Shambhu Prasad Singh, J.:— This appeal by the objector-opposite party arises out of a proceeding for revocation of the grant of the probate of an unregistered will dated the 14th August, 1956, allegedly executed by one Tengari Gosain of village Sarna Mathia in the district of Shahabad. The grant was made on the 12th May, 1959, in an ex parte proceeding on the basis of an application of the appellant dated the 10th December, 1958. The proceeding for revocation under section 263 of the Indian Succession Act was started on an application of the respondent Lalmuni Devi dated the 13th March, 1961. The respondent claims to be a daughter of Tengari Gosain.

2. Briefly stating the case of the respondent was that the aforesaid will dated the 14th August, 1956, was never executed by Tengari Gosain and was a forgery. Her case further was that Tengari had died in the month of Baisakh in the year 1956 leaving behind the respondent and two other daughters, Jhanjho and Kesra. As she and her sons used to live with Tengari during his lifetime and looked after his property, after his death, they alone came in possession of his properties. Her two sisters, Jhanjho and Kesra, being issueless, relinquished their interest in favour of the respondent's son. The appellant fraudulently concealed in the probate proceeding the existence of the respondent and her two sisters as daughters of Tengari and no special citations were issued or served on them, nor was any general citation served in the locality. There was a proceeding under section 145 of the Cr PC in respect of the house of Tengari between the respondent and the appellant in which the latter lost. He then instituted a title suit and there produced the will and the probate thereof. The respondent then only for the first time came to know about the alleged will and the probate proceeding. The case of the appellant was that the will was a genuine will of Tengari who died in the month of August, 1956 a few days after the execution of the will and that no fraud was played upon in the probate proceeding at all. His case further was that the respondent was not a daughter of Tengari but the daughter of one Barat Gosain of village Jarari in the district of Ballia and that as Tengari had no issues, he executed the will in favour of the appellant as he was his sister's son.

3. The learned Additional District Judge of Shahabad held in favour of the appellant that Tengari died in the month of August 1956, but found against him on the question of the genuineness of the will. He further held that the appellant was not a sister's son of Tengari and that the respondent was a daughter of Tengari, thus a necessary party to the probate proceeding to whom special citations should have issued. On these findings, he allowed the application of the respondent and revoked the probate.

4. The main question arising for decision in this appeal is whether the will was a genuine testament of Tengari or it was a forged one Tengari was not expected to execute a will in favour of a stranger or even a sister's son if really he had daughters and daughter's son. Absence of any statement by the appellant in his application for probate that Tengari had left daughters and non-issue of special citations to them, if really the respondent and Jhanjho and Kesra are daughters of Tengari, would also ordinarily lead one to think that the conduct of the appellant in the probate proceeding was fraudulent and the will was not a genuine one. In that view of the matter, the question whether the respondent is a daughter of Tengari is also of great importance in the case and closely connected with the question of the genuineness of the will.

5. It appears that it was seriously contended in the court below on behalf of the objector, i.e, the appellant before this Court, that it was not obligatory on his part to mention in his application for grant of the probate of the will, the names of the relatives of the testator and reliance in this connection was placed on sections 276 and 278 of the Indian Succession Act. The learned Additional District Judge, after a careful examination of the various provisions of the Indian Succession Act and decisions on the point, has held that although section 276 does not in so many words require the petitioner for grant of a probate to state the names of the relatives of the testator, but where it is found that the testator had left near relatives, omission to furnish information about their existence and non-issue of citations on them would be a ground for revocation. Mr. Kailash Roy, appearing on behalf of the appellant conceded that this was the correct position in law. It is not, therefore, necessary to dilate on this question any further.

