1. This is art appeal against an order of the District Judge of Rajshahya revoking the Probate of the Will of one Ram Lal Ghosh, which was granted to his two younger brothers, the appellant Shyam Lal Ghosh, and Suk Lal Ghosh, since deceased (the father of the other appellants), so far back as the 20th March 1878.
2. It appears that Ram Lal, Shyam Lal and Suk Lal were three brothers; members of a joint Hindu family governed by the Dayabhaga School of Hindu Law. They had a first cousin Basanta Kumar, who was also a member of the joint family. They had ancestral family dwelling house at Basuarih in the District of Jessore. They also had a residence at Rampore Boalia, the headquarters of the Rajshahye District, where Basanta Kumar was a mukhtear, Shyam Lal was a revenue agent and Suk Lal served as a treasurer in the local Collectorate. Ram Lal Ghosh, the eldest, did not do any business at Rampore Boalia. The evidence is conflicting as to whether he ordinarily used to reside at Rampore Boalia or at Basuarih, but there is no dispute that he lived at Basuarih for at least a year and a half before his death.
3. The family has substantial landed properties in the Rajshahye District, and some properties of small value in the Jessore District, the income of which in Ram Lal's share was Rs. 39 a year. They had also some money-lending business.
4. Ram Lal is said to have executed the Will at the ancestral residence at Basuarih in the District of Jessore. At the time he was 39 years of age, and had his wife Haramoni and three daughters Kadambini, Rameswari and Parameswari. He had no son. The eldest daughter Kadambini was then about 13 years of age and was married, and the other two were about 6 and 3 years of age respectively and were unmarried.
5. The Will gave away the whole of the properties in the Rajshahye District which constituted the bulk of the estate to the two brothers Shyam Lal and Suk Lal absolutely to the exclusion of his widow and daughters. So far as the widow was concerned, the Will recited that although the brothers had 'promised to give her maintenance and help her in the performance of meritorious acts, it was necessary to make a separate provision for her maintenance and for the expenses for her performing meritorious acts (so that in case there is disagreement between her and my brothers' family there may not be trouble to her)' and directed that she would get the income of his share of the ancestral and self-acquired properties in the District of Jessore, and on her death the daughters would continue to get the same, but that 'so long as any of my said two brothers or any in the line of their sons is alive, my wife or my daughters or any other future heirs of mine besides getting the annual income of the said properties will not be entitled to bring the said properties into their possession or transfer them in any way.' The widow was to enjoy and possess the moveable properties in the share of Ram Lal but after her death they would come to the possession and enjoyment of the two brothers. She was to have the right of residence with the daughters in the west facing building without any power of alienation but on her death, the same would go to the brothers and their successors.
6. The Will then provides that the daughters would get a legacy of Rs. 50 each and the widow would also get Rs. 50 for performing meritorious acts' out of the money-lending business in the name of the testator and in the joint names of the testator and his brothers in the Districts of Rajshahye and Jessore, and they would not be liable for the debts due by the testator and his brothers. The brothers would be entitled to the remaining amount of the money-lending business due to the share of the testator, and the widow and daughters would not be entitled to claim any portion thereof.
7. With regard to the marriage of the two unmarried daughters, it is stated in the Will that 'the brothers had promised to marry my said two daughters to suitable bridegrooms belonging to the same social rank as ours at suitable expenses and giving suitable gifts by way of ornaments and bedding, etc., to the bridegrooms. Particularly the eldest daughter was married by the said two brothers, therefore I do not make any separate provision for the marriage of my said two daughters.' The two brothers were appointed executors of the Will.
8. The Will is said to have been executed on the 26th July 1876, and Ram Lal died on the 6th of December of the same year at Basuarih. Application for Probate was made by Shyam Lal and Suk Lal for Probate of the Will on the 14th May 1877 in the Court of the District Judge at Rajshahye. No mention was made in the application of Ram Lal having left a widow or daughters, nor was any, citation issued upon them. No one appeared to contest the Will. Two of the attesting witnesses to the Will, viz., Parbati Charan Datta and Ram Gropal Ghosh were examined to prove the Will and Probate was granted to Shyam Lal and Suk Lal on the 20th March 1878.
9. It appears that shortly after Ram Lal's death, the brothers applied for registration of their names in the Collectorate under Land Registration Act, and their application was allowed on the 15th July after Probate was obtained by them. Ram Lal's widow Haramoni and the daughters continued to live jointly with Shyam Lal and Suk Lal's family. Kadambini, the eldest daughter, became a widow about 13 months after Ram Lal's death.
10. On the 24th July 1881 Haramoni for the first time made an application to the District Judge of Jessore for a Succession Certificate to recover certain debts alleged to be due to her husband, the aggregate amount whereof was Rs. 91.
11. The application was opposed by Shyam Lal and Suk Lal who set up the Probate obtained by them, and Haramoni withdrew her application.
12. The second daughter Rameswari was married to one Durgadas Bose in 1883, and on the 29th April 1884 Haramoni applied for revocation of Probate in the Court of the District Judge of Rajshahye. The case came on for hearing on the 1st August 1884, and after one witness bad been examined on her side the hearing was adjourned and on the 26th August 1884 a petition was put in by Haramoni admitting the genuineness of the Will, and the Court disallowed the application for revocation accordingly. On the previous day, however, two ekrars were executed one by Haramoni in favour of Shyam Lal and Suk Lal and the other by the latter in favour of Haramoni, under which Shyam Lal and Suk Lal agreed to pay Rs. 425 a year to Haramoni in addition to the income of the Jessore properties for her life and on her death to pay her daughters and their heirs Rs. 300 a year. There were some other provisions which will be dealt with later on.
13. Haramoni thenceforth lived separately from her brothers-in-laws' family in a portion of the dwelling house at Basuarih. There was some further litigation between Haramoni and her brothers-in-law subsequently in the District of Jessore which will be referred to later on.
14. The youngest daughter Parameswari was married to one Brojendra in April 1886. Haramoni died on the 3rd August 1899 and the present application for revocation of the Probate was made by Rameswari and Parameswari on the 27th April 1910, on the ground that the Will was forged, that there was concealment of material facts in the application for Probate and there was no citation upon the petitioners or their mother.
15. Parameswari's husband Brojendra died in 1911 when the case was pending in the Court below, but both Rameswari and Parameswari have sons, and they alone are the heirs of Ram Lal on the death of Haramoni, as Kadambini became a son less widow in her mother's life time.
