Chittatosh Mookerjee, J.
1. Upendra Nath Das was a resident of Paharpore Road, Garden Reach, 24 Parganas, On 11th Jan., 1970 Upendra died. He had married twice. His first wife had predeceased Upendra. Three sons and one daughter begotten by his first wife and also his second wife, Sarala Bala, four sons and two daughters, who were issues of his second marriage were alive at the time of the death of Upendra, Sarala Bala Dasi, the widow of Upendra, had filed an application in the court of the learned District Judge, 12th Court, 24 Parganas for granting probate to the last will and testament of Upendra dt. 3rd Jan., 1970. The testator by the said alleged will had purportedly provided that after his death his second wife, Sarala Bala, Panchugopal, Rabindra and Sibnath, his three sons by his second wife, would get his property at Z-143, Paharpore Road, Garden Reach in equal shares and in absolute right. Sarala Bala was enjoined to perform the marriages of the two minor daughters out of the income of the property and, if necessary, by selling some properties. His surviving sons and daughters by his first wife were not given any legacy under the will of Upendra. Sarala Bala was appointed as the executrix of the will of Upendra.
2. The present appellants who were sons of Upendra by his first wife, had entered caveat, inter alia, contending that the will in question was a forged one and that at the material time Upendra had no testamentary capacity and that the will was not duly executed and attested. Thereupon, the court below followed the procedure of contentious cases.
3. The learned Additional District Judge, 11th Court, Alipore upon consideration of the evidence has decreed the suit in favour of the plaintiff and has directed that Sarala Bala be granted probate to the last will of Upendra Nath Das. Being aggrieved thereby, the appellants have filed the present appeal.
4. In our view, the learned Additional District Judge has erred in law in approaching from a wrong legal standpoint the question whether the propounder had satisfactorily proved that the disputed will was duly executed by Upendra and was attested according to law. The learned Additional District Judge also wrongly placed the burden of proof upon the defendants to establish that Upendra had no testamentary capacity or that he did not execute the will. It has been the consistent view of the courts that as 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, But there is 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 the world cannot say whether it is his will or not; and this aspect naturally introduces an element of a solemnity in the decision of the question as to whether the document propounded is proved to be last will and testament of the departed testator. 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 propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts, There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, the courts would be reluctant to treat the document as the last will of the testator. A propounder of the will has to prove the due and valid execution of the will and if there are any suspicious circumstances surrounding the execution of the will, the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence (vide the observations of Gajendragadkar, J. in H. Venkatachala Iyengar v. B.N. Thimmajamma, : AIR1959SC443 , Purnima Debi v. Khagendra Narayan Deb, : 3SCR195 and Ramchandra Rambux v. Champabai : 6SCR814 . The judicial decisions have also laid down that all the circumstances which would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That would be a question of fact in each case. Appearance of the signature, the condition of the testator's mind at the relevant time, the nature of the dispositions made in the will which appear to be unnatural, improbable or unfair, are some of the examples of suspicious circumstances which the court would insists being removed before the document could be accepted as the last will of the testator. When a propounder takes a prominent part in the execution of the will, the same may be treated as s suspicious circumstance attending the execution of the will.
5. In our view, the plaintiff had failed to remove the suspicious circumstances surrounding the execution and attestation of the will of Upendra. Although, according to the statements made in the alleged will, Upendra was aged 77 and was still active and sound in body and mind, it has transpired that Upendra was seriously ill and it had appeared to the propounder. Sarala Bala, that her husband might die. D.W. 1, Prabhat Das, who was an attesting witness, stated that at the relevant time Upendra was unconscious. According to Anath, D.W. 3, a son of Upendra, his father had died as a result of asthma and attack of cold. He was under medical treatment and Sarala Bala admitted that Upendra had executed the will lying on his bed and as his fingers trembled, he did not sit up and sign but put his left thumb impressions in the document. P.Ws. 1 and 2 claimed that sitting in his bed Upendra had affixed his thumb impressions. The propounder and her witnesses denied the evidence on the defendants' side that at the material time Upendra was unconscious and had no mental capacity. It is also admitted that the will was executed and registered on 3rd Jan., 1970 and on 11th Jan., 1970 Upendra had died. The plaintiffs did not examine the physician who had been treating Upendra during his last illness. Thus, they did not give any medical evidence about the physical condition and the state of mind of Upendra at the time of the alleged execution of his will.
6. There were other suspicious circumstances regarding the due execution and attestation of the will by which the surviving sons and daughters of Upendra begotten through his first wife were excluded from inheritance. The court below itself has observed that the provisions of the will were unnatural. There was no evidence to establish the allegation made in the alleged will of Upendra that his sons by his first wife had beaten him and that they had ill-treated Upendra and his second wife. Sarala Bala the second wife of Upendra, in her evidence did not make any such allegation of misbehaviour or ill-treatment against the sons of Upendra by his first wife. Panchanan Chakraborty, P.W. 2 who was described as a neighbour and had attested the will had deposed that he had asked Upenbabu as to why he was not giving property to his sons by his first wife. Upendra allegedly told Panchanan that as they had misbehaved with him and had assaulted him, they had been disinherited. But Panchanan, P.W. 3, admitted that he had not seen Upendra being assaulted or being admitted into a hospital. Therefore, the purported reasons given in the will for excluding Upendra's sons by his first wife were not established and the provisions in the will appeared to be unnatural.
