Patai Dhorain v. Digam Dhora — 1959 DIGILAW 52 (PAT)

Judgment Raj Kishore Prasad, J. 1. This appeal was filed by the original appellant who was the sole executor named in the will from the judgment of Mr. S. Wasiuddin, Subordinate Judge of Jamshedpur refusing his application for probate. 2. During the pendency of the appeal in this Court, the applicant, Niran Dhora, who applied for grant of probate, died, and in his place, his widow and sons were substituted and they are now the present appellants in this appeal. 3. There was one Paban Dhora, who had two wives, Ganga and Srimati. By the first wife, Ganga, Paban had three sons; one of them was Thakur, father of the deceased applicant Niran. By the second wife, Srimati Paban had four sons, namely Gopi, father of O. P. W. 1; Hari Dukhu, the testator, and Sattar. All these four sons are now dead, and, the heirs of Gopi and Hari are the present objector-respondents. 4. Dukhu, the deceased testator, on the 21st December, 1952, is alleged to have executed an unregistered will at his village Madnabera, within the police station, Golmuri, near Jamshedpur in favour of Niran Dhora, the deceased applicant-plaintiff. On 25-12-1952, Dukhu, the testator, died. The present application for probate was, thereafter, filed on 5-9-1953. The respondents entered caveat and filed their written objections on 17-2-1954, in which their defence, inter alia, was that the will propounded by the plaintiff was a forged, one, and, that it was not executed by the testator in a sound disposing state of mind, because at the last stage of his life, he was practically unconscious, and, the will was got executed either at the time of his death or at any time before. 5. The will, Ext. 1, was scribed by Orambha Pada Mukherji P. W. 1, a pleaders clerk at Jamshed-pur, at the residence of the deceased testator at Madnabera. The testator put his thumb mark, and the scribe, P. W. 1 signed for him. The will was attested by Rameshwar. Dhora of the testators village, who has not been examined; Gour Dhora of Jamshedpur wRo also was not examined: Krishna Chandra Singh (P. W. 2) of Madnabera, the native place of the testator, and one Guhiram Singh of Dhania, who also has not been examined. The will was attested by Rameshwar. Dhora of the testators village, who has not been examined; Gour Dhora of Jamshedpur wRo also was not examined: Krishna Chandra Singh (P. W. 2) of Madnabera, the native place of the testator, and one Guhiram Singh of Dhania, who also has not been examined. It will, therefore, be found that out of the five persons, who Were connected with the writing, execution and attestation of the will, only two persons, namely, the scribe (P. W. 1) and, one attesting witness (P.W. 2) were examined. Others have not been examined. 6. The learned Subordinate Judge, alter a consideration, of the evidence and a number of circumstances, which are mentioned in his Judgment, held that the will was not executed by Dukhu as alleged. He summed up his conclusion to this effect in the following words: "On a consideration of all these, facts it appears to me that the applicant was not able to prove successively (successfully?) that the will in question had been executed by Dukha and at such a time when he was physically and mentally sound to execute such a document. The relationship of the opposite party, the nature of the sheets of the will, the delay in the filing of the Petition, silence about the will in criminal case and the evidence on record all, in my opinion, go to show that the will was not executed by Dukhu as alleged," Mr. Bhabanand Mukherji, who appeared in support of the appeal, submitted that the reasonings given by the learned Subordinate Judge are erroneous, and, that the circumstances relied upon by him are not sufficient to establish that the will was not executed by Dukhu, as alleged by the respondents. He further submitted that the learned Subordinate Judge had erred in taking into consideration the alleged illness of Dukhu, which was not pleaded in the written statement by the defendants, and also the questions of mutation and criminal case, which were entirely irrelevant for the purpose of the present enquiry. He also argued that in a case like the present, the onus was on the respondents to prove that the will was not genuine, and that it was not executed in a sound disposing state of mind. He also argued that in a case like the present, the onus was on the respondents to prove that the will was not genuine, and that it was not executed in a sound disposing state of mind. He relied in this connection on a decision of the Supreme Court in Naresh Charan Das V/s. Paresh Charan Das, (S) AIR 1955 SC 363 . 