P L D 1971 Dacca 32 (PLP)

Neither any copy of the Will nor any draft thereof has been filed. No date of the execution of the Will was disclosed by the plaintiff in the plaint. None of the alleged attesting witnesses to the Will was examined as they were no more in the world of the living. This is a case where both the document is lost and the attesting witnesses are dead. Hence, section 69 of the Evidence Act will govern the situation. There is authority for the proposition that the quantum of evidence to establish a testamentary paper must always depend upon the circumstances of each case. The plaintiff's case, it goes without saying, is based solely on oral evidence. Therefore, some introduction about the witnesses examined on behalf of the plaintiff, at this stage, will be convenient for appreciation of their evidence. The plaintiff herself is P. W. 7 and her husband is P. W. 8 ; P. W. 2 Mrs. Lucy Gonsalves is the sister of P. W. 8 ; P. W. 3 Monika Gonsalves alias Monika Pal is alleged to be a legatee under the Will to the extent of Rs. 800 ; P. W. 4 Reabea Reberio is the nephew (brother's son) of another alleged legatee, namely, Josephine D'Cruze since deceased. P. W. 1 is a priest and is not connected with either of the parties. P. W. 5 R. F. Penherio is not connected with any of the parties. P. W. 6 G. M. Rozario, a personal friend of the late R. F. Dias, is also not connected with either of the parties. First we take up the consideration of the evidence on the question of the execution, attestation, and the contents of the Will. Following the sequence of events, we take up the evidence of P. W. 2 Lucy Gonsalves. Her evidence may be split up into three parts. In the first place, she claims to have direct knowledge of the execution and attestation of the Will and the contents thereof. The second part relates to her visit to the house of R. F. Dias on 31‑1‑61 and that transpired there. The 3rd part of her evidence relates to her presence at the gathering in the house of R. F. Dias on 2‑2‑61 (that is, after the burial of Dias on 1‑2‑61). In other words, he claims to have witnessed the three important events concerning he plaintiff's case. We have, therefore, thought it proper to state her evidence in some detail. She is a witness to the very important aspects of the plaintiff's case. Moreover, she is the witness who has been examined by the plaintiff in compliance with the provision of section 69 of the Evidence Act inasmuch as both the documents are lost and the attesting witnesses are dead. The first part of her evidence is that one afternoon in the month of October 1956 R. F. Dias along with his neighbour Monomohan Biswas, a Mukhtear came to her house. Her son Bensley Gonsalves was also present in the house at that time. R. F. Dias had a paper in his hand and read it aloud fn her presence. He then requested her son and Monomohan Biswas to become witnesses to the Will. Mr. R. F. Dias first signed the paper which was seen by herself ; her son and Monomohan Biswas, signed later as attesting witnesses at the request of Mr. R. F. Dias. As regards the contents of the Will she stated that as, far as she remembered Lilian D'Cruze would get the house and other properties under the Will. Mrs. Monika Gonsalves and Mrs. Josephine D'Cruze would each get Rs. 800.00 under the Will. With regard to the testimony of P. W. 2 on this point, Mr. D. C. Bhattacharjee made a grievance before us that the learned Additional District Judge, without applying his judicial mind to the consideration of the statements and admissions made by P. W. 2 in her cross‑examination and the legal consequence thereof, after barely stating her evidence concerning the point of execution, attestation and the contents of the Will, accepted her evidence with an observation in the most general terms at page 99 of the paper book to the effect, "In cross‑examination she stated that it was a one‑sheet typed stamped paper. She stood the test of cross‑examination very well and the defence could not break her evidence on any point in the course of cross‑examination. Therefore, I have hardly any reason to disbelieve her". We think the grievance is legitimate. The admissions made by P: W. 2 in her cross‑examination deserve close scrutiny and require to be analysed with reference to the other evidence on records to assess how far her evidence is acceptable as true. In