7. The facts and circumstances relating to the preparation of the will of Upendra were also very suspicious. Abdul Karim Ali (P.W. 1) who was previously a Mukteer and now an advocate had allegedly drafted the will of Upendra and he had also attested the left thumb impressions of Upendra in the will. P.W. 1, Abdul Karim Ali, claimed that he practised in the criminal court since 1957.
Previously, he had no acquaintance with Upenbabu (meaning the testator). According to P.W. 1, Prabhat Das, a relation of Upenbabu had contacted him. Although Prabhat Das was an attesting witness to the will, he deposed as a witness in the case on behalf of the defendant Sarala Bala, the second wife of Upendra, P.W. 2, however, claimed that her husband told her about one month before his death that he would execute a will. She claimed that she had arranged for drafting and registration of the will. She herself went to court and arranged for registration of the will. Although she denied that he had instructed P.W. 1 to prepare the will she claimed that on the date of the registration she had called P.W. 1. She had paid the fees of P.W. 1 and also had borne the expenses of the registration of the will. She called P.W. 1 to draft the will. She told P.W. 1 that Upendra will execute his will in their favour and not in favour of her sons by his first wife. Thus, Sarala Bala, P.W. 2, herself stated that she had taken a leading part in the matter of drafting and registration of will under which she was one of the beneficiaries and she was also the executrix of the will. Further, there were serious contradictions between the evidence of P.W. 1 and P.W. 3 as to who had instructed P.W. 1 to draft the will of Upendra. P.W. 1, Abdul Karim Ali, did not mention that it was Sarala Bala who had approached and had given him instructions and also paid his fees.
8. The evidence of P.W. 1 about the drafting and the execution of the will does not appear to be trustworthy. P.W. 1 claimed that according to Upen's instruction received at the latter's house, he had drafted the will and the draft was typed. The draft of the will or the notes made by P.W. 1 were not produced in the court below. There was no explanation for their non-production. P.W. I could not even recall the name of the typist who had typed the draft and the final copy of the will. According to P.W. 1, one Kundu used to type his papers, Ratan Gopal Kundu who had signed as the typist of the said will was not examined as a witness. In the absence of any explanation an adverse presumption ought to be drawn up for not examining him. PW 1 claimed that he went to Upen's place with the typed draft. But in cross-examination he admitted that the drafted will was handed over to Prabhat Das for explaining the same to Upendra. In his examination-in-chief, PW 1 had stated that the will was executed in the presence of witnesses, Registrar and the other witnesses. He had then stated 'on that day I did not read over and explain the document to Upen again'. But during his cross-examination, PW 1 claimed that he had read over the document to the executant at the time of execution. The other witnesses of the plaintiff do not corroborate him. Thus, there was no reliable evidence that either the draft will or the final copy of the same were even read over and explained to Upendra.
9. Another very suspicious circumstance was, that, although Upendra was admittedly a literate person, the Will was not signed by him. But at the right hand corner of each page of the will there were the alleged left thumb impressions of Upendra attested by PW 1, Abdul Karim Ali. Upendra had neither signed nor affixed his left thumb impression below the concluding sentence of the will. Although it was recited therein '.........in sound health, in good faith, in full possession of senses, without other request on my own accord, I do sign, execute duly according to law his will in the presence of the witnesses after acquainting myself of all the contents of this will and having the same read over'. PW 1, Abdul Karim AH and PW 2, Panchanan Chakraborty, deposed that the fingers of Upendra trembled. He could not sign and put his left thumb impressions on the document. We have already observed that the propounder did not examine the medical practitioner who had been treating Upendra during his last days. It would not be prudent to place reliance upon the evidence adduced on the side of the propounder regarding the circumstances under which Upendra could not sign the will but only put his left thumb impression. PW 1 has admitted that he did not endorse the said fact in the document nor did he advice that Upendra should be medically examined before his will was executed by putting left thumb impression of Upendra.
10. Another curious fact about the execution of the will was that although PW 1 had attested the left thumb impression of Upendra appearing in each page of his alleged will, PW 1 did not attest the left thumb impression of Upendra said to have been affixed at the time of the presentation of the will before the District Registrar on commission. The said left thumb Impression was attested by Prabhat Das, DW 1, who, according to PW 1, had approached him for drafting Upen's will. DW 1, Prabhat was an attesting witness and his affidavit was annexed to the application for probate. Prabhat, DW 1, in his evidence in court, however, stated that Upen, who was his paternal uncle, had lost his senses before his death. For 15 days he had remained senseless. He could not move his limbs and could not also speak. No doubt, Prabhat Das, DW 1, appeared to be an extremely unreliable person and hardly any reliance can be placed upon his testimony. But at the same time, we find that the will of Upendra was attested by witnesses upon which no reliance can be placed and the alleged presentation of the will for registration was also made with the help of such an unreliable person. The onus of proof was upon the plaintiff and, therefore, in this state of evidence we are bound to say that the plaintiff has not removed the suspicions attaching to the execution and attestation of the will of Upendra and the registration thereof. When the court's conscience is not satisfied, the probate applied for ought to be refused.
