SANKAR PRASAD MITRA, S. K. DUTTA ( 1 ) THE-GRANT of the probate of an unprivileged will in Testamentary Suit No. 12 of 1971 Dipak Kumar Sen, J. dated July 23, 1976 is the subject matter of the present appeal at instance of one of the caveators, Biswanath Mullick. The disputed will was alleged to have been executed by Sarojkumari Mullick on May 17, 1964. the testatrix died on April 26, 1970. The properties belonging to the said testatrix and her three sons originally belonged to Mohanlal Mullick, the husband of the testatrix and the father of Biswanath, Radhanath Lokenath and Subhasini. A Partition Suit being Suit No. 2308 of 1956 was filed by Biswanath on August 28, 1956 ws against his other brothers and their mother for partition of the said properties inherited form Mohanlal on his death in 1953. The partition suit was decreed on September 11, 1956 preliminarily on the basis of terms of settlement between the parties filed in the suit on or about September 5, 1956 declaring one fourth share of each party in the properties, moveable and immoveable. Lokenath and Narendranath, husband of Subhasani only daughter of Mohanlal and Sarojkumari, were appointed Receivers of the properties with obligation to pay, out of the rent collections, Corporation tax, Income Tax, electric, telephone charges, maintenance charges of residential premises of 26/1a, Prasanna Kumar Tagore Street, Salary of two cooks, two maid servants and one servant. Thereafter Sarojkumari was to be paid Rs. 500/- for meeting the joint food expenses of the parties and their respective family members. The balance, after retaining 1/5th as reserve fund, was to be distributed to the parties in equal shares. Radhanath Mullick, the Solicitor for the defendants was appointed the Commissioner of Partition for division and allotment of the properties according to the shares of the parties by metes and bounds and to file his return within one year for effecting partition. Accordingly divisions of properties were made to the aforesaid co-sharers by the Commissioner and allotment was also made by him by means of a ?lottery? and the return was filed on the extended date which was May 9, 1960 and the final decree was passed thereon March 6, 1962. Accordingly divisions of properties were made to the aforesaid co-sharers by the Commissioner and allotment was also made by him by means of a ?lottery? and the return was filed on the extended date which was May 9, 1960 and the final decree was passed thereon March 6, 1962. The properties which were allotted to testatrix Sarojkumari situate in the city of Calcutta with valuations as per the Commissioner's return and admitted rental income were as follows : (A)demarcated portion of residential house, being of premises No. 26/1a, now 26/1e, Prosanna Kumar Tagore Street, Calcutta, measuring about 3 cottas marked Plot No. valued at Rs. 30,640. 18 P. (b)demarcated portion of the back portion of premises No. 6, Clive Row measuring about 2 cottas and with rental income of Rs. 1200/- per month valued at Rs. 53, 681. 63 P. (c)demarcated portion of land (being bustee land) and premises No. 19c, Goabagan Street, measuring 1 bigha 9 cottas valued at Rs. 52,317. 50 P. rental income being Rs. 300/- to Rs. 350/- per month subject to municipal taxes of Rs. 140/- per quarter. (d)demarcated portion of land (being bustee land) and premises No. 5a, Baisnab Sett Street, (Jorabagan), measuring about 7 cottas valued at Rs. 26,900. 00 P rental income being Rs. 250/- per month subject to municipal taxes of Rs. 100/- per quarter. ( 2 ) BY the propounded will written in the English language properties referred to in Clause (a) and (b) above were bequeathed to Lokenath absolutely and for ever and the will receited that Loknath was very dear to the Testatrix and looked after her and her affairs. This is the first disposition of the will. The second disposition was a legacy to Balaram Som of the second son Radhanath, grandson of the testatrix, of the properties referred in Clause (c) but the legacy though absolute was subject to the charge for payment of Estate Duty, Probate Duty, Law charges and other testamentary expenses as would be required for obtaining probate of the will. The third legacy was to the daughter Subhasisni in life interest of the properties referred to in Clause (d) and to her younger son Mohendra absolutely and for ever after her death. The fourth legacy was about the rest and residue which were to vest in Lokenath absolutely. The third legacy was to the daughter Subhasisni in life interest of the properties referred to in Clause (d) and to her younger son Mohendra absolutely and for ever after her death. The fourth legacy was about the rest and residue which were to vest in Lokenath absolutely. The testatrix expressed her wish that Likenath and Subhasini were to continue payments and make 'tattyas' made by her during her life time. ( 3 ) THE will further expressed that for the payment of Estate Duty, Probate Duty and other testamentary expenses for obtaining probate of the will the premises No. 19c, Goabagan Street was to remain charged. It was further provided that if Balaram paid all such duties and expenses personally through the Executor, which according to the estimate of K. L. Dutt, solicitor, who drafted the will, to the testatrix would be about Rs. 10000/- to Rs. 15000/- he would be entitled to the properties bequeathed as aforesaid absolutely; if however he would not pay to the said Executor, such charges personally within a reasonable time the Executor would be entitled to sell or mortgage the said property and pay all such expenses either from sale proceeds of the said property with balance to Balaram or if a mortgage was created on the said property for meeting aforesaid expenses, Balaram would get the property subject to such mortgage. The testatrix, mother of Biswanath and Radhanath by express terms in the will disinherited them from her estate though no reasons were ascribed. These are the broad features of the will. ( 4 ) BISWANATH and Radhanath jointly filed a caveat on May 20, 1970 and the petitioner for grant of probate of the said will was filed on or abut July 28, 1970 by Netai, the Executor named in the will, who was also the brother of Lokenath's wife and son of Beni Madhab Mullick, also an important person in the scene. It was stated therein that the heirs in intestacy were the aforesaid sons and daughter. It was stated therein that the heirs in intestacy were the aforesaid sons and daughter. The testatrix executed the will on May 17, 1964 at premises No. 200, Bipin Behari Ganguli Street, the then residence of Beni Madhab, it appears, long before her death on April 26, 1970, and the will was registered on May 19, 1964 on Commission at the same lace before the Sub-Registrar of Assurances, Calcutta recorded in Book III Volume No. 5 pages 20 to 23, Being No. 108 for 1964. With consent of the propounder it was stated, the testatrix appointed him as the sole executor and a copy of the will complete with all registration endorsements was annexed to the petition. In the said petition in support for the grant of probate it was prayed by Netai, the propounder, that the will should be produced by Biswanath by opening the, testatrix's ironsafe or by breaking open the said ironsafe where the will according to his belief had been lying or alternatively for grant of probate of the said will be producing an authenticated copy thereof. ( 5 ) ON the same day, July 28, 1970 Lokenath affirmed his affidavit stating that the original will was delivered to the testatrix by K. L. Dutt, Solicitor and was kept by her in her ironsafe. After the death of the testatrix Biswanath brought out the will and read out the same in presence of himself, his aunt and other members of the family and thereafter kept back the will in the ironsafe and he should be directed to produce the will to the Executor. It appears that pursuant to orders of this Court passed on September 2, and 22, 1970 the will was taken out form a box lying in the ironsafe and was deposited with the Registrar and kept in sealed cover. ( 6 ) NETAI Chand Mallick thereafter filed an application on January 7, 1971 for taking out the will form the sealed cover annexing the same to this application and for grant of probate of the will on citation to the heirs in intestacy. ( 6 ) NETAI Chand Mallick thereafter filed an application on January 7, 1971 for taking out the will form the sealed cover annexing the same to this application and for grant of probate of the will on citation to the heirs in intestacy. In this proceedings, K. L Dutt, who rendered his service as Solicitor for preparation, execution and registration of the propounder and also verified the said application as one of the attesting witness and a further affidavit affirmed on the same date by Netai Chand Mallick in respect of assets of the estate valued according to the return of the Commissioner of Partition was also filed. ( 7 ) THEREAFTER Biswanath and Radhanath jointly filed an affidavit-in-opposition to the application for probate affirmed by both of them on April 2, 1971. It was stated inter alia that the testatrix was an illiterate lady who could neither read nor write nor could she understand the English language. It was said that no will as alleged was ever executed by the testatrix nor was the alleged will ever attested. Further the will was never explained to the testatrix and she was not identified to the attesting witness. The will was never duly registered nor was the testatrix identified before the Registrar. It was said that