her cross‑examination she admitted that R. F. Dias bad come to her house between 1 and 3 p.m. but she could not remember the date nor did she keep any note thereof. She stated :‑ "R. F. Dias had a typed paper with him. They were in stamp papers. But I cannot give the value of those stamp papers. The papers were not typed in my presence. I do not know where it was typed. I do not know who typed it. It was only one sheet. I did not keep any note or memorandum about the contents of the Will nor did I keep a note who were present when the will was read out by Mr. R. F. Dias. I saw the Will when it was signed by him and my son and Monomohan Mukhtear." From the above statements it is evident that the witness is not sure in her mind about the nature of the paper on which the Will was typed. She was wavering as to the number of the sheets of papers comprising the Will. She at one moment said "paper" and the next moment said "papers" to denote the number of page of the Will. She was at last constrained to say that it was only one sheet. The wavering statements cast a grave doubt on her testimony that she saw the Will, the execution by the testator and the attestation of the Will by her son and by Monmohan Biswas and that she saw the contents of the Will. Moreover, it may be noticed that a Will need not be drawn up on a stamp paper but her evidence is that the Will was typed on a stamp paper. She further admitted "I did not disclose to any body that Mr. R. F. Dias had executed any Will" There is no ambiguity in this admission. It means that she did not disclose about the Will to any body including the plaintiff and her husband before her deposition in Court, although she came to know about the same in October 1956. The evidence of the plaintiff P. W. 7 is that she came to know about the Will in October 1958 while in one morning she and her husband were taking tea, R. F. Dias came to their house with the Will and read it over to them and handed over the same to P. W. 8, the husband of the plaintiff. P. W. 8 corroborated her so much so that he gave the exact date as 17‑10‑56 and exact hour, being 7‑30 a.m. of the visit of R. F. Dias to their house with the Will. It will thus be seen that there was a time gap of 2 years between the knowledge of the P. W. 2 about the Will and that of the plaintiff and her husband. It sounds unusual that P. W. 2 having come to know about the Will in favour of her brother's wife would maintain such strict silence over it as not to break this good news even to her brother and brother's wife. It is not her case that R. F. Dias bade her to maintain complete secrecy over the Will. Above all, P. W. 2 has been contradicted by P W. 3 Monika. P. W. 2 says that she came to know about the Will in October 1956, but the evidence of P. W. 3 is that R. F. Dias executed the Will after his retirement. It is in evidence that R. F. Dias retired in 1958. This contradiction is on the most material point and shakes the foundation of the plaintiff's case and belies the evidence of P. W.

2. Next, coming to her evidence regarding her visit to the house of R. F. Dias between 1 and 3 p.m. of 31‑1‑61, and what conversation took place between P. W. 1 Father Shaha and R. F. Dias regarding the disposition of his property by a Will. We find that she purports to say that Father Shaha asked Mr. Dias what he had done about his properties and the latter replied that he had made a Will in favour of Mrs. Lilian D'Crue. I this conversation also, it appears, she chid not open her lips. This also sounds unusual. The most natural thing to expect in such a situation, had she been aware of the Will by Dias, would have been to add that she herself was also aware of the Will by Mr. Dias: Nothing was said by her at that time and she kept mum. On the contrary, she wants to say, "my son asked him (R. F. Dias) whether he had made any change to the Will which he had signed earlier: R. F. Dins replied in the negative. Bensley Gonsalves asked him where Mr. R. F. Dias pointed towards a cup‑board and told that it was there". This alleged conversation between her son Bensley Gonsalves and R. F. Dias in his death bed, as stated in the preceding sentence within inverted commas, which she has introduced in her evidence, is inadmissible because it is hit by the rule of hearsay inasmuch as these statements do not come within the terms of any of the