Mitter, J.:— One Gostha Behari Lohari died on the 13th January, 1938, survived by a childless widow, Matibala, and by a full brother of the name of Bholanath. Bholanath propounded a Will said to have been executed by Gostha Behari on the 12th December, 1937. The application for probate was filed by him on the 13th May, 1943. Probate was granted to him on the 10th June, 1943, after the issue of a special citation on Matibala and a general citation in terms of sec. 283 of the Indian Succession Act. Mahammad Ibrahim Midda and others who claim to be the purchasers from Matibala of four items of property covered by the Will, made an application on the 10th July, 1943, for the revocation of the probate. They urged two grounds in support of their application for revocation, namely, (1) that the probate had been obtained by the fraudulent suppression of material facts and (2) that the Will was a forgery. The averments on which they intended to support the first ground are contained in paragraphs 4 and 5 of their, application for revocation. The substance of those allegations is as follows: That by a registered conveyance dated the 5th March, 1943, they had purchased those properties from Matibala; that the propounder Bholanath knew of that purchase but inspite of his knowledge of the said purchase he suppressed that fact in his application for probate which was made later on, that is to say, on the 13th May, 1943, with the result that no special citation was issued on them. The propounder Bholanath filed an application objecting to the revocation of the grant. On the pleadings of the parties three issues were framed by the learned District Judge. Those issues are: (1) Whether the applicants, namely, Mahammad Ibrahim Midda and others, had locus, standi to make the application for revocation of the grant, (2) whether there was substantial defect in the procedure when the grant was made and (3) whether the Will was a forgery. The learned District Judge answered all the three issues against the applicants with the result that he refused to revoke the grant. Ibrahim Midda and others, the purchasers from Matibala, have preferred this appeal.
2. We may at once say that we do not consider the judgment of the learned District Judge to be satisfactory. The Will gives the share of Gostha Behari in 16 items of property to Bholanath with a direction that Bholanath was to enjoy one-third share of the income from those properties and to spend the remaining two-thirds share thereof towards the worship of an idol, Bishalakhi Thakurani, an idol which was not the family idol of Gostha Behari but an idol of the whole community to which Gostha Behari belonged. The kobala which was executed on the 5th of March, 1943, in favour of the appellants and which was registered on the same date purports to convey to the Appellants the last three items, namely, Items Nos. 14, 15 and 16 mentioned in the schedule to the Will. Prima facie, the Appellants would have the locus standi to maintain the application for revocation because they are the representatives of the heir-at-law, Matibala. The learned District Judge, however, made two suggestions: (1) that the said conveyance had not been executed by Matibala or (2) it represented a fictitious transaction. It is not clear from the judgment what is his exact finding. The kabala bears a thumb impression. The name of Matibala, who was illiterate, is signed by one Sripati Charan Saha. There is also an endorsement in the kabala that it was read over to her by Pashupati Charan Saha. There were a number of attesting witnesses, one of them being Bhuban Chandra Guha. One of the Appellants, namely, Ibrahim Midda, and Bhuban Chandra Guha were examined to prove the conveyance. Both of them stated in their deposition that Pashupati explained the document to Matibala that then Matibala affixed her thumb impression on the document and she being illiterate, her name was written on it by Sripati Charan Saha. There was a discrepancy in their evidence as to the place where the consideration money was paid to Matibala, one stating that it was paid at the Registration Office, the other that it was paid at her house before the document was registered. Nobody on behalf of Bholanath has come forward to say that the thumb impression appearing on the conveyance is not the thumb impression of Matibala. The learned District Judge, however, commented on the absence of Matibala from the witness box as also the absence of Pashupati who is said to have explained the document to the vendor and of Sripati who wrote the name of Matibala on the document. He also noticed the discrepancy which we have noticed about the time and place of the payment of the consideration. From those facts he came to the conclusion that he was not satisfied that the document was the document of Matibala. We do not consider the reasons of the learned Judge to be convincing. We have already pointed out that nobody on behalf of Bholanath stated that the thumb impression appearing on the document was not the thumb impression of Matibala. The learned Judge also overlooked the fact that the document was registered and the lady was identified as Matibala before the Sub-Registrar. There is no suggestion in the evidence of Bholanath or in the cross-examination of the Appellants' witnesses that there was false personification at the time of the registration of the document. Under these circumstances, we think that the evidence that has been led by the Appellants is sufficient for the purpose of the first issue which the learned District Judge was considering, namely, whether the Appellants had locus standi to make the application for revocation.