11. In the facts of this case the court, below was not justified in observing that: the document being registered, the onus was on the opposite party (meaning the defendants) to prove that the testator had no testamentary power at the time of the execution. The Supreme Court in Purnima Debi v. Khagendra Narayan Deb : 3SCR195 observed that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token, thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, be seeing the testator read in the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. Registration may take place without the executant really knowing what he was registering.
12. In the instant case, there were serious discrepancies in the evidence of P.Ws. 1 and 2 regarding the presentation of the will for registration. PW 1 falsely claimed that he had presented the will on behalf of Upen for registration before the District Registrar. According to the the endorsement in the Will, the will was presented by Upen, who had affixed his left thumb impression and the same was attested by Prabhat, D.W. 1, and not by P.W. 1, Abdul Karim Ali. There was also material discrepancy in the evidence of P.W.. 1 and P.W. 2 regarding the time of registration. According to the endorsement made in the will, it was presented for registration at 2 P.M. of 3rd Jan., 1973. According to P.W. 1, the will was registered at about 4 or 5 P.M. Panchanan Chakraborty, P.W. 2, claimed that he was called at about 12-30 P.M. to attest the will. When he went there, P.W. 1, Prabhat Das, Panchu, Upen's wife, one unknown person and a chaprashi were present. The left thumb impressions, according to P.W. 2, were put on the document at about 4 P.M. At the same time, P.W. 2, deposed that Upen put his left thumb impressions on the will at 1 P.M. and that the will was not registered in his presence. During cross-examination P.W. 2 claimed that 2/3 days later he came to know that the will had been registered. If the evidence of P.W. 1, Abdul Karim Ali, is to be believed immediately after its execution and the attestation, the will was presented for registration. Therefore, we fail to understand how P.W. 2, Panchanan, could claim that the will was not registered in his presence. In the absence of any evidence on this behalf the trial Court was not justified in observing that the unknown gentleman mentioned by P.W. 2, was the District Registrar. Further, there was no endorsement in the will that the same had been read over and explained to Upendra and that it was brought home to him that the document of which he was admitting execution was a will. There was also no evidence that the Dist. Registrar had satisfied himself that the executant knew that the document was a will.
Therefore, we conclude that the registration of the will appeared to have been done in a perfunctory manner and that therefore registration of the will was not of much value. The District Magistrate was not examined as a witness in the case and he did not endorse upon the will that the same had been read over and explained to the executant. Therefore the Court below was wrong in holding that the will was executed in the presence of the District Registrar,
13. In our view, there were other material infirmities in the matter of execution and attestation of the will. Panchanan, P.W. 2, was described as a neighbour of the deceased Upendra. But he admitted that he had no intimacy with Upen, He could not say how many sons and daughters Upen had by his first wife or by his second wife. According to P.W. 2 himself, at about 12-30 P.M. he was called to attest the will and he did (not?) claim any prior knowledge about Upendra's intention to make a will or about the preparation of the draft. Therefore, he appeared to be a chance-witness. In view of the other contradictions mentioned hereinbefore the presence of P.W. 2 at the time of the execution of the will was not believable. Monoranjan Das, who was one of the four attesting witnesses, was not examined as a witness in the case and no explanation was given by the plaintiff for his non-examination. We have also noted that Prabhat Das, who, according to P.W, 1, took a leading part in the making of the will of Upendra had deposed in court as the defendants' witness. We have already observed that P.W. 1, Abdul Karim Ali, did not appear to be a trustworthy witness. Although he claimed to have both attested the left thumb impressions of Upen and also affixed his signature as a witness in the will. His name appears as the last attesting witness. It may be further pointed out that P.W. 1 materially contradicted P.W. 2 when he stated that the left thumb impressions were put at the time of the execution of the will and the District Registrar was present when the will was executed. All the witnesses and P.W. 1 himself signed in the presence of the District Registrar. The court below was not justified in overlooking these contradictions by observing that the contradictions related to facts of which P.W. I spoke from his memory. In our opinion, these contradictions strike at the root of the evidence of P.W. 1.
14. For the foregoing serious infirmities, we conclude that the plaintiff had failed to prove that at the date of the execution of the alleged will, Upendra had testamentary power and that with full knowledge of its contents Upendra had consciously executed the same. Due attestation of the will has not been also proved. The suspicious circumstances surrounding the preparation of the will and its execution and attestation have not been removed by the plaintiff. In these circumstances, the plaintiff was not entitled to obtain probate of the alleged will of Upendra.
15. We, therefore, allow this appeal, set aside the judgment and decree of the trial court and dismiss the suit. In the circumstances of the case, each party would bear their respective costs throughout.
16. No order is passed on the application. The application is disposed of without any order as to costs.
B.K. Sharma, J.
17. I agree.