1. This appeal arises out of an application for Letters of Administration with the Will annexed of one Mati Moyi Debya. The Will purported to give away all the properties in the possession of the testatrix, being her own self-acquired property as well as the property inherited by her from her husband. At first the application was filed before the District Delegate and upon an objection being made by one Sarba Sundari, the case was sent up to the District Court and taken up as a contested case. In the meantime the Chairman of the Debhatta Municipality is said to have made a report to the Sub-Divisional Officer, Babu A.N. Sen, that the Will of which Probate had been asked for by Rama Nath Chakraburty was a forged one. Upon that information the Sub-Divisional Officer took some proceeding which he headed as confidential and examined certain witnesses, and then sent the record to the Collector asking him to oppose the grant of the Probate. It is not quite clear under what law this proceeding was taken. It appears that immediately upon the death of the deceased, the petitioner removed certain moveable property to his house and upon that Sarba Sundari lodged a complaint at the thana about this matter and he was arrested and taken to the thana. It is a question whether at the thana he did not make any mention of the Will. The Court, however, under these circumstances allowed Government to put in a caveat. There were three objectors, Sarba Sundari, the Government and a third person' named Rama Nath Banerjee, who claimed under a Tfobala from the brothers of the deceased. As the Government took up the case, the caveators did not take any steps in opposition of the Will. Witnesses were examined on behalf of the petitioner and also on behalf of the Government and the lower Court has held that the Will was a spurious one and has, therefore, refused to grant Letters of Administration.
2. On appeal it is contended that the Government has no locus standi to oppose the grant in this case and, secondly, that on the evidence taken as a whole even if the evidence adduced on behalf of the Government be taken into consideration, the Will should be taken as proved. As regards the first contention, we think regard being had to the statement in paragraph 5 of the petition for Letters of Administration, 'The deceased left no (near or distant) relative as her heir', the Government may have been led into thinking that this was really a case in which there were no heirs and although the Collector might have made an inquiry as to the existence or non-existence of heirs so as to attract the right by escheat before launching the Government into an expensive litigation, we cannot say that at the inception of the proceeding the Government had no locus standi. Although we decide this question of the locus standi of the Government to oppose the application in favour of the Government at its inception, we think that as soon as it appeared that there were heirs in existence who would inherit, the Government ought to have retired.
3. It appears from the evidence that the deceased left two brothers, who upon the evidence would be the legal heirs of her pre-deceased son whom she had succeeded. However, the first question raised in appeal is so far decided in favour of the Government.
4. In regard to the second question we think that on the whole we cannot agree with the decision of the learned Judge. It appears from the evidence that this woman was Jiving witji the petitioner and if any body was more near to her than anyone else it was the petitioner and it was, therefore, natural that she should have liked to have the properties of which he had been the manager after her husband's death to go fo him. The Will is proved by the petitioner, Dma Nath Chakraburty, the writer of the Will, and Khetra Nath Chakraburty, one of the attesting witnesses to the Will, and one of the witnesses examined on behalf of the Government. We find that Prau Krishna Hhattacharjee as a witness said: Rama Nath said when I saw him at the thana that he had seized her property as she had executed a Will in his favour Gokul, the Head Constable, was present then. He wanted to see the Will. Rama Nath said he had a Will'. Therefore the case of the existence of the Will was made out as soon as he was arrested, and that was only a few days after the death of Mati Moyi. Then the Head Constable Gokul was examined and he said: 1 brought him up to the thana at Debhatta. There he told me he dad a Will which was in the custody of Paresh Babu, a Pleader. I then asked him who was the scribe and who were the attesting witnesses to the Will. He could not give me their names.' Then we have the depositions of the Doctor Bhupendra Bhusan Biswas who treated the deceased It appears that this man was examined by the Deputy Magistrate in his confidential proceeding. In his depositions he is said to have stated that he did not sign any Will of Mati Moyi as an attesting witness or otherwise. Being examined by the Court, however, he proved the Will and as regards his depositions made before the Deputy Magistrate he said: The Sub-Divisional Officer asked me if I had attested a Will forged by Rama Nath said to have been executed by Mati Moyi. I replied 'no'. I gave my answer in Bengali.' Considering the whole of the evidence of this witness wo think that his statements should be believed and that his evidence must have been imperfectly recorded at the summary and confidential proceeding by the Deputy Magistrate. In any case we find that the execution of the Will is proved by this witness and that the zemindari's naib, Bharat Chandra Mukerjee who appeared as a witness on behalf of the Government must have had sonjo hand in the matter of the opposition to the Will. The petitioner says that this man had demanded certain sums of money as a consideration for supporting the Will and that being refused, he turned against him and brought about this trouble. We do not think that this is very improbable. Both the witnesses Pran Krishna and the Head Constable Gokul said that the petitioner had spoken to them of the Will, after his arrest, at the outchery in which Bharat lived and yet Bharat said that he did not hear him say to the Head Constable, when he was arrested.at the rent office, that he had a Will executed by Mati Moyi in his possession.
5. It is not within the scope of this proceeding to say whether or not the petitioner is entitled to the property covered by the Will. This is a matter which the party that may be entitled will see to. But so far as this proceeding is concerned, we think that the Will is proved and we direct that Letters of Administration with the Will annexed be granted to the petitioner.
6. The order of the Court below is set aside.
7. The petitioner is entitled to his costs in this Court, hearing-fee four gold mohurs.