B.N. Maitra, J.
1. The petitioner made an application for revocation of the probate. His allegation is that his father, Panchkari, died on the 22nd Oct., 1940, leaving the petitioner as son of his first predeceased wife, opposite party No. 2 Nripanandini as his widow and some children by Ms second wife. Panchkari inherited the premises No. 8/1, Ghosepara Lane, from his father. He had another house at Mahinath para Lane and 18 bighas of arable land at Garbhawanipur within the Police Station Amta. From one month before his death he was lying bed-ridden and at last on 22-10-1940 he expired. One week before his father's death the opposite party No. 1 in collusion with opposite party No. 2 took advantage of the bad state of health of his father and with a view to depriving him of the property, obtained Panchkari's thumb-impressions on the alleged fraudulent will said to have been executed on 20-10-1940. Actually that will was obtained by exercising undue influence and Panchkari had no knowledge of its contents. Opposite party No. 1 Bhabesh used to manage Panchkari's affairs. A few days before Panchkari's death, Bhabesh obtained petitioner's signature on a blank piece of paper on the false representation that the same would be used for settlement of some properties. There was no citation of that probate case on him. The land at Garbhawanipur was the petitioner's personal property. On the 26th April, 1957, he first came to know of alleged fraudulent and forged will in course of a domestic quarrel.
2. Opposite party Nos. 1-3 denied the petitioner's allegations. The defence is that the will was duly executed and attested. Panchkari executed the same voluntarily and with full knowledge of its contents. He had testamentary capacity to execute the same. The petitioner put his thumb impression on the will as an attesting witness.
3. The learned Subordinate Judge rejected the petitioner's contention and dismissed the suit with costs. Hence this appeal by the petitioner.
4. The learned Advocate appearing on behalf of the appellant has stated that the learned Subordinate Judge has referred to certified copies, Exts. B and B (1), and stated that in view of the contents of those documents there would be a presumption of service of citation. In fact, that is not at all a presumption of law. Reference has been made to the case of Promode Kumar Roy v. Sephalika Dutta reported in : AIR1957Cal631 to show that the court can go into the question of genuineness of the will. The court has to see whether the will was a genuine document and if the court's conscience has been satisfied. Reference has also been made to the case of (1971) 75 Cal WN 63 at page 66. It has been contended that the suspicious circumstances have not been removed. It is true that by executing the document (Ext. D) the petitioner stated that in fact a probate had been granted, but such statement has no value in the eye of law because in the case of Brinda Chowdhrain v. Radhica Chowdhrain reported in (1885) ILR 11 Cal 492 at page 494 it has been stated that mere notice or knowledge of the probate proceeding before its grant is not sufficient to refuse the petitioner's application for revocation of the grant. The case reported in (1941) 45 Cal WN 44 : (AIR 1941 Cal 353) (Manindra Chandra Roy Chowdhury v. Gopi Ballav Sen) has also been cited. It has been contended that the alleged scribe or attesting witnesses have not been examined. The beneficiaries are also the widow and children of Panchkari's second wife. By executing the alleged will, which was obtained by practising fraud and undue influence, the petitioner has been deprived of a share in the ancestral property. So it is a fit case for revoking the grant of probate and there was no citation on him.
5. The learned Advocate appearing on behalf of the respondents has joined issue and stated that the will was a genuine document and there are no suspicious circumstances.
6. The date of alleged execution of the will is 22-10-1940 and the probate was granted on the 15th July, 1941. The petitioner had knowledge of the grant of the probate as will appear from his own document (Ext. D) executed by him in favour of Rash Behari Bhattacharya, O.P.W. 3, on 29-9-1954, that is, about 13 years after the probate was granted. At once it strikes one's mind, if there is a taint of fraud or collusion, why the petitioner avoided the court and failed to apply for revocation of the probate so long. There is no explanation why after making such statement in 1954 about the grant of probate, he waited till 1959,when the present case was filed. This unexplained delay is fatal to this case and proves the hollowness of the petitioner's allegations.
7. The learned Subordinate Judge referred to the illustration (a) of Section 114 of the Evidence Act and considered the entries in the certified copies, Exts. B and B (1). He was justified in doing so because the petitioner himself stated in the aforesaid document (Ext. D) executed on 29-9-1954 that his father had executed a will and a probate had been granted, vide the para 11 of that document. There is no statement therein that document is vitiated by fraud or collusion or undue influence. So the presumption of service of citation can also be inferred by the court on account of the statement made in the document (Ext. D).
8. Then about the case of Brinda v. Radhica (1885 ILR 11 Cal 492) (supra). That case has no application to the facts of the present one because the petitioner had knowledge of the probate after it had been granted by the court. In this case the petitioner himself admitted in the document (Ext. D) about the grant of the probate. There is an admission of the execution of the will and of the grant of the probate in exhibit D. In the Supreme Court Cases reported in : 1SCR606 , : 1SCR967 , : 2SCR124 and in : 2SCR671 it has been stated that an admission made by a party is substantive evidence of the fact admitted therein.
9. Let us now consider what the petitioner has stated about the alleged admission in that document (Ext. D). It will appear from the decision of Hidayatullah, J., reported in : 1SCR773 and of Sarkaria, J., reported in : AIR1979SC861 that an admission, though not conclusive is decisive on the point unless it is successfully withdrawn or proved to be erroneous. P.W. 1, Bibhuti, is the petitioner. He has admitted in his cross-examination that he sold the property to Rash Behari Bhattacharya on the 29th Sept., 1954, and he referred to the will in that kobala. After making the statement he cannot turn round and say at present that his father did not execute the will in question or it was obtained by fraud and undue influence. His admission has not been withdrawn, or proved to be erroneous.
10. In the latest case of Sm. Indu Bala Bose v. Manindra Chandra Bose, reported in : 1SCR1188 it has been stated that where there are no suspicious circumstances, the fact that the scribe was not called or no evidence was offered as to who called the writer of the will, is of no importance.
11. We generally agree with the observations made by the learned Subordinate Judge and find that there are no suspicious circumstances. Two houses and a land are the subject matter of the disputed will. Petitioner sold one of those houses and the land as well. That shows that the provisions of that will were acted upon.
12. P.W. 1, Bibhuti, says that the will is a forged one. But he is constrained to admit that his thumb-impression appears in the disputed will. There is no manner of doubt that he also is an attesting witness to its execution.
13. P.W. 2, Nandalal Halder, says that Panchakari, who was seriously ill, lost power of speaking 7 days before his death. But he is a man of straw and his evidence cannot be believed.
14. O.P.W. 1, Satya Charan Mayur, is an attesting witness and is a graduate of the University of Calcutta. He says that the will was written by Tarapada Karati. It was read over to panchkari by Santosh Panja, the executor understood the contents thereof and then he put his thumb impression therein. He is corroborated by O.P.W. 2, Bhabesh, who is the opposite party No. 1. We believe their statements.
15. We, therefore, find that the court's conscience has been satisfied. The Will is a genuine document and it was not obtained by practising fraud or undue influence. So the prayer for revoking the grant was rightly refused.
16. The appeal is dismissed. There will be no order as to costs.