Malik, J.:— This appeal has been filed by one Bal Govind who had filed an application for revocation of letters of administration granted to the respondents.

Mst. Raj Rani was the wife of the appellant, Bal Govind. She died in the year 1941. It was alleged by the respondents that she had left a will dated the 28th of November, 1941. An application for the letters of administration on the basis of the will was filed in the court of the learned Temporary Civil and Sessions Judge, Cawnpore, on the 2nd February 1942 by Shri Ram on behalf of himself and his younger brother, Shyam Lal, who was a minor. In that application no relations of Mst. Raj Rani were cited to whom special citation could be issued. Even the name of her husband was not disclosed in that application as one of the persons to whom notice should be sent, though in the body of the application it was mentioned that she was daughter of Jodha and wife of Bal Govind. Under section 278 of the Indian Succession Act (XXXIX of 1925) the application for letters of administration should contain the names of the relatives of the deceased and their respective residences so that notices should be issued to them. No notice was therefore issued to Bal Govind and the letters of administration were granted to the applicants, Shri Ram and Shyam Lal. On the 8th July 1942, Bal Govind filed an application for revocation of the letters of administration on the grounds that no notices were issued to him and the letters of administration were fraudulently obtained by concealing the name of Bal Govind. It was further mentioned that the will was forged and the lady had died on the 24th November, 1941, four days before the date of the alleged execution of the will. The lower court had, therefore, two points for decision before it, firstly, whether just cause had been made for the revocation of the grant of letters of administration on the ground that special citations were not issued to Bal Govind, and secondly, whether the letters of administration should not be granted because the will relied upon by the applicants was a forged will. Both the parties produced witnesses. It appears that the objector, Bal Govind, led his evidence first and it was after the close of his evidence that the witnesses were examined on behalf of the respondents. The lower court considered the evidence produced on behalf of the objector and as well as on behalf of the respondents and came to the conclusion that the will was genuine and held that there was therefore no sufficient cause for the revocation of the letters of administration. It is against that order that Bal Govind has filed this appeal.

Learned counsel for the appellant has argued that the proper procedure for the court below was to have annulled or revoked the letters of administration that had already been granted and then asked the propounders of the will to prove the will in the presence of the objector and issued fresh letters of administration if the court was satisfied, as regards genuineness of the will. His argument is that Shri Ram and Shyam Lal knew of the existence of Bal Govind and of his relationship to Mst. Raj Rani. They had, therefore, deliberately when making the application for letters of administration, omitted his name though they were bound under section 278 to mention his name as one of the persons to whom special citations should be issued. He has urged that under section 263 of the Indian Succession Act the grant of probate or letters of administration may be revoked or annulled for just cause and the fact that the letters of administration were obtained by concealing from the court something material to the case was a just cause for the revocation of the letters of administration. The argument of learned counsel is that this was a case where if his client had come to know of the proceedings and special citations had been issued to him, he would have put the applicants to prove the will and the will would have been proved in his presence and he would have had an opportunity of cross-examining the witnesses and producing other evidence before the court to show that the will was not genuine. This argument of the learned counsel has no doubt great force and if the matter had been only at the preliminary stge we would have held that, by reason of the fact that the applicants had not cited the husband as a person to whom special citation should be issued, the ex parte grant of the letters of administration should be revoked and the applicants should be directed to prove the will in the solemn form. But the difficulty has arisen by reason of the fact that the parties themselves produced evidence on the question of the genuineness of the will and after having recorded such evidence as the parties wished to produce, the court came to the conclusion that the will was genuine. It would be useless and waste of time if we were now to ask the court below to revoke the letters of administration and record the evidence afresh which has already been recorded and then to grant letters of administration.

In a case where the procedure adopted by the trial court was the same as in this case their Lordships of the Privy Council held that neither party could be said to have been prejudiced by the procedure adopted and went into the question whether the will was or was not genuine. See Ramanandi Kuer v. Kalawati Kuer(1). Dealing with this, point their Lordships after quoting section 50 of the Probate and Administration Act of 1881 which has now been replaced by section 263 of the Indian Succession Act, observed as follows:

“It is apparent that the plaintiff in this case set up both these grounds for revocation (that is, that the grant was made without citing parties who ought to have been cited and the will of which probate was obtained was a forgery)….”

If these issues were tried separately and the plaintiff succeeded on the first issue, that in itself would be sufficient for revoking the probate; but it would still be open to the defendant to prove the will and, if she succeeded, the probate would stand.

If on the other hand the plaintiff failed on the first issue, that would not preclude her from proceeding to prove her second ground viz., that the will was forged, and the probate would stand or fall, according to the result.”

