JUDGMENT T.S. Krishnamoorthy Iyer, J. 1. These are appeals filed against the decision of Raghavan, J. disposing of three Original Petitions which relate to the estate left behind by one A. A. D. Luiz, a Roman Catholic Anglo Indian Christian who died on 27-12-1962 at Ernakulam. The Original Petitions are: (1) O. P. 1479 of 1963 filed by Mrs. Dorothy Luiz (Nee McLeod) claiming herself to be the widow of the deceased for the grant to her of letters of administration of the deceased's estate on the ground that A. A. D. Luiz died intestate. (2) O. P. 705 of 1964 filed by Dr. M. V. Francis Chithalan for the grant of probate of the will Ex. P 1 dated 26-12-1961 alleged to have been executed by the deceased, claiming himself to be the executor therein. (3) O. P. 826 of 1964 filed by C. Ammu Amma for the grant of probate of the will Ex. D 1 dated 2-12-1960 alleged to have been executed by the deceased, claiming herself to be the executrix therein. All the original petitions were tried jointly and disposed of by a common judgment. Common evidence for all the petitions was recorded in O. P. 705 of 1964. The learned Judge holding Ex. D 1 to be genuine and Ex. P 1 not genuine, directed the issue of probate of Ex. D 1 to C Ammu Amma thereby allowing O. P. 826 of 1964. In consequence the learned Judge dismissed original petitions 1479 of 1963 and 705 of 1964. A. S. 98 of 1966 and A. S. 333 of 1966 arise out of O. P. 705 of 1964. A. S. 98 of 1966 is filed by Dr. M. V. Francis Chithalan the petitioner therein while A. S. 333 of 1966 is filed by Doris Stanley Luiz (wife of S. P. Luiz) one of the beneficiaries under Ex. P 1. A. S.172 of 1966 arises out of O. P. 826 of 1964 and is filed by the 3rd respondent therein, namely S. P. Luiz. No appeal is filed by Mrs. Dorothy Luiz against the dismissal of O. P. 1479 of 1963. 2. A. A. D. Luiz (referred to hereafter as Tony) died suddenly of heart failure during the early hours of 27-12-1962 at Pallath House, Ernakulam leaving behind his considerable assets valued by the Collector at Rs. 902676/-. No appeal is filed by Mrs. Dorothy Luiz against the dismissal of O. P. 1479 of 1963. 2. A. A. D. Luiz (referred to hereafter as Tony) died suddenly of heart failure during the early hours of 27-12-1962 at Pallath House, Ernakulam leaving behind his considerable assets valued by the Collector at Rs. 902676/-. Tony is I the eldest of the three sons of Chevalier Cherupunathil Paul Luiz and Mrs. Mary P. Luiz. Paul Luiz died on 22-11-1937 while Mrs. Mary P. Luiz died on 15-11-1958. The two brothers of Tony are A. W. P. Luiz (referred to hereafter as Alfy) and S. P. Luiz (referred to hereafter as Stanley). S. P. Luiz married Doris Stanley Luiz (referred to hereafter as Doris), in 1940. Tony married Dorothy Edith Cicilia McLeod (referred to as Dorothy in the rest of the judgment) on the 22nd January 1936. Before her marriage with Tony, Dorothy was studying for her M. A. in the Presidency College, Madras and was residing in the Queen Mary's College Hostel. During her stay in the hostel she came into contact with C. Ammu Amma (referred to hereafter as Ammu) who was also then having her studies in Madras and in course of time they became good friends. Even after her marriage, whenever Dorothy visited Madras in the company of her husband both of them used to call on Ammu. Ammu used to accompany Dorothy and her husband to Coonoor for the season during some years and she stayed with them in Coonoor during the season in 1937, 1938 and 1939. In the course of their stay at Coonor, Tony developed a fancy for Ammu and subsequent to 1939, Tony used to visit Ammu in Madras without taking with him Dorothy. Thereby the relationship between Ammu and Tony became very intimate with the result that a daughter was born to them on 12-10-1942 whom they named Marianna Teresa Luiz, also called Viju, in the Scudder Memorial Hospital, Ranipet where Ammu was admitted for her confinement. In August 1942, Ammu became a Catholic but she continued to retain her old name, Ammu, though as Dw. 1 she deposed that her Christian name is Teresa. In December 1942, Ammu was transferred to the Government Training School at Calicut. Thereafter she was working in some schools for girls in Tirur and in Palghat during the years 1945 to 1951. 1 she deposed that her Christian name is Teresa. In December 1942, Ammu was transferred to the Government Training School at Calicut. Thereafter she was working in some schools for girls in Tirur and in Palghat during the years 1945 to 1951. From 1952 till her retirement in 1962, she was employed in the Government Girls High School, Calicut and at the time of her retirement in 1962 she was the headmistress of the said school. As Tony's attachment towards Ammu deepened, his relationship with Dorothy began to deteriorate especially since a few years prior to 1945. Dorothy filed Ex. P 39 petition on 14-4-1945 in the District Judge's Court, Coimbatore against Tony for judicial separation, the ground being that Tony committed adultery with Ammu. Tony also had filed a similar petition against Dorothy almost at the same time in the Anjaikaimal District Court in the former Cochin State. These proceedings resulted in the execution of Ex. XXI dated 18-8-1945 a deed of separation and Ex. XX also of the same date a release deed, between them. On the date when Tony died, Stanley was away in Wynad. Dorothy was then permanently staying at Wynad. Though both of them were informed immediately about the death of Tony, Stanley returned to Ernakulam in time to attend the funeral which took place at, Ernakulam on the evening of 27-12-1962. But Dorothy did not come, even though Stanley compelled her to accompany him to C Ernakulam. As already stated, O. P. 1479 of 1963 was filed by Dorothy for the issue in her favour of letters of administration of the assets of Tony on the ground that he died intestate and that she is one of his heirs at law. The petition was filed on 30-7-1963. Notice was ordered on 7-8-1963 to the only relations named in the petition, namely Alfy and Stanley. Stanley filed C. M. P. 7564 of 1964 on 20-11-1963 therein for the appointment of a receiver to take possession of the assets of the deceased. After notice the petitioner was allowed by Joseph, J., by the order dated 13-12-1963 and on 14-12-1963 the learned Judge appointed Sri K. M. Joseph (D. W. 14) who is an advocate of this court, to be the receiver. After notice the petitioner was allowed by Joseph, J., by the order dated 13-12-1963 and on 14-12-1963 the learned Judge appointed Sri K. M. Joseph (D. W. 14) who is an advocate of this court, to be the receiver. D. W. 14 in the course of assuming management of the estate prepared an inventory of the movables in the building called Luiz Hall, in Broadway, Ernakulam, forming part of Tony's estate. He filed his Report No. II in court on 3-3-1964. This report shows that while preparing the inventory of the articles found in the eastern most room in the building on 1-3-1964, D.W. 14 took into custody Exs. P 1, D 3, D 4. D 5 and D 34 from the steel trunk kept there and produced the same in court on 3-3-1964 along with his Report No. II. Dr. M. V. Francis Chithalan (referred to as Dr. Chithalan hereafter), appointed sole executor under Ex. P 1, therefore filed O. P. 705 of 1964 on 17-3-1964 for the grant of probate of Ex. P l. O. P. 826 of 1964 was filed by Ammu on 25-3-1964 for the grant of probate of Ex. D l. In that petition she has also alleged that Tony had executed the will Ex. D 2 dated 18-5-1964 and deposited C the same in the District Registrar's Office at Ernakulam. 4. The arguments on the original petitions before the learned single Judge were concluded on 20-10-1965. Before pronouncing judgment the learned Judge by proceedings dated 29-10-1965 caused the issue of notices under S.479A(1) of the Code of Criminal Procedure to Pws. 1 and 2 who are stated to be the attestors to Ex. P 1, D. Ws. 10 and 11 who are stated to be the attestors to Ex. D 1, DW. 14 the receiver who produced Ex. P l in court and Pw. 19 (Stanley) and also the issue of notice under S.476(1) of the Criminal Procedure Code to Dr. Chithalan, to show cause why action should not be taken against them for perjury and fabrication of false evidence. Dr. Chithalan and Stanley filed Civil Appeals 871 of 1966 and 1003 of 1966 in the Supreme Court against the order of the learned single Judge passed on 29-10-1965, directing the issue of show cause notices to them, after obtaining special leave. Dr. Chithalan and Stanley filed Civil Appeals 871 of 1966 and 1003 of 1966 in the Supreme Court against the order of the learned single Judge passed on 29-10-1965, directing the issue of show cause notices to them, after obtaining special leave. Though an ex parte order of interim stay of further proceedings in O. P. 705 of 1964 was passed by the Supreme Court at the instance of Dr. Chithalan, it was subsequently modified on 19-1-1966 confining the stay only to the further proceedings consequent on the issue of the show cause notices. The judgment which is the subject matter of the appeals before us was therefore pronounced by the learned Judge on 25-2-1966. By this judgment the learned Judge has again directed the issue of notices under S.479A(1) and 476(1) of the Criminal Procedure Code to the parties mentioned above. The appeals before the Supreme Court were allowed by the order dated 30-3-1967, and the order dated 29-10-1965 was quashed in view of the direction for the issue of fresh notices in the judgment under appeal. In the special leave petitions and in the appeals filed before the Supreme Court, Dr. Chithalan and Stanley had complained against the conduct of the trial of the original petitions before the learned Judge. Their Lordships of the Supreme Court observed in their order of 30-3-1967 thus: "We express no opinion on any other matters raised in these appeals for it appears that there are appeals pending before a Division Bench of the High Court and those matters can properly be raised in those appeals." We are making particular reference to these observations of the Supreme Court as they were relied on by the learned counsel for the appellants to point out the necessity of considering the grounds repeated before us complaining about the conduct of the trial before the learned Judge. 5. At this stage it is necessary to discuss about the procedure to be followed in the trial of applications for the issue of probate or letters of administration. No rules have been framed for the trial of such applications. We have therefore to turn to the provisions of the Indian Succession Act to see whether they afford any guidance in the matter. Chap.4 of the Indian Succession Act contains provisions regarding the granting and revoking of probates and letters of administration. No rules have been framed for the trial of such applications. We have therefore to turn to the provisions of the Indian Succession Act to see whether they afford any guidance in the matter. Chap.4 of the Indian Succession Act contains provisions regarding the granting and revoking of probates and letters of administration. S.276, 278 to 281 deal with the contents of the application and the nature of the verifications to be made therein. S.283(1) deals with the power and procedure of the court in the disposal of the petition and for the issue of citations to the persons interested in the estate of the deceased. S.283, sub-s.(2) and (3) prescribe the procedure for service of citations issued. S.284, provides for the lodging of caveats against the grant of probate or letters of administration with the District Judge or the District Delegate. S.284, sub-s.(4) says that caveat shall be made as nearly as circumstances admit in the form set forth in Schedule V of the Act, Schedule V of the Act prescribing the form of caveat is in these terms: "Let nothing be done in the matter of the estate of A. B., late of ................ deceased, who died on the ................ clay of .......... at........ without notice to C. D. of ..............". S.285 provides that after the entry of caveat, no proceedings shall be taken for probate or letters of administration until after such notice to the person lodging the caveat as the court may think reasonable. S.295 which lays down the procedure to be followed in contentious cases, directs that the proceedings shall take the form of a regular suit in the ordinary civil court and the petitioner will be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. S.295 which lays down the procedure to be followed in contentious cases, directs that the proceedings shall take the form of a regular suit in the ordinary civil court and the petitioner will be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant. It will be useful to extract S.295 which runs thus: "In any case before the District Judge in which there is contention, the proceedings shall take, as nearly as may be, the form of a regular suit, according to the provisions of the Code of Civil Procedure, 1908, in which the petitioner for probate or letters of administration, as the case may be, shall be the plaintiff, and the person who has appeared to oppose the grant shall be the defendant." It is also necessary to extract S.268 of the Act which says that: "the proceedings of the Court of the District Judge in relation to the granting of probate and letters of administration shall, save as hereinafter otherwise provided, be regulated, so far as the circumstances of the case permit, by the Code of Civil Procedure, 1908." S.295 is silent, as to the stage at which a proceeding becomes contentious. A caveat lodged under S.284 is only a caution or warning to the testamentary court not to issue any grant or take any step regarding the stage of the deceased person without giving notice to the caveator or his counsel. The nature, effect and purpose of a caveat are stated thus in Tristram and Coote's Probate Practice (19th edition) at pages 387 and 388: "A caveat is not a notice to a particular person, it is a notice to the court not to allow proceedings to be taken in the matter of the will or estate of the deceased without notice to the caveator. It does not commence litigation, it institutes no proceedings, and it is not an 'act' in any proceedings in which the court in the course of its ordinary procedure will order the 'actor' to give security for costs. It does not commence litigation, it institutes no proceedings, and it is not an 'act' in any proceedings in which the court in the course of its ordinary procedure will order the 'actor' to give security for costs. when a caveat has been entered no grant can issue until it has been removed in one of the following ways:-- (1) by the non appearance of the caveator to the warning; (2) by the subduction or withdrawal of the caveat by the caveator; (3) by an order of the registrar or of a judge; or (4) by the non renewal of the caveat on the expiration of six months. The following are some of the purposes for which a caveat may be entered: (1) To give time to the caveator to make inquiries and to obtain such information as may enable him to determine whether or not there are grounds for his opposing the grant; (2) To give him an opportunity of raising any question arising in respect of the grant either on summons or on motion; (3) To enable the caveator to apply for an order that the sureties to the administration bond shall justify; (4) As a step preliminary to an action or to the issuing of a citation. The proceedings subsequent to the entry of caveat (i.e. the warning or notice to appear, issued against the caveator by the party whose application for a grant has been stopped, and the appearance to such warning by the caveator) will disclose the names and addresses of the parties and their respective interests in the estate of the deceased; and with this information it is open to either of them, if the interests conflict, to commence an action against the other for the purpose of establishing his own claim." The mere filing of the caveat cannot therefore make the proceedings contentious to attract S.295 of the Act. The Act is silent as to the steps to be taken by the caveator when a notice is received by him under S.285 of the Act. The Act is silent as to the steps to be taken by the caveator when a notice is received by him under S.285 of the Act. The rules framed for the trial of applications for the grant of probate or letters of administration by the Bombay, Madras, Calcutta and Allahabad High Courts and the rules of the Probate Practice in English Courts (Tristram and Coote's Probate Practice, 19th edition) so far as they apply, which can be usefully followed until rules are framed binding on this Court indicate that when a caveat is entered after an application is made for grant of probate of letters of administration objection supported by an affidavit shall be filed within the time fixed in the rules and the objection shall state the right and interest of the caveator and the ground of objection to the application. It is further provided that upon the affidavit being filed notice of which has to be given by the caveator to the petitioner, the proceedings shall be numbered as a suit in which the petitioner for probate or letters of administration shall be the plaintiff and the caveator shall be the defendant, the petition for probate or letters of administration being registered as a plaint filed against the caveator and the objections of the caveator being treated as his written statement in the suit. The above procedure though not specifically prescribed by any rules in the State, should have been followed as they are indicated by the provisions of the Act itself. In this connection it will be useful to refer to Chap.5 of the Madras Civil Rules of Practice and Circular Orders, Volume 1 (issued by the High Court, Madras), which prescribes the procedure to be followed for applications under the Succession Act. These rules still apply to the subordinate courts in the Malabar area. R.10 to 12 of Chap.5 of Part 2 can be usefully extracted here:-- "10. Particulars in caveat-- A caveat shall, in addition to the particulars prescribed by S.252 of the Indian Succession Act, 1865, and S.71 of the Probate and Administration Act, 1881 (now S.284(4) and schedule V of the Indian Succession Act, 1926), state the address for service of the caveator. 