Das, J. -
(1.) This is an appeal against the judgment of the learned Dist J. of Cuttack, granting probate to one Fagu Prusti, of the will of one Narayan Prusti. The appct is the brother of the testator, who is also the executor under the will. The objector, who is the applt before us, is the wife of the testator. The will is said to have been executed on 30-5-38. The testator admittedly died two months thereafter on 2-8-1938. He was about 35 years old at the time of his death. He left him surviving the applt, his wife Nilambar Bewa, and a daughter aged about 6 years, Padma Dei. Subsequent to the birth of his daughter, he appears to have had two male children, one after another, but they had both died before the date of the alleged will. It would appear from the evidence of the applt that the second of the male children was born about a year prior to the testator's death & died when he was a baby less than 10 months' old. The will purports to be executed in favour of one Brajabandhu Prusti, the minor son of Fagu Prusti, the resp. In support of the due execution of the will, two persons purporting to be the attestors thereof, nave been examined as P. Ws. 1 & 2 & the will has been marked as Ex. 1. The wife who has examined herself as D. W. 1 & who appears to be literate & claims to be acquainted with the writing & signature of her husband, denies that the signature in the alleged will is that of her husband. The will also purports to bear the thumb impression of the testator. No documents have been filed on either side for comparison of the alleged signature or thumb impression in the will. The will has not been registered & it has been produced by the resp for the first time in the year 1941 in connection with certain land revenue proceedings. It would appear that the applt, Nilambar Bewa, applied for mutation of her name in the place of her deceased husband in respect of his properties. But the resp, Pagu Prusti objected on behalf of his minor son & produced the will in support of his objection before the Revenue Ct as appears from Ex. 4, the order in the land-revenue proceedings dated 24-10 41. The proceedings terminated against the applt & we have been informed at the Bar that the applt has thereupon filed a title-suit which is now pending & has been stayed to await the disposal of this appeal.
(2.) The applt has, in addition to challenging the genuineness of the will, contended that her husband died undivided, implying thereby that the will is invalid. This contention has presumably been raised with a view to take advantage of the provisions of the Hindu Women's Rights to Property Act of 1937, which has been made applicable retrospectively to the agricultural property in Orissa by Orissa Act of 1944. She has also raised the contention that the properties of the testator disclosed in the probate proceedings & specifically mentioned in the will are far less than what the testator died possessed of. Neither of these questions, namely, as to the testamentary capacity of the testator or the extent of the properties in respect of which the will may become operative are matters with which the Ct is concerned in these probate proceedings. It is therefore unnecessary to say anything regarding the same. It may also be mentioned that under the terms of the alleged will, the appct is to be the executor only during the minority of his son who, at the time of the alleged execution of the will, was 14 years old as spoken to by P. W. 1 & who therefore must have been major by 1944 when this appln was made. It is doubtful whether under the circumstances, the appct had a right to apply for the probate. No such question has been raised before us & it is unnecessary therefore to say anything further about it.
(3.) When an appln is made for the grant of probate of a disputed will, the Ct called upon to do so has to be fully satisfied that the document has been duly & validly executed & attested & that it is the legal declaration of the intention of the testator with respect to the property which he desires to be carried into effect after his death. The onus, in such cases, rests on the person who propounds the will to establish that it is the will of a free & capable testator who at the time had a sound disposing state of mind. But where circumstances exist, which excite the suspicion of the Ct, it is for those who propound the will to remove such suspicion & to prove affirmatively that the testator knew & approved the contents of the document. This onus is all the greater where the person who propounds the will takes a benefit. These propositions are well established & beyond any question. See 'Barry v. Butlin', (1838) 2 Moore PC 480: (46 R R 123); 'Tyrrell v. Palnton', (1894) PD 151: (70 LT 453. No doubt mere unreasonableness or inofficiousness of a will is not to be treated as a suspicious circumstance, if there is cogent & reliable proof of valid execution by the testator in a sound disposing state of mind. See 'Monghibhai v. Pragji Dayal', AIR (12) 1925 PC 198: (89 IC 88). Nor should any mere circumstantial improbabilities be allowed to outweigh reliable & positive testimony. See 'Chotey Narain Singh v. Ratan Koer', 22 Cal 519: (22 IA 12 P C). It is also true to say that bare conflict of testimony as to the factum of valid execution by the testator or as to his capacity is not to be treated as an item of suspicion within the meaning of the rules laid down in 'Barry v. Butlin', (1838) 2 Moo PC 480: (46 RR 123) & 'Tyrell v. Painton', (1894 PD 151: 70 L T 453). See 'Jarat Kumari v. Bissessur Dutt', 39 Cal 245: (13 IC 577); 'Sarojini Dassi v. Haridas Ghose', AIR (9) 1922 Cal 12: (49 Cal 235); & 'Prasannamoyi Debi v. Baikuntha Nath', AIR (9) 1922 Cal 260: (49 Cal 132). But where there is such conflict of evidence and the best evidence relating to the factum of the execution & the circumstances relating thereto has been given, the Ct may well hold the will not proved. See 'Bindeshri Prasad v. Mt. Baisakha Bibi', AIR (7) 1920 PC 70: (61 IC 431) & AIR 1930 PC 140 (sic). It is in the light of these well-established principles that the evidence & the circumstances in this case have to be considered. A perusal of the learned Judge's judgment discloses a lack of grasp of the above principles & it therefore falls to us to make an independent appreciation. 3a. The will purports to be addressed in favour of Brajabandhu Prusti, son of Fagu Prusti, as the donee thereunder. At the outset, it specifies the property which at the time is said to be owned by the testator. Its provisions may be translated as follows:
"I have been suffering from 'Vatha Roga' for a long time. I have no child excepting a daughter named Padma Dei. I have no expectation of having any children in future. I have been looking on you Brajabandhu Prusti from your childhood with affection as a son. You have also been conducting yourself like a son, being obedient & well- behaved. I am therefore very much attached to you. Consequently, I am placing much hope in you for future. My father-in-law Gopal Sahu having seen my weak condition, has kept away my wife, his daughter, for a long time in his house. He is also a habitual litigant & I am therefore apprehensive that he will after me, involve any property which I may leave, in waste & loss. In order to avoid disputes & for securing proper arrangement for the offering of Pindas, in order to secure salvation in the other world, & because there is uncertainty as to what may happen to me in course of time, I am executing this will, of my own accord freely with a sound & settled mind. The above mentioned Brajabandhu Prusti will after my death get, & in my place become the owner & possessor of all the property which I have mentioned above & all other property which I may acquire during my lifetime. No other person can raise any objection to this. Any such objection will be untenable in view of this will. This is proper for you (Brajbandhu Prusti) the donee under this, viz., you as well as Pagu Prusti whom I am appointing as executor during your minority, will carry out duly the arrangement hereunder mentioned for Khork Poshak (maintenance) of my daughter Padma Dei & of my wife Nilambara Dei, viz., for the mother annually 2 bharans of paddy & eighteen rupees & for the daughter till her marriage annually one Bharan of paddy & twelve rupees, will be regularly supplied, also for the marriage of my daughter an expense of not less than Rs. 150/- will be incurred ,also towards her Jautuk (marriage gift) one mana of Sarad paddy land in Ratisinga village will be given. If she is unwilling to take the land, she will be given the value thereof. Also according to family usage, her usual requirements will be met. The funeral ceremonies of myself & my wife will also be duly performed. So long as my wife & daughter are in Joint mess like me or if they leave our ancestral house & go anywhere else, they will not be entitled to receive maintenance as above. If my wife leaves the ancestral house & goes away elsewhere, she will not be entitled to take my daughter with her, if my wife goes outside as above, my executor will look after my daughter as her guardian. If necessary, he can for the purpose have resort to Ct in his capacity as guardian. Also if you both give any trouble in the matter of supplying maintenance as above they will be entitled to take the necessary proceedings through Ct & realise what is due to them. I have appointed your father Pagu Prusti an executor in order that he may look after all matters as above stated in case I happen to die during your minority. You will be entitled to take over all the responsibility from Pagu Prusty, on your attaining majority if you so choose." This is written by one Krupasindu Das of Talakusuma, & attested by four persons, (1) Laxman of Gurupailo, (2) Harekrishna Gochhait of Baharana, (3) Dharanidhara Das of Soralio, & (4) Dadhi Sahu of Tala Kusuma. It has also been signed , by the resp, Fagu Prusti, & one Jagannath Prusti, another cosharer in token of their agreement to the will. Out of these seven persons connected with the will only the attestors, namely, Dharanidhara Das & Harekrishna Gochait have been examined as P. Ws. 1 & 2 respectively. The testator is a resident of the village Baharana. P. W. 1 who is a resident of a different village gave evidence that he happened to go over to the testator's village that day in order to place some orders for preparation of certain ornaments with one Hari Sahu, whose house is close to the testator's house. He says that when he was sitting there, he was called by the testator for attesting the will. He went to the testator's house & saw there the scribe preparing a draft & remained there for about an hour. The executant signed & thumb- marked the will in his presence & in the presence of others who all attested the will in the presence of each other & in the presence of the testator. P. W. 2 who belongs to the same village as that of the testator, is his neighbour, with one house intervening. He says that the testator executed a will two months prior to his death & that one Krupasindhu scribed the will & he & others attested the will. He says that a draft was prepared first, that it was read to the executant, & that a fair copy was made & also read over, that the executant signed & thumb marked the same & that all the rest of them thereupon attested. This is practically all the evidence on the strength of which the learned Judge has found in favour of the will.;