P.C. Misra, J.
1. The plaintiff in O. S. No. 3 of 1971 of the Court of the District Judge, Cuttack is the appellant in this appeal. The plaintiff-appellant prayed for grant of letters of Administration in respect of an unregistered will dated 21-1-1968 said to have been executed by his paternal uncle Basudeb Misra (hereinafter referred to as 'testator'), The learned District Judge on a consideration of the evidence on record came to hold that the will (Ex. 1) was not executed and attested on the date, time and place and in the manner as alleged by the plaintiff. Some suspicious circumstances surrounding the will having not been explained by the plaintiff, the learned Court below ultimately held that the will is not genuine. Consequently, the prayer of the plaintiff for grant of letters of Administration was refused by the learned Court.
2. The plaintiffs case is that one Gopal Charan Misra had two sons namely Banchhanidhi and Basudeb. Banchhanidhi has got two sons and five daughters. Plaintiff is one of the sons and one Urmila is one of the daughters of Banchhanidhi. The first wife of Basudeb having died he married the defendant Prafullita Misra for the second time about 22 years prior to his death. As he had no issue through any of his two wives he adopted Urmila as a daughter since her childhood. According to the plaintiff Basudeb had immense of love and affection for the plaintiff and used to treat him as his own son. The plaintiff also reciprocated the feelings of Basudeb and used to respect him as his father. In the year 1968 Basudeb, suffered from severe anemia and was removed to the S.C.B. Medical College Hospital, Cuttack and was admitted to the 5th Medical Ward on 11-1-68. His ailment was diagnosed to be Hypoprotemia and anemia and the disease aggravated in spite of the best available medical treatment in the hospital.Ultimately Basudeb breathed his last on 24-1-68 at about 5.15 P. M. in the hospital. The plaintiff alleged that prior to his death he had executed a will on 21-1-1968 bequeathing Ac. 1.25 decimals of land to his widow and the rest to the plaintiff. By virtue of this will Ac. 3.61 decimals and 17 links of land as described in the schedule attached to the petition for grant of letters of Administration, is likely to come to the hands of the plaintiff. The will provides that the plaintiff should bear the expenses of eduction and marriage of Urmila, the adopted daughter of Basudeb. According to the plaintiff the will was duly and validly executed by the testator while he was in a sound disposing state of mind, and was attested as required under law.
3. The defendant filed her written statement denying the plaint allegations and contended that the will in question is a manufactured and fictitious document and that the signature and thumb impression of the testator appearing on the 'will' have been forged. She denied the adoption of Urmila. According to her the testator was not in a fit state of health and mind on the alleged date of execution of the will. It was alleged that the condition of the testator became serious from day to day and towards the last 10 days of his life Basudeb lost the sense of understanding things and was not in a sound state of mind to understand and take any decision about the execution of the alleged will.
4. The defendant further alleges that she was all along present by the side of the testator during the latter's illness in the hospital and her husband Basudeb had never any intention to execute any will in favour of the plaintiff. According to her the will has been created by the plaintiff with the view to grab substantial portions of the properties left by her husband. She alleges that a small portion of the properties has been given to her in order to give it a colour of genuineness.
5. With the aforesaid pleadings both the parties led evidence both oral and documentary. The learned Court below on analysing the evidence on record has come to a finding that the will is not genuine and held that the plaintiff is not entitled to any relief as prayed for.
6. The plaintiff has in this appeal challenged all the findings of the learned trialCourt on the ground that the findings of the learned District Judge suffer from non consideration of admissible evidence on record and his conclusions are against the weight of evidence adduced on behalf of the parties.
7. The undisputed facts are that the testator was admitted to the hospital on 11-1-68 and died on 24-1-68. The testator, admittedly had no issue born to him through any of his two wives.
8. In order to succeed in this suit the plaintiff being the propounder has to prove that the will in question conforms to the requirements of Section 63 of the Indian Succession Act (Act XXXIX of 1925). The burden of proving the execution and attestation of the will is evidently on the propounder. In the case of H. Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC 443, the Supreme Court after considering the evidence of parties has laid down that 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 by Section 63 of the Indian Succession Act As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. Their Lordships have further indicated that there is, however, one important feature which distinguishes 'will' 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 from 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. Thus the propounder is required under law to prove 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. Section 63 of the Indian Succession Act requires (a) that the testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by the direction, (b) the signature or mark of the testator, or thesignature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will; (c) the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his marks to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of the witnesses shall sign the will in the presence of the testator. But it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
9. Besides the above, the propounder is required to remove all doubts in the mind of the Court where the will is surrounded by suspicious circumstances.
