr. Sen Gupta submits that to look at the will in the way the judge does is to look at it in so unnatural a manner. Is it really ? Mr. Sen Gupta submits that to look at the will in the way the judge does is to look at it in so unnatural a manner. Is it really ? Let us never lose sight of the fact that the instrument we have been called upon to pronounce for or against is a will. That being so, the books are full of distinct and strong decisions where the law laid down is : wherever a will comes into being in circumstances which raise the suspicion of the court, it ought not to be pronounced for, so long as the suspicion remains. A rule as this is not confined only to cases in which a will comes into being at the instance of a person taking a benefit under it. "the rule," in the words of Lindley L. J. in (2) Tyrell v. Painton, 1894 P. 151 at p. 157, 'is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the court, and wherever such circumstances exist, whatever their nature be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove, fraud, or undue influence, or whatever else they rely upon to displace the case made for proving the will "to the same effect is what Davey l. J. lays down in this very case : ". . . . the principle is that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator the court ought not to pronounce in favour of it unless that suspicion is removed." This principle has been followed in a long line of cases, the latest of which appears to be (3) Gorantla Thataih v. Thotakura Verikata Subbiah, AIR 1968 sc 1322 : 1969 (1) SCA 29, where the supreme Court approves it. 10. NOW, apply this principle to the facts set out so far and to be set out hereafter. 10. NOW, apply this principle to the facts set out so far and to be set out hereafter. Right from August 20, 1929, when Atindra purchased the land, which is now "119", and built a threestoryed building upon it, down to march 13, 1961, and after, when he suffered his appeal in this court against the sale to Snehalata on June 5, 1958, of "119", in execution of a mortgage decree against him, to be dismissed, supplemented by an undertaking given to court that he would deliver possession to Snehalata of so much of "119" he was in possession of, - a period of some; thirty-three-years -, this will, much talked of now, remained in a hidy-hole, so to say, not in the residence of the testator Amrita Nath in calcutta, but in the residence of debnath Goswami at Goswami Malipara in the district of Hooghly. Such a one is described in the will as the son of the revered preceptor of the family of the testator and his forefathers. Such a one is one of the two named executors too, the other one, an executrix, being nanibala, the testator Amrita Nath's wife. Here is the order in which the three died : 1. The testator. . April 17, 1921, 2. Executrix Nanibala June 9, 1931, 3. Executor Debnath August 7, 1944, as we have it from Mr. Sen Gupta, appearing for the appellant Asit Nath, without any challenge by Mr. Roy, appearing for the respondent Snehalata. More, about the testator's date of death, there is a clear admission by the appellant in the fifth paragraph of his written objection in the trial court. And, about the date of Executor debnath's death, there is the evidence of his son Krishna Kumar: that his father died in Shravan 1351 B. S. inside of which falls August 7, 1944, as specified by Mr. Sen Gupta. So, Nanibala, the mother of atindra and the grandmother of Asit nath, the appellant before us, was alive for a little more than ten years after the death of the testator, none else than her husband. And even though an executrix, she uttered not a word about this will-her husband's will-all these ten years and a little more. That she had known nothing about such a will, if it were there, looks so improbable, on the face of it. (See paragraph 19.). And even though an executrix, she uttered not a word about this will-her husband's will-all these ten years and a little more. That she had known nothing about such a will, if it were there, looks so improbable, on the face of it. (See paragraph 19.). If a husband would not confide the will in his life's partner whom he was appointing an executrix, who else would he confide it in ; the more so, when by such will he was disinheriting a son of his, Atindra, aged then no more than fifteen, as stated in the will itself. (More of which hereafter : paragraphs 19-21.). 11. THEN, what about Debnath ? he, an executor, was in possession of the will. So he knew about the will very, very much, having apparently kept it with certain holy books, if what his son Krishna Kumar, a teacher and a preceptor combined, says is true, and such a one died more than twenty-three years after the death of the testator, presumably his father's disciple too. Yet not the least noise by such a one about the will for all these twenty-three years and more. Only more than forty-one years after the death of the testator, it was left to be discovered by Debnath's son, Krishna kumar, in July 1961, and in the manner noticed : paragraph 7. 12. THERE again lies a material discrepancy. Krishna Kumar puts the discovery in July 1961. But Sashi bhusan attributes to Krishna Kumar, not as Krishna Kumar, but- as "some goswami," the son of Atindra's gurudeva, the making over of the will, so discovered, on a certain day between mid-June and mid-July of 1959, Asarh 1366 B. S. The appellant petitioned the trial court on January 27, 1967, to correct the recorded deposition of Sashi bhusan, his fourth witness, taken on january 20 previous, submitting that he had said : Asarh 1368 B. S., not Asarh 1366 B. S., as recorded through mistake. The learned trial judge by his order no. 57 dated January 27, 1967, rejected the petition, objected to on behalf of Snehalata. Such rejection means that the deposition was correctly recorded on January 20, 1967. And that is final and conclusive. What the trial judge hears and records in his own hand must necessarily prevail over such belated objection, taken seven days later. 57 dated January 27, 1967, rejected the petition, objected to on behalf of Snehalata. Such rejection means that the deposition was correctly recorded on January 20, 1967. And that is final and conclusive. What the trial judge hears and records in his own hand must necessarily prevail over such belated objection, taken seven days later. Sashi Bhusan having appended his signature in English to the foot of his recorded evidence, also in English, in token of his deposition having been correctly recorded. So, this material discrepancy remains, adding suspicion upon the discovery of the will, more than forty years after the death of the testator - which by itself constitutes a gravely suspicious circumstance in the context of facts here, such as the executrix, none else than the testator's wife, lying by for more than ten years, and the executor lying by for more than twenty-three years, after the testator's death, from when the will speaks. Mr. Shankar Das Banerjee, following Mr. Sen Gupta, refers us to (4) Binodini Debya v. Hriday Nath ghosal, (1917) 22 CWN 424, where seventeen years' delay did not stand between the propounder and admission of an illiterate Hindu lady's will to probate. That, no doubt, is true. But ratio of this decision is not: no matter what the delay, it raises no suspicion. The ratio is : 'see what the reasons are for the delay. Enter into the prior history. Scrutinize the evidence carefully. If the reasons are good, the will stands, there being no rule of the law of evidence that a will propounded seventeen years after the death of the testator is incapable of being proved. ' such ratio fitted there; the son, Hari das, whom the testatrix gave nothing, was of loose morals and addicted to dissolute and drunken habits. Worse, he had in his early career disposed of two garden houses to satisfy his pleasures. Now, the testatrix died in 1896 and this dissolute son of hers in 1913. The will was put forward for probate only after his death. 