3. It is a case of the Appellants that after the registration of the kabala of Matibala they went to fish in two of the tanks which were the subject-matter of the said conveyance. They caught fish to the knowledge of Bholanath. They divided the catch. They took a portion of the catch which would be due to their share on the basis of the said conveyance and gave proportionate shares to the other co-sharers. Bholanath who was a co-sharer in his own right apart from the Will was offered a share but Bholanath insisted on having a larger share, namely, the share that he had in his own right and the share which belonged to Gostha Behari. The demand of Bholanath was not complied with by the Appellants. This was in Baisakh, 1350, 5th or 6th. The evidence of Bholanath on the other hand is that fish has never been caught by anybody from Falgoon, 1349 B.S up to the date of his deposition in Court. The learned District Judge, however, has given preference to the story of the Appellants. He has found that the Appellants in fact caught fish from two of those tanks in Baisakh, 1350, to the knowledge of Bholanath, He, however, made the following observation: “That does not, however, prove that Bholanath knew that the Petitioners were bona fide purchasers. They might have been mere trespassers or as I have been led to think in this case, they might have been persons with only a colourable title, but not a genuine one.” The subsequent conduct of Bholanath, namely, that shortly thereafter he went to the Probate Court and made an application for probate has not been given by the District Judge the importance it deserves. The proper conclusion to come to, in our judgment, is to find that not only Bholanath knew that the Appellants came to fish in assertion of their right to the tanks but knew that they had taken a conveyance from Matibala. Therefore, at the time when he made the application for probate which was on the 13th May, 1943, corresponding to some day in Jaistha, 1350, he knew that Matibala, the heir-at-law of Gostha Behari, had parted with her interest in at least the tanks which were the subject-matter of the Will. He, however, did not state in his application for probate that Matibala had sold those tanks on the footing that Gostha Behari had died intestate. The Court was not apprised of the fact that a purchaser had stepped into the shoes of Matibala in respect of some of the properties mentioned in the Will. The fact of the sale by Matibala before the application for probate was, in our judgment, something “material to the case” within the meaning of cl. (b) of the explanation to sec. 263 of the Indian Succession Act, for that fact, if disclosed, would have been material for the Probate Court in the consideration of the question as to whether special citation was to be issued upon the purchasers in view of the provisions of sec. 283(c) of the Indian Succession Act. The further point therefore lis whether Bholanath had fraudulently suppressed that fact when he made the application for probate. On the facts, we have no doubt that it was so. Paragraph, 10 of his application for probate is significant. It is quite clear, on the facts, that he wanted to keep back the knowledge of the probate proceedings from the Appellants, in order that there may not be a contest and that he accomplished that object by intentionally keeping back from the Court the fact that before his application for probate Matibala, the heir-at-law of Gostha Behari, had sold some of the properties, dealt with in the Will, to the aforesaid purchasers. The second issue which we have formulated above ought to have been answered by the District Judge in favour of the Appellants and we answer that issue accordingly.
4. In view of this decision it is not necessary for the Appellants to establish positively that the Will was a forgery. In cases where revocation is applied for on two grounds, namely; on grounds which come under (a), as also on the ground that the Will is a forgery the procedure has been laid down by Lord Sinha in the case of Ramanandi Kuer v. Kalwati Kuer(1). In view of our answer in favour of the Appellants on the second issue the onus would not be, as was pointed out by Lord Sinha in that judgment, on the Appellants to show that the Will was a forgery but the onus would be upon Bholanath to prove that the Will is the valid Will of Gostha Behari. Keeping in view the question of onus the evidence bearing upon the Will will have to be examined. In the light of these observations we will now proceed to examine the evidence relating to the execution of the Will.
5. The common evidence is that Gostha Behari was suffering from venereal disease for a very long time. He despaired of his life. He was on very good and affectionate terms with his brother Bholanath. On the 21st April, 1937, Gostha Behari made a gift of nearly the whole of his properties in favour of his brother Bholanath. The registered deed of gift is Exhibit B. A month before his death he left his own house and went over to his father-in-law's house which was in the adjoining village and there he died on the 13th January, 1938. The Will was propounded in Court more than five years after his death and only after Matibala had sold some properties on the footing that Gostha Behari had died intestate and she was his heir. The first circumstance, therefore, to be taken into consideration is the delay in propounding the Will and the circumstance under which the Will was propounded in Court. The second circumstance which is to be taken into consideration is that in the Will no provision is made for the maintenance of Matibala. The third circumstance that must be taken into consideration is the fact that most of the attesting witnesses are relations of the propounder Bholanath. The propounder Bholanath has examined himself and the following witnesses: Prafulla Kumar Chakravarty, Monmohan Laik, Arshed Gain and Sishuram Lohari. Other attesting witnesses who have not been examined are Surendra Nath Chakravarty, the nephew of the witness Prafulla Kumar Chakravarty, Satish Behara, a barber, Ashutosh Lohari, the father-in law of Bholanath, and Pachai Chandra Lohari, a cousin of Bholanath. All these witnesses who have been examined deposed to the preparation of the Will, its reading over to the testator, execution by him in the presence of the attesting witnesses and the attestation of his signatures by the attesting witnesses in his presence. The question is, in view of the circumstances which we have pointed out, whether the positive evidence in support of the execution of the Will is to be believed or discarded. The further fact that is to be considered is as to whether the five signatures on the Will tally with the admitted signatures of Gostha Behari in the deed of gift, Ext. B, which he executed in favour of his brother Bholanath shortly before the Will.
