JUDGMENT Shiv Dayal, J. This first appeal arises out of an unfortunate litigation between two full brothers Their father Sohrabji F. Motiwala, resident of Guna died on November 9, 1949, at the age of 70. According to Rustomji (elder brother, the Plaintiff), Sohrabji died intestate. On that day, he was not at Guna, as he had been living in Bombay for sometime past. Bahramji (younger brother, the Defendant) had been residing with his father at Guna. When the Plaintiff came down from Bombay to Guna on November 13, 1949, he found that his father's safe had been opened by his younger brother, who produced a will dated August 24, 1940 (Exh. D-4) stating that it had been found in the safe. This will was in the handwriting of the deceased but it was not validly attested. However, on February 22, 1950, an agreement was arrived at between the two brothers and it was registered. It was agreed that a share of 7 annas would go to each one of them and the balance of one anna would go to Putla Bai, the adopted daughter of the deceased. It was also stipulated that in case any valid will of Sohrabji were subsequently discovered, the latter would override the said agreement. On February 7, 1951, the Plaintiff got a telegram from Bahramji that a will had been found and he was, therefore, called to Guna. On February 9, 1951, he got a letter dated 6-2-1951 from one Surendra Kumar Loomba intimating that a sealed envelope had been discovered, and on opening the same a will was found which was delivered to Bahramji. This last mentioned will, which is marked Exh. D-2 and which bears the date June 12, 1946, is the whole basis of the dispute between the parties. The Plaintiff challenged the genuinsness of the will and claimed a declaration that he was entitled to half of the estate left by their father and also a decree for partition of his share. The suit was valued at Rs.99,700. The defence was that the will Exh. D-2 (hereinafter called the 'disputed will') was genuine and the Plaintiff was not entitled to a decree as claimed by him. The agreement dated February 22, 1950 (Exh. D-23) was admitted, but it was alleged to have become inoperative. The suit was valued at Rs.99,700. The defence was that the will Exh. D-2 (hereinafter called the 'disputed will') was genuine and the Plaintiff was not entitled to a decree as claimed by him. The agreement dated February 22, 1950 (Exh. D-23) was admitted, but it was alleged to have become inoperative. The learned trial Judge has held that the disputed will is a forged document and has passed a preliminary decree in favour of the Plaintiff as claimed in the plaint. The crucial point in this case is whether the will of 1946 (Exh. D-2) is a genuine will. If the finding is in the affirmative the suit fails. It may be mentioned that after the alleged discovery of the will in February 1951, and its delivery to Bahramji by registered post, it was submitted for registration. In spite of the fact that by letter dated February 9, 1951, the Plaintiff challenged the will, it was presented for registration by the Defendant on February 14, 1951, and was registered on March 1, 1951. The disputed will (Exh. D-2) is on three pages. The margin of the first sheet, bears a signature "S. F. Motiwala". Another signature "S. F. Motiwala" appears at the end of the will, denoting its execution and a third signature "S. F. Motiwala" finds a prominent place in the centre of the envelope (Exh. D-1) containing it. The Defendant asserts that all the three signatures are Sohrabji's. Two more signatures appear on the will. One of them is said to be of Girdharilal Loomba and the other one is of Debi Prasad D. W. 8. Girdharilal died in the life-time of Sohrabji, and the signature purporting to be his is also in dispute. 5, Direct evidence of the execution of the will consists of the solitary statement of Debi Prasad D. W. 8 whose signature appears on the will as that of an attesting witness. His statement is very interesting. He stated that one day in the year 1946 he was sitting at the house of Girdharilal. Seth Sohrabji came there. He sat down and talked to Girdharilal. Then he said to him (Debi Prasad) that he had made a will and asked the witness to attest it. Girdharilal put his signature, and so did the witness. Sohrabji did not sign the will in his presence but had put his signature already. Seth Sohrabji came there. He sat down and talked to Girdharilal. Then he said to him (Debi Prasad) that he had made a will and asked the witness to attest it. Girdharilal put his signature, and so did the witness. Sohrabji did not sign the will in his presence but had put his signature already. Mere samne dastkhat sethji ne nahin kiye the. Pahle se kiye huye the.