7. I may at once state that the contention of Mr. Mukherji that the onus was on the respondents is not correct, and is not at all supported by the decision of the Supreme Court relied upon by him. In that case what was laid down was that when once it has been proved that a will has been executed with due solemnities by a person of competent understanding and apparently a free agent, the burden of proving that it was executed under undue influence is on the party who alleged it. Here, it is nobodys case that the will was executed by a person of competent understanding, but that it was executed under undue influence of any party. Here, the competency of the testator, to execute the will is challenged, and therefore, in a case like the present where the genuineness, of the will, and the testamentary capacity of the testator are both challenged, obviously the onus is on the propounder of the will to prove to the satisfaction of the Court that the will was the last will and testament of the deceased testator, and, that he executed it in a sound disposing state of mind. If any authority is needed for this well known principle of law, I would refer to William Baker V/s. Tames Batt, (1838) 12 ER 1026, in which it was laid down by the Privy Council that the burden of proof of the genuineness and authenticity of a will lies on the party propounding it; and if the conscience of the Judge is not judicially satisfied that the paper in question does contain the last will and testament of the deceased he is bound to refuse its admission to probate. In this connection Mr. Baron Parke. In this connection Mr. Baron Parke. who delivered the opinion of the Privy Council, at p. 1027, observed: "For if the party upon whom the burden of the proof of any fact, lies, either upon his own case, where there is no conflicting testimony, or upon the balance of evidence where there is, fails to satisfy the tribunal which is to decide of the truth of the proposition which he has to maintain, he must fail in his suit. And thus in a Court of probate where the onus probandi most undoubtedly lies upon the party propounding the will, if the conscience of the Judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied, that the paper in question does contain the last will and testament of the deceased, it is bound to pronounce its opinion that the instrument is not entitled to probate. And it may frequently happen that this may be the result of an enquiry in case of doubtful competence in particular. Without the imputation of wilful perjury on either side or it may be, the Judge may not be satisfied on which side the perjury is committed, or whether it certainly exists." On the above authority, therefore, there is no doubt that the onus probandi must undoubtedly lie upon the appellant who propounded the will and if the conscience of the Judge, upon a careful and accurate consideration of all the evidence on both sides, is not judicially satisfied that the will in question is the last will and testament of the deceased, he is bound to refuse probate. 8. Let us, therefore, examine the evidence on both sides in order td find out if it has been proved by the deceased applicant beyond any reasonable doubt and suspicion that the will in question was executed by the deceased testator and if so, if it was executed in a sound disposing state of mind. 9. In the instant case, the trial Judge who saw the witnesses, wholly disbelieved the evidence of the preparation and execution of the will, and found that it had not been executed by the deceased testator and for reasons given hereinafter, I am not prepared to dissent from him in his estimate of the evidence of the witnesses on the points at issue here as well as in the Court below. Circumstances exist in this case that would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great vigilance and scrutiny and the original appellant would not have been entitled to probate unless the evidence removed that suspicion and clearly proved that the deceased testator approved of the will and executed it. In my opinion, the deceased appellant wholly failed to do so, 10. I will now deal with the several circumstances which exist and which have been elicited in the evidence of both sides in order to determine if on those cicumstances it can be said that the suspicion of the Court is aroused, and if so if it has been removed, and the Court can Judicially be satisfied on the evidence, with the proof of the will. 11. As stated earlier, out of the five persons, who were connected with the preparation and execution of the will, only two persons, namely, the scribe a pleaders clerk (P, W. 1) and one attesting witness (P. W. 2) were examined. There is no explanation forthcoming as to why the other three persons, who were not alleged to be dead, were not examined at all. The will being an unregistered will, it was the duty of the applicant to examine all the persons who had anything to do with the preparation and execution of the will, and who were admittedly present at the time of the alleged execution of the will, to satisfy the Court that actually the will propounded was the last will and testament of the deceased testator. It is not the case of the applicant that the other persons, who were not examined, had either been won over by the other side, or for any other reason, were not available for evidence. One of them, Gour Dhora belonged to Jamshedpur where the suit was tried, and another Rameshwar Dhora who also attested the will by putting his thumb mark, belonged to the same village Madnabera from where P.W. 2 and the testator came, but even these witnesses were not examined. 