16. The application was opposed by Shyam Lal and the sons of Suk Lal (Suk Lal having died in 1906) on various grounds and it was tried as a contested suit. The learned District Judge overruled the contentions raised by the defendants, found that the Will was not genuine and accordingly revoked the Probate.
17. The defendants have appealed to this Court.
18. It has been contended on behalf of the appellants, first, that an executor cannot be called upon to prove a Will in solemn form thirty years after Probate is granted in common form; secondly, that even if the expiry of thirty years is no bar, the Will should be presumed to be genuine after thirty years and the onus is upon the plaintiff to prove that the Will is not genuine; thirdly, that the present application for revocation is barred by the dismissal of Haramoni's application for revocation; fourthly, that the compromise entered into by Haramoni was a bona fide one and was by way of family settlement, and is binding upon her daughters, the plaintiffs; fifthly, that the plaintiffs are precluded by long delay and acquiescence from challenging the Will; and lastly, that the Will is genuine, The above contentions except the first and second were raised before the Court below and overruled by it.
19. As regards the first contention, we have been referred to a passage in Williams on Executors, 10th Edition, at page 242, which runs as follows: 'The difference between the common form and the solemn form with respect to citing the parties interested works this diversity of effect, viz., that the executor of the Will proved in common form may, at any time within thirty years, be compelled by a person having an interest to prove it per testes in solemn form.' But it appears from the cases cited in the notes in the same page that there is no such fixed rule. For instance in Hoffman v. Norris (1805) 2 Phillim. 230 note, reported in a note to Newell v. Weeks (1814) 2 Phillim. 224 Sir William Wynne said, 'I do not know that there is any specific time that limits a party,' and in Merryweather v. Turner (1844) 3 Curt. 802 at p. 817 Sir Henry Jenner Fust recognised the 'full right of the next of kin to call upon executors to prove a Will in solemn form notwithstanding there shall have been lapse of time, notwithstanding acquiescence, notwithstanding the receipt of legacy.'
20. In this country it has been held that an application for revocation is not governed by Article 178 of the Limitation Act: see Kashi Chundra Deb v. Gopi Krishna Deb 19 C. 48 and though we have not been able to find any case in which an application for revocation was made after 30 years, in the case of Durgagati Debi v. Saurabini Debi 33 C. 1001 : 10 C.W.N. 955 the application for revocation was made 27 years after Probate was granted, and the application was disallowed not upon the ground of delay, but upon other grounds.
21. We are of opinion that there is no time fixed for an application for revocation of Probate.
22. As regards the second contention, we were referred to Doe, d. Oldham v. Wolley (1828) 8 B. & C. 22 : 2 M. & Ry. 195 : 3 Car. & P. 102 : 6 L.J. (O.S.) K.B. 286 : 108 E.R. 954 : 32 R.R. 329. In that case it was held that a Will more than 30 years old may be read in evidence without proof of its execution, although the testator has died within 30 years and, some of the subscribing witnesses are proved to be still living. In that case however, the question was whether the Will could be used as evidence of a certain fact in a suit for ejectment, without proof of its execution. It was not a case of proving a Will in a Court of Probate. If the rule were applicable to a Probate Court, it would not be necessary to prove Wills executed 30 years, before the death of the testator, nor in cases where 30 years have elapsed from the death of the testator. We are unable to hold, therefore, that the rule applies to proof of a Will in the Probate Court. Besides Section 90 of the Evidence Act merely says that in the case of a document 30 years old, the Court map raise presumptions mentioned in it, not that it must do so Where the genuineness of the document is for any reason doubtful it is open to the Court to reject it, however ancient it may be. In the present case the Court has referred to suspicious circumstances and has found that the Will is not genuine.
23. The first and second contentions must accordingly be overruled.
24. The third contention is that the present application for revocation is barred by the dismissal of Haramoni's application for revocation. It is not disputed that the plaintiffs as the daughters of Ram Lal had the right to call upon the executors to prove the Will in solemn form in their presence, but what is contended for is that the widow having made an application for revocation and the application haying been dismissed, it is no longer open to her daughters, the plaintiffs, to make a similar application again. No doubt Haramoni as a Hindu widow represented the estate of her husband and the plaintiffs as the reversioners would be bound by any decree fairly and properly obtained against her. But there was no trial of the revocation case and no decision by the Court. Haramoni admitted the genuineness of the Will and prayed that the Probate might be upheld under circumstances which we will presently discuss. Behind the application there was a compromise effected by the ekrarnamas and the learned Pleader for the appellants relies more upon the compromise than upon the order dismissing the application for revocation, and this brings us to the fourth contention, viz., whether the compromise arrived at between Haramoni and Shyam Lal and Suk Lal is bona fide and binding upon the plaintiffs. A number of cases were discussed before us, upon the question whether a compromise entered into by a Hindu widow is binding upon the reversioners. Most of the earlier decisions are in favour of the respondents' contention, that a compromise effected by a Hindu widow is not binding upon the reversioners, but having regard to the recent decisions of the Judicial Committee in Khunni Lal v. Kunwar Gobind Krishna Narain 10 Ind. Cas. 477 : 38 I.A. 87 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427: 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 : 33 A. 356 (P.C.) and Musammat Hiran Bibi v. Musammat Sohan Bibi 24 Ind. Cas. 309 : 18 C.W.N. 929 : 27 M.L.J. 149 : 1 L.W. 648 (P.C.) the earlier view, we think, cannot be maintained. It is true the Judicial Committee in an earlier case Imrit Konwur v. Roop Narain Singh 6 C.L.R. 76 held, 'it is clear that the daughters could not be bound by a compromise made by the widow under any circumstances,' but it seems to us that those observations must be taken to have been made with reference to the particular facts of that case. We have considered the cases on the point; and we are unable to hold that a compromise made by a Hindu widow is not binding upon reversioners under any circumstances, as contended for on behalf of the respondents.
28. The latest case on the point in our Court is that of Mohendra Nath Biswas v. Shamsunnessa Khatun 27 Ind. Cas. 954 : 21 C.L.J. 157 at p. 163 : 19 C.W.N. 1280 which states the result of the authorities.