It would appear from the above quotation that where a will has been proved in the solemn form, after citing the parties who ought to have been cited and there is no just cause for revocation, if any one then challenges the validity of the will and wants the probate revoked on that ground, then it is for him to prove that the will was forged. If on the other hand there is sufficient ground for revoking the probate apart from the question of genuineness of the will then it is for the propounder of the will to prove the will afresh in the presence of the objector. Their Lordships go on to observe that these two issues might have been tried separately, but they were not so in fact as evidence was given by each party in support of their respective cases on both issues together and not separately. That is exactly what has happened in this case, and under these circumstances, we consider that it would be proper that we should consider the evidence for ourselves and see whether the decision of the court below that the will is genuine is correct. We do not think that we can, merely on the technical ground that proper parties were not cited now hold that this appeal should be allowed and the grant of letters of administration should be revoked and the case sent back for consideration of the question whether the will is or is not genuine.

On the merits it is true that the will is that of a lady Mst. Raj Rani and she has purported to give the entire property to Shri Ram and Shyam Lal in preference to her husband. We have, however, examined the contents of the will and it appears that she has made some provision for her husband also and has provided that the beneficiaries, that is, Shri Ram and Shyam Lal, should pay a quarter of the income to Bal Govind and he has been given the right to realise the same by suit in case they fail to make the payment. There is no evidence on the record as regards the feelings between the husband and the wife, but from the evidence of Bal Govind it appears that he left Mst. Raj Rani without any apparent reason about four days before she died, according to his evidence, and nine days before she died, according to the evidence, on the other side and did not return to his house for almost a month. Before he left her she used to have complaints of pain in her stomach, though he says that she was hale and hearty. The evidence of the witnesses produced by Bal Govind is that she was unconscious, at any rate, she was very seriously ill, when she was removed from her house on the 20th November on a cot by Ram Sarup and a few other neighbours. Ram Sarup is her husband's cousin. Bal Govind was asked in cross-examination whether Mathura Prasad was a brother of his father and whether Ram Sarup was the son of Mathura Prasad, but he feigned ignorance on the point. We cannot believe that he would not know whether Mathura Prasad was or was not his father's brother, and we attach some significance to the fact that he did not boldly deny the relationship. His witness, Shambhoo, admitted that Ram Sarup was the Jeth, that is, elder brother of Mst. Raj Rani's husband. From the cross-examination of Bal Govind it does not appear that he is a young man of exemplary character. He was once found in possession of contraband charas, and that may be the reason why his wife left his property to his nephews while reserving a portion of the income as maintenance for him. We are not impressed by the evidence of the witnesses produced on behalf of Bal Govind that Mst. Raj Rani had died on the 24th November. Bal Govind himself has no knowledge on the point. Shambhu's only source of information was Ram Sarup himself. But we cannot believe that if Ram Sarup had planned to have a forged will prepared on the 28th, he would have informed the witnesses for Bal Govind that the lady had died on the 24th. Sheo Narain the next witness for the applicant has made a curious statement. He claimed that he joined the funeral of Mst. Raj Rani on Aghan Sudi 7, the lady having died a day before. He is the first witness who started giving Hindi dates. Previous to that, the 24th of November, was mentioned as the date of her death, and the equivalent Hindi date was not mentioned. When the witness was, asked in cross-examination how he could take part in the funeral as he was employed in the Lal Imli Mills where he was required to be present at 6.30 in the morning up to 6 in the evening, he gave the explanation that Aghan Sudi 7, being Sunday the Mill was closed and that is how he took part in the funeral. We have looked into the calendar and find that Aghan Sudi 7, that is the 25th November, was not Sunday, but was Tuesday. On the other hand the 30th of November was Sunday. If this witness is a witness of truth, it may be that he has made a mistake as regards dates and it was really on the 30th November that he attended the funeral. But we are inclined to the view that the witness is not a witness of truth and he was only taking a chance under the stress of cross-examination in the hope that nobody would check the dates from the calendar. The evidence of the other two witnesses, Manna Lal and Bishnath are equally unsatisfactory.

On behalf of the applicants a doctor and a compounder were produced, but we cannot attach much importance to their evidence. They did not know Mst. Raj Rani nor were they in a position to say whether the prescription was for her. The case for the applicants must rest on the evidence of the three attesting witnesses to the will, namely, Bishwanath, Hatim Ali and Gaya Prasad. There is nothing in their cross-examination which would entitle us to reject their evidence. They were examined and cross-examined before the learned Civil Judge who had no hesitation in accepting their statements. The will is a registered document and it was registered by the sub-registrar at the house of the lady on the 28th of November, 1941. Learned counsel for the appellant has made some point of the fact that the lady was identified by Ram Sarup and another. That fact can only be of some significance if identity of the executant was disputed. But learned counsel at the beginning of his argument when asked by the court stated that he was not disputing the genuineness of the thumb-impression. According to him the lady was literate and if the will had been properly executed by the lady, it would have been signed by her and it would not have borne her thumb-impression. There is no satisfactory evidence on the record that the lady was literate. Bal Gdvind in his cross-examination admitted that he had not filed any document which bore the signature of his wife. Some of his witnesses say that she was being taught by a missionary lady, but what progress she had made we do not know.

In the result we are satisfied that the will is the will of Mst. Raj Rani and was duly executed by her and the letters of administration issued by the court below cannot, therefore, be revoked. This appeal is dismissed with costs.