12. Further on the evidence of P. W. 1. the scribe, in his cross-examination, there were five or six persons, other than the attesting witnesses, also present there, but none of them were examined for reasons best known to the applicant. 13. 12. Further on the evidence of P. W. 1. the scribe, in his cross-examination, there were five or six persons, other than the attesting witnesses, also present there, but none of them were examined for reasons best known to the applicant. 13. In my opinion, the non-examination of independent attesting witnesses, like Gour Dhora of Jamshedpur and Guhiram of Dhania, coupled with the non-examination of the attesting witnesses Rameshwar of Madnabera and of other witnesses who were present at the time of the preparation and execution of the will at Madnabera, do create suspicion in the mind of the Court regarding the truth of the preparation and execution of the will by the testator in a sound disposing state of mind. The above suspicion of the Court, instead of being removed is further re-inforced by the fact that the deceased applicant Niran, who was the sold executor and the only person benefited by the will, himself procured it to be written. This circumstance forms a just ground of suspicion and calls upon the Court to be vigilant and jealous, and requires clear and satisfactory proof that the instrument contains the real intention of the testator. Is this then a case in which the testator himself got the will prepared, and gave the necessary directions to P. W. 1 for the preparation of the will and if it be is the proof upon all the evidence on both sides satisfactory that it contains the true will of the testator? 14. The first question to be considered is whether this instrument was got written by the sole executor, the deceased appellant? The second question is whether the testator, gave instructions and directions to P. W. 1 for the preparation of the will and whether he .was cognisant of the contents of it? 15. In order to determine these two questions, it is necessary to examine the evidence. According to the evidence of the scribe (P. W. 1) he went to the house of the deceased testator at Madnabera on being called by the deceased applicant Niran. He stated in his cross-examination that the applicant, meaning the deceased Niran, came to Jamshedpur and took him to Madnabera after telling him that he would have to scribe a will, thereafter both he and the applicant went together, by train to the house of the deceased testator. He stated in his cross-examination that the applicant, meaning the deceased Niran, came to Jamshedpur and took him to Madnabera after telling him that he would have to scribe a will, thereafter both he and the applicant went together, by train to the house of the deceased testator. On the evidence of P. W. 1 therefore, it is clar that the applicant who was benefited by the wil, himself, procured it to be written, and took a leading part in the execution of the will. Under the will, he is the sole executor and beneficiary. In such a case, as pointed out by the Privy Council in Vellaswamy Servai V/s. Sivaraman Servai, AIR 1930 PC 24. where the propounder of a will is the principal beneficiary under it and has taken a leading part in giving instructions for the execution of the will and procuring its registration and execution, the circumstances are such as would excite the suspicion of any probate Court and require it to examine the evidence in support of the will with great vigilance and scrutiny, and in such a case, the propounder is not entitled to probate unless the evidence removes such suspicion and clearly proves that the testator approved of the will. The above circumstances, in the present case, in my opinion, does excite the suspicion of the Court and require it to examine the evidence with great vigilance and scrutiny. P. W. 1, the scribe admitted that this was the first time when he went to the deceased testators house although he admitted that he had been previously also, with his pleader about 20 to 25 years ago, to Madnabera in connection with a case. It is surprising enough that what to speak of the other persons, who were present at the time of the execution and attestation of the will, as deposed to by P. W. 1 and the other attesting witnesses except P. W. 1 and P. W. 2 who were not examined in the case