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1. This appeal is directed against the grant of Letters of Administration, with a copy of the Will annexed, to the estate of one Raj Krishna Khan who died on the 20th November 1917. He was born in 1897 and in 1914 was married to a girl twelve years old. At the time of his death, he left him surviving his mother, his minor widow and an infant brother. He was a member of the well-known family of Khans of Mankundu of the District of Hooghly and possessed properties of considerable value. He had taken to evil ways very early and was addicted to wine and women; for six or seven years before his death, he had kept a woman of the name of Sosilabala whom he did not abandon even after his marriage. On the 4th November 1917, he went to Puri for a change; the party consisted of five persons besides himself, namely, his manager, Bibhnti Bhusan Mukerjee, his mistress, Susila, another woman of the name of Puti, who apparently cooked for them, a hanger-on of the name of Binod and a sarvant Bipatram Kahar, who had been in his employ for about a year and a half, Raj Krishna had been to Puri in the year previous and had stayed in the house of one Krishna Chandra Guchika, a Panda of the temple of Jagannath. On the occasion of the second visit also, he took up his residence in a house of the Panda near the gate of the temple. On the 15th November Raj Krishna was taken ill at Puri, and it is said that as his condition did not improve he executed the disputed Will on the forenoon of the 19th November 1917. He died the afternoon of the 20th November 1917. The party returned to Calcutta on the morning of the 22nd November. On the 23rd March 1918, Rani Dasi, the mother of the testator, applied for Letters of Administration with copy of the Will annexed, for the use and benefit of her infant son, Bankim Chandra Khan. The estate was valued at Rs. 3,09,708. The application was supported by the affidavits of two of the attesting witnesses. A caveat had been already lodged on the 27th November 1917, by Surendra Krishna Mondal, the father of Bhramarbala Dasi, the widow of the deceased. After a protracted trial, Mr. Justice Chauduri name to the conclusion that the Will was genuine and had been duly made and attested. This conclusion has been sternuously assailed on behalf of the appellant and the judgment under appeal has been subjected to a searching criticism.

2. The Will, as already stated, is, alleged to have been executed on the forenoon of the 19th November 1917. There is practically no evidence as to what happened to the testator during the first ten days of his stay at Puri; but we know this much that his manager, Bibhuti Bhusan Mookerjee, who had accompained him from Calcutta on the 4th November, left Puri the very next day and returned to Calcutta. On the 15th November, Bipatram telegraphed to Bhibuti as follows: "Babu sick; moneyless; wire money; otherwise come". Bibhuti, on receipt of this message, forwarded Rs. 25 by money order, and next morning (15th November) wired back: "Sent Rs. 25 by money order yesterday." The case attempted to be made out in the evidence is that the illness of Raj Krishna did not take a favourable term, and he was attended, from the 16th November, by a medical practitioner named Haris Chandra Rao. On the evening of the 18th November, while Raj Krishna was apparently in considerable distress, he expressed an apprehension that he might not survive. On this Susila began to cry. Thereupon Raj Krishna promised to make provision for her and asked Bipatram to procure one or two demi papers so that he might make his Will, Early next morning, Susila, Puti and Binod went to take a bath in the holy tank of Markanda, Bipatram, during their absence, procured the demi paper. Raj Krishna dictated and Bipatram took down on slips of paper what Raj Krishna said. Bipatram, it must be mentioned here, did not know how to write Bengali and was probably very imperfectly acquainted with the Bengali language. He accordingly wrote down in Kaithi character what was said by his master and the result was a jargon of an extraordinary and unprecedented character. The draft was read out and was altered in one respect, namely, as regards the amount of maintenance for the wife of the testator, which was raised from Rs. 40 to Rs. 50. Bipatram then copied the contents of the pencil draft on the demi paper in think and read out the document. His master thereafter asked him to make an addition, which was written out by Bipatram on the left hand margin of the document. Bipatram then signed his name by order of his master, and made over to him the pencil draft and the demi paper. Raj Krishna tore off the draft, kept the demi paper under the pillow and asked Bipatram to go and fetch the Panda and the Doctor. On the way, he met the Charidar (an officer of the Panda) and requested him to send the Panda. He then went to the Doctor who promised to call at 11 o'clock. He next went to the Telegraph office and sent a message to the manager at Calcutta in the following terms: "Babu seriously ill; moneyless; come immediately," This