\The will was then put in the envelope Exh. D-1 and was sealed. Sohrabji put his signature on the envelope in their presence. After this, the envelope was handed over to Girdharilal. At this stage of the examination-in-chief leave was sought of the trial Judge for cross-examining the witness alleging that he had become hostile. After hearing both sides, leave was granted. The witness was shown his statement Exh. D-25 which he had made before the Registrar in the above proceeding. Then the witness said that Sohrabji had signed the will at the house of Girdharilal. Wahan hi Sohrabji ne dastkhat kiye the. Iske bad Girdharilal ne dastkhat kiye the. Phir maine dastkhat kiye. From this it appears that the witness corrected himself to state that in fact first Sohrabji signed then Girdharilal signed and then he signed. In his cross-examination by the Plaintiff, he took another turn and stated that he had stated before the Registrar that Sohrabji had signed the will because he (Sohrabji) had told him so; Seth Sohrabji ne wasiatnama par mere ankhon ke samne dastkhat nahin kare. Wasiatnama ke ant men wa hashiya par dastkhat jo Sohrabji ke hain us wakhat unhon ne kaha tha maine yeh kiya magar meri ankhon ke samne nahin kiya. Exh. D-2 main maine isliye likhaya tha ki Sohrabji ne dastkhat kiye kyonki unhonne mere ko kaha tha ki unhonne uspar dastkhat kiye. He continued to say that when the will was handed over to him Sohrabji's signature already appeared thereon. No further comment is necessary to say that this witness is unworthy of credit. It is difficult to hold on to his testimony that Sohrabji put the disputed signatures on the will and the envelope (Exhs. D-2 and D-1) in his presence and that the executant signed in his presence and sight. The Defendant himself declared him hostile. No further comment is necessary to say that this witness is unworthy of credit. It is difficult to hold on to his testimony that Sohrabji put the disputed signatures on the will and the envelope (Exhs. D-2 and D-1) in his presence and that the executant signed in his presence and sight. The Defendant himself declared him hostile. There is no doubt that his statement before the Registrar and the one before the trial Judge were contradictory and his attempt to reconcile them was invain. No other witness was produced by the Defendant to state that in his presence Sohrabji put his signature. Smt. Putlabai D. W. 3, Rustomji D. W. 2 (husband of D. W. 3), Arde-shir D. W. 4 (a correspondence clerk of the deceased testator). Dr. K. N. Diwan D. W. 7 and Behramji D. W. 6, unanimously stated that they were acquainted with the handwriting of Sohrabji and that the signatures "S. F. Motiwala" appearing on the disputed will and on the cover were those of Sohrabji. On the other hand, Raghunath Rao P. W. 3 (another correspondence clerk of the deceased), Narain Rao P. W. 5 (Daftardar of the Tahsil), Barkatullah Khan P. W. 6, Hiranand P. W. 19 and the Plaintiff himself stated in one voice that those signatures were not Sohrabji's. Every one of these witnesses gave one reason or another for being acquainted with Sohrabji's signature and every one of them gave an opinion favourable to the party who produced him or her. Each party produced one handwriting expert. Behari Lal Saxena D. W. 10 formed the opinion that the disputed signatures were genuine; on the contrary Banmali Dwivedi P. W. 20 recorded his opinion that the three disputed signatures were forged. The learned trial Judge held that the disputed will is a case of traced forgery. He found that the opinion of the expert produced by the Plaintiff was well reasoned. The envelope Exh. D-1, containing the will Exh. D-2, is alleged to have been found by Yashwant Loomba in a box belonging to Girdharilal, in January 1950. The Learned Counsel for the Appellant told us that this was a clerical error; in fact it should have been January 1951. The envelope Exh. D-1, containing the will Exh. D-2, is alleged to have been found by Yashwant Loomba in a box belonging to Girdharilal, in January 1950. The Learned Counsel for the Appellant told us that this was a clerical error; in fact it should have been January 1951. Although there is nothing on the record to show that this was a clerical mistake, nor was there any attempt to rectify it, yet for the purposes of the point that I am dealing with at present this difference is not material. Yashwant was not examined and the above fact has come from the mouth of Surendra Loomba, his brother. Surendra came to know of the discovery of that envelope about 20 or 22 days thereafter. It is at once striking that when a closed envelope was found by Yashwant bearing the signature of Sohrabji no curiosity was aroused in him and he did not inform the Defendant about it. It was a sealed envelope. If he scented some valuable document within it, he naturally should have rushed to the house of Bahramji with the news. Otherwise, Yashwant should have as well opened it then and there out of curiosity. Instead of doing any of these two things, he sat tight over the matter for 20 or 22 days until Surendra on his return from the forest found envelope. Who gave the envelope to Surendra is not clear from his statement. At first he stated that Yashwant had already gone to the forest on some business before he returned. Later he stated that Yashwant had told him