Judgement This is an appeal under Section 384 of the Indian Succession Act and is directed against the order dated 11-1-1972 passed by the District Judge, U. A. D. Jorhat in Title Suit (Probate) No. 26 of 1969, in which he held that the appellant was not entitled to any probate of the will. 2. The appellants case is that one Kolai executed a will in his favour. The will was written by Gobinda Chandra Mahanta, P. W. 2, and attested by two witnesses both of whom were dead. The appellant further stated that the property mentioned in the will was given to him and one Puhita, wife of the testator. The testator died on 8-11-1952 leaving the two legatees and one Dom Bora, a non-applicant. Puhita also died in 1963 leaving no heir. In such circumstances the appellant applied for probate of the will. Before the institution of the present probate case the appellant had filed another probate case (Misc. Case No. 39/60) in the Court of the Subordinate Judge, Jorhat, but that case was dismissed for not depositing the necessary court-fee. 3. Notice of the present probate case was issued to the heirs of Dom Bora and one Haren Sarma who had purchased from Smt. Puhita her share of the land. Haren Sarma only contested the appellants application for probate. His case is that the will in question was not validly executed by Kolai. He further pleaded that the present probate case was barred by res judicata. He further pleaded that he purchased a part of the land from Puhita filed a case against the applicant in respect of the suit land and got a decree which was affirmed by the High Court. 4. It may be mentioned that the appellant filed the first case for probate, namely, Misc. Case No. 39 of 1960 and it was dismissed on 25-11-1961. Thereafter Haren Sarma aforesaid filed the civil suit, namely, Title Suit No. 31/60 and got a decree on 3-5-1962. An appeal, namely, First Appeal No. 30 of 1962 having been taken to the High Court, the decree was affirmed by the High Court on 29-8-1966. The appellant has filed the present probate case on 3-11-1967. 5. The learned District Judge framed the following issues : "1. Whether the alleged document is the Will executed by the testator and whether it is duly executed and attested ? 2. The appellant has filed the present probate case on 3-11-1967. 5. The learned District Judge framed the following issues : "1. Whether the alleged document is the Will executed by the testator and whether it is duly executed and attested ? 2. Whether the alleged Will is the last Will of the testator ? 3. Whether the suit is barred by res judicata for the dismissal of Misc. Probate Case No. 39/60 dismissed by the District Delegate, Jorhat ? 4. To what relief, the parties are entitled ?" After trial the learned District Judge rejected the application. Hence this appeal. 6. Mr. N. C. Das, learned counsel appearing for the appellant, submits that the findings of the learned District Judge that the applicant failed to prove that the Will was duly executed by Kolai and that it was his last will and that the present probate case was barred by res judicata, are erroneous. 7. Before we proceed to examine the facts of the case let us consider the law on the nature of evidence and the standard of proof in a probate case. The law has been extensively dealt with and laid down by the Supreme Court in the case of H. Venkatachala Iyengar v. B. N. Thimmajamma, reported in AIR 1959 SC 443 . Their Lordships have first posed the question: "What is the true legal position in the matter of proof of wills ?" Then their Lordships proceeded : "The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be ideal 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. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was, in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 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 propounders 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 testators 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 depositions 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 may not be the result of the testators 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 of 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 emphasizes 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. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal WN 895 : (AIR 1946 PC 156) "where a will is charged with suspicion, the 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. He is never required to close his mind to the truth". They do not demand from the Judge even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect." 8. Even a registered will does not conclusively prove the validity of a will, because even a registered will may have been obtained by fraud or undue influence or may have been the result of an uncapable mind. In the rase of Rani Purnima Debi v. Khagendra Narayan Deb. reported in AIR 1962 SC 567 , their Lordships of the Supreme Court have held: "There is no doubt that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. If the evidence as to registration on a close examination reveals that the registration was made in such a manner that it was brought home to the testator that the document of which he was admitting execution was a will disposing of his property and thereafter he admitted its execution and signed it in token thereof, the registration will dispel the doubt as to the genuineness of the will. But if the evidence as to registration shows that it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not bring home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as, for example, by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. It is not unknown that registration may take place without the executant really knowing what he was registering ............ It is not unknown that registration may take place without the executant really knowing what he was registering ............ Therefore, the mere fact of registration may not by itself be enough to dispel all suspicion that may attach to the execution and attestation of a will; though the fact that there has been registration would be an important circumstance in favour of the will being genuine if the evidence as to registration establishes that the testator admitted the execution of the will after knowing that it was a will the execution of which he was admitting." 9. In the light of the above observations of the Supreme Court let us now examine the facts of the present case. The applicant (P. W. 1) deposes that the testator Kolai Chutia was his uncle who died about 16/17 years ago. Puhita Chutiani lived with him. Kolai executed a will of his property 1 or 1½ years before his death. The will was written in the office of the petition writers attached to the Bar Library at Jorhat. P. W. 2. Gobinda Chandra Mahanta, wrote that will. It was signed by two witnesses both of whom were dead at the time of deposition. He (P. W. 1) has admitted that he had earlier applied for probate, but the case was dismissed for not depositing necessary courtfee. In cross-examination he admits that his brother Dumai, since dead and the testator Kolai lived with him in the same mess. He also admits that Kolai had executed a will earlier but it was cancelled after 2 or 3 days of the execution. It was suggested in cross-examination that the will was obtained by fraud. P. W. 2, Gobinda Chandra Mahanta, is the scribe of the will. His evidence is that he wrote the will at the instance of Kolai and he has proved the endorsement made by him under the thumb impression of the testator. He further deposes that one Badan Bordoloi and one Nasiruddin, both of whom have since died, were the attesting witnesses. He deposes that these two attesting witnesses were petition writers, and that Badan Bordoloi identified the testator in the office of the Sub-Registrar, but in the same breath he admits that he did not go to the office of the Sub-Registrar. Therefore, his evidence that the testator was identified by Badan Bordoloi is not acceptable. He deposes that these two attesting witnesses were petition writers, and that Badan Bordoloi identified the testator in the office of the Sub-Registrar, but in the same breath he admits that he did not go to the office of the Sub-Registrar. Therefore, his evidence that the testator was identified by Badan Bordoloi is not acceptable. In cross-examination P. W. 2 says that Kolai was not known to him before he wrote the will, nor did he know the appellant till the writing of the will. He says that Kanthi (appellant) told him that the testator was his uncle and that the woman who was with him was his aunt and that the business of P. W. 2 was to write the will in equal shares. The applicant examined no other witnesses. 10. The execution and registration of the will appear to have been effected in suspicious circumstances. It was the applicant who was taking a leading part in the matter. The will, Ext. 1. shows that the testator at the time was an old man of 93 years. The applicant took him as well as his wife, Puhita, to the office of the Sub-Registrar. He did not take any other people of his village into confidence and take any-body from his village to the office of the Sub-Registrar either to attest the execution of the will or to identify the testator. He solely relied on three professional petition writers. There is no evidence to show that the testator was in his proper mental capacity to execute the will and to show that he really understood that he executed the will and that he admitted the execution of the will before the Sub-Registrar or that he knew that the document he was going to register was a will. These suspicious circumstances have been strengthened by the following other circumstances : The first probate case (Misc. Case No. 39/60) was dismissed on 25-11-1961 as stated above. Thereafter the applicant took no step to obtain the probate for nearly six years. Meanwhile, the respondent had filed Title Suit No. 31/60 in respect of the suit land and got a decree which was affirmed by the High Court in 1966. Only after that, the present probate case was filed. Thereafter the applicant took no step to obtain the probate for nearly six years. Meanwhile, the respondent had filed Title Suit No. 31/60 in respect of the suit land and got a decree which was affirmed by the High Court in 1966. Only after that, the present probate case was filed. In these circumstances, the learned District Judge was justified in holding that the applicant failed to prove that the will was duly and validly executed by the alleged testator. 11. There is also no evidence to show that the will in question was the last will of the alleged testator. 12. The next submission of Mr. N. C. Das, learned counsel for the appellant, was that the finding of the learned District Judge that the present probate case was barred by res judicata, was erroneous; on the contrary Mr. C. K. Sarma Baruah, learned counsel appearing for the respondent No. 2, Haren Sarma, submits that the present probate case was barred both under Section 11 and Order 9, Rule 9 of the Code of Civil Procedure. But in view of my finding on the first point against the appellant it is not necessary to decide the second point. 13. In the result, this appeal fails and is dismissed. I, however, make no order as to costs. Appeal dismissed.