Shiv Dayal, J.

This first appeal arises out of an unfortunate litigation between two full brothers Their father Sohrabji F. Motiwala, resident of Guna died on November 9, 1949, at the age of 70. According to Rustomji (elder brother, the Plaintiff), Sohrabji died intestate. On that day, he was not at Guna, as he had been living in Bombay for sometime past. Bahramji (younger brother, the Defendant) had been residing with his father at Guna. When the Plaintiff came down from Bombay to Guna on November 13, 1949, he found that his father's safe had been opened by his younger brother, who produced a will dated August 24, 1940 (Exh. D-4) stating that it had been found in the safe. This will was in the handwriting of the deceased but it was not validly attested. However, on February 22, 1950, an agreement was arrived at between the two brothers and it was registered. It was agreed that a share of 7 annas would go to each one of them and the balance of one anna would go to Putla Bai, the adopted daughter of the deceased. It was also stipulated that in case any valid will of Sohrabji were subsequently discovered, the latter would override the said agreement. On February 7, 1951, the Plaintiff got a telegram from Bahramji that a will had been found and he was, therefore, called to Guna. On February 9, 1951, he got a letter dated 6-2-1951 from one Surendra Kumar Loomba intimating that a sealed envelope had been discovered, and on opening the same a will was found which was delivered to Bahramji. This last mentioned will, which is marked Exh. D-2 and which bears the date June 12, 1946, is the whole basis of the dispute between the parties. The Plaintiff challenged the genuinsness of the will and claimed a declaration that he was entitled to half of the estate left by their father and also a decree for partition of his share. The suit was valued at Rs.99,700.

The defence was that the will Exh. D-2 (hereinafter called the 'disputed will') was genuine and the Plaintiff was not entitled to a decree as claimed by him. The agreement dated February 22, 1950 (Exh. D-23) was admitted, but it was alleged to have become inoperative.

The learned trial Judge has held that the disputed will is a forged document and has passed a preliminary decree in favour of the Plaintiff as claimed in the plaint. The crucial point in this case is whether the will of 1946 (Exh. D-2) is a genuine will. If the finding is in the affirmative the suit fails. It may be mentioned that after the alleged discovery of the will in February 1951, and its delivery to Bahramji by registered post, it was submitted for registration. In spite of the fact that by letter dated February 9, 1951, the Plaintiff challenged the will, it was presented for registration by the Defendant on February 14, 1951, and was registered on March 1, 1951.

The disputed will (Exh. D-2) is on three pages. The margin of the first sheet, bears a signature "S. F. Motiwala". Another signature "S. F. Motiwala" appears at the end of the will, denoting its execution and a third signature "S. F. Motiwala" finds a prominent place in the centre of the envelope (Exh. D-1) containing it. The Defendant asserts that all the three signatures are Sohrabji's. Two more signatures appear on the will. One of them is said to be of Girdharilal Loomba and the other one is of Debi Prasad D. W. 8. Girdharilal died in the life-time of Sohrabji, and the signature purporting to be his is also in dispute.

5, Direct evidence of the execution of the will consists of the solitary statement of Debi Prasad D. W. 8 whose signature appears on the will as that of an attesting witness. His statement is very interesting. He stated that one day in the year 1946 he was sitting at the house of Girdharilal. Seth Sohrabji came there. He sat down and talked to Girdharilal. Then he said to him (Debi Prasad) that he had made a will and asked the witness to attest it. Girdharilal put his signature, and so did the witness. Sohrabji did not sign the will