clauses of section 32 of the Evidence Act. Therefore, this part of the plaintiff's case cannot be held to have been proved by her evidence. The 3rd part of her evidence, that is, what had happened on 2nd February 1961, which is relevant to the second point formulated earlier, is that she had been to the house of R. F. Dias accompanied by her son Bensley Gonsalves and there. others had also come on that day. Edmond Gonsalves, the defendant No. 1 wanted to prepare an inventory of the articles in the house of R. F. Dias, P. W. 2's brother Oliver, i.e. the husband of the plaintiff, told them that there was no need for any inventory to be prepared since R. F. Dias had left a Will in favour of his wife Lilian D'Cruze. Her brother's wife Lilian D'Cruze made over a bunch of keys to Mr. Edmond Gonsalves with which he wanted to open the drawer of the cup‑board but none of the keys fitted inside the locks. The drawer was forced open with the help of a dao and after opening the drawer it was found that the lid of the secret box was open and the Will was missing from that box. She also stated, "then my son said that there was a Will and R. F. Dias had told him that it was in the cup‑board". Her evidence relating to this episode is that she did not say anything about her knowledge of the Will made by R. F. Dias, on this occasion too. While the controversy between his brother and b:other's wife on one hand and the defendant No. 1 on the other was going on in the presence of several persons it was very natural for her at that moment to say, if she knew about it, that R. F. Dias had made a Will which she herself saw. But she wants us to believe that although she knew about the Will she kept mum over the existence of the Will on this occasion too. This conduct is inconsistent with her testimony that she knew about the Will since October 1956. In cross‑examination she admitted that she was present when Mr. E. C. Gonsalves wanted to prepare the inventory after the burial. All the boxes and the drawer etc,, were opened in her presence. When they were settling down for making the inventory she left the place. She did not know whether any other article of Mr. R. F. Dias was found missing. Her conduct in not disclosing about the Will on this occasion too appears to be curious. This time also she introduced her deceased son Bensley Gonsalves in the scene and stated that after opening the drawer, it was found that the lid of the secret box was open and the Will was missing from that box. "Then my son said that there was a Will and Mr. R. F. Dias had told him that it was in the cup‑board". For the same reason we find that this statement of P. W. 2 sought to be put through the mouth of his deceased son is also hit by the rule of hearsay inasmuch as it does not fall within the terms of any of the clauses of section 32 of the Evidence Act. Having considered her evidence as a whole and as discussed above we find that she is not a witness of truth. She has been brought to help the plaintiff and her husband in the suit with concocted and tutored evidence. This witness does not inspire any confidence in us and we accordingly find ourselves unable to accept any part of her testimony. This being the position the alleged Will remains wholly unproved. For obvious reasons the Will could not be proved within the meaning of clause (c) of section 63 of the Succession Act. This witness was examined to prove the contents of the Will as well. Therefore, she was brought to play the most vital role in this case but her evidence has been disbelieved by us. The learned Subordinate Judge prefaced the evidence of the witness by saying, "Now with regard to the Will they have got direct evidence from the evidence of P. W. 2 Mrs. Lucy Gonsalves". The learned Additional District Judge did not at all consider the statements made in the cross‑examination. In a case like this when the entire case of the plaintiff depends upon the oral testimony which in turn is dependent upon the testimony of only one witness, the evidence of such witness must be cogent and free from all inherent improbabilities. Discussing the evidence of P. W. 2 we have pointed out that her testimony suffers from inherent improbabilities and it is not cogent either and it does not satisfy the Court beyond any reasonable doubt that there was a testa mentary disposition. P. W. 3, Monika Gonsalves, according