JUDGMENT

1. This appeal arises out of an application for letters of administration with a copy of the Will annexed to the property of one Khirodebasini Debi who died on the 7th February 1911, after having it is said, executed her last Will on the 6th of February the day previous. The learned Judge has refused to grant letters of administration holding that there was no independent evidence as to the execution of the Will and that the attestation was not legally proved. The learned Judge found and we think rightly found upon the evidence that the lady wanted to make Will or in any case some disposition of her property in favour of the beneficiary, in this case, that is, Bhupendra Nath Roy Chowdhury the son of Muktanath Roy Choudhury. Of this there can be no doubt. She was living in the same house with Muktanath and his children and this boy Bhupendra Nath is said to have been very much loved by her. So far as the motive of the testatrix is concerned it is in favour of the Will having been executed. As regards independent evidence objection has been taken that nearer relations were not made to attest the Will nor her spiritual guide. Her nearer relations were, however, not residing at Cossipur where she resided and died. It is true that her spiritual guide resided at Cossipur. But as she did not want to make any disposition in favour of her spiritual guide it would not look proper to have the spiritual guide attesting a document in which he was disappointed of any expectation that he might have had upon the property of the dying widow. In any case the people who were about her and who were principally to be benefited by the execution of the Will would not take the initiative in calling the people who might induce her at her last moment to make deduction from what they expected to get, so that these other people might be benefited. Four witnesses are said to have attested the Will and all of them have been examined. With regard to Mukta who was the writer he cannot be said in this case to have attested the Will as a witness because there is no evidence that he signed the Will after the testatrix. As regards Kripa Nath the learned Judge is not inclined to believe that he was present at the time of the execution of the Will and we are not prepared to differ from him. As regards other witnesses, however', there does not seem to be any particular reason for disbelieving them specially seeing that (he Will is in accordance with the wishes of the testatrix expressed during her lifetime before reliable witnesses. Now, as regards these witnesses -- Shibendra and Keshab, Shibendra guided her hand in fixing her mark and also put down the name of the testatrix under the mark by his own pen. If the writing of the name of the testatrix by her direction and by the pen of Shibendra be considered as the execution of the Will then Shibendra cannot be considered as an attesting witness. It is contended, however, that apart from that signature there is the mark and under the law execution was complete as soon as the testatrix put down the mark upon the document intending the document to be her Will. Then the question is whether the mark put upon the document has been proved in accordance with the provisions of sec. 50 of the, Indian Succession Act which has been made applicable to the Wills of the Hindus. Shibendra says "I think her finger mark was taken by catching hold of her finger." In cross-examination he says "I got her make the finger mark by taking hold of her finger." It is contended that this cannot be taken as execution of the document by the testatrix, because the motive power was that of Shibendra and that there is no evidence that this was done in accordance with the direction of the testatrix. Shibendra, however, says that Khirodebasini made the Will, that he read over the Will to Khirodebasini, that when he asked her whether he would sign the Will for her she nodded her assent and that she had sense when the Will was read over to her