Judgement JUDGMENT :- This is an appeal preferred against the decree and judgment of the learned District Judge of South Kanara in O.S. No. 3 of 1953. 2. The facts are : One Juje Banja a cultivator was a resident of Modu Thonse village. He was the owner of the properties constituting the subject matter of this suit. The wife of Juje Banja is the 1st defendant, Josephine Noronha, and he had by her a son by name Denis Banja and a daughter by name Appoline Catherine Banja. This Juje Banja died on 9-4-1923 in Mudu Thonese, when he was aged 52. Subsequent to his death, the mother and son and daughter lived together. This daughter was married in 1927 to one Raymond DSouza, a resictent of Bankur. She is the 2nd defendant in this suit. The son Denis who became a school master was married to the first plaintiff Celestine subsequent to 1927 - the wifes evidence on 1954 was "I was married 27 years back" - and had by her the children, plaintiffs 2 to 5. He died apparently in 1951-52. The wifes evidence in 1954 however was "He died about 21 years back". Subsequent to the death of Denis the mother-in-law and the daughter-in-law have fallen out. The mother-in-law had gone and resided with her daughter, the 2nd defendant. The 2nd defendant filed a suit O. S. 61 of 1953 for partition. She claimed a 2/3rd share in the properties on the ground that her father Juje Banja died intestate and that she had acquired from her mother a third share devolving on her. In the course of contesting the suit, the present first plaintiff is stated to have come to know of a will left by her father-in-law dated 3-2-1923 and has propounded that will in O.P. 19 of 1953 which, on caveat being entered by the widow and daughter of the testator, was converted into a suit O.S. 3 of 1953. The case for the defendants in this suit is that the will is a rank forgery and brought into existence by the widow of Denis Banja after the filing of her written statement in O.S. 61 of 1953. The learned District Judge came to the conclusion that the will dated 3-2-1923 propounded by the plaintiffs is a fabrication and dismissed the suit. Hence this appeal. 3. The learned District Judge came to the conclusion that the will dated 3-2-1923 propounded by the plaintiffs is a fabrication and dismissed the suit. Hence this appeal. 3. The short point for determination therefore is whether the will dated 3-2-1923 is a fabrication as concluded by the learned District Judge. 4. On a review of the entire circumstances of the case I have come to the conclusion, differing from the learned District Judge, that the will is true and valid and here are my reasons. 5. The execution and attestation of the will have been proved in the only way in which it was possible to do so in this case. The will has been attested by two persons by name Mudu Thonse Gabriel Luises son Lorence J.P. Luice and Mudu Thonse Kudru Salvadore Luices son Lores Luice, who is also the scribe of the document. Both these attestors have died. P.W. 4 is the son of the scribe and attestor Loren Luice. His evidence is that his father died in January 1927 and that he was also known as Kudru Lawrence Lewis. Ex. A-15 is the entry in the funeral register of the Kalyanpur Church showing the death of Lawrence Lewis. Ex. A-16 is another entry in the funeral register of that Church showing the death of the other attestor Lawrence J.P. Lewis on 23-8-1926. These registers came from the proper custody of P.W. 2. P.W. 4 has proved the handwriting of his father in the body of the will as also his signature. P.W. 5 who is also of the village of Mudu Thonse and who is a relative of the other attestor Lawrence J.P. Lewis has proved the signature of his relative Lawrence J.P. Lewis. From the evidence of P.W. 4, it is seen that his father was a professional document writer and he produced Ex. A-25, and Ex. A-10, containing the signatures of his father Exs. A-18 to A-21, for the purpose of comparison of signatures, and the body writing of the will. The learned District Judge came to the conclusion : "A comparison of the proved signatures in the registered document Ex. A-10, and marked as Exs. A-18 to A-21 with the signatures purporting to be that of the scribe in Ex. A-18 to A-21, for the purpose of comparison of signatures, and the body writing of the will. The learned District Judge came to the conclusion : "A comparison of the proved signatures in the registered document Ex. A-10, and marked as Exs. A-18 to A-21 with the signatures purporting to be that of the scribe in Ex. A-1 shows that they tally in all important characteristics, the length and the spacing of the letters, the formation and the spelling of the letters. I therefore believe P.W. 4 when he says that his father wrote Ex. A-1 and signed in Ex. A-1". (See paragraph 6 of the judgment of the learned District Judge)." In regard to the evidence relating to the signature of the other attestor Lawrence J.P. Lewis, the evidence was given by P.W. 5 as also by P.W. 4 and the learned District Judge writes : "P.W. 4 also deposed that Lawrence J.P. Lewis is his fathers relation (his fathers elder sisters husbands first wifes son), that