about this envelope on the day preceding that on which it was opened and the Panchnama Exh. D-3 was drawn. Panchnama Exh. D-3 Banne ke pahle din sham ko hi mere ko Yashwant Loomba ne lifafa milne ka kaha. Hath men lekar hi kaha tha ki yeh lifafa hai. Kis sthan se Yashwantha utha kar laya tha mere ko pata nahin. Yeh lifafa abtak kahan raha mene usko nahin puchha. Mere bhahi bhi panchnama ke samai the./The whole thing is unnatural on the face of it. The witness does not state that either he or his brother knew about the contents of the envelope. If he thought that it contained something valuable in it, the first thing to be done by him was to inform the Defendant. Mere bhahi bhi panchnama ke samai the./The whole thing is unnatural on the face of it. The witness does not state that either he or his brother knew about the contents of the envelope. If he thought that it contained something valuable in it, the first thing to be done by him was to inform the Defendant. If he did not guess any such thing, the most natural course was to open it at once out of curiosity. It is thus a queer coincidence that Surendra also behaved in the same manner as Yashwant did. Then, Surendra got certain people collected and the envelope was opened in their presence and a Panchnama was drawn. But it is most surprising that a person who took all this care and adopted all this formality did not inform the Defendant. If Surendra had no idea that the envelope contained a will or some such valuable document, it was unnecessary to open it before a gathering of persons. And if he thought that there was some valuable document in it, it was the most natural thing for him to call Bahramji who was living in the same town. In the absence of any explanation of this extraordinary conduct on the part of Yashwant and Surendra the story related by him about the sudden discovery of the envelope becomes extremely suspicious. Furthermore, it is also unnatural that for 2 years from the death of Girdharilal this envelope was not found in the box of the deceased. It is very difficult to suppose that for 2 years that box was not opened either by the widow or by the sons of Girdharilal. According to the statement of Surendra, Girdharilal himself had executed a will in respect of his own estate. That will was found in the safe of Girdharilal after his death. If Sohrabji had entrusted to Girdharilal the custody of his will, the latter, as a faithful friend, would have placed it where he kept his own. It is a remarkable peculiarity of the suspected document with which I am dealing that all the three signatures on Exhs. D-2 and D-1 are exactly similar in shape and size. According to Debi Prasad (D. W. 8), Sohrabji brought the will to Girdharilal's house when it had already been signed at two places, while the third signature, that is, on the envelope (Exh. D-2 and D-1 are exactly similar in shape and size. According to Debi Prasad (D. W. 8), Sohrabji brought the will to Girdharilal's house when it had already been signed at two places, while the third signature, that is, on the envelope (Exh. D-1), was put by Sohrabji in the presence of the witness. Thus the testator signed in two sittings and at two places but it has been demonstrated by Banmali Dwivedi (P. W. 20) by taking transparent photographs of these three disputed signatures that they exactly coincide with and superimpose one another. This is a very suspicious circumstance. In his book, the Law of Disputed and Forged Documents, J. Newton Baker writes in Section 185: The judicial systems of the United States and all other civilized countries of the world admit the truth of the axiom that a person cannot write his signature twice exactly alike. It is also conceded that a qualified expert of handwriting can differentiate between the genuine and spurious signatures. Fortunately for himself, the Plaintiff could get summoned from the Court of the Honorary Magistrate, Guna the record of Criminal Case No. 57 of Samvat 2002 in which appear Sohrabji's signature on the proceedings and on a statement recorded by him as an Honorary Magistrate on February 12, 1946, i. e. the very same date on which the disputed will is alleged to have been executed. There is a world of difference in the appearance and size of those two signatures and of the three disputed ones. Nor do they superimpose each other or any of the impugned ones. Adverting to the will some more features are glaring. It is unknown who the scribe was; his name does not appear at the bottom of the will, as is the usual practice, nor has any witness been produced to show that he wrote it. The signatures of Sohrabji appeared in a different ink from that of the body. The paper is not of a standard size, hut it appears to have been torn out from a foolscap sheet. The will is written in Hindi, while the whole of the earlier will dated August 24, 1940 (Exh. D-4) is in Gujrati, and is admittedly in the handwriting of Sohrabji himself. The will of 1940 (Exh. D-4) was found in the 'safe' of Sohrabji himself. The will