Netai Chand Mullick v. Biswanath Mullick — 1976 DIGILAW 255 (CAL)

Judgment These testamentary proceedings' were instituted for obtaining probate of disputed Will dated the 17th May, 1964, of one Saroj Kumari Dassi, deceased. The propounder Netai Chand Mullick claims to be the executor nominated in the said Will. Facts, some of which are matters of record and are not disputed are noted as follows. 2. Late Mohanlal Mullick the husband of Saroj Kumari, was a Hindu governed by the Dayabhaga. He died intestate on the 21st May, 1953, leaving him surviving his widow, Saroj Kumari and his three sons, Biswanath, Radhanath and Lokenath, as his legal heirs and representatives. Subasini Mullick, the married and the only daughter of Mohanlal, also survived her father. 3. On the 28th August, 1956, Biswanath, the eldest son of Mohanlal, filed a suit in this Court, being Partition Suit No. 2303 of 1956, claiming inter alia, partition and division of the assets and properties left by Mohanlal, Saroj Kumari, Radhanath and Lokenath were impleaded as defendants in that suit. On the 11th September, 1956, by consent of the parties, a Commissioner of Partition was appointed. The assets and properties of Mohanlal were duly divided and the Commissioner filed his Return on the 9th May, 1960. This Return was confirmed by a decree dated the 6th March, 1962 passed in the said partition suit. 4. The properties and assets, allotted to Saroj Kumari being one fourth share in the estate of her deceased husband Mohanlal consisted, inter alia, of the following :- (a) A portion of the family dwelling house at premises No.26/1E, Prosonno Kumar Tagore Street; (b) A portion of the premises No.6, Clive Row; (c) A portion of premises No.19C, Goabagan Street and (d) A portion of premises No.5A, Baishnab Sett Street. 5. It is not disputed that after the partition Saroj Kumari and her three sons, Biswanath, Radhanath and Lokenath continued to reside in the family dwelling house in Prosonno Kumar Tagore Street in their respective allotted portions. Since the partition, till her death, Saroj Kumari held and enjoyed the aforesaid properties absolutely and in her own right and the same are the subject matter of the disputed will. 6. It is common case that Saroj Kumari was illiterate and could not read or write English. She died on the 26th April, 1970 at her residence in the family dwelling house. At that time she was about 70 years old. 6. It is common case that Saroj Kumari was illiterate and could not read or write English. She died on the 26th April, 1970 at her residence in the family dwelling house. At that time she was about 70 years old. She had maintained fairly good health all along. 7. On the 20th May, 1970, within a month of the death of Saroj Kumari, Biswanath and Radhanath jointly filed a caveat in this Court before any Will came to light. 8. At that time it was alleged by Netai Chand Mullick, the executor, that the Will of Saroj Kumari was in her iron-safe, the keys whereof were being retained by Biswanath, Biswanath denied that he had such keys. He also denied any knowledge of the Will. 9. On an application made by the executor under S. 267 of the Indian Succession Act, an order was made on the 2nd September, 1970, inter alia, directing Biswanath to open the iron safe. Biswanath produced the keys and the safe was opened on the 19th September, 1970. A locked steel box was found inside the safe. As the keys of this box were not found, another order was obtained on the 22nd September, 1970 and the box was opened with the help of a locksmith. It was in this box that the document purporting to be the Will of Saroj Kumari was found. The execution of this document is signified by a cross mark, which is alleged to be that of Saroj Kumari. The document was registered on the 19th May, 1964. 10. The provisions of the purported will are, inter alia, that Netai Chand Mullick of No. 200, Bipin Behari Ganguly Street, Calcutta is nominated as the sole executor. The assets and properties of Saroj Kumari are disposed of as follows:- 11. The portions of the family dwelling house at prosonna Kumar Tagore Street, Calcutta and that of the premises No. 6, Clive Row, Calcutta belonging to Saroj Kumari are given absolutely to Lokenath. 12. The portion of the property being No. 19C, Goabagan Street is bequeathed to Balaram Mullick, the eldest son of Radhanath absolutely, subject, however, to the charge and payment of Estate Duty and Probate Duty: law charges and other testamentary expenses to be incurred for obtaining probate of the Will. 13. 12. The portion of the property being No. 19C, Goabagan Street is bequeathed to Balaram Mullick, the eldest son of Radhanath absolutely, subject, however, to the charge and payment of Estate Duty and Probate Duty: law charges and other testamentary expenses to be incurred for obtaining probate of the Will. 13. The portion of the property being No. 5A, Baishnab Sett Street, Calcutta is bequeathed to Subasini Mullick for her life and after her death to her son, Mahendra Mullick absolutely. 14. The rest and residue of her estate, both moveable and immoveable, have been bequeathed to Lokenath. 15. It is specifically directed' that the land and premises No. 19C, Goabagan Street would stand charged for payment of the taxes, duties and expenses as aforesaid. If the legatee, viz., Balaram, would personally pay the said taxes, duties and expenses through the executor, he would be entitled to the property absolutely. If such charges were not paid within a reasonable time, the executor would be entitled to sell or mortgage the property or any part thereof and pay the said duties, charges and expenses. The balance of the sale-proceeds, if any, remaining after such payment would be handed over to Balaram. If the said duties, charges and expenses were paid out of the money raised on mortgage, Balaram would get the property subject to such mortgage. Biswanath and Radhanath and apart from Balaram, their sons' and grandsons and heirs have been specifically excluded from any inheritance under the Will. 16. In the petition for the grant of Probate filed on the 7th January, 1971, with the original Will annexed, it is alleged that prior to her death, Saroj Kumari duly made, executed and published the said Will in writing in English bearing the date 17th May, 1964. She appointed Netai Chand as the sole executor of her will after obtaining his approval and the Will was duly registered in the Office of the Sub-Registrar of Assurances, Calcutta. 17. Biswanath and Radhanath have jointly affirmed an affidavit on the 2nd April 1971, in support of their caveat. They alleged that the purported Will of Saroj Kumari is a wholly unnatural and suspicious instrument. It is alleged that the three sons were living with their mother in joint food and mess at the family dwelling house and that she had equal love and affection for all of them. They alleged that the purported Will of Saroj Kumari is a wholly unnatural and suspicious instrument. It is alleged that the three sons were living with their mother in joint food and mess at the family dwelling house and that she had equal love and affection for all of them. She was also very affectionate towards her grandsons, Balaram and Kalachand, sons of Radhanath, who are the only male descendants of her husband. 18. After the death of Mohanlal in 1953, Saroj Kumari it is alleged confined herself mostly to the house and engaged herself in household work and the worship of the family deity. She had never mentioned or stated that she had executed any Will or expressed any intention to make any Will. Even a few days prior to her death, she stated in the presence of her children that it was her desire that her property should be taken in equal shares by all her children. 19. It is alleged that the bequest in favour of Balaram is illusory as the value of the property bequeathed would be hardly sufficient to cover the payment of the duties, charges and other expenses. The real beneficiary under the Will was Lokenath to the exclusion of all others. 20. It is alleged that Netai Chand, the executor appointed, is the brother of Lokenath's wife with whom Saroj Kumari had hardly any acquaintance. Nilmoni Dutta, who identified Saroj Kumari, was the brother-in-law of Lokenath's father-in-law. Nilmoni had nothing to do with the affairs of Saroj Kumari. It is alleged further that K.L. Dutta, the attesting witness was a complete stranger to the testatrix. 21. Dr. Pravat Chandra Sinha, the other attesting witness, was also a stranger. He was not the family physician and the caveators had never seen him. 22. It is alleged that it was easy for Lokenath to get a document executed or registered by the testatrix by inducement and/or by false representations as he was looking after the managing the property of the testatrix, viz., the portion of the premises No.6, Clive Row, Calcutta. 