Asutosh Mookerjee, J.
1. This appeal is directed against the grant of Letters of Administration, with a copy of the Will annexed, to the estate of one Raj Krishna Khan who died on the 20th November 1917. He was born in 1897 and in 1914 was married to a girl twelve years old. At the time of his death, he left him surviving his mother, his minor widow and an infant brother. He was a member of the well-known family of Khans of Mankundu of the District of Hooghly and possessed properties of considerable value. He had taken to evil ways very early and was addicted to wine and women; for six or seven years before his death, he had kept a woman of the name of Sosilabala whom he did not abandon even after his marriage. On the 4th November 1917, he went to Puri for a change; the party consisted of five persons besides himself, namely, his manager, Bibhnti Bhusan Mukerjee, his mistress, Susila, another woman of the name of Puti, who apparently cooked for them, a hanger-on of the name of Binod and a sarvant Bipatram Kahar, who had been in his employ for about a year and a half, Raj Krishna had been to Puri in the year previous and had stayed in the house of one Krishna Chandra Guchika, a Panda of the temple of Jagannath. On the occasion of the second visit also, he took up his residence in a house of the Panda near the gate of the temple. On the 15th November Raj Krishna was taken ill at Puri, and it is said that as his condition did not improve he executed the disputed Will on the forenoon of the 19th November 1917. He died the afternoon of the 20th November 1917. The party returned to Calcutta on the morning of the 22nd November. On the 23rd March 1918, Rani Dasi, the mother of the testator, applied for Letters of Administration with copy of the Will annexed, for the use and benefit of her infant son, Bankim Chandra Khan. The estate was valued at Rs. 3,09,708. The application was supported by the affidavits of two of the attesting witnesses. A caveat had been already lodged on the 27th November 1917, by Surendra Krishna Mondal, the father of Bhramarbala Dasi, the widow of the deceased. After a protracted trial, Mr. Justice Chauduri name to the conclusion that the Will was genuine and had been duly made and attested. This conclusion has been sternuously assailed on behalf of the appellant and the judgment under appeal has been subjected to a searching criticism.
2. The Will, as already stated, is, alleged to have been executed on the forenoon of the 19th November 1917. There is practically no evidence as to what happened to the testator during the first ten days of his stay at Puri; but we know this much that his manager, Bibhuti Bhusan Mookerjee, who had accompained him from Calcutta on the 4th November, left Puri the very next day and returned to Calcutta. On the 15th November, Bipatram telegraphed to Bhibuti as follows: 'Babu sick; moneyless; wire money; otherwise come'. Bibhuti, on receipt of this message, forwarded Rs. 25 by money order, and next morning (15th November) wired back: 'Sent Rs. 25 by money order yesterday.' The case attempted to be made out in the evidence is that the illness of Raj Krishna did not take a favourable term, and he was attended, from the 16th November, by a medical practitioner named Haris Chandra Rao. On the evening of the 18th November, while Raj Krishna was apparently in considerable distress, he expressed an apprehension that he might not survive. On this Susila began to cry. Thereupon Raj Krishna promised to make provision for her and asked Bipatram to procure one or two demi papers so that he might make his Will, Early next morning, Susila, Puti and Binod went to take a bath in the holy tank of Markanda, Bipatram, during their absence, procured the demi paper. Raj Krishna dictated and Bipatram took down on slips of paper what Raj Krishna said. Bipatram, it must be mentioned here, did not know how to write Bengali and was probably very imperfectly acquainted with the Bengali language. He accordingly wrote down in Kaithi character what was said by his master and the result was a jargon of an extraordinary and unprecedented character. The draft was read out and was altered in one respect, namely, as regards the amount of maintenance for the wife of the testator, which was raised from Rs. 40 to Rs. 50. Bipatram then copied the contents of the pencil draft on the demi paper in think and read out the document. His master thereafter asked him to make an addition, which was written out by Bipatram on the left hand margin of the document. Bipatram then signed his name by order of his master, and made over to him the pencil draft and the demi paper. Raj Krishna tore off the draft, kept the demi paper under the pillow and asked Bipatram to go and fetch the Panda and the Doctor. On the way, he met the Charidar (an officer of the Panda) and requested him to send the Panda. He then went to the Doctor who promised to call at 11 o'clock. He next went to the Telegraph office and sent a message to the manager at Calcutta in the following terms: 'Babu seriously ill; moneyless; come