13. SAY this of the case on hand ? no doubt, the will refers to Atindra as under: ". . . . fickle-minded to a degree, immodest, reckless, disobedient, a prodigal, and one whose deportment is not good. Spends excessively. And to supply himself with funds, he draws money from my tilt behind my back. 13. SAY this of the case on hand ? no doubt, the will refers to Atindra as under: ". . . . fickle-minded to a degree, immodest, reckless, disobedient, a prodigal, and one whose deportment is not good. Spends excessively. And to supply himself with funds, he draws money from my tilt behind my back. He does not mind his lessons at all. His manners, as also the very thought about his future, fill me with disquiet in the extreme. His mother too grieves over him ever. . . . " by the way, appearances are therefore so much in favour of Nanibala, metter of Atindra, having knowledge cf this will of her husband : paragraph 15. Amrita Nath and Nanibala, husband and wife, father and mother of atindra, were sharing their common sorrow over this wayward son of theirs. And still Nanibala lay by for more than ten years after her husband's death and herself died too in 1931, leaving this bad son of theirs undisturbed by the will. 14. AND so many stimulating adjectives and expressions have been hurled in the will against Atindra, a lad of fifteen years of age then. Such a one in his teens cannot certainly be compared to Hari Das in the (4)Binadini Debya's case : Hari Das who was of loose morals, addicted to dissolute and drunken habits, and so keen on satisfying his pleasures that he had sold two garden houses early in his career. What again is the substantive evidfence about so many stimulating expressions in which the will refers to atindra ? The appellant's first witness khagendra Nath Bose, aged seventy-seven, and the scribe of the will, was the confidential clerk of Amrita Nath on a pay of Rs. 30 a month. The will, it will be recalled, is dated March 3, 1921 Only a year or two later, that is, in 1821 or 1922, Khagendra gave up his work under Amrita Nath and his estate. Amrita Nath died on April 17, 1921. All that a witness of such standing can attribute to Atindra, a 15-year-old lad then, is : "atindra wanted money from his father through me. " - as he says on cross-examination. So, suspicion upon suspicion again. Atindra was not that bad as the will paints him to be. Amrita Nath died on April 17, 1921. All that a witness of such standing can attribute to Atindra, a 15-year-old lad then, is : "atindra wanted money from his father through me. " - as he says on cross-examination. So, suspicion upon suspicion again. Atindra was not that bad as the will paints him to be. Far from having been the Hari Das in (4)Binodini Debya's case, he was just the type, as the lads of that age are the world over, barring perhaps the Teddy boys of today, afraid of his father whom he dared not approach direct for money, but whom he was trying to seek a favour from, through his connden clerk. None of the stimulating expressions in the will fit such a lad. And for this Little : soliciting money from his father through his confidential clerk: he is being punished so much : a total disinheritance. It, therefore, excites in the mind of the court: a grave suspicion that the will bolstered up more than forty years after' the death of the testator is not the last will and testament of his. 15. ON two considerations, therefore, the ratio in the (4) Binodini debya case cannot avail the appellant. One, the prior history scrutinized there reveals a son who is a moral wreck, out to squander away properties, and who is therefore disinherited. Here the prior history scrutinized reveals a mere lad to whom nothing like this can be attributed or has been attributed either, by substantive evidence. The proir history, not only of the will here, but also of its discovery in July 1961, leaving aside the material discrepancy about the discovery having been in 1959 too (paragraph 17), reveals much more : such find is well timed, almost just when the last dig by Atindra to save "119" fails in this court. The date of the last dig is March 13, 1961, and after, extending up to one month and a half after that. And the find is timed in July following. Nothing like this is in the (4) Binodini Debya case. Two, there the primary court accepted the direct evidence proving the preparation and execution of the will. Here, the primary court has not. Nor do we; this being a first appeal, ours is a court of facts too. 16. And the find is timed in July following. Nothing like this is in the (4) Binodini Debya case. Two, there the primary court accepted the direct evidence proving the preparation and execution of the will. Here, the primary court has not. Nor do we; this being a first appeal, ours is a court of facts too. 16. ON the discovery of the will, (to which we revert, for viewing it in another way), so well timed, and so soon after the last attempt by Atindra to save "119" fails, we have only krishna Kumar's word for that: falling far too short, in quality and quantity, of the minimal that is required to sustain so serious a finding. Two other witnesses, Sashi Bhusan and the appellant Asit Nath, speak only of the will having been passed on, by Krishna kumar to Sashi Bhusan and by Sashi bhusan to Asit Nath. So, the basic evidence is that of only Krishna kumar, the unsatisfactory. The learned trial judge disbelieves him. So do we. Truly does the learned judge comment that the last will and testament of one of the status of Amrita nath is not expected to be found in the manner in which Krishna Kumar says it has been found, to which we add: as a derelict in a box full of books, scriptures though they may be. The descendant of Rani Rashmani, as amrita Nath was, had certainly safes and almirahs for the custody of documents, in his residence in Calcutta, -safes and almirahs which are there to this day -, as Asit Nath admits on cross-examination. And still the will goes to Goswami Malipara in the district of Hooghly ! Why this unwarranted and unbelievable journey, when the testator Amrita Nath's wife nani-bala was feeling as much exercised over the future of Atindra as the testator himself. So there was nothing to hide from her. This sort of much too belated discovery, no less the manner thereof, has produced disbelief in our mind, as it has produced disbelief in the mind of the trial judge. And if to this be added the great disparity, (as noticed), between what Krishna Kumar says : that he discovered the will in july 1961, and what Sashi Bhusan says : that "some Goswami", meaning krishna Kumar, made over the will to him in mid-1959, our disbelief is clinched all the more. And if to this be added the great disparity, (as noticed), between what Krishna Kumar says : that he discovered the will in july 1961, and what Sashi Bhusan says : that "some Goswami", meaning krishna Kumar, made over the will to him in mid-1959, our disbelief is clinched all the more. The gravest of a suspicious circumstance thus emerges, and nothing that we see upon the whole of the evidence removes such suspicion from our mind. Still another suspicious circumstance is furnished by the evidence of that septuagenarian Khagendra nath, the appellant's first witness, as also the scribe of the will, fangled more than forty years after the death of the testator Amrita Nath. Such a one says, on cross-examination, of atindra in the manner following : "i cannot say if Atin Babu (Atindra) had 50/60 employees. Atin Babu had manager and naib. I do not know their names. I have nothing to show that I worked under Atindra Das. " what One who has been disinherited is running the estate with employees under him, no matter whether "50/60" or less, and also a manager and a naib, and Khagendra nath, the quondam confidential clerk of Atindra's father, the scribe of the will, by which Atindra is disinherited, and, therefore, a much knowledgable man about the will, in service of the estate up to 1921 1922, even after the death of Amrita on April 17, 1921, and as such necessarily under Atindra, is lying by, instead of making a bee-line for the executrix Nanibala so close at hand. Nanibala, the executrix, sorrowing over Atindra, as recorded in the will, is lying by too. Not only lying by she has been doing something which militates against the will and her being an executrix. As stated by Asit nath himself in paragraph 3 of the plaint, exhibit B, in Title Suit no. 20 of 1962, raised by him against Snehalata and others, Sonaibazar, a property which was his and brothers' by the will, exhibit A, was acquired by government in 1922-23, after the testator amnita Nath's death, but the compensation money was not given to his father Atindra, a minor as he was then. But who withdrew the compensation money ? 20 of 1962, raised by him against Snehalata and others, Sonaibazar, a property which was his and brothers' by the will, exhibit A, was acquired by government in 1922-23, after the testator amnita Nath's death, but the compensation money was not given to his father Atindra, a minor as he was then. But who withdrew the compensation money ? That is answered by Atindra by his verified petition bearing date september 28, 1961, in aid of Asit Nath's case: Act 39 case No. 33 of 1961, later converted into Other Suit No. 105 of 196s: for letters of administration with the will dated March 3, 1920, of Amrita nath annexed. The answer is that his mother as certificated guardian received the money: paragraph 8 of the petition. Other acts are attributed to her too qua certificated guardian. An executrix indeed, acting so for a son disinherited by her husband, the testator. Conclusion: in all likelihood there was no such will. 17. ON this topic, it only remains to be noticed that in the petition bearing date January 27,1967, referred to in paragraph 17, the appellant submitted too that, in the extract quoted in the preceding paragraph from Khagendra nath's evidence, given on January 17, 1967, what was really said was Amrita, and not Atindra, and prayed that corrections might be made in the recorded evidence accordingly. The trial judge rejected this prayer, and rightly too, when the recorded evidence had become ten days old with the full signature of khagendra Nath Bose at the foot thereof. Such a belated move really comes to nullifying the effect of cross-examination in the garb of correction so called. 