29. In dealing with the contention in that case, viz., that the withdrawal of an appeal from a decree dismissing the suit of the female holding Hindu widow's estate was in the nature of a compromise and destroyed the conclusive character of the original decree, which thereupon ceased to be operative as a contested decree, Mookerjee, J., observed as follows: 'This view Cannot possibly be sustained for, as was pointed out by the Judicial Committee in Khunni Lal v. Kunwar Gobind Krishna Narain 10 Ind. Cas. 477 : 38 I.A. 87 : 15 C.W.N. 545 : 8 A.L.J. 552 : 13 C.L.J. 575 : 13 Bom. L.R. 427: 10 M.L.T. 25 : (1911) 1 M.W.N. 432 : 21 M.L.J. 645 : 33 A. 356 (P.C.) and Musammat Hiran Bibi v. Musammat Sohan Bibi 24 Ind. Cas. 309 : 18 C.W.N. 929 : 27 M.L.J. 149 : 1 L.W. 648 (P.C.) a compromise amounting to a bona fide settlement of disputes will bind the reversioner quite as much as a decree on a contest; in other words, that the principle laid down in Katama Natchier v. Srimut Rajah of Shivagunga 9 M.I.A. 539 : 2 W.R. 31 (P.C.); 1 Suth. P.C.J. 520 : 2 Sar. P.C.J. 25 : 19 E.R. 843 is not limited to decrees in suits contested to the end. This rule is subject to the qualification that the Compromise was made bona fide for the benefit of the estate and not for the personal advantage of the limited owner: Tarinee Churn Gangooly v. Watson 12 W.R. 413 : 3 B.L.R.A.C. 437; Indro Kooer v. Abool Burkat 14 W.R. 146; Upendra Narain Myti v. Gopee Nath Bera 9 C. 817 : 12 C.L.R. 356; Sambasiva Ayyar v. Venkateswara Ayyar 31 M. 179 : 3 M.L.T. 369; Kambinayani Javvaji Timmaji Amma Garu v. Kambinayani Javvaji Subbaraju Nayanivaru 5 Ind. Cns. 640 : 33 M. 473 : (1910) M.W.N. 60 : 20 M.L.J. 204 : 7 M.L.T. 340 : 33 M. 473; Rajlakshmi Dasee v. Katyayani Dasee 12 Ind. Cas. 464 : 38 C.639. The view cannot be defended on principle that a qualified owner like a Hindu widow, daughter or mother is bound at her peril to pursue a litigation in respect of the estate in her hands unremittingly to the ultimate Court of Appeal and she cannot bona fide effect a settlement of the matter in controversy, even though such compromise be in the best interests of the estate.'
30. We have, therefore, to see whether the principles relating to compromise by a Hindu widow stated above are applicable to the facts of the present case, and we accordingly proceed to consider the relative positions of the parties, the circumstances under which the compromise in the present case was effected and the history of the case leading up to it.
31. Ram Lal was a member of a joint family possessed of immoveable properties of substantial value, the bulk of which was situated in the District of Rajshahye. The defendants, who are in possession and enjoyment of the properties, have not produced any papers to show what the income of the properties was. The plaintiffs have produced certain road-cess papers submitted by Shyam Lal and Suk Lal in 1902, from which it would appear that the income of some of the properties in the Kajshahye District was Rs. 10,000 a year. It is said that the same included properties acquired after Ram Lal's death. Two of the properties, however, admittedly belonged to the family at Ram Lal's death, and the income thereof amounted to Rs. 6,000 a year. As Basanta had a half share in the family properties, the three brothers had an income of Rs. 3,000 a year. The income in Ram Lal Ghosh's share was thus about Rs. 1,000 a year. The very fact that Shyam Lal and Suk Lal agreed to pay Rs. 425 a year to Haramoni by the ekrar indicates that the income must have been substantial. The family had also some properties in the Jessore District, the income whereof in Ram Lal's share was only Rs. 39 a year. They had a money-lending business, but the defendants have not produced any papers to show the amount of money invested in that business. They had also moveable properties and residential houses at Basuarih and Rampore Boalia. If there were no Will, Ram Lal's widow Haramoni would have been entitled to one sixth of the entire estate and after her death, her daughters and after them their sons, if any, would be entitled to that share. Now, under the Will the widow and after her death her daughters were to get the income only of the Jessore properties which amounted to Rs. 39 a year, the corpus of those properties even having been given to the brothers (Shyam Lal and Suk Lal). Haramoni was to enjoy the moveables and to have the right of residence in a portion of the family dwelling house at Basuarih without power of alienation, but they were to go to the brothers on her death. The daughters, therefore, were to get under the Will only an annuity of Rs. 39 a year and a legacy of Rs. 50 each. They had no right to the moveables, or any portion of the money-lending business, nor even any right of residence in the family dwelling house. But although the widow and daughters thus were practically deprived of their inheritance, the Probate Was applied for without citing them. In the application for Probate it was not clearly stated where Ram Lal died. Ram Lal, even according to the defendants, resided at Basuarih for 18 months before his death, but the wording of the application for Probate suggested that the usual place of residence of Ram Lal was Rampore Boalia. The value of the assets was not mentioned in the application, and as already stated the existence of the widow and the daughters was ignored.
32. The evidence is conflicting as to whether Haramoni and her daughters were at Basuarih or at Rampore Boalia at the time of the application for Probate. The plaintiffs have adduced evidence that they were at Basuarih and went to Rampore Boalia about a year after the death of Ram Lal, i.e., after the sapindikaran (the first annual shradh) of Ram Lal took place, while the defendants have adduced evidence to show that they were taken to Rampore Boalia shortly after Ram Lal's first shradh by Basanta Kumar, who had been to Basuarih in consequence of his mother's illness sometime before Ram Lal's death. The Court below says, 'It seems that she was in the same house at the time when the notices were issued but that no steps were taken to give the widow any notice of the Probate proceedings.' We are inclined to agree with the Court below. It was contended on behalf of the defendants that if the brothers applied for Probate of a forged Will, they would have never taken the widow to Rampore Boalia at the time. But if the intention of the brothers was to obtain Probate fraudulently they might have taken Haramoni to the Rampore Boalia residence purposely, so that if she sought to revoke the Probate, her presence at Rampore at the time might be relied upon as showing her knowledge of the Probate proceedings. However that may be, Haramoni, being a pardanashin lady, would not ordinarily get any notice of the general citation unless she was informed of it by the male members of the family, and there is no doubt that she had no knowledge whatever of the Probate proceedings. She lived with her daughters for some time at Rampore, and then went back to Basuarih, they lived jointly with the brothers' family in the ancestral house there. Sometime afterwards she must have come to hear of the Will and in 1881 she applied for a Succession Certificate in the Jessore Court. The brothers opposed it and set up the Probate, and she had to withdraw the application. Matters remained in the same state for sometime. Her second daughter Rameswari was married to Durga Das Bose in 1833, and in 1884 she applied for revocation of Probate in the Rajshahye Court, so that it was about 6 years after the grant of the Probate that the application was made. This delay in making the application has been commented upon on behalf of the defendants. But although we do not believe that Haramoni first came to know of the Will in the Succession Certificate proceeding as stated by her in her application for revocation, the explanation for the delay as given in her affidavit dated the 22nd April 1884 sworn in the Jessore Court prior to her application for revocation appears to be reasonable and should be accepted. In her affidavit she stated (after referring to the Succession Certificate proceedings), 'since then I intended to apply for revocation of the said Probate but I am a lady belonging to a respectable family. Particularly I had no means to pay the necessary expenses of the litigation. The opposite party are very influential men in this district. No one ventured to act on my behalf for fear of them. I could not make this application so long. Now having given away one of my daughters in marriage I am making this application with the help of my son-in-law.' In her application for revocation of the Probate, she stated that her husband had not executed any Will, that the opposite party had caused a forged Will to be made to deprive her and her daughters of the properties, that the Probate had been obtained secretly without her knowledge and without service of notice upon her, and the reasons for the delay in making the application were that the opposite party were very powerful men and had great influence in Rajshahye, and the petitioner not having had sufficient funds in hand could not apply earlier.