23. In connection with legal proceedings against her tenants pending in 1964, Saroj Kumari had to sign document. Lokenath and his wife had free access to the iron safe of Saroj Kumari during her lifetime and the disputed Will was kept in the steel box, within the safe, without her knowledge. 24. 23. In connection with legal proceedings against her tenants pending in 1964, Saroj Kumari had to sign document. Lokenath and his wife had free access to the iron safe of Saroj Kumari during her lifetime and the disputed Will was kept in the steel box, within the safe, without her knowledge. 24. It is alleged that the purported Will was a false document set up by Lokenath in fradulent collusion and conspiracy with his wife's relatives. 25. Saroj Kumari never resided at No. 200, Bipin Behari Ganguly Street as wrongly recorded in the Will. Before making the said 'Purported Will, she had no independent, disinterested or competent advice. 26. Subasini Mullick, the daughter of Saroj Kumari did not file any caveat, but filed an affidavit on the 2nd April, 1971, in opposition to the petition for probate. She alleges that the more valuable properties of Saroj Kumari were the share in premises No.6, Clive Row, Calcutta, and the share in the family dwelling house. According to her, Saroj Kumari had also left considerable jewellery, ornament and Government Securities valued at about Rs.15,000/-. 27. It is alleged that Saroj Kumari was equally affectionate to her sons and her daughter. As her husband Narendra Nath Mullick did not have sufficient income, Subasini received special care and attention, including gifts of food and other articles of necessity from her mother. Saroj Kumari always assured her that substantial provisions for her maintenance would be made. 28. She alleges further that Saroj Kumari had entrusted the management of her properties to her three sons in whom she reposed great confidences Narendranath, her son-in-law, entrusted with the collection of interest of the Government Promissory Notes. She alleges that the unnatural provisions of and the inequal dispositions in the alleged Will were inherently suspicious and it could not be the expression of her free and voluntary will. Alternatively it is alleged that the document was executed by Saroj Kumari under the undue influence and fraud practiced upon her by Lokenath, assisted by his father-in-law Beni Madhab and the relations and friends of the latter. 29. It is alleged that by the disputed Will, Lokenath has been given the best part of the property of Saroj Kumari. After meeting the charges, duties and expenses, Balaram will derive nothing from his legacy. 29. It is alleged that by the disputed Will, Lokenath has been given the best part of the property of Saroj Kumari. After meeting the charges, duties and expenses, Balaram will derive nothing from his legacy. She herself has been given a bustee land fetching a monthly income of Rs.270/- only, which was subject to Municipal Tax of Rs.140/- per month, but obligations had been imposed upon her for making certain periodical payments and presents (tattas) which would leave her little surplus. 30. Mr. K.L. Dutta, the Solicitor had prepared the document and was one of the attesting witnesses. He was a relation and/or close friend of Beni Madhab, and was a complete stranger to Saroj Kumari. Dr. Pravat Chandra Sinha, the other attesting witness was neither the family physician of Saroj Kumari nor had ever attended her. 31. The following issues were raised and settled at the trial:- 1. Did Sm. Saroj Kumari Dassi (deceased) duly execute the alleged wm in question ? 2. Was the alleged Will duly or at all registered as alleged in plaint? 3. Is the alleged Will the result of her own free will and volition? 4. To what relies if any, is the plaintiff entitled? (From para 32 to para 140 lordship discussed the evidence) 141. It was contended on behalf of the caveators that the disputed Will have been executed under suspicious circumstances and unless the propounder explained such suspicious circumstances to its complete satisfaction, the Court would not grant a Probate. 142. The learned Advocate General appearing for the caveators enumerated the various suspicious circumstances which according to him stood in the way of the propounder and disentitled him from obtaining probate. These are as follows:- (a) The dispositions under the said Will are unnatural and unfair. The main beneficiary under the Will is Lokenath the youngest son, to the virtual exclusion of the other children and all the grand children of the testatrix. (b) Lokenath, the principal beneficiary under the Will, had taken a leading part in the execution of the document along with his friends and relations. (c) The Will was purportedly executed at the residence of the father-in-law of Lokenath at No. 200, Bipin Behari Ganguly Street and not in the residence of the testatrix. 143. (b) Lokenath, the principal beneficiary under the Will, had taken a leading part in the execution of the document along with his friends and relations. (c) The Will was purportedly executed at the residence of the father-in-law of Lokenath at No. 200, Bipin Behari Ganguly Street and not in the residence of the testatrix. 143. The learned Advocate General contended that the witnesses called by the propounders and in particular the attesting witnesses were not disinterested and the propounder cannot dispel the suspicions raised with the aid of such evidence. 144. It was also contended, on behalf of the caveators that the provisions of the said Will were rather complicated. In particular, the provisions relating to the payment of duties, charges, and other expenses were of considerable complication. The testatrix being ililterate, unless it was satisfactorily proved that she was able to understand such complicated terms and provisions, it could not be held that the Will did represent her free and voluntary act and was a valid document. 145. Lastly, it was contended that there were serious lacuna in the evidence adduced on behalf of the propounder and irrespective of other considerations on this ground alone, the propounder was not entitled to a Probate. 146. It was contended on behalf of the propounder on the other hand that the testamentory and mental capacity of the testatrix was unchalleged and in fact admitted. Sufficient evidence had been adduced to explain the circumstances alleged to be suspicious. It was contended that the circumstances surrounding the execution of, the Will and in particular the conduct of the caveators after the death of Saroj Kumari established clearly that both Biswanath and Radhanath had knowledge that Saroj Kumari had left a valid Will. The Will duly produced from pooper custody has been sufficiently and conclusively proved by competent witnesses. 147. In support of his contentions the learned Advocate General cited a large number of decisions. I shall first consider the English decisions cited in their choronological order. The earliest English decision cited was Tyrrell v. Pinton & Anr. reported in 1894 P.D. at p. 151. In this case, two successive wills were sought to be propounded. One will was in the handwriting of a son of the principal beneficiary and was attested by a friend of the said son. The earliest English decision cited was Tyrrell v. Pinton & Anr. reported in 1894 P.D. at p. 151. In this case, two successive wills were sought to be propounded. One will was in the handwriting of a son of the principal beneficiary and was attested by a friend of the said son. No one else was present at the execution of this will which was kept in the custody of the son. The probate of this will was refused. Lindlay L.J. quoted the rule laid down in the parent case of Barry v. Butlin reported in 2 M.W.P.C. at p. 480 as follows:- "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". Lindley L.J. extended the above principle in the following language:- "The rule in Barry v. Butlin...................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................" Davy L.J. concurred with Lindley L.J. and stated the law as follows:- "It must not be supposed that the principle Barry v. Butlin is confined to cases where the person who prepares the will is the person who takes the benefit under it that is one state of things which raise 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". 148. The next English decision cited was in the case of Re. 'R' reported in (1950) 2 AER at p. 117. 148. The next English decision cited was in the case of Re. 'R' reported in (1950) 2 AER at p. 117. The real issue in this case was whether certain pleadings should be struck out as scandalous. In the judgment the principle laid down in the parent case of Barry v. Butlin (supra) was reiterated. 149. The last English decision cited was in the case of Wintle v. Nye reported in (1959) 1 WLR at p. 284. This is a decision of the House of Lords. The facts were that an elderly woman, unversed in business, signed a will and subsequently a codicil which were prepared by her solicitor. The solicitor was not her intimate friend but was named as the sale executor. In the will, provision had been made for various legacies and gifts after which the solicitor was to take the residue being the bulk of the estate. It was found that the will was complex and that the tesiatrix was not independently advised nor any copies of the document were given to her. The validity of the will and codicil was challenged on the ground that the testatrix did not know or approve of their contents. 