Richard Couch, J.

1. The principal question in this appeal is, whether probateof the will of Modhu Sudan Kundu, who died on the 9th October 1892, ought to begranted. The appellant was the applicant for the probate, and in his petitionfor it, presented to the District Judge on the 20th January 1893, he statedthat he was the adopted son of Modhu Sudan and one of the executors, mentionedin the will. He also stated that another will had been executed by Modhu Sudanon the 4th October 1892, which was revoked by the later will and was filed inCourt. The application was opposed by Nistarini Dasi, the widow of Modhu Sudan,in a petition put in on the 31st January 1893, in, which she denied thegenuineness of the second will, refused to admit the first will, and alsoasserted that Shama Charan the appellant, was not the adopted son of thedeceased. On the 23rd February, Nistarini presented a petition withdrawing herobjections. Thereupon, on the 27th February 1893, the respondent, who is one ofthe daughters of the deceased, filed a petition of objection denying thegenuineness of the will, asserting that Shama Charn was not the adopted son,and that the withdrawal by Nistarini was the result of collusion, and prayingto be made a party to the suit. The District Judge having refused to do thisthe will was proved in common form, and probate granted. The respondentappealed to the High Court which set aside the decision of the District Judgeand remanded the matter in order that she might have an opportunity ofcontesting the case, and that the will might be proved in solemn form. On the25th June 1894, the District Judge decided in favour of the will; he found thatit was executed by Modhu Sudan and that he was then of sound and disposingmind. As to the adoption of Shama Charn he said:

I have mentioned that an allegation was made by the objectordenying that Shama Charn was the adopted son of Modhu Sudan, in order to showthat it was not probable the deceased should have executed such a will.Evidence was given that Shama Charan was treated by Modhu Sudan as an adoptedson, was spoken of as an adopted son by Modhu Sudan when giving evidence. Not aparticle of testimony to support the objectors allegation was given. Thoughtwo sons-in-law, a cousin, and a servant of Modhu Sudan were examined, not oneof them was asked a single question whether Modhu Sudan had adopted ShamaCharan. The alleged improbability therefore fails.

2. The evidence in the record fully supports this opinion.

3. On the 29th July 1895 the High Court on the appeal of Khettromonireversed the decree of the District Judge and ordered the application forprobate, to be dismissed.

4. The first witness examined in support of the will was SriNarain Babu the writer of it. His evidence was that Tincowri Banerji, anotherwitness, was sitting near Modhu Sudan and repeated what he had said, althoughthe witness could hear it himself; that at the time of the will being writtenout Modhu said: "There are Rs. 6,000 due to me on a mortgage. Of this sumRs. 2,000 are to be given to Kedar Nath, Prio Nath, and Bhut Nath each;"that just then some one came in and said that Bhut Nath was dead, and some oneasked what was to be done with the Rs. 2,000 allotted to Bhut Nath. Modhu Sudansaid "Let Rs. 1,000 be given to his widow and Rs. 1,000 to hismother." The witness said he made provision accordingly in the will; heforgot whether it had already been written in the will, that Bhut Nath was toget Rs. 2,000 or whether this had only been mentioned by Modhu Sudan, he couldnot say without looking at the will. Now the second paragraph of the willcontains a gift of Rs. 2,000 to Bhut Nath and the ninth the gifts of Rs. 1,000each to his mother and widow. Tincowri Banerji deposed that Sri Narain wrotethe will and be asked questions and Modhu Sudan "made known the terms ofthe will" that he said Rs. 6,000 would be given to his three nephews, thiswas written, and then the document was read over and Modhu Sudan signed it andafter him the witnesses. Some one said "Let the will remain in Tincowriskeeping," and so it was given to him and he took it. He went on to saythat afterwards Kedar said to him "What is written in the will isfalse." He said "How is that" Kedar said "My brother isdead, and he has been given Rs. 2,000 "(Bhut Nath having shortly beforedied of cholera). Tincowri said" He did not know of your brothers death.If you wish I will enquire from Modhu Sudan to whom he wishes that Rs. 2,000 tobe given." Then three or four of them went and said Your nephew is veryill, if he dies to whom should his money be given "He thought for a longtime, perhaps a quarter of an hour, and said, Let Rs. 1,000 be given to hiswife and Rs. 1,000 to his mother." Then this was inserted in the will.This was after the will had been executed. There was a space and the provisionwas inserted. There was no signature of the testator or the"witnesses." The District Judge who had the will before him wassatisfied with this evidence and accordingly excluded this addition to the willfrom the probate. No doubt there is a discrepancy between the evidence on thispoint of Sri Narain and that of Tincowri. But Sri Narain may have forgotten theexact circumstances under which the ninth paragraph was inserted or may havebeen over zealous in his desire to support the whole will. At any rate theDistrict Judge accepted Tincowris version, and on that basis their Lordshipscannot agree with the learned Judges of the High Court who thought that thediscrepancy between the second and ninth paragraphs had not been satisfactorilyexplained and that it was a circumstance to excite suspicion. Peary Mohun, oneof the attesting witnesses, deposed to the execution of the will and said thatModhu Sudan was all the time in his senses. Kedar Nath Kundu, a pleader, one ofthe nephews of the testator to whom the Rs. 6,000 were given, who was presentduring part of the time when as he said "Sri Narain was writing andTincowri was asking Modhu and then telling Sri Narain what to write" addedthat "Modhu Sudan was in his senses. He seemed to understand everythingthat was said to him and he was able to give replies." The District Judgesays in his judgment that it was clear to him that Kedar Nath was an unwillingwitness. In his evidence he appears to have been dissatisfied with what he tookunder the will and being one of the executors was unwilling to join in theapplication for probate.

5. The case of the respondent against the will was that nowill was executed. The effect of the evidence of the six witnesses called insupport of it is that during the morning when the will was said to been haveexecuted Modhu Sudan was in an unconscious state, unable to sign a will andthat no will was made. The District Judge, who saw the witnesses, has foundthat the will was executed by the deceased and that he was of sound disposingmind when he executed it.

6. The judgment of the High Court reversing this decisionappears in the conclusion of it to be founded upon what is said by Lindley,L.J., in Tyrrel v. Painton (1894) P., 151, that whenever circumstances existwhich excite the suspicion of the Court and whatever their nature may be, it isfor those who propound the will to remove such suspicion and to proveaffirmatively that the testator knew and approved of the contents of thedocument. In this case, the suspicion, if there was one, would be that on themorning, when the will was said to have been made, the deceased was in anunconscious state and unable either to sign the will or to understand what hewas doing, that is, that the witnesses in support of the will were not tellingthe truth. If they were their Lordships do not see anything to excitesuspicion. The question was simply which set of witnesses should be believed.The District Judge saw them and the remarks in his judgment show that heobserved their demeanour. The High Court had not that advantage. In theirLordships opinion the probate was rightly granted and the decree for it shouldnot have been reversed It is not necessary to decide the other questions raisedin the appellants case. Their Lordships will, therefore, humbly advise HerMajesty to reverse the decree of the High Court and order the appeal to bedismissed with costs. The respondent will pay the costs of this appeal.

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Shama Charn Kundu vs.Khettromoni Dasi (09.12.1899 - CALHC)