11. Particulars in caveat-- A caveat shall, in addition to the particulars prescribed by S.252 of the Indian Succession Act, 1865, and S.71 of the Probate and Administration Act, 1881 (now S.284(4) and schedule V of the Indian Succession Act, 1926), state the address for service of the caveator. 11. Notice of caveat-- When a caveat against the grant of probate or letters of administration is filed, the court shall cause notice thereof to be given to the petitioner as in Form No. 7 and the petition shall thereupon be amended by inserting the name of the caveator as a respondent. 12. Notice to caveator-- Within five days after service of the said notice upon him, or such other period as the Judge appoints, the petitioner shall bring into court a notice to the caveator, in Form No. 8, a copy of the petition, and the prescribed fees for service of the same, and the provisions of the Code, and these rules with respect to summons to a defendant, and service thereof, shall apply to the notice." No rules are contained in the Travancore - Cochin Civil Rules of Practice for the trial of application for grant of probate or letters of administration by the subordinate courts in the T. C. area. 6. We consider it advantageous in this connection to refer to Chotalal Chunilal v Bai Kabubai ILR 22 Bombay 261. where the question of practice regarding a contentious probate proceeding in the testamentary and intestate jurisdiction of the High Court of Bombay was stated thus: "It appears to me that the more correct procedure would be to treat, not the entry of a caveat, but the filing, within eight days of such entry, of an affidavit in support of the caveat, as the point at which the petition becomes contentious. The form of caveat prescribed by S.71 of the Probate and Administration Act, and the judgments of the Court of Appeal in Moran v. Place,(1896) P. 214, and Salter v Salter, (1896) P. 291, show that the entry of a caveat is not necessarily a contentious proceeding, and does not necessarily imply any intention to oppose the grant: it is merely a request that nothing be done in the matter of the estate of A. B., deceased without notice to the caveator. The caveator may only want time to make enquiries and obtain information. The caveator may only want time to make enquiries and obtain information. In the cases just mentioned, it was held that in England the contention or litigation commences not with the caveat, nor with the warning of the caveat, nor with the caveator's appearance to the warning, but with the writ of summons which the person warning the caveat and intending to propound the will must then issue, and by which under S.100 of the Judicature Act an action is commenced. In India, though there is a caveat there is no warning, no appearance to the warning, and no writ of summons commencing an action; but a suit is here commenced by the filing of a plaint, and the question is at what point the petition for probate or letters of administration should be treated as having become the plaint in a suit. I think that the point at which this should be done is the filing of the affidavit in support of the caveat, because under the Rules the affidavit must state 'the right and interest of the caveator, and the grounds of objection to the application' and that does imply opposition to the grant. Up to the filing of the affidavit, nothing need be done by the Registrar. If within eight days from the entry of the caveat no affidavit is filed, the caveat simply drops, the matter never becomes contentious , and the Registrar can proceed to grant probate or administration as if no caveat had been entered. That is, in my opinion, implied by the Rule which provides that, unless the affidavit is filed within eight days, 'such caveat shall not prevent the granting of probate or letters of administration.' If within the eight days an affidavit is filed, then, but not before, notice should be given to the petitioner that the petition has become the plaint in a suit, and that he must proceed under R.42." The above procedure which is only consistent with the provisions of the Indian Succession Act and reaffirmed by the rules in force in the several High Courts should have been followed in the trial of the petitions before us. If that had been done, we are constrained to observe that many of the complaints raised before us regarding the illegality and irregularity in the trial, could have been avoided. If that had been done, we are constrained to observe that many of the complaints raised before us regarding the illegality and irregularity in the trial, could have been avoided. We therefore take this opportunity to impress upon the necessity to frame rules for the trial of such applications both in this Court and in the subordinate courts at an early date, so that the trial is conducted in accordance with the procedure indicated by the provisions of the Act itself. 7. Now so far as the present petitions are concerned it is seen that no caveat was entered by any of the objectors to the original petitions. Merely citing a person in application for probate or letters of administration does not make him a defendant, unless the caveat is filed. Among the persons cited in O. P. 705 of 1964 namely Alfy, Stanley and Dorothy, only Alfy filed objections to the grant of probate. In addition, Ammu and Viju also filed objections to the grant of probate in O. P. 705 of 1964. Persons opposing the grant should have been made defendants or respondents to O. P. 705 of 1964 and it should have been .numbered as a suit. None of these courses were adopted. Similar is the position in O. P. 826 of 1964. Among the persons cited namely Dorothy, Alfy and Stanley, Stanley alone filed objections to the grant. Doris also filed objections to the grant of probate in O. P. 826 of 1964. They were not made defendants in O. P. 826 of 1964 and it was also not numbered as a suit. Dr. Chithalan the executor under Ex. P 1 and the petitioner in O. P. 705 of 1964 was already before court when O. P. 826 of 1964 was filed. Special citations should have been issued in O. P. 826 of 1964 to Dr. Chithalan and also to Doris one of the beneficiaries under Ex. P 1. The omission is a substantial defect going to the root of the proceedings. A person having a real interest, however small it may be, in the estate of the testator is entitled to oppose a grant of probate. S.283 of the Succession Act vests the Judge with full discretion as to the issue of citations. But the discretion has to be exercised judicially and with proper care. A person having a real interest, however small it may be, in the estate of the testator is entitled to oppose a grant of probate. S.283 of the Succession Act vests the Judge with full discretion as to the issue of citations. But the discretion has to be exercised judicially and with proper care. The learned Judge has ordered in O. P. 826 of 1964 in the exercise of his discretion the issue of general and special citations. Although S.276 unlike S.278 does not require that a petition for probate should contain the names of the relatives of the testator, still S.283(1) lays down that it is open to the Judge to issue special citations to all persons claiming to have an interest in the estate of the deceased, whether in proceedings for probate or letters of administration. The relations mentioned in Para.3 of O. P. 826 of 1964 are Dorothy, Alfy and Stanley. To them alone special citations were ordered. It is impossible to think that Ammu was not aware of the pendency of O. P. 705 of 1964 by Dr. Chithalan. There is even a reference to Ex. P 1 in O. P. 826 of 1964 as a 'rank forgery'. Dr. Chithalan the executor and Doris, a beneficiary under Ex. P 1 are therefore entitled to oppose the grant of probate in O.P. 826 of 1964. Illustration (ii) to S.263 of the Act shows that a grant made without citing parties who ought to have been joined, is liable to be revoked at their instance. Probably there is no difference in principle between a special and general citation issued under S.283, sub-s.(1), clause (c) of the Act. The object of both is to give notice to persons interested in the estate of the deceased testator. Since the grant of probate operates in rem, it is necessary and of utmost importance to give wide publicity to the proceedings to enable persons interested in the estate to oppose the grant, if they think it necessary. The practice of issuing general citation even in cases where the petitioner knows that there are persons to whom special citations have to be issued may tend to encourage fraud. Though absence or non-service of special citation is itself a defect constituting a ground for revocation, it may not be a defect of substance if the person had knowledge of the probate proceeding. Though absence or non-service of special citation is itself a defect constituting a ground for revocation, it may not be a defect of substance if the person had knowledge of the probate proceeding. In such cases it is open to the court to refuse revocation. But we are bound to take note of the failure to issue special citation to Dr. Chithalan and the beneficiaries in Ex. P 1, especially when Ammu had known about it even at the time of the filing of O. P. 826 of 1964. Though Doris filed objections to O. P. 826 of 1964, no objection was filed by Dr. Chithalan. The omission to issue citation to the executor in Ex. P 1 will no doubt make the proceedings in O. P. 826 of 1964 defective, though it may not be a ground by itself for setting aside the decision under appeal. 8. This is the proper stage to deal with certain preliminary matters raised by the learned counsel appearing for the appellants in A. S. 98 of 1966 and A. S. 333 of 1966. We shall therefore formulate those points for discussion. (1) This court has no jurisdiction to entertain O. P. 826 of 1964 as it should have been filed in the District Court, Ernakulam. (2) Since the petitioner in O. P. 705 of 1964 is not a party to O. P. 826 of 1964 and O. P. 1479 of 1963 the learned Judge should have not ordered joint trial of all the petitions. (3) Since the applications for probate have become contentious proceedings on account of the filing of objections, issues should have been framed and ' the appellants have been prejudiced on account of the omission to raise issues. 9. We shall now dispose of these objections. Point 1-- The contention of the appellants on this point was that O. P. 826 of 1964 should have been filed in the District Court, Ernakulam and the High Court has no jurisdiction to entertain the same. This point which was mooted before the learned Judge was overruled thus: "The first objection is that O. P. No. 826 of 1964 has to be returned for presentation to the District Court, Ernakulam. The argument is that in that petition no property outside the State is included in the annexure; and that the petition should therefore have been filed in the District Court. The argument is that in that petition no property outside the State is included in the annexure; and that the petition should therefore have been filed in the District Court. The allegation in the petition was that the petition was being filed before this Court, because the other petitions were already pending here. Moreover, all parties agreed that the three petitions might be jointly tried by this Court; and thereafter, I fail to see any substance or bona fides in this objection." It has to be stated that in view of the objection filed to C. M. P. 1738 of 1965 for joint trial and the order thereon it is not correct to say that the parties agreed for a joint trial of the three petitions. Therefore the reason given by the learned Judge cannot hold good. O. P. 826 of 1964 does not include any of the assets belonging to the deceased situated beyond the limits of the State. S.264 of the Succession Act prescribes that the District Judge shall have jurisdiction in granting and revoking probates and letters of administration in all cases within his District and under S.270 of the Succession Act the elements that are necessary to confer jurisdiction to the District Judge are that the testator or the intestate as the case may be at the time of his death had a fixed place of abode or any property movable or immovable within the jurisdiction of the Judge. There is no doubt that in view of the allegations in O. P. 826 of 1964 the District Judge of Ernakulam has got jurisdiction to entertain the application and any probate granted by him of Ex. D 1 will have effect on the assets scheduled to the petition. The question then will be whether the High Court has got jurisdiction to receive and dispose of O. P. 826 of 1964. In this connection we have to refer to S.300 of the Succession Act which is in these terms: "300. (1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge. In this connection we have to refer to S.300 of the Succession Act which is in these terms: "300. (1) The High Court shall have concurrent jurisdiction with the District Judge in the exercise of all the powers hereby conferred upon the District Judge. (2) Except in cases to which S.57 applies no High Court, in exercise of the concurrent jurisdiction hereby conferred over any local area beyond the limits of the towns of Calcutta, Madras and Bombay shall, where the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, receive applications for probate or letters of administration until the State Government has, by a notification in the Official Gazette, authorised it so to do." Sub-s.(2) of S.300 has no application to the case before us. We are therefore concerned with the effect of sub-s.(1) of S.300 of the Succession Act. A plain reading of this provision makes it clear that every High Court shall have the same powers which the District Judge has in the matter of grant of probate or letters of administration. S.3 sub-s.(3) of the Kerala High Court Act 1958 (Act 5 of 1959), empowers a single Judge of the High Court to exercise original jurisdiction under any law for the time being in force. It therefore follows that the trial of O. P. 826 of 1964 by this Court is not in any way vitiated by lack of jurisdiction. The only contention raised before the learned Judge was that the petition should be returned for presentation to the District Court not because it is not triable by the learned Judge under any of the provisions of the Succession Act but it is also triable by the District Judge, Ernakulam. Such a contention was raised only at the time of the arguments. In these circumstances we are of the view that the said contention was rightly overruled by the learned Judge. 10. Point-2 -- It is a fact that the petitioner in O. P. 705 of 1964 is not a party in O. P. 826 of 1964. The subject matter of the two petitions is totally different. The petitioner in O.P. 826 of 1964 and her daughter Viju have filed objections in O. P. 705 of 1964 to the grant of probate of Ex. P 1. The parties to the three petitions are not the same. The subject matter of the two petitions is totally different. The petitioner in O.P. 826 of 1964 and her daughter Viju have filed objections in O. P. 705 of 1964 to the grant of probate of Ex. P 1. The parties to the three petitions are not the same. The petitioner in .O.P. 705 of 1964 and the petitioner in O. P. 826 of 1964 are not parties to O. P. 1479 of 1963 and they did not also enter any caveat therein followed by affidavits or objections. Ammu and Viju filed C. M. P. 1378 of 1965 in O. P. 705 of 1964 praying for joint trial of the three original petitions and for taking common evidence therein. There is no prayer for consolidation as such. The petitioner in O. P. 705 of 1964 filed his objections to C. M. P. 1378 of 1965 on 10-3-1965. On the same day the learned Judge passed the following Order: "The prayer in this petition is allowed." In the order sheet maintained by the learned Judge in O. P. 705 of 1964, we find the following order on 22-3-1965: "Joint enquiry with O. P. 1479 of 1963 and O. P. 826 of 1964 by consent of parties. Evidence is being recorded in this and that is treated as common evidence in the other O. Ps. also. Ex. P 1 marked, Pw. 1 examined in part. Adjourned to 23-2-1965." The statement contained in the order extracted above that joint trial was with the consent of parties is not correct in view of the order allowing C. M. P. 1378 of 1965 after overruling the objections filed by the petitioner in O. P. 705 of 1964. It is therefore not possible to conclude that the parties agreed to the joint trial. There is no provision in the Indian Succession Act which confers upon the court the power to consolidate proceedings under the Act. There is no provision in the Civil Procedure Code also. But a court has got inherent power in the interests of justice to order joint trial or to order consolidation of proceedings in appropriate cases. But there is little in common in the three Original Petitions. The nature of the evidence to prove the due execution of the wills involved in O. P. 705 of 1964 and O. P. 826 of 1964 is totally different. But there is little in common in the three Original Petitions. The nature of the evidence to prove the due execution of the wills involved in O. P. 705 of 1964 and O. P. 826 of 1964 is totally different. No consolidation or joint trial is therefore possible without the consent of the parties to the petitions. The witnesses examined to prove the wills are also different. The learned counsel for the respondents pointed out that the order of the learned Judge dated 10-3-1965 is not for consolidation but only for joint trial. But apart from the direction for joint trial, the learned Judge allowed common evidence for all the three petitions to be adduced in O. P. 705 of 1964. This is illegal. The counsel for the respondents was unable to refer to any provision of law authorising the court to pass such an order, when the parties are not identical in all the petitions. All the petitions have also been disposed of by a common judgment. A reading of the judgment would give the impression that the conclusions of the learned Judge in O. P. 826 of 1964 have influenced him a good deal in deciding the questions that arise in O. P. 705 of 1964. It seems to us therefore that the procedure adopted by the learned Judge in trying these petitions jointly is illegal. 