1. This appeal has arisen out of a decision of the Additional District Judge of Dacca, dismissing an application for Letters of Administration with a copy of a will annexed. The will is said to have been executed by one Brindaban Chandra Nag, who died on the 9th Bhadro 1330 B. S., leaving a widow Kunja Mohini, a son Mohendra Hari Nag, a widowed daughter Kristo Manjuri and two grandsons Nigendra Chandra Sen and Ashuram Sen, sons of the said Kristo Manjuri.
2. In 1309 (=1903) the testator had 'executed and registered a will in which he stated that his son Mohendra was disobedient and disrespectful to him and was giving him trouble and living separately from him. Amongst other provisions the testator by that will gave his. moveablas and his money-lending business absolutely to his wife Kunja Mohini, and a life-interest to her in his immovable property which consisted of a house he had inherited from his own maternal grandfather, and further provided that on Kunja Mohini's death the said immovable property would go to Mohendra and his heirs, but if no moveables or cash money comes into the hands of Kunjo Mohini then she would get the immovable property absolutely with power to alienate a portion thereof by way of sale or gift. In 1324 (=1917) the. feelings between the testator and his son appear to have altered to some extent and the testator felt the necessity to recover his power to alienate his properties. He then executed a deed of gift revoking the will he had previously made. By this deed of gift the testator gave a 4 annas share of his properties to his son Mohendra, saying to him thus:
You the recipient of this deed, are my son. Now that you have consented to stay in our family as an obedient son to me and to bear all family expenses of me and of your mother, in view of this advantage and in consideration thereof and you having undertaken under the good advices of well wishers to act, as above, for my welfare and since you are my future heir
etc. So far so the facts are not disputed.
3. The will in controversy is alleged to have been executed by the testator on the 5th Falgoon 1327 (=17th February 1921). On the same day and at the same time two other documents were executed, two deeds of gift one in favour of Kunja Mohini and the other in favour of Nigendra Chandra Sen and Ashuram. Sen. These two documents also are disputed. By the former of these two deeds a i annas share of the immoveable property together with all moveables were given, and by the latter another four annas share of the immovable property only, to the respective donees. Each of the deeds charged the respective donees to perform the worship of the family deity for a certain period. In this will in which the gift in favour of Mohendra of 1324, and the two gifts in favour of Kunja Mohini and of Nigendra and Ashuram were recited, it was stated; that
the remaining 4 annas share of the dwelling house and the money invested in the money lending business and the conch-shell with rightward turns are at my (i. e. testator's) disposal and in my possession.
4. It recited a debt on two mortgages which had been executed by the testator in favour of one Prem Chand Sur and one Bharat Chandra Sur in respect of his 12 annas share of the dwelling house and made provisions for the payment thereof and for his own and Kunjo Mohini's sradh expenses by the sale of properties 'outside the gifts' and gave the conch shell to Nigendra and Ashuram and his heirs in succession charging them with the worship of the article but without the power to alienate the same. He appointed three persons as executors, viz. Shyam Krishna Hari Sur, Surendra Kumar Sur and Chinta Haran Dutt.
5. After the death of Brindaban, none of the executors applied for probate. It is said that Shyam Krishna Hari Sur and Surendra Kumar Sur doubted the genuineness of the Will and either refused to apply for probate or put off all requests to do so. Chinta Haran Dutt was unwilling to move except jointly with the other two executors. Mohendra in the meantime established himself firmly in the house, sold off an eight annas share thereof to one Rajaram Sur, for a consideration it is said, Rs. 4,500, and having cleared his father's debts on the mortgages by payment to the mortgagees of Rs. 3,200 appropriated the balance Rs. 13,00 for himself. This Raja-ram is a brother of the executor Surendra Kumar Sur and lives in joint mess with the latter, and the money for the purchase was, as appears upon the evidence of Rajaram, paid by their father Rajaram himself having no independent means. It may be mentioned here that Shyam Krishna Hari Sur is a maternal uncle of Surendra Kumar Sur. Mohendra went on ignoring the Will, turned Nigendra out of the room he was occupying and held possession of the rest of the properties by collection of rents and payment of taxes as if he was the owner. This led to the application which has given rise to the case, and which was an application by Nigendra for letters of administration with a copy of the Will. Mohendra objected and impugned the Will and the two deeds of gift as fabricated and in this he was supported by Ashuram who pleaded complete ignorance of any of the three documents. Of the three executors named above two, viz. Shyam Krishna Hari Sur and Surendra Kumar Sur challenged the validity of all the three documents, stated that the estate had been fully administered, as the testator's debts had been paid off by sale of an eight annas share of the house and Mohendra had taken possession of the rest of the properties, but concluded with a prayer which runs thus:
If the Will, filed in Court, is found to have been really executed by the alleged testator, and if, under the circumstances stated above, it is found fit in law to issue a probate, these parties pray that they may be entered in the category of plaintiffs in the suit and the plaintiff in the probate application may be entered in the category of defendants and these parties may be granted probate of the Will after the same has been declared to be genuine by the Court on proper evidence.
