JUDGMENT 1. :- Instant civil revision laid to this court under section 115 of the Code of Civil Procedure (Civil Procedure Code for short) arises from the application of non-petitioner No.1 (for short the probate applicant) purported to have been filed under Order 18 Rule 16 Civil Procedure Code which was allowed and direction was issued for DE BENE ESSE examination of Smt. Kamal Kanti, the wife of late Raghu Nandan Lal Bhargava, whose alleged will is under consideration in probate proceedings before the learned District Judge. 2. Facts required to be set out at the outset are that Probate-applicant Vishnu Kumar submitted an application before the learned District Judge under section 276 of the Indian Succession Act, 1925 for granting probate in his name in respect of will alleged to have been executed by his father late Shri Raghu Nandan Lal Bhargava on November 28, 1985. Alongwith the said application a sealed envelope containing the alleged will, was produced before the learned District Judge. According to the probate applicant the said will was executed in the presence of two attesting witnesses viz. Shri D. Kapil and Dr. M.P. Sharma. The said will was drafted by Shri Gyanendra Bardar, Advocate. 3. In order to understand the relationship between the parties, it will be useful to draw family tree of late Shri Raghu Nandan Lal Bhargava 4. The petitioner Ajay Kumar as well as non-petitioner Raj Kumar, Ashok Kumar and Deepak Kumar, contested probate application, raising objections in their written statements. 5. On November 1, 1996 probate applicant moved an application for recording the statement of Smt. Kamal Kanti immediately on the following grounds:- (a) She is an important witness of the will. (b) She is 80 years old and suffering from ulcer, blood pressure and hard of hearing. (c) She feels difficulty in going up stairs and down stairs. (d) In case she dies the probate applicant would suffer irreparable loss and such a situation would deprive an important witness to appear in a witness box. 6. Learned District Judge allowed the said application and directed to record the statement of Smt. Kamal Kanti immediately. 7. Before adverting to the rival contentions, it is necessary to examine the provisions contained in Rule 16 of Order 18 Civil Procedure Code in order to understand as to what the 'de bene esse' examination is ? 6. Learned District Judge allowed the said application and directed to record the statement of Smt. Kamal Kanti immediately. 7. Before adverting to the rival contentions, it is necessary to examine the provisions contained in Rule 16 of Order 18 Civil Procedure Code in order to understand as to what the 'de bene esse' examination is ? Rule 16 of Order 18 Civil Procedure Code provides thus - "R. 16. Power to examine witness immediately (1) where a witness is about to leave the jurisdiction of the court or other sufficient cause is shown to the satisfaction of the court why his evidence should be taken immediately, the court may, upon the application of any party or of the witness, at any time after the institution of the suit, take the evidence of such witness in manner herein before provided. (2) where such evidence is not taken forthwith and in the presence of the parties, such notice as the court thinks sufficient, of the day fixed for the examination, shall be given to the parties. (3) The evidence so taken shall be read over to the witness and if he admits it to be correct, shall be signed by him and the Judge, shall, if necessary, correct the same, and shall sign it and it may then be read at any hearing of the suit." 8. A perusal of above quoted provision demonstrates that a witness may be examined immediately, at any time after the institution of the suit- (i) where he or she is about to leave the jurisdiction of the court, or (ii) where sufficient cause is shown to the satisfaction of the court with regard to his or her immediate examination. 9. I shall now proceed to consider the impugned order and the rival contentions. After examining the medical certificates and the affidavits of the parties, the learned District Judge in the impugned order observed thus-(English translation) "In view of the above discussion I reach to the conclusion that Smt. Kamal Kanti is a necessary witness for the disposal of this case. Looking to her old age of 80 years as well as diseases, if her statement is not recorded immediately, failure of jusitce may be occasioned. Therefore application of the applicant/plaintiff dated 1.11.96 under Order 18 Rule Civil Procedure Code is accepted." 10. Mr. Looking to her old age of 80 years as well as diseases, if her statement is not recorded immediately, failure of jusitce may be occasioned. Therefore application of the applicant/plaintiff dated 1.11.96 under Order 18 Rule Civil Procedure Code is accepted." 10. Mr. Ashok Kumar Sharma, learned counsel appearing for the petitioner canvassed that in the entire application for probate, nothing has been said in respect of Smt. Kamal Kanti. She is not a necessary witness. The provisions of Order 18 Rule 16 have been misconstrued by the learned court below. Mr. Sharma, learned counsel invited my attention towards Rules 2 and 3-A of Order 18 Civil Procedure Code as well as to the section 280, 282 and 283 of the Indian Succession Act. Reliance was placed on Ayyasmi Govinda vs. J.S. Palanisami AIR 1990 Madras 237 . 