150. The Trial Court with a jury granted a probate of this will and codicil which was upheld in the Court of Appeal. On further appeal the House of Lords held that the onus was on the solicitor to establish knowledge of and approval by the testatrix and that it was the duty of the Court to be vigilant and jealous in scrutinising the circumstances. The Judges summing up to the jury was found to be vitiated and the gift of residue in favour of the solicitor was set aside. 151. Next I go on to consider the Indian decisions cited by the Learned Advocate General in their chronological order. The earliest decision cited was Sajjad Husain & Anr. v. Wazir Ali, Khan & Ors. reported in 34 All at p. 455. The facts in this case were that an illiterate and pardanasin lady, separated from her husband, executed a deed purporting to create a wakf of almost her entire properties. By the said deed she also purported to appoint trustee. It was found that she acted without independent legal advice. reported in 34 All at p. 455. The facts in this case were that an illiterate and pardanasin lady, separated from her husband, executed a deed purporting to create a wakf of almost her entire properties. By the said deed she also purported to appoint trustee. It was found that she acted without independent legal advice. In a suit filed by the trustees for a declaration that the properties were wakf and for possession it was found by the trial court that the executant did not understand the contents of the deed or the effect thereof. The Privy Council held that as the trustees relied upon the deed the onus was on them to show that at the time of its execution the nature and effect of the deed had been explained to and understood by the executant. The findings of the courts below were upheld. 152. The decision of the Privy Council in Vella Swamy Servai & Ors. v. Sivaraman Servai reported in 57 IA at p. 96 was cited. In this case the propounder of the disputed will was also the principal beneficiary thereunder. It was found that he had taken a leading part in giving instructions for the preparation of the will and in procuring its execution and registration. The Judicial Committee held that such circumstances would excite the suspicion of the Court and that unless evidence was there to remove such suspicion and to prove clearly that the testator approved of will, probate should not be granted. 153. The next decision cited was Surendra Nath Lahiri v. Jnanendra Nath Lahiri reported in AIR 1932 Cal. at p. 574. The facts in this case were that a will was alleged to have been executed by a lady aged over 70 years. It was found that at the time of execution she was suffering from serious illness and the principal beneficiary and his wife had been tending and nursing her. It was also found that the said beneficiary had procured the draft of the will, called together witnesses sen for the Sub-Registrar and was himself one of the attesting witnesses. It was found that at the time of execution she was suffering from serious illness and the principal beneficiary and his wife had been tending and nursing her. It was also found that the said beneficiary had procured the draft of the will, called together witnesses sen for the Sub-Registrar and was himself one of the attesting witnesses. On these facts, a Division Bench of this Court held the onus upon the propounder to show that the testatrix was a free and voluntary agent capable of understanding the nature of the disposition and further that she was a willing party, capable of exercising her judgment in the matter had not been discharged. Accordingly, the probate of the will was refused. 154. The next decision Ahmaduddin Khan & Anr. cited was in the case of Lala Kalyan Mal v. reported in 38 CWN at p. 1157. Here the Privy Council reiterated the settled law that in the case of a document executed by a pardanasin woman it was not sufficient to show that the document was read out to her. It must further be proved that she understood the nature and effect thereof. 155. A decision of the Supreme Court in the case of Rani Purnima Debi v. Kumar Khagendra Narayan Deb & Anr. reported in AIR 1962 SC at P. 567 was cited. The registered will which was sought to be propounded here had benefited only one distant relation. Though the relationship of the testator with his wife and his unmarried dependent sister was found to be good in the will the wife and the sister had both been entirely excluded. The married daughter of the testator and other nearer relations were also left out. The allegation of the propounder that the relationship of the testator with his son-in-law was bad was not proved. The signature of the testator in the document was found not to be his usual signature. It was also found that during his lifetime the testator had from time to time signed blank papers which were given to his lawyer. This lawyer was acting for the propounder in the probate proceeding and deposed in support of the will. 156. The Supreme Court held that suspicious circumstances had not been explained to the satisfaction of the Court and there were lacuna in the evidence adduced by the propounder. This lawyer was acting for the propounder in the probate proceeding and deposed in support of the will. 156. The Supreme Court held that suspicious circumstances had not been explained to the satisfaction of the Court and there were lacuna in the evidence adduced by the propounder. It was noted that out of sixteen attesting witnesses only there were called to give evidence who were found not to be independent persons. There was material discrepancy in their evidence on the fact whether the widow of the testator was present during the execution of the will. The Supreme Court refused probate of the will. On the factum of registration the Supreme Court laid down the law as follows:- "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 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 be 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 regarding 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. Registration may take place without the executant really knowing what he was registering". 157. Another decision of the Supreme Court cited was the case of Sashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee & Ors. reported in AIR 1964 S.C. at p. 529. The will in this case was that of one Ramtaran Banerjee a well known lawyer of Calcutta. 157. Another decision of the Supreme Court cited was the case of Sashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee & Ors. reported in AIR 1964 S.C. at p. 529. The will in this case was that of one Ramtaran Banerjee a well known lawyer of Calcutta. The hand-writing in the will being that of the testator was not disputed. The factum of attestation was also recorded in the last paragraph of the will also in the hand-writing of the testator. 158. On the evidence of an hand writing expert it was contended that the date which appeared on the will as the date of execution was not the correct date but in fact the document was executed much later. The Supreme Court held that the will being admittedly in the hand-writing of the testator and duly attested raised a strong presumption of its regularity and very little evidence was required to prove due execution and attestation hereof. The will was up held. Relevant observations of the Supreme Court in its judgment in this case are as follows:- "A slight discrepancy in the evidence of those (attesting) witnesses as to the time when the will was executed is not so serious as to destroy the value of their evidence especially when the witnesses were giving evidence after 8 or 9 years after the execution of the will". "mere fact that the attesting witnesses to a will happen to be chance witnesses is no ground for disbelieving their evidence. It may be that it is more usual for witnesses to be called when a person is intending to execute a will; even so there is nothing impossible in advantage being taken of the accidental presence of witnesses in this connection". 159. The next decision cited was the case of G. Thatiah v. T. Venkata Subbaiah reported in AIR 1968 SC at p. 1332. In the facts of this case the Supreme Court held that the suspicious circumstances in respect of the execution of the will in question had not been removed to the satisfaction of the Court. The law laid down in Barry v. Butlin, (supra) and Tyrrell v. Pinton (supra) was reiterated. 160. A decision of a Division Bench of this Court in the case of Radhika Prasad Saha & anr. v. Sm. Katyani Dassi & Ors. The law laid down in Barry v. Butlin, (supra) and Tyrrell v. Pinton (supra) was reiterated. 