1. This is an appeal against the order of the District Judge of Madura refusing to grant to the appellant probate of a Will. The testator named two executors of whom the appellant is one. The other, the respondent, applied for probate and the ordinary notice went to the appellant who appeared and challenged the genuineness of the Will. The District Judge found the Will genuine, granted probate to the respondent, but refused it to the appellant, on the ground that by his action in denying the genuineness of the Will he had to all intents and purposes, renounced his position as executor.
2. Now, although prior to the probate proceedings, the appellant had indulged in wild statements that the Will was a forgery, that he was never appointed executor, that the testator had never signed it, that his own attestation which appears on the Will was obtained by fraud, the statement he put into the probate Court when the proceedings came on was of a milder tenor, and it is that statement alone that the probate Court was, in our view, entitled to consider. It is open, for example, to an executor to openly assert outside the Court that he is renouncing his executorship, but it is by his statement in the Court that he will stand or fall : see Munich Lal Seal in the goods of  35 Cal. 156.
3. Now, in his statement to the Court the appellant merely said that he did not admit the execution and validity of the Will: that it was a spurious document brought about by the exercise of undue influence : that, so far as he (appallant) knew, the testator never put his signature to the Will, and that his own attestation was due to his having been deceived by the respondent as to the nature of the document. And he ended up by saying that if the Court considers the Will genuine, and is prepared to grant probate, he is willing to act as executor. We do not find that this statement is an assertion that the Will is a pure concoction. Whether such a statement would amount to a renunciation we need not here consider. We do not think that the statement amounts to more than this. 'I have the gravest reasons for doubting if the Will was a voluntary act of the testator, while in a sound disposing state of mind ; and, before I accept or renounce I will wait until the Court decides on its genuineness.' It is quite open to an executor to take up such a position. There is direct authority for it in a case of application for letters of administration: see Sarojini Dasi v. Rajalakshmi Dasi  47 Cal. 838. We are not prepared, therefore, to hold that in this case there was a renunciation.
4. It is of course well-settled law that a Court cannot refuse an executor probate because it considers him unfit to be executor, see Hara Coomar Sircar v. Doorgamoni Dasi  21 Cal. 195 and Pran Nath Ghose v. Jadu Nath Bhattacharji  20 All. 189, unless the unfitness is of the nature of legal incapacity, that is, minority or unsoundness of mind. The District Judge is therefore wrong. The testator's wishes must be carried out.
5. The district Judge's order is, therefore, reversed and probate will be given to the appellant jointly with the respondent; costs may come out of the estate.
Madhavan Nair, J.
6. I agree.