11. Point-3 -- This relates to the omission on the part of the learned Judge to frame issues in the petitions. No issues have been framed in any of the original petitions and the parties actually went to trial even before settling issues that arise out of the pleadings. It is pointed out for the appellants that the points for determination formulated in the judgment were framed by the learned Judge only to facilitate the writing of the judgment, after conclusion of the trial and after the arguments were completed. The appellants, no doubt, submitted to such a trial and never complained before the learned Judge about the omission to frame issues except at the time of the argument. The appellants, no doubt, submitted to such a trial and never complained before the learned Judge about the omission to frame issues except at the time of the argument. The learned Judge even then did not settle the issues but brushed aside the complaint observing that all the parties were fully aware of the several points on which they had to adduce evidence, complete evidence was also adduced by them and no prejudice had been caused to any of them because of the omission to frame issues. On this aspect of the case the learned Judge would observe that the counsel who appeared before him on behalf of the appellants prayed for dismissal of the petitions because of the failure to raise issues. It was pointed out by Mr. Antony Lobo and Mr. Easwara Iyer who had also appeared before the trial Judge that they never advanced any such contention but they pointed out that the omission to raise issues has prejudiced their clients in the trial of the case. At any rate, there was no plea before us for a total dismissal of the petitions because of the defect to frame issues. We may also mention that it is legally impossible to advance such a contention before any court. The effect of S.295 and 268 already extracted in this judgment is to declare that contentious probate proceeding is a regular suit and that the provisions of the Civil Procedure Code, 1908 so far as the circumstances of the case permit will apply. Sanderson, C. J. in Pran Kumar v. Darpahari Pal AIR 1927 Calcutta 281 at 282. explained the nature of the proceedings in connection with an application for grant of probate in these words: "There is no doubt that in such proceedings the question of title to property does not arise. The question is whether one or other of the parties to the proceedings in entitled to represent the estate. But, when the proceedings are contested, as in this case, the Court has to try an issue which arises between the parties and which involves the question whether the plaintiff is entitled to have a grant of probate or whether the person, who has entered a caveat and who has become a defendant, has substantiated and proved the defence which he has set up. I refer to a passage in Sir John Woodroffe's book on the Code of Civil Procedure, 2nd Edition, at page 44, which is as follows: Contentious proceedings for the grant of probate were held to be a suit, as an order granting probate, though spoken of in the Probate Act as an order, is for the purposes of the Code a decree, because, so far as the Court granting the probate is concerned, it decides not only a right to have the probate granted, but also the defence set up against the grant. The learned Chief Justice in the case of In the Goods of Colonel John Shelton, deceased, (1846) Montrion's Rep. 167 at page 173, described probate proceedings as follows: "A contest for probate is a suit to try the question of testacy or intestacy, and that administration is a matter of civil right. In my opinion, those passages correctly describe the nature of the proceedings for the grant of probate which are contested and, in the ordinary acceptation of the word, there is no doubt that proceedings for the grant of probate, which are contested, would come within the meaning of the word 'suit." It is therefore not possible to contend that framing of issues is not obligatory in a contentious probate proceeding. O.14 C.P.C. will therefore apply to such proceedings in view of S.268 of the Succession Act. O.14 R.1, sub-r.(5), C. P. C. provides that the court shall frame and record the issues on which the right decision of the case appears to depend, after going through the pleadings and ascertaining the material propositions of law and fact on which the parties are at variance. The framing of issues is therefore necessary for a right decision of the application for probate. As was pointed out by their Lordships of the Supreme Court in J. K. Iron & Steel Co. v Mazdoor Union AIR 1956 SC 231 "the only point of requiring pleadings and issues is to ascertain the real dispute between the parties, to narrow the area of conflict and to see just where the two sides differ", so that no party is taken by surprise at the trial. v Mazdoor Union AIR 1956 SC 231 "the only point of requiring pleadings and issues is to ascertain the real dispute between the parties, to narrow the area of conflict and to see just where the two sides differ", so that no party is taken by surprise at the trial. This purpose of settling issues or the points for decision is to enable both sides to be fully alive to the questions to be argued in order that they may have an opportunity of bringing forward such evidence as may be appropriate to the issues and it is further intended as a check on unnecessary evidence and unnecessary arguments. The framing of issues is important and necessary in the trial and decision of a case for the following reasons: (1) It is the issues settled and not the pleadings that guide the parties on the question of adducing evidence. Thus, when a point has been the subject of an issue, the parties will not be heard to say that the point was not disputed and so required no proof. (2) The court cannot refuse to decide a point on which an issue has been framed and evidence given by the parties even if the point involved is not mentioned in the pleadings. Conversely, the Court should not decide a suit on a matter on which no issue has been raised, and (3) If the case goes in appeal it must be dealt with by the Appellate Court on the issues settled for trial and not on a point on which there is no issue. It is, therefore, essential to the right decision of a case that appropriate issues should be framed and tried. Though the duty to frame issues primarily rests with the trial Judge, it is also the responsibility of the counsel to assist the court in settling proper and necessary issues. Sub-r.3 of O.14 declares every material proposition affirmed by one party and denied by the other, shall form the subject of a distinct issue. It is open to the court under O.14 R.4 C.P.C. to examine the parties or witnesses or compel the production of any document to ascertain with precision the contentions of the parties to enable the framing of issues . Such proceedings are intended to enable the court to frame issues which are sufficiently expressive of the real points in dispute between the parties. Such proceedings are intended to enable the court to frame issues which are sufficiently expressive of the real points in dispute between the parties. The importance of framing of issues before commencement of the trial cannot at all be minimised. We are therefore of the view that a court proceeding to the final hearing of a case without framing issues commits a very grave irregularity in the conduct of the trial calculated to affect the merits of the case. The failure to raise issues will normally necessitate a remand of the suit for fresh trial. In case the trial court has omitted to frame or try any issue it is open to the appellate court to act also under O.41 R.5 C.P.C. But it was argued on behalf of the respondents that no prejudice has been caused to the appellants because of the omission to frame issues as it has not affected the merits of the decision under appeal and the parties have adduced the necessary evidence on the questions involved. In support of their contention the learned counsel for the respondents relied on the decisions of the Supreme Court in Kameswaramtna v Subba Rao and Kunju Kesavan v. M. M. Philip AIR 1964 SC 164 . In Mussumat Matna v. Syud Fuzl Rub 13 Moore's Ind. Appl. 573 at 582 where there was a total failure to fix the issues to be tried, their Lordships of the Privy Council said: "In this case the omission to raise the issues was brought before the notice of the appellate Court; the appellate Court expressed its regret, and their Lordships are glad to observe that it did express its regret that the Principal Sudder Ameen had omitted to settle the issues. The Court, however, nevertheless conceived that it was not under any positive obligation to remand the case; but seeing that the parties had gone to trial knowing what the real question between them was, that the evidence had been taken, and that the conclusion had been in the opinion of the appellate Court correctly drawn from that evidence, they thought it within their competence to affirm that decision without sending the case back for a retrial. Their Lordships sitting here are not prepared to say that the Court had not power to do so under the 354th section of the Civil Procedure Code. Their Lordships sitting here are not prepared to say that the Court had not power to do so under the 354th section of the Civil Procedure Code. At all events, it appears to their Lordships that there is nothing in the Code which made it imperative upon the appellate Court, or now makes it imperative upon their Lordships, to yield to that objection, and, therefore, fully concurring in the observations made by the appellate Court that it was the duty of the Judge to settle the issues, and that it was much to be regretted that he omitted to settle those issues, they still think that, under all the circumstances of the case, substantial justice having been done, there has not been that fatal mistrial of the cause which vitiates all the proceedings and renders a new trial necessary. Their Lordships, in coming to this conclusion, have had regard to the circumstance that no objection seems to have been taken in the Court below to dealing with the case without the settlement of the issues. If the objection had been taken, their Lordships think that the Appellant would have stood on higher grounds, and it would then have been very difficult to say that a trial proceeding in the face of the objection could be held to be regular for any purpose. They do not, however, mean to affirm that mere waiver, or rather the omission to take the objection, is in all cases sufficient to purge the irregularity. They are of opinion, that if it had appeared that substantial justice had not been done, the objection might well have been taken when it was taken before the appellate court, and when taken ought to have prevailed. But being of opinion that there has not in this case been a failure of justice in consequence of the omission to settle the issues, their Lordships are not prepared to send it back for further litigation, and they must, therefore, advise Her Majesty to dismiss the appeal with costs." In the two decisions of the Supreme Court cited above, there was not any complete omission to frame issues. Yet Hidayathulla, J. observed in Kameswaramma v Subba Rao AIR 1963 SC 884 , "No doubt, no issue was framed, and the one, which was framed, could have been more elaborate; but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings." And the same learned Judge observed thus in Kunju Kesavan v M. M. Philip AIR 1964 SC 164 : "The parties went to trial , fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mistrial sufficient to vitiate the decision." 12. Apart from the above, S.99 of the C. P. C read with O.42A, C.P.C. which governs the appeals before us provides that no decree shall be reversed or substantially varied, nor shall any case be remanded, in appeal on account of any irregularity in the proceedings not affecting the merits of the case. We are therefore of the view that mere omission to frame issues is not fatal in the absence of failure of justice and cannot by itself be a ground to set aside the decision under appeal and remand the case. But the learned counsel for the appellants contended that on account of the failure to frame issues there has been failure of justice, the parties could not know on whom the burden of proof lay, and they were seriously handicapped in marshalling the evidence and in focussing attention on the points at issue. It was also submitted that the absence of issues has resulted in a lot of irrelevant evidence, quite foreign to the case being adduced thereby prejudicing the case of the appellants. There is much to be said in favour of the contention of the appellants. We shall discuss this aspect in some detail, when we come to the close of the judgment. 13. Before considering the several contentions raised by the different parties on the merits of their claims we shall now state the conclusions of the learned Judge on the genuineness of Exs. We shall discuss this aspect in some detail, when we come to the close of the judgment. 13. Before considering the several contentions raised by the different parties on the merits of their claims we shall now state the conclusions of the learned Judge on the genuineness of Exs. D 2, D l and P l in his own words. The learned Judge said: "Thus, my conclusions are that the wills of 1954 and 1960, Exs. D 2 and D 1 respectively are both genuine; and that they are both properly proved. My further finding is that the will of 1961, Ex P 1 , is a forgery forged on a blank old paper containing Tony's signature. Again, since Ex. D 1 is the later of the two genuine wills, probate has to issue thereon." The first contention raised on behalf of the appellants can be stated thus. In O. P. 826 of 1964, there is no prayer for probate of Ex. D 2. The prayer is only for probating Ex. D 1. The learned Judge went wrong in probing into the question of the genuineness of Ex. D 2. His findings regarding the genuineness of Ex. D 1 and P 1 are coloured by his finding that Ex. D 2 is genuine. Since the petitioner in O. P. 705 of 1964 is not a party to O. P. 826 of 1964, even if the said petition is construed to be one for probating Ex. D 2, any evidence adduced regarding the genuineness of Exs. D 2 and D 1, or findings regarding the same cannot bind him and the question of genuineness of Ex. P 1 should have been dealt with quite independent of Exs. D 1 and D 2. The matter was left in a nebulous state until the question regarding the genuineness of Ex. D 2 formed on; of the points for determination framed by the learned Judge for the purpose of the judgment, after the arguments were concluded. Could it therefore be said that the contesting parties were aware that the question regarding the issue of probate of Ex. D 2 was to be decided in O. P. 826 of 1964. We have no hesitation to answer in the negative especially because there was not even an issue framed touching the matter, to focus the attention of the parties to it. D 2 was to be decided in O. P. 826 of 1964. We have no hesitation to answer in the negative especially because there was not even an issue framed touching the matter, to focus the attention of the parties to it. In O. P. 826 of 1964 the statutory verification required under S.281 of the Succession Act is no doubt by one of the attestors to Ex. D 8. Without a specific prayer for probate of Ex. D 2 we are unable to understand the significance of this Statutory verification. At the same time it has to be mentioned that there is no statutory verification by any of the attestors to Ex. D 1 . It is not necessary to mention here the reason for the absence of statutory verification by any of the attestors to Ex. D 1. 