Mr. Ameer Ali:-

The litigation which has given rise to this appeal relates to the property of one Ram Narain, a Hindu inhabitant of Chunar belonging to the Agarwala caste, who is stated to have died at Mirzapore on the 30th November, 1912, under circumstances to which reference will be made later. Ram Narain had a brother named Lachmi Narain, who had predeceased him, on the 25th October 1911, leaving three sons who are plaintiffs in this suit and appellants before the Board. Ram Narain on his death left him surviving, besides his nephews (the brother's sons), a niece (a sister's daughter) and her three sons all of whom are defendants to the action and respondents on the appeal. It is also in evidence that one of the sons of Ram Narain's sister is still alive.

As already indicated, the contest is between the nephews of Ram Narain on one side and his sister's daughter and her three sons on the other.

After Ram Narain's death there were certain mutation proceedings in the Revenue Courts, and Baisakha, the niece, succeeded in obtaining an order for the registration of her name in the Revenue Register on the strength of a will alleged to have been executed in her favour by Ram Narain two or three days before his death. The plaintiffs (the nephews) thereupon brought the present action to have it declared that the will was a forgery and that Ram Narain died intestate without making any disposition of the property and that subsequently they, as his nearest male reversioners, are entitled to the succession to his estate. The defendants alleged that the impugned document was genuine and duly executed by Ram Narain. On the facts of the case, therefore, the real issue to be tried was the factum of the will. The trial Judge held against its genuineness and decreed the plaintiff's claim. The High Court on the defendants' appeal came to a different conclusion, and accordingly reversed the trial Judge's decree and dismissed the suit. Hence the appeal by the plaintiffs to His Majesty in Council.

It has been contended on their behalf that as their right as the legal heirs of Ram Narain is indisputable, the onus of establishing without reasonable doubt that the will propounded is the will of Ram Narain, rests on the defendants. Before entering upon a consideration of this question, it is necessary to mention a few preliminary facts. The two brothers, Lachmi Narain and Ram Narain, who were subject to the Mitakshara Law, entered into a partition in 1866, when the village of Sheopur fell to Ram Narain and it was subsequently entered in his name in the Revenue Register. At the time of Lachmi Narain's death, he and Ram Narain were living in separate houses though in the same town, viz., Chunar. It is alleged by the plaintiffs that on his death-bed Lachmi Narain besought his brother to take charge of his sons, who were still young and inexperienced, and that Ram Narain consented. In order to carry out faithfully the charge entrusted to him, he, it is further alleged, without abandoning his own house, came to reside in Lachmi Narain's house, and had most of his work done by his nephew's Gomashtas and his accounts kept in the same books. These allegations are supported by a number of witnesses who appear to be respectable people. But over and above that, the plaintiffs have produced their account books, the genuineness of which does not seem to have been challenged, which show receipts and disbursements on account of Ram Narain. Upon these facts the plaintiffs had put forward a legal contention of re-union, but it was abandoned at a very early stage of the trial. It is to be observed that the defendants, who took possession of Ram Narain's house and effects on the night of the 30th November or early the following morning, immediately after his death and cremation, have not produced a single account book of his to contradict the plaintiff's story. Nor have they called Jogeshwar, who they allege was doing Ram Narain's work in his own house. The evidence they