is written in Hindi, while the whole of the earlier will dated August 24, 1940 (Exh. D-4) is in Gujrati, and is admittedly in the handwriting of Sohrabji himself. The will of 1940 (Exh. D-4) was found in the 'safe' of Sohrabji himself. It is not easily intelligible that Sohrabji would not keep his subsequent will (Exh. D-2) also at the same place. The Defendant further admitted that Sohrabji had an almirah for his clothes which remained under his (Sohrabji's) lock and key. The Defendant does not state that Sohrabji told him about the will before his death. There could be no point in concealing the disputed will from the Defendant. What other reason could be for not keeping the will with himself is not known. In the disputed will itself it is written that the will was being handed over to Girdharilal so that after the testator's death his heirs might be informed by Girdharilal about it. Here it must be remembered that Girdharilal died about 7 months before Sohrabji. Both lived in the same town. In the natural course of human conduct, Sohrabji should have asked the sons of Girdharilal (Surendra and Yashwanta) or their mother to find out that envelope and return it to him. Surendra does not state that Sohrabji asked him to do that, although it is his statement that Sohrabji visited him twice or thrice after Girdharilal's death. If he was doubtful of the availability of Exh. D-2 Sohrabji could have executed another will. Atleast he could have informed the Defendant, who was most favoured in the will and to whom practically the whole property was bequeathed. All these circumstances which surround the disputed will arouse grave suspicions as to genuineness of the will. Shri Inamdar invites our attention to some more points, for instance "Golwad" was described as "Golwad State" and the suffix "mai" was not used with the names of ladies in this will although in every letter and in the will Exh. D-4 that was invariably used. Sohrabji always so suffixed the names of ladies and girls. Shri Inamdar invites our attention to some more points, for instance "Golwad" was described as "Golwad State" and the suffix "mai" was not used with the names of ladies in this will although in every letter and in the will Exh. D-4 that was invariably used. Sohrabji always so suffixed the names of ladies and girls. Referring to the statement of Devi Prasad D. W. 8 that Sohrabji took the will to the house of Girdharilal in the noon, Learned Counsel argues that it was most unnatural that the old man would rush for attestation in that scorching heat to his friend's house but not go a few steps more and get the document registered, for the Registrar's office was situated just near Girdharilal's house. But I think this judgment will be unnecessarily encumbered by discussing all that. With these suspicious circumstances in view the evidence produced by the parties has to be looked at with great caution. It is undoubted law that cogent and reliable proof of valid execution of the will by the testator cannot be outweighed by mere circumstantial improbabilities. But in the case in hand there is no such positive and reliable testimony. Where a will is propounded in answer to a claim of succession according to the personal law of the deceased, it has to be borne in mind that: (1) The burden is on the propounder to prove due and valid execution of the will. (2) In dealing with the proof of wills a Court will start on the same enquiry as in the case of the proof of other 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 disposition and he put his signature to the document of his own free will. (3) Ordinarily when the evidence adduced in support of the will is un-interested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and the signatures required by law, Courts would be justified in making the finding in favour of the propounder. In other words the onus on him can be taken to be discharged on proof of these essential facts. In other words the onus on him can be taken to be discharged on proof of these essential facts. (4) If there are any suspicious circumstances surrounding(sic) the will, the initial onus becomes very heavy. (5) The propounder of the will has to remove the suspicions from the mind of the Court by cogent and satisfactory evidence. (6) The result of the application of these general and broad principles always depends upon the facts and circumstances of each case and the nature and quality of the evidence adduced by the parties. No hard and fast and inflexible rules can be laid down for the appreciation of the evidence. It is, in the end, a question of fact. These propositions are laid down in the pronouncement of their Lordships of the Supreme Court in H. Venketachala Iyengar v. B. N. Thimmajamma AIR 1959 SC 443 and in Harmes v. Hinkson AIR 1946 PC 156. Applying these principles it is to be seen whether the Defendant has in this case removed the suspicions which surround the disputed will. I have already commented on the evidence of Devi Prasad D. W. 8 and have found it to be