he is acquainted with the signature of Lawrence J.P. Lewis, the first attestor in Ex. A-1, and he said that the other attestation is that of Lawrence. J.P. Lewis, though he at first said that it appears to be that of Lawrence J.P. Lewis. Exs. A-22, A-23 and A-24 are signatures of Lawrence J.P. Lewis in a registered document, Ex. A-11. A comparison of the same with the signature of the first attestor in Ex. A-1, purporting to be that of Lawrence J.P. Lewis shows that they all tally in important characteristics the length of the signature, the spacing and formation of the letters and spelling. P.W. 5 also was examined to prove the signature of Lawrence J.P. Lewis. He deposed that Lawrence J.P. Lewis was his distant relation. He has signed in Ex. A-11 as an identifying witness. It is a sale deed by Lawrence J.P. Lewis and others. Therefore, I believe him when he says that Ex. A-1 contains the signature of Lawrence J.P. Lewis as attestor". Then, turning to the will it is found that it bears the signature purporting to be that of Juje Banja and the left thumb impression purporting to be that of Juja Banja. Therefore, I believe him when he says that Ex. A-1 contains the signature of Lawrence J.P. Lewis as attestor". Then, turning to the will it is found that it bears the signature purporting to be that of Juje Banja and the left thumb impression purporting to be that of Juja Banja. In regard to the thumb impression a Finger Print Expert by name Sri Samabashivam was examined as P.W. 1 and he proved that the thumb impression on the will was that of Juja Banja from a comparison of the other admitted thumb impressions of Juje Banja in Rs. A-2, A-3 and A-4, affixed before the Sub Registrar at the time of registration of those documents. The learned District Judge says that he has also made an examination of the admitted and disputed thumb impressions and writes : "He (P.W. 1) gave his opinion Ex. A-9 that the thumb mark in Ex. A-1 is identical with those in other three documents. He was examined as P.W. 1 on commission and he stated that the thumb impressions in Ex. A-1 and the other three documents marked respectively as A, B, C and D are of one and the same person and identical with one another and that they are impressions of the same finger. The photographic enlargement of the thumb mark in Ex. A-1 is Ex. A-5 and the enlargements of the other admitted thumb marks are Exs. A-6, A-7 and A-8. A scrutiny of the same and a comparison of the enlargement Ex. A-5 with the enlargements, of the other thumb marks, Exs. A-6 to A-8, show that they tally". In regard to the signature of Juje Banja in the will, though the defendants disputed it, it was sent to no handwriting expert for opinion and they did not examine and handwriting expert as a witness. I shall deal with the opinion of the District Judge that the signature is a crude forgery a little later. 7. That the testator was in a sound disposing state of mind at the time of his death is spoken to by this very daughter. She says : "My father was in a sound state of mind till the time of his death. He had no ailment before. Three days before he died he had fever. * * He was bedridden only for three days before he died". She says : "My father was in a sound state of mind till the time of his death. He had no ailment before. Three days before he died he had fever. * * He was bedridden only for three days before he died". This will was executed on 3-2-1923 and the testator died on 9-4-1923. The will itself states that the testator was in a sound and conscious state of mind and does not attribute the execution of the will as due to any fear of impending death. 8. That the will in question also comes from proper custody cannot be disputed. The evidence of the 1st plaintiff as P.W. 3 is to the effect that her husband was a teacher, that they lived in a small habitation almost in an island cut off from access all round and that her husband used to Keep pell-mell his books etc., in a small box and a big box, that when her lawyer in Udipi engaged by her in the partition suit O.S. 61 of 1953 asked her to search for the records as she had told her vakil that her father-in-law had left a will, that she asked the lawyer to send a person to help her as she was illiterate, that the lawyer therefore sent one Heb-bar, who is now dead, that they searched and found this will inside the small box inside a book and that this was 8 or 10 days after she filed the written statement in the partition suit and that thereupon this will was published. There is nothing improbable in this testimony because the parties are illiterate and are of poor circumstances and in fact the properties covered by the will do not even come up to Rs. 2,000/- and they cannot be expected to keep their muniments of title in the fashion in which people better situated in life would do. There is nothing improbable in this testimony because the parties are illiterate and are of poor circumstances and in fact the properties covered by the will do not even come up to Rs. 2,000/- and they cannot be expected to keep their muniments of title in the fashion in which people better