14. Except in cases governed by S.237, 238 and 239 of the Succession Act, S.276(1) thereof requires that the application for the issue of probate has to be made with the will annexed. But if it is not in the possession of the applicant, it should be stated in whose possession it is and the court will summon the person to produce it. This will be quite sufficient. But in such cases citation can be issued only after the original will is filed in court. The purpose of the issue of citation is for giving notice to persons interested in the estate of the deceased to enter caveat and one of the objects in entering caveat is to enable the caveator to make enquiries and obtain such information as will enable him to decide whether there are grounds to oppose the grant. This will be possible only when the original will is in court and not otherwise. The order dated 2-4-1964 directing the issue of citation can therefore be explained only on the basis that O. P. 826 of 1964 was taken to be an application for probate of Ex. D 1 will which was annexed to the petition and not of Ex. D 2. Otherwise the Court would not have ordered citation before the receipt in court of Ex. D 2. D 1 will which was annexed to the petition and not of Ex. D 2. Otherwise the Court would not have ordered citation before the receipt in court of Ex. D 2. The citation published in the Malayala Manorama of 9-4-1964, in the Government Gazette dated 21-4-1964 and in the court notice board is as follows: "Notice is hereby given that Srimathy C. Ammu Amma has filed the above petition (O. P. 826 of 1964) for grant of Probate of the will of deceased Sri A. A. D. Luiz of Perumanoor, Ernakulam, that the said petition has been fixed for hearing on 18th day of May, 1964 and that any person interested in the administration of the estate of the said deceased may appear before Honourable High Court on the said date, and see the proceedings before the grant of the Probate. Sd/- Advocate for the petitioner" The citation , it is unnecessary for us to point out should at least mention the date of the will which according to the petitioner for probate is the last will and testament of the testator. If citation is intended as notice regarding the application for probate, it serves no purpose if it does not disclose the date of the will forming the basis of the application. In the instant case even though the date of the will was not given in the citation, it did not even refer to any last will and testament of Sri A. A. D. Luiz. The draft for the issue of citation was filed by the petitioner in O. P. 826 of 1964. It is beyond our comprehension to imagine why the matter was eft in a state of doubt even at that stage. The wording is only "the above petition for grant of probate of the will of deceased A. A. D. Luiz". It speaks of only one will and if so it can only be Ex. D 1 and not Ex. D 2. 15. If at least issues had been framed and if there was an issue relating to the grant of Ex. D 2, it may be possible to argue that the appellants were not misled or prejudiced by the absence of a specific relief in O. P. 826 of 1964 for the Probate d of Ex. D 2 as well. The objection that Ex. D 2, it may be possible to argue that the appellants were not misled or prejudiced by the absence of a specific relief in O. P. 826 of 1964 for the Probate d of Ex. D 2 as well. The objection that Ex. D 2 is not the subject matter of O. P. 826 of 1964 was overruled by the learned Judge in the following words: "At this stage, it is again argued that the will of 1954, Ex. D 2, should not be probated in O. P. No. 826 of 1964. because the will sought to be probated in that petition is only the will of 1960, Ex. D 1, and that if this court proposes to consider and probate Ex. D 2, Stanley and Doris should be given further opportunity to show that the will is not genuine. Firstly, the prayer in O. P. No. 826 of 1964 is that if, for any reason, the will of 1960 becomes, impossible of probate, the will of 1954 be probated. Again, all parties including Stanley Doris and Dr. Chithalan produced all evidence to show the genuineness or otherwise of Ex. D 2 . After all that was done, this objection coming at the stage of arguments has obviously no substance or bona fides" The first ground given by the learned Judge that there is a prayer for the grant of probate of Ex. D 2 in O. P. 826 of 1964 is wrong and therefore cannot stand. The second ground also is equally unsustainable. The witnesses examined in connection with Ex. D 2 are Pws. 8 to 10, 12, 13, 15, 18 and Dws. 4 and 5. D. Ws. 4 and 5 are attestors to Ex. D 2 and they were examined on the side of Ammu. The other witnesses referred to were cited by Stanley and examined by him. It is therefore not correct to say that evidence was adduced regarding Ex. D 2 by either Doris or Dr. Chithalan. Further, Dr. Chithalan is not a party to O. P. 826 of 1964 and in O. P. 705 of 1964, he is only concerned with the grant of probate of Ex. P 1 and not with the grant of probate of Ex. D 1 and D 2. We are therefore not really concerned whether Dr. Chithalan was aware of the fact that the issue of probate of Ex. P 1 and not with the grant of probate of Ex. D 1 and D 2. We are therefore not really concerned whether Dr. Chithalan was aware of the fact that the issue of probate of Ex. D 2 was the subject matter of O. P. 826 of 1964. So long as Dr. Chithalan is not a party there, he is entitled to ignore the proceedings. The plea of the learned counsel for Ammu and Alfy was that although there was no specific prayer or specific issue relating to the grant of probate of Ex. D 2, the parties have gone to trial with the full knowledge that the said question was in issue and adduced evidence and therefore no prejudice was caused to them by a consideration of the same by the learned Judge. The usual rule is that a party will not be allowed any relief on a case not set up by him and cannot be allowed to set up a case at the trial stage inconsistent with the one alleged by him in his pleading. This rule will not be strictly enforced where there could be no surprise and the opposite party is not prejudiced thereby. But there is no scope at all for the application of this rule in an application for probate. As already stated Para.11 of O.P. 826 of 1964 only contains the allegations that if for any reason Ex. D 1 "becomes difficult of proof", Ammu is entitled to have probate of Ex. D 2 as there could be no dispute about the same. This averment is no substitute for a prayer for the issue of probate of Ex. D 2, in O. P. 826 of 1964. 16. In an application for probate there is no adjudication of title of the testator to any of the properties comprised in the will. In the words of P. B. Mukherji, J. in In the Goods of Nanda Lal Sett: AIR 1955 Calcutta 88. D 2, in O. P. 826 of 1964. 16. In an application for probate there is no adjudication of title of the testator to any of the properties comprised in the will. In the words of P. B. Mukherji, J. in In the Goods of Nanda Lal Sett: AIR 1955 Calcutta 88. "The probate of a will is in the nature of a certificate of the court stating first that the last will of the testator has been proved before the court and secondly, that the administration of the property and credit of the deceased and in any way concerning his will is granted to a particular individual, usually the executor in the will coupled with a record of an undertaking by such grantee of the probate to administer the estate and to make a full and true inventory of the property and credits of the deceased and exhibit the same in court within six months from the date of the grant or within such further time as the court may from time to time appoint and also to render to the court a true account of such property and credits within one year from such date or within such further time as the court may from time to time appoint. The probate does nothing more." According to Williams as stated in his book on the Law of Wills, 2nd Edn. (1961) pages 127-128, a grant of probate or Letters of Administration so long as it remains unrevoked is conclusive evidence of the will and its validity. Schedule VI of the Succession Act which prescribes the form of probate to be issued under S.289 shows that it has to be issued with reference to named will. In an application for probate it is therefore absolutely necessary that there should be claim for a probate of a particular will. A contention was advanced before us that Ex. D 1 does not revoke Ex. D 2 and Ammu is entitled to have probate of both Exs. D 1 and D 2 as they together represent the last will and testament of the deceased A. A. D. Luiz. It is unnecessary to express any opinion on this point, as the petitioner in O. P. 826 of 1964 did not claim any such relief. Here again it is a matter of intention depending on averment and proof. D 1 and D 2 as they together represent the last will and testament of the deceased A. A. D. Luiz. It is unnecessary to express any opinion on this point, as the petitioner in O. P. 826 of 1964 did not claim any such relief. Here again it is a matter of intention depending on averment and proof. Unless we import knowledge to both Stanley and Doris that the trial of 0. P. 826 of 1964, was for the grant of probate of Ex. D 2 as well, it is not possible to countenance the plea of the respondents. If the parties were under the impression that in the matter of issue of probate of Ex. D 1, the question regarding the genuineness of Ex. D 2 was also collaterally involved and some evidence was also let in by them on that basis, it will be insufficient to enter a finding in favour of the respondents. Looking at the whole matter, we are satisfied that the view of the learned Judge cannot be accepted. We are of opinion taking into account the relief claimed in O. P. 826 of 1964 and the mode of citation issued, the objectors understood the proceeding only as one relating to the issue of probate of Ex. D 1. The learned Judge is wrong in having considered the question of genuineness of Ex. D 2 in O. P. 826 of 1964. The finding on Ex. D 2 has affected the conclusions of the learned Judge on Exs. P 1 and D l. We therefore hold that O. P. 826 of 1964 is only for the issue of probate of Ex. D 1, the learned Judge was wrong in entering a finding on the genuineness of Ex. D 2, the said finding has materially affected the decision regarding Exs. D 1 and P 1; even if it is held that O. P. 826 of 1964 includes a prayer for the grant of probate of Ex. D 2, it will not bind the petitioner in O. P. 705 of 1964 and the finding on Ex. D 2, has materially affected the conclusions of the learned Judge on Ex. P 1. 17. The second contention raised on behalf of the appellants relates to the approach made by the learned Judge in deciding the question of the genuineness of Ex. P 1. D 2, has materially affected the conclusions of the learned Judge on Ex. P 1. 17. The second contention raised on behalf of the appellants relates to the approach made by the learned Judge in deciding the question of the genuineness of Ex. P 1. It has been argued by the counsel for the appellants that the appreciation by the learned Judge of the direct evidence on the due execution of Ex. P 1 is subordinated to and made to depend on his findings on the propriety of the bequests in Ex. P 1, in relation to those in Exs. D 2 and D 1 in favour of Viju and the nature of the attachment of Tony towards Ammu and Viju on the one hand and Stanley and Doris on the other even from 1955 and his prejudice towards Ex. P 1 in that it has cut down the legacies to Viju runs through the entire judgment and a reappraisal of the whole evidence on a proper and legal basis is necessary to render justice to their clients. The contention advanced by the learned counsel for the appellants cannot be ruled out as totally devoid of merit. It is absolutely clear from the judgment that the learned Judge has considered the direct evidence on the question of the genuineness of Ex. P 1 only in the light of his findings on the degree of Tony's relationship with Stanley, Doris, Ammu and Viju, on the correctness or otherwise of the reasons contained in Ex. P 1 for the bequests in favour of Doris, and on the improbability of the nature of the bequests in Ex. P 1 in relation to those created under Exs. D 2 and D 1. The learned Judge observed: "Then it is suggested that I consider first the will of 1961, and then alone the other wills. Here also I am inclined to take a different view, for the reasons that the will of 1954 comes from better custody than the other two wills. The former comes from the District Registry Office, Trichur, where a will admittedly deposited by Tony found its way; and the sources from which the other two wills come, namely the Luiz Hall and Ammu's tarwad house at Kallai, are certainly not so good as the source from which the will of 1954 comes. The former comes from the District Registry Office, Trichur, where a will admittedly deposited by Tony found its way; and the sources from which the other two wills come, namely the Luiz Hall and Ammu's tarwad house at Kallai, are certainly not so good as the source from which the will of 1954 comes. There fore I propose to consider the genuineness and proof of that will first." The above passage obviously shows that the learned Judge thought that it was necessary to consider which of the three wills produced in the case is more probable and natural. We have already stated that the question of the genuineness of Ex. D 2 is not a matter that should have been properly considered in O. P. 705 of 1964. The question whether Ex. P 1 is genuine or not will not depend upon the genuineness or otherwise of either Ex. D 2 or Ex. D 1 . It should entirely depend upon the credibility of the direct evidence furnished in regard to Ex. P 1. We are therefore satisfied that there is sufficient basis for the complaint of the appellants regarding the approach of the learned Judge to the consideration of the due execution of Ex. P 1. 18. Our view gains further support when we find the learned Judge prominently keeping before him the nature of the bequest in Ex. D 34 and in Ex. D 2 to hold that Ex. D 1 is more probable and to condemn Ex. P 1 as a very improbable will of Tony. The learned Judge observed: "Even in Ex. D 34 of 1945 when Viju was just three years of age and her relationship with the Luiz family was yet more or less a secret, an amount of one lakh of rupees was bequeathed to her; and the rest alone was to be taken by the Jesuit Catholic Mission, Calicut. It is admitted even by Stanley that the value of immovable properties has increased severalfold; and therefore, there is nothing surprising if Tony left his entire estate to Viju in his wills of 1954 and 1960, unless there is sufficient reason to think that he might have changed his mind. It is admitted even by Stanley that the value of immovable properties has increased severalfold; and therefore, there is nothing surprising if Tony left his entire estate to Viju in his wills of 1954 and 1960, unless there is sufficient reason to think that he might have changed his mind. I shall make my meaning clearer; at the prevailing prices in 1945, one lakh of rupees meant almost the entire estate of Tony and his subsequent bequest of the entire estate to Viju is not much of a departure from his earlier bequest. I may also add that there is no acceptable evidence to persuade me to think that there was any change of mind in Tony." It is patent that the approach made by the learned Judge is absolutely wrong. That apart, it is not a fact admitted by all the parties before Court, that Ex. D 34 is the will of Tony. Secondly, it is nobody's case that on the date of Ex. D34 the value of Tony's estate was only a lakh of rupees. Thirdly, any change of attitude in Tony towards Viju after the date of Exs. D 34 and D 2 is absolutely irrelevant for a decision of the question of the execution of Ex. P 1. 19. It will be worthwhile at this stage to recall the observations of the Privy Council in Harwood v Baker (1840) 3 Moore's P.C. Cases 282 at pp. 290 and 291, on the subject of unjust exclusion in wills. Their Lordships said: "The question which their Lordships propose to decide in this case, is not whether Mr. Baker (testator) knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the property of the disposition made by the Will is a matter of no importance. If he had not the capacity required, the property of the disposition made by the Will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity." In the case before us, there is no plea that on the date of Ex. P 1 Tony did not have the requisite testamentary capacity to execute Ex. P 1. The principle is beyond dispute that the onus is upon the party propounding a will and he must satisfy the court that the instrument so propounded is the last will of a free and capable testatory. If circumstances exist which excite the suspicion of the Court, it is his duty to remove such suspicion and to prove affirmatively that a testator knew and approved of the contents of the document; and it is only then that the onus is shifted on those impeaching the will to prove if there are other affirmative circumstances to detract from its legality. That this has been the state of the law since the decision in Barry v Butlin (1838) 2 Moore's P.C. Cases 480., cannot be disputed. The rules to be borne in mind whenever a will is in dispute are thus stated in Barry v Butlin. (1838) 2 Moore's P.C. Cases 480. "(1) The anus probandi lies in every case upon the party propounding a 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. (2) If a party writes or prepares a Will, under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true Will of the deceased." The above doctrine was extended by Lindley and Davey, L. JJ., in Tyrrell v Painton (1894) PD 151., in the following manner: "The rule in Barry v. Butlin, 2 Moo. P.C. 480, Fulton v. Andrew, Law Rep. P.C. 480, Fulton v. Andrew, Law Rep. 7 HL 448, and Brown v. Fisher, 63 LT 465, is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will." (Lindley, L.J.) "It must not be supposed that the principle in Barry v. Butlin, 2 Moo. P.C. 480, is confined to cases where the person who prepares the will is person who takes the benefit under it that is one state of things which raises a suspicion; but the principle is, that wherever a will is prepared under circumstances which raise a well grounded suspicion that it does not express the mind of the testator, the Court ought not to pronounce in favour of it unless that suspicion is removed." (Davey, L.J.) Lord Du Parcq pointed out in Harmes v Hinkson AIR 1946 PC 156 . that: "Those rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity." The judicial Committee of the Privy Council observed in Shunmugaroya Mudaliyar v Manikka Mudaliar (1909) 36 LR Indian Appeals 185. that the standard of proof to establish a will is not an absolute or perfect one, but such as will satisfy a prudent man. It is in the light of the above principles that the question of proof of a will has to be decided. 