immediately,' This telegram, as appears on the face of the message, was handed in at 11-30 a.m. and reached Calcutta 12-34 p.m. Bipatram has sworn, however, that be made over the paper to the Telegraph clerk actually much earlier than the time noted on the message. He then returned to the house. The Panda, the Charidar and the Doctor arrived at about 11 o'clock. Raj Krishna took out the document from under the pillow. After some conversation, the document was, at the request of Raj Krishna, read out by Bipatram, Raj Krishna then executed it, affixing his signature in two places, once under the main writing, and again under the marginal note. The document was next attested by the Panda Krishna Chundra Guchika, the Charidar Hari Bandhu Mahanti, and the Doctor Haris Chandra Rao, it was then placed inside a portmanteau. Next morning Bibhuti arrived from Calcutta. There has been some controversy as to whether Bibhnti was at Puri on the 19th November, when the Will is said to have been executed. There is no room for doubt that the Doctor is mistaken on this point, and the evidence shows conclusively that on receipt of the telegram sent on the 19th November Bibhuti started from Calcutta in the evening and arrived at Puri the next morning. When Bibhuti arrived Raj Krishna made over the Will to him. On that day a telegram was sent by Bibhuti to Calcutta in the following terms: 'Raj Krishna better; we start to morrow; send Gari.' This message was, as noted on the telegraph form, handed in at 3-5 p.m. and reached Calcutta at 4-5 p.m. The evidence shows that Raj Krishna died that afternoon, and there has been much speculation as to why this false message was sent; it is sufficient to say that the point has not been satisfactorily cleared up. Bibhuti and other members of the party left Puri on the 21st and arrived at Calcutta the next morning. On that very day the Will was taken to the Solicitor for the propounder. Such in outline is the story of the events which are alleged to have taken place at Puri between the 15th and 20th November 1917, and we have to determine whether this version is substantially true.
3. There has been some discussion at the Bar to the burden of proof in this class of cases where a Will is set up as executed under unusual circumstances. It is sufficient to recall, in this connection, the observations of Baron Parke in Baker v. Batt (1838) 2 Moo. P.C. 317 : 12 E.R. 1026 : 46 R.R. 52:
If the party upon whom the burden of the proof of any fact lies either upon his own case, where there is no conflicting testimony, or upon the balance of evidence where there is, fails to satisfy the Tribunal which is to decide of the truth of the proposition which he has to maintain, he must fail in his suit. And thus in a Court of Probate where the onus probandi most undoubtedly lies upon the party propounding the Will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the paper in question does contain the last Will and testament of the deceased, it is bound to pronounce its opinion that the instrument is rot entitled to Probate. And it may frequently happen that this may be the result of an inquiry, in cases of doubtful competence in particular, without the imputation of wilful perjury on either sides, or it may be; the Judge may not be satisfied on which side the perjury is committed, or whether it certainly exits.,
4. To the same effect are the observations of Lord Brougham in Panton v. Williams (1843) 2 Curt. 530 : 163 E.R. 498; Revcrsed (1843) 2 Notes of Cases XXI:
There is no duty cast upon the Court to strain after Probate, and to grant it where grave doubts remain wholly unremoved, and great difficulties oppose themselves to our progress, which we are quite unable to surmount. It may suffice to say that the proof eminently lies on him who sets up a Will, and further that it is more fatal than to his adversary if he leaves difficulties entirely without explanations. It is much less material that those who seek to impeach a testamentary instrument should be unable to explain certain things in their case and should be forced to admit that their argument is not in every point consistent with all the facts, than that they who seek to establish the Will should give no rational, consistent or intelligible solution of those difficulties which encumber their suppositions and obstruct the path towards the conclusion they would have us arrive at.
5. We have, consequently, the firmly established rule that the onus probandi lies in every case upon the party propounding a Will, and, in the words of Baron Parke in Barru v. Rutlin (1838) 2 Moo. P.C.480 at p. 482 : 1 Curt. 614 : 46 R.R. 123 : 12 E.R. 1089, he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. The burden of proof thus cast upon the propounder is, in general, discharged by proof of capacity and the fact of execution and when these have been proved, the Court will, under ordinary circumstances, assume from them the knowledge of and assent to the contents of the instrument by the deceased, and, without requiring further evidence, will pronounce for the Will.