160. A decision of a Division Bench of this Court in the case of Radhika Prasad Saha & anr. v. Sm. Katyani Dassi & Ors. reported in 75 CWN at p. 63 was cited for the following proposition: "Registration simpliciter cannot be regarded as a talisman casting away of suspicion all at once. If the manner of registration shows the testator having admitted execution of the will and signed in token thereof, it goes a long way to dispel suspicion. If, however, the manner shows camping e.g. the will is not read by, nor read over to, the testator, then an ailing man in great pain and physical discomfort, and worse, will, raises suspicion on its own, it only adds suspicion upon suspicion.". 161. The last decision cited by the learned Advocate General was in the case of Pushpavati & Ors. v. Chandraja Kadamba & Ors. reported in AIR 1972 SC at p. 2492. In this decision the Supreme Court reiterated the law as laid down in the case of Sashi Kumar Banerjee (supra). 162. On behalf of the propounder and the beneficiaries under the will other decisions were cited. One was that of the Privy Council in the case of Harimis v. Hinkson reported in 50 CWN at p. 895. The proposition laid down by the Judicial Committee relied on by the propounder was that where a will is charged with suspicion the rules enjoin a reasonable scepticism not an abdurate 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. 163. A decision of the Supreme Court in H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors. reported in AIR 1959 SC at p. 443 was cited for the proposition as follows:- a) A will has to be proved like any other document except as to the special requirements of attestation prescribed under S. 63 of the Indian Succession Act. b) Like proof of other documents it would be idle to expect proof of a will with mathematical certainty. The usual test is the satisfaction of a prudent mind. b) Like proof of other documents it would be idle to expect proof of a will with mathematical certainty. The usual test is the satisfaction of a prudent mind. c) 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's mind and his signature as required by law, Court would be justified in finding in favour of the propounder. d) For deciding material questions of fact which arise in applications for Probate or in actions on wills no hard or fast or inflexible rules can be laid down for appreciation of evidence. 164. Next cited was decision of a Division Bench of this Court in the case of Ajit Chandra Majumdar v. Akhil Chandra Majumdar reported in AIR 1960 Cal. at p. 551 for the following observation: "On the question of unnatural and officious will a Court of Probate had 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. What strikes the Court as an eccntric 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 and inject its own ethics of what is or is not a moral or a fair disposition according to the Court's own standards". 165. The decision cited next was that of the Supreme Court in the case of Ramchandra Rambux v. Champabai & Ors. reported in AIR 1965 Supreme Court at p. 354. In this case the Supreme Court construed the observation made by Lord Watson in Chotey Narain Singh v. Mst. Rattan Koer reported in 29 1A at p. 12, such observation (at page 23 of the report) was as follows:- In a case where................................attesting witnesses are produced and they give clear and cogent testimony regarding execution, one should require very strong circumstances to repeal the effect of such testimony. It will not do to talk airily about circumstances of suspicion. Rattan Koer reported in 29 1A at p. 12, such observation (at page 23 of the report) was as follows:- In a case where................................attesting witnesses are produced and they give clear and cogent testimony regarding execution, one should require very strong circumstances to repeal the effect of such testimony. It will not do to talk airily about circumstances of suspicion. It is no doubt true that a person who takes it upon himself to dispute the genuineness of a will can not be expected to prove a negative in many cases. At the same time, the difficulty in which, on his own seeking he places himself, will not relieve him of the burden it may be a heavy burden of displacing the positive testimony on the other side. If he rests his case on suspicion the suspecion must be a suspicion inherent in the transaction itself, which is challenged and cannot be a suspicion arising out of a mere conflict of testimony." The Supreme Court construed such observation of Lord Wastson in the following language: "We do not understand the observation of Lord Watson to mean that the testimony as to the execution of the document has to be considered independently of the attendant circumstances. All that he says is that where there is a large and consistent body of testimony tending to show the execution of a will by the testator, that evidence should not be lightly set aside on the theory of improbability." 166. Last cited was another decision of the Supreme Court in the case of Smt. Sushila Devi v. Pandit Krishna Kumar Missir reported in AIR 1971 SC at p. 2236. In this case the testator bequeathed most of his property to his son and the husband of a predeceased daughter instead of his living daughter who was comparatively affluent. The will was held to be valid when the genuineness of the signature of the testator and the execution of the will was duly proved by witnesses, including the scribe and the attesting witnesses, who were found to be respectable and reliable. 167. The following observation (at p. 2238 of the report) in the judgment was relied on. The will was held to be valid when the genuineness of the signature of the testator and the execution of the will was duly proved by witnesses, including the scribe and the attesting witnesses, who were found to be respectable and reliable. 167. The following observation (at p. 2238 of the report) in the judgment was relied on. "If the bequest made in a will appears to be unnatural then the Court has to scrutinise the evidence in support of the execution of the will with a greater degree of care than usual, because every person must be presumed to act in accordance with the normal human behaviour but there is no gainsaying the fact that some individuals do behave in an abnormal manner. Judges cannot impose their own standard of behaviour on those who execute wills". 168. The law as to the proof of a disputed will appears to me to be well settled. From the decisions cited at the Bar, which I have considered above, the relevant principles can easily be culled out, as follows:- A will has to be proved like any other document in accordance with provisions of Indian Evidence Act. The signature of the testator and the hand-writing where the will is hand-written has to be proved in accordance with Ss. 45, 47 and 67 of the Indian Evidence Act. Under S. 68 of the Evidence Act read with S. 63 of the Indian Succession Act a will has to be specially proved like a document which is required by law to be attested i.e. one of the attesting witnesses has to be called for the purpose of proving the execution of the document. The testamentary capacity of the testator has to be proved as required under S. 59 of the Indian Succession Act. The questions which fall for determination in proving a disputed will are (i) whether the testator signed the will; (ii) whether, the testator understood the nature and effect of the dispositions, (iii) whether he put his signature to the will knowing what it contained. But like any other documents a will cannot be proved with mathematical certainty. The ultimate test is that of satisfaction of a prudent mind. But like any other documents a will cannot be proved with mathematical certainty. The ultimate test is that of satisfaction of a prudent mind. In proving a will, the initial onus is on the propounder who has to prove by disinterested, satisfactory and sufficient evidence the signature of the testator, the sound and disposing state of his mind, his understanding of the nature and effect of his dispositions and finally the free and voluntary nature of his act in executing such a document. The execution of a will may be surrounded by suspicious circumstances which amongst others may include (i) the character or appearance of the signature of the testator raising doubt as to its genuineness; (ii) feeble and debilitated condition of the testator's mind at the time of execution of the will raising doubt as to the mental capacity of the testator; (iii) the unnatural, improbable or unfair dispositions in the will which in the light of relevant circumstances might indicate that the disposition might not be the result of the testators's free will and mind; (iv) a prominent part taken by the propounder in the execution of a will under which the propounder receives substantial benefits. Even without pleas of undue influence, fraud or coercion, suspicious circumstances as aforesaid surrounding the