to the plaintiff is one of the legatees under the Will to the extent of Rs. 800.00 she sought to prove the execution of the Will by R.. F. Dias regarding his properties and also the contents of the Will besides corroborating the other witnesses. Her evidence is that she was shown the Will and that R. F. Dias told her about the execution of the Will two years before she left the house of F. R. Dias, in or about July 1960. She wanted to corroborate P. W. 7 by saying that R. F. Dias went to the house of Lilian D'Cruze to hand over the Will to her. After a month Lilian D'Cruze came to R. F. Dias and handed back the will to R. F. Dias and the, latter kept it in the drawer of the cup‑board. In order to appreciate whether the defence suggestions put to this witness has got any basis or not and also to consider whether she is a witness of truth or not, it is necessary to advert to some facts admitted by herself in her deposition. She used to serve in the maternity centre at Cox's Bazar. She came to Chittagong town at the age of 14 years, with her elder brothers. At first, she used to put up at the house of one of her relatives. After one month she went to serve at the house of one lady named Mary and served there for three months and went back to Cox's Bazar. One month later she cam‑, back to the house of her relative. After 3 or 4 days, she went to the convent and stayed there for one and a half years. She could not, however, give the year of her stay in the convent. As admittedly she was illiterate, she used to look after the babies at the convent. From there she went to the house of R. F. Dias and was there for 2 or 3 years. Then she served for one year at the house of one Shahib at Dampara. Once she bad been to Calcutta with one Mrs. Black, before her marriage. She admitted that "the Will was written on a white paper. Mr. R. F. Dias read it over to me. It was typed on a stamp paper. I did not ask Mr. R. F. Dias how much money he had and what properties he had". It will be evident from this admission of the witness that she had no idea about a stamp paper at all. At one moment she said that the Will was "written on a white paper", the next moment she said that the Will was "typed on a stamp paper". She further admitted that when Mr. R. F. Dias informed her about the Will and its contents, none except Josephine D'Cruze was present. She "saw the Will on that day for the first and last time". She further admitted in her cross‑examination that she did not accompany Mr. Dias to the house of Mrs. Lilian D'Cruze when the former had gone there to give the Will to Lilian. She could neither say how many years ago the Will was handed over to Mrs. Lilian, nor could she say when the Will was returned to R. F. Dias by Mrs. Lilian. The learned Additional District Judge accepted the testimony of P. W. 3 without at all applying his mind to what she stated in her cross‑examination. After barely stating some of the statements made by the witness in her examination‑in- chief that she saw the Will and the contents thereof and also as to the handing over of the Will to Mrs. Lilian and vice versa, the learned Additional District Judge remarked "The statement of the P. W. 3 on this score almost went unchallenged in the course of cross‑examination." We like to observe that this observation of the learned Additional District Judge is most unfortunate. It is wholly incorrect to say that the testimony of P. W. 3 on any point went unchallenged in course of her cross‑examination. Therefore, on a consideration of her evidence as a whole on the various points, we are led to the conclusion that she is not a witness of truth and her testimony cannot be relied upon on any point. It was suggested to her that she was a maid‑servant of Mrs. Lilian D'Cruze and stayed in her house but she denied it. It was also suggested to her that she falsely deposed in the case at the instance of Mrs. Lilian D'Cruze, which was also denied by her. From the background of this witness, it cannot be said that the defence suggestions are altogether baseless. Moreover, we do not find any reason why Mr. R. F. Dias would make her a legatee under the Will. She was neither related to him nor did she serve him ;rather she left his house in July 1960. It has been stated that R. F. Dias helped this woman in securing her passport in 1956 and in the matter of acquiring nationality and stay