18. GOING by the original will, it appears that the following live witnesses attested it: 1. Khagendra Nath Basu, the scribe, who signs at the foot of his recorded evidence in court as Khagendra Nath bose. Did the signature in Bengali in the will make him sign as Basu instead of Bose ? 2. Girija Bhusan Mondal (in english), Pleader, Alipore Judges' court; 3. Jnanendra Mohan Chakraborti, one in Bengali at the top and another in English at the bottom, where an addition is found: 'small Causes Court, cal. ', in a most haphazard and indistinct manner. 4. Chunilal Bandopadhyay. 5. Radharaman Manna of Girija in any one of the ways mentioned in the Explanation to section 47 of the Evidence Act 1 of 1872. ', in a most haphazard and indistinct manner. 4. Chunilal Bandopadhyay. 5. Radharaman Manna of Girija in any one of the ways mentioned in the Explanation to section 47 of the Evidence Act 1 of 1872. This appears to be, therefore, useless evidence by which the signature of Girija, for what it is worth, is not proved even. Thus, of the five attesting witnesses, two eliminate themselves: jnanendra and Girija. Radharaman Manna, asit Nath says, is ill, having lost his power of speech, and thereby become incapable of giving evidence in court. But Asit Nath does not remember who told him that Radharaman had lost his power of speech. The less said about such evidence, the better. 19. OF these five, Jnanendra Mohan chakraborti, who, according to khagendra Nath, was Amrita Nath's pleader in the small causes court, and Girija bhusan Mondal, an Alipore lawyer, are said to be dead. Manindra Nath mondal, the appellant's witness No. 5, proves the signature of Girija Bhusan mondal who, he says, was the lawyer of the estate of Mondals of Bowali, of which Manindra is a cosharer. This is good as far as it goes. But it does not go far enough. Because his cross-examination reveals, he has no document over the signature of Girija in his custody; he has nothing to show that Girija was a lawyer of their estate. Worst of all, he admits, on cross-examination: "i know the handwriting (of Girija) as it is written Girija Bhusan Mondal. " this witness is, therefore, simply reading the signature in full of Girija. Not that he is giving opinion evidence of a nonexpert, acquainted with the handwriting 20. THERE is a graver objection yet to this sort of explanation for non-examination of Radharaman. Assume illness has made him lose his power of speech. So what ? Section 119 of the evidence Act, 1 of 1872, is there to receive effect: "a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible as by writing or by signs; but such writings must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence. " Radharaman's written signature is there too in the will, with much more, in the same handwriting, clear, bold and seasoned: 'no. 20 Corporation Street,-present address: Baowali; District 24-Parganas. Evidence so given shall be deemed to be oral evidence. " Radharaman's written signature is there too in the will, with much more, in the same handwriting, clear, bold and seasoned: 'no. 20 Corporation Street,-present address: Baowali; District 24-Parganas. ' So his loss of power of speech, supposed or real, can hardly be a ground for having not examined him. He could have given his evidence by writing. And it would have reckoned as oral evidence within the meaning of section 119. Out of five attesting witnesses, therefore, the court is deprived of the evidence of the three: Jnanendra and girija sa:;d to be dead and Radharaman said to have lost his power of speech a most flimsy ground for his non-examination, even if his loss of speech is taken for granted. Two remain: khagendra Nath Basu, as in the will, or khagendra Nath Bose as in the recorded evidence, and Chunilal bandopadhyay, the appellant's witnesses numbering 1 and 6 respectively. Let a scrutiny be made of the evidence of these two witnesses one by one. 21. KHAGENDRA Nath was "24/25 years" old, as he says once, or "27/28 years" old, as he says a little earlier, when he joined service under Amrita nath in 1916. He was only a confidential clerk on a pay of Rs. 30 a month. He did not look after legal matters. And this is the only will he has written ever. How he did write the will, he says too, but in two voices, one voice, the voice in chief, being: "i wrote the will under instructions from Amrita Nath Das"-; and another voice, the voice on cross-examination, is: "there was a draft for the will. Jnan Babu (Pleader Jnanendra) prepared the draft of the will. No instruction was issued in my presence to Jnan babu. I wrote the will according to the draft. " Writing the will under instructions from the testator and writing the will according to the draft with no instructions issued to the drafter in his presence do not appear to be the same thing. Again, writing of the will over, pleader Jnanendra read out the will and 'put his signature first". What did he attest then by such first-ever signature on the will ? Is this the reason why a second signature of his at the bottom is found in the will ? See paragraph 26. 22. Again, writing of the will over, pleader Jnanendra read out the will and 'put his signature first". What did he attest then by such first-ever signature on the will ? Is this the reason why a second signature of his at the bottom is found in the will ? See paragraph 26. 22. IN spite of such infirmities-and there are some more too-if khagendra Nath can be believed, he proves the will's execution and attestation on its great outlines. Amrita nath. signed the will in his presence and in presence of other witnesses too. They saw Amrita Nath sign the will. And Amrita Nath saw the witnesses sign too. That appears to be enough. It matters little that the signatures of the testator and the attesting witnesses have not been separately marked as exhibits -a matter which Mr. Praphulla Kumar roy makes a point of, on behalf of the respondent. With respect, that seems to he a pointless point. The question is not that. The question is: can khagendra Nath be believed ? We defer answering this until we have reviewed the evidence of the remaining attesting witness Chunilal bandopadhyay. (See paragraph 37 infra.) The last witness of the appellant, the sixth one, aged about seventy-six or seventy-seven, he (Chunilal)worked as a priest in Amrita Nath's family. He does not remember if amrita Nath executed any will. At the same time, he says he was a wtinesses in the will, exhibit A. But when it was executed, how many years ago, he does not remember. Again he says amrita Nath "signed the deed," only to resile then and there, and say : "i cannot say if Amrita Babu signed the deed. " 23. AND such is the evidence in chief of one whom the appellant examines as his witness. Naturally, the trial court, in its discretion, permits the; appellant to put questions to him which might be put in cross-examination by the adverse party : section 154 of the Evidence Act 1 of 1872. Ques-tioned so, on behalf of the appellant, he denies that "the plaintiff" (Snehalata) requested him "not to depose in this case," saying earlier that he does not know if the plaintiff had approachied him. He says too, he was not a witness in a forged deed. 24. QUESTIONED on behalf of snehalata, he says : "amrita Babu was? dead when I signed the deed. He says too, he was not a witness in a forged deed. 24. QUESTIONED on behalf of snehalata, he says : "amrita Babu was? dead when I signed the deed. I signed the deed at the request of Atin Babu (Atindra). I signed the deed about 6 years back. "the date of his evidence is january 27, 1967. So, "six years back" would be 1961 - some forty years after 1921 when the maker of the will died. Such then is the total evidence of Chunilal. If Khagendra nath's evidence has infirmities, so also has Chunilal's. The question therefore, is : who is to be believed ? On. execution and attestation of the will, we have only Khagendra Nath's word on the will having been "cooked" in or about 1961, we have only Chunilal's word, and that too after vacillation, as just noticed. But what is this vacillation like - vacillation of truth or vacillation of untruth ? The whole of the evidence and the record completely satisfy us, it is a vacillation ' of truth. Chunilal, it appears, is reluctant to come to court, after having been present on two occasions. That leads the; appellant to pray for the issue of a warrant against him under Order 16, rule 10, of the Procedure Code (5 of 1908). The trial judge rejects such: prayer, and very rightly too, on the; ground that "there is nothing to show, the witness was directed to appear before the court." The date he does so is January 20, 1967 : vide Order no. 55 of even date in the order-sheet. And only seven days later, Chunilal does attend court and gives evidence in the manner indicated, without being subjected to any coercive method like a witness-warrant. While in the witness-box he finds himself torn between two feelings. One is the feeling about his signature from which he cannot run away and he does not run away either. The other is the feeling about having lent his signature so, long, long after the death of Amrita Nath, and only in 1961, some forty years after Amrita nath's death in 1921. Hence, such vacillation. 