6. On the question of daughtership of the respondent, the contention of learned counsel for the appellant was that it was for her to prove that fact and that the evidence adduced by her was not sufficient and was legally defective. According to him most of the witnesses examined on behalf of the respondent had no direct knowledge of the relationship, because none of them claimed to be present at the time of the birth of the respondent. Their evidence that the respondent was daughter of Tengari was nothing but their opinion which fell short of the requirements of section 50 of the Indian Evidence Act and thus inadmissible. He relied in support of his contention on the well-known decision of the Supreme Court in Dolgobinda Paricha v. Nimai Charan Misra, AIR 1959 SC 914 which, according to him, laid down that it was the opinion of the witness based on his own conduct which was relevant and not of any other person including those whose relationship was in issue as expressed by their conduct. He also relied on certain observations of their Lordships of the Judicial Committee in Lakshmi Reddy v. Venkata Reddy, AIR 1937 PC 201 that the witness must depose about his conduct expressing the opinion in his examination-in-chief itself so as to make it admissible and it need not “be left to time or chance or cross-examination to disclose whether a statement has any basis which could give it value or admissibility”. On the other hand, Mr. Mazahar Hussain, appearing for the respondent, contended that it was not laid down by their Lordships of the Supreme Court in Dolgobinda's case, AIR 1959 SC 914 that conduct expressing opinion of persons including those whose relationship was in issue other than the witness was not relevant under Section 50 of the Evidence Act. In support of this he relied on the decision of a learned Single Judge of this Court in Bhogal Paswan v. Bibi Nabihan, AIR 1963 Pat 450. He further contended that in Lakshmi Reddy's case, AIR 1937 PC 201 their Lordships of the Judicial Committee merely pointed out that the proper procedure was to obtain the basis which could give value or admissibility to a statement of a witness before it is put into black and white, but it was not held by them that in case the basis is not disclosed and there is a lacuna which is supplied by the cross-examiner by inadvertently putting question and eliciting the basis for a statement made in the examination-in-chief, such a statement should not be taken into consideration.

7. The relevant portion of Section 50 of the Evidence Act runs as follows:

“When the court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship of any person who as a member of the family or otherwise has special means of knowledge on the subject is a relevant fact.”

8. The language of the section leaves no room for doubt that the opinion expressed by conduct of any person who as a member of the family or otherwise has a special means of knowledge as to the relationship of one person to another about which the court has to form an opinion is relevant irrespective of the fact whether that person is himself called as a witness or not. In Chandu Lal v. Bibi Khatemonnessa, AIR 1943 Cal 70 it was observed that the offered item of evidence is the conduct but what is made admissible in evidence is the opinion. The correctness of this observation was expressly approved by the Supreme Court in Dolgobinda's case, AIR 1959 SC 914. Referring to this decision and provisions of section 60 of the Evidence Act which requires that oral evidence if it refers to an opinion or to the grounds on which that opinion is held it must be the evidence of the person who holds that opinion on those grounds. S.K Das, J. speaking for the Court said:

“If we remember that the offered item of evidence under section 50 is conduct in the sense explained above, then there is no difficulty in holding that such conduct or outward behaviour must be proved in the manner laid down in S. 60, if the conduct relates to something which can be seen, it must be proved by the person who saw it; if it is something which can be heard, then it must be proved by the person who heard it; and so on. The conduct must be of the person who fulfils the essential conditions of section 50, and it must be proved in the manner laid down in the provisions relating to proof. It appears to us that portion of section 60 which provides that the person who holds an opinion must be called to prove his opinion does not necessarily delimit the scope of section 50 in the sense that opinion expressed by conduct must be proved only by the person whose conduct expresses the opinion. Conduct, as an external perceptible fact, may be proved either by the testimony of the person himself whose opinion is evidence under section 50 or by some other person acquainted with the facts which express such opinion, and as the testimony must relate to external facts which constitute conduct and is given by persons personally acquainted with such facts, the testimony is in each case direct within the meaning of section 60. This, in our opinion, is the true interrelation between section 50 and section 60 of the Evidence Act.”