in Pakistan. We fail to understand why It. F. Dias would bequeath Its. 800.00 to this woman. Now, P. W. 4 Reabea Rebeiro stated that his aunt Josephine D'Cruze was one of the legatee under the will. His evidence is that Josephine used to live in the house of R. F. Dias. In 1960, during the X mas he paid a visit to her. Mr. R. F. Dias was at home at that time, and that Mr. R. F. Dias brought out a Will from his drawer and read it over to him. It is difficult to understand why R. F. Dias should become so interested in bringing out the Will from his drawer and read it over to P. W.4. It is not even the case of P. W. 4 that he was acquainted with R. F. Dias from before. This piece of evidence appears to be a deliberate lie. The witness did not stop there. He went on to say that he had seen the Will. 1t was signed by Mr. R. F. Dias on the bottom right hand side and on the bottom left hand side, Bensley Gonsalves and Monmohan Biswas signed. In cross‑examination, he could not say when he visited the house of R. F. Dias for the second time. He stated that he attended the funeral ceremony of R. F. Dias and after his burial came to the house of Dias where a lot of people were present. E. C. Gonsalves, defendant No. 1, wanted to make an inventory of the articles left by Mrs. Dias but Oliver D'Cruze said that there was no necessity of any inventory inas much as R. F. Dias had left a Will in favour of his wife Mrs. Lilian. This witness does not say a word whether he disclosed the fact to any body that he had seen the Will. He also admitted that he could not remember whether he came to Mr. Dias's house for the second time after December 1960. He also admitted that he had no discussion with any body, Lilian or Oliver, about his having seen the Will. The Will was a typed one. The list of movables and immovable were in the Will. The Will was written only in one sheet of stamp paper which did not contain the father's name of Lilian nor that of the testator. He admitted that he saw and read the inventory, Exh. I. He could not remember whether there was any mention about the Will in the inventory. The inventory, Exh. I, comprises of three pages of quarter size foolscap papers. At the top of the 1st page of Exh. I, it is written as a headline "Inventory of R. F. Dias's property since the Will could not be traced". These writings are quite prominent and were underlined. P. W. 4 wants us to believe that his memory served him very well in remembering the minute details of the Will including the contents thereof, and the signatures of the testator and the attesting witnesses at the respective places but his memory did not serve him well to remember the broad fact prominently mentioned in the heading of the inventory although he claimed to have read it. On a consideration of his evidence we are satisfied that he is not at all a witness of truth and his evidence does not inspire‑any confidence in our mind. He has come to help the plaintiff' against his uncle, the defendant No. 1, as he is now inimically disposed towards the defendant No.

1. It was suggested to him that the defendant No. 1 drove him cut from his house as he was not pulling on well with his wife and children. It was further suggested that the defendant No. 1 had stopped the allowance which he used to give him. The witness admitted that some years ago he used to take monetary help from the defendant No.

1. However, he denied the suggestion that he turned hostile because of the suspension of the payments. Nevertheless, the suggestion of enmity is not altogether baseless. We have, in this connection, also considered the evidence of D. W. 2 and we find that his testimony on this point deserves credence. In this context, the evidence of P. W. 6 G. M. Rozario, and 66 years, deserves consideration. He is the President of the Welfare Society of their community and was a personal friend of R. F. Dias. He had been to the house of R. F. Dias on many occasions as lie was a personal friend. He does not say a word that his friend ever told him that he had made any Will. In short, he knew nothing about the Will during the lifetime of R. F. Dias. He came to know about the Will for the first time in the sitting at the house of R. F. Dias after his burial. If R. F. Dias had really made a Will, it can be expected that he would have at least disclosed that fact to a personal friend like P. W .