6. The deed of gift is accepted by both the parties as genuine. The recitals in that document show in what affectionate terms Gostha Behari was with his brother Bholanath and what confidence Gostha Behari had in him. By the deed of gift nearly all the income bearing properties of Gostha Behari was gifted away in favour of his brother Bholanath. In that document Gostha Behari states that it was not necessary to make any provision either for himself or his wife during the rest of his life or of his widow after his death, because he was quite convinced from the past conduct of Bholanath that without any legal injunction in that respect the latter would maintain him and his wife during his life-time and his widow after his death. The Will deals with small shares in small plots of land which Gostha Behari retained after the deed of gift. Out of the 16 items three items consisted of undivided shares in tanks. There is a small item of bastu land, a very small, area of sali land and the rest was laik patit, the area in Gostha's share being not considerable. Having; regard to the nature and the extent of the properties which are mentioned in the schedule to the Will it is impossible to conceive that the income therefrom would sustain the maintenance of Matibala. In these circumstances we do not consider the absence of any provision in the Will for Matibala's maintenance to be of sufficient importance, nor do we consider the delay in propounding the Will to be a material factor in this case. The property dealt with by the Will was very small, the income of which would not be an appreciable one and even ⅔rd thereof was to be devoted to the worship of what can be described roughly as a village deity and only ⅓rd of which was to go to Bholanath.
7. That some of the attesting witnesses to a Will would be relations is natural. But having regard to the conduct of Bholanath in suppressing the fact that Matibala had transferred some of the properties to the Appellants on the basis of intestacy, we do not think it right to place any reliance upon his evidence nor can we give any implicit credence to the evidence of that attesting witness who is his relation, namely, Sishuram Lohia. Prafulla Kumar Chakravarty is not a relation of his but a priest of his community. It is expected that he would have a natural leaning towards his disciple Bholanath. For this reason we do not think that it would be right to rely implicitly on the evidence given by Prafulla. There remains, however, the evidence of Monmohan Laik and of Arshed Gain. Ibrahim Midda in his examination-in-chief made an attempt to under-rate the position of those witnesses. He stated that Monmohan was a professional tadbirkar and Arshed Gain was an ordinary bhagdar. It is, however, established by evidence that those were not the characters of Monmohan Laik and Arshed Gain.
8. The learned District Judge saw Arshed Gain and he made a note from the appearance and bearing of Arshed Gain that he was not an ordinary bhagdar. Monmohan Laik deposed. He described himself to be a zamindar, a member of the Union Board, and member of other Government Committees to which men having influence in the locality are expected to be nominated by Government Officials, as for instance, War Purposes Committee. The statement that he made regarding his own position in society was not challenged when Monmohan was cross-examined. Neither Monmohan nor Arshed Gain have teen shown to have any interest in the litigation. Under these circumstances there is nothing to show that those two persons were not honest witnesses. We think it would be right to rely upon their evidence. In view of the fact that we hold Arshed Gain and Monmohan to be honest witnesses the point about the delay in propounding the Will and the circumstances under which it was propounded lose all importance, as has been pointed out by the Judicial Committee in the case of Manindra Chandra Lala v. The Mahaluxmi Bank, Limited(2).
9. We therefore hold that although the Appellants had locus standi to make the application for revocation and the ex parte grant was liable to be revoked by reason of the fraudulent suppression of a material fact, the Will is the Will of Gostha Behari. The probate that has been issued to Bholanath must, therefore, stand.
10. In view of the unsatisfactory nature of the judgment of the learned District Judge we think that it would not be right to saddle the Appellants with costs of this appeal. We direct the parties to bear their respective costs of this Court.
Akram, J.:— I agree.