even the applicant Niran also did not examine himself in support of the genuineness of the will. Although from the evidence it is not clear whether he was present at the time of the preparation and execution of the will but the fact that he brought the scribe P. W. 1 from Jamshedpur and the further fact that both came together to the testators house, lead to the conclusion that he was also present at that time. The best person to say whether he was also present there or not and to remove the suspicion of the Court aroused by the fact that he brought the scribe P. W- 1 from Jamshedpur for the preparation of the will, and he told P. W. 1, at Jamshedpur that he would have to scribe a will, was the deceased applicant himself. But curiously enough he did not pledge his oath in support of the will. There is no explanation as to why the applicant was not examined. If the executor would have been a person in whose favour the will was executed without his knowledge, and in his absence, then it could be said that the evidence of the appellant in such a case would have been of not much value. But in the present case, that is not the position. On the evidence of P. W. 1, it is established that the applicant took a prominent part in the execution of the will. In my opinion non-examination of the applicant coupled with, the non-examination of the other attesting witnesses, and of the other 5 or 6 persons, who were present, according to P. W. 1 at that time, is certainly a strong circumstance to create a very strong suspicion in the mind of the Court about the genuineness of the will. 16. In my opinion, therefore, the first question posed by me must be answered in the affirmative by holding that the deceased applicant, who was the sole executor and beneficiary under the will himself, got the instrument written by P. W. 1. 17. As regards the second question posed by me, on the evidence I must answer it in the negative. The evidence, on this question, is of the scribe. P. W. 1 who stated in his cross-examination as below: "I had bilks with the deceased before I wrote out the will. He did not tell me that from a long time he was thinking of executing a will in favour of the applicant ..... The evidence, on this question, is of the scribe. P. W. 1 who stated in his cross-examination as below: "I had bilks with the deceased before I wrote out the will. He did not tell me that from a long time he was thinking of executing a will in favour of the applicant ..... I do not know if Dukhu had any other nephew." In his examination-in-chief, however, He stated that: "I scribed under the instructions of Dukhu Dhora. It is not true that he was made to affix the T.I. without knowing the contents or there was fraud played upon him." Reading the entire evidence of P, W. 1, he does not impress as a truthful witness. On his evidence, he appears to be a partisan and paid witness. It is not possible, on his evidence, to hold that the instrument was prepared on the instruction of the testator and at his dictation. P. W. 1 does not say a word about the nature of the alleged instructions given to him for scribing the will bv the testator, P. W. 1 further does not say what talk he had with the testator, when he reached his house, before he wrote out the will. On the other hand, his admission that he was brought, from Jamshedpur by the deceased applicant for scribing a will clearly goes to show that P. W. 1 was instructed by Niran, the applicant to write a will in his favour, and that is the reason, why P. W. 1 did not care to know if the testator had any other nephew also. No doubt P. W. 2 a chowkidar of village Madnabera. also says that "P. W. 1 scribed the will under the directions of Dukhu Bera" ; but he is not at all a reliable witness, because he admitted that he gave evidence in a criminal case, after Dukhus death against the objectors. The suggestion that P. W. 2 is on inimical terms with the objectors is, therefore, true. Further, if the scribe P. W. 1. read over the document to Dukhu in his presence how is it that he did not remember the contents of the will, as admitted by him? He further admitted that a police enquiry was made in that case but ha did not remember if he stated about the will before the police or in that criminal case. read over the document to Dukhu in his presence how is it that he did not remember the contents of the will, as admitted by him? He further admitted that a police enquiry was made in that case but ha did not remember if he stated about the will before the police or in that criminal case. His evidence shows that he was thoroughly untrustworthy. 