JUDGMENT

Richard Couch, J. - The principal question in this appeal is, whether probate of the will of Modhu Sudan Kundu, who died on the 9th October 1892, ought to be granted. The appellant was the applicant for the probate, and in his petition for it, presented to the District Judge on the 20th January 1893, he stated that he was the adopted son of Modhu Sudan and one of the executors, mentioned in the will. He also stated that another will had been executed by Modhu Sudan on the 4th October 1892, which was revoked by the later will and was filed in Court. The application was opposed by Nistarini Dasi, the widow of Modhu Sudan, in a petition put in on the 31st January 1893, in, which she denied the genuineness of the second will, refused to admit the first will, and also asserted that Shama Charan the appellant, was not the adopted son of the deceased. On the 23rd February, Nistarini presented a petition withdrawing her objections. Thereupon, on the 27th February 1893, the respondent, who is one of the daughters of the deceased, filed a petition of objection denying the genuineness of the will, asserting that Shama Charn was not the adopted son, and that the withdrawal by Nistarini was the result of collusion, and praying to be made a party to the suit. The District Judge having refused to do this the will was proved in common form, and probate granted. The respondent appealed to the High Court which set aside the decision of the District Judge and remanded the matter in order that she might have an opportunity of contesting the case, and that the will might be proved in solemn form. On the 25th June 1894, the District Judge decided in favour of the will; he found that it was executed by Modhu Sudan and that he was then of sound and disposing mind. As to the adoption of Shama Charn he said:

I have mentioned that an allegation was made by the objector denying that Shama Charn was the adopted son of Modhu Sudan, in order to show that it was not probable the deceased should have executed such a will. Evidence was given that Shama Charan was treated by Modhu Sudan as an adopted son, was spoken of as an adopted son by Modhu Sudan when giving evidence. Not a particle of testimony to support the objector's allegation was given. Though two sons-in-law, a cousin, and a servant of Modhu Sudan were examined, not one of them was asked a single question whether Modhu Sudan had adopted Shama Charan. The alleged improbability therefore fails.

2. The evidence in the record fully supports this opinion.

3. On the 29th July 1895 the High Court on the appeal of Khettromoni reversed the decree of the District Judge and ordered the application for probate, to be dismissed.

4. The first witness examined in support of the will was Sri Narain Babu the writer of it. His evidence was that Tincowri Banerji, another witness, was sitting near Modhu Sudan and repeated what he had said, although the witness could hear it himself; that at the time of the will being written out Modhu said: "There are Rs. 6,000 due to me on a mortgage. Of this sum Rs. 2,000 are to be given to Kedar Nath, Prio Nath, and Bhut Nath each;" that just then some one came in and said that Bhut Nath was dead, and some one asked what was to be done with the Rs. 2,000 allotted to Bhut Nath. Modhu Sudan said "Let Rs. 1,000 be given to his widow and Rs. 1,000 to his mother." The witness said he made provision accordingly in the will; he forgot whether it had already been written in the will, that Bhut Nath was to get Rs. 2,000 or whether this had only been mentioned by Modhu Sudan, he could not say without looking at the will. Now the second paragraph of the will contains a gift of Rs. 2,000 to Bhut Nath and the ninth the gifts of Rs. 1,000 each to his mother and widow. Tincowri Banerji deposed that Sri Narain wrote the will and be asked questions and Modhu Sudan "made known the terms of the will" that he said Rs. 6,000 would be given to his three nephews, this was written, and then the docume