6. Mr. B. N. Chowdhury, the learned Advocate for the plaintiff respondent argued that the evidence of P. Ws. 7 and 8 should be considered to have satisfied the requirement of proof as envisaged in section 69 of the Evidence Act ; that their evidence read along with the evidence of P. W. 2 in particular go conclusively to establish the execution, attestation and the contents of the Will. The plaintiff, P. W. 7, has no doubt supported her case as made out in the petition for Probate. Her testimony is that she herself saw and read the will in the month of October 1958, as mentioned earlier. She stated that when she and her husband were taking tea, R. F. Dias came to their house, and read out the Will to them and handed it over to her husband to read it. R, F. Dias told her that he bad given both his movable and immovable properties under the Will to her and only Rs. 800.00 were to be paid to Monika and Josephine D'Cruze each. To the same effect is the testimony of P. W. 8, the husband of the plaintiff: According to him, he was present in his house when R. F. Dias came at about 7‑?0 a.m. on 17th October 1958. Their further evidence is that R. F. Dias asked them to keep the Will with themselves, but they thought it proper to keep it with R. F. Dias and accordingly handed over the same to him on 30th November 1958. This story of P. Ws. 7 and 8 does not appeal to us at all. We do not find any reason or justification why the Will should have been returned to the testator himself on 30th November 1958. It has been argued before us by Mr. Bhattacharjee that this story was introduced by P. Ws. 7 and 8 with a view to making themselves eligible or competent to depose in the case on the question of execution, attestation and the contents of the Will, and as such no importance should be attached to their evidence. This submission of the learned Advocate for the appellant does not appear to be without force. Above all, they are vitally interested and their evidence cannot be accepted unless corroborated by wholly independent and disinterested witnesses beyond all shadow of doubt. This has not been done in this case. Thus; on a consideration of the evidence on records and having regard to the facts and circumstances of the case we are unable to accept the contention of the learned Advocate for the plaintiff respondent, that the plaintiff' had succeeded in proving the execution, attestation and the contents of the alleged will as required under the law. The learned Advocate for the plaintiff respondent laid great emphasis on the fact that the land on which the house of R. F. Dias, now stood was gifted to him by his maternal uncle the father of the plaintiff' Mrs. Lilian, and, therefore, R. F. Dias thought it proper to return the land, along with the house constructed by him on it, to his donor's daughter, the plaintiff. Moreover, the land and the house is quite adjacent to the house of the plaintiff, and R. F. Dias, a prudent man as he was, thought it proper to give the same to the plaintiff'. According to the learned Advocate, in the circumstances as revealed in the case, it is next to impossible to think that a prudent man like R. F. Dias, would not make any Will during his lifetime and die intestate. We have considered these aspects with the due weight they deserve, but we are unable to hold that these facts can alter the intrinsic character of the evidence of the witnesses. Now, coming to the second point as to whether the plaintiff had succeeded in showing that the alleged Will was in existence till the time of the death of the testator. In other words, whether the plaintiff' had rebutted successfully the presumption that arises, in the facts and circumstances of the case, that the Will was destroyed by the testator during his life time for the purpose of revoking it. On this point, we have already considered the evidence of P. W.2. Next comes the evidence of P. W. 1 Father Shaha. His evidence is that he is attached to the Chittagong Church since 1956. That the late R. F. Dias was one of the Parishoners, who died on the 1st February 1961 and he performed the last rites for the church for him. He visited the house of R. F. Dias many a time. On 31st January 1961 he saw him at his residence sick, but conscious. Other persons including P. W. 2 and her son Beasley Gonsalves were also present. He also stated that when he asked R. F. Dias what he had done about his properties, "He replied that he had settled it by creating a Will. I think that Bensley asked where was that Will. He replied that it was in the drawer". He next admitted that he had no direct talks with Bensley about the Will. It is evident that the above statements except the words `I think', which were relied upon by the plaintiff for proving the existence of the Will till the time of death of the testator, are hit by the rule of hearsay and are inadmissible in evidence inasmuch as they do not come within the terms of any of the clauses of section 32 of the Evidence Act. Besides this legal defect, there is another factual infirmity in the relevant testimony of P. W.

1. He stated that he saw R. F. Dias on 31‑1‑61 in the very room where he died. In cross‑examination P. W. 1 stated that he could not give any idea about the number of the rooms in that house. He admitted, "When I was coming out, Mr. Bensley asked Mr. Dias where was the Will, the latter stated that it was in that drawer, pointing to a drawer. I simply heard it". P. W. 7 also stated in her examination‑in‑chief, "Bensley asked where it was. Mr. Dias pointed out the cup‑board, indicating that it was there". Now, it is in evidence vide P. Ws. 7 and 8 that R. F. Dias used to sleep in the extreme western room which was his usual bed room before the illness and that the cup‑board with a secret drawer with an inside lock was in this bed room. Admittedly, he did not die in his usual bed room. P. W. 7 after giving the location of the different rooms of the house admitted, "I shifted him to his other bed room only 4 days before his death. The cup‑board was not visible from the original bed room where Mr. R. F. Dias breathed his last. Boxes were in that room". The next moment she further admitted that the cup‑board was in another room and not in the room where he died. Not only from these admissions but also from the very positions of the rooms given by her it is crystal clear that the cup‑board or for that matter the secret drawer of the cup‑board was not at all visible from the room where R. F. Dias was seen by P. W. 1 on 31‑1‑

61. Thus the story given by P. W. 1 does not appeal to us at all. Moreover, the defence case is that R. F. Dias lost his power of speech since 2/3 days before his death. It is interesting to note that P. W. 8, having realised the significance of the admissions made by P. W. 7 tried to water down the mischief but in doing so he contradicted P. W.

