R.N. Misra, J.
1. Defendants 1 and 2 have challenged the decision of the learned District Judge of Cuttack granting Letters of Administration with a copy of the Will annexed in favour of the plaintiff. During the pendency of the appeal, defendant No. 1 appellant died and her name has been deleted without any substitution by order No. 14 dated 28-11-1974. The sole plaintiff-respondent having died, his legal representatives have been brought on record as respondents.
2. One Panu Khuntia had two sons Damei and Nidhi. Damei's grandson is Madhusudan (defendant No. 2). Nidhi had a daughter Malli (defendant No. 1) and two sons Radhashyam and Balakrishna. Radhashyam's widow Kamala was the testatrix. Balakrishna pre-deceased Radhashyam leaving behind a daughter Shakuntala. Radhashyam died in 1964 while living separate from his brother. Malli had married away. Kamala wasin her late thirties when she became a widow. Birakishore (P. W. 1) and Natabar (plaintiff) are first cousins. The testatrix got involved in certain litigations and the two cousins looked after the same. Natabar became a God-brother of Kamala and started looking after the properties of Kamala. Natabar applied for Letters of Administration claiming that Kamala had left behind an unregistered Will dated 9-8-1966 in his favour in respect of her entire properties to the exclusion of her husband's sister Malli and Madhusudan.
3. In the application for grant of Letters of Administration, defendants 1 and 2 were shown as distant relations of the testatrix. They appeared and entered caveat contending that the Will had not been duly executed nor was genuine. On a blank paper with the left-hand thumb impressions and signatures of Kamala, the Will had been subsequently written out. Kamala is alleged to have died an unnatural death on 26-8-1967. Though she lived for more than a year from the time of alleged execution, steps were not taken to register the document.
4. At the trial, five witnesses were examined in support of the application by the plaintiff : he himself as P.W. 5; the scribe Chintamani as P.W. 2; two attesting witnesses Gopal and Haladhar as P.Ws. 3 and 4 respectively and Birakishore, the first cousin of the plaintiff as P.W. 1. The alleged unregistered Will was marked as Ext. 1. The second defendant was examined as D.W. 1 and a neighbour was examined as D.W. 2. Some documents were also exhibited on the side of the defendants.
5. The learned District Judge ruled out the defence plea, held that the Will was genuine and duly executed and granted Letters of Administration annexed with the Will. In this appeal, the grant of Letters of Administration has been assailed.
6. The' onus of proof of a Will is admittedly on the propounder. The weighty observations of Gajendragadkar, J. as the learned Judge then was, in the case of H. Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC 443, may usefully be quoted before we enter into the facts of the present case. The learned Judge observed:--
'What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in Courts andthere are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67 if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the persons concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression a person of sound mind in the context. Section 63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed bySection 63 of the Indian Succession Act......'
The learned Judge again pointed out:--
'However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show ,by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the pro-pounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.'
Having said so, the learned Judge continued to further observe:--
'There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feebly and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result Of the testator's free will and mind. Insuch cases the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.'
(The underlinings are ours) In paragraph 21 of the Judgment, it was again pointed out that if it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.
A four Judges Bench of the Supreme Court in the case of Rani Purnima Debi v. Kumar Khagendra Narayan Deb, AIR 1962 SC 567; a five-Judges Bench in the case of Shashi Kumar Banerjee v. Su-bodh Kumar Banerjee, AIR 1964 SC 529; a Division Bench in the case of Ramchandra Rambux v. Champabai, AIR 1565 SC 354; two three-Judges Benches, one in the case of Surendra Pal v. Dr. (Mrs.) Saraswati Arora, AIR 1974 SC 1999, and the other in the case of Beni Chand v. Smt. Kamla Kunwar, AIR 1977 SC 63, have also accorded approval to the observations we have referred to above. It would not, therefore, be wrong to say that the proposition indicated in Venkatachala Iyengar's case (AIR 1959 SC 443) has stood the test of time and judicial opinion on the point appears to have been unanimous. The view of the Supreme Court seems also to be in accord with that of the Judicial Committee of the Privy Council. A Bench of this Court in the case of Nilambar Bewa v. Fagu Prusty, AIR 1351 Orissa 236, following a number of English and PrivyCouncil decisions had stated the law on the point in the same way. In yet another recent decision of the Supreme Court in the case of Smt. Jaswant Kaur v. Smt. Amrit Kaur, AIR 1977 SC 74, the learned Chief Justice speaking for the Court has pointed out:--
'In cases where the execution of a Will is shrouded in suspicion, its proof ceases to be a simple Us between the plaintiff and the defendant. What, generally is an adverse proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the pro-pounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will' The learned Chief Justice summarized the propositions of Gajendragadkar, J., in the earlier decision of the Court thus:--
'1. Stated generally, a Will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in, such matters. As in the case of proof of other documents, so in the case of proof of Wills, one cannot insist on proof with mathematical certainty.
