JUDGMENT A.K. Sharma, Member. - Allah Bux (District Moradabad), has come up in second appeal aggrieved by the judgment and decree dated June 23, 1977, passed by the learned Addl. Commissioner, Rohilkhand Division, Bareilly, confirming the judgment and decree dated March 25, 1969, passed by the learned Judicial Officer (Revenue), Moradabad. 2. The appellant's name was mutated as being the sole legal representative as brother of the deceased, Rohsan. Roshan's daughters Smt. Raisan and Smt. Jameela filed a suit under Section 229-B, Z.A. and L.R. Act for declaration of their right as legal successors on the basis of a will alleged to have executed by their father on July 13, 1967. The trial court and the learned Additional Commissioner have made the declaration in their favour and rejected the claim of Allah Bux. Hence this appeal. 3. Learned counsel for the appellant, Allah Bux, has argued that when Allah Bux moved for mutation of his name on the death of his brother Roshan, objection was raised by Roshan's daughters (respondents) and in claiming mutation in their favour, they made no mention of the will and the will was not filed at the outset in support of their claim and that this showed that at the time of the filing of this objection the will was not in existence and the will that has been filed was a later fabrication and was not genuine but a forged document surrounded by such highly suspicious circumstances. He pointed out that mutation was ordered by the Tahsildar in favour of Allah Bux and he had observed that the will appeared to be 'a fake document on which no reliance can be placed'. Referring to the observation of the learned Addl. Commissioner in para 5 of his judgment that no evidence was led on behalf of the appellant to show that the will did not contain the thumb impression of Roshan, he contended that the onus to prove that the thumb impression on the will was that of Roshan and made by Roshan during his life time was not on the appellant but on the contesting respondents. On this point he cited AIR 1955 (S.C.) 604 , headnote (d), AIR 1959 (S.C.) 443 and AIR 1977 (S.C.) 77. On this point he cited AIR 1955 (S.C.) 604 , headnote (d), AIR 1959 (S.C.) 443 and AIR 1977 (S.C.) 77. He referred to para 10 of the last case cited in which six propositions have been laid down on the nature and standard of evidence required to prove a will as laid down by the Supreme Court speaking through Gajendragadkar, J. in A.I.R. 1959 (S.C.) 443. He said that one of the propositions laid down was that cases in which execution of the will was surrounded by suspicious circumstances stand on a different footing and the propounder of the will must remove all legitimate suspicions before the document can be accepted as the last will of the testator. He also cited 1968 R.D. 1, to say that under Section 213 of the Indian Succession Act, 1925, no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed. The respondent had not taken any such action and therefore the will could not form the basis of mutation. He pointed out that the scribe was not examined. He said that marginal witnesses were, as pointed out by the Tahsildar in mutation order, illiterate persons who could not identify their own thumb-impressions. He contended that Roshan's thumb-impression should have been verified for its genuineness and expert advice on it was called for. 4. Learned counsel for the contesting respondents argued that no ground was taken at any stage regarding letter of administration or regarding probate in the written statement and the ruling of 1968 R.D. 1, cited by the learned counsel for appellant, in reality did not support his case, as it was clearly laid down in Section 213(2) of the Indian Succession Act that the condition of grant of probate or of letters of administration would not apply to the wills made by Muhammadans. He also referred to the ruling in 1968 A.L.J. 69 in support of his contention. He said that both the Courts below had accepted the will and that no particulars of fraud or forgery had been given. He also said that the will was only for Bhumidhari plots. He also referred to the ruling in 1968 A.L.J. 69 in support of his contention. He said that both the Courts below had accepted the will and that no particulars of fraud or forgery had been given. He also said that the will was only for Bhumidhari plots. Regarding the argument that the will was not set up in the mutation case, he said that it was not a title suit and they were not estopped from taking the plea. He, however, pointed out that in para 5 of the objection filed in the mutation case, the will had been set up. As to the objection that a sentence was interpolated regarding the will in para 5 of the objection application, he said that the appellant should have examined the D.W.'s in the mutation case on June 4, 1968, but that opportunity was not availed of. On this point, however, the learned counsel for the appellant pointed out that the interpolation was taken notice of on July 3, 1968 and marked off in red ink as Exh. KA by the Tahsildar who had held that it was an interpolation and thus there was no occasion or opportunity given to examine the witnesses on the point of interpolation. Regarding onus of proving the genuineness of the thumb-impression being on the plaintiff-respondents, he referred to A.I.R. 1940 (P.C.) 93, headnote (d) in which it was laid down that when parties have entered into evidence, the question of onus became unimportant. He also cited in A.I.R. 1941 (P.C.) 93 to say that if fraud was alleged, it must be proved beyond reasonable doubt and that a finding of fraud could not be based on suspicion and conjecture. He contended that the appellant had failed to prove fraud or forgery and both the learned Courts below had given concurrent finding that the will was genuine and that this finding could not be interfered with. 5. I have also gone through the record of the case. 6. The learned Trial Court found that the will was in writing and duly attested by two persons and it need not have been registered. He, therefore, held that that the will was according to law. He believed the ora testimony of P.W.'s and discarded that of D.W.'s on this point. 6. The learned Trial Court found that the will was in writing and duly attested by two persons and it need not have been registered. He, therefore, held that that the will was according to law. He believed the ora testimony of P.W.'s and discarded that of D.W.'s on this point. At the same time, he had to discard that oral testimony of P.W.'s and accept that of D.W.'s in holding that Allah Bux was the real brother of Roshan deceased. The learned Additional Commissioner has relied on what be calls the unrebutted oral testimony of P.W. 2 Mahbulla who had witnessed and attested the will. He has stated that no evidence was led by the defendant to show that Roshan had not set his thumb-impression to the will. He has remarked that the oral evidence of the D.W.'s on the point that the will was not made by Roshan did not appear to be at all reliable in face of the positive and forceful evidence of P.W. 2. 