25. THAT Chunilal's evidence should be regarded so appears to be confirmed not only because of his speaking against a legacy of Rs. The other is the feeling about having lent his signature so, long, long after the death of Amrita Nath, and only in 1961, some forty years after Amrita nath's death in 1921. Hence, such vacillation. 25. THAT Chunilal's evidence should be regarded so appears to be confirmed not only because of his speaking against a legacy of Rs. 50 a year during his lifetime, as appears to have been provided for in the will, but also because of one suspicion after another touching the will, not of a man on the street, but of one of the status of Amrita Nath, a descendant of Rani rashmani and so wealthy too. Atindra, in his verified petition of September 28, 1961, referred to in paragraph 24 ante, in aid of his son, the appellant asit Nath's case for obtaining letters of administration with the will annexed, estimates the total value of the vast properties inherited in his one-fourth share from his father, inclusive of those mentioned in the will, at more than Rs. 20,00,000 (twenty lakhs), of which, he avers, the properties covered by the will constitute but a "very small portion," So, Amrita nath, the wealthy, had a status to be taken into reckoning. And the will of such a one comes to light in a manner spoken to by Krishna Kumar ! A find as this has, therefore, the slur of incredibility put upon it. Indeed, what the suspicions are like, we have point-ed out, one by one, in detail, in the foregoing lines. And the will of such a one comes to light in a manner spoken to by Krishna Kumar ! A find as this has, therefore, the slur of incredibility put upon it. Indeed, what the suspicions are like, we have point-ed out, one by one, in detail, in the foregoing lines. If only to go over them again, in gist, here are they : so belated a find, the delay running, not into a year or two or even ten, but into a little more than forty years; the manner of such a find, as also how the find is timed, when all attempts to salvage "119" end in failure; the great disparity as to the year (1959 or 1961)when such a precious instrument is tumbled upon; the executrix Nanibaia, the testator's wife, lying by for ten years and more, and acting as the certificated guardian of Atindra, the son, whom the testator, by the will, disinherits, and with her approval too - so inconsistent with the instrument and her role as exeetrix; the executor debnath lying by too for twenty-three years and more, though the custody of the will is said to have been with him; both the executor and the executrix dying years later without any attempt even to do anything with or about the will; the inherent improbability, verging on absurdity, about a lad of fifteen having been disinherited for so many bad traits of his, as mentioned in the will, - traits nothing like which substantive evidence does establish; Khagendra Nath, the will's scribe and attesting witness too, serving, on the testator's death, under his son Atindra, supposed to have been disinherited but going strong none-the-less; etc., etc. Thus, on one side, we have he word of Chunilal about the instrument having been executed long to the testator's death - word which emerges after the inside struggle between falsehood and truth he goes through - supplemented by so many suspicious circumstances which far from satisfy the conscience of the court about the existence of a will bearing date March 3, 1920, come to light in July 1959 or 1961; and, on the other side, we have the word - and only the word - of Khagendra Nath, which is so out of joint with suspicion piled upon suspicion enumerated above. Such being the position, we believe chunilal and disbelive Khagendra nath, just as the trial judge does. 26. THE finding just come to means an end of the appellant's case, nothing that Mr. Shankar Das baner-jee pressses upon us disturbing such finding by one jot or one tittle, far less displacing it. For example, he sees in chunilal the priest, just the priest who performs the ceremony of adoption and is himself a witness to the deed of gift, in (5) Kali Chunder v. Shib Chunder, (1871) 15 WR 12 PC, and yet denies that there was any adoption at all, wheraupon - "their Lordships are of opinion that no weight whatever ought to be given to the evidence of a witness who himself comes and says, not only that the deeds were forged, but that he himself had been a party to the making of them. " Certainly such opprobrium fits chunilal too to a great extent. But in spite of that, the existence of so many suspicious circumstances,-nothing like which is there in the (5) Kali Chunder case -, makes it look certain that what chuniilal says about the will having been made in 1961, more than forty years after the testator's death, is true. Agaain, how evidence should be assessed is l00% in the realm of facts. In the facts of the (5) Kali Chunder case, the judicial Committee assess evidence that way. In the facts before us, we assess; evidence in the way we have done. Sure enough, a case cannot be an authority on a point of fact: (6)Neta Ram v. Jiwanlal, AIR 1963 SC 499 , Again Mr. Banerje'e likes us to equate Chunilal, because of his evidence at one stage that he does not remember if Amrita Nath had executed the will, with Mrs. Mackins, one attesting the draft of the will (destroyed by enemy action) as a witness, in (7) Re Webb (deceased) : Smith y. Johnston, (1964) 2 All. ER 91. But that we cannot very well do, Mrs. Mackins did not remember signing the document at all. All she remembered was that, called in on one occasion by the deceased testatrix, she saw, a little man in a Homburg hat was there. ER 91. But that we cannot very well do, Mrs. Mackins did not remember signing the document at all. All she remembered was that, called in on one occasion by the deceased testatrix, she saw, a little man in a Homburg hat was there. By evidence aliunde it was established that Solicitor Rogers in whose custody the will v/as and whose premises had been severely damaged by enemy action was the little man in a homburg hat. Mrs. Mackins did not say, as Chunilal does about the testator amrita Nath, that the will was executed long after the death of the testatrix on March 23, 1960. More, the ratio deducible, from (7) Re Webb, in so fan as it is material here, appears to be the passage in Mortimer on Probate law and Practice, 2nd Edn. (1927) at p. 126, quoted by the trial judge, Faulks J. : "the court will not allow defective memory alone to overturn a will' which is upon the face of it duly executed. " the will on hand is being overturned not on defective memory, but: on existence of a series of suspicious circumstances coupled, with the evidence of Chunilal pointing to the creation of the will long after the death of its maker -evidence which, upon the whole is believed to be true. 27. MR. Banerjee then refers us to the summary of the law on the point, contained in the following passage in halsbury's Laws of England, 3rd Edn., volume 16 at page 205 : "362. Faulty memory or death of witness. In a contested action the court will scrutinise the evidence of an attesting witness which tends to prove absence of due execution with great care, and, if his recollection is faulty or negative, of it he shows any hostile animus, will be disposed to put his evidence aside and act on the presumption that the will is good. " about faulty recollection of chunilal, we have little to add to what we have stated above. We have not been able to find hostile animus either, on the part of Chunilal. We have done our best too to scrutinise the evidence with great care. " about faulty recollection of chunilal, we have little to add to what we have stated above. We have not been able to find hostile animus either, on the part of Chunilal. We have done our best too to scrutinise the evidence with great care. And, we repeat, we are overturning the will on the affirmative evidence of Chunilal that the will was 'cooked' long after the death of the testator, - evidence we believe, in all circumstancs here, to be true -, coupled with the existence of so many suspicious circumstances touching the will. So, the passage relied upon can hardly do any good to the appellant. 