the cross mark in token of execution of the will which it appears, was admittedly the mode of execution by the testatrix as also the thumb impression before the Sub-Registrar, both o the will were not hers. ( 8 ) IT was further said that the will was never explained or read out to her. She never understood the contents thereof before execution as otherwise she would never make such unjust disposition. The testatrix had her permanent residence at premises No. 26/1e, Prasanna Kumar Tagore Street, where she all along resided till her death. She never resided at premises No. 200, Bepin Behari Ganguly Street which was the alleged venue of execution, attestation and registration of the will. The will was never executed out of her free will and volition and she was never aware of the nature of the act and its effect. She never had any independent advice of a disinterested and competent person. The will was never executed out of her free will and volition and she was never aware of the nature of the act and its effect. She never had any independent advice of a disinterested and competent person. The disposition of the will was most unfair, inequitable, unnatural and unjust as the valuable properties were bequeathed solely to Lokenath absolutely free from all liability from probate expenses. The will was thus a suspicious instrument in the attending circumstances conferring entire benefit to Lokenath. The mother was living with all the sons in joint mess and had equal love for all her sons and daughter, who was in indigent circumstances, and, being under the constant care of the testatrix always received aid from her and there could be no reason to deprive them of her bounty. The legacy to Balaram was illusory as it was charged with all probate expenses and even the value of the property would be hardly sufficient to meet the estate duty, probate duty, law charges and other testamentary expenses. The attesting witnesses were complete strangers to the family and the testatrix had hardly any dealing or relation with Netai Chand Mullick the alleged executor or Nilmoni the identifier. It was further submitted that the will was obtained on false representation of an agreement of lease of her properties at No. 6, Clive Row looked after by Lokenath. The testatrix ws very affectionate to the sons of Radhanath, namely Balaram and Kalachand who were the only male descendents in her husband's line. The testatrix never disclosed having made any will and the will was a false document set up by Lokenath in fraudulent collusion and conspiracy with the relatives on his father-in- law's side with ulterior motive for a wrongful gain. In the circumstances the application for probate, after trial as a contentious cause, should be dismissed. ( 9 ) THE daughter Subhasini also filed her objection to grant of the will by filing an affidavit affirmed by her on April 2, 1971 stating in addition that she was a constant companion of the testatrix who in view of her indigent circumstances sent her, almost daily, during her life time, various gifts of food and other daily necessities. It was further stated that Lokenath took a leading part for the preparation of the alleged will and its execution and in obtaining for himself alone the cream of the properties and all the valuable benefits under the will. No reason was cited for the disinheritance of the testatrix's other sons or for the greatest benefits to Lokenath when all the sons were equally affectionate to her. The testatrix entrusted the management of her properties to her three sons each looking after one property and she reposed great confidence in them until her death. The will accordingly, if executed by the testatrix at all, was approved or executed under undue influence and fraud practiced on her by Lokenath, with the co-operation and agency of his father-in-law, Beni Madhab and his relations and friends in circumstances raising suspicion. The will accordingly was not a valid will of the testatrix at all. ( 10 ) THE application for grant of probate of the impugned will, in view of the contest, was set down as a contentious cause by order of this Court dated June 8, 1971. The applicant for probate was thereby treated as the plaintiff while the caveators and Sm. Subhasini were treated as the defendants and Lokenath as proforma defendant. The application for probate was accordingly treated as the probate the affidavits objecting to the probate were accepted as written statements and directions wee given for steps for expeditious hearing of the suit. K. P. Basu, a member of the Bar was appointed Receiver of the movable properties and of rent, issues and profits of the immoveable properties of the testatrix. ( 11 ) DURING the trial evidence in support of the grant of probate was adduced by K. L. Dutt, the solicitor who stated to have rendered his professional services for the preparation, execution and registration of the will and was an attesting witness to the will. Nilmoni Dutt, also deposed as having identified the testatrix to the attesting witnesses at the time of execution and to the Sub-Registrar at the time of registration of the will. Dr. P. C. Sinha also deposed as the other attesting witness while Lokenath gave evidence about the circumstances leading to the preparation, execution and registration of the will and also the conditions in the family, prevailing at the time of execution of the will and thereafter. Dr. P. C. Sinha also deposed as the other attesting witness while Lokenath gave evidence about the circumstances leading to the preparation, execution and registration of the will and also the conditions in the family, prevailing at the time of execution of the will and thereafter. Netai Chand Mullick, the propounder, also gave evidence about the execution of the will. ( 12 ) THE evidence against the grant of the will was given by Biswanath, the eldest son of the testatrix, Sibdas Mullick alleged to be a senior member of the larger Mullick family of Mohanlal and Dinanath Seal, an employee of Mohanlal and thereafter of his sons, though later he was not under the employ of Lokenath. The daughter Subhasini also gave evidence in support of the caveators. ( 13 ) DOCUMENTARY evidence was also exhibited in the case including the will and markings and signatures thereon, extacts from the day book of K. L. Dutt, draft will, books of account and challans, correspondence, court order and other papers. ( 14 ) THE learned Judge, after discussing the evidence adduced by the parties and in the context of law as enunciated by series of judicial decisions held that the testatrix duly executed the will and the same was dully attested as required in law. The learned Judge come to the finding that the relationship between Biswanath and the testatrix deteriorated at about the time of the making of the will. Biswanath filed the partition suit against the testatrix and her other sons which was much to her dislike; Biswanath also took away against the desire of the testatrix a valuable necklace of the family deity known as 'champakali' which was in her custody for over ten years while she alone performed through the seva puja of the deity. The testatrix also was forced to leave the room, where she had been residing with her husband, and, after his death alone, as by the partition suit, the room was allotted to the share of Biswanath. After the partition suit the family did not remain joint or even closely knit, there being four separate ration cards and meals were taken separately with separate set of servant. After the partition suit the family did not remain joint or even closely knit, there being four separate ration cards and meals were taken separately with separate set of servant. As to Radhanath, it was found that he kept himself completely aloof from family matters and the suit itself except merely lending his name as one of the caveator while in any clash between the testatrix and Biswanath, he supported his brother. There was no evidence that any account was given by Radhanath for the bustee property he managed even though the bustee properties fetched income not substantial enough compared to the property Lokenath managed for the testatrix. ( 15 ) THE learned Judge further found that Lokenath managed the most valuable property of Clive Row, and municipal taxes of all properties were paid by him. The contention that the Clive Row property was held jointly by the testatrix and Lokenath and the fact that the rent was paid jointly by the tenant could be no impediment for separate management if the testatrix intended otherwise. Lokenath also looked after Wealth tax and Income tax cases of the testatrix and disbursed taxes, paid municipal rates and disbursed taxes, paid municipal rates and taxes and repaired the testatrix's portion of the dwelling house. It was obvious, it was held, that the testatrix reposed greater trust and confidence in Lokenath who was her youngest son. As to the daughter Subhasini, it was held that she was sufficiently provided for; as during the life time of her father, she had a gift of two storied house at Calcutta, which apart form being her residence in the first floor, had a fair rental income from the ground floor portion. The court was also op opinion that the will could not be said to be unnatural on the ground that the grandsons were not given further benefits thereunder. ( 16 ) THE learned Judge further found that there was no suspicious circumstances relating the preparation and execution of the will and its registration. The court found no reason to disbelieve K. L. Dutt while the