7. For example, P. W. 8 stated that R. F. Dias was removed from his usual bed room on the night of 30th January 1961, while P. W. 7 stated that he was removed four days before his death. Thus on a consideration of the evidence on the point, we hold that the plaintiff failed to establish that the Will was in existence till the time of the death of the testator. Therefore, the presumption arising under section 238 of the Succession Act, remained unrebutted. In support of the appellant's contention that no Will was made by R. F. Dias, Mr. D. C. Bhattacharjee pointed out certain circumstances as revealed in the depositions of P. Ws. 5 and

6. These are that after opening the boxes of the late R. F. Dias, some cash money was found which was made over to the defendant No.

1. After about a fortnight, a sitting was held at the house of P. W. 6, G. M. Rozario to decide the legal heirs of the late R. F. Dias. Mr. A. C. Sen pleader, who was present in that meeting gave the opinion that the defendants 1 and 2 were the legal heirs of R. F. Dias. Accordingly, it was decided in that meeting that Pass Book and the other papers should be given to the defendant No.

1. The deed of gift was produced by P. W. 8 in that meeting which was translated in English by P. W.

6. It was then kept in the custody of one Mr. Randolph. Pursuant to the decision taken in this meeting (at the house of P. W. 6), another sitting was held at the house of late R. F. Dias and in this sitting some papers were handed over to the defendant No. 1 so that he might apply for a Succession Certificate. Defendant No. 1 took these papers after cutting his signature against the respective items in the inventory. This is corroborated by the Exh. 1 itself, although the signatures of the defendant No. 1 therein were not separately marked. However, they are admitted by both the parties. Thereafter, on 27th March 1961, the defendants filed the application for Succession Certificate. From the above facts and circumstances, Mr. Bhattacharjee urged before us that had the plaintiff's story of the Will been true, she and her husband would not have parted either with the money or the documents of R. F. Dias. He further submitted that she and her husband accepted the defendants as the legal heirs and handed over the documents to the defendant No. 1 in the presence of the leading members of their community, such as P. Ws. 5 and

6. Subsequently, she turned back and filed the application for Probate on 5th April 1961 with a concocted story. These submissions of the learned Advocate for the appellants, are of substance. The reasons given by the learned Additional District Judge in this behalf do not at all appeal to us. The above findings are, in our opinion, sufficient to dispose of the appeals. But as the learned Advocate for the appellants alternatively argued that the Will, if at all executed by R. F. Dias, had been removed either by the plaintiff or her husband and they have deliberately withheld it as it goes against their interest, it is desirable that we record our finding on this po nt as well. It is an admitted fact that late R. F. Dias used to keep the bunch of keys in a ring fastened with a leather belt which he wore on his waist. Admittedly the plaintiff removed the bunch of keys before the death of Dias. She did not go to the burial ground and it was she who produced the bunch of keys and handed over the same to her husband in the presence of the persons who had assembled at the house of Dias on 2nd February 1961. None of the keys fitted into the lock of the cup‑board wherein the alleged Will was said to be kept. From these facts it can be inferred that either she or her husband was responsible for removing the Will from the secret drawer of the cup‑board if it really was there. The plaintiff and her husband took the stand in their depositions that the defendant No. 2 (D. W. 1) Josephine Penherio had access to the keys of R. F. Dias and it was she who had removed the Will from the secret drawer of the cup‑board. It will be well to remember in this connection that the controversy regarding the existence or otherwise of the Will and the several sittings held at different