execution of a will may raise a doubt as to whether the testator was acting of his own free will in executing the document. It is a part of the initial onus of the propounder to remove all such legitimate doubts and suspicion completely before the document is accepted as a valid will. Circumstances may be present which make this initial onus of the propounder heavy, nevertheless it has to be discharged satisfactorily. Circumstances, unconnected with the execution of the will however suspicious are of no relevance. Suspicious circumstances may be removed from the mind of the Court by cogent and satisfactory evidence. No hard and fast or inflexible rule can be laid down for appreciation of such evidence. The Court, however, should not be "obdurately persistent in disbelief" nor "resolutely or impenetrably incredulous". The Judicial mind must be open, though vigilant, a cautious and circumspect. The Court should examine the evidence as to the due execution of the document with a greater degree of care. The Court, however, should not be "obdurately persistent in disbelief" nor "resolutely or impenetrably incredulous". The Judicial mind must be open, though vigilant, a cautious and circumspect. The Court should examine the evidence as to the due execution of the document with a greater degree of care. If the propounder succeeds in explaining the circumstances satisfactorily and remove the suspicion, the Court should grant probate even if the will might be unnatural and might cut off wholly or in part, near relations. The Court should bear in mind that an individual might behave in an abnormal manner and the Court will not impose its own standard of behaviour on the testator. 169. Keeping in view the above principles, the grounds on which the caveators have sought to impeach the Will in the instant case have to be considered. The first ground is that the circumstances surrounding the execution of the Will are suspicious and that such circumstances remain unexplained or have not been explained satisfactorily. One of the relevant circumstances, alleged to be suspicious, is that the provisions or the Will are unnatural and unfair, the major part of the properties of the testatrix having been bequeathed to her youngest son Lokenath excluding all others. 170. To appreciate the dispositions of this Will, the family background of the testatrix have to be taken into account. The family was fairly wealthy. On the death of Mohanlal each of his sons had inherited one fourth share of his estate. Subasini, the daughter of the testatrix had been married off long since. The grand-sons had grown up and were earning their livelihood. None of the family members was economically dependant on the testatrix. 171. On the death of Mohanlal, followed by the partition in 1962, the family did not remain joint or even closely knit. It is in evidence that the brothers used to take their meals separately. There were four different sets of ration card with different persons shown as the head of the family. The members had their separate personal servants and lived their separate lives without being much concerned with the others. This is borne out from the fact that Biswanath could not say what illness Saroj Kumari was suffering from prior to her death. He could not even name the doctor who treated her during her last illness. 172. The members had their separate personal servants and lived their separate lives without being much concerned with the others. This is borne out from the fact that Biswanath could not say what illness Saroj Kumari was suffering from prior to her death. He could not even name the doctor who treated her during her last illness. 172. The propounder and the principal beneficiary have sought to explain the specific exclusion of Biswanath from all benefits under the Will. 173. According to them the relationship of the testatrix with Biswanath had deteriorated for various reasons. Biswanath instituted the partition suit in 1962 to avoid sharing the expenses of marriage of his nieces and impleaded the testatrix as the first defendant therein. This constituted the first breach in the relationship of the testatrix with Biswanath. 174. Biswanath has however contended that this was an amicable partition and the preliminary decree was passed by consent within a fortnight of the institution of the suit. The evidence of Biswanath is that it was Saroj Kumari who insisted that a partition suit should be filed and the partition should be effected through Court. 175. The caveators also contended that in spite of the partition the dwelling house was at no time physically divided. I am unable to accept the case of Biswanath that the testatrix' insisted on partition suit. It is extremely improbable that a mother would take the initiative and go to Court. The fact that the dwelling house was not physically divided is of little importance. The co-sharers were allotted separate portions in the dwelling house where they continued to live separately. 176. Another reason for deterioration of the relationship between Biswanath and the testatrix was that the room in the dwelling house where the testatrix was residing prior to the partition was included in the portion allotted to Biswanath who insisted that Saroj Kumari should vacate the said room. It is stated by Lokenath that on the insistence of Biswanath, Saroj Kumari vacated the said room reluctantly after having another room in her allotted portion repaired at her own expenses. 177. Biswanath has however deposed that it was Saroj Kumari who insisted on vacating the room she was occupying and shifted to another room in the portion allotted to her after the same was renovated and repaired at the expenses of Biswanath and Radhanath. I 178. 177. Biswanath has however deposed that it was Saroj Kumari who insisted on vacating the room she was occupying and shifted to another room in the portion allotted to her after the same was renovated and repaired at the expenses of Biswanath and Radhanath. I 178. The fact remains that after the partition Saroj Kumari had to shift and the room she was occupying came to be occupied by Biswanath. I do not accept that Biswanath and Radhanath bore the expenses of repairs. No accounts for such repairs were produced. There was no reason why Radhanath would contribute anything for this repair. If the sons were paying for their mother it is not explained why Lokenath did not and was not invited to contribute. It is not the case of the caveators that the relationship between the brothers had deteriorated at any material time. 179. The propounder and the principal beneficiary contend further that another cause of deterioration of relationship between Biswanath and the testatrix was the significant incident in 1962 when the custody of the Champakali necklace was transferred to Biswanath. This particular ornament, dedicated in favour of the family deity, had been in the custody of the testatrix after the death of Mohanlal. It is the evidence of Lokenath that Biswanath insisted on taking this ornament away from his mother in the inauspicious month of Chaitra. At the instance of Biswanath, she did hand over the ornament but she was very hurt. Biswanath has however stated that it was the testatrix who insisted that Biswanath should have the custody of the ornament as he was the sevait of the deity and herself made over the ornament. 180. It is contended on behalf of the caveators that the necklace was the property of the deity in law and Biswanath had claimed the same only for the deity and not for his personal ownership. It is also contended that the case of Lokenath has been that the testatrix had in fact agreed to make over the ornament. Her only objection was that she did not want to part with the ornament in the month Chaitra. If that be the case, then Biswanath who had allowed the ornament to remain in the custody of his mother for ten years could very well wait for one more month. Her only objection was that she did not want to part with the ornament in the month Chaitra. If that be the case, then Biswanath who had allowed the ornament to remain in the custody of his mother for ten years could very well wait for one more month. It is contended that, therefore, the testatrix must have voluntarily made over the ornament to Biswanath and Lokenath's case that the testatrix was hurt should be disbelieved. 181. The evidence on record is that Mohanlal died in the year 1953 and Biswanath became the next Shebait and entitled to the custody of the said necklace. In spite thereof he did nothing in the matter and allowed the necklace to remain in the custody of the testatrix, who also carried on seva puja of the deity and contributed to the expenses thereof. It is only after the partition in 1962 that the question of the transfer of the custody of the said necklace cropped up. There is no explanation why the testatrix would disturb the arrangement existing for 10 years, by making over the necklace herself. It is the evidence of Biswanath that other less valuable items of ornaments remained in the custody of the testatrix. The seva puja was also continued to be conducted by her. I do not accept that the testatrix voluntarily handed over the ornament to Biswanath in the month of Chaitra. It is more probable that the necklace was made over to Biswanath as he asserted his legal rights. It is, therefore, possible to accept that the exercise of this legal right by Biswanath would not be appreciated by the testatrix. 