11. On the other hand Mr. V.B. Sharma, learned counsel appearing for the probate applicant supported the impugned order and urged that the learned court below rightly exercised the discretion vested in it under Order 18 Rule 16 Civil Procedure Code. Reliance was placed on Debadutta Pal vs. Indu Mad Pal 1 (1996) CLT 263 , Samuel H. Joseph vs. Dr. John C. Taylor 1991 Civil Court Cases 415 (All.) and Ram Dhir Prasad vs. Ram Sewak La1 AIR 1978 Patna 218 . 12. I have bestowed my anxious consideration to the rival contentions and carefully scanned the record. 13. In para No.2 of the application submit under section 276 of the Indian Succession Act the probate applicant Vishnu Kumar pleaded as under : HINDI MATTER 361342A 14. The learned District Judge on May 25, 1995 got opened the aforesaid sealed envelope in the presence of three persons Sarva Shri Rajeev Singhal Advocate, Umashanker Sharma Advocate and Dr. Anand Sharma and following order sheet was drawn HINDI MATTER 361342B (Emphasis supplied) A perusal of the order sheet goes to show that photocopy of the alleged will was found in the sealed envelope produced by the probate applicant with the application. 15. On September 27, 1995 Smt. Kamal Kanti submitted an application along with another sealed envelope. Verbatim contents of the application are as under:- HINDI MATTER 361342C 16. Learned District Judge on Sept. 28, 1995 directed to deposit the said envelope in the court and it was deposited on Oct. 10, 1995. 17. 15. On September 27, 1995 Smt. Kamal Kanti submitted an application along with another sealed envelope. Verbatim contents of the application are as under:- HINDI MATTER 361342C 16. Learned District Judge on Sept. 28, 1995 directed to deposit the said envelope in the court and it was deposited on Oct. 10, 1995. 17. On November 30, 1995, Smt. Kamal Kanti filed reply to the probate application and submitted that she had no objection if probate is granted in the name of probate applicant Vishnu Kumar. In the said reply Smt. Kamal Kanti averred that the sealed envelope produced by her contained the last original will of late Raghunandan Lal Bhargava. 18. Thereafter Ashok Kumar Bhargava non-petitioner, moved an application on November 14, 1995 under Section 10 Civil Procedure Code for staying probate proceedings on the ground that in respect of property shown in Schedule 'Ka' of the probate proceedings, a partnership deed was entered between the parties and pursuance to condition No.18 of the said partnership deed, he on April 17, 1993 already submitted an application for appointment of Arbitrator. As the probate proceedings were initiated by Vishnu Kumar with a view to defeat the appointment of Arbitrator, the same may be stayed till the decision of the application for appointment of Arbitrator. Vishnu-Kumar submitted reply to the said application and the application is subjudice before the learned District Judge. 19. In the written statement the petitioner however, averred that the will executed by late Shri Ragu Nandan Lal Bhargava was deposited on November 30, 1985 with the District Registrar Jaipur under the provisions of Indian Registration Act, 1908 and thereafter it was cancelled by him after serving the notices to the attesting witnesses. 20. I have narrated these facts in order to examine as to whether there is a sufficient cause for the immediate examination of Smt. Kamal Kanti in the facts and circumstances of the case on hand ? 21. The expression "sufficient cause" implies presence of legal and adequate reason. The word "sufficient" means "adequate" "enough" "as much as may be necessary to answer the purposes intended." It embraces no more than that which provides a plenitude which, when done, suffices to accomplish the purpose intended in the light of the existing circumstances and when viewed from reasonable standard of practical and cautious men. 22. The word "sufficient" means "adequate" "enough" "as much as may be necessary to answer the purposes intended." It embraces no more than that which provides a plenitude which, when done, suffices to accomplish the purpose intended in the light of the existing circumstances and when viewed from reasonable standard of practical and cautious men. 22. After viewing from reasonable standard and scanning cautiously the facts and circumstances of the case on hand I see no adequate reason for immediate examination of Sint. Kamal Kanti under the provisions contained in Rule 16 of Order 18 Civil Procedure Code. Probate applicant Vishnu Kumar cannot be permitted to misue the provisions of Rule 16 of Order 18 to fill up the lacunae of his case. Undoubtedly Sint. Kamal Kanti is an old woman of eighty years and has been suffering from the diseas but the application for the immediate examination does not appear to be bonafide. In the application it has been pleaded that Smt. Kamal Kanti feels difficulty in going upstairs and downstairs but no request was made for her examination on commission. The learned District Judge directed to examine her in the court which is situated on the first floor and in order to appear in the court Smt. Kamal Kanti shall have to go upstairs and downstairs. This fact goes to show that Smt. Kamal Kanti is in a position to limb upstairs. The main ground incorporated in the application for immediate examination of Smt. Kamal Kanti is the apprehension of her death in the mind of the probate applicant. I am of the considered view that mere apprehension of death of a witness cannot be a sufficient cause for immediate examination of a witness. No body knows what will happen tomorrow. Brief is our span of life, fleeter than the lightening flash. Apprehension of death is in everybody's mind, whether he or she is old or young. 