places, vide the evidence of P. Ws. 5 and 6, before filing of the application for Probate, nothing was mentioned in the petition for Probate suspecting the defendant No. 2 to be the person responsible for removal of the Will. h. W. 7 admitted in her cross‑examination that she did not tell her lawyers that she suspected the defendant loo. 2 for the loss of the Will when they had drafted the petition for Probate. She did not suspect the defendant No. 2 for the loss of the Will at the house of Mr. Dias when the loss was detected (on 2‑2‑61). Suspicion arose in her mind after the inventory. She did not inform the police about the loss of the Will. Definitely as per evidence the petition for probate was drafted after the inventory was prepared. Thus she has not only contradicted herself but she has also betrayed the fact that the story is an afterthought. We have closely scrutinised the evidence of D. W. 1 that is, the defendant No. 2 Josephine Penherio. She has stoutly denied the alleged story of removal of the Will or even staying for two nights at the house of R. F. Dias before his death on the pretext of nursing him. The plaintiff could not elicit anything from the cross‑examination of W. D. 1 in support of her suggestion. P. W. 8 went on to say that during the illness of Mr. Dias, Mrs. Josephine Penherio used to open the boxes of Mr. Dias. She used to take the keys from under the pillow of Mr. Dias, 3 or 4 days before his death. Then he stated, "Myself or my wife never passed any night in the house of Mr. Dias. Only we kept vigil along with others after his death". He further admitted, "I was present when the petition for taking Probate was being drafted by my wife's lawyer. I have not seen Mrs. Penherio opening the boxes, but I was told about it by Mrs. Josephine D'Cruze. My servant Monmath Barua was present when Mrs. D'Cruza told me this thing. He is still my servant " It is clear that the statements are not admissible in evidence as being hearsay. Not only that, but they are also ex facie concocted statements, made to support an equally concocted story. On this point we, therefore, find ourselves unable to agree with the observations of the learned Additional District Judge. The facts and circumstances of the case and the evidence discussed above lead to the conclusion that if the will in question was really in the drawer of the cup‑board, and if any body had removed it therefrom, it was most likely that it was removed either by the plaintiff or her husband. We further hold that D. W. 1 Josephine Penherio had no access either to the keys or the cup‑board of R. F. Dias and she cannot be blamed for the removal, if any, of the alleged Will from the cup‑board. The learned lawyer for the respondent sought to meet the point discussed above by only emphasising that no onus lay on his client to show when and how and by whom the Will was removed. In reply to this argument of the learned lawyer, we would like to observe that in a cage like this, where both the Will is missing and the attesting witnesses are dead, and moreover, E the Will is shown to be in the custody of the testator, the propounder of the Will must satisfactorily explain every bit of doubt or suspicion that may reasonably appear against the propounder in order to satisfy the conscience of the Court that a free testamentary disposition was made in his or her favour. The propounder, in other words, must satisfy the Court that he has come to the Court with a clear heart and the evidence adduced is cogent and unassailable and the veracity and credibility of the; witnesses are unimpeached. In view of our findings on the different points, we allow the appeals and set aside the judgment and decree passed by the learned Additional District Judge ; the Civil Suit No. 5 of 19,;1 is dismissed and the Civil Suit No. 2‑A of 1963 is decreed and the prayer of Edmond Christopher Gonsalves and Mrs. Josephine Dias alias Josephine Penherio, for the Succession Certificate to the estate of the late Mr. R. F. Dias is granted. Having regard to the facts and circumstances of the case, we direct that the parties will bear their own costs. MAHMUD HUSSAIN, J.‑I agree. S. Q. Order accordingly.