The main legal point established in the judgment is the admissibility of additional evidence under the Code of Civil Procedure, 1882, s. 568, and the importance of proving the execution and attestation of a will.

Judgement

Appeal from a judgment and decree (January 11, 1909) of the Court of the Judicial Commissioner, partly affirming and partly reversing a judgment and decree of the Subordinate Judge of Hardoi (February 4, 1908).

The respondent, as plaintiff in a suit in which the appellants were defendants, alleged that a will purporting to have been made on October 21, 1904, by the deceased husband of the first appellant was a forgery. The will in question was attested by the testators diwan, by another servant, and by his confidential clerk, and it further bore the additional attestation of one Mohammed Nusrat Ali, who was a person of some standing, this additional attestation bearing date April 20, 1905. The will was, their Lordships held, in its terms reasonable, natural, and proper. At the trial the attesting witnesses and the additional attesting witness were called, and the last named was not cross-examined with a view to shewing that he was upon the date of the additional attestation at a place inconsistent with the truth of his attestation.

The Subordinate Judge by his judgment, delivered on February 4, 1908, found that the will was genuine. For reasons not material to this report, he held, however, that it was invalid and inoperative in regard to part of the property with which it dealt. Both parties appealed to the Court of the Judicial Commissioner. Upon the hearing of the appeal, the Court, acting under the Code of Civil Procedure, 1882, s. 568 (b) (which is set out in the judgment of their Lordships), allowed additional evidence to be produced. This evidence was to the effect that on April 20, 1905, Mohammed Nusrat Ali was present at a meeting at Lucknow at an hour which rendered it impossible that he could have attested the will at Sandila upon that date as he had sworn. He was not called to contradict or explain this evidence.

The Court of the Judicial Commissioner by its judgment, delivered on January 11, 1909, found that the will was a forgery. The learned Commissioners were of opinion that the evidence produced in favour of the will was open to suspicion and unreliable, and that, having regard to the above-mentioned additional evidence, the testimony of Mohammed Nusrat Ali should be rejected.

De Gruyther, K.C., and Amiend Jackson, for the appellants. There are concurrent findings that the disposition made by the will was one which the testator probably would have made. The fact that the will was attested by the testators servants should not, under these circumstances, have furnished any grounds for suspecting its genuineness. Upon the evidence the due attesta tion of the will was satisfactorily proved. The present case is similar to Shama Churn Kundu v. Khettromoni Dasi. (( 1899) L. R. 27 Ind. Ap. 10.) The Appellate Court should not have admitted the additional evidence at all; the power given under the Code of Civil Procedure, 1882, s. 568, should only be used where there is a lacuna or gap in the evidence Kessowji Issur v. Great Indian Peninsula Ry. Co. (( 1907) L. R. 34 Ind. Ap. 115.) In any case the additional evidence should not have been admitted without giving the witness whose testimony was impugned an opportunity to answer or explain it.

Ross, K.C. and Dube, for the respondent. The additional evidence was called in the Appellate Court without any objection on the part of the appellants, who are not now entitled to object to its admission.

[Mr. Ameer All The respondent, upon discovering the fresh evidence, should have applied to the Subordinate Judge to hear it and to review his decision under the Code of Civil Procedure, 1882, s. 623.]

(Counsel for the respondent addressed their Lordships upon the facts of the case and, in the course of the argument, admitted that the signature appearing on the will was genuine.)

No reply was called for.

The judgment of their Lordships was delivered by

LORD SHAW OF DUNFERMLINE. This is an appeal from a judgment and decree of the Court of the Judicial Commissioner of Oudh, d