telegram, as appears on the face of the message, was handed in at 11-30 a.m. and reached Calcutta 12-34 p.m. Bipatram has sworn, however, that be made over the paper to the Telegraph clerk actually much earlier than the time noted on the message. He then returned to the house. The Panda, the Charidar and the Doctor arrived at about 11 o'clock. Raj Krishna took out the document from under the pillow. After some conversation, the document was, at the request of Raj Krishna, read out by Bipatram, Raj Krishna then executed it, affixing his signature in two places, once under the main writing, and again under the marginal note. The document was next attested by the Panda Krishna Chundra Guchika, the Charidar Hari Bandhu Mahanti, and the Doctor Haris Chandra Rao, it was then placed inside a portmanteau. Next morning Bibhuti arrived from Calcutta. There has been some controversy as to whether Bibhnti was at Puri on the 19th November, when the Will is said to have been executed. There is no room for doubt that the Doctor is mistaken on this point, and the evidence shows conclusively that on receipt of the telegram sent on the 19th November Bibhuti started from Calcutta in the evening and arrived at Puri the next morning. When Bibhuti arrived Raj Krishna made over the Will to him. On that day a telegram was sent by Bibhuti to Calcutta in the following terms: "Raj Krishna better; we start to morrow; send Gari." This message was, as noted on the telegraph form, handed in at 3-5 p.m. and reached Calcutta at 4-5 p.m. The evidence shows that Raj Krishna died that afternoon, and there has been much speculation as to why this false message was sent; it is sufficient to say that the point has not been satisfactorily cleared up. Bibhuti and other members of the party left Puri on the 21st and arrived at Calcutta the next morning. On that very day the Will was taken to the Solicitor for the propounder. Such in outline is the story of the events which are alleged to have taken place at Puri between the 15th and 20th November 1917, and we have to determine whether this version is substantially true.

10 The truth is that there was no serious attempt to make out the case alleged in the caveat. The cross enamination of the witnesses was rather directed to show that the condition of the testator, due to illness, was such that be must have lost testamentary capacity, From this standpoint, the case is not wholly free from difficulty by reason, principally, of the mode of examination-in-chief and cross-examination of the two important witnesses who were examined on commission at Puri. Under Order XVI, Rule 19, Civil Procedure Code, the Panda and the Doctor, who resided at Puri, more than 200 miles distant from Calcutta, could not be summoned to attend in person and give evidence in Court, consequently, a commission had to be issued for their examination. We regret to observe that the examination-in-chief, as also the cross-examination, were conducted in a manner open to grave objection. Not only were the proceedings unduly prolonged, sometimes by an attempt to shake the credit of a witness by introduction of evidence to contradict him in violation of the provisions of Section 153 of the Indian Evidence Act, but leading questions were put in examination-in chief in contravention of other provisions of the law. It has been maintained before us that as the propounder was obliged under Section 68 of the Indian Evidence Act to call the attesting witness to the Will, such witness should be treated as a witness called by the Court and liable to be cross-examined, as a matter of right, by the party citing him. In our opinion, this contention cannot be upheld. Section 154 of the Indian Evidence Act provides that the Court may, in its discretion, permit the person who sails a witness to put any questions to him which might be put in cross-examination by the adverse party. There is, in this respect, no distinction on principle between an attesting witness whom a party is obliged to call and any other witness whom he may site of his own choice. But the Court may, in the exercise of its discretion, be more easily persuaded in the former case than the latter. In view of the provisions of the Indian Evidence Act, it is thus plain that there is no room for application, in this country, of the view taken in the cases of Bowman v. Bowman (1840-44) 2 Moo & Rob. 501; Jackson v. Thomason (1861) 1 B. & S. 745 : 1 L.Q.B. 11 : 8 Jur. (N.S.) 134 : 6 L.T. (N.S.) 104 : 10 W.R. 42 : 124 R.R.734: 121 E.R. 891 and Coles v. Coles (1866) 1 P. & D. 70 at p. 71 : 35 L.J.P. 40 : 13 L.T. 608 : 14 W.R. 290, that a necessary witness, that is, one whom a party is compelled to call and who may, therefore, be considered rather the witness of the Court than of the party, as an attesting witness to a Will Gill v. Gill (1909) P. 157 : 78 L.J.P. 60 : 100 L.T. 861 : 53 S.J. 359 : 25 T.L.R. 400 can be discredited as of right by his own side. It is, indeed, doubtful whether the principle recognised in these cases, though recently affirmed in Jones v. Jones (1908). 