20. In this connection it is necessary to refer to the decisions of the Supreme Court brought to our notice by the learned counsel for the respondents. The first of these decisions is the one reported in H. Venkitachala v. B. N. Thimmajamma AIR 1959 SC 443 . 20. In this connection it is necessary to refer to the decisions of the Supreme Court brought to our notice by the learned counsel for the respondents. The first of these decisions is the one reported in H. Venkitachala v. B. N. Thimmajamma AIR 1959 SC 443 . Gajendragadkar, J., after an exhaustive review of the case law on the point, laid down the following principles for guidance: (1) A propounder of a will has to prove due and valid execution of the same, and if there are suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence; (2) A will has to be proved like any other document except as to the special requirement of attestation prescribed by S.63 of the Indian Succession Act. It would not idle in the case of proof of wills as in the case of other documents, to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters; (3) Even though there is an element of solemnity in the decision of the question whether the will propounded is the last will and testament of the deceased testator because of his non availability to prove the same, the Court in dealing with proof of wills will start on the same inquiry as in the case of proof of other documents ordinarily. When the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator and of the signature as required by law, courts would be justified in making a finding in favour of the testator. After stating the above principles, the learned Judge proceeded: "There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. After stating the above principles, the learned Judge proceeded: "There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas, circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasises that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive." The three other decisions of the Supreme Court placed before us, viz., Purnima Debi v Khagendra Narayan AIR 1962 SC 567 . Shashi Kumar v. Subodh Kumar AIR 1964 SC 529 , and Ramachandra v Champabai AIR 1965 SC 354. only restate the above propositions and it is therefore unnecessary to discuss them in detail. 21. The above decisions of the Supreme Court do not in any way support the procedure adopted by the learned Judge in considering the genuineness of Ex. P 1; nor have they in any way affected the principle of law laid down in Harwood v Baker (1840) 3 Moore's C. P. Cases 282 at pp. 290 and 291. already referred to by us. The proper way is therefore to proceed in the manner indicated by their Lordships of the Judicial Committee in Musammat Bulli Kunwar v Musammat Bhagirathi (1905) 9 CWN 649. 290 and 291. already referred to by us. The proper way is therefore to proceed in the manner indicated by their Lordships of the Judicial Committee in Musammat Bulli Kunwar v Musammat Bhagirathi (1905) 9 CWN 649. In that case the trial court found that the will was not the will of the testator and it was a forgery primarily from a consideration of I the contents of the will which the trial Judge considered so extra ordinary as to overbalance altogether the evidence of the witnesses who spoke to having been present and seen the testator sign the will and to having themselves signed the will as witnesses. The High Court set aside the judgment. In the appeal before the Privy Council Lord Davey observed thus: "The High Court set aside the judgment of the Subordinate Judge, and commented on it, severely, no doubt, but not, in their Lordship's, opinion, unjustly. The learned Judges think that the Subordinate Judge's method of procedure in discussing the question before him was an erroneous one, namely, first to make up his mind about the contents of the will and then to look at the positive evidence in favour of its execution from that standpoint. They have discussed at great length and have analysed the provisions of the will and the evidence of the witnesses who spoke in favour of the will. They have also discussed the grounds upon which it was alleged before them that the evidence of those witnesses ought not to be received, and the grounds on which the Subordinate Judge rejected it. Their Lordships are entirely satisfied with the manner in which the case has been dealt with in the judgment of the High Court, and they would be only repeating what the Judges of the High Court have expressed in lucid and felicitous language if they were to state their reasons for affirming that judgment." It will be useful in this connection to extract the pertinent observations of P. B. Mukharji, J. in Ajit Chandra v Akhil Chandra: AIR 1960 Bal. 551 at 535. "The will has been challenged on the ground that it is an unnatural will, because the testator prefers one son to others. On the question of unnatural and officious Will a Court of Probate has to act with great caution. 551 at 535. "The will has been challenged on the ground that it is an unnatural will, because the testator prefers one son to others. On the question of unnatural and officious Will a Court of Probate has to act with great caution. The testator who has full testamentary powers and a disposing mind cannot be dictated by the Court as to what is a fair and an unjust disposition. The Will is the Will of the testator and he has, under the law, the freedom to give his property to I whosoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once it is established that the testator was free and had a sound disposing mind, then it is no longer the duty of the Court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to the Court's own standards. Judged by that test, many a Will by a father depriving his sons would be unjust and indeed many a Will exhibits man's iniquity against his nearest and dearest relations and yet not on that ground alone have those Wills been declared by this Court invalid. Such wrongs, however grievous, are not for the temporal courts of justice to correct and are better left to Him who adjusts all wrongs and non justiciable iniquities, and under whose munificence the testator and the disinherited alike live and die." With great respect we accept the above proposition as correct statement ' of law. 22. If the evidence to prove the execution and the signature of the testator is precise enough the court is bound to accept the same. On the other hand, if there are discrepancies in the direct evidence or if there are circumstances disclosed by the direct evidence itself to throw some suspicion on the question of the execution of the will, it is open to the court to examine whether sufficient evidence is present to remove any such suspicion from the mind of the court. In Ghotey Narain Singh v Ratan Koer ILR 22 Calcutta 519. In Ghotey Narain Singh v Ratan Koer ILR 22 Calcutta 519. the will was disputed on the ground that the execution of the will itself was improbable because of certain circumstances though the intention to execute a will was admitted. Lord Watson observed: "The theory of improbability remains to be considered; and the first observation which their Lordships have to make is, that in order to prevail against such evidence as has been adduced by the respondent in this case, an improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, an impossibility." The position therefore is, first of all the direct or positive evidence regarding the execution of the will has to be considered and then if there are circumstances present to create suspicion, the court is bound to find out those circumstances and look for evidence for the purpose of deciding whether those suspicions have been removed. The process cannot in any way be reversed. It is not permissible to a court of probate to consider aliunde the terms of the will to consider whether they are generous or not, to consider whether the relations who had natural and legitimate claims on the testator's bounty have been cut off and then consider whether the will is forged or not with such preconceived ideas and refuse to grant probate of the will. We are therefore satisfied that the assessment of the direct evidence regarding the genuineness of Ex. P 1 is vitiated. 23. The third contention raised relates to the genuineness of Ex. P 1. To appreciate this we have necessarily to enumerate the grounds given by the learned Judge to hold that Ex. P 1 is a forgery. Here again we have to observe that throughout the entire judgment there is a mixing up of Exs. D 34, D 2, D 1 and P 1 exhibiting an anxiety to consider which of them could have been more probable and natural from the point of view of attachment of Tony towards the several parties before Court. So much so, it is impossible for us to come to the conclusion that the learned Judge has appreciated the evidence of Pw. 1 and Pw. 2 on its intrinsic merits and has discarded the same because he was convinced that there is something basically wrong in the evidence. So much so, it is impossible for us to come to the conclusion that the learned Judge has appreciated the evidence of Pw. 1 and Pw. 2 on its intrinsic merits and has discarded the same because he was convinced that there is something basically wrong in the evidence. We are satisfied that the learned Judge was so much obsessed by the bequests in favour of Doris under Ex. P 1, that his judgment was very much influenced by that opinion to start with, and it was in that background that he evaluated the evidence of P.W.I, and P.W.2 and found out reasons to disbelieve them. The learned Judge disbelieved P.Ws 1 and 2 on the following reasoning: "Considering the discrepancies in their evidence and their demeanour in the box, I have no hesitation in holding that these witnesses are deliberately perjuring in court and that they attested the will only after the death of Tony." The discrepancy pointed out in the judgment is, while P.W. 2 said that he was sitting to the right of P.W. 1 when he was attesting Ex. P 1, P.W.1 had stated that he was sitting to the right of P.W. 2. No other discrepancy has been mentioned by the learned Judge. The learned Judge has stated his impression about the demeanour of P.Ws 1 and 2 thus: "Throughout the examination of these two witnesses Stanley has been in court. The demeanour of these witnesses in the box has not impressed me. ................ Both the witnesses have been looking at Stanley sitting in court, and have been, as it were, taking inspiration from him to answer the questions. Considering the discrepancies in their evidence and their demeanour in the box, I have no hesitation in holding that these witnesses are deliberately perjuring in court and that they attested the will only after the death of Tony." The above passage was brought to our specific notice by the learned counsel for the respondents to impress upon us that we should not interfere with the opinion of the trial Judge regarding the credibility of P.Ws.1 and 2, based upon their demenour even assuming that the approach made by the learned Judge in appreciating the direct evidence regarding Ex. P 1 is wrong. P 1 is wrong. The submission on behalf of the respondents was that if P.Ws.1 and 2 are disbelieved, there is no other evidence to prove the execution of Ex. P 1 and the finding of the learned Judge should therefore be ' confirmed. Normally a court of appeal has to attach the greatest importance to what the trial court says about a witness whom it has examined and which advantage is not available to a court of appeal. The observations of the learned Judge came in for severe criticism in the hands of Sri. Lobo and Sri. Joseph Augustine, counsel for the appellants. It was pointed out by them that in so far as the learned Judge has not made a record of his impressions of these witnesses under O.18 R.12, C. P.C. at the time of the examination, his opinion is not entitled to any weight. 24. O.18 R.12, C.P.C. prescribes that the Court may record such remarks as it thinks material respecting the demeanour of any witness while under examination. In the deposition of P.Ws.1 and 2 we do not find any remarks made by the learned Judge about their demeanour. It is because the demeanour of a witness is an important factor in testing his credibility that the courts are empowered by the above provision in the C.P.C. to make a record of the same. The evidence of P.Ws. 1 and 2 was completed in March 1965. The judgment was pronounced only on 25.2.1966. The demeanour of witnesses in the witness box, no doubt, plays a most important role in testing their credibility. In P. Sankarareddi v P. Mahalakshmamma AIR 1922 PC 315 21, it was pointed out that when the question is whether the witness is speaking the truth or not, light is thrown upon it by the demeanour of that witness in the box by the manner in which he answers questions and by how he seems to be affected by the questions that are put to him. In this connection we were also reminded about the observations of the Privy Council in Velarshak v Standard Coal Company, AIR 1943 PC 159 wherein a note of caution is given to the appellate courts not to interfere ordinarily with the trial court's opinion as to the credibility of a witness based upon the demeanour. In this connection we were also reminded about the observations of the Privy Council in Velarshak v Standard Coal Company, AIR 1943 PC 159 wherein a note of caution is given to the appellate courts not to interfere ordinarily with the trial court's opinion as to the credibility of a witness based upon the demeanour. In the latter case their Lordships said at page 161 of the decision: "In their Lordships' opinion, the High Court on appeal was not justified in this case in taking a different view of the plaintiff's credibility from that adopted by the trial Judge. M. C. Nair J, enumerates a series of points upon which he bases his view that the plaintiff's evidence is such that reliance cannot be placed upon it, but they are just the sort of points as to which the only person who can affectively form an opinion and draw conclusions is the trial Judge who has the witness before him. He alone knows the demeanour of the witness; he alone can appreciate the manner in which the questions are answered, whether with honest candour or with doubtful plausibility, and whether after careful thought, or with reckless glibness. He alone could form a reliable opinion as to whether the plaintiff had emerged with credit from a cross examination, lasting the greater part of two days, which was to a great extent repetitions, and sometimes offensive." But the above decisions do not consider the legal effect of the remarks made by a trial Judge on the demeanour of the witnesses in the judgment without conforming to the provisions of O.18 R.12, C.P.C. If we go by the wording of the said rule, the remarks about the demeanour of a witness have to be recorded while the witness is under examination. That has not been done in the case before us. Again is it sufficient for the trial Judge to make a cryptic remark "the witness has not impressed me". The reason behind O.18 R.12, C.P.C. shows that the remarks to be made are not for the mere subjective satisfaction of the trial Judge but to appraise the appellate court also about the reasons for the conclusion of the trial Judge regarding the demeanour of witnesses. We are therefore deprived of the opportunity to know the reasons which induced the learned Judge to make the remark. We are therefore deprived of the opportunity to know the reasons which induced the learned Judge to make the remark. Further in the case before us the lapse of time between the conclusion of the examination of P.Ws.1 and 2 and the pronouncement of the judgment would detract very much from the weight of his observations more so in the absence of a contemporaneous record of the impressions gathered by him. If at least the direct evidence furnished by P.Ws. 1 and 2 has been appreciated by the trial Judge in a proper perspective and from a proper angle, his observations regarding their demeanour could have been taken into account. But when we are satisfied that the entire approach made by the learned Judge to the evidence of P.W.1 and P.W.2 is wholly wrong, to discard their evidence merely on the observation made by the learned judge will, to say the least, be a denial of justice. 