10. The plaintiff has examined 5 witnesses besides examining himself as P.W. 5. P.W. 3 is said to be the scribe. P.Ws. 2, 4 and 6 are said to be the attesting witnesses of the will. P.W. 1 is the School Teacher who has proved the School Admission Register and School Leaving Certificate wherein the testator has been described as father of Urmila. Coming to the evidence of the scribe (P.W. 3) his evidence is that he is a license deed writer in the Sub-Registrar's office at Tirtol for the last 31 years. In Jan. 1968, the plaintiff Sarada Charan Misra informed him at the Sub-Registrar's office at Tirtol that the testator Basudeb Misra has been admitted in the hospital and he (the testator) wanted him to go there for scribing a document. On the next day P.W. 3 went to the S.C.B. Medical College at Cuttack and met the testator. The testator gave him instruction for scribing a will and he carried the instruction in a note. There the plaintiff gave him a deed of partition which he had brought from his house. Then he proceeded to the quarters of his daughter who was a nurse in the S. C. B. Medical College Hospital at the relevant time. There he prepared the draft of the will and in the after-noon he took the draft to the testator in the hospital. P.W. 3 read over and explained its contents to the testator and after understanding its contents the testator Basudeb asked him to prepare a fair copy and meet him next day at 5 P.M. P.W. 3, therefore, prepared a fair copy at his residence and went on the next date atthe appointed time. The formal fair copy was again read to Basudeb, the testator, in the hospital whereafter Basudeb put his signature on the will in his presence and in the presence of attesting witnesses. According to the P.W. 3, the attesting witnesses attested the will in his presence and also in the presence of the testator, Basudeb. In his cross-examination he admits that he had no special intimacy with Basudeb, nor he had scribed any other document of Badudeb. P.W. 3 says that he was at Cuttack from 20-1-68 to 22-1-68 for the purpose of scribing the document. The deed of partition which is alleged to have been returned by P.W. 3 has not been produced in Court. Instruction note which was taken by P.W. 3 from Basudeb is said to have been destroyed by him. But P.W. 3 admits that draft which he had prepared and which contained the signature of Basudeb in token of his approval was kept by Basudeb. The said draft has not been produced. The plaintiff (P.W. 5) takes a plea that the said draft was torn off as directed by Basudeb in the presence of the attesting witnesses as well as the scribe P.W. 3. P.W. 3 does not breathe a word about its destruction. P.W. 3 who is the scribe of experience and who has been working as a licenced deed writer in the Sub-Registrar's Office at Tirtol cannot be believed to have been detained for 3 days for scribing Ex. 2 for Basudeb. According to P.W. 3 the lands of Basudeb and Banchhanidhi were joint by the , time of execution of the will, Basudeb told him that the lands to be mentioned in the will were jointly possessed by him with his brother, and he wanted to bequeath his share in the land and to mention the fact that he owned the tends with his brother as mentioned in the deed of partition. In spite of this instruction, P.W. 3 did not carry the deed of partition with him for the purpose of drafting the will. He admits that he did not specifically mention the schedule of properties in the will. The will Ex. 2 mentions 3 items of properties in the schedule appended thereto. The intention is that the properties mentioned in the schedule would pass on to his wife, the defendant. The description of the properties in the schedule of the will does not show that his interest in the properties has been bequeathed. In each item half portion of the paticular plots described therein has been bequeathed. His brother Banchhanidhi has not been described as one of the boundary owners in any of the said items of the properties. The manner in which the will has been scribed by P.W. 3gives rise to some suspicion. The space between the lines in the 1st. page of the 'Will' gradually increases towards the end of that page and in page 2 there appears to be some efforts by the scribe to fill up the page so as to give no space at the bottom for the signature or thumb impression of the testator. He is unable to explain as to why the space between the lines at the bottom of the first page of the will is greater than that between the lines at the top portion of the said page. The explanation that he hurriedly wrote out the will for which the space between the lines in the 2nd page is greater than between the lines of the first page of the will is not convincing. From para 26 of his deposition, it appears that P. W. 3 was conscious that the executant should normally have signed at the bottom of the 2nd page and there was no reason why he filled up the entire 2nd page without leaving space for the signature of the executant though it was quite possible had he adopted the same pattern of writing as in the first page, when he admits that usual practice is to take signature and L.T.I. of executant at the bottom of the writing of the will. Thus, the manner in which the will has been scribed and executed appears to be suspicious.
11. To us the signature of the testator in the first and 2nd page of the will differs to a considerable extent Each of the said signatures adopted a different pattern while writing letter 'Ba' and the letter 'Me'. The signature does not appear to be a natural flow of the writing. It has been as if the signature is imitated. A registered sale deed has been proved and marked as Ex. A on behalf of the defendant in which some properties were sold by Banchhanidhi, Basudeb (testator) and Radhamohan in the year 1958. The signature of Basudeb, the testator in Ex. A has a natural flow and appears to be a set hand. It has, however, been urged by the learned counsel for the appellant that it is possible that the signatures of the testator may not tally in all respects, after a lapse of 10 years specifically when Basudeb was admittedly ill. We do not rule out such a possibility. The manner of writing of ones own signature would not change in the manner and to the extent which we find in the will Ex( 2 while writing the letter 'Su' in Ext. A the writer has formed a loop at the right hand top of the letter while bringing the pen down whereas in the alleged signature of the testator in Ex. 2, the said loop in the letter 'Su' has been separately joined with the letter'Sa'. The signature of the testator in Ex. 2 has not been dated by the testator. All these circumstances taken together create a suspicion about the genuineness of the will.