other attesting witness and the propounder were both disinterested persons and so also was Beni Madhab who was not a beneficiary under the will. The court found no reason to disbelieve K. L. Dutt while the other attesting witness and the propounder were both disinterested persons and so also was Beni Madhab who was not a beneficiary under the will. There was nothing suspicious, according to the trial court, in the execution of the will at 200, Bepin Behari Ganguly Street to for it was quite probable that the testatrix wanted to keep her will secret, particularly from her sons who were disinherited. Further the testatrix was intelligent and had the requisite testamentary capacity and evidence was there to prove that she executed the will knowing and realizing its contents. The learned Judge found that the apparently suspicious circumstances brought to the notice of the Court were resolved and accordingly the propounder was entitled to a provate of the will. The caveats were discharged and the probate was granted by the judgment dated July 23, 1976, now under appeal before us. ( 17 ) WE shall now consider the relevant provisions of the Indian Succession Act, 1925 which are as follows :-?section 59. Person capable of making wills. Every person of sound mind not being a minor may dispose of his property by will. ** ** * section 61. Will obtained by fraud, coercion or importunity. A will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. Section 62. Will may be revoked or altered. A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will. Section 63. Execution of unprivileged wills. Every testator not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged or a mariner at sea, shall execute his will according to the following rules :- (a)the testator shall sign shall affix his mark to the will, or it shall be signed by some other person in his direction. (b)the signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect tot e writing as a will. (b)the signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect tot e writing as a will. (c)the will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received form the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more then one witness be present at the same time and no particular form of attestation shall be necessary. ? ( 18 ) IN the context of the above provisions, judicial decisions have also laid down guidelines relevant for the grant of probate of wills. We may refer to the decisions in H. Venkatachala lyengar v. B. N. Thimmajumma, AIR 1959 S. C. 443 the first decision of the Supreme Court, in which, following earlier decisions, Gajendragadkar, J. (as he then was) speaking for the Court set out the propositions as follows :-?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 proved 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 tot h will knowing what it contained???. ? ??????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 idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of a prudent mind in such matters??????. in dealing with the proof of documents. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of a prudent mind in such matters??????. in dealing with 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 sound and disposing state of mind, that he under stood the nature and effect of 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 disposing state of the testator's 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, the cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shakey or doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear so unnatural, improbable and unfair in the light of relevant circumstances; or the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged. Courts would be reluctant to treat the document as the last will of the testator. 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 cavet is filed alleging the exercise of undue influence, fraud or coercian in respect of the execution of the will propounded, such pleas my 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 suspicious circumstances, the will may disclose further infirmity. ?propounders themselves take a prominent part in the execution of the will 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 sufficient benefit under it, that itself is generally treated as a suspicious circumstances attending on the execution of the will and the propounder is required to remove the said suspicion by satisfactory and clear evidence?. The Court noted that what is meant by satisfaction of judicial conscience of the Court is nothing more than the full satisfaction of the court that the will was validly executed by the testator who is no longer alive. Further while no hard and fast or inflexible rules can be laid down for appreciation of evidence, the essential thing is that the propounder of the will has to prove the due and valid execution of the will and if there are any suspicious circumstances surrounding the execution of the will the propoundeer must removed the said suspicions from the mind of the court by cogent and satisfactory evidence, which again depends upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. The judicial approach, where a will is charged with suspicion, enjoins a reasonable scepticism shown both of obduracy in disbelief and credulity in belief. The judicial approach, where a will is charged with suspicion, enjoins a reasonable scepticism shown both of obduracy in disbelief and credulity in belief. ( 19 ) IT has been contended before us that caveators and objectors to the grant of the probate of the will had not been able to prove their case of fraud, coercion or undue influence on the part of the propounder, the beneficiary and their associates as affecting or influencing the making of the will be the testatrix. The contention is not sustainable as it is to be remembered that the proof of a will is not a matter of mere dispute between the contending parties as in ordinary actions. It is, on the other hand, a matter for satisfaction of the judicial conscience of the court by removal by the propounder of all suspicious circumstances, if any, in relation to the preparation, execution and attestation of the will as will lead to the inevitable conclusion that the impugned will was duly executed by the testator and attested by the witness. It is to be emphasised that in a case in which a person who has the largest benefits under the will is taking a prominent part in its execution along with his close relations, the Court must be satisfied, irrespective of the contentions of the cveators, that the will was executed according to law. In its recent pronouncement in Jaswnat Kaur vs. Amrit Kaur AIR 1977 S. C. 74, the Supreme Court while noting the well established propositions in respect of will observed : ?in cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lies between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the Court's conscience and then the true question whether the evidence led by the propounder of the will is such as to satisfy the conscience of the Court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will?? ???if the caveator alleges fraud, undue influence, coercion etc. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will?? ???if the caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is part of the initial onus of the propounder to remove all reasonable doubts in the matter???? ( 20 ) COMING to the facts of the case, there can be no dispute that the dispositions on the face are unnatural, unfair and unreasonable. While the youngest son had been given a legacy of the most valuable properties, like the testatrix's portion of residential house and tenanted premises of Clive Row in the center of the commercial complex of the other two sons had been completely disinherited. Again grandson had been given a bustee property with small rental income charged with all expenses for obtaining probate, thus freeing the legacy to the said youngest son Lokenath of all obligations of statutory taxes and testamentary expenses. Similar legacy of another bustee land had been bequeathed to the daughter of alleged indigent circumstance in life interest and thereafter absolutely to the youngest son both the latter legacies to particular grandsons being without any apparent reason. Further the legacy of the portion of the ancestral residential house to Lokenath would in the natural course ultimately lead the property going out of the family of Mohanlal the husband of the testator, inspite of the existence of male lineal descendants. In addition, the will was prepared and thereafter executed, attested and registered all by and in the presence of the people belonging or exclusively known to Lokenath and the family of his father-in-law and his associates and Lokenath's father-in-law's residence. ( 21 ) APART from the legacy, the genesis of the will, its preparation execution and attestation cast doubts in the mind of the court about the will being a testament made on her own volition by the testatrix as will be presently examined by us. ( 21 ) APART from the legacy, the genesis of the will, its preparation execution and attestation cast doubts in the mind of the court about the will being a testament made on her own volition by the testatrix as will be presently examined by us. All these appear to be suspicious circumstances attending the execution of the will and the propounder must remove such suspicions, irrespective of the caveators' failure to establish the case for rejection f the will, before a grant of probate may be made. ( 