33. Shyam Lal and Suk Lal were in possession of the entire estate to the exclusion of Haramoni. They had influence at Rajshahye: their father had been a mukhtear of Robert Watson & Co., their uncle (the father of Basant Kumar) a Police daroga, Basanta Kumar (their cousin) was a mukhtear and acted for Watson & Co., Shyam Lal himself was also a Revenue Agent and Suk Lal held service in the Collectorate. Under the circumstances we fully accept the explanation for the delay in making the application for revocation as given by her.
34. It may be conceded that the application for revocation was made by Haramoni not merely in her own interest but also in the interest of the daughters, but we have to see how it was disposed of.
35. The application for revocation came on for hearing on the 1st August 1884 and one witness Satish Chandra Ghosh was examined on her behalf and the case adjourned to the 26th August 1884. On that date an application was put in by Haramoni stating, 'I have now come to know on special enquiry that the Will, dated the 12th Sraban 1283, executed by my husband, in accordance with the terms of which Srijukta Shyam Lal Ghose and Suk Lal Ghose have become entitled to some of the properties left by my husband in absolute right, and are executors with regard to some, is genuine and was duly executed by my husband. It is, therefore, prayed by making this application that the said Will may remain in force and in accordance with the order of your honour, dated the 20th March 1878, the Probate obtained by the said two Ghosh Mahashayas and the said order granting Probate may remain in force.' The Court thereupon recorded the following order, 'Upon being brought up before me, it was certified by the production of a petition of compromise that the case was settled. It is, therefore, ordered that the objection be disallowed without costs, and a decree be drawn up according to the terms of the compromise.'
36. These two ekrars however, one executed by Haramoni in favour of Shyam Lal and Suk Lal and the other by the letter in favour of the former executed on the previous day (the 25th August 1884), were not mentioned in the application to the Court. It was stated in the ekrarnamas that Haramoni was being maintained as a member of the joint family by her brothers-in-law in accordance with the terms of the Will of Ram Lal, but that owing to differences between her and the members of the latter's family, she was desirous of living separately: that as the income of the Jessore properties would be insufficient for her maintenance if she were to live separately, and it being the duty of her brothers-in-law to make suitable provision for her maintenance and that of her unmarried daughter, and for the performance of religious and meritorious deeds, they agreed to pay her, in addition to the income of the Jessore properties, Rs. 300 a year for her maintenance and Rs. 125 for her religious expenses, total Rs. 425 a year for her life, and on her death Rs. 300 a year to her widowed daughter Kadambini, so long as she lived, and to the other two daughters Rameswari and Parameswari and their heirs in succession in equal shares. The said amount of maintenance was charged upon certain properties end Shyam Lal and Suk Lal agreed to pay Rs. 300 to Haramoni for the marriage expenses of the youngest daughter Parameswari, Neither Haramoni nor her daughters nor their heirs would be entitled to make any claim for the moveable or immoveable properties left to her brothers-in-law by the Will, and if any such claim were preferred in future the terms of the chut would be void and inoperative.
37. There cannot be any doubt that the arrangement was arrived at 'with the knowledge and consent of Haramoni, specially having regard to the fact that Kalidas Bose, the elder brother of Durgadas, looked after that case on her behalf and was an attesting witness to the ekrars. It cannot also be said that Haramoni entered into the compromise with the object of defrauding her daughters, although it had the effect of defeating the rights of the daughters if it is binding upon them.
38. The learned District Judge says: 'It does not appear that she was a suitor for the compromise. On the other hand the evidence points to the fact that she was pressed to effect the compromise. She was an illiterate pardanashin widow, and it does not appear that she had friends among persons dwelling in Rajshahye. She executed powers-of-attorney in favour of four persons in Jessore, including a Pleader of that district, in order to fight out her cause here. She was poor and it was due to the pecuniary assistance which she obtained by marrying her second daughter Rameswari that she was able to institute the case for revocation of the Probate in Rajshahye.'
39. There is no direct evidence to show that Haramoni was pressed to compromise the case. Kadambini says that Haramoni told her that at the 'entreaties' of her brothers-in-law and 'at the request of the gentlemen' she had compromised the case, and there it a similar statement made by Haramoni in her plaint in a suit which will be referred to later on. The plaintiffs, however, have not examined Kali Das Bose or Satish Ghosh, and that fact has been strongly commented upon, and we think justly. But the very fact that Shyam Lal and Suk Lal agreed to pay Rs. 425 a year in addition to the income of the Jessore properties to Haramoni, when the Will itself, said to have been executed by her husband, gave her an annuity of only Rs. 39 a year, in other words, that they agreed to pay more than ten times what her husband himself provided for her by his Will, indicates that Shyam Lal and Suk Lal wanted to avoid proving the Will in Court. There is no doubt that Haramoni herself was poor, whereas Shyam Lal and Suk Lal were rich and had influence at Rajshahye. Haramoni had the pecuniary assistance from Rameswari's husband's family and had Kali Das to look after the case, but so long as Haramoni was alive Rameswari's husband had not the same interest as he has in the present litigation, because Rameswari might not have succeeded to the estate of her father if she died during the life-time of her mother. The learned District Judge says, 'it is not unnatural that she, straitened as she was in her circumstances, agreed to have the case amicably settled for what she was provided rather than wait for what she might or might not have obtained in a fight with Shyam Lal and Suk Lal.' However that may be, there was the youngest daughter Parameswari, an infant of about 11 years of age whose interests were also involved in the case. It is true it cannot be said that the compromise was wholly regardless of the interests of the daughters, but Haramoni whose wants as a Hindu widow were limited was to get Rs. 425 a year for her maintenance and religious expenses and under the Will she had a right of residence in the family house and a right of enjoyment of the moveables for her life. Rameswari and Parameswari, however, (who might give birth to sons, as in fact they have) were to get only Rs. 100 a year each, they had no right of residence in the family, dwelling house nor the right to enjoyment of the moveables under the Will. Parameswari then was unmarried, Shyam Lal and Suk Lal agreed to pay only Rs. 300 for her marriage expenses, and she might not have been married into a family in affluent circumstances. The compromise thus was more beneficial to Haramoni than to her daughters. It is to be noticed that the ekrar was to be void in case the widow or her daughters preferred any claim to the estate. The question is whether under these circumstances, the compromise is binding on the plaintiffs. In the cases in which compromises made by Hindu widows were held binding upon the reversioners, there were disputes relating to properties, there were bond fide settlements of the disputes, and the settlements were brought to the notice of the Court which gave effect to them. In some of the cases, the compromise was based on the assumption that there was an antecedent title of some kind in the parties, and the compromise merely acknowledged and defined what that title was. Here the questions involved in the revocation case were, whether the Probate should be recalled and whether the Will was genuine. It was exclusively the province of the Judge to come to a decision on the question whether the Will was genuine, and Shyam Lal and Suk Lal and Haramoni could not decide that issue by agreement or compromise between them specially when the reversioners, the daughters, were no parties to the proceedings.