6. These two executors appeared in the proceedings throughout (including the appeal before us) cross-examined the pro-pounder's witnesses and themselves gave evidence in the case. The other executor Chinta Haran Dutt supported the Will and gave evidence as one of the attesting witnesses to it and his attitude as regards probate is expressed by himself in these words:
As I did not know whether I could apply for probate alone, I refused when the other executors refused * * * * I was willing to take probate if the other two executors were agreeable. I am still willing.
7. The Judge has dismissed the application, and hence Nigendra Chandra Sen has preferred this appeal.
8. To appreciate the . reasons which weighed with the learned Judge two passages from his judgment have to be quoted:
The question of evidence of execution too has to be considered. There is no question that it is not inherently impossible for the witnesses to have testified falsely. There are considerable discrepancies in their evidence with regard to the details of the execution of the Will. These discrepancies are not of such a nature of actually to discredit the evidence but they are undoubtedly of sufficiently serious a nature to make that evidence far from being conclusive
* * * After earnest consideration of all the circumstances I am left with the very strong impression that whereas the material adduced by the petitioner would be sufficient in the absence of serious objection to entitle the petitioner to take out letters of administration, it is not sufficient to establish the clear genuineness of the Will and the connected documents in the face of the evidence and probabilities so strong against the supposition that the Will was ever executed.
9. On the passages quoted above, two questions necessarily arise for consideration : first what are the discrepancies and how far do they affect the reliability of the evidence relating to the execution of the Will and the connected deeds and second, what are the circumstances that militate against the position that they were executed As regards the first of these questions, the witnesses who have sought to prove the Will and the two deeds of gift are the scribe Brojendra Kumar Sur, and all the attesting witnesses namely Praneswar Nandy, Haradhan Dutt, Gour Chandra Nandy, Gokul Chandra Sur, Sadhan Hari Sen and Krishnaram Nandy. Chinta Haran Dutt though not an attesting witness was present and he has also deposed to the factum of the documents having been executed in his presence. Besides the above there is, of course, also the evidence of Kunjo Mohini and of Nigendra who have spoken about the execution and of Mathura Mohan brother of Kunjo Mohini who has said that Brindaban had told him that he had executed the documents and that he had tried to find him before the execution but had failed.
10. The only comment that the Judge has made as regards the intrinsic demerit of this evidence is that the witnesses are very unsubstantial men and that it was somewhat unlikely that Brindaban would be running about in order to fetch witnesses when the documents were about to be executed. These comments do not appeal to us, because most of the witnesses are of the same social position as the testator himself, though perhaps some of them are a bit less affluent and nextly because, if the evidence is carefully read, it would not appear that there was much of a running about. The learned Judge has also referred to a conflict between the evidence of Chinta Haran and of Nigendra on the question as to whether the latter had, previous to the execution, any knowledge about the testator's intention, but this conflict in our opinion is not of any real importance. Some other points of discrepancy have been urged on behalf of the respondents, e. g. about the exact time when the writing began or when it ended, the order in which the documents were signed, and things of that sort, but they are in our opinion not enough to discredit the story which the witnesses have given as a whole.
11. Then as regards the second matter the learned Judge has categorically mentioned eight circumstances besides a few others that he has also referred to. They are the following: (a) Since Brindaban's death Mohendra and his wife have been living in the house, (b) Mohendra drove out Nigendra from the room he was previously occupying; (c) Mohendra performed the sradh and Gaya sradh of his father, (d) Mohendra has been maintaining his mother, (e) Mohendra collects rents and the executor Chinta Haran who was a tenant submitted to Mohendra's demand for enhancement of rent to the extent that he removed from the place, (f) Mohendra performs the worship of the family deity and the conch-shell and bears the expenses thereof, (g) Mohendra pays the rents and taxes, and (h) Mohendra sold off an eight annas share to redeem the mortgages.