25. The learned advocate appearing for the respondents relied on the decisions in Sitalakshmi v. Venkata Subramanian AIR 1930 PC 170 and in Mohansingh v Bhanwarlal AIR 1964 MP 137 , to show that the remark made by the Judge is entitled to weight even though there was no compliance with O.18 R.12, C.P.C. In Sitalakshmi v. Venkata Subramanian AIR 1930 PC 170 , the trial Judge rendered his decision within ten days after the final hearing and the decision was rendered partly on the demeanour of the plaintiff's witnesses, partly on the circumstances and partly on the improbability of the story given by them. In that case Lord Atkin said the burden is very heavy upon the party to show that the decision is wrong. It was therefore a case where the remarks were made I before the recollection of the Judge became dim. This decision cannot therefore help the respondents. In Mohansingh v Bhanwarlal AIR 1964 MP 137 , the observations are as follows: "The absence of a note with regard to the demeanour of a witness while he was giving evidence is wholly immaterial and does not preclude the trial judge from rejecting the evidence of that witness on the ground of his demeanour at the time of the writing of the judgment." The above dictum is based upon Sitalakshmi v Venktata Subrahmanian AIR 1930 PC 170 , already cited and cannot therefore be of any assistance to us. The judgment under appeal was pronounced a year after the conclusion of the examination of P.Ws. 1 and 2. It is therefore not possible for us with due deference to the learned Judge to attach much significance to his view regarding their demeanour. Secondly if any reason is gatherable for the observation of the learned Judge, the one stated in the judgment under appeal is that both P.W. 1 and P.W. 2 were looking at Stanley who was sitting in court and were 'as it were, taking inspiration from him for answering the questions'. Stanley who is a party to the proceedings has got a right to be present in court. Here again we have to observe that there is no contemporaneous record kept at the time of the examination of Pws. 1 and 2 about any of these matters. Had the learned Judge entertained any such suspicion he should have immediately asked Stanley to go out of the court or pulled up the witnesses. In the deposition of P.Ws. 1 and 2 we do not find any note to the effect that the counsel for Ammu and Alfy raised any objection to the presence of Stanley in court on the ground that he is the source of 'inspiration' to P.Ws.1 and 2 in giving answers. In such circumstances, it will be absolutely unfair to discard the evidence of P.Ws.1 and 2 on the ground mentioned by the Judge. An impression as to the demeanour of a witness ought not to be adopted by a trial judge without testing it against the whole of his evidence and it is open to the appellate court to find that the view of the trial Judge as to demeanour cannot outway the oral evidence of the witnesses if it is trustworthy. We would in this a connection usefully quote the striking observations of Lord Greens, M. R. in Yuill v. Yuill 1945 (1) All. ER 183 at 188 & 189 to the following effect: "We were reminded of certain well known observations in the House of Lords dealing with the position of an appellate court when the judgment of the trial judge has been based in whole or in part upon his opinion of the demeanour of witnesses. ER 183 at 188 & 189 to the following effect: "We were reminded of certain well known observations in the House of Lords dealing with the position of an appellate court when the judgment of the trial judge has been based in whole or in part upon his opinion of the demeanour of witnesses. It can, course, only be on the rarest occasions and in circumstances where the appellate court is convinced by the plainest considerations that it would be justified in finding that the trial judge had formed a wrong opinion. But when the court is so convinced it is, in my opinion, entitled and indeed bound to give effect to its conviction. It has never been laid down by the House of Lords that an appellate court has no power to take this course. Puisne judges would be the last persons to lay claim to infallibility, even in assessing the demeanour of a witness. The most experienced judge may, albeit rarely, be deceived by a clever Her or led to form an unfavourable opinion of an honest witness and may express his view that his demeanour was excellent or bad, as the case may be. Most experienced counsel can, I have no doubt, recall at least the case where this has happened to their knowledge. I may further point out that an impression as to the demeanour of a witness ought not to be adopted by a trial judge without testing it against the whole of the evidence of the witness in question. If it can be demonstrated to conviction that a witness whose demeanour has been praised by the trial judge has on some collateral matter deliberately given an untrue answer, the favourable view formed by the judge as to his demeanour must necessarily lose its value. There is one further consideration which is particularly relevant to the present case. A judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a judge who himself conducts the examination. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. If he takes the latter course he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. Unconsciously he deprives himself of the advantage of calm and dispassionate observation. It is further to be remarked, as everyone who has had experience of these matters knows, that the demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is when he is being questioned by counsel, particularly when the judge's examination is, as it was in the present case, prolonged and covers practically the whole of the crucial matters which are in issue." We are of the view that such impression formed by the Judge about Stanley being a source of inspiration to P.Ws. 1 & 2 when they were in the witness box should not have been allowed to interfere with his evaluation of their evidence and this has prejudiced the appellants. 26. In connection with Ex. P 1 the learned Judge has observed that Tony did not have that amount of confidence to appoint Dr. Chithalan as the executor therein and it is a circumstance against its genuineness. The conclusion of the learned Judge is based on the evidence of D.W. 12 that Dr. Chithalan was not one of the personal doctors of Tony. Ex. D 104 and D 105 are the accounts maintained by Tony. They contain an entry of payment of Rs. 25/- to Dr. Chithalan. On behalf of the appellants it was contended before the learned Judge that the said payment represents the fees paid to Dr. Chithalan for professional services rendered to Tony- D.W.18 explained this payment of Rs. 25/- as an amount paid by Tony to Dr. Chithalan for having treated one Rev. Fr. Noronah at the instance of Tony. On this aspect the learned Judge observed: "Alfy has explained that the amount was paid by Tony as a gift for treating a Rev. Fr. Noronah. It is also noteworthy that Dr. Chithalan has not entered the box to speak to his relationship with Tony; and therefore, I am inclined to think that Tony could not have sufficient confidence in Dr. Chithalan to have him appointed executor of his will bequeathing a fairly large estate." The learned counsel appearing for the appellants attacked the conclusion of the learned Judge on two grounds. Chithalan has not entered the box to speak to his relationship with Tony; and therefore, I am inclined to think that Tony could not have sufficient confidence in Dr. Chithalan to have him appointed executor of his will bequeathing a fairly large estate." The learned counsel appearing for the appellants attacked the conclusion of the learned Judge on two grounds. One was that the respondents did not have any case in the pleading that Dr. Chithalan is an absolute stranger to Tony and his appointment as executor is so improbable that it strikes at the genuineness of Ex. P 1. The second ground was that the inference by the learned Judge on account of the non examination of Dr. Chithalan is quite uncalled for. We are unable to appreciate the undue importance given by the learned Judge to the question whether Dr. Chithalan was the personal physician of Tony. It is not suggested that Tony was not a friend of Dr. Chithalan. There is considerable force in the contention of the appellants that the respondents did not have a case in the pleadings that it is not probable that Tony would have appointed Dr. Chithalan as an executor in his will. The learned Judge was therefore only attempting at speculation and to allow it to override the effect of direct evidence we have no doubt, will only lead to manifest injustice. On 25.8.1965 Dr. Chithalan filed C.M.P. 5758 of 1965 in O.P. 705 of 1964 for permission to get himself examined. The reason for this petition is stated to be the statement made by D.Ws. 4 and 18 in their evidence that Dr. Chithalan had nothing to do with Tony. The examination of D.Ws.4 and 18 was completed on 18.6.1965 and 23.7.1965. The defence evidence was closed only on 11.8.1965. On 25-8-1965 C.M.P. 5758 of 1965 was filed. Counter was filed to C.M.P. 5758 of 1965by Ammu on 27.8.1965. The only relevant objection is contained in Para.5 of the counter wherein it is stated that Dr. Chithalan should have got himself examined immediately after the close of the evidence of P.Ws.1 and 2 on 1.4.1965. The order of the learned Judge disallowing the examination of Dr. Chithalan is only because of this averment. We are not satisfied that the reason given by the learned Judge for disallowing C.M.P. 5758 of 1965 is correct. Chithalan should have got himself examined immediately after the close of the evidence of P.Ws.1 and 2 on 1.4.1965. The order of the learned Judge disallowing the examination of Dr. Chithalan is only because of this averment. We are not satisfied that the reason given by the learned Judge for disallowing C.M.P. 5758 of 1965 is correct. It was only disclosed in the evidence of D.Ws.4 and 18 that the defence has a case that Dr. Chithalan is not likely to be an executor in Tony's will. Even conceding for argument that this is a relevant circumstance, this aspect was never raised in the pleadings by the defence. Dr. Chithalan could not therefore be found fault with for not having adduced any evidence on this aspect immediately after the examination of P.Ws. 1 and 2. Dr. Chithalan being not in any way connected with the execution of Ex. P 1 is not a necessary witness for that purpose and did not therefore get himself examined at the early stages of the case. At that stage it was even submitted that it was not necessary to examine him. His examination was found necessary only after the examination of D.W. 4 and D.W. 18 was completed. We are of the view that as a general rule evidence should never be shut out. Opportunity should always be given to the parties to give evidence if the justice of the case acquires it. It does not matter if the original omission to give evidence was the result of carelessness or even negligence. The prayer to adduce evidence should as far as possible be allowed, if it can be done without injustice to the other side. There is no injustice if the other side can be compensated by costs. The procedure of court is only to aid the administration of justice and not to hamper it. On the other hand if the opposite side will be seriously prejudiced, by the late production of the evidence, the court will not exercise its discretion in favour of the party wanting to produce evidence. We do not think that any injustice would have been caused to the respondents by the court allowing the examination of Dr. Chithalan. C.M.P 5758 of 1965 was filed immediately after the defence evidence was closed. The refusal to allow the examination of Dr. We do not think that any injustice would have been caused to the respondents by the court allowing the examination of Dr. Chithalan. C.M.P 5758 of 1965 was filed immediately after the defence evidence was closed. The refusal to allow the examination of Dr. Chithalan and then to draw an adverse inference from such non examination is, in our view, unfair. We therefore hold that the learned Judge should have given an opportunity for the examination of Dr. Chithalan. In this connection it was pointed out on behalf of the appellants that D.W.4 has admitted that Dr. Chithalan is one of the very intimate friends of Tony and in a very close party given by Tony a few days before he died Dr. Chithalan was one of the invitees. According to the appellants, this is a circumstance which will show that the appointment of Dr. Chithalan as an executor is not such an improbability to throw any suspicion regarding Ex. P 1. This is what D.W.4 has stated in her evidence. "The piggery opened 2 or 3 days prior to the Christmas my father died. There was a function regarding that. I think there was a party at 8 p.m. Dr. Chithalan was also present in that party. For the party there were a few persons, only Dr. Chithalan and Mr. & Mrs. Osy Lopez and Shri A.A.D Luiz and myself." It is noteworthy that even Stanley and Alfy were not present. The complaint of the learned counsel for the appellants is that this evidence was obviously overlooked by the learned Judge and his criticism regarding the non examination of Dr. Chithalan is quite unjustified. We find considerable force in this submission. 27. We shall now take up the finding of the learned Judge that Ex. P 1 must have been prepared by Stanley on a paper containing the signature of Tony which the former must have got from Bhaskara Menon's office and that Ex. P 1 must have been put among the papers of Tony at least with the full connivance of D.W.14, if not by myself. The learned Judge would start his discussion stating the case of the parties from the pleadings thus: "The case of Ammu and Viju in their pleadings is that Ex.P 1 was planted among the records of Tony clandestinely by Stanley. The learned Judge would start his discussion stating the case of the parties from the pleadings thus: "The case of Ammu and Viju in their pleadings is that Ex.P 1 was planted among the records of Tony clandestinely by Stanley. The definite case of Alfy in his pleadings is that the will was planted there by Stanley with the help of the Receiver. Their further case is that the will was a rank forgery; and that it was forged on a blank paper containing Tony's signature which fell into the hands of Stanley." In O. P. 826 of 1964 filed on 25.3.1964 Ammu stated thus with reference to Ex. P 1 : "Sri. Joseph (D.W. 14) also took out from among the records on that day a folded paper purporting to be a will executed by the deceased on 23.12.1961. This document is a rank forgery and one clandestinely got inserted there." In the objections filed on 19.10.1964 by Ammu, Viju and Alfy in O. P. 705 of 1964, long after the filing of O. P. 826 of 1964, through the same advocate, the averment of Ammu and Viju is as follows: "It is submitted that the above said will is a rank forgery, brought into existence by Sri. S. P. Luiz, long after the death of the deceased. It has been apparently typed out in an old paper containing the signature of the deceased, which has fallen into the hands of Sri S.P. Luiz.......Sri. S.P. Luiz also got this document clandestinely planted in one of the boxes containing the documents of the deceased." And the averment of Alfy is to the following effect. "I submit that this document is a rank forgery brought into existence by Sri. Stanley P. Luiz, long after the death of the deceased. It has apparently been typed out in an old paper containing the signature of the deceased, which has been fallen into the hands of Sri. S.P. Luiz." It was pointed out on behalf of the appellants that there is no averment by the respondents that Ex. P 1 was prepared by Stanley on a paper containing the signature of Tony obtained from Mr. Bhaskara Menon's office, and there is no averment by Ammu and Viju that Ex. P 1 was inserted clandestinely by Stanley with the help of D.W. 14, and there is no averment by Alfy that Ex. P 1 was prepared by Stanley on a paper containing the signature of Tony obtained from Mr. Bhaskara Menon's office, and there is no averment by Ammu and Viju that Ex. P 1 was inserted clandestinely by Stanley with the help of D.W. 14, and there is no averment by Alfy that Ex. P 1 was planted in the box of Stanley. The counsel for the appellants further submitted that in O. P. 826 of 1964, there is no averment that the will was planted in the Luiz Hall by Stanley. It is not necessary I to pursue this matter except to point out that even the statement of the pleadings by the learned Judge is not quite accurate. 