28. EVEN if it be assumed that chunilal does show hostile animus, -though it is difficult to assume so, as chunilal is not necessarily hostile, if in speaking the truth his testimony goes against the appellant who calls him -, that cannot help matters forward for the appellant. That cannot, because the mere fact that he repudiates the will, to which he is a signatory, cannot invalidate the instrument, if it can be proved by evidence of a reliable character that he has given false testimony : just the ratio of the decision rendered by Sir Asutosh mookerjee in (8) Brahmadat Tewari v. Chaudan Bibi, (1914) 20 CWN 192, following earlier cases. But the fact that Chunilal has given false testimony has not been proved. On the contrary, all the facts and circumstances, full of suspicion, completely satisfy us that the testimony Chunilal has given about the will having ccrne into being long, long after the testator's death, appears to be true. Mr. Banerjee reminds us, on the authority of a Bench decision of this court in (9) Rammol (Das) Koch v. Hakol Koki, (1917) 22 CWN 315, adapted to the present section 63 of the succession Act, 39 of 1925, that though there shall be at least two attesting witnesses to a will, section 68 of the evidence Act, 1 of 1872, is there, and, by virtue thereof, a will can be proved by one attesting witness only. But where is that one attesting witness ? khagendra Nath ? On a scrutiny of the whole of the evidence and suspicious circumstances, we have not been able to bring ourselves to believe him. Indeed, we have disbelieved him : paragraph 37. But where is that one attesting witness ? khagendra Nath ? On a scrutiny of the whole of the evidence and suspicious circumstances, we have not been able to bring ourselves to believe him. Indeed, we have disbelieved him : paragraph 37. So, even one attesting witness is not there to prove the will. 29. AND this raises a much larger issue. True it is that section 68 of the evidence Act provides that an instrument required by law to be attested, just as the will before us is, shall not be used as evidence until one attesting witness at least has been called in, for proving its execution, if there be an attesting witness alive, and subject to the process of the court, and capable of giving evidence. In the case on hand, of the five witnesses, two -Pleaders Jnanendra and Girija - are said to be dead, and three-Khagendra Nath, Chunilal and Radharaman-are alive, subject to the process of the court, and capable of giving evidence too. Radhararnan, even if he has lost his power of speech, is certainly capable of giving evidence in court under section 119 of the Evidence Act. as we have held : paragraph 23 of these three again, two are examined: Chunilal who disproves the will and Khagendra nath who proves the will. We believe chunilal and disbelieve Khagendra nath. It cannot, therefore, be said that section 68 has received effect, just as the Judicial Committee said, in (10)Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, (1939) 43 CWN 669, only one attesting witness, Badri prasad by name, to a mortgage-deed, having been called at the trial for proving the execution, and his evidence having not been accepted, section 68' had not received effect. It was, therefore, very necessary to examine radha-raman. But he has not been examined on the ground that he has lost his power of speech, though the appellant, in his evidence, cannot recall how he had come by that information : paragraph 28. A flimsy ground as this is rendered flimsier still, because even without power of speech, his capability to give "oral evidence" within the meaning of section 119 of the Evidence act is there to be seen : paragraph 29, 30. A flimsy ground as this is rendered flimsier still, because even without power of speech, his capability to give "oral evidence" within the meaning of section 119 of the Evidence act is there to be seen : paragraph 29, 30. BEFORE we come to the question of non-citation of Snehalata, now respondent, in the appellant Asit nath's application bearing date August 23, 1961, for grant of letters of administration with the will dated March 3, 1920, annexed, of Amrita Nath, and snehalata's locus standi to ask that the grant, made on November 29, 1961, be revoked, we owe it to Mr. Praphulla kumar Roy to notice a contention of his, affecting, it is sumbitted, the genuineness of the impugned will. In (11) Sarala Sundari Dassya v. Dma-hindhu Roy Brajaraj Saha (Firm), decided on November 2, 1943, and come: into reports in 1944, (1944) 71 IA 1. AIR 1944 PC 11, there is "a gap of at least two and a half inches" between where the writing in the body of the will concludes and where the signature of the alleged testator begins. That leads Lord Atkin, delivering the judgment of the Board, to conclude : ". . . . the document is drafted to fit into the signature, and the signature was not put there in order to authenticate the document. " -Just on the line of what section 03 of the Act, by clause (b), prescribes, to quote only the portion that is material here : "the signature. . of the testator. . shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. " mr. Roy relies on this and asks : 'how many inches is the signature of the testator Amrita Nath here ?' On the last page of the will, preceding the schedules, we do not see much of a gap between the signature at the bottom and the point where the writing concludes. His signatures on the top may throw a little doubt. But that in itself is not much. His signatures on the top may throw a little doubt. But that in itself is not much. On top of that, in (11) Sarala Sundari's case -"the will is signed upon paper which there is plenty of evidence to show was used by the testator in his business for the purpose of the numerous legal proceedings which, in his course of business as money-lender, he would be engaged in for the purpose of having papers and so forth put before the Court. " nothing like this can be said, upon evidence, of the case on hand. Far from plenty, there is no evidence to that end, though an attempt may well have been made to lead evidence so, considering the type Amrita Nath, the wealthy, pos-sessed of vast properties, was like. Or take the case of (12) Purnima Debi v. Khagendra Narayan, AIR 1962 SC 567 (571) where was proved that the testator used to sign blank papers for use in h's court cases and used to send them to his lawyer through his servants. No such proof we find here. We are, therefore, not prepared to overturn the will on a consideration as this pressed upon us by Mr. Roy. It appears, however, to be worthy of note that in the (11) Sarala sundari case the testator died in 1927 and his widow, Sarala Sundari, applied for probate in February 1933, more than six years after the death of her husband, the alleged testator, when the sons of hers and the so-called testator's were going down in debts. In this background, the production of the will for the first time, six years later, the mother and the sons having proceeded so long in a manner as if there had been an intestacy, "attracted a good deal of suspicion" - suspicion which, Lord Atkin says, is not surprising. That being so, far, far less surprising would be much more suspicion about a will produced for the first time more than forty years after the death of the testator (as here), his wife and son Atindra having proceeded in a manner consistent only with an intestacy. See paragaphs 15 and 24. 31. NOR can we bring ourselves to have the will pronounced for, on the ground submitted by Mr. See paragaphs 15 and 24. 31. NOR can we bring ourselves to have the will pronounced for, on the ground submitted by Mr. Shankar Das banerjee that no scientific approach is there to ascertain the age of the papers upon which the will is written, whether or no the papers are that old as the appellant wants us -to hold they are. But the material we have had put before us appears to be more than enough and completely satisfies us that the will must be pronounced against, no matter that an expert has not been pressed into service to find out the age of the papers upon which the will has been written. 