22 ) A contention that the will was never executed by the testatrix was raised before us by the caveators which needs be examined. It is obvious that the caveators were not present when the will was alleged to have been executed and attested. The propounder's witnesses deposed in Court stating that the will was duly executed and attested and if their evidence is believed, there is an end of the matter. In this case there was an impediment in regard to the execution by the testatrix who, being admittedly an illiterate person, always executed documents by putting a cross mark. There is nothing distinctive about such makings and, as in usual cases, we are unable to compare signatures of the testatrix in the will with her admitted signatures in other documents. It appears that there is a left thumb impression of the testatrix on the original will put before the sub-Registrar as required in law, but there was no document on record containing such admitted thumb impression of the testatrix. It transpired during hearing before us that the testatrix had executed a power-of-attorney on August 19, 1953 before the partition suit authorizing each of the three sons to mange her properties and to do all acts in connection with her estate jointly and severally. This power-of-attorney which was never revoked, was executed by the testatrix as usual by cross mark but as the deed was registered, it contained a left thumb impression f the testatrix put thereon at the time of its registration. This Court on its own, directed the propounder to cause it to file in this proceeding which was accordingly done. The thumb impression was marked and exhibit on admission. This Court on its own, directed the propounder to cause it to file in this proceeding which was accordingly done. The thumb impression was marked and exhibit on admission. We have thereafter compared these two thumb impression and in view of the perfect similarity in lines, curvings and loops between the two impressions, apparent on the face we have no doubt that Sarjokumari put her thumb impression on the will before the Sub-Registrar when he visited her at 200, Bepin Behari Ganguly Street on May 19, 1984 for registering the document. We are no in position to say at this stage whether the marking on the will alleged to have been made on May 17, 1964 was hers till we have examined the evidence adduced by the propounder more fully. ( 23 ) LET us now examine the genesis of the will in the light of the evidence adduced by the propounder. According to Lokenath Mallick in May 1964 the testatrix was in a depressed state of mind against her other two sons as Biswanath to avoid payment of marriage expenses of a daughter of Lokenath out of his joint family funds instituted a partition suit against her and his brothers which resulted ultimately in her being forced by Biswanath to leave the room she had been as the room fell in his allotment. Further she was forced by Biswanath to part with 'champakali' even in Chaitra of 1963 which she did in tears while it was with her for long year said brothers became separate in mess after the partition Radhanath supported Biswanath in his demand for possession of the room of the testatrix and delivery of 'champakali'. Lokenath's evidence was also that being then in a depressed state of mind she asked him to take her to his father-un-law Beni Madhab, who was also a distant relation of hers, as she wanted to make a will so that none would know about it. She was taken to Beni Madhab and made open breast of affairs of her family. Beni Madhab then asked Lokenath to see him on another date when he would take him to a Solicitor Krishna Lal Dutt and a close friend of his who was not an absolute stranger to the family. Lokenath accordingly introduced to K. L. Dutt by Beni Madhab when as directed by Beni Madhab he spoke everything to K. L. Dutt. Beni Madhab then asked Lokenath to see him on another date when he would take him to a Solicitor Krishna Lal Dutt and a close friend of his who was not an absolute stranger to the family. Lokenath accordingly introduced to K. L. Dutt by Beni Madhab when as directed by Beni Madhab he spoke everything to K. L. Dutt. K. L. Dutt then said that he would visit their house and hear everything from the mother. Being asked as to why he took Beni Madhab to K. L. Dutt who was already known to him, Lokenath stated that the reason was that he would not be able to explain the matter to K. L. Dutt (Q 79) and his father-in-law stated all facts to Dutt (Q 81 ). At that stage however, Beni Madhab was merely required only to make arrangements for the will and not to discuss all facts with the Solicitor. Then Dutt called on the mother on a Sunday afternoon (May 3, 1964) when he took down notes of her instruction as to dispositions she wanted to make (Ext. 01) and was asked to draw a will. This is sought to be supported by the entry in Day Book of Dutt (Ext. B 1) On the following Sunday after noon on May 10, 1964 Dutt came with draft which is Ext. C. ( 24 ) THE evidence of K. L. Dutt is that the notes were taken down by him on the basis of instructions given by the testatrix on May 3, 1964 when he first met her and on the following meeting on May 10, 1964 he come with the draft of the will drawn by him earlier on May 6 (Ext. B 2 ). The notes Ext. 01 is as follows :-?to give to her youngest son Lokenath who is dear to her and look after her affairs her portions of 26/1e Prasanna Kumar Tagore Street and 6, Clive Row and also the rest and residue of her properties. ? in the draft will Ext. B 2 ). The notes Ext. 01 is as follows :-?to give to her youngest son Lokenath who is dear to her and look after her affairs her portions of 26/1e Prasanna Kumar Tagore Street and 6, Clive Row and also the rest and residue of her properties. ? in the draft will Ext. C, drawn on basis of above instructions we find as follows :-?i give devise and bequeath my said portion of 26/1e, Prasanna Kumar Tagore Street, Calcutta and also my back portion of premises No. 6, Clive Row, Calcutta, to my youngest son Sriman Lokenath Mallick who is very dear to me and who looked after me and my affairs, absolutely and for ever. ? the insertion of words ?very? before ?dear? and ?after me and? between ?look? and ?my affairs? were embellishments made by K. L. Dutt obviously under instructions form interested parties. The explanation that the draft was generally approved by the testatrix later even if true does not authorize the embellishment on factual instructions which have deep implications. ( 25 ) THOUGH the day book appears to be punctilious record of events no instructions were recorded therein Ext. B 1 or even in the notes of instruction Ex. 01 both of May 3, 1964 about any executor to the will. In the typed draft prepared on May 6 produced on May 10, the name of the executor, who is no other than Netai Chand Mullick, son of Beni Madhab and brother of the wife of Lokenath finds its proper place. Explanation is forthcoming but the omission appears curious at the state of records maintained by K. L. Dutt and the suspicion that the suggestion come from the interested quarters gains firm foundation. The will was to be executed at Beni Madhab's residence which was for alleged reasons of secrecy though at the earlier tow meetings no serious attempt was made therefore as open meetings on Sunday afternoons in the joint residence would indicate. K. L. Dutt's evidence about secrecy was based on his impression though he never spoke to the testatrix about it (Q 360) while Lokenath's positive evidence was to the contrary. According to Lokenath the testatrix told K. L. Dutt to keep the execution mater secret as other sons would start clamouring (Q 352) which was not the evidence of Dutt. K. L. Dutt's evidence about secrecy was based on his impression though he never spoke to the testatrix about it (Q 360) while Lokenath's positive evidence was to the contrary. According to Lokenath the testatrix told K. L. Dutt to keep the execution mater secret as other sons would start clamouring (Q 352) which was not the evidence of Dutt. There is no evidence when and how the arrangement for execution at Beni Madhab's residence was made with him. ( 26 ) K. L. Dutt climed some intimacy with the testatrix, though he never did any legal work for her before. He stated that he visited Lokenath's house before the will 40/50 times (Q 168) or 20/25 times (Q 175) meeting the testatrix on some occasions after Lokenath's boubhat (Q 99) but saying again that never met Saroj Kumari after boubhat (Q 104 ). ( 27 ) LOKENATH's invariable presence at the meetings of Sarojkumari with K. L. Dutt, his arranging with the aid of Beni Madhab his close friend as lawyer in the matter of the will, his taking Sarojkumari to Beni Madhab's on two occasions for discussions and for execution, his presence again at the execution and registration and even at the time of K. L. Dutt's Delivery of the registered will to Sarojkumari (Ext. 88) all indicate the deep interest and prominent part h was taking for preparation, execution, registration and safe custody of the will in which he was the largest beneficiary. ( 28 ) THE meeting at the time of execution of the will displayed a strange spectacle. The will was prepared by a Solicitor who had been a close friend of the father-in-law of the largest beneficiary, and also selected by the father-in-law. The attesting witness were the Solicitor and his friend a doctor who had never seen or known the testatrix or her family before. The testatrix was identified before the witness by a person who was never known to