6. Now, in the case before us, the Will was challenged by the caveator on two distinct grounds, namely, first, that the Will was not genuine and that what purported to be the signatures of the deceased on the document had been forged; and, secondly, that the testator had from the 18th November to a few hours before his death given himself up to about of continuous drinking and was not in a fit condition physically on the 19th November to execute the document. As regards the first of these grounds, no serious attempt was made in the Court below on the side of the caveator to assist the Court to arrive at a decision. On the other hand, the propounder produced various signatures of the deceased whose genuineness could not possibly be called in question. There is a striking resemblance between the two sets of signatures, but not that absolute identity which in many instances may furnish indications of deliberate imitation by the careful forger. Mr. Justice Chaudhri, on this part of the case, placed reliance upon the testimony of Babu Sailendra Nath Ghosh, a Solicitor of this Court, and Babu Surendranath Kundu, a Pleader of the Alipore Court, both of whom had ample opportunities of forming an opinion as regards the handwriting of Raj Krishna, and from their knowledge of his signature, stated their belief that the signatures on the Will were made by the deceased. In this Court no attempt has been made to impeach the validity of this conclusion and we accept the finding that the signatures are genuine.
7. We have next to consider the question of testamentary capacity, that is, whether the testator had, at the time, sound mind within the meaning of Section 46 of the Indian Succession Act. The requirements of the law on the subject are beyond dispute.
8. More ability to sign one's name does not necessarily imply the possession of the full mental powers requisite for a valid disposition of property. Nor is it sufficient to show that the testator was conscious when he executed the instrument. As Creaswell, J., said in Sefton v. Hopwood (1858) 1 F. & F. 578 at p 579, 'It is not sufficient in order to make a Will that a man should be able to maintain an ordinary conversation and to answer familiar and easy question s. He must have more mind than suffices for that. He must have, what the old lawyers sailed, 'a disposing mind', he must be able to dispose of his property with understanding and reason. This does not mean that he should make what other people may think a sensible Will or a reasonable Will or a kind Will.... But he must be able to understand his position; he must be able to appreciate his property, to form a judgment with respect to the parties whom he chose to benefit by it after death, and if he has capacity for that it suffices.' Sir John Nicholl observed in Marsh v. Tyrell (1828) 2 Hagg. Ecc. 84 at p. 122 : 162 E.R. 793.: 'It is a great but not an uncommon error to suppose that, because a person can understand a question put to him and can give a rational answer to such question, he is of perfect sound mind and is capable of making a Will for any purpose whatever, whereas the rule of law, and it is the rule of common sense, is far otherwise.' As Redfield, J., said in Converse v. Converse (1849) 21 Ver. 68 : 52 Am. Dec. 58 'in order to execute a valid Will, one must have sufficient active memory to re call his family and his property and to form a rational judgment in regard to the deserts of the one, and the disposition of the other with Reference to such deserts.' This was emphasised by Hannen, J., in Burdett v. Thompson (1873) 3P. & D.72n. where he modified his previous observation in Boughton v. Knight (1873) 3 P. & D. 64 : 42 L.J.P. 25 : 28 L.T. 562:
9. Whatever is the highest degree of soundness of mind, is required to make a Will. From the character of the act, it requires the consideration of a larger variety of circumstances than is required in other acts, for it involves reflection upon the claims of the several persons who, by nature or through other circumstances, may be supposed to have claims on the testator's bounty, and the power of considering these several claims and of determining in what proportions the property shall be divided amongst the claimants.' To the same effect are the observations of Erskine, J., in Harwood v. Baker (1840) 3 Moore P.C. 282 : 13 E.R. 117 : 50 R.R. 37: 'A testator must not only be able to understand that he is by his Will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his Will, be is excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too mush enfeebled to comprehend more objects than one:' Woomesh Chunder Biswas v. Rashmohini Dasi 21 C. 279 : 10 Ind. Dec. (N. S) 818 affirmed by the Judicial Committee