situated in life would do. The learned District Judge got over this evidence on two grounds viz., that this woman did not examine all the village gossip about her father-in-law having left behind a will and which set her in motion to search for it and that she did not examine the lawyer, whom if he had thought would have thrown light on the matter could have been examined as a court witness and who as a matter of fact was not the person who went and searched but his deceased clerk; and secondly, that there was a flood in 1927, of the Kemman river which overflowed this island of Mudu Thonse and that people had to run away helter-skelter and that therefore this will could not have survived that flood like the Noahs Ark. In coming to this conclusion the learned Dist. Judge had not paid heed to the fact that people notoriously exaggerate and that when, they say that the flood washed the place the use of such expressions as "everybody had to run away in the clothes in which they stood" are common and that this does not mean that nothing survived in that island. This P.W. 3 could not give any evidence as to what happened when the people went back to the island after the subsidence of the flood, became she was only married into the family subsequently. 9. The will itself is a natural one and gives the wife of the testator a life estate and then after her the remainder to the son and makes provision for the marriage of the daughter who was then aged 13, to be celebrated according to the testators status. 10. Therefore, taking into consideration the evidence of the body-writing, the attestors signatures and thumb impression and the reasonableness and naturalness of the terms of the will Ex. 10. Therefore, taking into consideration the evidence of the body-writing, the attestors signatures and thumb impression and the reasonableness and naturalness of the terms of the will Ex. A-1 the sound disposing state of mind of the testator on the date on which the will is said to have been executed following the ruling in Mahendra Nath Surul v. Netai Charan Ghosh, 1944 Cal 241 (AIR V 31) (A), it is permissible for us to draw the presumption mentioned in S. 90 of the I.E.A. which is applicable to wills produced in Courts of Probate that this ancient document coming from proper custody and more than thirty years old was executed duly and attested duly : Gobinda Chandrapal v. Pulin Behari, 1927 Cal 102 (AIR V 14) (B), (See Monir Principles and Digest of the Law of evidence 3rd Edition P. 625), Munnalal v. Mst. Kashibai, 1947 PC 15 (AIR V 34) (C); 1944 Cal 241 (AIR V 31) (A); 1935 PC 132 (AIR V 22) (D). 11. These indubitable facts establishing the genuineness of the will cannot be got over by the following five circumstances put forward viz., (i) a vague suggestion and which was not followed up that certain blank papers containing the thumb impression of the deceased testator were taken by the father of P.W. 4 and which is mentioned in the evidence of the 1st defendant examined as D.W. 1; (ii) the opinion of the learned District Judge that his comparison of the admitted and disputed signatures of the testator showed that the signature of the testator in the will is a crude forgery; (iii) non-registration of the will; (iv) certain transactions connected with the properties; and (v) late publication of the will. 12. Point 1 : It is enough to extract the following sentences from the evidence of D.W. 1 : "My father had some litigation when he was living. He was assisted by Lores Lewis in these proceedings. In connection with those litigations I have seen Lores Lewis taking thumb impression of my father. * * He and my father were frequenting each others house. I do not know if Lawrence Lewis had any idea of defrauding my father. I have seen Lawrence Lewis 10 to 20 times taking my fathers thumb impression on blank papers. I have not seen that closely as I was standing at a distance. Ex. * * He and my father were frequenting each others house. I do not know if Lawrence Lewis had any idea of defrauding my father. I have seen Lawrence Lewis 10 to 20 times taking my fathers thumb impression on blank papers. I have not seen that closely as I was standing at a distance. Ex. A-1 is not one of the blank papers on which Lawrence Lewis took the thumb impression of my father. I do not know for what purpose thumb-impressions of my father were obtained on blank papers. * * I cannot say at what intervals Lawrence Lewis obtained thumb-marks of my father. I cannot say how long prior to his death his thumb-mark was obtained for the last time. Lawrence Lewis died about 3½ years after my fathers death." This will, which must have been fabricated according to the defendants after the filing of the written statement in O.S. 61 of 1953, could not have been obviously fabricated as suggested by D.W. 1 on blank papers containing the thumb impression of her father who died in 1923 and bearing the attestation of the attestors who died in 1926 and 1927. It is not suggested that any one had a motive to fabricate a will of Juje Banja exposing himself to servere penalty and for no obvious reason. The story of fabrication therefore on blank papers containing the thumb impression of the deceased Juja Banja must be discarded as a puerile invention. 