the doctor or the solicitor and was the brother of Beni Madhab's wife. The executor of the will was Netai Chand Mallick a brother of Lokenath's wife and son of Beni Madhab and Beni Madhab also was present there arranging tea and sweets. The majlis sat at Beni Madhab's residence where except the testatrix persons present were all of Lokenath's family and interested in him except the doctor. The executor of the will was Netai Chand Mallick a brother of Lokenath's wife and son of Beni Madhab and Beni Madhab also was present there arranging tea and sweets. The majlis sat at Beni Madhab's residence where except the testatrix persons present were all of Lokenath's family and interested in him except the doctor. The learned Judge observed that neither Beni Madhab nor Netai were in any way benefited by the will. It was overlooked that Lokenath was their close and dear relation and any benefit to him would inure to the beneficial interest of a girl of their family. No senior or any member of the family of Mohanlal or any disinterested person or even R. N. Mallick her Solicitor who was appointed the Commissioner in the partition suit and against whom no complaint was ever made by Sarojikumari at any material time, was ever consulted. It is difficult to resist the conclusion that in such circumstances it would not be possible for the testatrix, surrounded as she was all through by interested persons with the invariable presence of Lokenath always near her, to act voluntarily and as free agent even if we assume that she under stood the contents of the will and its effect on persons who had also a claim on her bounty. ( 29 ) THE will mentions that Lokenath the largest beneficiary was very dear tot eh testator and looked after her and her affairs but nothing had been mentioned therein as to reason of complete disinheritance of her two sons. Of course, it is no requirement of law that the will should be a speaking document. Even so when a son the largest beneficiary had been mentioned as very dear tot eh testator, the reason in the will for complete deprivation of other sons, which were certainly the result of serious consideration for the testatrix, could be reasonably expected to be recorded in the will. Except a bare statement of deprivation, alleged to have been inserted in the will by the express direction of the testatrix at the time of the approval of the draft, there was no other reference in the will itself, while her behavior to the said sons, daughter and other family members before, about and after the alleged will indicated no charge in attitude on the part of the testatrix as the evidence would indicate. ( 30 ) THE legacy to Balaram illusory as would appear from the evidence adduced by the parties. The land bequeathed to him were bustee land with thika tenants thereon who in law have a valuable right to the land and are practically non-ejectable except under stringent conditions. The legacy was subject to a charge for payment of estate duty, probate duty and testamentary expenses. K. L. Dutt during discussions with the testatrix gave out the expenses to be about Rs. 10000/- to Rs. 15000/- estimated as a non-contentious cause, which having regard to the nature of the legacy was obviously contrary to the reasonable view of a prudent man. The will on the basis of above estimate provided that if Balaram paid the amount personally, he would get the legacy absolutely but otherwise the legacy would be subject to charge for the said expenses. At the time the will was executed in 1964, there was evidence that Balaram was not an earning member of the family (Lokenath Q 55) to pay the amount personally. Further there is no cogent reason for making the property subject to a charge for Rs. 10000/- to Rs. 15000/-, which is more now being a contentious cause, when the property was a bustee land fetching an annual gross income of Rs. 3000/- or so subject to municipal taxes with practically non-ejectable right of tenants thereon. There was no reason why Balaram should be given an illusory legacy although the testatrix was very fond of him while Lokenath was to receive the most valuable properties free from any obligation as to statutory duties and expenses. There is also no reason why Kalachand the other grandson should be depenses. There is also no reason why Kala was fond of both of them (Lokenath Q 386, 52) or why Subhasisni who was in indigent circumstances and her son should be given a pittance compared to other legacies. Further the ancestral residential property in respect of the portion of the testatrix was given away by the will to Lokenath who had only daughters and on whom the property would eventually vest. Such disposition, as introducing persons not of the family of the husband of the testatrix in ancestral residential house is foreign to notions of conservative and old fashioned Hindu family which the testatrix was expected to prevent. Such disposition, as introducing persons not of the family of the husband of the testatrix in ancestral residential house is foreign to notions of conservative and old fashioned Hindu family which the testatrix was expected to prevent. Further no ground for deprivatio of Radhanath was there except the allegation that he supported Biswanath as stated by Lokenath without any corroboration form independent course. ( 31 ) NETAI's consent for execution-ship was not taken till immediately before the execution of the will, while his name without consent was typed out in the engrossed will and there was no indication about any alterantive nominee in case Netai was unwilling to act as such K. L. Dutt's evidence was that he was asked by the testatrix to bring an attesting witness at the time of execution, to which he readily agreed. It is to bring an attesting witness which was no part of his duty as a Solicitor. As the attesting witness, K. L. Dutt brought a friend of his Dr. P. C. Sinha who however was also a complete stranger to the family and never saw the testatrix before. She was again identified to him by Nilmoni whom also he never knew before. Nilmoni was the brother of the wife of Beni Madhab, thus an uncle-in-law of Lokenath. The reason for introduction of this attesting witness was, according to Dutt (Q 463) that the attesting witnesses to the will ?must be known to each other?. This proposition has no legal warrant and Dutt considering his experience should have known better. Further in regard tot eh registration of the will, which in law is not necessary except adding some solemnity to such will, a recourse was adopted which was a fraud on registration. Under section 38 of the Registration Act, 1908 a person, amongst others, who by reason of bodily infirmity, is unable without risk or serious inconvenience to appear at the registration office, shall not be required so to appear at the registration office in connection with the registration of a document and in such case the registering officer shall go to the house of such person and examine him or issue a commission for his examination. In the case before us no such bodily infirmity or inconvenience of the testatrix had been alleged no was the testatrix a purdanashin woman as her appearance unveiled in this Court (Ext. 2) indicated. In the case before us no such bodily infirmity or inconvenience of the testatrix had been alleged no was the testatrix a purdanashin woman as her appearance unveiled in this Court (Ext. 2) indicated. The registration at Beni Madhab's house was obviously through an untrue representation by K. L. Dutt who admittedly applied for commission (Ext. B 6 ). Further the commission could be applied for at the house of the testatrix and never at the house of Beni Madhab which was never her residence but registration of the will was effected there and the registration endorsement on the will recorded the Sub-Registrar having visited the residence of the executant when execution was admitted before him. It is, indeed, regrettable that persons responsible for bringing this will into existence were resorting to devices of this nature presumably under legal advice. Again the evidence of K. L. Dutt and his day book indicated that the original will was taken back by him form the registration office on June 6, (Ext. B 8 and Dutt Q 73 ). According to evidence of Lokenath the will was thereafter kept by the testatrix in her ironsafe and continued to be there till it was taken out therefrom under orders of the court as the petition of Netai filed on August 3, 1970 would also indicate. In this petition in the connected proceeding in which K. L. Dutt was acting as the Solicitor, a complete copy of the will with registration endorsements was annexed. How and when the copy ws prepared and could be in possession of the propounder remained to be an unexplained mystery. All these be an unexplained mystery. All these result in suspicion mounting on suspicion. ( 32 ) THERE are broadly the suspicious circumstances some of which were pointed by Mr. Dhar who appeared for Srimati Subhasini while some others attracted the attention of the court on its own on examining the evidence. Mr. Dey appearing for the propounder and Mr. Mallick for Lokenath attempted to remove the suspicion in the mind of the Court by referring to various features in the family relationship of the parties with the testatrix and the attending circumstances to which we shall now advert in some details. Mr. Dey appearing for the propounder and Mr. Mallick for Lokenath attempted to remove the suspicion in the mind of the Court by referring to various features in the family relationship of the