in Rash Mohini Dasi v. Umesh Chunder 25 C. 824 (P.C.) : 25 I.A. 109: 2 C.W.N. 321 : 7 Sar. P.C.J. 298 : 13 Ind. Dec. (N.S.) 537; Susil Kumar Banerjee v. Appari Debi 27 Ind. Cas. 276 : 20 C.L.J. 501 : 19 C.W.N. 826. This is not a novel rule but is dictated by plain common sense and has been recognised for over three centuries; Marquess of Winchester's case (1599) 6 Coke 23 : 77 E.R. 287., Combe's case (1606) Moo. K.B. 760 : 72 E.R. 888, This does not imply, however, that the testator must possess these qualities of the mind in the highest decree possible, or that he must possess them in as large a measure as he may formerly have done though the mind may have been in some degree debilitated and the momory may have become in some degree enfeebled, it is sufficient that there is enough left to enable the testator clearly to discern and discreetly to judge of all those things and all those circumstences which enter into the nature of a rational, fair and just testament, Per Cockburn, C.J. in Banks v. Good-fellow (1870) 5 Q.B. 549 at p. 567 : 39 L.J.Q.B. 237;22 L.T. 813 citing with approval Den v. Voncleve (1819) 2 Southard N.J. Law 660. Now, in the present case, the caveator specifically alleged that Raj Krishna was, from the effects of drink, in such a condition on the morning of the 19th November that he was really not competent to make a testamentary disposition. The evidence negatives this theory and points to the conclusion that even if he was not wholly free from the exciting influence of drink at the time when the Will was executed the excitement, if it existed at that time, did not exist in such a degree as to prevent the testator from appreciating and understanding the testamentary act in all its bearings. This would clearly not invalidate the Will. Ayrey v. Hill (1824) 2 Add. 206 : 162 E.R. 269. and Banks v. Goodfellow (1870) 5 Q.B. 549 at p. 567 : 39 L.J.Q.B. 237;22 L.T. 813.
10 The truth is that there was no serious attempt to make out the case alleged in the caveat. The cross enamination of the witnesses was rather directed to show that the condition of the testator, due to illness, was such that be must have lost testamentary capacity, From this standpoint, the case is not wholly free from difficulty by reason, principally, of the mode of examination-in-chief and cross-examination of the two important witnesses who were examined on commission at Puri. Under Order XVI, Rule 19, Civil Procedure Code, the Panda and the Doctor, who resided at Puri, more than 200 miles distant from Calcutta, could not be summoned to attend in person and give evidence in Court, consequently, a commission had to be issued for their examination. We regret to observe that the examination-in-chief, as also the cross-examination, were conducted in a manner open to grave objection. Not only were the proceedings unduly prolonged, sometimes by an attempt to shake the credit of a witness by introduction of evidence to contradict him in violation of the provisions of Section 153 of the Indian Evidence Act, but leading questions were put in examination-in chief in contravention of other provisions of the law. It has been maintained before us that as the propounder was obliged under Section 68 of the Indian Evidence Act to call the attesting witness to the Will, such witness should be treated as a witness called by the Court and liable to be cross-examined, as a matter of right, by the party citing him. In our opinion, this contention cannot be upheld. Section 154 of the Indian Evidence Act provides that the Court may, in its discretion, permit the person who sails a witness to put any questions to him which might be put in cross-examination by the adverse party. There is, in this respect, no distinction on principle between an attesting witness whom a party is obliged to call and any other witness whom he may site of his own choice. But the Court may, in the exercise of its discretion, be more easily persuaded in the former case than the latter. In view of the provisions of the Indian Evidence Act, it is thus plain that there is no room for application, in this country, of the view taken in the cases of Bowman v. Bowman (1840-44) 2 Moo & Rob. 501; Jackson v. Thomason (1861) 1 B. & S. 745 : 1 L.Q.B. 11 : 8 Jur. (N.S.) 134 : 6 L.T. (N.S.) 104 : 10 W.R. 42 : 124 R.R.734: 121 E.R. 891 and Coles v. Coles (1866) 1 P. & D. 70 at p. 71 : 35 L.J.P. 40 : 13 L.T. 608 : 14 W.R. 290, that a necessary witness, that is, one whom a party is compelled to call and who may, therefore, be considered rather the witness of the Court than of the party, as an attesting witness to a Will Gill v. Gill (1909) P. 157 : 78 L.J.P. 60 : 100 L.T. 861 : 53 S.J. 359 : 25 T.L.R. 400 can be discredited as of right by his own side. It is, indeed, doubtful whether the principle recognised in these cases, though recently affirmed in Jones v. Jones (1908). 