182. Lastly it is contended that the relationship between the wife of Biswanath and the testatrix; became paricularly bitter after the partition. There was an incident when Saroj Kumari slapped the wife of Biswanath. This has been denied categorically by Biswanath who stated that his wife was married at a very tender age and had been brought up by the testatrix as her own daughter and that she would never ill treat her daughter-in-law. It is, however, the evidence of Subasini that the relationship of the testatrix with her eldest daughter-in-law was such that it could be possible for the testatrix to slap the daughter-in-law for correcting her if the occasion would so arise but it would be of little significance. 183. It is, however, the evidence of Subasini that the relationship of the testatrix with her eldest daughter-in-law was such that it could be possible for the testatrix to slap the daughter-in-law for correcting her if the occasion would so arise but it would be of little significance. 183. On the evidence before me it is not possible to come to any positive conclusion on this particular fact. But taking into account other facts, viz., the partition suit, the shirting of the room of the testatrix after partition and the transfer of the custody of the necklace, separation of food and mess of the brothers, exclusion of Biswanath from the Will may be explained. Such facts by themselves may be of little significance but cumulatively their effect may be much greater. It is also to be noted that it is at this point of time the testatrix ceased to go out on pilgrimage with Biswanath. 184. Next we come to the case of Radhanath. It has been contended by the caveators that there is no explanation why Radhanath has been excluded from the Will altogether. The relationship of Radhanath with his mother cannot be said to have deteriorated due to any particular reason. Radhanath was not a party to the transfer of the custody of the necklace. He also did not initiate the partition suit nor did he force his mother to shift from the room she was occupying. 185. Radhanath appears to be a person who is completely aloof from all family matters including this suit. Biswanath has stated in his evidence that Radhanath only lent his name to these proceedings. Radhanath did not come into the box to ventilate his grievances, if any, in respect of the Will. Positive allegations were made from the box by Lokenath that in every matter where there was a clash between Biswanath and the testatrix, Radhanath supported Biswanath. The only exception was the partition suit where it was in the interest of Radhanath to resist the partition so that expenses of the marriages of his children would borne out of the joint fund. Balaram, the eldest son of Radhanath, is a beneficiary under the Will. Except for managing one bus tee property, it is not in evidence, what particular service Radhanath rendered to the testatrix. Balaram, the eldest son of Radhanath, is a beneficiary under the Will. Except for managing one bus tee property, it is not in evidence, what particular service Radhanath rendered to the testatrix. Biswanath stated from the box that he had no knowledge how this property was managed, nor did he know if Radhanath gave any account of the money which he collected from this property. The exclusion of Radhanath from this Will can be explained by the above facts and circumstances. 186. It is also the contention of the caveators that the fact that two of the items of property of the testatrix were allowed and continued to be managed by the two elder sons without any change till her death, showed that the case of deterioration of relationship between the testatrix and her two elder sons as sought to be made out by the propounder was not correct. 187. This contention does not appear to me to be of much substance. Biswanath and Radhanath were permitted to manage only the Bustee properties the income whereof was not substantial. It is the admitted case that the municipal taxes in respect of even these properties used to be paid by Lokenath. Lokenath was in charge of management of the most valuable property at Clive Row which has ultimately been bequeathed to Lokenath. The contention of the caveators has been that Lokenath was permitted to manage this property only because it remained undivided as between the testatrix and Lokenath and the tenants were paying rent jointly. This contention is also without substance. Even if the property was joint, the testatrix, if she wanted to, could have allowed her other sons to manage this property. Lokenath not only managed this property but also had the power of disbursement of the income which he received from this property. It was he who looked after the Income-tax and Wealth Tax cases of the testatrix. The repairs to the portion of the dwelling house allotted to the testatrix were also carried out by Lokenath out of the income of this property. It is clear that Saroj Kumari reposed greater trust and confidence in Lokenath than her two other sons and it is the youngest son, Lokenath, who used to render all services to Saroj Kumari in respect of her properties during her life time. 188. The case of exclusion of Subasini may be considered next. It is clear that Saroj Kumari reposed greater trust and confidence in Lokenath than her two other sons and it is the youngest son, Lokenath, who used to render all services to Saroj Kumari in respect of her properties during her life time. 188. The case of exclusion of Subasini may be considered next. Subasini was married during the lifetime of her father, who also provided for her maintenance by making a gift of a two-storied residential house in Calcutta. It is in evidence that Subasini with her family are still residing in the first floor of that house and the ground floor whereof has been let out to tenants. She has a regular income. No doubt, at the material time her husband has been unemployed. The testatrix during her lifetime had been making periodic gifts of foods clothing and other necessities to Subasini. It is to be noted that two sons and one grandson (daughter's son) of Subasini were employed at the material time and were earning. Subasini has not been entirely excluded. She has been left a property the income whereof even after payment, of Municipal Taxes leaves a surplus. Considering the entire evidence on record it appears to meet that sufficient provision has been made for Subasini. The will cannot be held to be unnatural or unfair on the ground of exclusion of Subasini, who admitted from the box that she did not expect any particular bequest from her mother after her death. 189. Lastly we have to consider the exclusion of the grandsons of Saroj Kumari, namely, Balaram and Kalachand. It has been alleged that Saroj Kumari was particularly fond of her grandsons. They used to sleep with her. The relationship of the testatrix with her grandsons does not appear to be as close as the caveators have sought to make out. Though on a number of occasions Saroj Kumari had gone out of pilgrimage with Biswanath, none of the grandsons had ever accompanied her. The grandsons did not came to the box. Even admitting that the relationship of the testatrix with her grandsons was quite good, it does not follow that they will necessarily be provided for in her Will as her sons. A property has been bequeathed to Balaram under the Will. The grandsons did not came to the box. Even admitting that the relationship of the testatrix with her grandsons was quite good, it does not follow that they will necessarily be provided for in her Will as her sons. A property has been bequeathed to Balaram under the Will. It is contended on behalf of the caveators that this property would be entirely eaten up by taxes and other charges directed to be paid out of this property. It has not been established or proved that the value of this property will be insufficient to meet such taxes and charges and that after meeting such taxes and charges no surplus would be left to Balaram. The Will cannot be held to be unnatural on the ground that the grandsons have not been given further benefits thereunder. 190. It has also been contended on behalf of the caveators that there is no evidence to explain the motive of the testatrix in making such a Will. If the provisions in the Will cannot be explained the suspicion attaching thereto remain undispelled. I have been unable to appreciate this contention of the caveators. It is not possible for the Court to fathom the motive of a person when he is making his will and the Court should not embark upon such an enquiry. All that Court is called upon to do is to consider the entirety of the circumstances and come to a conclusion whether the suspicions if any, attaching to the execution of the document has been dispelled or not. In this regard, the motive of the testator is irrelevant. 