parties with the testatrix and the attending circumstances to which we shall now advert in some details. ( 33 ) IN respect of the situation prevailing in the family during the period relevant for out considertion, we have the evidence of Biswanath and Subhasisni on the on hand and of Lokenath on the other. There is also the evidence of Sibdas Mallick, a cousin of Mohanlal and the second senior most member of the larger Mallick family and Dinanath Seal a sarkar of the family with 13 employees collecting rent on behalf of the Mullick's including the caveators. ( 34 ) IT has been suggested on behalf of the propounder that the partition suit was filed by Biswanath to avoid payment from the joint estate the expense of marriage of Loknath's daughter though the marriage expenses of his own daughters were paid from the joint estate. It was the further evidence from Lokenath that though such marriage was settled in 1956 on account of the partition suit the marriage could not take place earlier than 1959. Sarojkumari was hurt by the attitude of Biswanath, though Radhanath supported Lokenath's position in this regard, claiming further the marriage expenses of his elder son from the joint estate. She was also hurt by the institution of the partition suit by Biswanath and promptly settled the suit without much and to avoid criticism of erstwhile co-sharers of larger Mullick family. It has been argued by Mr. Mallick that there was no necessity for filing the partition suit when there was no dispute about the respective shares of the parties, as such suits are usually filed when there is a controversy in regard to quantum of shares of the co-sharers. ( 35 ) IT is not correct to suggest that no partition suit is necessary when the shares of co-sharers are well known and without any dispute. The petition suit are also instituted when a co-sharer desires to live separately from his other co-sharer in his demarcated portion; of course partition in such cases may be done amicably but if there is no agreement about allotments as here, there is no alternative to a partition by metes and bounds by the Court. The petition suit are also instituted when a co-sharer desires to live separately from his other co-sharer in his demarcated portion; of course partition in such cases may be done amicably but if there is no agreement about allotments as here, there is no alternative to a partition by metes and bounds by the Court. Biswanath's evidence is that he partition suit was filed by agreement and accordingly there was no occasion for Sarojkumari to feel adverse to Biswanath. It may be noted that the suit was filed on August 26, 1956 and the terms of settlement for a preliminary decree declaring shares and for final decree on basis of division and allotment to be made by the Solicitor of the defendants R. N. Mallick was filed on September 5, 1956. It is difficult to appreciate the contention of Mr. Mallick when Sarojkumari also had her specific separate allotment in the properties and the prompt agreement in respect of the terms indicated the balance of probability in favour of the partition being by agreement of the parties effected through the court, for if she became adverse to Biswanath for filing the suit, she could have asked for joint allotment with others which was not the case. As to marriage expenses of his daughter which was celebrated in 1959, Lokenath's evidence was that he himself paid the expenses (Q. 10 ). If the expenses were not paid from the joint estate as alleged, one should have expected a substantial contribution from the testatrix which was stated to be her original intention but there was no evidence as to any contribution being made by her in respect of such expenses. ( 36 ) AS to the case that the testatrix was hurt for being forced to leave the room she had been occupying, it is to be remembered that in the partition suit, in respect of the allotment she could have easily made a condition for allotment of the room to her or for when the suit was decreed on consent of parties while the Commissioner directed adjustment of possession as agreed by parties within one year of confirmation of return which was March 6, 1962. ( 37 ) FURTHER, it is in evidence that she continued to go on pilgrimage with Biswanath and his wife admittedly till 1961. ( 37 ) FURTHER, it is in evidence that she continued to go on pilgrimage with Biswanath and his wife admittedly till 1961. The relationship between the testatrix and Biswanath and his wife thus continued to be normal even long after the filing of the partition suit in 1956 and no grievance could reasonably be there in respect of allotment which was not only an inevitable consequence but based on agreement of parties. ( 38 ) IT has next been suggested behalf of the propunders that the testatrix ws seriously hurt in Chaitra of the year 1963 when Biswnath peremptorily asked her to deliver 'champakali' to him. Even her request to wait till Baisakh was not acceded to and bitterly weeping she handed over the same to him (Lokenath Q 41-2) and in this demand Radhanath supported his elder brother (Lokenath Q 43 ). According to Biswanath the testatrix, after partition on her own requested him to take delivery of the ornament which belonged to the deity according to Arpannama of their grandmother late Premomoyee and Biswanath being the eldest male member of the time was the Shebait an entitled to its possession thereunder. It is his further evidence that she smilingly handed over 'champakali' on an auspicious day in Chaitra fixed by her for the purpose (Biswanath Q 216 ). She was, however, in possession of 'champakali' for long ten years after death of Mohanlal and all through performed the seba puja of the deity, retaining in her possession till her death all other small jewellery in her ironsafe as the deity was adorned on festive occasions with such jewellery while 'champakali' was never put on the deity (Biswanath Q 225, 226 ). It further transpired in evidence that in April 22, 1966, Biswanath filed an application in respect of Rs. 10000/- worth G. P. Notes belonging to the deity for grant of letters of administration to him (Ext. 07) as such shebait of the deity, which was consented to by the testatrix and Radhanath while Lokenath, who filed the caveat earlier, withdrew the same later (Ext. 06), and the grant was accordingly made on December 5, 1966 (Ext. 05) to Biswanath. ( 39 ) SUBHASINI in her evidence also said (Q 413, 345, 356) that the testatrix made over 'champakali' after she returned from Bharat Darshan tour she lastly had with Biswanath. 06), and the grant was accordingly made on December 5, 1966 (Ext. 05) to Biswanath. ( 39 ) SUBHASINI in her evidence also said (Q 413, 345, 356) that the testatrix made over 'champakali' after she returned from Bharat Darshan tour she lastly had with Biswanath. There is no independent witness to apprise the Court of the real state of affairs, 'champakali' was gifted to the deity by Sm. Premomoyee Dasi, mother of Mohanlal, was admitted also by Lokenath in his affidavit of May 26, 1971 (Ext. H) and it also appears from ext. 010 that the surviving eldest male descendent in the direct line of descent was to act as Shebait of the deity and this position was known to Subhasini and obviously to the mother who would otherwise have refused to part with 'champakali' if she had any legal right over the same. Though it is neither possible nor necessary to dive into the mind of the testatrix and it may also be that small things may cause a scar in mind and cumulatively from the testator's attitude to those claiming her bounty, as suggested by Mr. Mallick, on the evidence on record it does not appear to us that delivery of 'champakali' was forced on the testatrix against her will following a peremptory demand from Biswanath. It was more probable that the act was a voluntary act on her part as her consent later in 1966 after the will of 1964 to the grant of letters of administration to Biswanath would indicate. In the context of the circumstances we are unable to come to the conclusion about the existence of a situation which could be a positive factor for completely disinheriting the caveators and the daughter. ( 40 ) OUR attention was drawn to the preferential treatment meted cut to Lokenath in respect of the management of the properties of the testatrix. The most valuable property was entrusted to the management of Lokenath after partition ad during the pendency of the partition suit, Lokenath and Narendra husband of Subhasini were appointed joint Receivers of the suit properties for some time till a Receiver was subsequently appointed by the Court. It is also said that Lokenath looked after the tax matters of the testatrix and paid municipal rates and taxes of all properties of the testator. It is also said that Lokenath looked after the tax matters of the testatrix and paid municipal rates and taxes of all properties of the testator. It has come out in evidence that the testatrix was allotted portion of back portion of 6, Clive Row, the other portion of the said back portion being allotted to Lokenath and both the portions of the back portion, which could not be physically partitioned (Lokenath Q 278), were in the occupation of one tenant. It was thus obviously convenient, for realization of rents that Lokenath should collect the same. Further while the other properties fetched a meager income in rent, the rental income from the Clive Row property was substantial. Rs. 2000/- per month according to Biswanath and Rs. 1200/- per month according to Lokenath, and it was only natural