13. Point 2 : In regard to the opinion of the District Judge based upon his comparing the admitted signatures of the deceased Juje Banja with the disputed signature in the will, it has to be borne in mind that a comparison of handwriting as a mode of proof is at all times hazardous and inconclusive, and specially when it is made by one not conversant with the subject and without such guidance as might be derived from the arguments of counsel and the evidence of experts : Barindra Kumar Ghose v. Emperor, 37 Cal 467 (B); Jitendra Nath v. Emperor, 1937 Cal 99 (AIR V 24) (SB) (F); Emperor v. Ramrao Mangesh, 1932 Bom 406 (AIR V 19) (G); Latafat Husain v. Onkar Mal, 1935 Oudn 41 (AIR V 22) (H); Ram Sabhag v. Emperor, 1937 Pat 146 (AIR V 24) (I). Comparison of Handwriting by court without the guidance of an expert and even with it, is at all times hazardous and recognisably inconclusive : Rudragouda v. Basangouda, 1938 Bom 257 (AIR V 25) (J). The practice of a Judge declaring whether a disputed signature agrees with the other signatures of a certain person without the assistance of any evidence but merely on his own inspection, has been disapproved by experienced judges : Darshan Singh v. Parbhu Singh, 1946 All 67 (AIR V 33) (K) and Azmat Ullah Khan v. Shiam Lal, 1947 All 411 (AIR V 34) (L). It is a dangerous method to find in favour of a will or against it by a mere comparison of the signatures of the testator with the other signatures of his, and especially so, as in this case, when the dissimilarity relied upon is not that of a general character but merely of particular letters : Glastaun v. Sonatan Pal, 1925 Cal 485 (AIR V 12) (M). In fact the variation is due to the fact that this signature of the deceased is found to be shaky but not uncharacteristic and this is a point in favour of the will being genuine : Dinbai v. Nusserwanji Rustomji, 1922 PC 311 (AIR V 9) (N). I need not point out that the superficial dissimilarities in particular letters would be due to the pens used, the space available, the position in which the signature was made, etc. The proper way to decide is to base the finding on the evidence of attestors and the scribe if they are available and if not on other cogent direct and circumstantial evidence which throws light upon the execution of the will. Therefore, when the opinion of the learned District Judge is based upon the difference in particular letters and nothing more and he himself is not a Canarese knowing gentleman and little acquainted with Canarese signatures, the opinion is of little value. In this connection it will also be remembered, that the defendants were not prepared to submit these signatures for the opinion of caligraphic Expert though the plaintiffs submitted the thumb impression to a Finger Print Expert at Vellore, for expert opinion. 14. In this connection it will also be remembered, that the defendants were not prepared to submit these signatures for the opinion of caligraphic Expert though the plaintiffs submitted the thumb impression to a Finger Print Expert at Vellore, for expert opinion. 14. Point 3 : The mere fact that a will is not registered - a will or codicil need not be stamped or registered : - S. 18(e), Registration Act, 1908, and see also K. Subamma v. K. Papayya, 1925 Mad 748 (AIR V 12) (O) - is not such a circumstance as must ipso facto tell against the genuineness of the will. Non-registration may be due to a dislike for a publicity of the arrangements that one makes or to avoid expenses and trouble; Basant Singh v. Brij Raj, 1935 PC 132 (AIR V 22) (O); Kristo Gopal v. Baidya Nath, 1939 Cal 87 (AIR V 26) (P); Nigendra Chandra v. Mohendra Hari, 1931 Cal 96 (AIR V 18) (Q). In this case the testator could not have expected anybody to dispute his will when he had made a proper disposition, providing for his wife, son and daughter. This non-registration also can assume importance only when it exists with one or more suspicious circumstances, which is not the case here : Harimati Debi v. Anath Nath Boy, 1939 Cal 535 (539) (AIR V 26) (R); Brajabala Dhar v. Niyamayee Biswas, 1934 Cal 17 (20) (AIR V 21) (S); Abdul Bari v. Nasir Ahmad, 1933 Oudh 142 (144) (AIR V 20) (T); Ramgopal v. Alpna Kunwar, 1922 PC 363 (368) (AIR V 9) (U); Rajagopala Iyer v. Mangalathammal, (1911) 2 Mad WN 42 (V); Jalesar v. Juthan, 1925 Pat 363 (AIR V 12) (W). Therefore, the fact that this will was not registered does not in any way make it any the less genuine. 