191. The prominent part alleged to have been played by Lokenath the principal beneficiary is relied on by the caveators as being highly suspicious. The steps alleged to have been taken by Lokenath in the matter have been itemised by the learned Advocate General as follows:- a) The testatrix first made known her intention to make a Will to Lokenath. b) Lokenath took the testatrix to the house of his father-in-law Beni Madhab and was present at the discussion between them. c) Lokenath along with Beni Madhab contacted K.L. Dutta, the Solicitor who ultimately drafted and prepared the will. d) Lokenath was present when instructions were given by testatrix to the solicitor and also when she approved the draft Will. b) Lokenath took the testatrix to the house of his father-in-law Beni Madhab and was present at the discussion between them. c) Lokenath along with Beni Madhab contacted K.L. Dutta, the Solicitor who ultimately drafted and prepared the will. d) Lokenath was present when instructions were given by testatrix to the solicitor and also when she approved the draft Will. e) Lokenath was present both at the execution and at the registration of the will. f) When the Will was made over to the testatrix after registration, the receipt granted by the testatrix to K.L. Dutta was counter-signed by Lokenath. 192. On a closer scrutiny of the said facts, the contentions of the caveator do not appear to be substantiated thereby. Mere presenee of a beneficiary at the preparation or execution or registration of a will is not by itself a suspicious circumstances. There is no authority and none has been cited for the proposition that a beneficiary must on no account be present at the execution of the will which confers a benefit to him. 193. The only positive acts of Lokenath are that (a) he accompanied the testatrix to the house of his father-in-law. (b) He accompanied his father-in-law of K.L. Dutta the solicitor, and (c) lastly, he countersigned the cross mark of Saroj Kumari on the receipt granted by the testatrix to K.L. Dutta. In my opinion, such positive acts are not of much important as would lead to the conclusion that the Will was executed under suspicious circumstances or disentitle the propounders from obtaining probate. The other acts of Lokenath which are impugned by the caveators are neither positive nor leading. 194. It is also alleged that Beni Madhab, the father-in-law of Lokenath played a leading pan in the preparation and execution of this will. The first discussion about the Will was between the testatrix and Beni Madhab who thereafter, introduced the testatrix with his friend K.L. Dutta, Beni Madhab is not a beneficiary under the Will and therefore his activities strictly do not come within the ambit of suspicious circumstances. It is not suggested that he obtained any indirect benefit. The part played by him was not leading or positive. All that he did was to introduce a solicitor to his son-in-law's mother who would be expected to act in his professional capacity. It is not suggested that he obtained any indirect benefit. The part played by him was not leading or positive. All that he did was to introduce a solicitor to his son-in-law's mother who would be expected to act in his professional capacity. No one has asserted that Beni Madhab had suggested that a will was to be executed or prepared the draft thereof or suggested the dispositions to be made thereby. By themselves these circumstances cannot generate any serious suspicion as would make a Court reject the document. The Will was also executed in his house. But he was not present at the execution and there is no positive act on his part in connection with the will. All that Beni Madhab did was to permit a will to be executed in his house. 195. Similarly, comment has been made on the part played by K.L. Dutta. He drafted and prepared this Will and also supervised the execution and registration thereof. He is alleged to be an old friend of Beni Madhab and Lokenath, knowing them for over 25 to 30 years. It is also alleged that K.L. Dutta was on visiting term with Lokenath and had been professionally engaged by Lokenath in other matter both prior and subsequent to the execution of the Will. It is contended that the mere fact that such a person has acted in the execution of the Will engenders great suspicion. 196. For reasons stated earlier I do not accept such contentions. K.L. Dutta no doubt is an acquaintance of both Beni Madhab and Lokenath but he is not directly interested as a beneficiary in the Will nor has it been shown that he is otherwise interested in the document apart from his professional fees received. 197. Nilmoni Dutta is the brother-in-law of Beni Madhab. Nilmoni has identified the testatrix at the, execution of the will. Nilmoni being relaled to Lokenath through Beni Madhab and having participated in the execution of the document as aforesaid it is contended that its genuineness become suspect. I do not accept this contention. The interest of Nilmoni is too indirect. In fact, it cannot be said Nilmoni had any interest in the matter. Nilmoni being relaled to Lokenath through Beni Madhab and having participated in the execution of the document as aforesaid it is contended that its genuineness become suspect. I do not accept this contention. The interest of Nilmoni is too indirect. In fact, it cannot be said Nilmoni had any interest in the matter. He is gainfully employed in a responsible position with the Life Insurance Corporation and it is not suggested or shown that he in any way obliged to or was under the control of his brother-in-law, Beni Madhab. 198. It has also been the contention of the caveators that the witnesses for the propounder and in particular, the attesting witnesses were not disinterested. This contention does not appear to be tenable. The attesting witness Dr. Prabhat Sinha in my opinion is a disinterested witness. His evidence has been sought to be impugned on the ground that he was friend and acquaintance of K.L. Dutta and was invited to attest the execution of the will by K.L. Dutta. But a complete stranger or any man from the street would not be called up to attest the execution of a will. Dr. Sinha is not a man of straw. He has not been shown to be under control of any interested party. I accept the evidence of Dr. Sinha which goes to show that on the 17th May, 1964 a will was duly executed at premises No. 200. Bipin Behari Ganguly Street. The case of the propounder is supported by the evidence of Dr. Sinha. 199. Another witness for the propounders is Nilmoni Dutta. He was present at the execution of the Will and identified the testatrix. He had signed the document. Nilmoni has been gainfully employed in a responsible position and he is not a man of straw or in control of Beni Madhab or K.L. Dutta. He has no direct benefit from this Will. I hold that Nilmoni is a disinterested and a responsible person and his evidence should be accepted. He has identified that the testatrix was present at the execution of her Will on the 17th May, 1964 at No. 200, Bipin Behari Ganguly Street. The evidence of Dr. Sinha and the evidence of Nilmoni in my opinion sufficiently establish and prove the will. 200. He has identified that the testatrix was present at the execution of her Will on the 17th May, 1964 at No. 200, Bipin Behari Ganguly Street. The evidence of Dr. Sinha and the evidence of Nilmoni in my opinion sufficiently establish and prove the will. 200. K.L. Dutta, one of the main witnesses of the propounder is alleged to be greatly interested in the will and it is submitted that his evidence as an attesting witness would not be accepted. The evidence is that K.L. Dutta has been acquainted with Beni Madhab and known to Lokenath for a long time. But part from a long acquaintance it does not appear that he was in any way obliged either to Beni Madhab or Lokenath or was in their control. Lokenath had engaged K.L. Dutta in a few other professional matters. K.L. Dutta is a responsible and respectable person. He was holding a very responsible position in this Court. He has acted in this matter in his professional capacity and had taken pains to proceed professionally. He has maintained contemporaneous document and records. I have no reason to disbelieve the evidence of K.L. Dutta. The alternative is to accept the vague suggestion of the caveators that K.L. Dutta was a party to a well planned conspiracy which was hatched in 1964 with Beni Madhab, Lokenath and others. 