7. Regarding the controversy on the grant of or issue of letter of administration by a competent court for a will before an executor or legatee could claim to add or claim property under the will, the position, as stated by the learned counsel for the respondent is correct. Section 213(2) of the Indian Succession, Act clearly states that this provision shall not apply to wills made by Muhammadans. 8. There is no doubt that the will as it is, conforms to the requirement of Section 169 Z.A. and L.R. Act. But the crucial point is whether the will is genuine or is a forged document. Mere conformity to the provisions of Section 169 would not make a will valid or genuine. When its genuineness is called in question, it is necessary to look into the facts and circumstances under which the will came into existence. One such circumstance that throws doubt on the genuineness of the will stands out vividly in the mutation order passed by the Tahsildar on July 3, 1968, an attested copy of which is on the Trial Court's file. The respondents objection to mutation application of Allah Bux did not originally contain what the learned Tahsildar has singled out as interpolated sentence in para 5 of their application, and which he marked off in the application in red ink as Exh. KA-1. The respondents objection to mutation application of Allah Bux did not originally contain what the learned Tahsildar has singled out as interpolated sentence in para 5 of their application, and which he marked off in the application in red ink as Exh. KA-1. It is clear beyond reasonable doubt that the respondents originally sought to build up their claim to succession before the mutation court solely on the ground that Allah Bux was not the real brother of Roshan and by alleging a different fatherhood for him. That is why they have been at pains in showing all kinds of circumstances to prove that he was continuing to be mistakenly recorded as the son of Bhika, though he was, according to them, the son of Chhida. 9. If the alleged will were in existence at the time of filing their claim to mutation, there was no necessity of adopting the ground that Allah Bux was not the real brother of Roshan and the main fact of the will would have been the principal factor in their claim. It would not have been interpolated in an inconvenient by-the-way sentence at the end of para 5. Rather the main facts or circumstances of the will would have been stated. It is, no argument that there was no estoppel for them, even if they had not taken the will as the basis of their claim to mutation. Any prudent person would have come out with the will to assert and establish his claim at the earliest opportunity. The learned Tahsildar took the view that the will was a document surrounded by suspicious circumstance and had been surreptitiously projected before him by interpolating a sentence. The will was not filed with the objection as it originally stood. The mutation order clearly states that the will deed has been witnessed by illiterate persons who are unable to identify their thumb-impressions para 10. If the P.W.'s could band together to orally testify that Allah Bux not the real brother of Roshan, why can it not be reasonably inferred that they would not band together to fabricate a will to push the claim of the two married daughters of Roshan to thwart the legal succession of Allah Bux, particularly when the game lay sufficiently exposed in the mutation proceeding itself? It is not adequate fulfilment of the provisions of Section 169 Z.A. and L.R. Act that a written will with two attesting marginal witnesses is there and one of them at least has orally testified to the execution of the will. P.W. 3 Khacheru, an attesting witness, has not stated in his examination-in-chief anything about the will or his signing it as an attesting witness. The fact that he was also not cross-examined on these vital aspects, would not, however, go to prove that this attesting witness had seen the executant sign or fix his mark to the instrument or the instrument was read over to the executant in his presence. When a will is attended by allegations of its being a forged document and suspicious circumstances came to the notice of a Court, it is necessary to ascertain the truth about the circumstances under which the will was executed and it becomes also essential to ascertain the genuineness of the thumb-impression of the executant. 10. The requirements of a valid attestation under Section 169 Z.A. and L.R. Act are that (1) there should be two attesting witnesses; (2) each of them must have seen the executant sign or fix his mark to the will and; (3) each of the two attesting witnesses must have signed the instrument in the presence of the executant. There is nothing in the record to show that the second attesting witness (Khacheru) acted also in conformity with the requirements at (2) and (3) above. 11. In A.I.R. 1977 (S.C.) 77 (para 10), referred to earlier, it is laid down that when the execution of a will is surrounded by suspicious circumstances, the suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, and where the suspicion of the court is excited, the propounder must remove all legitimate suspicious before the document can be accepted as the genuine will made by the testator. As to onus, it is laid down in this ruling, that the alleger will prove his plea of fraud, but that, even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt and then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. Viewed in the light of this elucidation of the law on the subject, the learned Courts below have clearly taken a superficial view of the requirements of Section 169 Z.A. and L.R. Act and have not taken the matter about the genuineness, the will beyond reasonable doubt and satisfying to the test of judicial conscience. 12. I, therefore, find that the appeal must succeed. The judgment and decree of the learned Additional Commissioner dated June 23, 1971 is set aside and the case is remanded to the learned Trial Court for decision afresh on the issue of the genuineness of the will of Roshan in the light of the observations made above and particularly in accordance with the proposition laid down in AIR 1977 (S.C.) 77 (Para 10).