24 T.L.R. 839 : 52 Sol to. 699 is still good law in England. Price v. Manning (1889) 42 Ch. D. 372 : 58 L.J. Ch. 649 : 61 L.T. 537 : 37 W.R. 785; Phillips v. Davis 'Times' 13th Dec 1907. Per Deane J. But two important points must be borne in mind; first, that a witness is considered adverse when, in the opinion of the Judge, he bears a hostile animus to the party calling him and not merely when his testimony contradicts his proof; in other words, as Wilde, J., remarked in oles v. Coles (1866) 1 P. & D. 70 at p. 71 : 35 L.J.P. 40 : 13 L.T. 608 : 14 W.R. 290, a hostile witness is one who, from the manner in which he gives his evidence, shows that he is not desirous of telling the truth; and, secondly, as Lord Campbell, C.J., observed in Faulkner v. Brine (1858) 1 F. &.F.254, when a witness is treated as hostile and cross-examined by the party calling him this must be done to discredit the witness altogether and not merely to get and of part of his testimony. These principles have all been disregarded in the examination-in-chief and cross-examination of the Panda and the Doctor. The Commissioner could not exercise the discretion vested in the Court under Section 154 of the Indian Evidence Act, and the mischief due to improper cross-examination could not be remedied in the Trial Court. Consequently, very little reliance can be placed upon the assertions of the Panda and the Doctor, and this was the view adopted by Mr. Justice Chaudhuri. We are fortified in this opinion by the suspicious alteration in the affidavits sworn by these two persons; apparently, according to the affidavit as originally drawn up, they were prepared to declare that the Will was written at the dictation of the testator; these words were subsequently crossed out for some unexplained reason. Notwithstanding this conclusion, there is, however, a substantial residue of evidence adduced by the propounder, and we cannot decline to estimate its value and effect.
11. Bipatram Kahar, the servant who acted as scribe, and Susilabala, the mistress, were both examined in Court. Mr. Justice Chaudhuri has accepted both of them as witnesses of truth, though some of the statements of the servant relating to what happened after the return of the party to Calcutta may be open to doubt. There can be no question that, if their testimony is accepted as substantially correct, the case for the propounder is fully established. The respondent has, as might be expected, earnestly presned upon us that a Court of Appeal should be extremely slow to disagree with the primary Court on a question of appreciation of oral evidence, and we are not unmindful that it is always difficult for Judges who have not seen and beard the witnesses to refuse to adopt the conclusion of fact of those who have. Reference may, in this connection, be made to the observations of Sir Richard Couch in Shama Charan Kundu, v. Khettromoni Dasi 27 C. 521 (P.C.) : 27 I.A. 10 : 2 Bom. L.R. 568 : 4 C.W.N. 501 : 7 Bar. P.C.J. 638 : 14 Ind. Dec. (N.S.) 343, and of Lord Collins in Shunmugaroya Mudaliar v. Manika Mudaliar 3 Ind. Cas. 799 : 32 M. 400 : 36 I.A. 185 : 10 C.L.J. 276 : 11 Bom. L.R. 1206 : 6 M.L.T. 304 : 19 M.L.J.640 (P. C), where he quotes with approval the words of Lindley, M.R., in Coghlan v. Cumberland (1898) 1 Ch. 704 : 67 L.J. Ch. 402 : 78 L.T. 540; see also the graphic description given by Sir John Coleridge, of the difficulty of appreciating the value of oral testimony from the written record; Reg. v. Bertrand (1867) 1 P.C. 520 at p. 535 : 4 Moo. P.C. (N.S.) 460 : 36 L.J.P.C. 51 : 16 L.T. 752 : 16 W.R. 9 : 10 Cox. C.C. 618 : 16 E.R. 391. No useful purpose would be observed by an attempt to formulate a general principle applicable to all such cases where appreciation of oral testimony is concerned. The decisions reviewed in Lalliee Mahomed v. Dadabhai Jivanji Guzdar 34 Ind. Cas. 807 : 43 C. 833 at p. 849 : 23 C.L.J. 190 show that two conflicting view points have to be reconciled, namely, on the one hand the undoubted duty of the Court of Appeal to review the recorded evidence and to draw its own inferences and conclusions, and, on the other hand, the unquestionable weight which might be attached to the opinion of the Judge of the primary Court who had the advantage of seeing the witnesses and noticing their look and manner. In the present case we have carefully scrutinised the testimony of Bipatram and Susila in the light of the reaching criticisms made by Mr. Chaudhuri. We have not overlooked the position in life of the two witnesses; but, clearly, it cannot be affirmed as a general rule