'2. Since Section 63 of the Succession Act requires a Will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
3. Unlike other documents, the Will speaks from the death of the testator and therefore the maker of the Will is never available for deposing as to the circumstances in which the Will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last Will and testament of the testator. Normally, the onus which lies on the propounder can be taken to toe discharged on proof of the essential facts which go into the making of the Will.
4. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, and unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be removed by the mere assertion of the propounder that the Will bears the signature of the testator or that the testator was in a sound and disposition state of mind and memory at the time when the Will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the Will excite the suspicion of the Court, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.
5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial ' conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last Will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the Will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the Will, such pleas have to be proved by him; but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.'
The aforesaid propositions succinctly indicate the law applicable to probate of Wills and we do not think it is necessary any longer to look for other authorities or attempt to cull out the principles to be borne in mind while dealing with an application for probate.
7. We may now briefly recapitulate the circumstances in which the allegedWill in this case came to be executed. Radhashyam died in a separated state some time in 1964 leaving behind Kamala, the testatrix -- a rustic lady still in her late thirties -- as the sole heir. Balakrishna, the only brother of Radhasyam, had predeceased him. Radhashyam's only sister Malli had married away. There was none to look after Kamala. Birakishore Naik (P.W. 1) and Natabar Naik (P.W. 5) -- the later being the propounder and the sole legatee under the Will -- were first cousins still joint in property and lived in the same village. They stepped in to look after Kamala's convenience as also her properties taking advantage of the fact that she had no near relation to look after her affairs. Certain litigations in which Kamala came to be involved were looked after by P.W. 1. He even appeared as a witness in support of her cause and started cultivating her properties. Natabar gradually came close and became a God-brother of Kamala. A time soon came when apart from Natabar, Kamala had not other persons to look up to. In this background the alleged Will came to be executed on 9-8-1966.
8. The circumstances which appear to be suspicious may now be catalogued:
(i) In the Will (Ext. 1), two pens appear to have been used for scribing the document. Up to the 5th line, the writing is with a thick pen and the rest of it is with a fine one. There is no explanation for this feature.
(ii) The Will is on a cartridge paper with thumb impressions and signatures of Kamala. Admittedly Kamala is semi-literate and can appropriately be classed as a rustic woman. She has lent her thumb impressions as also her signatures at two places on the document The defence theory was that a blank paper with her L.T.I, and signature had been taken for some other purpose and has been converted into the impugned document.
(iii) The scribe (P.W. 2) has stated that according to the prevailing practice when a document is executed by an illiterate person, the executant's thumb mark is taken in such a way that it would touch the writing of the document. In the Impugned document that has not been done and no explanation has been furnished for the deviation.
(iv) No certificate has been appended in the document that the contents had been read over and explained to the executant and after fully understandingthe same she had lent her signatures and thumb impressions. Usually such a certificate is given even in the absence of compliance. In the instant case, the scribe has come forward to say that he had actually read over and explained the contents of the document, but no acceptable explanation for the absence of the endorsement has been given. The scribe's explanation is that there was only one cartridge paper and as the document was written out, there was no space left for endorsing the certificate. This is not correct because on the margin such a certificate could have been given. There could even be no objection for the certificate being given on the reverse.
(v) If Kamala was semi-literate, she could have put the date of execution below her signature. The same has also not been given. It may be pointed out here that there were previous litigations in which blank papers with Kamala's signature may have been taken. The learned District Judge discarded this theory by finding two signatures and two L.T.Is. in the paper. Keeping in view the domineering position which Natabar or P.W. 1 had been occupying vis-avis Kamala and the fact that there were litigations where P.W. 1 was acting on her behalf, it is indeed difficult to rule out the blank paper theory. The fact that Kamala has not put the date of execution goes in line with the submission of the defendants that a blank paper may have been converted into the alleged Will.
(vi) P.W. 2 who claims to be the scribe is not a licensed one. He seems to be a stranger to Kamala and in fact had never visited her house earlier. He has not clearly stated as to who called him on the date in question. He admits that Natabar is known to him for 10 to 15 years. In the circumstances, it would be reasonable to hold that Natabar and not Kamala had called P.W. 2 for the purpose.
(vii) The scribe has stated that he had taken a single cartridge paper for the purpose of scribing the Will as he was of the view that one sheet would be enough. This again is a feature which goes to support the blank paper theory, namely that as one paper with signature and L.T.I, of Kamala was available, the same has been converted into the impugned Will. The scribe made no enquiries from Kamala as 'to when she became a widow, if she had issues andclose relations and if the sole legatee Natabar was a relation. In normal circumstances, a scribe would require these information for appropriately scribing the Will. In the circumstances, it appears as if not Kamala, but Natabar briefed the scribe in the matter of execution of the document.
