A probate, even in common form, unprovoked, is conclusive both in the Courts of Law and of Equity as to the appointment of executor, and the validity and contents of a Will. Parole evidence and even evidence of conduct is admissible to prove grant of probate under the seal when the document bearing the seal of the court is lost, destroyed or cannot be produced.

( 1 ) THIS appeal is directed against an appellate decree, affirming the decree passed by a learned Munsif.

( 2 ) THE appeal arises out of a suit for partition. According to the plaintiff, the property in suit, at one time, belonged to one Radhikalal Das. Radhika died. it was alleged, leaving a Will, executed on May 15, 1893. Under the terms of the Will Radhika's two widows, Nityakali and Chamatkarini, together were to nave life interest in the property in dispute. After their demise, Benimadhab, the sister's husband of Radhika, or failing him Nistarini, the sister of Radhika. were to have the disputed property and failing them the disputed property was bequeathed to Fakir and Sarat daughter's sons of Benimadhab and Nistarini.

( 3 ) NITYAKALI, Benimadhab and Nistarini predeceased Radhika's widow Chamatkarini. who died as late as in the year 1350 B. S. (1943-44 ). On the death of Chamatkarini, therefore. Fakir and Sarat got the disputed property. Fakir died in year 1356 B. S. (1949-50) leaving the plaintiffs as his heirs. Sarat was succeeded by his son, Provas (pro forma defendant No. 7), who sold away his interest to Satyacharan, defendant No. 1, by a conveyance (Ext. 4), dated June 21, 1944.

( 4 ) IT is not disputed that if there had been no Will left by Radhika, the principal defendants would have been his reversionary heirs and legal representatives. Plaintiffs alleged that under the terms of the Will they were entitled to one-halt share in the disputed property and claimed partition of the share by metes and bounds.

( 5 ) THE principal defendants contested the suit, mainly on two fold ground. It was alleged that Chamatkarini, during her life-time, had executed two documents of permanent lease, one in favour of defendant No. 1 and the other in favour of defendants Nos. 1 and 2, respectively dated November 7, 1928 and March 11, 1941. The leases were said to have been executed by Chamatkarini for legal necessity and were valid even after the death of the widow, Chamatkarini. It was contended in the next place that the Will was not proved in the absence of any probate of the Will and the plaintiffs could not claim any title on the basis of the Will.

( 6 ) THE trial court decreed the suit being satisfied that the Will of Radhika had been duly probated and that the lease granted by Chamatkarini to defendants Nos. 1 and 2 did not endure beyond her life-time. The decree was affirmed by the lower appellate court. Hence this second appeal at the instance of defendant No. 1.

( 7 ) IT is necessary for me at this stage to refer to the evidence adduced before the trial court in proof of the Will, a certified copy of which is marked Ext. 3. In the first place there is Ext. X the certified copy of the judgment in Probate Suit No. 45 of 1897 ordering grant of the probate of the Will of Radhikalal Das to Benimadhab, the executor named in the Will. Then there is Ext. 2, certified copy of an extract from the suit register, showing inter alia, that against the order for grant of probate in Suit No. 45 of 1897 there was an appeal preferred to the High Court, namely F. A, No. 171 of 1898, which appeal was, however, dismissed for default. Then again there is an admission by Chamatkarini, contained in a mortgage deed (Ext. B), to the effect that Benimadhab duly took out probate of the Will of Radhikalal Das in Probate Suit No. 45 of 1897. Lastly, there is the fact that defendant No. 1 purchased the share of Sarat's son, Provas, by conveyance Ext. 4, dated June 26, 1944, which would not have been done unless there was a duly probated will of Radhika, evidencing a valid bequest to Sarat.

( 8 ) THE probate of the Will was not produced by the plaintiffs and no explanation was given as to why it was not done. The original record of the probate case is also destroyed and therefore it cannot be ascertained from the order sheet whether or not a probate was granted under the seal of the court

( 9 ) MR. Manindranath Ghose, learned