32. THAT Snehalata, now respondent, has "a proper locus standi" to ask the court for revocation of the grant to Asit Nath, now appellant, is plain to be seen. Here is she having purchased "119" in a court-sale on june 5, 1958, for Rs. 1,85,000 - a sale which was confirmed on January 14, 1959, the mortgagor judgment-debtor atindra's attempt to get the sale upset having come to little in the court below and here. What is much more, atindra, the mortgagor, who is mulcted in a final decree for sale, the decretal dues having reached Rs. 85,650, gives a solemn undertaking to this court to vacate in favour of Snehalata the portion of "119" he is in possession of. He breaks this undertaking, only to be sentenced to imprisonment for so months. The date he is sentenced so is January 9, 1962. Meanwhile, atindra's son, Asit Nath, now appellant, has obtained letters of administration with the will dated. March 3, 1920, of Amrita Nath, behind the back of Snehalata, now respondent, and so vitally interested in "119" for which she has paid Rs. 1,85,000. The date he obtains the grant so is November 29, 1961. With these facts, clear and loud, in the forefront of one's consideration, attention be called to section 283 of the act which by sub-section 1, clause (c), provides- "(1) In all cases the District Judge may, if he thinks proper,-** ** ** (c) issue citations calling upon all persons, claiming to have any interest in the estate of the deceased, to come and see the proceedings before the grant of. . . . letters of administration. " Mr. . . . letters of administration. " Mr. Asoke Sen Gupta submits that snehalata is not a person claiming to have any interest in the estate of the deceased: here Amrita Nath. Mr. Sen gupta is right. Snehalata only claims interest in "119" which Atindra, Amrita nath's son and Asit Nath's father, mortgaged to Ramani Mohan Roy chowdhury on January 3, 1950, and which was in the end purchased by her in a court-sale on June 5, 1958, in execution of the final decree for sale, arising out of the mortgage. Snehalata's interest is that and that only. But to say so is not to say that Snehalata has no locus standi "to come into court" and ask that the grant of letters of administration to Asit Nath be revoked, just what mr. Sen Gupta desires us to hold. Another provision of the Act now calls attention: "263. The grant of. . . . . . letters of administration may be revoked. . . . . . . . for just cause. Explanation. Just cause shall be deemed to exist where- (b) the grant was obtained fraudulently,. . . by concealing from the court something material to the case; illustrations. (ii) The grant was made without citing parties who ought to have been cited. (iii) The will of which probate was: obtained was forged. . . . . . Such being the provisions, cannot snehalata come into court and say: tray, revoke the grant made in favour of Asit Nath without citing me. Pray, revoke it too on the ground that the will of Amrita Nath, bearing date March 3, 1920, produced for the first time in august 1961, more than forty years after the death of Amrita Nath on April 17, 1921, is forged. " That is the point. 33. IN considering this point, let it not be lost sight of that Snehalata is an auction-purchaser in a court-sale of "119" mortgaged for Rs. 60,000 by atindra, an heir of the testator Amrita nath, as his own, to his creditor Ramani mohan Roy Chowdhury, at whose instance, qua decree-holder in the mortgage suit, the court-sale takes place. So if the grant, to the appellant Asit Nath, of letters of administration, with Amrita nath's will annexed, stands, such a one snehalata is being "robbed" of her rights, by virtue of auction-purchase in a court-sale, for Rs. So if the grant, to the appellant Asit Nath, of letters of administration, with Amrita nath's will annexed, stands, such a one snehalata is being "robbed" of her rights, by virtue of auction-purchase in a court-sale, for Rs. 1,85,000, in "119", flowing from the rights of the creditor-mortgagee Roy Chowdhury against the heir Atindra, by reason of "119", in possession of Atindra and dealt with by atindra as his own, as if-there had been an intestacy, being withdrawn by a will, produced for the first time more than forty years after the testator's death. And still she will have no locus standi to pray that the grant be revoked that cannot be. Indeed, law will be remarkable, were that so. 34. A somewhat similar contention is noticeable in the (11) Sarala Sundari case. There the creditors of the testator's sons applied for revocation of the grant. And the contention mooted was that "only those persons who could be cited before the grant of probate"-the creditors did not fall in that category-"are the persons who could apply to revoke the probate. " Lord Atkin, delivering the judgment of the Board, answers the contention in the manner following: "in their Lordships' view that is putting it on much too narrow a footing. One of the grounds for revoking probate is that the grant was obtained fraudulently,. . . . . . . . which obviously covers the case of putting forward a forged will, just as (c) (of the explanation to section 263) would cover the case of a person putting forward a forged will even if when he or she propounded it he or she did not know it was a forged will. ** **. . . . it appears to their Lordships to follow as a matter of course that if a person is complaining that he has in fact been defrauded, he is one of the persons injured by the fraud alleged and that that person is entitled to have his redress by applying to revoke the probate and thereby to cause the fraud to become inoperative. If he had not such a right as that, it is very difficult to know what right a creditor in those circumstances, or a person injured by the fraud, could have; otherwise the probate would stand and he would be affected by the probate which had been obtained ex hypothesi fraudulently. If he had not such a right as that, it is very difficult to know what right a creditor in those circumstances, or a person injured by the fraud, could have; otherwise the probate would stand and he would be affected by the probate which had been obtained ex hypothesi fraudulently. " snehalata is a person injured by the fraud, and so heavily injured at that, to the tune of Rs. 1,85,000 and more, if interest on such a big sum is taken into reckoning. Even in (13) Kristo Gopal nath v. Baidya Nath Kha, ILR (1938) 2 calcutta 173, upon which Mr. Banerjee relies, Biswas, J., holds (p. 176), Costello, j., agreeing, that one claiming as purchaser from the testatrix's legal heir has locus standi in revocation procedings. Snehalata's purchase here is in the ultimate analysis purchase from atindra, the legal heir of the testator amrita Nath. So her locus standi to apply for revocation is plainly there. She is in a-stronger position in that the grant was made on November 29, 1961, without citing her, though she is one of the parties who ought to have been cited under illustration (ii) to section 263 read with section 283, subsection 1, clause (c), of the Act, reproduced in paragraph 48. An approach as this is sought to be defeated, on behalf of the appellant, in three ways. First, snehalata cannot claim to have any interest in the state of the deceased amrita Nath-a point on the strength of which an attempt has been made, as noticed, unsuccessfully though, to negate even her Zocus standi. Second, non-citation simpliciter does not entitle the court to revoke the grant. Third, "ought to have been cited", the very expression used in illustration (ii) to section 263 of the Act, does not lend itself to the meaning that the party must be cited as a matter of right. Let these contentions be examined one by one. 35. ON the first contention, about snehalata claiming to have any interest in the estate of the deceased Amrita nath, in the course of discussion at the Bar, Mr. Shankar Das Banerjee and we are agreed that the following propositions emerge. Proposition 1. "119" must be treated as forming part of the estate of the deceased amrita Nath, acquired as it was with the Compensation-money received for acquisition of the Sonai Bazar properties at. Shankar Das Banerjee and we are agreed that the following propositions emerge. Proposition 1. "119" must be treated as forming part of the estate of the deceased amrita Nath, acquired as it was with the Compensation-money received for acquisition of the Sonai Bazar properties at. Kidderpore, mentioned in Amrita nath's will. Proposition 2. Snehalata can claim an interest in "ll9", but as a purchaser in a court-sale, not as a purchaser in a voluntary sale by a private treaty. Proposition 3. Was the appellant Asit Nath under an obligation to cite Snehalata in his application bearing date August 23, 1961, :for letters of administration with the will dated March 3, 1920, annexed, of Amrita Nath who died on April 17, 1921 ? on Proposition 1, Mr. Banerjee and we are completely agreed. So, nothing more need be said. 36. ON Proposition 2, Mr. Banerjee thinks, we do not, that an involuntary court-sale, Snehalata figuring there as an suction-purchaser, does make a difference. To us, in the context here,-and the context is the context of snehalata having an interest in "119"-, the distinction between an involuntary court-sale and a voluntary sale by a private treaty appears to be really a distinction without difference. What matters is not the species of sale, but the rights acquired, no matter how : by EJ private treaty or in a court auction. We hold so. Now to Proposition 