and possible that the outgoings should be paid from this course. The same it the position in regard to taxes payable by the testatrix Lokenath further stated that (Q 529) Gopinath Boral attorney used to look after testator's tax maters and the deponent himself returns except keeping the papers with him and obviously paying the taxes. As to Receivership, Lokenath was a joint Receiver with Subhasisni's husband by consent of all parties and such appointment, without more, appears to us to be of little or no significance in relation to bequests by the testator. ( 41 ) IT has been urged that after the partition, the family become separate on the insistence of Biswanath also of Radhanath and Sarojkumari started living with Lokenath in joint mess with him (Lokenath Q 35) even though she was unwilling to have separate mess. It was further said that Biswanath and Radhanath after partition built their separate kitchens in their respective portions and their food was cooked there. (Q 163-4, 258) while Lokenath's wife prepared food for her family and for the testatrix under her guidance (Q 257 ). Biswanath's evidence was that they all continued to be in joint mess with only one kitchen and food was prepared under the supervision of the mother through a cook while another servant Babaji used to serve food in the respective rooms as there was no common dining room. The monthly expenses were looked after by the mother who kept accounts and the sons paid money to her though he had no idea about the monthly expenses incurred. The monthly expenses were looked after by the mother who kept accounts and the sons paid money to her though he had no idea about the monthly expenses incurred. The salary of Babaji and the cook was paid form the joint estate though the brothers had separate servants at their own costs and this arrangements continued till her death (Q 66, 610-20 ). It is also the admitted position that the ration cards were separated for each group after partition (Q 745-6 ). As to separate kitchens, according to Biswanath they were constructed after the death of the mother (Q 661, 668) though no account books were produced. ( 42 ) ACCORDING to Sibdas, the relationship of the mother and other members of he family was and continued to be quite good though he declined to say anything about food and messing arrangement in the testatrix's family (Q 16 ). Dinanath said that the relationship of the parties was quite good (Q 16) and the messing was joint with the mother looking after the arrangements. Subhasini's evidence was that food was taken together and some times food used to be sent t respective rooms of the brothers when they would be going to the office, and, otherwise they would have their meal in the mother's dining room. ( 43 ) THE evidence in respect of separation of mess after partition and Sarojkumari's living in joint mess with Lokenath is rather meager and insufficient to enable the court to come to any conclusion. The separate set of ration cards by themselves were indicative of no definite position, for if four separate set of ration cards destroyed the presumption of jointness between the mother and the sons as found by the trial court, the two separate set of ration cards between Sarojkumari and Lokenath would have the same effect. The evidence about taking meals jointly by the sons and daughter as stated by Subhasini contradicted the evidence of Biswanath that the kitchen for taking meals become unsuitable for the purpose. Since it is the case of the propounders that Lokenath was favoured to the exclusion of others as he was in joint mess with her after the partition and looked after her to the exclusion of others, the burden of proof lay on them to adduce sufficient evidence in support of their case. Since it is the case of the propounders that Lokenath was favoured to the exclusion of others as he was in joint mess with her after the partition and looked after her to the exclusion of others, the burden of proof lay on them to adduce sufficient evidence in support of their case. The arrangement stated by Biswanath about messing after partition to the effect that the mother was in sole charge of messing with funds contributed by the sons finds with funds contributed by the sons finds support in the terms in the partition suit which provided for joint Receivership of Lokenath and Narendra with direction on them for payment to Sarojkumari of Rs. 500/- per month for meeting the joint food expenses of the parties, their respective member and cooks (Ext. 2 ). The evidence of Lokenath as we have seen, is in contradiction to the evidence of Biswanath and Subhasini in material particulars even if we discard the evidence of Dinanath though there is no obvious reason for doing so. In the circumstances, we are unable to accept the evidence of Lokenath as an interested witness in absence of corroboration, in the context of his taking a prominent par in preparation, execution and registration of the will of which he was the largest beneficiary. ( 44 ) ABOUT relationship of the testatrix with her sons and daughter after partition there is evidence of Biswanath and Lokenath in support of their respective cases, while Subhasini's evidence was that the relationship was cordial till her death. Sibdas and Dinanath also testified that the relationship of the testatrix with the family members was cordial till her death and it will not be proper to discard such evidence. The learned Judge has commented that members of the family were not concerned with others, as Biswanath could not say what was the last illness of Sarojkumari or who was the attending physician. Assuming the findings as correct, inspite of the evidence of Biswanath to the contrary, the relevant time is not 1970 but 1964 when the will was made. ( 45 ) IT is also the position that Subhasisni used to visit the mother frequently and stayed with her and the mother also, in view of her indigent circumstances, used to help her frequently with articles of food and clothing. ( 45 ) IT is also the position that Subhasisni used to visit the mother frequently and stayed with her and the mother also, in view of her indigent circumstances, used to help her frequently with articles of food and clothing. It is said and there is no dispute that Subhasini was given a house in the locality by her father Mohanlal at the time of her marriage and its ground floor fetched a monthly rental income of about Rs. 300/- while in the upper floor Subhasini lived with her family and she was not that indigent as sought to be pointed by the caveators and further all her sons had been suitably employed. As we have seen Narendra, Subhasini's husband, was unemployed for long and the financial condition of the daughter was to be considered also in the context of the status of the brothers, each of whom had cars for their own use, apart form ancestral property and their employments and there is also no evidence that her sons were employed at the time of making the will in 1964 which is the material date for consideration. ( 46 ) BEFORE we part with this aspect of the controversy, relationship of the sons and their wives with the testatrix may be further considered. Lokenath's evidence was that Biswanath's wife once slapped by Sarojkumari which was denied by Biswanath. It is the further evidence that Biswanath's wife came in this family when she was seven years of age and such a situation even if possible would be of little significance without further evidence. We have seen Subhasini's evidence about the good relationship between the mother as also other family members and in absence of further and independent evidence we are not in position to hold that the relationship after partition became bitter between the testatrix and the group of caveators and their family members. ( 47 ) ON Radhanath it has been stated that he had not come forward to disprove the allegations against him to disprove the allegation against him adduced by Lokenath should be accepted. Radhanath joined Biswanath in filing he caveat and except that he had not taken any part in these proceedings and the appeal before us is only by Biswanath. Radhanath joined Biswanath in filing he caveat and except that he had not taken any part in these proceedings and the appeal before us is only by Biswanath. The contention on behalf of the propounders would have considerable force in adversary proceedings, but in matters for grant of probate the position is otherwise. The propounders setting up a will have to establish not only the due execution and attestation of the will, but also to remove all suspicious circumstances relating there to where inter alia the dispositions are inequitable and unnatural bequests as hers. Except bare suggestions by Lokenath of Radhanath's supporting Biswanath in respect of the removal of the testatrix from her room in consequence of partition, parting of possession of Chamkali and separqte mess after partition there is no evidence of any overt act by him causing displeasure to the testatrix, while admittedly she was fond of her two sons, a situation incompatible with alleged bitter relation of Radhanath with his mother. The allegations in respect of the removal of the testatrix from her room and about 'champakali' have no significance as held by us while there is no acceptable evidence in respect of separate messing after partition. It is also Lokenath's evidence that testatrix was fond of Balaram and Kalachand, though she was more attached to Balaram. There was no evidence why Lokenath should be preferred for the residential premises which