D.N. Mitter, J.
1. This is an appeal on behalf of the plaintiff appearing through his next friend and mother Srimati Lilabati Bose against the decision of the Subordinate Judge at Alipore who decreed the suit for partition in part. It appears that one Krishnadas Basu Mallik died possessed of considerable properties which are the subject-matter of the suit for partition in which this appeal arises. Before his death which happened in 1906 he is alleged to have executed a will in the year 1902 on the 19 th October. Krishnadas died leaving him surviving two sons Peary Mohan Basu Mallik and Jogendra Nath Basu Mallik. Peary Mohan had six sons, the eldest being Mohendra. Jogendra had four sons one of whom Provash predeceased him. Provash died in 1929 and Jogendra died on 21st January 1930. Provash left behind him a son Ranjit who is the plaintiff in the suit. The defendants to the suit are Subodh Chandra Basu Mallik, Probodh Chandra Basu Mallik and Nirmal Chandra Basra Mallik, the other three sons of Jogendra. The plaint contains a long schedule lists of properties sought to be partitioned. The plaintiff sought for a declaration in respect of the one-fourth share in the properties in suit and asked for partition of the same by distinct demarcation. There was also a prayer for accounts. The suit was originally framed as one for partition pure and simple but it subsequently transpired that the plaintiff was not in possession of his share and ad valorem court-fees were paid. There was some dispute in the Court below with regard to the value of the properties. The Subordinate Judge came to the conclusion that the value of the properties did not amount to Rs. 24,100 as alleged in the plaint but was only Rs. 12,000, We are not at present concerned with this question. The substantial defence to the suit was that certain properties which are described specifically in the schedule to the will which is alleged to have been executed by Krishnadas, were debuttar properties and should be excluded from partition. The Subordinate Judge has given effect to this contention of the defendants and has passed a decree which, in so far as is material, is in the following form:
It is ordered and decreed that the suit is decreed in part preliminarily. Plaintiffs' alleged title to 1/4th share of the properties described in the schedule of the plaint excepting properties included in Sch. kha of the will, which has been marked Ex. B in this case, is declared. Let a Commissioner be appointed to effect partition of the property. He should ascertain which portion of the property described in the schedule of the plaint is included in Sch. kha of the will, marked as Ex. B, and effect partition of the properties of the plaint which are not included in Sch. kha of the will. Question of costs will be considered at the time of the final decree. Defendants are directed to submit account books since 21st January 1930 of the properties which are liable to be partitioned within one month.
2. It is against this decree that the present appeal has been brought by the plaintiff against that part of the decision of the Subordinate Judge which excludes the properties of Sch. kha to the will Ex. B. (see p. 2 of the second part of the paper book) and it has been contended before us on behalf of the appellant that the Subordinate Judge was clearly in error in excluding the properties of Sch. ka to the will, seeing that the will was not duly proved as no probate was taken of the same will, or rather as the probate in respect of the said will was revoked so far back as in the year 1915 and it has been contended that in the absence of a probate no title as legatee could be established having regard to the provisions of Section 213, Succession Act. It is further contended in the alternative that even if the will could be proved in the present case the evidence is wholly insufficient to show that the will which is said to have been executed by Krishnadas Basu Mallik was duly executed and attested by him. We have to consider these two contentions separately. The first point which is raised in connexion with this question is that the probate of the will having been revoked title to the so-called debuttar has not been established. In connexion with this the following facts which are relevant require to be stated. It appears that shortly after the death of Krishnadas an application was made by Jogendra, father of defendants 1 to 3, grandfather of the plaintiffs, for probate of the said will; and an ex parte order granting probate was made. But the probate was not actually issued for at the instance of Mahendra, the son of Peary, another son of Krishnadas, the probate was subsequently revoked in the circumstances which will be presently mentioned. Mahendra made an application in which he stated that no citation was served upon him and that he had no notice or information of the application for probate at the time when the said application was kept pending. He further stated that the alleged will of Krishnadas was never executed by Krishnadas Basu Mallik, and that the said Krishnadas Basu Mallik was about 107 years of age when the will is alleged to have been executed that he had lost his vision, that half of his body was paralysed and that mentally he was an imbecile and at the time of the alleged will he had no testamentary capacity. In answer to this petition Jogendra put in an objection which has been marked as Ex. H and printed in the second part of the paper book. It is very important to reproduce here the exact terms of the said petition. After stating that the notice had been served on Jogendra directing him to show cause why an order for the issue of probate to him of the will of his father Krishnadas Basu Mallik passed by the Subordinate Judge of 24-Parganas should not be revoked. Jogendra proceeded to state as follows:
That the said will is dated so far back as 1309 B.S. and it would be difficult for your petitioner under existing circumstances now to prove the will. The applicant for revocation has agreed to give up his claim for costs of this proceeding; your petitioner considers it expedient that the order for the grant of probate be revoked.
3. On this petition being put in, the following order was made by Mr. A.H. Cuming, the learned District Judge, as he then was, on 11th November 1915:
The propounder of the will appears and puts in a petition stating that he has no objection to the grant of probate being revoked. The caveator does not press for costs.