9. His Lordship also expressly dissented from observations of Hutchins, J. in Queen Empress v. Subbarayan, (1886) ILR 9 Mad 9 to the effect that opinion as expressed by conduct of a person can be proved by others only if the person whose opinion is relevant is dead or cannot be called and added that in the opinion of their Lordships of the Supreme Court who heard the Dolgobinda's case, AIR 1959 SC 914, Section 50 of the Evidence Act did not put any such limitation. Thus, according to the rule laid down by the Supreme Court in this case opinion expressed by conduct of a person other than the witness, if that person as a member of the family or otherwise, has special means of knowledge on the relationship in issue may be proved by the witness. The same interpretation was put by a learned Single Judge of this Court on the decision of their Lordships of the Supreme Court in Dolgobinda's case, AIR 1959 SC 914 in AIR 1963 Pat 450 and if I may say so with respect, the view is entirely correct. Thus learned counsel for the appellant appears not correct and learned counsel for the respondent correct in their contention as to what was laid down by the Supreme Court in this case. Learned counsel for the respondent also appears correct in his contention with regard to observations of their Lordships of the Judicial Committee in Lakshmi Reddy's case, AIR 1937 PC 201. Their Lordships were merely pointing out what should be the correct procedure to be followed by the courts in recording evidence in examination-in-chief on matters relevant under Section 50 of the Evidence Act. Neither did they expressly observe nor intended to lay down that if there was any defect or lacuna and that is removed or supplied by statements of the witness in cross-examination in answer to questions of the cross-examiner inadvertently put to him, even then the statements made in examination-in-chief should be turned down and not considered. Learned counsel for the appellant was not able to cite any decision to show that the contention of learned counsel for the respondent in this regard was not correct. If the basis for a statement made in the examination-in-chief is not there a wise cross-examiner will leave the matter as it is and then submit that the statement cannot be relied on, but if he himself supplies by eliciting statement in the cross-examination what was wanting in the examination-in-chief, he and his client must suffer for his folly and it will not be open for them to contend that the statement in examination-in-chief was not admissible in evidence.

10. Having stated the correct position in law as to how admissibility of opinion which is relevant under Section 50 of the Evidence Act is to be decided, I now propose to proceed with the examination of the oral evidence in the case on the question whether the respondent is a daughter of Tengari, the alleged testator. However, I would like to make it clear now and here that evidence of mere general reputation (without conduct) is not relevant as proof of relationship and evidence of witnesses who do not speak of conduct of their own or of some other person in support of their opinion which is sought to be proved is not admissible. Nine witnesses examined on behalf of the respondent, namely, A.Ws 1, 2, 3, 4, 5, 6, 8, 11 and 12 have stated in their evidence that the respondent is the daughter of Tengari. Of these, A.W 3 Lakhan is a barber and claims in his examination-in-chief itself that he got the marriages of the three daughters of Tengari performed. A.W 4, Rambachan Pandey, claims to be the priest of Tengari and in his examination-in-chief itself has said that he had officiated as such at the marriages of Tengari's three daughters. A.W 5, Ram Murat, is the husband of the respondent and in his examination-in-chief itself has stated that he was married with the daughter of Tengari, namely, the respondent, A.W 6 is Jhanjho who, according to the respondent is one of the three daughters of Tengari. She in her examination-in-chief itself has said that she is the eldest daughter of Tengari and that the respondent was the youngest one. A.W 12 is the respondent herself and claims in her examination-in-chief itself that she is a daughter of Tengari, the testator. The evidence of these five witnesses is certainly relevant on the question of relationship between Tengari and the respondent either under Section 50 of the Evidence Act or otherwise. Even learned counsel for the appellant did not contend that their evidence was not admissible. He urged, however, that their evidence was not reliable. I shall be dealing with the question of their reliability separately at a later stage.

11. A.W 1, Malu Gosain, besides stating that the respondent is a daughter of Tengari, has further stated in his examination-in-chief itself that she had been living with her father for 15 or 16 years even after her marriage as her husband also lived there and used to manage the cultivation of her father. In his cross-examination he has stated that he used to go to Tengari Gosain during his illness and talk to him. He comes from the very village Sarna Mathia. A.W 2, Radha Goswarm, is also from the same village. He has stated in his examination-in-chief that the respondent is the youngest daughter of Tengari, that she has been living in village Sarna for about 12 to 13 years and that lands and properties of Tengari are in possession of her husband. Ram Murat. In his cross-examination he has said that the occasions which gave him the opportunity to know that the respondent and her two sisters were Tengari's daughters were that he saw them being sent to their sasural, being brought therefrom by Tengari and being treated by him as daughters. A.W 8 too is from village Sarna. He in his examination-in-chief has said that the respondent is a daughter of Tengari, her sons were born in his village and properties of Tengari are in possession of her husband. In his cross-examination he has stated that he had concern with Tengari and he was on visiting and dining terms with him. A.W 11 is from a different village who claims that his aunt (father's sister) was married with Tengari and the respondent and her two sisters were their daughters. In examination-in-chief itself he has said that he used to go to Tengari frequently and in his cross-examination has asserted to have attended the marriage of one of the sons of the respondent. These four witnesses also, as claimed by them, had special means of knowledge of the relationship in question and have spoken of conduct of the members of the family of Tengari and their own expressing opinion on the relationship. Therefore, their evidence also appears to be relevant under Section 50 of the Evidence Act. The contention of learned counsel for the appellant that the evidence or the aforesaid four witnesses was not relevant under Section 50 of the Evidence Act cannot, therefore, be accepted. Of course his contention that their evidence is not reliable remains to be considered hereafter.