18. NO credit, therefore, can be given to these two subscribing witnesses. If we, therefore, look at the evidence on both sides, in my opinion, it is placed beyond all reasonable doubt that Dukhu did not give directions to Niran to procure P. W. 1 to prepare the allegedwill which was drawn up by P. W. It, and, that the instructions given to P. W. 1 to Write out a will emanated from Niran and proceeded from him alone, and, there is not a proof whatever, from any act or expression of Dukhu, that he gave such directions or was cognisant of any such directions being about to be or having been given to P. W. 1. There is, therefore, no reliable evidence to show that the will was prepared on the instruction of the testator. 19. For the reasons given above, I would therefore, answer the first part of the second question posed by me in the negative by holding that on the evidence it is not established that P. W. 1 prepared the will on the instruction and at the dictation of the testator; rather on the evidence of P. W. 1 it is established that he prepared it on the instruction of the deceased appellant, Niran. 20. The second part of the second question must also be answered in the negative. 21. According to P. W. 1 the will was read over and explained to the testator, and. after finding that the contents were correct, he put his thumb-mark at four places in his presence and in presence of the attesting witness (P. W. 2), and others. P. W. 1 no doubt, stated that he read over the will and explained it to him, and, on finding the contents correct then put his thumb-mark; but he is not corroborated in material particulars by P. W. 2. P. W. 1 no doubt, stated that he read over the will and explained it to him, and, on finding the contents correct then put his thumb-mark; but he is not corroborated in material particulars by P. W. 2. because P. W. 2 beyond saying that the scribe read over the document to Dukhu, and, then he executed it by affixing his thumb-mark, does not say that the contents of the will were explained to the testator, or that the testator understood the contents of the same, and after finding the contents to be correct, put his thumb-mark, as deposed to by P. W. 1. On the question of explaining the contents of the will to the testator, and the testator understanding the same and admitting them to be correct, therefore, we have the uncorroborated testimony of only the scribe (P. W. 1). In my opinion, therefore, on the evidence of P. Ws. 1 and 2, it has not been satisfactorily established beyond all reasonable doubt that the contents of the will were explained to the deceased testator, and, that the testator understood the same, and, after understanding the contents of the will, he put his thumb-mark. It should be borne in mind that the testator was an illiterate person, and, therefore, it was imperative on the applicant to establish satisfactorily that actually the testator put his thumb-mark on the will, as alleged by the applicant, after the contents of the will had been fully explained to him, and, that he had understood the contents of the same 22. I would, therefore, answer the second part of the second question by finding that the testator was not at all cognisant of the contents of the will. 23. No doubt a will under the law does not require to be registered; but it cannot be said that the fact that a will is not registered is not at all a circumstance which cannot be taken into account along with the other circumstances proved in the case. In the present case, the will was alleged to have been executed on 21-12-1952, and, the testator, died on the 25th December 1952. There was railway communication between Madnabera, the village where the testator was living, and Jamshedpur town from where the scribe P. W. 1 was brought. In the present case, the will was alleged to have been executed on 21-12-1952, and, the testator, died on the 25th December 1952. There was railway communication between Madnabera, the village where the testator was living, and Jamshedpur town from where the scribe P. W. 1 was brought. Therefore, it was very easy for the applicant, or even for the testator if the case of the applicant that he was in a sound state of health and mind at the time of the execution, as deposed to by P. Ws. 1 and 2, is correct, to bring him to Jamshedpur to get the will registered. There is no explanation as to why this was not done. The scribe (P. W. 1) was a pleaders clerk, and, it appears from his evidence that he was working as such for the last 20 to 25 years, because he said in the very beginning of his cross-examination that he had been to Madnabera previously also with his pleader in connection with a case 20 or 25 years ago. It is very surprising as to why P. W. 1 did not suggest that registration of the will should be obtained. P. W. 1, or even P. W. 2. has said nothing about this fact at all. In my view, therefore, the fact that the testator was not taken to Jamghedpur for admitting execution of the will before the Registrar is also a strong" circumstance to support the defence, which will be considered hereafter, that the testator was lying unconscious and was not in a sound mind, memory and understanding at the time the alleged will was said to have been executed by him, and, therefore, naturally in such circumstances neither the testator could be taken to Jamshedpur to admit execution of the will before the Registrar nor even the Registrar or some commissioner could be brought to Madanabera to obtain the admission of the execution of the will. 24. Another circumstance which shows un-naturalness of the will is that according to the geneoldgy set out in the beginning of this judgment Niran, the applicant, was the son of the step-brother of the testator. 