Sir Lawrence Jenkins:-

These are consolidated appeals from two decrees of the High Court of Judicature in Bengal, dated the 14th April, 1921 reversing two decrees of the Court of the District Judge of Bankura dated the 20th February, 1920.

Madhusudhan Chattoraj, a Hindu governed by the Dayabhaga School of Hindu law, died leaving four sons, Radha Ballav, Brahmananda, Raj Ballav, and the present appellant Baikuntha Nath.

Brahmananda died in 1913 leaving all his property by will to his widow, Mandakini Debi. Mandakini died cm the 16th September, 1918 and her sister Prasannamoyi Debya, the widow of Raj Ballav, and the respondent in these appeals, propounds in this litigation a paper writing dated the 14th September, 1918, as the last will of Mandakini.

She is opposed by Baikuntha Nath, her husband's younger brother, and by Ashutosh Chattoraj, Radha Ballav's son. The interest of the objector is not in dispute.

The District Judge pronounced against the will and granted letters of administration to Baikuntha Nath. The High Court reversing this decision, ordered and decreed that probate of the will should issue to Prasannamoyi, and that the application for letters of administration made by Baikuntha Nath be dismissed.

The outline of the story as to the preparation and execution of the alleged will as presented on behalf of the proponent is briefly as follows. On the 13th of September, Natabar Mukerji, it is said, chanced to call on Mandakini, whom he described as his Dharam mother, and found her suffering from fever. He was told by the night of that day that she intended to execute a will, and that he should manage its execution. On the 14th at 2 P.M. he was asked to arrange for the execution of the will, and on his protesting that he had no experience in will drafting, he was given a draft that had been prepared for Mandakini by a pleader named Upendra Nath. A pleader named Babu Bhut Nath Mandal was then called in ; he examined the draft, and dictated the document, now propounded, to Natabar, who wrote it out.

At 4 or 4-30 in the same afternoon it was read over and explained to Mandakini, but as she was illiterate Natabar signed her name for her. The paper writing was signed by seven attesting witnesses, Bhut Nath Mandal, Kandarpa Behari Ghose, Raj Narain Biswas, Trailokhya Nath Karak, Nagendra Nath Ghose, Surendra Nath Mandal and Gosta Behari Mandal. It was then taken to Prasannampyi, who was in an adjoining hut, but as she too was suffering from fever, it was taken back to Mandakini, who, helped by Natabar, took the will to another hut and placed it in an iron safe together with the draft

Natabar stayed at the bari that night and then left. Mandakini died on the 16th of September.

This is the proponent's version of what happened. The objectors contest its truth.

In proof of the execution the proponent has called Natabar, the writer, and four of the seven attesting witnesses. On Surendra Nath Mandal no reliance has been placed by either Court, and his evidence need not be considered.

Nagendra Nath Ghose does not support the proponent's case, for in his examination in-chief he declared that he did not know whether Mandakini executed any will, and that it was to a blank paper that he put his signature at the request of Ram Lal Gosain.

An application was therefore made to the District Judge to declare the witness hostile and to allow the proponent to cross-examine him.

This is a position for which provision is made by Section 154 of the Evidence Act, which says nothing as to declaring a witness hostile, but provides that the Court may in its discretion, permit the person who calls a witness to put any questions to him which might be put in cross-examination by the adverse party.

One of the appeal Court's adverse comments on this trial Judge's conduct of the case is that the cross-examination of this witness was improperly disallowed. No such objection was made in the grounds of appeal to the High Court, and it would seem as though this comment must