40. It is true the Will had been proved in common form, and Probate had already been granted. But Haramoni had applied for revocation of the Probate, and she was entitled to have the Probate recalled and the Will (which she had challenged as forgery) proved in her presence, as she had not been cited in, and had no knowledge of the Probate proceedings. Even if Shyam Lal and Suk Lal succeeded in proving her knowledge of the Probate proceedings (which is not at all likely), we do not think that the Court, having regard to the facts that she was a pardanashin lady, that the interests of infants were involved and that they were practically deprived of the whole of the inheritance would have refused to recall the Probate on that ground. Had the attention of the Court been drawn to the fact that the interests of infants were involved, the vigilance of the Court would have been roused, and having regard to the terms of the Will, the circumstances under which it is said to have been executed, the nature of the witnesses, the conduct of the propounders of the Will in the matter of obtaining Probate, the fact that the existence of the widow and daughters had been suppressed in the application for Probate and the other circumstances of the case, the Court might have insisted upon a strict proof of the Will, and refused to uphold the Will unless quite satisfied as to its genuineness. It seems to us that in order to avoid these difficulties that the compromise was effected out of Court by the ekrarnamas and admission was obtained from Haramoni that the Will was genuine. It is apparent that she did not put in the application because she was satisfied of the genuineness of the Will by 'special enquiry,' but because her brothers-in-law agreed to pay a larger annuity by the ekrar. Had the interests of Haramoni alone been concerned, it did not matter how she proceeded with the case, or how or on what terms she settled it. Ordinarily a compromise of a Probate case is binding only upon the parties to it. But Haramoni as a Hindu widow represented the estate, and it is the contention of the appellants themselves that she represented the interests of her infant daughters though they were no parties to the case. The compromise was arrived at in connection with the revocation case pending in Court, but the ekrarnamas which embodied the terms of the compromise were withheld from the Court, and all that was represented to the Court was that Haramoni was satisfied 'on special enquiry' that the Will was 'genuine' and that the Probate might be upheld. There can be no doubt that these statements were made at the instance, and in the interests, of Sham Lal and Suk Lal, suppressing the real facts of the case and the terms of the compromise from the Court for the purpose of avoiding a trial of the revocation case which involved the interests of the infant daughters.
41. We have seen that though the interests of the daughters were not entirely disregarded, the compromise was not a fair one so far as the daughters were concerned and cannot be said to be beneficial for the estate which was ultimately to devolve upon the daughters' sons.
42. Under these circumstances, and those already referred to, we are unable to hold that the principles upon which a compromise effected by a Hindu widow may be held binding upon the reversioners, apply to the present case, or that the compromise was bona fide or binding upon the plaintiffs.
43. It is contended that it was a family settlement, but a family settlement presupposes that there are bona fide claims on either side and an honest settlement after full disclosure of facts on either side. Here one party secretly and fraudulently obtained Probate of a Will and when the other party wanted to have it revoked, the former agreed to pay a larger annuity, and obtained an admission of the genuineness of the Will which might be used against the reversioners. We do not think that in these circumstances the principle of family settlement applies.
44. The fifth point relates to the question of delay and acquiescence. At the time of the compromise in the revocation case the plaintiffs Rameswari and Parameswari were about 13 and 11 years of age respectively. No question of acquiescence on their part at that time could arise. An attempt, however, has been made to show that before the compromise was arrived at, a messenger was sent by Haramoni to inform and consult Rameswari and her husband Durga Das about the compromise. One Behary Lal, a witness for the defendants, professes to have taken the message to Sankaroasha, the residence of Rameswari's husband. But Rameswari was then a girl of 13 and her husband Durga Das was a mere youth, and his father was alive. We are unable to place any reliance upon the evidence of Behary Lal, and agreeing with the Court below, we hold that the attempt to prove that the compromise was effected with their consent has failed. It is true Kalidas, the elder brother of Durga Das, was present at the compromise and was an attesting witness to the ekrars, but that cannot be taken as acquiescence on the part of Rameswari who was then a minor. As for Parameswari, she was not married and was a girl of 11 years of age. There could be no question of consulting her and no such suggestion has been made.
45. Haramoni received the legacy of Rs. 50 each given by the Will to her and her three daughters, as appears from the statement contained in her plaint in a suit in the Small Cause Court filed in 1887 against Shyam Lal and Suk Lal.
46. The defendants' witness Behary Lal Bose says that out of that money Haramoni paid Rs. 50 in cash to Kadambini and gave ornaments to the value of Rs. 50 each to Rameswari and Parameswari and appropriated Rs. 50 to herself and that he (the witness) got the ornaments prepared for them. The story is wholly unreliable, and has been rightly disbelieved by the Court below. There is no reliable evidence that either Rameswari or Parameswari herself ever obtained the legacy of Rs. 50. Sham Lal admits that after Rameswari and Parameswari attained puberty, no money as provided by the Will was given to them by him. Rameswari or Parameswari never admitted the genuineness of the Will.
