Judgement

GROVER, J.:- This is an appeal by special leave from a judgment of the Allahabad High Court in a matter relating to probate of a will dated May 10, 1960 alleged to have been executed by Chhangur Sahu, a resident of Varanasi City, who owned considerable movable and immovable properties.

2. Chhangur Sahu, who died on October, 20 1962 when he was over 87 years of age, had a wife and a daughter alive at the time when he executed a will. It appears that no previous will was executed by him. It was recited in that will that he had no son but his daughter Sumitra Devi had been married long ago. By this will Changur Sahu-left a life interest to his wife in the properties. After death Radha Ballab-respondent before us - who is stated to be a relation of the testator and who was appointed executor of the will was to get the properties covered by the will. It was provided that the executor was to look after the maintenance of Sundari Devi the sister of Radha Ballab and also perform the marriage of he daughter. He made no bequests whatsoever in favour of his daughter Sumitra devi. The will was attested by two witnesses, Ram Charan and Sankatha Prasad Singh, it was got registered and was entered in the registration book on May 12, 1960.

3. On September 30, 1965 Radha Ballab respondent filed an application for the grant of probate of the aforesaid will in the Allahabad High Court. On January 9, 1966 a caveat was filed on behalf of the present appellants, namely, the widow of Chhangur Sahu and his daughter Sumitra Devi. An affidavit of Sumitra Devi was also filed, along with the caveat. In the affidavit it was stated that Sumitra Devi along with her mother and been in possession of the properties of Chhangur Sahu since his death and that the will set up by Radha Ballab was not a genuine document and did not confer any right or title on him. It was further claimed that Moonga Devi the widow of Chhangur Sahu was the sole heir and was entitled to claim all the properties. The caveat was filed through Shri V P. Mishra, Advocate who had apparently been engaged by the mother and the daughter to represent their case. On January 17, 1966 an order was made by the High Court converting the probate proceedings into a suit which was fixed for January 31, 1966 for framing issues. On that date Shri V. P. Mishra made a statement that the deceased was in a sound mental condition in May 1960 and hence the validity of the will was not being challenged on the ground that the deceased was not in a sound disposing mind. The order recorded by Mathur, J., on that date states inter alia:-

"......................................................

Considering that the deceased died about 2 1/2 years after the execution of the alleged will, there can be no controversy in that the will, if, genuine, was executed at a time the deceased was in a sound disposing condition.

The point in controversy is whether the will was executed by the deceased, in other words, bears his signature and thumb-mark.

The following issue is framed:

Whether the will in dispute had been duly executed by the deceased Chhangur Sahu?

One month allowed to the parties to file documentary evidence with regard to admitted signatures and thumb-marks of the deceased.

If the Parties desire the signatures and thumb-marks to be sent to an expert, they should make an application within the above periods."

4. On October 3, 1966 Shri v. P. Mishra made a statement that the due execution of the will in question was no longer challenged. On that very date the Statement of one of the attesting witnesses Sankatha Prasad Singh had been recorded. He was not cross-examined by Shri V. P. Mishra on behalf of his clients, namely, the present appellants, On October 4, 1956 a letter was sent by the clerk of Shri V. P. Mishra to one of the appellants. This was followed by another letter dated October 8, 1966.These letters are reproduced below:-

Allahabad,

4-10-66

"Shrimatiji

Yours to hand. We had intimated the date to you previou