12. Before passing on to the state of mind of the testator at the time of execution of the will we think it appropriate to deal with the evidence of attesting witnesses to the will who are P.Ws. 2, 4 and 6. P.W. 2 is a person who came to Cuttak to purchase logs of wood and went to the hospital to see Basudeb as he was his close neighbour in the village. He admits that he was not present when the will was scribed. He is not in a position to say if the condition of Basudeb became serious at 4.20 P.M. that day and if a doctor came to see him though the time of execution of the will was at 5 P.M. It is nobody's case that the plaintiff Sarada Charan Misra was adopted by Basudeb. The will itself described Sarada as nephew of , Basudeb. Sarada in the suit as well as in this appeal described himself as son of Banchhanidhi Misra. P.W. 2 during his cross-examination went to the extent of saying that Basudeb adopted Sarada about 10 years back and that he was present at the time of giving and taking ceremony during the alleged adoption. Nothing more need be said about this witness except categorising him as a Her. Therefore his evidence can never be relied upon for any purpose whatsoever. P.W. 4 was working as Superintendent in the office of the Collector, Puri and was enjoying leave preparatory to retirement during the year, 1968. He deposes that during that period he was staying at Cuttack and on the date of the execution of the will Sarada called him to the S.C.B. Medical College saying that Basudeb wanted him to attest the will to be executed by him. It is in this process P.W. 4 claimed to be present at the time of execution of the will and signed the will as an attesting witness. According to this witness the condition of Basudeb at the time of execution of the will was such that there was little hope of his survival. He reached the hospital between 4.30 and 5 P.M. when the will was executed. He said in the cross-examination that he did not know if the condition of Basudeb became precarious after 4 P.M. P.W. 6 is a witness who accompanied P.W. 4 to the hospital to see Basudeb. P.W. 4 is the maternal uncle's son of P.W. 6. According to P.W. 6, P.W. 4 was present when the will was executed by Basudeb. P.W. 6 deposes that there was notalk at all about registration of the will, whereas P.W. 5 deposes that there was such talk. The presence of P.W. 4 and P.W. 6 in the hospital at that time does not appear to be true as they did not come to the hospital any time before the said date after Basudeb was admitted into the hospital. In the aforesaid premises the evidence of the attesting witnesses P.Ws. 2, 4 and 6 cannot be relied upon.
13. It is admitted in the evidence of the witnesses for the plaintiff that Golak, the brother of the plaintiff was present near Basudeb on 20-1-68 when P.W. 3 took instructions from him, for drafting the will. P.W. 5 also admits the said fact. But Golak has not been examined to prove that in fact Basudeb had decided to execute a will and had instructed P.W. 2 for that purpose.
14. Admittedly, Basudeb was admited into the hospital on 11th Jan. 1968 and the will was executed on 21-1-68. It was incumbent upon the plaintiff to prove that Basudeb was in a fit condition to understand and execute the will on 21-1-68, by examining persons who were connected with his treatment at that time. The treating doctor and the persons attending to him have not been examined by the plaintiff. On the other hand the defendants have produced bed head ticket marked Ext B which shows that in spite of treatment his condition was not improving. Blood transfusion was given to him on 15-1-68; but his condition did not improve thereafter. On 21-1-68 Glucose drip was advised at 11 A.M. The doctor was given call to attend the patient (Basudeb) at 3.30 P.M. and also at 4.20 P.M. that day. All these do not suggest that Basudeb was physically well on 21-1-68 at about 5 P.M. when the will is said to have been executed. D.W. 4 has formally proved the Bed head ticket Ext. B and is no way connected with the treatment of Basudeb during the relevant period. P.W. 4 himself being a doctor he has given opinion about the condition of Basudev from the history of the patient and the observation of the treating physician in Ext. B.
15. Mr. Patnaik appearing for the appellant has vehemently argued that the evidence of D.W. 4 should not be accepted for the purpose of holding that the condition of Basudev was alarming on 12-1-68. We do not look to the evidence of D.W. 4 for that purpose. But the fact remains that the plaintiff has not examined any body connected with the treatment of Basudev who could have been in a betterposition to speak about his condition on 21-1-68. The evidence of other witnesses examined on behalf of the defendants, in our opinion, isnot worth discussing inasmuch as the plaintiffhas signally failed to prove the requirementsof Section 63 of the Succession Act.
16. In the result, the appeal is dismissed. But we do not make any order as to costs.
G. B. Patnaik, J.
17. I agree.