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25. Demonstration or a conclusion at all points logical cannot be expected nor can a degree of certainty be demanded of which the matter under investigation is not reasonably capable. Accepting the external test which experience commends, the Evidence Act, in conformity with the general tendency of the day, adopted the requirements of the prudent man as an appropriate concrete standard by which to measure proof.

26. The Evidence Act is at the same time expressed in terms which allow full effect to be given to circumstances or conditions of probability or improbability, so that where, as in this case, forgery comes in question in a civil suit, the presumption against misconduct is not without its due weight as a circumstance of improbability, though the standard of proof to the exclusion of all reasonble doubt required in a criminal case may not be applicable Cf. per Willes, J., in Cooper v. Slade 6 H.L. Cas. 746 (1858) : 27 L.J.Q.B. 449 : 4 Jar. (N.S.) 791 : 6 W.R. 461 and Doe d Devine v. Wilson 10 Moore P.C. 502 at p. 331 (1855).

55. The two other witnesses Nityananda Thakur and Jogessur Kahar were justly treated by Chitty, J., as undeserving of credit. Not only is their evidence inherently improbable, but the circumstances under which they were procured are calculated lo create neither confidence nor approval.

56. The conclusion then to which I come, on the best consideration I have been able to give to the case, is that on the 27th of June, at the the time when Gopessur was alleged to have executed the Will, he was of sound mind, and that, though very feeble and debilitated, he was capable of knowing what he was doing and of exercising a judgment as to the proper mode of disposing of his property.

87. This brings me to a topic on which, before us, the caveator's Counsel has principally directed and concentrated his attack, that is to say, the actual preparation of the documents B, C, D, as disclosed by the evidence. The whole story, it is urged, is incredible. Thus, it is said that it is ridiculous to suppose C was rejected because of the wide spaces between the paragraphs, and that this is merely a device for bringing Jogendra Nath Sur into the plot. I cannot agree with this. I think the explanation of the rejection is eminently reasonable, when it is borne in mind that the proposal was that C should be executed as a Will. Then it is said that in view of the fact that both C and D are alleged to have been drafted in the daftarkhana no satisfactory explanation of the difference in the ink is given, for that vouchsafed by Shambhunath is improbable. Bat if an explanation was desired, it should have been sought of the only man who could give it. Prannath alone knows the conditions under which he wrote out Exhibit D, but he was not questioned on this point. Then it is asked why was Mr. Rutter not instructed to approve the drafts, why was he not invited to attest the Will, why was the Will not executed in the presence of the doctors? No doubt had any of the precautions in dicated in these questions been observed, much trouble would have been saved, but I cannot regard the failure to observe them as creating any serious improbability. The truth is, superstition and caprice are not foreign to the execution of a Will, and the reluctance that results from seeing in a Will a "remembrancer of death" is not without its influence on the behaviour of intending testators. Then it is said Gopessur was in extremis. If by this is meant that he was in articulo mortis, and that he was testamentarily incapable, the answer is that this contention is against the weight of evidence: if it is meant that the Will is alleged to have been executed in circumstances which call for a vigilant scrutiny of the evidence, my reply is that to the best of my ability I have endeavoured to perform that duty. Then how do matters stand if the preparation of Exhibits B, C and D be' looked at from the petitioner's point of view? We start with this that I am convinced these documents were in existence on Tuesday, the 29th of June, and were handed to Mr. Rutter on the morning of that day. This is the conclusion at which Mr. Justice Chitty also arrived. The petitioner's version, if true, affords a reasonable explanation of how the three documents came into existence, and yet, at the same time, the circumstances which explain their peculiarities, depending as they do on the curious and trivial chances of actual events, are not such as a forger would be likely to forecast or invent. More especially is this so if, as the caveator would have us suppose, the documents were prepared while Gopessur was in a moribund state or afterwards. I do not propose to examine the possibilities of this theory in detail, but it is not without its difficulties. The time at the disposal of the scheme is was not long, while their undertaking was complex. Gopessur died in the early hours of Monday, documents were in Mr. Ratter's possession on the following Tuesday morning. From this period must at least be deducted the time occupied in the funeral ceremony, that is to say, from 6 or 7 in the morning, when the party started for the ghat till their return at 12 or 1. In the available time much had to be done; the story requiring the preparation of the three drafts had to be composed or sketched, at any rate, in outline by some one, the three documents had to be prepared with the interlineations, erasures and variations that they exhibit, the two writers and Hem Chander Neogi had to be procured and convinced, there was the attestation Clause to be added by Shambhunath, and the attestation by him and Hem Chander, there was the admirable imitation of Gopessur's signature to be effected, and the widow's addition of the Bengali date, Leaving out all such hindrance to despatch as the feelings evoked by Gopessur's death might be expected to create, this would be no mean performance on the part of this confederation of forgers.

102. It now only remains for me to express the view I take of the whole case. The weight of evidence, in my opinion, is strongly in the petitioner's favour, both as to Gopessur's mental condition and the fact of execution. Though there are matters on which there is room for doubt, I am unable to regard the probabilities as opposed to the case made by the petitioner, rather otherwise. Moreover, the mere improbability of this or that in so complex a transaction as that under consideration cannot go for much against the clear and distinct evidence of witnesses of good general character, and, after all, probability and improbability of the type with which we are here concerned is apt to become a matter of speculation and predilection, for different persons act differently in similar circumstances and much of that which has been classed as improbable in this case comas to little more than a failure to observe a higher standard of precaution and to do the wisest and safest thing under the circumstances.