23. I am unable to pursuade myself to agree with the observation of the learned District Judge that Smt. Kamal Kanti is the necessary witness for the disposal of probate proceedings. Smt. Kamal Kanti is neither the attesting witness nor does her name find place in the probate application. 23. I am unable to pursuade myself to agree with the observation of the learned District Judge that Smt. Kamal Kanti is the necessary witness for the disposal of probate proceedings. Smt. Kamal Kanti is neither the attesting witness nor does her name find place in the probate application. In order to prove due attestation of the will the propounder of the will has to prove that the two witnesses saw the testator sign the will and that the two witnesses themselves affixed their signature to the will in the presence of the testator. As to what constitutes proof of attestation of the signature of a testator to a wills their Lordships of the Supreme Court in Girja Dutt vs. Gangotri Dutt Singh AIR 1955 Supreme Court 346 propounded, as under : "In order to prove due attestation of the will of a testator, the propounder of the testamentary document has to prove that the two witnesses, namely, "A" and "B" saw the testator sign the will and that they themselves signed the will in the presence of the testator." 24. Now I come to the case law cited at the Bar. In Debadutta vs. Indumati Pal (supra) it was held thus : "Order 18 Rule 16 Civil Procedure Code shows that rule regarding onus of proof need not be followed in all circumstances, that rule provides that where a witness is about to leave the jurisdiction of court or other sufficient cause is shown, why his evidence should be taken immediately the court may "take evidence forthwith". In the said case the application filed under Order 18 Rule 16 indicated the reason for seeking immediate examination of a witness, to be that being an octogenarian old lady she was gradually losing her mental balance, and wanted to go to her daughter's place at Gujarat which was beyond the territorial jurisdiction of the trial court. In this peculiar circumstances, the prayer was accepted by the Orissa High Court. 25. In Samuel H. Joseph vs. Dr. John C. Taylor (supra) the plaintiff was leaving the country shortly. In view of the urgency of the situation the court allowed the evidence of the plaintiff to be recorded forthwith under Order 18 Rule 16 Civil Procedure Code. 26. In this peculiar circumstances, the prayer was accepted by the Orissa High Court. 25. In Samuel H. Joseph vs. Dr. John C. Taylor (supra) the plaintiff was leaving the country shortly. In view of the urgency of the situation the court allowed the evidence of the plaintiff to be recorded forthwith under Order 18 Rule 16 Civil Procedure Code. 26. In Ram Dhir vs. Ram Sewaklal (supra) the point involved was whether an ex parte decree, passed in a suit in which special witness were examined on behalf of defendant under Order 18 Rule 16 Civil Procedure Code prior to passing of exparte decree, can be set aside under Order 9 Rule 13 Civil Procedure Code. The Division Bench of Patna High Court observed that "the scope of Rule 16 of Order 18 is very wide and orders can be passed at any time after the institution of the suit. This means that an application in appropriate facts and circumstances may be moved....." 27. Supporting the contentions raised by the counsel for the probate applicant. Mr. G.P. Sharma, learned counsel for the non-petitioners No. 2 and 4 urged that recording of evidence of Smt. Kamal Kanti is justified in view of sub-rule (4) of Rule 2 of Order 18 Civil Procedure Code, which provides that the Court may for the reasons to be recorded direct or permit any party to examine any witness at any stage. I am not convinced with the argument advanced by the learned counsel. The provisions contained in order 18 Rule 16 are complete and do not require any assistance from any other provision of Civil Procedure Code. 28. Now I deal with the arguments of Shri V.B. Sharma, learned counsel appearing for the probate applicant that the learned District Court has passed the impugned order in exercise of its discussion vested under Order 18 Rule 16 Civil Procedure Code, and this court should not interfere with the impugned order under Section 115 Civil Procedure Code. 29. The word 'discretion' implies the use of private and independent thought. When any thing is left to be done according to one's discretion the law intends it to be done with sound discretion and according to law, and the court has power to redress things that are otherwise done notwithstanding