Sir John Edge :-

This is an appeal from a decree, dated the 27th March, 1913, of the High Court at Calcutta, which reversed a decree dated the 11th March, 1911, of a Subordinate Judge of Midnapur which had granted probate to Bankim Bihari Maiti of a will of Shiba Prashad Maiti of the 4th December, 1909.

This will, of which a grant of probate is sought by Bankim Bihari Maiti, the nephew and executor of the testator is alleged to have been executed on the evening of Saturday, the 4th December, 1909, by Shiba Prasad Maiti, of Sontan Chuck in the district of Midnapur, who was a Hindu under the law of the Dayabhaga, and was possessed of considerable movable and immovable property which he purported to dispose of by the will. If it was his will, he was competent as a Hindu under the law of the Dayabhaga to dispose of his property as by the will he disposed of it. If Shiba Prasad Maiti had died intestate his widow, Barada Sundari Dasi, would have been entitled as his heir to the property of which he died possessed, as he had no son. Shiba Prashad left surviving him his widow, Barada Sundari Dasi, Matangini Dasi, his daughter by a predeceased wife his brother Ananda Lal Maiti, and Bankim Bihari Maiti, the son of that brother. By the will, it is established, Bankim Bihari Maiti is entitled to by far the greater portion of the property which was left by Shiba Prashad. Bankim Bihari Maiti, who is the appellant here, applied for a grant of probate of the will. Matangini Dasi, who is the respondent here, entered a caveat. The Subordinate Judge of Midnapur, before whom the application for a grant of probate came, made a decree granting probate. That decree was successfully appealed to the High Court at Calcutta, and application for probate was by the decree of that Court dismissed; hence this appeal. The questions which have to be decided in this appeal are : Was the will in fact executed by Shiba Prashad, and was he at the time of executing it mentally capable of understanding the dispositions of the will and did he know what those dispositions were?

There is much conflicting evidence in the case. The Subordinate Judge carefully considered all the evidence, and although he discarded as unreliable some of the evidence in support of the application for probate, he apparently with some hesitation, found that the will was proved and granted probate. The learned Judges of the High Court also carefully considered the evidence, and came to the conclusion that" the petitioner (Bankim Bihari Maiti) has entirely failed to prove that the will propounded is the genuine will of Shiba Prashad Maiti." It was for the appellant to establish the mental capacity of the testator, that he understood the dispositions of the will, and that it was duly executed by him as his will. Their Lordships must now consider the evidence so far as it is necessary to do so, and in considering whether the evidence entitled Bankim Bihari Haiti to a grant of probate of the will they must bear in mind that in Indian litigation it is not safe to assume that a case must be a false case if some of the evidence in support of it appears to be doubtful or is clearly untrue. There is on some occasions a tendency amongst litigants in India, as elsewhere, to back up a good case by false or exaggerated evidence. The judgment discussed the evidence and proceeded :-

The learned Judges of the High Court regarded with grave suspicion the evidence as to the draft of the will, and considered that the draft so far from having been prepared beforehand had been made from the will itself. No doubt there are grave suspicions as to the preparation of the draft, but as already observed a good case in India is sometimes backed up by false evidence; and the suspicious character of this story does not in their Lordships' opinion destroy the evidence as to the execution of the Will.

Those learned Judges of the High Court in their judgment further say :-

"Indeed, the most serious blot on the petitioner's case is