47. The defendants, however, relied upon the draft of an ekrar executed by Haramoni in favour of Shyam Lal and Suk Lal by which a suit brought by her against them was compromised. Rameswari and Parameswari were no parties to the suit or the ekrar, but it is said that Parameswari's husband Brojendra took an active part in effecting the settlement and corrected the first paragraph of the draft ekrar, which contains an admission of the Will. It is stated that the amended first paragraph was written by Brojendra on a slip of paper, and that slip was pasted on the first paragraph of the draft ekrar, as it originally stood. The witness Nibaran Chandra Bose made a note that it was written by Brojendra, son-in-law (of Haramoni), an inhabitant of Nowapara, in the presence of certain persons whose names appear in the note. Nibaran admits that he was not in the service of the defendants at that time, but happened to be present on some other business. A portion of the writing (of the note) admittedly looks different from the other, which Nibaran says might be due to difference of pen and ink. Shyam Lal admits that he directed Nibaran to make the note.
48. The defendants have adduced evidence to prove that the slip was written by Brojendra and several witnesses have been called by them to prove Brojendra's handwriting. On the other hand, Brojendra's son denied that it was his father's handwriting. The learned District Judge says: 'It does not seem to me to be established that the slip was in the handwriting of Brojendra. Even if it were I do not think that the recitals in the slip can affect his wife or his sister-in-law. '
49. We agree with the Court below in the view it has taken. Haramoni was bound by the ekrarnama which she had executed in the revocation case, and the fact that one of her sons-in-law, Brojendra, took part in effecting a compromise between her and Shyam Lal and Suk Lal or wrote out a paragraph of the draft ekrar in which Haramoni admitted the Will or stated that she was in enjoyment of the income of the Jessore properties in accordance with the said Will, cannot be construed as an acquiescence on the part of her daughters. Brojendra, if he did what is ascribed to him, did so on behalf of Haramoni, and not on behalf of his wife Parameswari who was no party to the ekrar.
50. Nor do we think that the fact that Surendra, one of the sons of Rameswari, lived with his grandmother Haramoni, or signed some receipts for the money received by her for her maintenance, constitutes acquiescence on the part of the plaintiffs. Haramoni so long as she was alive was certainly bound by the ekrarnama, and the fact that one of Rameswari's sons lived with Haramoni or signed the receipts for her does not show that her daughters acknowledged or acquiesced in the ekrar.
51. The acts and conduct relied upon thus do not, in our opinion, amount to acquiescence on the part of the plaintiffs Besides, as pointed cut in a recent case in this Court, Shyama Charan Baisya v. Prafulla Sundari 30 Ind. Cas. 161 : 21 C.L.J. 557 : 19 C.W.N. 882, there is a distinction between a case where the acquiescence alleged occurs while the act acquiesced in is in progress, and another where the acquiescence takes place after the act has been completed. In the former case, the acquiescence is quiescence under such circumstances as that assent may be reasonably inferred from it. In the latter case, when the act is completed without any knowledge or without any assent on the part of the person whose right is infringed, the matter must be determined obviously on very different legal considerations. A right of action has then vested in him, and mere delay to take legal proceedings to redress the injury cannot, by itself, constitute a bar to such proceedings, unless the delay on his part, after he acquired full knowledge, had affected or altered the position of his opponent. All that can be said in the present case is that there has been delay in making the application, as Rameswari and Parameswari being at the time of the compromise 18 years and 11 years of age respectively, there could be no question of assent or acquiescence on their part at that time.
52. But although we do not think that the above acts amounted to acquiescence on the part of Rameswari and Parameswari and although there may not be a fixed time within which an application for revocation may be made, yet a person may be debarred by long delay in making such an application. As stated in Williams on Executors, 10th Edition, Vol. I, page 244, 'Long acquiescence unaccompanied by any special circumstances and acts done by a next-of-kin under the provisions of the Will may (if no fact appears which excites a reasonable suspicion of the genuineness or validity of the Will) amount to such a waiver of his rights as to preclude him from putting the Will in suit.'
53. We have, therefore, to see whether there were special circumstances in the case so as to take it out of the above rule. It is true that at the date of the compromise of the revocation case (in 1884) both Rameswari and Parameswari were minors, but they attained majority about 20 years ago. They had no right to the estate so long as Haramoni was alive, but they could have as reversioners, during her life-time, applied for revocation of the Will. Their right, however, to succeed to the estate was contingent upon their surviving their mother Haramoni. They had no money of their own, and Were dependent upon their husbands. The evidence of Rameswari shows that her husband was not willing to incur the costs of an expensive litigation which would be wholly infructuous if she died during the life-time of Haramoni, and told her to wait until Haramoni's death. The evidence of Parameswari is to similar effect, and we have no reason to disbelieve this evidence.
54. Then there are various facts which excite not only reasonable but grave suspicion about the genuineness of the Will, and the Court below has found upon the evidence that the Will is not genuine. We have not been referred to any case in which the Court, having found the Will not to be genuine, has refused to revoke a Probate granted in common form on the ground of delay.
55. Haramoni died on the 22nd July 1909, and the application for revocation was made by the plaintiffs on the 27th April 1910, about 9 months after the death of Haramoni. Having regard to all the circumstances, we are of opinion that the plaintiffs are not precluded by acquiescence or delay in making this application for revocation.
56. The case of Manorama Chowdhurani v. Soshi Mohan Das Majumdar 28 Ind. Cas. 886 : 19 C.W.N. 366 : 42 C. 480 was relied upon. In that case Probate was sought to be revoked after 17 years and the application was refused, but it was found that the petitioner for revocation herself had, for a series of years after attaining majority, received the allowance provided for by the Will and gave receipts for the same, and no reasonable account was given of the circumstances which entitled the petitioner to re-open the Probate after so many years. On the other hand in the unreported case of Srimati Rani Kadambini v. Srimati Rani Dikbasini Appeals from Original Decree's Nos. 317 and 334 of 1901 decided on the 10th May 1904--Unreported a Probate which was granted in 1882 was revoked in 1901, In that case reliance was placed on a long series of deeds from 1882 to 1897 in which there was reference to the Will in which the petitioner for revocation took no part, but in the execution of which other members of the family including females joined. The learned Judges held, 'this no doubt is a strong point against the plaintiff's case, but it is not, we think, fatal to it.' The Court found her explanation to be correct, and having found the Will to be a forged one, revoked the Probate.