worthless. The Defendant produced 4 witnesses besides himself to identify the three disputed signatures of Sohrabji. Everyone of them gave an opinion favourable to the Defendant and the same was based on the impressions which his or her memory had preserved. It is not always possible to test the veracity of such an opinion by mere cross-examination. None of them produced any letter or other writing of Sohrabji. It is very difficult for a layman to say with any amount of certainty that a particular signature is or is not genuine; he is very likely to be misled by its appearance. And this is all the more so in the case of a traced forgery. The Plaintiff has also produced four witnesses, besides himself, and everyone of them stated that the disputed signatures were not Sohrabji's. Apart from the fact that the evidence of each side equally balances that of the other, I would attach importance to the opinion of Hiranand P. W. 19. He had himself been an Honorary Magistrate at Guna and sat for about 5 or 6 years with Sohrabji on the same Bench. He had himself been an Honorary Magistrate at Guna and sat for about 5 or 6 years with Sohrabji on the same Bench. It is a happy coincidence that he and Sohrabji formed a Bench on June 12, 1946 also (see order-sheet of that date in Criminal Case No. 57 of Samvat 2002). The testimony of this witness that he had constantly seen Sohrabji recording statements as also putting his signatures is reliable and nothing has been shown to us for which I can discredit him. The Defendant produced Dr. Narain Rao Sawant D. W. 5, who stated that in the year 1948 he performed an operation on Sohrabji's testicles and before the operation the witness had asked him to give away to the hospital if he had anything. To this Sohrabji replied that he had nothing with him and whatever he had, he had already given and that the same was known to Girdharilal. The statement of the witness is rather vague. It makes no mention of any will nor is it clear in what manner Sohrabji "had given away" his properties. Even assuming that Sohrabji said so to the witness and he meant to have made a will, it was not inconsistent with his having made a will in the year 1940 (Exh. D-4). Dr. Sawant's evidence does not take me anywhere. The learned District Judge has relied on the opinion of Banmali Dwivedi (P. W. 20), handwriting expert. I have anxiously gone through his report which is elaborate and is supported by numerous photographs and enlargements. It has impressed me as scientific in its treatment and as rendering such assistance to the Court as could be expected from it. The reasons for which the expert reached his conclusions are cogent. The labour put in by the witness in this case is, I must say, commendable. Although the opinion of a handwriting expert cannot be the last word, yet, in a case such as this, it can be of immense benefit. Ban-mali Dwivedi has also produced the photographs taken with the aid of infrared radiation from which 'guide lines', a characteristic feature of traced forgery, are visible. Wilson R. Harrison, in his book on 'Suspect Documents' writes at page 382: If a guide line is allowed to remain associated with the forgery, the discovery of its presence will be sufficient to expose it as fraudulent. Wilson R. Harrison, in his book on 'Suspect Documents' writes at page 382: If a guide line is allowed to remain associated with the forgery, the discovery of its presence will be sufficient to expose it as fraudulent. If attempts are made to erase a guide line, it will be found very difficult to effect a through erasure and, in any event, the surface of the paper in the neighbourhood of the forgery will be disturbed and so be likely to arouse suspicion. He has also produced transparent photographs of the three disputed signatures and from them it is clear that all the three superimpose one another. Baker has stated in Section 83 of his book that transparencies are of valuable assistance in detecting traced forgeries. Superimposition is a proof of traced forgeries. Opinion has been expressed by Harry Soderman and John O'Conell in their treatise on Modern Criminal Investigation that no two signatures can be absolutely alike in all proportions (Fourth Edn. at page 456) and the detection by the test of superimposition has been approved of. Harrison also states that no two genuine signatures of any length are the replicas of each other (page 389) and that traced forgeries can be proved by transparencies (page 397). It is not necessary for the purpose of this case to go to the extent of holding that whenever two signatures superimpose each other, that is bound to be a case of forgery; suffice to say that it is undoubtedly a very suspicious circumstance. Shri Gupta lays a great deal of stress on the attestation by Girdharilal, a predeceased friend of Sohrabji. It is undisputed that Girdharilal died on April 1, 1949, that is, about 7 months prior to Sohrabji's death. The argument is that if the will was constructed after the death of Sohrabji it was