24. Another circumstance which shows un-naturalness of the will is that according to the geneoldgy set out in the beginning of this judgment Niran, the applicant, was the son of the step-brother of the testator. The question, therefore arises as to why in preference to his own nephews, namely, respondents 1 and 2, who are sons of his brother Gopi, respondents 3 and 4, who are sons of his another brother Hari, and respondents 5 to 8, who are his brothers grandsons, he would will away his entire property in favour of the son of his stepbrother? Mr. Mukherji in answer to this question, relied on the recitals in the impugned will itself, where the testator stated that he was al! along living with the applicant, who was supporting him with food, etc., and had been nursing and taking care of him, and, therefore, the testator had said that he had affection and love for Mm, and, in lieu thereof, he was giving the entire moveable and immoveable property of his to the applicant. These recitals in the document cannot be considered to be true statements of the deceased testator when the genuineness of this will is challenged. On the side of the respondent, D.W. 1, respondent No. 1, and D.W. 5, grand-nephew of the deceased testator stated that the objectors looked after him and did his nursing also. Their evidence seems to be reliable and very natural. There is no evidence whatsoever, on behalf of the applicant that the deceased was annoyed or displeased with his own nephews or grandnephews, and, therefore, he disinherited them. Even in the will itself, there is no statement that he was displeased, or annoyed, or on inimical terms with his own nephews and grand-nephews for any reason whatsoever. For these reasons, it appears to me that the will in favour of his step-nephew, in preference to his own nephews and grand-nephews, appears to be most unnatural, and, that also shows that if the testator had actually been in a sound disposing state of mind, and not in an unconscious state, as alleged by the respondents, he would not have knowingly executed this document in favour of his step-nephew, depriving thereby completely his own nephews and grand-nephews for no earthly reason whatsoever. 25. 25. On the question as to whether the testator was in a sound state of health and mind, and, in a sound disposing state of mind at the time of the execution of the alleged will, we have got the evidence on the side or the applicant, of the scribe (P.W. 1) and the attesting witness (P.W. 2), and, on the side of the objectors, of as many as four, witnesses O. Ps. 1, 3 to 5. It is true that in the written statement it was not specifically alleged that the testator was lying ill at the time of the alleged execution of the will. What is stated in paragraph 5 of the written statement is that "the deceased Dukhu was not of sound mind, memory and understanding and was practically unconscious at the last stage of his life and the alleged will was not executed either at the time of his death or at any time before." The fact, however, that he was practically unconscious at the last stage of his life is stated in the written statement. In order to explain as to why he was unconscious, evidence was adduced on behalf of the objectors to the effect that he was suffering from illness for about two months before his death. The fact, however, that he was unconscious for seven days before his death is proved by O. P. 1, O. P. 4 and O. P. 5 all of whom were nephews or grand-nephews of the testator. No independent witness has been examined on behalf of the applicant to show that actually the deceased was not lying unconscious for a number of days before his death, and that on the day the will was alleged to have been executed, he was not in an unconscious state of mind. The other attesting witnesses, one of whom belonged to another village, have not been examined. The applicant has not pledged his oath. Other 5 or 6 persons, who were present at the time and who were not the attesting witnesses, have not been examined. No other inhabitant of the village has, been examined, In these circumstances, I have no hesitation in accepting the evidence of O. P. Ws. 1, 4 and 5 that actually the testator was lying unconscious for seven days before his death. This fact is further supported as stated earlier, by