The court interpreted Section 50 of the Indian Evidence Act and held that opinion expressed by conduct of a person other than the witness, if that person as a member of the family or otherwise, has special means of knowledge on the relationship in issue may be proved by the witness.

Shambhu Prasad Singh, J.

1. This appeal by the objector-opposite party arises out of a proceeding for revocation of the grant of the probate of an unregistered will dated the 14th August, 1956, allegedly executed by one Tengari Gosain of village Sarna Mathia in the district of Shahabad. The grant was made on the 12th May, 1959, in an ex parte proceeding on the basis of an application of the appellant dated the 10th December, 1958. The proceeding for revocation under Sec.263 of the Indian Succession Act was started on an application of the respondent Lalmuni Devi dated the 13th March, 1961. The respondent claims to be a daughter of Tengari Gosain.

2. Briefly stating the case of the respondent was that the aforesaid will dated the 14th August, 1956, was never executed by Tengari Gosain and was a forgery. Her case further was that Tengari had died in the month of Baisakh in the year 1956 leaving behind the respondent and two other daughters, Jhanjho and Kesra. As she and her sons used to live with Tengari during his lifetime and looked after his property, after his death, they alone came in possession of his properties. Her two sisters, Jhanjho and Kesra, being issueless, relinquished their interest in favour of the respondents son. The appellant fraudulently concealed in the probate proceeding the existence of the respondent and her two sisters as daughters of Tengari and no special citations were issued or served on them, nor was any general citation served in the locality. There was a proceeding under Sec.145 of the Code of Criminal Procedure in respect of the house of Tengari between the respondent and the appellant in which the latter lost. He then instituted a title suit and there produced the will and the probate thereof. The respondent then only for the first time came to know about the alleged will and the probate proceeding.

3. The case of the appellant was that the will was a genuine will of Tengari who died in the month of August, 1956 a few days after the execution of the will and that no fraud was played upon in the probate proceeding at all. His case further was that the respondent was not a daughter of Tengari but the daughter of one Barat Gosain of village Jaran in the district of Ballia and- that as Tengari had no issues, he executed the will in favour of the appellant as he was his sisters son.

4. The learned Additional District Judge of Shahabad held in favour of the appellant that Tengari died in the month of August 1956, but found against him on the question of the genuineness of the will. He further held that the appellant was not a sisters son of Tengari and that the respondent was a daughter of Tengari, thus a necessary party to the probate proceeding to whom special citations should have iisued. On these findings, he allowed the application of the respondent and revoked the probate.

5. The main question arising for decision in this appeal is whether the will was a genuine testament of Tengari or it was a forged one. Tengari was not expected to execute a will in favour of a stranger or even a sisters son if really he had daughters and daughters son. Absence of any statement by the appellant in his application for probate that Tengari had left daughters and non-issue of special citations to them, if really the respondent and Jhanjho and Kesra are daughters of Tengari, would also ordinarily lead one to think that the conduct of the appellant in the probate proceeding was fraudulent and the will was not a genuine one. In that view of the matter, the question whether the respondent is a daughter of Tentfari is also of great importance in the case and closely connected with the question of the genuineness of the will.

6. It appears that it was seriously contended in the court below on behalf of the objector, i. e., the appellant before this Court, that it was not obligatory on his part to mention in his application for grant of the probate of the will, the names of the relatives of the testator and rel