28. The finding that Stanley must have prepared Ex. P 1 on a paper containing the signature of Tony obtained from Bhaskara Menon's office is based only on the suggestion of the counsel who appeared for Ammu, Viju and Alfy. The learned Judge C observed: "The suggestion of Mr. Isaac that Stanley might have obtained a blank paper with Tony's signature from Mr. Bhaskara Manon's office cannot therefore be completely ruled out." The complaint on behalf of the appellants was that the learned Judge should not have acted upon the mere suggestion of the advocate when there is nothing in evidence I even to suggest that the respondents have any such case. The learned Judge has drawn the inference from Ex. D 96 and D 97 series that blank papers containing the signatures of Tony were available to Stanley. Ex. D 96 and D 97 series have been produced by D.W. 18. This can at best only show that papers containing the signatures of Tony were available with D. W. 18 and not with P. W. 19. The learned Judge has also taken it for granted that the signatures in Ex. D 96 and D 97 series are those of Tony. Ex. D 96 and D 97 series were not put to P.W.19 when he was in the box. In most of them there are two signatures in the same page and in some there are writings in Malayalam against the signatures showing that they were intended in connection with some proceedings against Tony. Ex. D 96 and D 97 series were not put to P.W.19 when he was in the box. In most of them there are two signatures in the same page and in some there are writings in Malayalam against the signatures showing that they were intended in connection with some proceedings against Tony. But apart from the question whether the findings of the learned Judge can be supported on the evidence on record 1 it was pointed out on behalf of Stanley that the case that he prepared Ex. P 1 on a blank paper containing Tony's signature obtained from Bhaskara Menon's office, that he inserted Ex. P 1 in the box in the Luiz Hall with the connivance of D.W. 14. that he won over D.Ws. 1 and 2 who are attestors to Ex. D 1 was not put to him by the counsel for Ammu, Viju and Alfy when he was examined in court. P.W. 19 was examined as a witness for the petitioner in O. P. 705 of 1964. After the examination in chief he was cross examined first on behalf of Ammu, and then on behalf of Doris. In the cross examination of P.W.19 on behalf of Ammu, the only suggestion was whether he had not obtained papers with signatures of Tony from advocate Govindankutty Menon, which was denied. In the cross examination of P.W. 19 by Sri. Lobo on behalf of Doris he stated thus: "I deny the suggestion of the other side that I entered into a criminal conspiracy with the receiver and planted a forged will among the papers of my late brother Tony. I deny the suggestion of the other side that I tampered with the attesting witnesses of 1960 will. I did not get round the attestors in Ex. P 1 and get their signatures thereto." Subsequent to the cross examination of P.W. 19 by Doris though a further opportunity was given to Ammu's counsel to cross examine him the counsel stated that he did not want to cross examine P.W. 19 further. This is recorded by the learned Judge thus: "Mr. Isaac does not want to cross examine regarding the other matters come out in the cross examination by Mr. Lobo because they are all covered by answers given by the witness in his chief examination." 29. This is recorded by the learned Judge thus: "Mr. Isaac does not want to cross examine regarding the other matters come out in the cross examination by Mr. Lobo because they are all covered by answers given by the witness in his chief examination." 29. It is therefore clear that the case against P.W.19 was not put to him on behalf of Ammu, Viju and Alfy. On the other hand, the only suggestion was whether he did not get blank papers containing signatures of Tony from the office of advocate Govindankutty Menon which the learned Judge also did not accept. The suggestion made by Sri. Isaac was also not put to P.W.19 when he was in the box. The learned counsel for Stanley therefore pointed out that in such circumstances the case of the respondents regarding Ex. P 1 should have been rejected. In support of his contention the learned counsel relied on the observations of Lord Herschell, L. C., and Lord Halsbury in a decision of the House of Lords reported in Browne v Dunn. (1893) 6 R 67 Lord Chancellor Herschell at page 70 of the report observed thus: "Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact, by some questions put in cross examination showing that that imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses." Lord Halsbury, at page 76 of the same report said: "My Lords, with regard to the manner in which the evidence was given in this case, I cannot too heartily express my concurrence with the Lord Chancellor as to the mode in which a trial should be conducted. To my mind nothing would be more absolutely unjust than not to cross examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to." Lord Halsbury at page 77 further observed: "My Lords, it seems to me that it would be a perfect outrage and violation of the proper conduct of a case at Nishi Prius if, after the learned counsel had declined to cross examine the witness upon that evidence, it is not to be taken as a fact that that witness did complain of the plaintiff's proceedings, that he did receive advise, that he went round to Mr. Dunn as a solicitor, and that he did sign that retainer, the whole case on the other side being that the retainer was a more counterfeit proceeding and not a genuine retainer at all." On the above principles the submission was that wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross examination, it must follow that he believed that the testimony given could not be disputed at all. This is certainly a matter which should have engaged the serious attention of the learned Judge. The omission to test the case of Ammu, Viju and Alfy in that light is a circumstance vitiating the appreciation of evidence. This is certainly a matter which should have engaged the serious attention of the learned Judge. The omission to test the case of Ammu, Viju and Alfy in that light is a circumstance vitiating the appreciation of evidence. We have to observe in this connection that there is also no definite finding by the learned Judge that Ex. P 1 was planted by Stanley in the Luiz Hall with the help of D. W. 14. 30. We are satisfied that the finding of the learned Judge about the genuineness of Ex. D 1 is very much influenced by his conclusion on Ex. D 2. Ex. D 1 is dated 2-12-1960 and the attestors to the same are D. Ws. 10 and 11. The learned Judge has also noted that the genuineness of Ex. D 1 is denied both by Stanley and Doris. But curiously enough there is no finding by the learned Judge that Ex. D 1 is genuine and was executed by Tony and the formalities prescribed by S.63 of the Indian Succession Act have been satisfied. D.Ws. 10 and 11 though cited by Ammu were declared hostile and were cross examined. The mere fact that a witness is declared hostile does not mean that he is not a witness of truth. The finding of the learned Judge regarding Ex. D 1 is as follows: "By comparison of the signature in these documents with the disputed signatures in Ex.D 1 one who runs can say that the signatures in Ex. D 1 are the signatures of these witnesses (D.Ws.10 and 11). Therefore I have no hesitation in holding that the signatures of the attesting witnesses in Ex. D 1 are those of D.Ws.10 and 11; and that they attested the document as required by law." The above shows that the learned Judge has only found that the signatures of D.Ws 10 and 11 in Ex. D 1 are genuine and one will have to look in vain for a finding regarding the execution of Ex. D 1 by Tony. D 1 are genuine and one will have to look in vain for a finding regarding the execution of Ex. D 1 by Tony. Regarding proof of attestation of the signature of a testator to a will the Supreme Court in Girja Datt v Gangotri AIR 1955 SC 346 , has laid down that the propounder of the testamentary document has to prove that the two witnesses saw the testator sign the will and they themselves signed the will in the presence of the testator. No doubt S.68 of the Evidence Act requires that an attesting witness should be called as a witness to prove due execution of the will. But when the attestors deny the attestation S.71 of the Evidence Act enables the propounder to adduce other evidence to prove due execution. Though the learned Judge has found that D.Ws. 10 and 11 attested the document as required by law, there is no evidence to support the conclusion of the learned Judge. The reasons for the conclusion reached are also not stated by the learned Judge. The absence of a finding on the question of genuineness of Ex. D 1 coupled with the absence of reasons to hold that S.63 of the Succession Act has been complied with is a serious defect in the judgment of the learned Judge. The details regarding the person who typed Ex. D 1, the place and time where it was typed, are all matters which have not been considered or discussed by the learned Judge. We are therefore Satisfied that the finding of the learned Judge relating to Ex. D 1 cannot be sustained. D.W.13 whose evidence we have no hesitation to accept does not speak to anything regarding the execution of Ex. D 1. He does not also corroborate D.W.1 when she swears that P.W. 19 asked her on the evening of 28.12.1962 whether Tony had left a . will. D.W.13 only deposed that on 28.12.1962 D.W. 1 told him that Tony had left a paper which she had kept at Kallai and she would get it down. D.W. 13 further said that Ex. D 1 was handed over to him by D.W.5 on the night of 1.1.1963. The evidence of D.W. 13 is only thus far and no further and is therefore of little assistance to find in favour of the execution of Ex. D 1. 31. Coming to Ex. D.W. 13 further said that Ex. D 1 was handed over to him by D.W.5 on the night of 1.1.1963. The evidence of D.W. 13 is only thus far and no further and is therefore of little assistance to find in favour of the execution of Ex. D 1. 31. Coming to Ex. D 2 we have already indicated that there is no scope in O.P. 826 of 1964 to consider about its genuineness. The learned Judge stated "that a Tony deposited a will in a sealed cover in the District Registry Office at Ernakulam is not disputed." We have to point out that none of the appellants have admitted the deposit of any will by Tony in the District Registrar's office at Ernakulam and the statement of the learned Judge is therefore not correct. Ex. D 2 is said to have been deposited on 20.8.1954 in the office of the District Registrar, Ernakulam enclosed in the cover Ex. D 17. The attestors to Ex. D 2 are D.Ws.5 and 6 and both of them are the first cousins of D.W.1. The appellants contended that the following circumstances which create suspicion about the genuineness of Ex. D 2 were overlooked by the learned Judge. (a) The omission on the part of D.W.5 to bring to the notice of the parties on 28.12.1962 or at least on 1.1.1963 about the deposit of Ex. D 2 by Tony. (b) The trace for Ex. D 2 began only after the production of Ex. P 1 in court by D.W.14. (c) The absence of evidence to show the production of the death certificate of Tony on 11.3.1964 in the District Registrar's office and the filing of application for search on 11.3.1964 by D.W.20. (d) The filing of Ex. D 77 on 13.3.1964 by D.W.20 a mere clerk of D.W.18 in the District Registrar's office Trichur, for search of Ex. D 2 and for opening the sealed cover. (e) The absence of any evidence to show how D W.20 came to know about the deposit of the will by Tony. (f) The several irregularities committed in the office of the District Registrar, Trichur, regarding the steps taken in pursuance to Ex.D 77. (g) The non production of the original of Ex. D 4 and D 5. (e) The absence of any evidence to show how D W.20 came to know about the deposit of the will by Tony. (f) The several irregularities committed in the office of the District Registrar, Trichur, regarding the steps taken in pursuance to Ex.D 77. (g) The non production of the original of Ex. D 4 and D 5. D.W.20 has deposed that he filed an application on 11.3.1964 signed by D.W. 18 along with the copy of the death certificate of Tony in the office of the District Registrar, Trichur, to conduct a search regarding the will deposited by To Tony. There is nothing in the evidence of D.W. 20 or for the matter of that in the case itself as to how he came to know about the deposit of a will in 1954 by Tony. Ex. D 3 also does not give any indication about the deposit of a will by Tony. There is a contention for the appellants that no death certificate of Tony could have been produced in the office of the District Registrar, Trichur on 11.3.1964 as alleged by D.W.20. According to them, no application at all was made by D.W. 20 for a copy of the death certificate of Tony. D.W. 18 made two applications for the purpose one on 2.12.1963 and the other on 12.3.1964 evidenced by Ex. P 14 and P 15. The copy of the death certificate in pursuance of Ex. P 14 prior to 11.3.1964 was produced in the Nedungadi Bank Ltd., Ernakulam, and the copy on the basis of Ex. P 15 was obtained only after 11.3.1964. D.W.18 would depose that the death certificate produced in the Nedungadi Bank Ltd., by Ammu and Viju was returned in December 1963 and since then this is certainly an aspect it was in his possession. There is nothing to substantiate this statement of D.W. 18. which should have engaged the attention of the learned Judge. It is significant that the application for search alleged to have been filed on 11.3.1964 by D.W. 20 in the District Registrar's office Trichur, and the copy of the death certificate of Tony filed in support of the same have not been got filed by the respondents though Ex. D 159 the receipt for payment of search fee of Re. It is significant that the application for search alleged to have been filed on 11.3.1964 by D.W. 20 in the District Registrar's office Trichur, and the copy of the death certificate of Tony filed in support of the same have not been got filed by the respondents though Ex. D 159 the receipt for payment of search fee of Re. 1.50 ps on 11.3.1964 has been filed D.W.9 was the Sub Registrar who was in charge of the duties of the District Registrar at Trichur on 13.3.1964 as the latter was on tour. He deposed to the filing of Ex. D 77 application on 13.3.1964 by D.W. 20 for the opening of the sealed cover and for registering the will. No question of registering the will at the instance of D. W. 20 can arise. According to D.W. 9, he opened the cover Ex. D 17 in which Ex. D 2 was enclosed and made arrangements to copy the document in book No. 3. S.45 of the Indian Registration Act says that the Registrar shall in the applicant's presence open the cover at the applicant's expense, cause the contents thereof to be copied into his book No. 3 and when such copy has been made, the Registrar shall redeposit the original will. A sum of Rs.6/- was also paid by D.W. 20 towards fees required by the rules for opening thereover and for copying the same. Ex. D 17 contains on its outside the number 1 of 1954. The particulars of the deposit of a will by Tony were recorded on page 69 of book 5, volume II copy of which is marked Ex. D 76. The fact of opening the sealed cover should be recorded at the time in column No. 13 of page 69 of book 5, volume II. But it was first recorded in columns 12 and 13 at page 71 which relates to the deposit of a will by some other person. That was scored off and entries were made in page 69. These facts are admitted by D.W. 9. He would swear that it was by a mistake that the entries were made first on page 71 of book 5, volume II and they were scored off and immediately the entries were made at page 69 of book 5, volume II. That was scored off and entries were made in page 69. These facts are admitted by D.W. 9. He would swear that it was by a mistake that the entries were made first on page 71 of book 5, volume II and they were scored off and immediately the entries were made at page 69 of book 5, volume II. The register number of the will shown at page 69 of book 5, volume II, is 1 of 1964. D.W.9 would swear that as soon as a sealed cover containing a will is opened a number has to be given immediately for the will. The number given to Ex. D 2 occurring at the top of the document is No. 22/III/64. According to D.W.9, it is this number that should have been shown at page 69 of volume II of book 5. But what is shown there is 1 of 1964. D.W.9 would depose 'I know that number to be entered in column 12 was the number of that document'. R.94(i) of the Registration Rules (Kerala) which is relevant in this connection reads thus: "94(i) When a sealed cover containing a will is opened under S.45 of the Act, the ' following endorsements shall be made on the will :- Having satisfied myself that the testator hereof is dead the sealed cover containing this will is opened on the application and in the presence of (signature and addition) this day of ..... 196 .... Signature of Registrar. This will has been copied in books 3 as No. ................. 