4. Then on 23rd November 1915 the following order was passed: 'Probate granted to Jogendra Nath Basu Malik is revoked '. It is contended in these circumstances and, having regard to Section 213, Succession Act, that the probate of the will having been revoked no title as legatee has vested in Sriman Madhusudhan Thakoor in respect of the 229 bighas of lands of Sob.. kha of the will. Section 213, in so far as it is material, is in the following terms:
No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in British India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
5. In Clause (2) of the said section it is stated that this section shall only apply in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the class specified in Section 57. It may be mentioned here that this Section 213, Succession Act (1925), corresponds to Section 187, Succession Act (1865). It becomes necessary to mention this in view of the fact that some of the decisions on which reliance has been placed refer to corresponding sections of the Succession Act (1865). This contention was raised before by the Subordinate Judge, but he has repelled this contention in view of a decision of the Madras High Court in Ganshamdoss Narayandoss v. Saraswati Bai : AIR1925Mad861 in which the view was taken that even without obtaining probate of a will it is possible to prove the title of a legatee. The Subordinate Judge states this:
There is no finding that the will is a fabricated deed. I think that defendant can point out a will, though not probated, to defeat plaintiff's claim for share: AIR 1925 Mad 110.
6. The Subordinate Judge has given a wrong page number. It ought to be 861 and not 110. It appears that this view taken by the High Court of Madras is no longer good law in view of the Pull Bench decision of that Court in Ganshamdoss Narayandoss v. Gulab Bi Bai AIR 1927 Mad 1054. The question which was referred to the Full Bench of the Madras High Court was framed in the following terms:
A defendant resisting a claim made by the plaintiff as heir at law cannot rely in defence on a will executed in his favour at Madras in respect of property situate in Madras, when the will is not probated and no letters of administration with the will annexed have been granted.
7. In answering this question the learned Judges refer to the provisions of Section 187, Succession Act, 1865 and says this:
The answer therefore, to the question referred to us must be that a defendant can rely on an unprobated will, provided that he does not do so in order to establish a right under the will.
8. This was the answer which was given by the officiating Chief Justice and was agreed to by the other learned Judges. It has been strenuously contended by Mr. Satindra Nath Mukherjee who appears for the respondents that the will is admissible in this case for the purpose of proving that there was a statement in the will that these properties are debuttar. That is not sufficient. In order to establish prima facie title to these properties belonging to the Idol Thakur and dedicated for the purpose of Durga Puja, Kali Puja, and other pujas... probate of the will must according to this Pull Bench decision be taken. The same view has been taken by this Court in Basanta Kumar Chakravarty v. Gopal Chunder Das AIR 1915 Cal 207 by D. Chatterjee and N.B. Chatterjee, JJ. In this case it appears it has been laid down that the case reported in Surbomungola Dabee v. Mohendro Nath (1879) 4 Cal 508 at p. 509 is an authority for holding that the will of which probate has not been taken may be proved in a proceeding other than a proceeding under the Probate Act; but a will uncovered by a probate or letters of administration cannot prove that anybody named therein has title to the estate of the testator. The question as to whether the debuttar can be proved on the basis of a will not covered by probate is the crucial point in the present case. In the present case title to the debuttar is founded on the will and it can only be established by the probate or letters of administration to the will annexed. The learned Judges formulate the true legal position in Basanta Kumar's case Basanta Kumar Chakravarty v. Gopal Chunder Das AIR 1915 Cal 207 in the following passage:
Section 187, Succession Act, applies to the wills of Hindus and no title under the will can be established in any Court of justice unless a probate or letters of administration with the will annexed has been granted by a competent Court. The will therefore uncovered as it is by a probate or letters of administration cannot prove that, anybody named therein has title to the estate of the testator.
9. Having regard to these authorities it is clear that the title to debuttar cannot be established by recitals in the will. In this case probate was applied for and was refused and the position is that no probate had been granted. This alone would have been sufficient to dispose of the appeal and would have been sufficient to entitle us to hold that debuttar had not been established and there should be partition of the properties mentioned in the schedule to the plaint and that there should be a preliminary decree for partition mentioned in the plaint. But the evidence as to the attestation and execution of the will has been discussed before us on behalf of the appellant and the respondent and we accordingly propose to deal with the question of the proof of the will. It is a very significant fact that in the year 1915 Jogendra, who was appointed as an executor to the management of the debuttar properties as shebait, made an important statement in Ex. H to which reference has been already made. It was said by Jogendra that at that time it would be difficult for the petitioner under the existing circumstances to prove the will; and it seems to us that what was difficult to prove in 1915 becomes more difficult to prove 17 years after when this present suit has been instituted. We have to approach this part of the case bearing in mind what was said by Jogendra in Ex. H. It has been suggested by Mr. Satindra Nath Mukherjee who appears for the respondents that this was really a collusive affair intended to defeat the rights of the debuttar and this was made in collusion with Mohendra with the express intention that these properties would be shared both by Mohendra and Jogendra. There seems to be no evidence on the point in the present case. We will, however, examine the evidence of two of the witnesses who are alive in the present day. One is Aghore Nath Chakravarty who is said to be a priest of the family. His evidence is to be found printed at p. 57 of the first part of the paper book and his name is shown as an attesting witness to the will in question. He states as follows;
A will being shown Krishnadas signed in my presence and in presence of Digambar, Bansi Dutta and others. Krishnadas saw me and other witnesses signing the will Ex. B. Krishnadas was sane and of sound mind when he executed the will. He understood what he did. He asked his son Jogendra to read the will in presence of the executant and all other persons present.