57. It is no doubt hard upon the defendants that they have to prove a Will 32 years after Probate was granted when some of the witnesses are dead. But they had opportunities of proving the Will in solemn form, and they did not avail themselves of the opportunities, If it was a genuine Will, the executor should have in prudence and for greater security proved the Will in the first instance per testes. But in the first place they obtained Probate in common form without citing Haramoni or the daughters and did not even mention their existence in the application for revocation. Then when Haramoni six years afterwards applied for revocation, they had another opportunity of proving the Will, but they avoided it by agreeing to pay her an annuity more than ten times the amount which her own husband had provided for her by his Will (if it was genuine). They knew that on the death of Haramoni her daughters, and on their death their sons, would be the heirs and they apprehended that the daughters or their sons might challenge the Will, as would appear from the condition in the ekrarnama that it will be void and inoperative in the event of the daughters or their heirs challenging the Will. In acting in that way they took the risk of proving the Will in solemn form when the daughters applied for revocation.
58. Under the circumstances, the hardship was to a large extent their own creation, and although, having regard to the long time that has elapsed, we must make due allowance in considering the evidence about the genuineness of the Will, we are unable to hold that the plaintiffs are precluded from having the question of genuineness of the Will tried out in this case.
59. We now come to the last question in the case, viz., whether the Will is genuine.
60. [Their Lordships after discussing the evidence on the point concluded as follows:]--
61. The Will is said to have been executed on the 26th July 1876 and Ram Lal died on the 6th December 1876, i.e., more than four months after. There is a registration office at Bagharpara only 5 miles off from Basuarih and the Will was not registered. Ram Lal, it is true, was suffering from illness, but it could have been easily arranged to get the Sub-Registrar of Basuarih to register the Will, on payment of a few rupees for his commission fees and travelling charges. Basanta Kumar, the karta of the family, was there and it was to him that the Will is said to have been delivered. He was an experienced mukhtear and had the Will been really executed by Ram Lal, and made over to him, we have no doubt that Basanta Kumar could have got it registered. No explanation has been given as to why the Will was not registered although there was ample time to get it registered.
62. We have already dealt with the provisions of the Will. The learned District Judge has held that the provisions of the Will are 'unreasonable and unnatural' and that 'in its cruel disregard of the interests of his widow and three children, the Will appears to be unworthy of Ram Lal and of the reputation which he enjoyed for his wisdom and kindness of heart'. We agree with the learned Judge in the view he has taken of the Will. No doubt if Ram Lal did execute such a Will, the Court cannot reject it on the ground that the terms are unreasonable. All that we mean to say is that taking the Will by itself it is certainly an inofficious Will, Ramlal was living with his wife and three daughters. The evidence shows that he loved them, and there is no suggestion to the contrary. The wife and the eldest daughter nursed him in his illness which extended for a long period. The evidence does not show that the brothers cared much (if at all) about Ramlal so long as he was at Basuarih. He was a person of a benevolent disposition and used to do good to the needy and the poor. He had an income at the lowest estimate of Rs. 1,000 a year besides share in a money-lending business; and by his Will gave an annuity of only 39 rupees a year to his wife and three daughters two of whom were unmarried, and the latter were not even given the right of enjoyment of the moveables and the right of residence in the family dwelling house. It was contended that the provisions of the Will might not be considered unnatural by an orthodox Hindu, that the family gods have to be worshipped and pindas and libations of water have to be offered to ancestors, and the daughters when married would cease to be members of the father's family. No doubt the family gods have to be worshipped and pindas and libations have to be offered to the ancestors, but it is going too far to say that provision cannot be made for them except by depriving the widow and the daughters practically of the whole of the inheritance. One of the daughters was married, the other two were to be married. The daughters might give birth to sons, as in fact both the plaintiffs have, and the daughters' sons would offer pindas not only to the deceased (their maternal grandfather) but also to his two paternal ancestors. In this connection it may be pointed out that the Will makes no provision for the adya (the first) shradh or the annual shradh of Ram Lal himself which an orthodox Hindu would obtain promise for, if he were giving away his estate to persons other than his heirs, although the Will refers to religious deities towards ancestors which it was the duty of Sham Lal and Suk Lal as much as that of Ram Lal to perform. Under the Dayabhaga the widow, the daughter, and the daughters' son are preferential heirs to the brother and even under the Mitakshara they are so with respect to the separate property of the deceased.
63. The 6th paragraph of the Will, which provides that the fruits of certain fruit trees planted by Ram Lal were to be enjoyed by his widow and daughters so long as they lived at Basuarih and that the fruits of three cocoanut trees planted by him were to be set apart for guests, were relied upon as affording material evidence of the genuineness of the Will. But if the Will was manufactured it was not very difficult to insert such a provision in order to show that the Will was a genuine one.
64. Some arguments were based upon a passage in the Will, and in the deposition of Sham Lal already referred to, that there were debts of the family for which Ram Lal also was liable, and that Ram Lal was anxious that his wife and daughters should not be liable for such debts, and he, therefore, proceeded that his share of the money-lending business would go to his brothers to the exclusion of his widow and daughters, who were to get a legacy of Rs. (SIC) each and were not to be liable for the debts. But we have no evidence as to whether there was any debt for which Ram Lal or his brothers were liable. Reliance is placed on an ekrar dated the 18th March 1884, by which Basanta Kumar made a gift of a 2-annas share of the family properties to Sham Lal and Suk Lal and by which it was agreed that the latter should pay a ten-annas share of the debts of the ijmali time entered on a separate list signed by Sham Lal and Suk Lal and Basanta Kumar and that Basanta would pay a six-annas share. The same ekrar also provided that an eight-annas share of the amounts due on account of paddy and other money-lending business when realised would belong to Basanta and the other half to the two brothers. So that there is no doubt that the family had money-lending business and the fact appears from the Will itself. Now the defendants, who are in possession of the estate, have not produced either the list of debts of ijmali time signed by Sham Lal and Suk Lal and Basanta or the papers relating to the paddy and other money-lending business belonging to the family, and there is in fact no evidence except the bare statement of Sham Lal what the extent of the debt was. Sham Lal did not even offer any explanation as to the non-production of these papers. Kishori Mohan said that he searched for papers, deeds and jama kharach but could not find any previous to 1286. We are unable to accept this statement or to attach any weight to the argument based on the existence of debts in connection with the provision of the Will.
65. Certain bonds executed by Basanta Kumar were referred to as showing the existence of debts, but the bonds were executed by Basanta Kumar not as karta of the family and only his own share (8 annas) of the family properties was mortgaged. Sham Lal admits that Ram Lal did not execute any bond. Certain endorsements of payments made on behalf of Sham Lal and Suk Lal on one of these bonds were relied upon to show that the debts were family debts, but such payments were made after the date of the ekrar executed by Basanta by which he made a gift of a portion of his share of the family properties to Sham Lal and Suk Lal, on condition that they would pay a proportionate share of debts. The very fact that the Will provided that the widow and the daughters would not be liable for debts, and would get a legacy of Rs. 200 out of the money lending business in Ram Lal's share which would go to the brothers, indicates that the assets of the money-lending business exceeded the debts, if any.