the non-registration of the document. No other inhabitant of the village has, been examined, In these circumstances, I have no hesitation in accepting the evidence of O. P. Ws. 1, 4 and 5 that actually the testator was lying unconscious for seven days before his death. This fact is further supported as stated earlier, by the non-registration of the document. If he was not lying in an unconscious state either the testator could have been taken to Jamshedpur for admitting registration of the will or even the Registrar could have been brought to the village Madnabera on commission. Taking all these circumstances into consideration. I feel that the case of the opposite party that the testator was lying unconscious for the last seven days before bis death, and that the will was got up at the time of his death taking advantage of his unconscious state of mind, is correct. 26. The learned Subordinate Judge has mentioned that according to the evidence of P.W. I, when he went from Jamshedpur to Madnabera accompained by the applicant for executing the will, he took with him about eight sheets of demi paper. He has, therefore, said that by such demi paper obviously P.W. 1 meant cartridge papers which are available in court. Such cartridge papers are white in colour, but the will in question is on yellowish papers which are very dirty, smoky and grubby. On a look at the original will, I find that the comment of the learned Subordinate Judge is correct. 3 myself cannot make out as to how, when, and why the demi papers which are undoubtedly white and which are available in court, and which were taken by P.W. 1. became yellowish and of the description given by the learned subordinate Judge. I think, therefore, that there is some force in this comment of the learned Subordinate Judge, and, this circumstance also does give rise to suspicion, as it rightly did in the mind of the learned Subordinate Judge. I am not taking into consideration the evidence of O.P. W. 2. I think, therefore, that there is some force in this comment of the learned Subordinate Judge, and, this circumstance also does give rise to suspicion, as it rightly did in the mind of the learned Subordinate Judge. I am not taking into consideration the evidence of O.P. W. 2. Hira Lal Mahto, Khas Manal Tahsildar, or the documents proved by him to show that in respect of the lands of the, deceased testator, the objectors or some of them have been mutated; but the fact that in the criminal case, as deposed to by P.W. 2, in which he was a witness, he did not remember if he stated about the will before the police or in that case, which has also been taken into consideration by the learned Subordinate Judge, is surely a circumstance against the genuineness of the will, because on the evidence of P.W. 2, it saw the light of the day when the application for probate was made, as rigbtly contended by the respondents. The fact that although Dukhu died on 25-12-52, but the application for probate was made on 5-9-53, after eight months, has also rightly "been taken into consideration by the trial court amongst the circumstances in deciding whether the will propounded is genuine. The contention of Mr. Mukherji that this statement of P. W. 2 should not have been taken into consideration in the absence of his deposition, is devoid of any merit. His statement was not used to contradict any previous evidence of his. The admission of P. W. 2 that he did not disclose the existence of the will even after the death of Dukhu before the police or in the criminal case is surely a very strong circumstance against the genuineness of the will and in support of the respondents contention. In my opinion, even if the question of mutation be excluded from consideration, the other circumstances mentioned by him, and, also considered: by me, leave no room for doubt that the suspicion created by these circumstances has not been removed from the mind of the Court, and, therefore, I cannot with confidence hold that the applicant has proved beyond all reasonable doubt the genuineness of the will. Mr. Mukherji placed strong reliance on the evidence of O. P. W. 5, Sahadev, grandnephew of the testator that: "The papers of Dukhoo are with us. (Then says). Mr. Mukherji placed strong reliance on the evidence of O. P. W. 5, Sahadev, grandnephew of the testator that: "The papers of Dukhoo are with us. (Then says). The applicant did not allow us to take the papers and threatened us. I did not inform the chowkidar and did not file any case about this." Mr. Mukherjis contention was that the testator was living with the applicant, the testator was not cared for and looked after by his own nephews and grand-nephews, and, therefore, the testator had every reason to give preference to the applicant and give all his properties to him. If the applicants contention that the testator was living with him is correct, then naturally more suspicion would attach to the genuineness of the will. It is worthy to note that although On the evidence of P. W. 2, the house of the objectors, who were his own nephews and grand-nephews as admitted by P. W. 1, was at a distance of 6 to 8 bighas from the house of Dukhu, they were never informed about this intended will, nor were they informed or called in when P. W. 1 was brought to prepare the will. The preparation and execution of the will was kept a secret from not only the objectors, but also from his other co-villagers. 