(viii) No draft was prepared and the Will was straight off written out. The scribe does not seem to be very much adept in drafting of documents and in the absence of a draft, it is indeed difficult to think of Ext. 1 to have been written out straight.
(ix) Both P.W. 1 and Natabar (P.W. 5) were present at the time of execution of the Will. Natabar as admitted by P.W. 1, was a God-brother of Kamala.
(x) Kamala had no independent legal advice in the matter of bequeathing the property by testamentary disposition.
(xi) There is no explanation at all as to why the document was not registered even though Kamala was not ill and there was no impediment in getting the document duly registered.
(xii) Of the two attesting witnesses P.W. 3 has become blind and, therefore, was incompetent to prove his signature or for the matter of that, appropriate attestation. P. W. 4, the other attesting witness, was a creditor of Natabar and had obtained a promissory note from Kamala one year after the death of her husband. Natabar paid the amount after it became barred by limitation. These are circumstances which go to show that P. W. 4 had other considerations to become interested in Natabar, the sole legatee.
(xiii) The propounder was to receive the entire property under the will from the testatrix. As we have already indicated above, it is he whose hands were playing underneath for the entire move. The scribe suppressed the fact that Natabar was present at the time of scribing of the Will. p.W. 4 has, however, stated that Natabar was present.
(xiv) Malli was quite a close relation. There is no evidence on record that Kamala ever looked for the assistance of Malli and Malli had declined to extend the same. It would be somewhat unnatural for Kamala to make no provision for Malli and not even offer an appropriate explanation in the document as to why the entire property was being given to Natabar, a stranger, in preference, to close relations of the testatrix's husband.
The circumstances which we have catalogued above are some of the suspicious ones shrouding the execution of the document. Propositions 4, 5 and 6 indicated by the learned Chief Justice of the Supreme Court in Jaswant Kaur's case (AIR 1977 SC 74) are directly applicable. It is for the propounder to explain these circumstances and satisfy the judicial conscience that the alleged Will was the last testament of the testatrix.
9. Mr. Patra for the respondents contended that Kamala had been forsaken by her relations and Natabar had stepped in as a willing friend and guide at the time of need. There was thus justification for ignoring near relations and transferring the entire property to the benefactor after her own death. That justified the tenor of the Will in question. He next contended that once due execution and sound disposing power of the testatrix had been proved, the burden shifted to the persons who had entered caveat and in the absence of proof of the defence stand, probate could not be refused. This proposition does not represent the law. In fact, the propositions catalogued in the last of the Supreme Court decision (AIR 1977 SC 74) clearly run counter to this assertion of Mr. Patra. He placed reliance on certain observations of the Supreme Court in Shashi Kumar's case (AIR 1964 SC 529) and in the case of L. Chamanlal v. Smt. Ram Katori AIR 1972 SC 2296. In Shashi Kumar's case the propositions of Gajendragadkar, J., were expressly approved. That was a case where the testator, aged about 97 had executed a will in favour of some of his sons. Opposition came from two other sons and grandsons (sons of a predeceased son). The District Judge relied heavily on the feature that the testator had written the will in his own hand and made corrections therein all by himself as also on the fact that a contemporaneous document executed by the testator had been attested by one of the caveators. The entire decision turned on its own facts. The District Judge had granted probate and the reversal by the High Court was vacated by the Supreme Court. No new or different principle was laid down. In the second case (AIR 1972 SC 2296) the testatrix was an illiterate lady but on the evidence the court found that the document had been read over and explained to her and after intelligently following the terms, she had asked for alterations. The execution of the will had not beendisputed at all. In these circumstances, the Court without attempting to lay down any abiding principle refused to draw any adverse inference against due execution merely from the fact that the Son-in-law who acquired no beneficial interest under the will was charged with the management of the property.
Mr. Patra also placed reliance on a Single Judge decision of the Punjab & Haryana High Court in the case of Smt Rajeshwari Rani Pathak v. Smt. Nirja Guleri AIR 1977 Punj & Har 123. Certain observations made in the background of the facts of the case appear helpful to Mr. Patra's stand, but we do not think after the law laid down by the Supreme Court has been indicated, any useful purpose would be served by attempting an analysis of the judgment of the learned Single Judge. We may add that the facts of the Punjab case were peculiar and are poles apart.
Clearing the suspicious circumstances to the satisfaction of the Court where such circumstances exist is within the fold of initial onus and until that has been done, probate is not available.
10. Having given our anxious consideration to the matter, we are of the definite view that the learned Trial Judge lost sight of these suspicious circumstances and their effect and fell into an error of law and also failed to discharge the duty that lay on the Court while granting probate of the Will. We are not in a position to hold that Ext. 1 is the last will of the testatrix.
11. The appeal is allowed, the judgment of the learned District Judge is vacated and the application for grant of Letters of Administration is dismissed with costs throughout.