12. Out of the aforesaid nine witnesses, A.Ws 1, 2, 5 and 12 in their evidence have stated that Tengari died in the month of Baisakh. The court below has held that Tengari did not the in the month of Baisakh as was the applicant's case, but died in the month of Sawan as alleged by Bishwanath (appellant before this court). Thus, he has not accepted the evidence of the A.Ws on this question. The evidence of the witnesses for the appellant on this point was supported by Ext. H, entries in death register. There was some controversy in absence of evidence of proof who made the entries at the bar as to the admissibility of the entries and what was the source of his information. The law on the point is well settled and does not need discussion in detail. However, since the point was raised I may refer to two recent Bench decisions of this Court in Bujhawan Singh v. Shyama Devi, AIR 1964 Pat 301, where it has been held that the entries in birth and death registers are public documents and are admissible under Section 35 of the Evidence Act and that it is not necessary to prove who made the entries and what was the source of his information, and in Gopichand Arya v. Bedamo Kuer, AIR 1966 Pat 231 laying down that death register is a public document, presumption of correctness attached to it and heavy onus lies on the party who wants to dispute the presumption. On the evidence of the aforesaid four witnesses the presumption of correctness which is attached to the entries in Ext. H is not rebutted and the finding of the court below on this question has to be maintained.

13. Mr. Roy appearing for the appellant contended that no reliance should at all have been placed on the evidence of these witnesses even on other points, such as whether the respondent was a daughter of the testator when they deliberately made wrong statements as to the month of death of the testator. Perhaps, it was in their anxiety to show that no will could at all have been executed by Tengari in the month of August, 1956, if he was already dead in the month of Baisakh, that such a case was made out in the application for revoking the grant of the probate and evidence was also led in support of it. The maxim falsus in uno, falsus in omnibus is no longer applied unqualifiedly even to criminal cases and it is now well settled that it is the duty of the Court to find out where the truth lies after separating the chaff from the grains. Therefore, if the evidence of the A.Ws on the question of the alleged relationship between the respondent and the testator is found to be otherwise reliable, their testimony cannot be rejected merely because they have wrongly stated that Tengari died in the month of Baisakh.

14. Another general argument of learned counsel for the appellant for disbelieving the A.Ws was that they made discrepant statements as to the age of the three daughters of the testator and the time of their marriage. Evidence of witnesses in this country cannot be discarded on the ground of discrepancies as to time and date of matters in respect of which they do depose. They are mostly illiterate and their evidence as to time and date cannot be expected to be arithmetically correct. Their statements on such matters are generally by guess and cases of parties for whom they depose cannot be thrown out and disbelieved on such discrepancies.

15. [His Lordship then discussed the evidence of the witnesses of the both parties and held:] The learned Additional District Judge, therefore, appears to be correct in holding that the applicant was a daughter of Tengari.

16. On the question whether the appellant is sister's son of Tengari, the evidence of witnesses on behalf of the applicant is mostly negative in character. The evidence consists of all the A.Ws referred to above on the question of relationship of the applicant with Tengari plus that of A.W 7.

[His Lordship then discussed the evidence of A.Ws and D.Ws and concluded:] On the evidence on record, therefore, it is not possible to take a view different from one taken by the court below and to hold that the appellant. Bishwanath is sister's son of Tengari.