that a person is not trustworthy because he is in receipt of a small salary, or that a woman is not reliable as a witness because she is deficient in virtue. The statements of these two persons, so far as an opinion may be formed from the written record, have on the whole the ring of truth. Bipatram takes to benefit under the Will; Susila no doubt receives an annuity of Rs. 40 a month and there is a direction for payment of all her debts. The circumstance that she is a legatee under the Will and was with the testator on the day the Will was prepared, must no doubt, on well established principles excite to some extent the suspicion of the Court and call upon it to be vigilant and jealous in examining the evidence in support of the instrument Barry v. Butlin (1838) 2 Moo. P.C.480 at p. 482 : 1 Curt. 614 : 46 R.R. 123 : 12 E.R. 1089; Baker v. Bait (1838) 2 Moo. P.C. 317 : 12 E.R. 1026 : 46 R.R. 52; Tyrrell v. Painton (1894) P. 151 : 6 R. 510 : 70 L.T. 453 : 42 W.R. 343; Gopessur Butt v. Bissessur Butt 13 Ind. Cas. 577 : 16 C.W.N. 265 : 39 C. 245 But it cannot be overlooked that she was not present in the house when the Will was prepared under the direction of the testator. She was not in the room when the Will was executed; she has not propounded the Will and apparently has not interested herself in these proceedings; and, finally, the amount of the annuity granted to her is practically insignificant in relation to the value of the estate left by her paramour. The descriptions given by the servant and the mistress are substantially in agreement, and the minor discrepancies pressed upon our attention, only tend to show that they are not tutored witnesses. On their testimony, the Court may justly base the conclusion that Raj Krishna had testamentary capacity when the Will was prepared and executed. No doubt, the evidence shows that he was very ill and possibly his suffering was accute. But the manner in which he gave directions for the preparation of the Will shows that his mental faculties were unimpaired.
12. Mr. Chaudhuri, who has argued this appeal with great care and earnestness, has, however, very properly emphasised what he called improbabilities and suspicious circumstances and has pressed us to reject as untrustworthy the evidence adduced in support of the execution of the Will by a testator of sound disposing mind. The respondent on the other hand, has contended that the Court should not allow its decision to be affected by consideration of probabilities, when there is direst positive testimony to support the case for the propounder; and has in this connection relied upon the decisions of the Judicial Committee in Bombay Cotton Manufacturing Co. v. Motilal 29 Ind. Cas. 229 : 39 B. 386 : 42 I.A. 110 : 19 C.W.N. 617 : 17 M.L.T. 408 : 28 M.L.J. 593 : 21 C.L.J. 528 : 17 Bom. L.R. 455 : 2 L.W. 521 : (1915) M.W.N. 788 (P.C.), and Chotey Narain Singh v. Ratan Koer 22 C. 519 (P.C.) : 22 I.A. 12 : 6 Sar. P.C.J. 564 : 11 Ind. Dec. (N.S.) 346. In the first case, Sir George Farwell, said:
The Appellate Court refused to accept as conclusive the judgment of the lower Court as to the veracity of the witnesses. It is doubtless true that on appeal the whole case, including the facts, is within the jurisdiction of the Appeal Court But, generally speaking, it is undesirable to interfere with the findings of fact of the Trial Judge who sees and hears the witnesses and has an opportunity of noting their demeanour, especially in cases where the issue is simple and depends on the credit which attaches to one or other of conflicting witnesses. Nor should his pronouncement with respect; to their credibility be put aside on a mere calculation of probabilities by the Court of Appeal. In making these observations, their Lordships have no desire to restrict the discretion of the Appellate Courts in India in the consideration of evidence. They only wish to point out that, where the issue is simple and straightforward, and the only question is which set of witnesses is to be believed, the verdict of a Judge trying the case should not be lightly disregarded.
13. In the second case, Lord Watson, said: The theory of improbability remains to be considered; and the first observation which their Lordships have to make is that, in order to prevail against such evidence as has been adduced by the respondent in this case, an improbability must be clear and cogent; it must approach very nearly to, if it does not altogether constitute, an impossibility,'
14. We shall, consequently, refer to the chief circumstances which, according to the appellant, make the case for the propounder so improbable and suspicious as to justify the rejection of the positive evidence as concocted and unreliable.
