JUDGMENT

V.D. Bhargava, J. - This is an appeal arising out of probate proceedings. There was one Kunj Das who executed a will on the 19th October 1942 in favour of Haridasi who was alleged in the will to be his chela. Kunj Das was chela of Jugul Das. After executing the wall he (the executor) died on the 29th of October 1948. It was alleged in the petition for the probate that the will was duly executed in the presence of witnesses by the deceased and that so far as the petitioner was concerned, he was not aware of any relative of the deceased Kunj Das.

2. The grant of probate was opposed by one Srimati Janova Devi who claimed to be the widow of the deceased Kunj Das, and she contested the application on the ground that the will was not executed by Kunj Das while he was in sound disposing mind; that he had been ill for a period of about 6 months and at least unconscious for about a month before his death; that the will was a result of a conspiracy, and fraud and forgery had been played upon her, and that the house which had been willed exclusively belonged to Srimati Janova Devi herself.

3. The learned District Judge accepted the evidence of the petitioner and granted the probate. Aggrieved by that decision, Srimati Janovi Devi has come to this court in the first appeal.

4. Learned counsel for the appellant has vigorously argued that the decision of the learned Judge was wrong. He has contended that there were many suspicious circumstances on which the court should have come to the conclusion that the will had not been proved. Among the suspicious circumstances he has argued that the will was written in a language which was foreign to Kunj Das; it having been written in Urdu while Kunj Das knew Bengali; that the wife has been completely deprived of the benefit of the estate of Kunj Das; that the scribe and other attesting witnesses 'have not been produced, and on these suspicious circumstances it has been argued that the will should be deemed to be inoperative.

5. It is not necessary for me to decide in this case whether the appellant was the wife of Kunj Das or not because the execution of the will has been established and the executor could deprive his near relation. If there would have been other circumstances deprivation of a wife in a will may also be one of the suspicious circumstances but that alone cannot be a circumstance to raise a presumption against the will.

6. The will is a solemn document and unless it can be established that it was executed by fraud or by a person who was not in a fit disposing mind it cannot be thrown away merely on suspicion.

7. In the present case, one of the attesting witnesses who happened to be a lawyer and who had drafted the will has given evidence and proved the due execution of the will by Kunj Das and that it was executed by Kunj Das while he was in a perfect sound disposing state of mind. There seems to be no reason why his evidence should not be believed. The only ground on which his testimony is challenged is that the scribe and other attesting witnesses have not been produced and reliance was placed in Sadachi Ammal v. Rajathi Ammal, A.I.R. 1940 Madras 315, in which out of the six witnesses only one was produced and it was taken one of the suspicious circumstances. If there were many other suspicious circumstances then it might have been one of the fact which could be taken into consideration. But in this case; the witness who has been produced is a lawyer, who is in no way related to the petitioner, and therefore, mere non-production of attesting witnesses would not be enough to raise any suspicion against the will.

8. According to the evidence of the appellant herself, she was married when she was only 13 years old and from that age she had come to Bindraban. She had left her husband admittedly two years before the death of Kunj Das and she had never cared about him. On the other hand, Hari Das in whose favour he will had been executed according to will had been serving and atte