12. We have carefully considered these circumstances, but we are unable to say that any of them or all of them taken together can lead to the inference that they make the fact of the execution of the documents so unlikely as to incline us to eject the affirmative testimony of the witnesses above mentioned. The other circumstances referred to are that although the testator lived for a long time after the date of execution he did not have these documents 'registered while it would appear that he was in the habit of registering all important documents, e.g. the will of 1309 B. S., the deed of gift of 1324, and the two mortgage deeds in favour of the Surs. It is quite likely that the testator did not like to give out so publicly the arrangement that he had finally made and therefore from the fact of non-registration no very definite inference can be drawn. The learned Judge has also referred to Nigendra's inaction while Mohendra was asserting his rights: this is not wholly inconsistent with the position that the documents were in existence because after all there was the mother Kunja Mohini living and it takes a long time to wear out the patience of a mother and to make her decide upon action to be taken against the son.
13. The learned Judge has further referred to the fact that Ashuram has given evidence against the will and has thus deposed against his own interest. This witness however seems to be very much under the influence of Mohendra and was a witness to the sale which Mohendra has made in favour of Rajaram. In addition to the circumstances noticed in the judgment of the learned Judge certain other matters have been pressed upon our attention. It has been said that after the rapprochement of 1324, there was no reason for the testator to have deprived Mohendra. We have considered the evidence bearing on this question. We are satisfied upon the evidence of Kunjo Mohini taken along with the other evidence that the reasons which led to the execution of the will in 1309 and which it was hoped would end when in 1324 the gift was made, if they had really disappeared, re-appeared in 1327 and that the recitals in the deeds of gift which were executed at the same time as the will were in main true. The recitals are these:
My son * * having come of age went to his father-in-law's house and continued to live there against my wishes. Afterwards he .having under the evil advice of bad people, come to my house and promised thenceforth to live in my house constantly and bear all expenses of my family and also my capacity for earning having diminished in consequence of old age I for the consideration of getting my maintenance from him, made a gift to him of four annas share of the properties mentioned below by a registered deed of gift on the 13th Baisakh 1324 B. S. Mohendra Hari Nag went away from my house and began to live elsewhere lest he should have to maintain me and my wife.
14. In one of these documents he said that he did not believe that Mohendra would maintain his mother and in the other that he was highly displeased with Mohendra.
15. On the whole we are of opinion that in the face of the satisfactory evidence of execution such as we have in the present cases, the circumstances pointed out by the learned Judge or by the respondents are scarcely of much avail. To use the words of Lord Watson in the case of Chotey Narain Singh v. Mt. Ratan Koer  22 Cal. 519:
in order to prevail against such evidence the improbability must be clear and. cogent, it must approach very nearly to, if it does not altogether constitute an impossibility.
16. In dealing with the positive evidence the learned Judge appears to have set before himself much too exacting a standard. He appears also to have overlooked the distinction that exists between cases where the evidence of execution of a will is not very convincing and cases where the execution has been satisfactorily proved. The Court of probate has primarily to deal with the factum of the Will and is not concerned with the intention of the testator. The question of probability or improbability assumes greater importance where the evidence is not quite convincing. But where the factum has been clearly established, a theory of improbability unless it is very near one of impossibility, cannot be allowed to prevail. We hold that the proper execution and attestation of all the three documents has been made out in the present case.
17. The question then arises as to whether the appellant should be allowed the letters he has prayed for. The executors' named have not acted in the way expected by the testator; there is strong reason to suspect that two of them are hostitle to the testator's intentions. But it is not possible to hold that there was a renunciation by any of them. Moreover the rule has long been that an executor is not necessarily concluded by a renunciation once declared and may retract his renunciation at any time before a grant of administration has passed the seal: Mc Donnell v. Pendergast 3 Hagg. Eccl. 212. In the goods of Morant  3 P. & D. 151. In the goods of Gill  3 P.& D. 113. The executors have now expressed their willingness to take out probate. We therefore think that the appellant who is a legatee cannot obtain the letters until the executors have a chance of applying for probate. The result is that this appeal will be allowed and the case will be sent back to the Court be-low so that that Court my now give the executors a short opportunity to come in and apply for probate, and should they or any of them do so the Court will proceed to grant probate to them or such of them as the case may be. Should the said opportunity be not availed of, letters of administration with a copy of the Will annexed will be issued to the appellant by the Court below. The course we direct is in accord with the decision of this Court in the case of Sarojini Dasi v. Raj Lakshmi Dasi  47 Cal. 838.
18. We do not propose to construe the Will but it should be understood that in the present proceedings no order can be made as regards properties which are outside the will.
19. The appellant is entitled to his costs in both the Courts, hearing fee in the appeal being assessed at three gold mohurs such costs to be recoverable from the objector Mohendra Hari Nag.