15. As regards the surrounding circumstances, it is urged that as the testator might easily have secured the services of a competent lawyer at Puri (where there is a District Bar) he could not have relied upon a servant on small pay who was ignorant alike of the language and of the script; used by Bengalis, This, no doubt, is a matter for legitimate comment. But to assert that what is alleged to have been done was impossible, is a proposition which verges too closely on the absurd to be seriously entertained. On the other hand, it would not be surprising if Rajkrishna, who had gone to a strange place with a mistress, felt reluctant to call in the aid of a respectable Pleader or Mukhtear. As regards the witnesses, the persons who are alleged to have attested, are precisely the men who might be expected to do so--the Panda under whose protection, as it were, the testator had taken up his residence, the Charidar, an officer of the Pandi, the Doctor who attended him, and his own trusted servant. The omission to examine the Charidar has been justly commented upon. For, although where an instrument requiring attestation is subscribed by several witnesses, it is in general sufficient to call only one of them (Indian Evidence Act, Section 68), in the case of Wills it is desirable that all capable of being called should be examined to remove all suspicion of fraud: Macgregor v. Topham (1850) 3 H.L.C. 132 at p 155 : 10 E.R. 51; Andrew v. Mctley (1862) 12 C.B. (N.S.) 514 : 32 L.J.C.P. 128 : 133 R.R. 421 : 142 E.R. 1243; Hindson v. Kersey (1765) 4 Burn. Ecc. L. 116 at pp. 119. 120]. It has, indeed, been suggested that the Charidar has been kept back, because he did not attest the Will at the time of execution, but only affixed his signature later. This, if trus, is not of much moment; the validity of the Will is not affected thereby, provided it is established that there were two attesting witnesses as required by law. Nor can importance be attached to the failure to examine the cook and the hanger-on. Further, we are not prepared to attach any weight to the suggestion that the Will was prepared on the 20th November, after the arrival of the manager, Bibhuti Bhusan Mukerjee, from Calcutta. This rests on a very slender basis, namely, the statement of the Doctor, made with considerable hesitation, that Bibhuti was present at the time when he attested the Will. We cannot ignore the fact that this hypothesis was not put forward in the caveat, which was filed after the legal advisers of both parties had visited Puri, as they did shortly after the Will had become known in Calcutta. The attestation clause signed by the Doctor states expressly that the document was signed by the testator at 11.30 A.M. on the 19th November. Consequently, there is no room for possible contention that the Will was manufactured by Bibhuti after his arrival from Calcutta, and either after the death of the testator or so soon before his death that he must have lost all testamentary capacity by that time. We must hold, then, that the Will was prepared, executed, and attested on the forenoon of the 19th November and could not have been inspired by Bibhuti.
16. As regards the contents of the Will, we have to examine the argument that the disposition is so improbable that it could not have been made by person in the position of the testator. The disposition may be summarised as follows: (1) an annuity of Rs. 50 a month to the wife of the testator: (2) an annuity of Rs. 40 a month to his mistress and payment of all her debts, and (3) an annuity of Rs. 125 a month to his manager, Bibhuti Bhusan Mukerjee, who is, in addition, released from liability to account in respect of certain expenses incurred, and (4) bequest of the residue to his infant brother. It may be conceded that, in view of the income of the estate, the amount of the allowance fixed for the wife does look inadequate. But it must be remembered that the unhappy girl was not much of a wedded wife to the depraved young man, who, from before his marriage, had led a life of debauchery and habitually indulged in wine and women. Further, there was no one present at Puri who had the remotest interest in reducing the allowance of the wife. The annuity for the mistress as also the provision for discharge of her debts do not seem to be over liberal, when we remember the deep attachment the testator felt towards her and the length of time they had lived together; there is, at any rate, no indication that she exercised any undue influence on the young-man in this matter. The provisions made for the manager as also his release from liability to account, have naturally formed the subject of strong comment, and are unquestionably calculated to rouse suspicion. But it is plain that the manager was not at Puri when the Will was prepared and had no opportunity to influence the judgment of his master at that time. On the other hand, the evidence shows that he was a valued and trusted officer who had secured for his master the enjoyment of his share of a valuable estate after it had been freed from every incumbrance. It is not for the Court to place itself in the position of the testator and to determine whether the master had set an in ordinate value on the services of his officer; much less should we determine the amount of the sums which passed through his hands, as a question may hereafter arise as to the extent to which he has been absolved from liability. We only hold that the disposition in his favour was not so improbable as to verge to wards impossibility. We have, finally, the residuary devise in favour of the brother. It is not suggested that there was any body present at Puri who could have moved the testator in favour of his minor brother. This disposition, at any rate, must have been the act of the testator, influenced by obvious considerations of the ultimate preservation of the family estate, which would otherwise pass into the hands of the minor childless widow, liable to act under the guidance of her paternal relations. We cannot also overlook the significant fact that there was not even a small legacy in favour of the trusted servant Bipatram. Upon an examination of all the provisions of the Will, it is impossible for us to hold that they are so unnatural and unreasonable that they could not possibly have been made by a person with a sound disposing mind in the position of the testator.