would mean introduction of foreign elements in her portion of the residential house when there were male lineal discendents in existence dear to her who were in effect completely deprived from her bounty without any reason. The propounders thus have failed to remove the suspicions in respect of the disinheritance of Biswanath and Radhanath, pittance to subhasisni and her son, and , ignoring of the grandsons. The initial onus on them thus has not been discharged by the propounders. ( 48 ) ALL the above conclusions, however, will be of no effect if the propounder prove by satisfactory evidence that the will was signed by the evidence that the will was signed by the testatrix, and that the testatrix at the relevant time was in sound and disposing state of mind, that she understood the nature and effect of her own free will and the will was thereafter attested. If the will was executed in the aforesaid circumstances, the improbable, unnatural and inequitable bequests by themselves will not invalidate the will, though the court will be vigilant in examining the evidence adduced by the propounders in such circumstances. ( 49 ) THE evidence was to the preparation of the will has been given by K. L. Dutta and Lokenath while documentary evidence has also been adduced as indicated above. It is an admitted position that the testatrix was in complete possession of her mental faculties and was also an intelligent person though illiterate. The preparation of the will upto the final draft has been sought to be established by K. L. Dutt, Lokenath, entries in day book, notes of instructions and the draft will. As to whether the draft was in accordance with the desire of the testatrix, we have no independent evidence. There is this unfortunate situation that in the constant and continued presence of the largest beneficiary who happens to be the son-in-law of and old and close friend of the solicitor entrusted with the making of the will, the instructions were taken and will, of an illiterate testatrix drafted who had no other means of knowing the contents of the will except through words of mouth of such solicitor. In these patently suspicious circumstances it is unfortunate further that K. L. Dutt should have taken the entire responsibility for preparation, execution and registration of the will all by himself, staking the reputation of his career in absence of any independent person. More so, when the never acted as the lawyer of the testatrix on any occasion before and was briefed to act in the only and last act of his new client by his old and close friend who was deeply interested in one to be made the largest beneficiary by the will to be prepared by him. ( 50 ) WE shall now examine if there was any independent evidence to show that the testatrix was made aware of the contents of the will prior to its execution. At this state, we rule out the contention that the cross mark put was not of the testatrix but of somebody else, in other words the challenge was to the identity of the testatrix. At this state, we rule out the contention that the cross mark put was not of the testatrix but of somebody else, in other words the challenge was to the identity of the testatrix. We do not think that there is much substance in this contention since K. L. Dutt also gave a description of the physical features of the testatrix and there is no reason to disbelieve the testimony of the witnesses, who knew the testatrix in this respect only. One of independent witnesses to the execution of the will is Dr. P. C. Sinha who saw the testatrix for the first time and was selected by K. L. Dutt for the purpose. His evidence is that at the time of the execution of the will the impugned will was read over and explained in Bengali by K. L. Dutt to her and testatrix put her cross-mark to it and then somebody not known to him before identified her. Thereafter K. L. Dutt and this witness signed the document, obviously as attesting witnesses. ( 51 ) K. L. Dutt also endorsed in the document that the will was explained by him to her. The moot question as what was explained to the testatrix? The witness Dr. Sinha on being asked (Q 57) stated that he did not personally read the will but K. L. Dutt read it and explained to her in Bengali and the witness heard it. The witness also did not remember any thing at all about the contents of the will, and he also admitted that he had no copy of the will in his hand (Q 187, 188 ). ( 52 ) NILMONI Dutt, who identified the testatrix before attesting witnesses, also said that at the meeting K. L. Dutt read the will to her and also explained the contents of the will in Bengali to her (Q 6) and the testatrix said that she under stood the contents of the will and put her marks thereon. Then the witness identified her and K. L. Dutt and the doctor signed the will as attesting witnesses. Then the witness identified her and K. L. Dutt and the doctor signed the will as attesting witnesses. This witness, brother of Beni Madhab's wife, claimed to be a relation of the testatrix, having common great grandfather, though he had not much social relation with her and did not much social relation with her and id not know the family affairs of the testatrix except what he heard from others. He further stated that he knew the document to be the will of Sarojkumari since it was executed by her by putting cross mark and she also requested him to put her name against her cross mark (Q 97 ). He also said that he did not read the will before and knew the contents thereof by hearing from K. L. Dutt (Q 99 ). ( 53 ) NETAI Chand Mallick, the propunder, who was present at the residence by accident, though his presence was essential to ascertain his consent to executorship already named in the will, had no prior knowledge of the will and its dispositions. He was thus not in a position to say nor did he say in evidence that what was read by K. L. Dutt to the testatrix prior to execution was contained in the will. Lokenath spoke about the Sub-Registrar reading the will to the testatrix at the time of registration of the will. There is no obligation in law on the Sub-Registrar to read out the contents of a document presented for registration before him to the executant except to be satisfied bout the execution and the Sub-Registrar was also not produced as a witness in this proceeding. No other witness present at the time of registration had said so and as such evidence of Lokenath in this respect also is unacceptable. There is no independent evidence other than the evidence of interested persons like K. L. Dutt and Lokenath that what was read out and explained by K. L. Dutt to the testatrix was also contained in the will. There is no independent evidence other than the evidence of interested persons like K. L. Dutt and Lokenath that what was read out and explained by K. L. Dutt to the testatrix was also contained in the will. Accordingly it is difficult for us in the discharge of out duties as testamentary judges to accept the uncorroborated and improbable testimony of K. L. Dutt and Lokenath, who were both interested witnesses, on the facts and in the circumstances of this case about the preparation and execution of the will as expressing correctly and truly the desire and wishes of the testatrix relating the disposition of her properties as made therein as also the documents exhibited in support thereof. It is thus clear that though the will was executed by the testatrix by putting he mark thereon and she had the requisite testamentary capacity, even so the will did not contain or express her wishes and dispositions, so that she did not understand or realise the nature and effect of her dispositions contained in the will when she put her mark in execution thereof. The inevitable conclusion is that the will was obtained by fraud and is thus void under Section 61. ( 54 ) MR. Mallick submitted that if the will was obtained by undue influence, there was a long period of time before her death when the testatrix could easily disclosed to his other sons or daughters that she was forced to execute such will but such revocation was never made which, according to Mr. Mallick, clearly showed that there was no question of undue influence in the matter of executor of the will. Assuming the contention to be sound, it was obvious that the testatrix was kept in the belief that the impugned while, on the finding arrived at by us, it was otherwise. Accordingly there was no occasion for disclosing the dispositions by the testatrix to others as being made under undue influence when she laboured under the satisfaction that the will contained her dispositions though the position was not so. ( 55 ) FOR all these reasons, we have come to the conclusion that the judgment and decree under appeal cannot be sustained and they are accordingly set aside. The propounder's application for grant of probate is rejected and the suit arising therefrom is dismissed and the caveat is made absolute. ( 55 ) FOR all these reasons, we have come to the conclusion that the judgment and decree under appeal cannot be sustained and they are accordingly set aside. The propounder's application for grant of probate is rejected and the suit arising therefrom is dismissed and the caveat is made absolute. The propounder who was not a party to preparation of the will or its execution will get his costs out of the estate and the appellant will also get his costs out of the estate, both certified for two counsel. There will be no other order for costs in the circumstances. Sankar Prasad Mitra, Chief Justice. : i agree. Appeal allowed.