3. Reference is made to section 229 of the Act, which prescribes inter alia, that letters of administration shall not be granted to any other person, until a citation has been issued to an existing executor who has not renounced his executor-ship, and to section 235 which contains a like prohibition in case of grant of letters of administration with the will annexed to a legatee other than an un versal or a residuary legatee. And it is said : do you find similar prohibition in case of one of the status of snehalata ? The answer is : we do not. But all this is about special citation. And certainly it may be said that snehalata is not entitled, as of right, to a special citation of the type sections 229 and 235 contemplate. But there is a lot more here to be looked into. The answer is : we do not. But all this is about special citation. And certainly it may be said that snehalata is not entitled, as of right, to a special citation of the type sections 229 and 235 contemplate. But there is a lot more here to be looked into. In the original application bearing date august 23, 1961, by Asit Nath for letters of administration with the will annexed, there is no mention even of "119". On September 29, 1961, Atindtra, father of Asit Nath, put in a verified petition, stating inter alia that "119" was acquired with the compensation-money got for acquisition of property mentioned in the will, and praying that letters of administration might be granted to Asit Nath as prayed for hay him. This was on September 29, 1961, and on January 14, 1959, sale of "119" to Snehalata was confirmed, Atindra's application to get the sale upset having been dismissed on the day previous : january 13, 1959. See paragraph 6. Yet not a word is stated about Snehalata. More, on March 13, 1961, Atindra suiffered his appeal against refusal to set aside the sale of "119" disposed of in the manner noticed : paragraph 6 again. So, on September 29, 1961, can-tempt was hanging over Atindra's head, broken as he had by then the undertaking given by him to court to vacate "119" in Snehalata's favour. And yet all this is suppressed from court. 37. IN the wake of such application by father, Asit Nath, the san, petitioned the court on October 5, 1901, to amend his original petition of august 23, 1961, by incorporating therein "119". Nothing whatever was stated about Snehalata and her purchase in a court-sale for Rs. 1,85,000. By order no. 6 dated October 5, 1961, this petition by Asit Nath of October 5, 1961, was made part of the original petition dated August 23, 1961, and citations were ordered to be issued. They were issued and served, but not on Snehalata whose name and interest were kept back from the knowledge of the court. 38. ON such facts, undisputed and indisputable, taken from the records of Asit Nath's case for grant of letters of administration, Act 39 case no. 33 of 1961, later converted into Other Suit no. They were issued and served, but not on Snehalata whose name and interest were kept back from the knowledge of the court. 38. ON such facts, undisputed and indisputable, taken from the records of Asit Nath's case for grant of letters of administration, Act 39 case no. 33 of 1961, later converted into Other Suit no. 105 of 1963, it is difficult to conceive of a worse case of "concealing from the court something material," within the meaning of section 263, clause (b), of Explanation thereto. Necessarily, it is difficult too to conceive of a juster cause for revocation. But, Mr. Asoke Sen Gupta says: 'look to section 283, subsection 2, of the Act, by virtue of which such general citation has to be fixed up in some conspicuous part of the court-house and also in the office of the collector of the district, etc. And that has been done here. ' To say so however is to ignore the concluding words of section 283, subsection 2: "and otherwise published or made known in such manner as the judge. . . . issuing the same may direct". Had the judge been apprised of the existence and interest of snehalata, - an interest for which she paid rs. 1,85,000 -, instead of such material thing having been concealed from him, we have no doubt in our mind that he would have insisted on nothing short of personal service of citation upon her. So, Asit Nath cannot take advantage of his own wrong in having concealed such material fact from the judge. To this, the answer on behalf of the appellant is : 'i knew nothing about Snehalata and her auction-purchase'. Such a piea draws largely on our belief for more reasons than one. 39. FIRST : Ast Nath was present in court when the case for setting aside the sale to Snehalata was being heard and also in the High Court when the relative appeal was being heard, as is the evidence between themselves of snehalata's husband, Nirode Kanta goswami, and Solicitor Mitra, the respondent's witnesses numbering 1 and 6 respectively. We accept such evidence, even though there is no other witness or paper to show Asit Nath's presence as stated. Indeed, what other witness or paper can there be for a matter as this ? We reject Asit Nath's denial of such presence. 40. We accept such evidence, even though there is no other witness or paper to show Asit Nath's presence as stated. Indeed, what other witness or paper can there be for a matter as this ? We reject Asit Nath's denial of such presence. 40. SECOND : we accept too solicitor Mitra's evidence that Asit Nath called on him and pleaded for a compromise of the appeal in the High court, and reject Asit Nath's evidence to the contrary. Such effort sounds so natural with a view to saving "119". And a compromise was in fact come to. Third : the tenants in the tenanted portion of "119" have been paying rent to Snehalata at least from may 1961 : vide the evidence of kaviraj Atul Chandra Sen and Jagabandhu kar, running a sweetmeat shop, read with the evidence of Satyendra Nath bose, an employee of Snehalata, the respondent's witnesses numbering 3, 4 and 5 respectively, and the counterfoils and rent receipts, exhibits 8 and 9. What to say of such witnesses, even asit Nath the appellant, as witness no. 2 on Ms behalf, admits on cross-examination that the tenants do not pay them rent. No doubt, he times such non-payment from December 1961 or january 1962 when, as he puts it, snehalata went to take possession of "119", and says too that the tenants do not pay rent to anybody. That is manifestly untrue, when the tenants themselves say, they are paying rent to Snehalata ever since 1961. And Asit nath is a type who would have us believe the unbelievable : that he knew not even about his father's civil imprisonment as a contemner adjudged guilty of contempt. He only heard it from one Kali Chakraborty. We dis-believe him and his story of lack of knowledge about Snehalata and her auction-purchase for Rs. 1,85,000. 41. FOURTH : there is an inherent improbability in the son (Asit Nath)not knowing all this done by the father (Atindra), though father and son live in "119" at the relevant time, as stated by a disinterested witness (no. 4) of the respondent like jaga-bandhu, the sweetmeat vendor running a shop there. We do not think much of the evidence to the contrary by which Atindra is stated to have been living at Shibpore in Howrah. Say, he did. But when ?. 4) of the respondent like jaga-bandhu, the sweetmeat vendor running a shop there. We do not think much of the evidence to the contrary by which Atindra is stated to have been living at Shibpore in Howrah. Say, he did. But when ?. Asit Nath says, his father left "119" for Shibpore in November or December 1961. By then., so many things had happened : sale of "119" on. June 5, 1958, dismissal on June 13, 1959, of the case to set aside the sale, confirmation of the sale on January 14, 1959, disposal of the appeal in the High Court on March 13, 1961., undertaking by Atindra to court to vacate "119"' etc. And Asit Nath, an adult son, knew nothing about all this ! To make the improbable look probable, it is said, from 1954 to november 1961, Asit Nath with his brothers and mother was living in the New alipore house of Sashi Bhusan Sarkar, asit Math's mother's father, whose acquaintance we have made: paragraphs 7 and 8. Such a story carries its own refutation. The descendants, of rani Rashmani were living so, the sons being seuarated from their father and Atindra being separated from [his wife ! What that humble sweetmeat vendor Jagat Bandhu, with no axe to grind, says : that father and son lived in "119" rings true. 42. ON Proposition 3, (paragraph 51), therefore, our answer is that Asit nath was under an obligation to way all facts about Snehalata and her auction-purchase of "119" for Rs. 1,85,1000 before the court. Once he had discharged such obligation, it needs :no imagination to see that the court would have made known to Snehalata Asit nath's application for letters of administration by personal service of citation upon her under section 283, subsection 