17. There remains one objection which, though it looked formidable at one stage, does not require elaborate consideration. Attention was drawn to the fact that the word 'Sthabar' (immoveable property) in the, Will, looked like an interpolation, and specific evidence, it was said, must be adduced to show that the interpolation was made before execution and attestation. The alteration is admittedly not initialled as contemplated by Section 58 of the Indian Succession Act. Now it is well settled that where unattested alterations occur in a Will, the presumption of law is that such alterations were made after the execution of the Will, and, in the absence of evidence rebutting the presumption, Probate will be granted of the Will in the original state, omitting the alterations. This rule has been affirmed by the Judicial Committee Cooper v. Beckett (1844) 4 Moo P.C. 419 : 10 Jur. 931 : 59 R.R. 37 : 13 E.R. 361; Greville v. Tylee (1831) 7 Moo. P.C. 320 : 83 R.R. 57 : 13 E.R. 904 and has been subsequently followed, Sykes, In the goods of (1873) 3 P. & D. 26 : 42 L.J.P. 17 : 28 L.T. 142 : 21 W.R. 416, Adamson, In the good of (1875) 3 P. & D. 253 at p. 255 and Pandurang Hart Vaidya v. Vinayak 16 B. 652 : 8 Ind. Dec. (N.S.) 913. The present case, however, is free from difficulty; there is positive evidence that the Will, as it now stands, was read over in its entirety before the testator executed it. The presumption mentioned if, consequently, rebutted by direst proof, and this accords with the obvious intention of the testator, who wished to make a disposition of his entire estate and not die intestate in respect of the most valuable portion thereof. It may be added that the presumption may be rebutted not merely by direct proof, but also by internal evidence and by inferences drawn from the condition of the Will, Hindmarch, In the goods of (1866) 1 P. & D. 307 at p. 308 : 36 L.J.P. 24 : 15 L.T. 391, Cadge, In the goods of (1868) 1 P. & D. 543 : 37 L.J.P. 15 : 17 L.T. 484 : 16 W.R. 406, Tonge, In the goods of (1866) 66 L.T. 60. As regards the marginal note also, there is no real difficulty; it was signed by the testator, and on the evidence, had been written out before execution and attestation.
18. Finally, Mr. Chaudhuri has made almost a grievance that the manner in which the learned Trial Judge intervened with questions during the examination and cross examination of witnesses, misled him and left him under the impression that the Court was not prepared to accept the statements made by the witnesses concerned, This is obviously not a matter which can be set right on appeal, unless, indeed, it is established that the intervention of the learned Judge with questions with a view to clear up obscurities to fill up lacunac, to supplement deficiencies, and generally to elicit the truth, exceeded the bounds of even the comprehensive provisions of Section 165 of the Indian Evidence Act and so impeded the legitimate work of Counsel engaged in the cause as to amount to a mis-trial, leading to failure of justice. This has not been, and, on the record as it stands, cannot be, urged. But it is manifest that during the progress of the trial, it is not wise for Counsel to anticipate the final opinion of the Judge even as to the veracity of a witness which may have to be jugded, not solely from his individual statements, but from his testimony taken in conjunction with all the other facts brought out in the Court of litigation.
19. After the most anxious consideration we have been able to give to this case, we have arrived at the conclusion that Mr. Justice Chauduri has rightly pronounced in favour of the Will and that the appeal must consequently be dismissed.
20. As regards the costs of the appeal, we direct that the costs of both the parties be paid out of the estate. The case is by no means free from difficulty and, in view of the course which the trial took in the Court below, we cannot hold that the appeal was not justified
Ernest Fletcher, J.
21. I agree.