201. The fact that the Will was executed at the house of Benimadhab and not in the house of the testatrix has been commented upon as a suspicious circumstance. The explanation of Lokenath was that Saroj Kumari wanted to keep the making of this Will a secret. This has also been stated by K.L. Dutta. The learned Advocate General has contended that this alleged desire for secrecy is not borne out by the fact that the testatrix expressly invited K.L. Dutta to her residence on two occasions. First, when she gave instructions for drafting the Will and next on the occasion she approved the draft. Such visits of K.L. Dutta would be easily detected. It does not appear that this contention is valid. The visit of one individual in a house may go undetected but the execution and registration of a will requires presence of more than one persons and it is more difficult to keep it a secret. The caveators have stated that they had never seen K.L. Dutta in the house. It does not appear that this contention is valid. The visit of one individual in a house may go undetected but the execution and registration of a will requires presence of more than one persons and it is more difficult to keep it a secret. The caveators have stated that they had never seen K.L. Dutta in the house. But it seems to me that the caveators were not much concerned with what was happening in other parts of the house. In any case it is not suggested that Biswanath and Lokenath were keeping special watch over visitors to the house. It is quite probable and possible that the testatrix wanted to keep her will a secret, particularly from her sons who were being excluded. I hold that there is nothing suspicious in the fact that Saroj Kumari executed her Will at the residence of Beni Madhab. I hold that all suspicions raised have been sufficiently explained by facts and circumstances brought out in evidence. 202. It has been contended by the learned Advocate General that it remains to be established by evidence that the testatrix understood the purport and effect of her will. She was illiterate and the will contained complicated provisions for payment of duties viz. Estate Duty and Probate Duty and charges viz. law charges and testamentary charges. In particular, it was contended the testatrix did not understand that the specific bequest to Balaram would be illusory if her directions for payment of duties and charges were carried out. 203. Though the testatrix was illiterate, it does not appear that she was unintelligent. After her husband's death she managed her properties through her sons and son-in-law. K.L. Dutta had explained the contents of the Will to her. It is also his evidence that fairly accurate approximations of Estate Duty and probate Duty payable were made known to the testatrix. There is no reason to assume that she did not understand the position. In any event, it is not possible to determine the question with mathematical certainty. If it is to be proved that a lay testator before making his will has to understand fully all the complexities of, Revenue laws then no will can be probated. 204. There is no reason to assume that she did not understand the position. In any event, it is not possible to determine the question with mathematical certainty. If it is to be proved that a lay testator before making his will has to understand fully all the complexities of, Revenue laws then no will can be probated. 204. A comment has been made that the Day book of K.L. Dutta does not record the specific discussion with the testatrix in respect of duties and charges which the estate would have to pay. Further it is not recorded in this Book that K.L. Dutta at the first discussion with the testatrix wrote down any notes. The identification of the testatrix at the execution of the will has also not been recorded. 205. A Day book is maintained by a solicitor primarily for the purpose of recording the actual items of work performed by him so that the client can be billed for the work done. At the taxation, of a solicitor's bill, the entries in the Book become important. Such entries are not made for recording evidence. In that-view it is of little consequence that the Day book in this case not narrate the entire events and details. 206. A further comment has been made on the absence of Beni Madhab from the witness box. It was contended that Benimadhab could have corroborated Lokenath on important aspects, of this case viz. his preliminary discussion with the testatrix regarding the Will, his relationship with the testatrix, introduction of K.L. Dutt and execution of the will in his house. 207. On facts relating to the will from its drafting to its execution, evidence has been adduced through a number of witnesses. It is not necessary to multiply evidence on all ancilliary facts. It cannot be said that in the absence of the evidence Benimadhab who had nothing to do with the execution of the will the case of the propounder must be rejected. 208. The evidence of K.L. Dutt that he was introduced to the testatrix on the occasion of marriage of Lokenath during 'Bowbhat' has been criticized. It is contended that this evidence is unacceptable and in contrary to facts. Even if I reject this part of the evidence of K.L. Dutta it does not follow that his entire of the evidence should be rejected. It is contended that this evidence is unacceptable and in contrary to facts. Even if I reject this part of the evidence of K.L. Dutta it does not follow that his entire of the evidence should be rejected. It is to be noted that when challenged K.L. Dutta described the appearance of the testatrix is some detail and much description has not been shown to be incorrect. 209. Similarly, the evidence of Dr. Sinha that he himself put a question to the testatrix at the execution of the will and asked her whether she understood the contents of the will has been commented upon as not being corroborated by any other witness. 210. It is to be remembered that the witnesses were giving evidence about events long past and such discrepancies in the evidence of the witnesses are only to be expected. 211. Lastly, it has been the comment of the learned Advocate General that there is no satisfactory evidence to show as to when the testatrix decided to appoint Netai Chand as the executor and when such decision was communicated to the solicitor. When the document was finally prepared the name of the executor was already mentioned there but the executor himself was informed of his nomination only on the day of the execution. The Daybook of the solicitor does not throw any light on this point. In the first draft of the will the name of his executor had been left blank. 212. It is not disputed that in the will the name of Netai Chand was included and the will was executed on that basis. The evidence on matters long past cannot be expected to be perfect in every detail. 213. On the other hand, it has been contended on behalf of the propounders that the will was executed as long ago as in 1964. At that time the testatrix was keeping good health. There was no prospect of her immediate decease. In such circumstances, it would be difficult to imagine a conspiracy being hatched in 1964. Further, it has come out in evidence that ladies of the family, though illiterate, were in habit of executing legal documents by putting their cross marks. The testatrix put her cross mark in the records of the partition suit. The mother-in-law of the testatrix executed a document in favour of the family deity by putting her cross mark. Further, it has come out in evidence that ladies of the family, though illiterate, were in habit of executing legal documents by putting their cross marks. The testatrix put her cross mark in the records of the partition suit. The mother-in-law of the testatrix executed a document in favour of the family deity by putting her cross mark. The will was discovered from the iron safe of the testatrix. It has not been established that Lokenath had any particular access to the iron-safe. The caveators on the other hand have contended that Lokenath was not closer or more intimate with the testatrix than his brothers. 214. On the findings and the reasons as stated above I answer the issue raised as follows:- 215. Issues Nos. 1, 2 and 3 are each answered in the affirmative and in favour of the propounder. 216. By reason of the answers to the said issues, the propounder succeeds in these proceedings and is entitled to a probate of the Will. On the facts and circumstances I find that the caveators had grounds to come to Court and bring to the notice of the Court, the apparently suspicious circumstances which had to be resolved before the probate of this will could be granted. In that view cost of all the parties will come out of the estate. The Caveat is discharged and probate is granted accordingly. Costs of the propounder will be as between attorney and client. By consent taxed costs of the parties are directed to be paid by the Receiver from the funds of the estate in his hands. 217. Certified for two Counsel for all the appearing parties. 218. The Judgment and decree be stayed for a period of six weeks except that the directions regarding the payment of costs will not be stayed. Application for probate allowed.