27. It appears from the evidence of P. Ws. 1 and 2 that the testator was living in his own house, and. to his house P. W. 1 was brought. It is, therefore, not unnatural that taking advantage of the death of the testator, the applicant forcibly took possession of the testators papers, as rightly suggested by the respondents, and as stated by O.P.W. 5, that the applicant. Niran, did not allow the objectors to take the papers and threatened them. Mr. Mukherji argued that if that was a fact, why no legal step was taken against the applicant by the objectors, because O. P. W. 5 admitted that he did not inform the chowkidar and did not file any case about this. O. P. W. 5 could not possibly have informed the chowkidar who was no other person than P. W. 2 with whom they were on inimical terms and who was siding with the applicant. O. P. W. 5 could not possibly have informed the chowkidar who was no other person than P. W. 2 with whom they were on inimical terms and who was siding with the applicant. The filing of any case is also of not much consequence, because the possession of paper would not in the least prove the genuineness of the will or the truth of the alleged statement made by the testator in it. The fact that the papers of the testator are in possession of the applicant will not show either that the testator had affection only for him, and not for his own nephews and their sons. 28. On the evidence of O. P. Ws. 4 and 5, they performed the cremation ceremony of the deceased testator. There is no evidence on the side of the applicant that he did it. That also supports the defence that the objectors looked after the deceased before his death. 29. O. P. Ws. 4 and 5 asserted that the will was forged. O. P. W, 5 stated that he knew full well that Dukhu did not execute any document before his death. In the absence of the evidence of the applicant and other independent and reliable witness of the village of the testator, there is no reason to discard the evidence of O. P. Ws. 4 and 5, whose evidence appears to be natural and straight-forward. 30. Another important circumstance is that although the objectors in paragraph 2 of their objection asserted in clear terms that the alleged will was forged and had never been executed by Dukhu, and, also said in paragraph 4 of their objection that the alleged signatures of the attesting witnesses were also "false", no step was taken by the applicant to produce reliable evidence to prove affirmatively the genuineness of the will, by proving that the thumb-impressions and signatures on the will were genuine. Except examining only two witnesses, P. W. 1 and P. W. 2, no attempt was made to examine even any Finger Print Expert or Handwriting Expert to refute the allegations of the objectors for reasons best known to the applicant. There is no evidence to show that there was no admitted thumb-impression of Dukhu or signatures of the other attesting witnesses with which there could be any comparison. There is no evidence to show that there was no admitted thumb-impression of Dukhu or signatures of the other attesting witnesses with which there could be any comparison. Be that as it may, the fact remains that the suspicion of the Court has not been removed. After a careful and accurate consideration of the evidence of both sides, I have no hesitation in holding that it has not been established beyond all reasonable doubt that the will in question was executed by Dukhu. The conscience of the Court is not judicially satisfied that the paper in question does contain the last will and testament of the deceased. For these reasons, I would affirm, the finding of the Court below that the will was not executed by Dukhu, as alleged by the respondents, and, therefore, on this finding alone, the applicant, even if alive, could not have been entitled to probate as prayed for. In this view of the matter, the learned Subordinate Judge has rightly refused the application for probate made by the deceased applicant. On the above findings, I do not think it is necessary to consider the other objection raised by Mr. Shivanugrah Narain. who appeared for the respondents, that as the sole executor of the will is dead, the probate cannot be granted to his widow and sons, who have been subsequently substituted in his place. 31. In the result, the appeal fails and is dismissed with costs.