impossible to be attested by Girdharilal. There is no doubt that if Girdharilal's signature is found genuine it will go a very long way to remove the suspicions. But the genuineness of the signature "Girdharilal" is itself in dispute. Surendra Loomba D. W. 9, Girdharilal's son, deposed that the signature was genuine. To the same effect was the evidence of Pyarelal D. W. 1, who claimed to be a neighbour of Girdharilal and acquainted with his signature. But the genuineness of the signature "Girdharilal" is itself in dispute. Surendra Loomba D. W. 9, Girdharilal's son, deposed that the signature was genuine. To the same effect was the evidence of Pyarelal D. W. 1, who claimed to be a neighbour of Girdharilal and acquainted with his signature. I have already commented on other parts of Surendra Loomba's evidence and have found that he is not worth any credence. The whole part played by him in the case appears to be extremely suspicious and it gives me an impression that, perhaps, but for him this litigation would not have commenced. As to the statement of Pyarelal, he also appears to have had a hand in the farcical display of the opening, before Panch witnesses, of the envelope alleged to contain the will. That aside, this witness has merely made a casual statement that Girdharilal used to write letters to him. He has not produced a single letter to him. He has not produced a single letter written by Girdharilal to him. He has also not disclosed what business relations he had with Girdharilal. He was pointedly asked if there was any partnership between them, whether they were on terms of money lending or sale and purchase or whether they were related to each other. All these questions he answered in the negative. No reliance could be placed on the opinion of such a witness who relied on an impression borne by his memory. The Plaintiff, on the other hand, produced Hiranand P. W. 19, father-in-law of Girdharilal, who stated that he was acquainted with the handwriting of his son-in-law as he used to receive letters from him, and that the alleged signature "Girdharilal" on the will (Exh. D-2) was not genuine. He has been believed by the District Judge. I have carefully perused the whole statement of this witness and I do not see any reason to hold that the conclusion arrived at by the learned trial Judge is in any way erroneous in respect of the credibility of this witness. To say the least, his testimony creates a lot of suspicion as to the genuineness of so called Girdharilal's signature on the disputed will. In spite of the fact that the Defendant produced Biharilal handwriting expert as his last witness, his opinion was not asked about Girdharilal's signature. The Plaintiff however, got it examined by Banmali Dwivedi expert. To say the least, his testimony creates a lot of suspicion as to the genuineness of so called Girdharilal's signature on the disputed will. In spite of the fact that the Defendant produced Biharilal handwriting expert as his last witness, his opinion was not asked about Girdharilal's signature. The Plaintiff however, got it examined by Banmali Dwivedi expert. In his opinion Girdharilal's signature was also a forgery. This opinion has been relied on by the trial Judge. Shri Gupta strenuously endeavours to tell us that relations between Sohrabji and Rustomji had been so strained that Sohrabji's will disfavouring the elder son is understandable. The argument is founded on certain letters exchanged between Sohrabji and Rustomji as also between Sohrabji and Ho Mai, wife of Rustomji. The Learned Counsel takes us as far back as the event of Rus-tomji's marriage. Rustomji liked this girl to whom he was eventually married, but Sohrabji did not approve of the marriage as she belonged to the priest family. The impact of this circumstance is completely destroyed when it is admitted that the younger son too was married in a priest family. We have heard all the letters which Shri Gupta read out to us. I do not find anything in them from which it can be reasonably inferred that Sohrabji would not give any substantial part of his property to Rustomji. All that I can gather is that Mrs. Rustomji appears to be an outspoken lady. In her letters she came out bluntly to tell her father-in-law that at times his treatment had not been cordial or dignified. But that is all about that. They do not prove that the natural affection between the father and the son had been so much damaged that Sohrabji would substantially deprive Rustomji of his estate. What is more, those letters are generally of 1941-42. The latest relied on by Shri Gupta are Exh. D-6-A (dated 2-10-1945) and Exh. D-11 (dated 1-11-1945). I have carefully perused them and they lead me to that inference. As against them, Shri Inamdar has read out to us the letters Exh. D-14 dated 29-10-1948, Exh. D-22 dated 11-10-1948 and Exh. D-28 dated 19-10-1948, all written by Sohrabji to Rustomji. The Learned Counsel has also invited our attention to Ho Mai's letter to Sohrabji which is Exh. D-5 dated 11-10-1948. As