66. It was suggested that as Basanta Kumar, Sham Lal and Suk Lal were the earning members of the family, the Rajshahye properties were very probably acquired by them and that might have been the reason why Ram Lal left the Rajshahye properties to Sham Lal and Suk Lal. There is, however, no evidence that the properties were acquired by those three, and had there been any truth in the suggestion it would have been so mentioned in the Will, at any rate in Sham Lal's deposition. On the other hand the fact that Ramtanu, the father of Ram Lal, Sham Lal and Suk Lal, was a mukhtear of Watson and Co. and Basanta's father was a Police daroga at Rajshahye suggests in the absence of evidence to the contrary, that the Rajshahye properties were acquired by them, and the Will refers to 'ancestral and self-acquired properties'.
67. It was contended on behalf of the defend ants that the fact that Haramoni did not apply for revocation of the Probate until Durga Das appeared on the scene, and her conduct before and after the revocation case, are cogent evidence of the genuineness of the Will.
68. The application for revocation was, no doubt, made about 6 years after the Probate was granted. She at first applied for a Succession Certificate in the Jessore Court in 188l and withdrew it when the executor set up the Probate. The application was, in respect of debts the aggregate amount whereof was only Rs. 91, made more than three years after Ram Lal's death by which time the debts were barred by limitation. There is no doubt that the application was the outcome of some misunderstanding between Haramoni and her brothers-in-law, and was merely a preliminary skirmish to the real fight about the Will. We have already held that Haramoni must have become aware of the existence of the Will sometime before she applied for the Succession Certificate in the Jessore Court; but that the explanation given by her for the delay in making the application for revocation is a reasonable one and should be accepted. It is true she did not object to the registration of the names of Sham Lal and Suk Lal under the Land Registration Act based upon the Will, nor did she apply for registration of her own name as heiress of Ram Lal. But there is nothing to show that she had any knowledge of the land registration proceedings. She admittedly lived as a member of the joint family, and no inference can be drawn under the circumstances against her for not applying for registration of her own name.
69. After the revocation case was over, she had other litigation with Sham Lal and Suk Lal. In 1887 she brought a suit in the Small Causes Court for recovery of Rs. 135 against Sham Lal and Suk Lal, and it was alleged in the plaint that the defendant had agreed to pay Rs. 135 for constructing a verandah of the room in which she resided and being unable to pay the same and the legacy of Rs. 200 payable under the Will, the defendant had executed a bond in her favour and had paid the Rs. 200 but Rs. 135 was due. A solehnama was filed in this case and the defendant was directed on the 6th February 1888 to pay Rs. 135 within seven days.
70. Then on the 15th April 1890 she brought another suit against Sham Lal for the recovery of the income of the Jessore properties from 1291 to 1296 (1884 to 1889). She stated in the plaint that Probate had been obtained by the defendants without her knowledge, that she had applied for revocation of the Probate alleging that the Will was not genuine and many respectable gentlemen intervened and the matter was settled between the parties, to the effect that the plaintiffs would admit the Will to have been executed by her husband, that the properties in the district of Rajshahye were to remain in the possession of defendants, that she would get the income of the Jessore properties and l/6th share of the fruits of the garden and of the fish of the tanks in khas possession and a portion of the dwelling house at Basuarih, and that over and above the same she would get Rs. 300 annually for her maintenance and Rs. 125 for religious expenses, that after the terms were embodied in ekrarnamas a solehnama was filed in that case admitting the Will, that the defendant had been paying the amounts fixed by the ekrar but had not paid the income of the Jessore properties and accordingly prayed for recovery of the same.
71. It appears, therefore, that since the disposal of the revocation case in 1884 to 1889 the brothers did not pay Haramoni the income of the Jessore properties and hence the suit was instituted by her. This suit was also compromised. Defendants made over the entire tank called Haritakitolla to Haramoni for her life, the income of her husband's share in the Jessore properties was settled at Rs. 39 a year, and she was to have the same from the year 1297 (1890), and the defendants agreed to pay the amount due to her for the period in suit in two instalments. Haramoni admitted that her husband had of his own free will executed the Will, that the defendants had taken Probate of the same and were in possession of the properties covered by the Will, and she withdrew the statements made in the plaint with regard to the said Will and agreed that she and her heirs would not be competent to raise any objection to the same at any time.
72. It appears that Haramoni brought another suit under Section 9 of Act I of 1877 for possession of the Baitakkhana in the family dwelling house at Basuarih. This case too was compromised, the defendants having agreed to pay Rs. 350 to her for construction of a dardalan in front of the room occupied by her. In the ekrar by which the case was compromised she admitted the Will. But all these admissions were made by Haramoni after she had put in the petition and executed the ekrar in connection with the revocation case. She was bound by her petition and ekrarnama in which the Will was admitted, and we do not see how these admissions made by Haramoni of the Will advance the case for the defendants any further than the admission made by her in the revocation case and in the ekrar, or show that the Will was genuine. On the other hand, it is contended on behalf of the plaintiffs that whenever Haramoni said anything affecting the genuineness of the Will or the ekrar, she was given something which she was not entitled to under the Will or the ekrar. For instance in the second case referred to above, she was given the entire Haritakitolla tank, and in the third the defendants agreed to pay her Rs. 325 for constructing a dardalan to none of which was she entitled under the Will or the ekrar, and each time an admission was taken from her that the Will was genuine and that she and her heirs would not be entitled to challenge it. We think having regard to the circumstances, there is a good deal of force in this argument. In any case, we do not think that these admissions of Haramoni, having regard to the circumstances under which they were made, prove the genuineness of the Will.
73. There was one more contention raised before the Court below and also in this Court, viz., that the present application for revocation is not bona fide. The Court below overruled it for the reasons stated in its judgment. We entirely agree with the Court below on the point.
74. We have given our anxious consideration to this case as the Probate is sought to be revoked after an unusual length of time. The learned District Judge had the witnesses before him, and he has come to the conclusion that the Will is not genuine. On a consideration of all the evidence and circumstances of the case, we agree with him in holding that the Will is not genuine. The result is that the appeal is dismissed, but having regard to the long delay in making the application for revocation we direct that each party do bear his own costs in both Courts.