15. Point 4 : There are three transactions connected with this property viz., Ex. B-1 dated 30-1-1928, a mortgage for Rs. 500/- executed by the widow and son in favour of a Mohammadan, Ex. B-2 dated 7-8-1933 executed by the widow, son and daughter in favour of another Mohammadan and Ex. B-3 dated 30-1-1946 executed by the widow, son and daughter in favour of a stranger Christian. The point made is that these mortgages do not mention the will and would appear to proceed on the footing that Juje Eanja died intestate. B-2 dated 7-8-1933 executed by the widow, son and daughter in favour of another Mohammadan and Ex. B-3 dated 30-1-1946 executed by the widow, son and daughter in favour of a stranger Christian. The point made is that these mortgages do not mention the will and would appear to proceed on the footing that Juje Eanja died intestate. But as has been pointed out by the learned advocate for the appellants, Mr. Narayana Pai, this was obviously due to two reasons viz., that the parties did not want to publicise the will which gave a life estate to the widow and then the remainder to the son and a marriage provision for the daughter as this would not enable them to raise the credits they wanted for urgent family needs and the parties being Christians the mortgagees would have insisted upon the will being probated which would mean delay expense, trouble etc., and when that was so the mortgagees would have insisted on all the members of this Christian family joining in the execution of the documents. This explanation is thoroughly acceptable and therefore the execution of these documents without mentioning the will would not in any way make out that it is a fabrication; but only conduct consistent with members of a family doing a thing seeking fulfilment of an immediate purpose : Venkatapathi Raju v. Venkatanarasimha Raju, 1936 PC 264 (AIR V 23) (X); Appavu v. Manickam Pillai 1946 Mad 118 (AIR V 33) (Y). 16. Point 5 : It is quite true that the will has come to be propounded only in 1953. I have already mentioned how the entire family did not want to propound the will in the three transactions between 1928 and 1946. Then this Denis Banja has died in 1951-52. On the death of the son, the mother has gone over to her daughter and she has gifted her one-third share to the daughter and the daughter has filed a suit for partition. Therefore, this daughter-in-law had no opportunity either to know the existence of the will or put it forward except when the partition suit was filed and from village gossip she had learnt that her father-in-law had left a will. The late publication of the will is not therefore a sinister circumstance leading to the inference that the will should have been got up. 17. The late publication of the will is not therefore a sinister circumstance leading to the inference that the will should have been got up. 17. To conclude, a will is one of the most solemn documents known to the law. By it a dead man entrusts to the living the carrying out of his wishes, and as it is impossible that he can be called, either to deny his signature or to explain the circumstances in which it was executed, it is essential that trustworthy and effective evidence should be given to establish compliance with the necessary forms of law : 1922 PC 366 (369) (AIR V 9) (U); Mt. Jaswant Kaur v. Tiparchand, 1933 Lah 443 (AIR V 23) (Z); Gnanaprakasam Pillai v. Parasakthy Ammal, 1941 Mad 179 (AIR V 28) (Z1). The burden of proving due execution is upon the person propounding the will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator : Jotindra Nath v. Raj Lakshmi Debi, 1933 Cal 449 (AIR V 20) (Z2); Rangavva Hanmappa v. Seshappa, 1927 Bom 228 (AIR V 14) (Z3); Surendra Krishna v. Rani Dassi, 1921 Cal 677 (AIR V 8) (Z 4) ; Garib Shaw v. Patia Dassi, 1938 Cal 290 (AIR V 25) (Z 5); Bindeshri Prasad v. Baisaka Bibi, 1920 PC 70 (AIR V 7) (Z 6). But it is always improper to presume a will to be a forgery primarily from a consideration of its contents. It is not permissible for the Court to do what Courts are often invited to do on behalf of objectors, namely, to make up our minds about the iniquitous character of the contents of the will and then to look at the positive or direct evidence in favour of the execution of the will from that standpoint. Such a course has been condemned by Their Lordships of the Privy Council 1933 Cal 449 (AIR V 20) (Z 2). It is also improper for a Court to start making all kinds of speculation as to the circumstances and suspicions which make it impossible that the will could have been executed. It is bound to consider the evidence regarding the execution and attestation and if satisfied with that evidence it must pronounce in favour of that will : 1939 Cal 87 (AIR V 26) (P). It is bound to consider the evidence regarding the execution and attestation and if satisfied with that evidence it must pronounce in favour of that will : 1939 Cal 87 (AIR V 26) (P). Finally there is no presumption either in fact or in law as seems to be commonly supposed that a will if propounded must be a forgery : Harmess v Harikson, 1946 PC 156 (AIR V 33) (Z 7); Sadachi Ammal v. Rajathi Ammal, 1940 Mad 315 (AIR V 27) (Z 8) and 1939 Cal 87 (AIR V 26) (P). 18. Judged by these tests, the will in question is true and valid and is certainly not a fabrication as concluded by the learned District Judge. 19. In the result, I set aside the decree and Judgment of the learned District Judge and find under issue 1 that the will dated 3-2-1923 propounded by the plaintiffs is true and valid, and under issue 2 that the plaintiffs are entitled to the reliefs asked for in the plaint. This appeal is allowed with costs throughout. Appeal allowed.