against them, Shri Inamdar has read out to us the letters Exh. D-14 dated 29-10-1948, Exh. D-22 dated 11-10-1948 and Exh. D-28 dated 19-10-1948, all written by Sohrabji to Rustomji. The Learned Counsel has also invited our attention to Ho Mai's letter to Sohrabji which is Exh. D-5 dated 11-10-1948. It transpires that on the occasion of the Navjot ceremony of Rus-tomji's daughter, these letters were exchanged and Sohrabji sent a cheque of Rs.800 as a token of his blessings. For all these reasons I am satisfied that there is no error in the judgment of the learned District Judge and that the Defendant has failed to remove those strong suspicions which arise from the attending circumstances. I, therefore, affirm the finding of the trial Judge that the disputed will of 1946 (Exh. D-2) is not a genuine will and cannot be enforced. Shri Gupta towards the close of his address contended, in the alternative, that if for any reason we did not uphold the will of 1946, atleast the admitted will dated August 24, 1940 (Exh. D-4) should be given effect to. This the Learned Counsel urges obviously because in that will a share of nine annas was given to the Defendant, six annas to the Plaintiff and the remaining one anna was earmarked for charity. The argument of the Learned Counsel is that there was no legal infirmity in that will of 1940 and it was a mistake on the part of both the sons to have thought that it was not enforceable at law. I think that it is unnecessary to consider that question with any seriousness because the Defendant did not plead that case in the written statement. Several questions of law and of fact were likely to arise if that plea had been taken. The will Exh. D-4 was admittedly signed by Sohrabji but was attested by one witness only. It was made at Guna, then in Gwalior State. The disposition included some properties in Gwalior State and some in British India. Therefore according to the Indian Succession Act, 1925 it was not valid. In the erstwhile Gwalior State there was no enacted law of testamentary succession. Where Sohrabji had his 'domicile' is not on the record. That was necessary for applying the provisions of the Indian Succession Act. The disposition included some properties in Gwalior State and some in British India. Therefore according to the Indian Succession Act, 1925 it was not valid. In the erstwhile Gwalior State there was no enacted law of testamentary succession. Where Sohrabji had his 'domicile' is not on the record. That was necessary for applying the provisions of the Indian Succession Act. It is stated in the treatise of Theobaid on the Law of Wills that in ascertaining the validity of testamentary papers the Court will apply the law of one country only at a time. Now, a will of immovables is governed, as a general rule, by lex situs. "The law of the silus(sic) means, for an English Court dealing with land in England, domestic English law, and means for an English Court dealing with land abroad whatever system of domestic law the lex situs would apply" (Theobald, Eleventh Edn., at page 14). In Rantanshaw v. Bamanji AIR 1938 Bom. 238, it was held: Even though status would ordinarily be determined according to the law of domicile and such status would be recognized by British Courts, yet for the purpose of succession to the immovable property in British India, the law applicable will be that of British India. Hence in determining the succession to immovable property in British India of a deceased Parsi who had been a resident of Baroda State, the law applicable will be that prevailing in British India according to which a divorce among Parais(sic) by mutual fargats or releases is not a valid divorce and will not be recognized by British Indian Courts though it may be valid in Baroda State. It is stated in 34 Halsbury (Hailsham) 69: The law of the country in which the deceased was domiciled at the time of his death regulates the decision as to what constitutes his last will, and as to whether and how far it is valid, without regard to the place of his birth or of his death, or to the situation of his movable property. Then again, referring to Stokes v. Stokes (1898) 78 LT 50, Theobald writes: Where there is no testamentary law in force in the place where the will is made, a will signed but not attested would probably be good. Then again, referring to Stokes v. Stokes (1898) 78 LT 50, Theobald writes: Where there is no testamentary law in force in the place where the will is made, a will signed but not attested would probably be good. It appears that in this complicated situation of uncertainty, both brothers, for avoidance of doubt and future disputes, must have thought it better to enter into that agreement. No other point is urged. It is not canvassed before us that the Plaintiff was at the most entitled to 7 annas according to the agreement Exh. D-23, instead of 3 annas for which a decree has been passed by the trial Judge. For all these reasons this appeal is dismissed with costs. A.H. Khan, J. I agree. Appeal dismissed