24 T.L.R. 839 : 52 Sol to. 699 is still good law in England. Price v. Manning (1889) 42 Ch. D. 372 : 58 L.J. Ch. 649 : 61 L.T. 537 : 37 W.R. 785; Phillips v. Davis "Times" 13th Dec 1907. Per Deane J. But two important points must be borne in mind; first, that a witness is considered adverse when, in the opinion of the Judge, he bears a hostile animus to the party calling him and not merely when his testimony contradicts his proof; in other words, as Wilde, J., remarked in oles v. Coles (1866) 1 P. & D. 70 at p. 71 : 35 L.J.P. 40 : 13 L.T. 608 : 14 W.R. 290, a hostile witness is one who, from the manner in which he gives his evidence, shows that he is not desirous of telling the truth; and, secondly, as Lord Campbell, C.J., observed in Faulkner v. Brine (1858) 1 F. &.F.254, when a witness is treated as hostile and cross-examined by the party calling him this must be done to discredit the witness altogether and not merely to get and of part of his testimony. These principles have all been disregarded in the examination-in-chief and cross-examination of the Panda and the Doctor. The Commissioner could not exercise the discretion vested in the Court under Section 154 of the Indian Evidence Act, and the mischief due to improper cross-examination could not be remedied in the Trial Court. Consequently, very little reliance can be placed upon the assertions of the Panda and the Doctor, and this was the view adopted by Mr. Justice Chaudhuri. We are fortified in this opinion by the suspicious alteration in the affidavits sworn by these two persons; apparently, according to the affidavit as originally drawn up, they were prepared to declare that the Will was written at the dictation of the testator; these words were subsequently crossed out for some unexplained reason. Notwithstanding this conclusion, there is, however, a substantial residue of evidence adduced by the propounder, and we cannot decline to estimate its value and effect.

16. As regards the contents of the Will, we have to examine the argument that the disposition is so improbable that it could not have been made by person in the position of the testator. The disposition may be summarised as follows: (1) an annuity of Rs. 50 a month to the wife of the testator: (2) an annuity of Rs. 40 a month to his mistress and payment of all her debts, and (3) an annuity of Rs. 125 a month to his manager, Bibhuti Bhusan Mukerjee, who is, in addition, released from liability to account in respect of certain expenses incurred, and (4) bequest of the residue to his infant brother. It may be conceded that, in view of the income of the estate, the amount of the allowance fixed for the wife does look inadequate. But it must be remembered that the unhappy girl was not much of a wedded wife to the depraved young man, who, from before his marriage, had led a life of debauchery and habitually indulged in wine and women. Further, there was no one present at Puri who had the remotest interest in reducing the allowance of the wife. The annuity for the mistress as also the provision for discharge of her debts do not seem to be over liberal, when we remember the deep attachment the testator felt towards her and the length of time they had lived together; there is, at any rate, no indication that she exercised any undue influence on the young-man in this matter. The provisions made for the manager as also his release from liability to account, have naturally formed the subject of strong comment, and are unquestionably calculated to rouse suspicion. But it is plain that the manager was not at Puri when the Will was prepared and had no opportunity to influence the judgment of his master at that time. On the other hand, the evidence shows that he was a valued and trusted officer who had secured for his master the enjoyment of his share of a valuable estate after it had been freed from every incumbrance. It is not for the Court to place itself in the position of the testator and to determine whether the master had set an in ordinate value on the services of his officer; much less should we determine the amount of the sums which passed through his hands, as a question may hereafter arise as to the extent to which he has been absolved from liability. We only hold that the disposition in his favour was not so improbable as to verge to wards impossibility. We have, finally, the residuary devise in favour of the brother. It is not suggested that there was any body present at Puri who could have moved the testator in favour of his minor brother. This disposition, at any rate, must have been the act of the testator, influenced by obvious considerations of the ultimate preservation of the family estate, which would otherwise pass into the hands of the minor childless widow, liable to act under the guidance of her paternal relations. We cannot also overlook the significant fact that there was not even a small legacy in favour of the trusted servant Bipatram. Upon an examination of all the provisions of the Will, it is impossible for us to hold that they are so unnatural and unreasonable that they could not possibly have been made by a person with a sound disposing mind in the position of the testator.