10. Then in cross-examination with reference to the statement made by Mohendra in the petition that he was about 107 years in age this witness says:
I cannot say whether he was aged 107 years when he died. He had two sons, Jogendra and Peary Mohan. Mohendra was son of Peary Mohan. Mohendra and Peary are dead. Peary's brain was somewhat deranged.
11. The witness then goes on to state further:
The will was written before I was there. I do not know on how many pages Krishnadas put his signature. After Krishnadas, Barada and then Dwarik, and then I signed the will. The draft of the will was shown to me about a month before execution of the will. Second will was executed after two years after the first will. Jogen Babu was present when second will was executed after two years after the first will. It was written before. Half portion of the body was paralytic (ardhanga bath) for ten or twelve years before the will.
12. It may be that the testator was as old as 107 years, but there is a body of evidence to show that he was about 80 or 85 years of age and that he was in a paralytic state. The will is a pretty long will. It contains the details of all properties and it is difficult to imagine that the testator could have comprehended at that age of the disposition that he was making by this will. There seems to be inherent improbability and unnaturalness in it seeing that the bulk of the property about 229 bighas was given for deba sheba. Krishnadas surely had a large family and one has to imagine that a person in the ordinary course of events must be regarded to be just before he is generous. It is not likely that he should give 229 bighas of property to the debuttar as against 303 bighas contained in the other two schedules. Mr. Mukherji has tried to explain this by saying that the more valuable properties were contained in the two other schedules and also the number of bighas with regard to the secular property is less than the number of bighas allotted to deba sheba. As a matter of fact the secular property was much larger in value. It may be so. Still it seems quite unlikely that he should have given about 229 bighas for deba sheba seeing that the substantial portion which he died possessed of was not commensurate with it. The other witness is Hem Chandra Dutt who was a very young man at the time of the execution of the will. He goes to the length of saying that Krishnadas himself drafted the will in 1915 and he died in 1313 B.S. The witness was at that time a teacher in a school, and was getting a pay of Rs. 10 a month. It is difficult to believe that Krishnadas, old as he was, should have drafted the will himself. The draft had not been produced and the evidence with regard to attestation and execution of the will must be subjected to very great scrutiny; having regard to the statement made by Jogendra in his petition it is not possible to prove the execution and attestation of the will in 1915. These witnesses were surely available at that time when no endeavour was made by Jogendra to examine them and to have the will proved.
13. It is difficult to ascribe any motive as was suggested by Mr. Mukherjee in the course of the argument that it was intended to defraud the idol of its rights. We can say this: that the evidence is not such as to satisfy the conscience of this Court that this will was the will of a capable and a free testator; nor can we say that it has been proved to our satisfaction that it was duly executed or attested by him having regard to the evidence of two witnesses which we have discussed. If the will was executed by Krishnadas and it was his intention that these properties should be debuttar, better evidence should have been forthcoming. Indeed his subsequent conduct after the death of Krishnadas many years ago would support the theory that the will was the will of Krishnadas. On the other hand there is no scrap of documentary evidence which would show that these properties were debuttar properties except certain dakhilas which are of a very recent year, namely 1931, and which would show that some of these properties were treated as debuttar. Between the death of Krishnadas in 1906 and 1931 there is hardly any documentary evidence to show that these properties were dedicated for deba sheba. With regard to the oral evidence of the witnesses it is important to note that the pujas were carried on even before the execution of the will and during the lifetime of Krishnadas.
14. This is a circumstance which does not take us very far ahead in this suggestion. Besides, we do not, after all, find any injustice done in this case by the view we take of the matter, for it is quite permissible to a member of a Hindu family for changing the debuttar character of the (sic) will by consensus of the family of the debuttar is a family debuttar as meant for carrying on family worships. Having regard to the considerations set forth above we think that the judgment of the Subordinate Judge in this part of the case cannot be supported. There should be a preliminary decree for partition in respect of the properties mentioned in the schedule to the plaint. We vary the decree of the Subordinate Judge and direct that a preliminary decree for partition in respect of the properties mentioned in the schedule to the plaint be made and a Commissioner appointed to effect partition. The question of Commissioner's costs will be considered at the final hearing. The rest of the decree of the Subordinate Judge with regard to accounts will stand. The appellants are entitled to their costs in this appeal, but they are not entitled to get their share of costs for printing, translating, editing and examining the khatians printed from pp. 35-36 to pp. 198-199 both pages inclusive. The hearing fee is assessed at five gold mohurs. The application for refund of court-fees will be dealt with separately.
S.K. Ghose, J.
15. I agree.