19 .............. Volume .......... Pages. Date Seal Signature of Registrar." The first part of the endorsement has to be made by the District Registrar immediately the cover is opened and the second part of the endorsement has to be made on the will after it is copied in book No. 3. According to D.W. 9 the first portion of the endorsement was made on 13.3.1964. The will was copied in book No. 3 only on 22.3.1964. The second portion of the endorsement in Ex. D 2 was not made by the Registrar or the Sub Registrar in charge of the duties of the Registrar. The second portion of the endorsement is only to the following effect: "Registered as No. 22 of 1964 in Book III Vol. 34 pages 1 and 2. Dated this the 22nd day of March 1964. D 2 was not made by the Registrar or the Sub Registrar in charge of the duties of the Registrar. The second portion of the endorsement is only to the following effect: "Registered as No. 22 of 1964 in Book III Vol. 34 pages 1 and 2. Dated this the 22nd day of March 1964. Sd/- K. Kesavan, Sub Registrar." The figures 22 appearing in the two endorsements in the back of Ex. D 2 appears to be corrected. There is no explanation for the corrections. We do not find the significance of the word 'Registered' in the endorsement in Ex. D 2. The registration of a will has to be done only in accordance with S.40 and 41 of the Registration Act and in accordance with the rules framed under those provisions. Obviously it has not been done. If so we are unable to understand why it is said to have been registered. D.W.9 did not also depose that he was in charge of the District Registrar's duties on 22.3.1964. Ex. D 78 is the certified copy of Ex. D 2 given to D.W. 20 before 23.3.1964 in pursuance to Ex. D 77 even before it was copied in book 3. D. W.9. stated thus: "There was a time lapse between the first and the second endorsements. During this period the will was in an open cover without having been copied in book 3. Do you realise that this is highly irregular since the will must be copied in book 3 as soon as the cover is opened? (Q) There is some irregularity according to R.94." The date of issue of Ex. D 78 by the office of D.W. 9 is not shown there as required by the rules. The learned Judge has attached much importance to Ex. D 2 on the ground that it has come from proper custody in the sense that it was produced in court from the District Registrar's office at Trichur. According to the evidence available, D.W. 20 is the clerk of D.W. 18. There is no power of attorney in his favour executed by D.W. 18. He filed the application signed by D.W. 18 for search on 11.3.1964. There is no knowing how he or D.W.18 came to know about the existence of a will deposited by Tony in 1954. The will was opened on 13.3.1964 at the instance of D.W. 20. There is no power of attorney in his favour executed by D.W. 18. He filed the application signed by D.W. 18 for search on 11.3.1964. There is no knowing how he or D.W.18 came to know about the existence of a will deposited by Tony in 1954. The will was opened on 13.3.1964 at the instance of D.W. 20. It is not known how D.W. 20 was deputed for this work by D.W. 18. The opening of the will was wrongly recorded at page 71 and according to D.W.9 the necessary endorsement was made at page 69 immediately after the scoring off of the entry at page 71. The number of the will noted at page 69 is again a mistake. It is not suggested in the evidence of D.W.9 that until the copying of the will in book No.3 it was redeposited by the Registrar. It is admitted by him that the procedure adopted is in violation of R.94. Ex. D 78, which was given to D.W.20 was produced in court by Ammu along with O. P. 826 of 1964 on 25.3.1964. The above circumstances are pointed out by the learned counsel for the appellants to show that there is a cloud of suspicion behind Ex. D 2 and the importance given by the learned Judge to the proper custody of Ex.D 2 will, would lose such of its force if the suspicion is not removed. We cannot shut our eyes to the unusual interest taken by D.W. 20 in the matter of the search and the opening of the sealed cover in the office of the District Registrar, Trichur. Coupled with this are the several irregularities noted in the office of the District Registrar, Trichur, from 13.3.1964 to 23.3.1964. It is not the case of the respondents that D.W.20 applied for opening the sealed cover with the consent of Stanley and Doris. We do not want to express our final views on this matter except to point out that if we are to consider the genuineness of Ex. D 2, before we give any importance to the custody from which it came to court, we would expect a clearing up of the several suspicious circumstances that had occurred in the District Registrar's office, Trichur, between 11.3.1964 and 23.3.1964 regarding the opening of Ex. D 2, before we give any importance to the custody from which it came to court, we would expect a clearing up of the several suspicious circumstances that had occurred in the District Registrar's office, Trichur, between 11.3.1964 and 23.3.1964 regarding the opening of Ex. D 17, and look for evidence for removing such suspicion especially because all these have happened after the agreements come to among D.W. 1, D.W. 4, D.W. 18 and Dorothy. At this stage it is sufficient for our purpose, only to point out that there are no indications at all in the judgment of the learned judge to satisfy us that the above suspicions regarding Ex. D 2 have been removed. It is also necessary to note that even the learned Judge was not free from suspicion regarding Ex. D 2 in view of certain intrinsic evidence furnished by the document. The learned Judge observed thus: "The other circumstances pointed out are that the will is typed single line; that the margin left is very narrow, that Dorothy's name is spelt Macleod instead of Mcleod; and that both the attesting witnesses, D.Ws.5 and 6, are relations of Ammu and Viju. Probably these circumstances would have engendered some suspicion in the judicial mind, if there was any substance in the theory of substitution. As pointed out by Mr. Isaac, the narrow margin and the single line typing might have been due to the fact that the will might have been typed by Tony himself, who might not have been then an adopt at typing; and the wrong spelling of Dorothy's name might also have been due to the fact that Tony and Dorothy had been living separate for a fairly long time and that Tony was not corresponding with her." We are constrained to observe that we are not satisfied that the reasons given by the learned Judge are either sufficient or satisfactory to steer clear of the suspicion regarding Ex. D 2 as pointed out by him. The main ground on which the learned Judge has acted is only the suggestion of the learned counsel who appeared for Ammu Viju and Alfy. This suggestion of the counsel was not put to D.Ws. 1, 4 and 18 or even to P.W. 19. D 2 as pointed out by him. The main ground on which the learned Judge has acted is only the suggestion of the learned counsel who appeared for Ammu Viju and Alfy. This suggestion of the counsel was not put to D.Ws. 1, 4 and 18 or even to P.W. 19. In these circumstances, we are at a loss to understand how a mere suggestion by the learned counsel is sufficient to remove the suspicion in the mind of the learned Judge regarding Ex. D 2. It has, therefore, to be said that even on the genuineness of Ex.D 2 very vital factors bearing on the question have been overlooked by the learned Judge. 32. It remains for us now to deal only with two more matters raised by the appellants. The first relates to the trial of the applications before the learned Judge. The grounds in the petitions for special leave to the Supreme Court were pressed before us to point out that there was no fair trial of the petitions by the learned Judge. The substance of these grounds is that the learned Judge was very much prejudiced, even from the very beginning of the trial, against the appellants and this is disclosed by the attitude of the learned Judge towards certain witnesses especially PW. 1, P.W. 2, D.W 10 and D.W. 11 and the remarks made against them when they were in the witness box, the unwarranted remarks made by the learned Judge against Doris in the course . of the arguments after asking Stanley to leave the court hall for some time. It is significant that these grounds were raised before us by the same counsel who appeared for the appellants before the trial Judge. If we are to express any final opinion on these matters, we have to call for a report from the learned Judge on some of the allegations. It is no doubt true that the Supreme Court has given liberty to the appellants by their order dated 30.3.1967 in civil appeals 871 and 1003 of 1966 to raise these grounds before us. But we feel it unnecessary to express any opinion on these matters in view of the conclusion reached by us in these appeals. It is no doubt true that the Supreme Court has given liberty to the appellants by their order dated 30.3.1967 in civil appeals 871 and 1003 of 1966 to raise these grounds before us. But we feel it unnecessary to express any opinion on these matters in view of the conclusion reached by us in these appeals. At the same time we very much regret to observe that in the interests of the bar and the bench and for the better administration of Justice, it is better that such things are avoided. It is always highly desirable that proceedings in court are conducted without deviating in 1 any way from the well established principle of public policy that justice should not merely be done but should also appear to be done. A counsel owes as much a duty to his client as he owes to the court. A counsel knows his clients' brief much better that the court and nothing should be done by the court to effect the counsel from presenting his clients' cause without any fear. We cannot do better on this occasion than to quote the very expressive observations of Crampton J. in Reg v. O'Connell: (1844) 7 Ir LR 261, 312, 313 "This court in which we sit is a temple of justice; and the advocate at the bar, as well as the judge upon the Bench, are equally ministers in that temple. The object of all equally should be the attainment of justice; now justice is only to be reached through the ascertainment of the truth ..... but we are all ......... together concerned in this search for truth ........ (The advocate) gives to his client the benefit of his learning, his talents and his judgment; but .......... he never forgets what he owes to himself and to others. He will not knowingly misstate the law he will not wilfully misstate the facts, though it be to gain the cause for his client. He will ever bear in mind that if he be ....... retained and remunerated ........ for his .......... services, yet he has a prior and perpetual retainer on behalf of truth and justice." The members of the bar are expected to carry out the confidence reposed in them both by the bench and by their clients in a fearless manner. He will ever bear in mind that if he be ....... retained and remunerated ........ for his .......... services, yet he has a prior and perpetual retainer on behalf of truth and justice." The members of the bar are expected to carry out the confidence reposed in them both by the bench and by their clients in a fearless manner. There is a duty enjoined on the courts also to realise the responsibility of the bar towards their clients. Before parting with this part of the case, we think it necessary to quote the following observations of Chagla, C. J., in Yusuf H. Abhas v Bhagwandas P. Nangpal AIR 1949 Bombay 346, which had the full concurrence of Bhagwati, J. "Counsel has a duty to the Judge, but he has also a duty to himself and a duty to his client, and it is entirely unbefitting the dignity of the Bar for any counsel to permit himself to be made a sort of a pliable instrument in the hands of the Judge. It, is not for counsel merely to watch which way the wind is blowing and then to trim his sail according to that wind. Our Bar has very great traditions and I am sure that it would never be said of this Bar that a member of it did not do his duty by his client even when he felt that the Judge was for the time being against him. After all, counsel has got to realise that the case does not necessarily and with the Judge. There is higher Court and the higher court may take an entirely different view of the evidence that has been led from the one that has been taken by the Court below." We are sure that if the above principles are kept in view both by the bench and by the bar it will completely erase opportunities giving rise to such complaints and will bring about a healthy and more congenial atmosphere for the administration of justice to the satisfaction of the bar and the litigant public. 33. 33. Before we close this judgment it has to be mentioned that the counsel for the respondents submitted that even if there is any irregularity in the trial or any defect in the approach made by the learned Judge in the appreciation of evidence it is open to us to consider the whole evidence afresh and enter findings. The entire evidence was also placed before us by both sides. We cannot accede to the request of the respondents for the following reasons. Firstly, the defects pointed out are too many to be overlooked and some of them have caused even failure of justice. Secondly, a large mass of irrelevant and inadmissible evidence has been let in by all the parties. Thirdly, a grouping of the evidence on the several vital questions to be decided is not possible at all without framing the right issues in the case if justice to he parties has to be done, and fourthly, on account of the absence of issues, even important facts bearing on most of the questions have escaped the notice of the learned Judge. It is indeed a great handicap to a court of appeal to put itself in the position of the trial court and appreciate the evidence for the first time without the help of a proper judgment by the trial Judge. But after hearing the entire evidence it has enabled us to hold without any hesitation that by the omission to frame issues there has been a failure of justice. Most of the points on which findings have been entered by the learned Judge should have been the subject matter of issues and by the omission, parties have failed to adduce proper and relevant evidence on such matter. Some points discussed and found by the learned Judge on which some evidence was let in do not arise put of the pleadings. A discussion of the evidence regarding those points should not have been done unless there have been issues relating to them. We are also convinced that due to the absence of issues the parties were at a handicap in that their attention was not specifically focussed on the precise matters on which they had to adduce evidence. Even some of the relevant documentary and oral evidence having a bearing on the issues has not been referred to or considered by the learned judge. Even some of the relevant documentary and oral evidence having a bearing on the issues has not been referred to or considered by the learned judge. This is attributable only to the absence of issues. It is not necessary for us to point out instances to prove this. This is a case where the failure to frame issues has not only made the trial illegal but has caused serious prejudice to the parties. We are therefore convinced that considering the nature of questions involved and the value of the subject matter there has been a failure of justice because of the omission to frame issues. 34. To sum up, our conclusions are: (1) The joint trial of the original petitions and the disposal of the same by a common evidence and common judgment is illegal as the parties and the subject matter in dispute are not identical and as there was no consent for the same. (2) The failure to conform to the provisions of the Indian Succession Act, 1925, and the Code of Civil Procedure has rendered the trial of the petitions illegal and irregular. (3) The total omission to frame issues arising out of the pleadings is a grave illegality and it has occasioned failure of justice. (4)The question of genuineness of Ex. D 2 does not arise in O. P. 826 of 1964 as there is no prayer for probating the same and the finding thereon has very much influenced the conclusions of the learned Judge on the genuineness of Ex. P 1 and D 1. (5) Even if the genuineness of Ex. D 2 is relevant in O. P. 826 of 1964 the said finding should not have influenced the consideration of the genuineness of Ex. P 1 as Dr. Chithalan the petitioner in O. P. 705 of 1964 is not a party in O. P. 826 of 1964. (6) The approach made by the learned Judge in regard to the appreciation of the evidence on the question of genuineness of Ex. P 1, D 1 and D 2 is wrong and has caused serious prejudice to the parties. (1) There is no finding by the learned Judge about the genuineness of Ex. D 1 and the execution of the same by Tony. (8) The appreciation of the oral and the documentary evidence is also defective in several respects. P 1, D 1 and D 2 is wrong and has caused serious prejudice to the parties. (1) There is no finding by the learned Judge about the genuineness of Ex. D 1 and the execution of the same by Tony. (8) The appreciation of the oral and the documentary evidence is also defective in several respects. (9) The learned Judge should have granted an opportunity for the examination of Dr. Chithalan and should have also called for the two agreements spoken to by D.Ws.1, 4 and 18 which have got a great bearing in the appreciation of their evidence and should have considered the question of disclaimer arising therefrom. 35. In the above view a retrial of the petitions is necessary. We therefore allow the appeals and set aside the judgment and decree of the learned Judge and remand the petitions to the original side of this court for fresh trial and disposal in the light of the observations made above. It is open to the petitioner in O. P. 826 of 1964 if so advised to move an application before the trial Judge for amendment of the said petition to incorporate a relief for probating Ex. D 2 which will be considered and disposed of on the merits after hearing objections of all parties. Since the remand is occasioned owing to the several irregularities noted in the trial, we direct the parties to bear their costs till now. The future costs to be incurred will be provided for, in the fresh decree to be passed. The institution fee paid for the appeals will be refunded to the counsel appearing for the appellants.