2, of the Act. That is the only manner which, in the circumstances, would and could have commended itself to a judicial tribunal. Now to the second contention, listed in paragraph 51 : that mere noon-citation is no justification for revocation of a grant. Mr. Shankar Das banerjee rests this contention on (14)Anil Behari Ghosh v. Latika Bala Dassi, 1055 SCA 1026. There, non-citation of Girish, a cousin of the testator, even though such a one was entitled to citation, did not materially affect the grant of probate, the will so probated having been genuine, and not forged. Mr. Shankar Das banerjee rests this contention on (14)Anil Behari Ghosh v. Latika Bala Dassi, 1055 SCA 1026. There, non-citation of Girish, a cousin of the testator, even though such a one was entitled to citation, did not materially affect the grant of probate, the will so probated having been genuine, and not forged. More, it is found as ?. fact that Girish, at any rate, stood by in his lifetime and acquiesced in the grant. In that context the proposition, that non-citation simplecifer entitles the court to revoke the grant, is not countenanced. Such proposition, Sinha, C. J., (then Sinha, J.), speaking for the court, points out, is "much too widely stated". Section 263 of the Act vests in the court a judicial discretion to revoke a grant. To get a grant revoked is not an absolute right irrespective of other considerations, though non-citation may in a normal case be a ground by itself for revocation. But where, as in the (14) Anil Behari case, the validity or genuineness of the of the will is not challenged, why revoke ? It will be so jejune to do so. 43. SUCH then is the law laid down by the Supreme Court on mere non-citation not being a ground for revocation. How it reaches the case on hand completely beats us. The will here, discovered more than forty years after the testator's death, does not appear to be genuine. Truth to tell, it appears to be forged. Snehalata stood by never. Nor did she acquiesce in the grant ever. Yet equate her with Girish ? It is impossible to do that. On the contrary, non-citation, in a normal case as this, is a ground by itself for revocation, materially affecting as it does the grant. Such is also the law laid down by the supreme Court in this very case relied on by Mr. Banerjee. So, the second contention fails the appellant too. 44. THE third contention (paragraph 51) merely plays with words. When the law lays down that just cause (for revocation) shall be deemed to exist where the grant is made without citing parties who ought to have been cited, that law must receive effect. To run away from such law under the plea: 'i ought to have done this, but I am not bound to do so", merits neither encouragement nor reward. To run away from such law under the plea: 'i ought to have done this, but I am not bound to do so", merits neither encouragement nor reward. You do not do, at your peril, what you ought it to, tinder the law. Worse, you conceal something very material (Snehalata's auction-purchase for Rs. 1,85,000) from the court. So, the grant you have obtained must go down. The question of onus remains. Rightly does Mr. Shankar Das Banerjee contend that the applicant, praying for revocation of the grant, takes upon himself the burden of displacing the evidence on the foot of which the grant has been made, just what has been held in the (13) Kristo Gopal Nath case, (supra.) Mr. Praphulla Kumar Roy's contention to the contrary : that no manner of onus is upon Snehalata, we reject as totally destitute of merit. Test it, the topic of onus, in the light of the relevant provisions of the Evidence Act 1 of 1872. Snehalata desires the court to give judgment as to her legal right that she is entitled to revocation of the grant: a right which is dependent on the existence of facts she asserts. Ergo, she must prove the existence of facts by which she makes a case for revocation: section 101. Test it in another way. She gives no evidence. Nor her adversary, As'. t Nath. What happens then ? her case fails. Therefore, the burden is on her: section 102. So, the onus, we hold, is upon Snehalata, to start with. (More of which hereafter: paragraph 69 infra.) Even then, the appellant can not prosper. He cannot, for three reasons. 45. FIRST: to refer to those two oft-quoted decisions of the Privy council, one is (15) Seturatnam Aiyar v. Venkatachala Gounden, (1919) LR 47 IA 76, where Sir Lawrence Jenkins observes: "the controversy had passed the stage at which discussion as to the bur-den of proof was pertinent; the relevant facts were before the court, and all that facts reminded for decision was what inference should be drawn from them. " and another is (16) Chidambara sivaprakasa Pandara Sanndhigal v. Veerarna Reddi, (1922) LR 49 IA 286, where Mr. Ameer Ali observes : "when the entire evidence is before the court, the debate as to onus is purely academicals. " just so here. All the relevant facts are before us. " and another is (16) Chidambara sivaprakasa Pandara Sanndhigal v. Veerarna Reddi, (1922) LR 49 IA 286, where Mr. Ameer Ali observes : "when the entire evidence is before the court, the debate as to onus is purely academicals. " just so here. All the relevant facts are before us. The entire evidence, no matter by which party, is before us too. And the only inference that can be drawn, on the foot of all this, is that the grant cannot stand. 46. SECOND: when the evidence on record is such that it establishes a clear conclusion of fact (as here, the will being not a genuine one), it matters little by which party such evidence is given. It is indeed a rehash of what goes in the preceding paragraph. But; such is the law laid down by Page, j., in (17) Lila Sinha v. Kumar Bijoy pratap Dev Singh, (1924) 41 CLJ 300, a probate litigation, following the Privy council decision in (18) Kumar Basanta roy v. Secretary of State for India, (1917) LR 44 IA 104, that interesting case on adverse possession and diluviate land. where Lord Sumner observes: "a good deal has been said about the burden of proof in either case (adverse possession by respondents or dispossession of the appellants), but, as their Lordships find the evidence sufficient to establish a clear conclusion of fact, it cannot matter now by which party it was given. Their Lordships accordingly pass by the question who would have suffered if the facts had turned out otherwise or had not been proved at all. . . . . . " we also pass by the question what would have happened if the appellant had led no evidence, or that the form of verification at the foot of the respondent's petition for revocat'ion is not what it should have been, the grounds of belief having not been stated, in support of which mr. Banerjee has even referred us to (19 (i barium Chemicals Ltd. v. Company law Board, AIR 1967 SC 295 , (20) The state of Bombay v. Purushottam Joy naik, (1953) SCA 893, and (21)Padmabati Dasi v. Rasik Lai Dhar, (1910) ILR 37 Calcutta 259, cases which lay down what the forms of affidavits should bs like, Order 19, rule 3, sub-rule 1 of the procedure Code being a pointer. But once it, is remembered that this litigation has been decided, not upon affidavit-evidence, but upon the open oral examination of witnesses in court, so justly prized, enabling as it does the judge himself to see and hear the ones who give evidence before him, the form of verification of the respondent's original petition "or revocation pales into insignificance, and the cases referred to degenerate into irrelevant citations. Third : the respondent snehalata's petition for revocation is rested on two grounds. One, the ex parts grant was obtained without citing her', though she ought to have been cited : paragraphs 18 and 19. Two, the will set up is not genuine, but " manufactured" : paragraphs 18 and 19. So soon as that is said, the law laid down by lord Sinha,delivering the judgment of the Board, in (22) Ramanandi Kuev v. Kalawati Kuer, (1928) LR 55 IA 18: ilr 7 Patna 221, is attracted here. And the law laid down is : upon the first ground established (as it is established here), the onus is upon the appellant to prove that the will is genuine. The appellant has proved just the reverse: that the will is not genuine, the theory of improbability, as stated by Lord watson in (23) Chotey Narain Singh v. Raton Koer, (1894) LR 22 IA 12, not coming to his succour, but destroying his case outright. Indeed, in view of all that we have gone by, as summarised in paragraph 37, for example, the improbability we see here is "clear and cogent". It approaches "very nearly to, if it does not altogether constitute, an impossibility", to quote the very words of Lord Watson. The trial judge, therefore, looks at the will only in a way in which it should be looked at. And Mr. Sen Gupta's criticism that he does not, (paragraph 13), we cannot share. 47. IN the result, the appeal fails and is dismissed with costs. Salil Kumar Datta, J.