they are left to the discretion of those that do them. When any thing is left to be done according to one's discretion the law intends it to be done with sound discretion and according to law, and the court has power to redress things that are otherwise done notwithstanding they are left to the discretion of those that do them. Discretion is discerning between right and wrong; and therefore, whoever has power to act at discretion, is bound by the rule of reason and law. And though there be a latitude of discretion given to one, yet he is circumscribed that what he has does be necessary and convenient, without which no liberty can defend it. Discretion must be exercised honestly and in the spirit of the statute. It is not to be arbitrary, vague and fanciful but legal and regular, to be exercised not capriciously but on judicial grounds and for substantial reasons. The discretion to pass an order for de bene esse examination of witness in presenting the application under Order 18 Rule 16 Civil Procedure Code on sufficient cause being shown must like other judicial discretion, be exercised with vigilance and circumspection according to justice, common sense and sound judgment. 30. To my mind the learned District Judge did not exercise his discretion in the spirit of Order 18 Rule 16 Civil Procedure Code. While passing the impugned order the learned District Judge overlooked the intention of Vishnu Kumar which was hidden behind the "cause" shown in the application. As already discussed, the intention of probate applicant Vishnu Kumar was to fill up the lacunae of his case. When he already produced the alleged last will of testator Shri Raghu Nandan Lal Bhargava either he should stick to his pleadings or should seek amendment. But in no manner he can be allowed to misuse the provisions of Order 18 Rule 16 Civil Procedure Code. The learned District Judge also did not appreciate the provisions contained in section 62 of the Indian Succession Act according to which due attestation of will can be proved by the attesting witnesses. The learned District Judge did not assign the adequate reasons as to why he treats Smt. Kamal Kanti as necessary witness for the disposal of probate proceedings. The learned District Judge only considered the reply filed by Shri Kamal Kanti and observed that she is an important witness. The learned District Judge did not assign the adequate reasons as to why he treats Smt. Kamal Kanti as necessary witness for the disposal of probate proceedings. The learned District Judge only considered the reply filed by Shri Kamal Kanti and observed that she is an important witness. In a proceeding initiated by probate applicant Vishnu Kumar, it is the pleadings of probate application of Vishnu Kumar which ought to have been considered. If in pursuance of notice served by Vishnu Kumar, Smt. Kamal Kanti produced an 'envelope' in the court and consented to grant probate in the name of Vishnu Kumar. It does not mean that she became an important witness. It was incumbent upon the learned District Judge to consider, while passing the order on the application under Order 18 Rule as to why the situation of producing two sealed envelopes each containing last will of late Shri Raghunandan Bhargava, arose ? The learned District Judge did not at all discuss the contents of the probate application filed by Vishnu Kumar. The observation of the learned District Judge that Smt. Kamal Kanti being the wife of late Raghunandan Lal Bhargava, must obviously have knowledge of the will, therefore her statement may be of importance, can not be accepted in view of section 63 of the Indian Succession Act, according to which two attesting witnesses have to be called for proving due execution of the will. In a case based upon a will the propounder or the plaintiff must plead that the document was properly executed and duly attested and that it was the last will of the testator. The wife of a testator who has knowledge that a will was executed by her husband cannot obviously an important witness for the purpose of probate proceedings. Undoubtedly she may be examined by the probate applicant as a witness at a proper stage but in the facts and circumstances of this case her immediate examination is not justified. 31. In my humble view the authorities cited at bar are distinguishable and not applicable in the facts and circumstances of the instant case. 32. Conclusion of the above discussion is that the learned court below has committed error of jurisdiction in issuing direction to examine Smt. Kanti immediately and if the order is allowed to stand it would occasion failure of justice. 33. 32. Conclusion of the above discussion is that the learned court below has committed error of jurisdiction in issuing direction to examine Smt. Kanti immediately and if the order is allowed to stand it would occasion failure of justice. 33. In the result the revision succeeds and is hereby allowed. The impugned order is set aside and the application submitted under Order 18 Rule 16 Civil Procedure Code stands dismissed. Record of the case be sent back forthwith. The parties are directed to appear before the learned District Judge Jaipur City on September 24, 1997. Costs easy.Revision allowed. *******