17. A person having daughters is not likely to execute a will in favour of strangers or even in favour of his sister's son without making any provision for the daughters. It has already been held earlier that the applicant is a daughter of Tengari. Absence of any provision for her or her other sisters in the will is a strong circumstance showing that the will is not a genuine will of Tengari. There was a controversy between the parties as to whether Tengari died leaving a widow or his wife predeceased him. According to the applicant, Tengari's widow died a few days after his death. According to the appellant, she died before Tengari. If the widow was dead before Tengari, then there was no necessity at all for Tengari executing a will in favour of the appellant, because, according to him, he was the only heir of Tengari after the death of his widow if the wife of Tengari was alive on the date of the execution of the alleged will, then absence of any provision for her in it makes the document suspicious one. The fact that the appellant did not take immediate steps for obtaining the probate of the will in spite of the fact that he could not get possession of the property of Tengari is another circumstance showing that the will in question is not a genuine document.

18. The evidence led on behalf of the appellant in support of the execution of the will by Tengari is also not trustworthy. D.W 5 who in his examination-in-chief claims that he was present when Tengari executed the will in favour of Bishwanath, in his cross-examination has said that he does not know where the will was executed and that he came to know of the will as there was hulla in the village about it and he heard it D.W 6 is the scribe of the will. He came all the way from Bikramganj to the village home of Tengari for scribing the will still he did not bring any stamped paper or demi-paper for writing the will. He has admitted that never before he had scribed any document for Tengari and there is another scribe Lalan Lal who hails from village Sareya which is only at a distance of a mile from Sarna Mathia. No satisfactory explanation could be offered for calling this man to the village home of Tengari for scribing the will and not Lalan Lal. Learned counsel for the appellant argued that this scribe is a competent man and, therefore, his services were requisitioned. The 14th of August, 1956 on which the will was executed was a working day and the sub-registration office at Bikramganj was open and in spite of that this witness left the registration office for the whole day for a remuneration of only Rs. 2/- to Rs. 4/-. On his own evidence, therefore, this scribe was not very much in demand.

19. D.W 8, Baiju Singh, is the person in whose pen Tengari admitted the execution of the will. According to him, information was sent to him at about 8 O'clock in the morning, but he went to Tengari's house only at about 3 P.M He says that Tengari though suffering from small pox was sitting on a cot at the time of the execution of the will. In villages a person, who suffers from small pox does not sit or sleep on a cot. Further, according to him, it was Tengari himself who took out blank paper from his box on which the will was scribed, but according to the scribe (D.W 6) Tengari got the paper through another man. The only other witness who has spoken of the execution of the will by Tengari is D.W 16, the appellant himself. The evidence of the D.Ws as to the condition of health of Tengari at the time of the execution of the will is also discrepant. According to D.W 6 the scribe, though Tengari was suffering from small pox and ill, he was speaking. According to D.W 8 also, Tengari was in his full senses at the time of the execution of the will and was not in pains. D.W 16 too in his evidence in the court below attempted to make out a case that Tengari was in full senses at the time the will was executed, but in his deposition in the title suit before the Munsif, Sasaram, he had stated that Tengari was in agony.

20. It was strongly contended by learned counsel for the appellant that as no witness on behalf of the applicant denied that the thumb impression on the alleged will was not of Tengari, it followed that the will was genuine one. A.W 5, Ram Murat Gosain, husband of the applicant, in the examination-in-chief did state that the will was a forgery. It cannot, therefore, be said that the applicant did not challenge the genuineness of the will.

21. It has not been proved by reliable evidence that general citations issued in the probate proceeding were properly served Ramji (D.W 5) and Motilal (D.W 15) who are witnesses on the service report are interested persons. The peon who served the citations has not been examined. D.W 13, Lochan, claims that he had beat the drum, but the service bears the thumb impression of one Mangru. According to D.W 13, Mangru is his cousin and though he beat the drum, Mangru gave thumb impression on the notice. This appears to be highly improbable.

22. All these show that general citations in the probate proceeding were not served in the village and they were suppressed. This is also a circumstance against the genuineness of the will. If the will would have been a genuine one, the appellant would not have got the notices suppressed and kept the daughters of Tengari in dark. My considered opinion, therefore, is that the court below has rightly held that the will purporting to be of Tengari of which the appellant had obtained a probate is not a genuine one.

23. For the foregoing reasons, there appears no merit in the appeal and it is, accordingly, dismissed with costs.

24. Anwar Ahmad, J.:— I agree.

D.R.R

25. Appeal dismissed.