Sir John Edge :—

This is an appeal from a decree, dated the 29th August, 1913, of the High Court at Calcutta, which set aside a decree dated the 28th July, 1909, of the District Judge of Mozufferpur granting probate of the will of one Kishun Kishore Narayan Singh, of Sursand, who died in November 1905.

The only question in this appeal is as to whether the will, of which the appellant has sought to obtain probate, was executed by Kishun Kishore Narayan Singh or is a forgery. The appellant who propounded the will is the senior of the two widows of Kishun Kishore. The will which she propounded is dated the 15th November, 1905.

Kishun Kishore was a zemindar living at Sursand, in the district of Mosufferpur. He was an elderly man, and had been twice married, but he had no issue by either of his wives, and he had no near agnatic relations. The caveators, who objected to probate of his alleged will being granted were distant cousins of his, with none of whom is it proved that Kishun Kishore had ever been on terms of intimate friendship. Kishun Kishore had been originally a comparatively poor man, but at the time of his death the income of his estate exceeded 60,000 rupees a year, and it is stated that, contingently on his surviving certain widows, he was the heir to a still larger estate.

On the 10th November, 1905, Kishun Kishore, accompanied by his two wives and certain of his servants and dependants, went from Sursand to Sonepur to attend the bathing fair there. He was suffering from dysentery, and cholera having broken out at the bathing fair, he became nervous as to the state of his health and in the afternoon of the 13th November he sent a man in his employment, named Mahbub Hossein, with a carriage for Major Gwyther, of the Indian Medical Service, who was the Civil Surgeon in medical charge of the bathing fair at Sonepur. Major Gwyther found that Kishun Kishore was suffering from dysentery, and was weak and much afraid of the disease and its consequences. Major Gwyther saw Kishun Kishore again at 9 a.m. and at 5 p.m. on the 14th November, and between 10 and 11 o'clock of the forenoon of the 15th November. When Major Gwyther saw Kishun Kishore on the morning of the 15th, Kishun Kishore, in Major Gwyther's opinion, was not very weak, his condition was a good deal improved, and he was in a fit state of mind to execute any document. Major Gwyther did not notice any choleraic symptoms in the condition of Kishun Kishore. Major Gwyther did not again visit Kishun Kishore. He promised Kishun Kishore to call again in the evening of the 15th if he were sent for. Major Gwyther has stated in his evidence that Kishun Kishore's carriage did not call for him that evening at the time when he expected it, and, consequently, thinking that he was not required, he went to attend to another call, leaving instructions with his native servant that he should be sent for should his services be urgently required. Later in the evening Major Gwyther went to a call, from which he wag not summoned to attend to Kishun Kishore.

Their Lordships accept Major Gwyther's statement as correct. There is evidence, which their Lordships see no reason to doubt, that a servant of Kishun Kishore was sent in the evening of the 15th to bring Major Gwyther to see Kishun Kishore, and found that Major Gwyther was out, and that later, at about 1 o'clock in the morning of the 16th, when Major Gwyther was at the ball, Sham Behari Singh was sent to call Major Gwyther to Kishun Kishore's tent, and Kishun Kishore was then conscious. Major Gwyther's servant, probably considering that Major Gwyther's services were not urgently required by Kishun Kishore, did not inform Major Gwyther that he had been sent for. The bathing fair having been broken up on account of the outbreak of cholera, Major Gwyther left Sonepur at 10 a.m. of the 16th November.

Kishun Kishore died, according to the evidence on behalf of his widow, the appellant, of dysentery at about 3 a.m. of the 16th November. According