JUDGMENT Kaushal Kishore, Member. - This is a second appeal filed by the defendant against the orders and decrees by the learned Additional Commissioner, Rohilkhand Division, Bareilly, dated 1-5-1953 and of the learned trial court dated 18-9-1972. The trial court dated 18-9-1972. The trial court decreed the suit of the plaintiff under Section 176 of the U.P.Z.A. & L.R. Act, finding the plaintiff and his three brothers as co-sharers and not relying on the will executed by their father, Badri Prasad and a subsequent agreement entered into amongst the four brothers. 2. I have heard the learned counsel for the parties and have also perused the record. 3. The grounds taken by the appellants are that the will in question dated 8-8-1965 could not be disbelieved as no issue was framed about Badri Prasad being of unsound mind while executing the will, there was no vagueness in the document, it had been given effect to as in the agreement dated 5-7-1969, the agreement dated 5-7-1969 could not be held to be a partition deed, the agreement could not be ineffective for want of signatures of Nemi Saran in the copy in the plaintiff's possession, and that the will and the agreement did not require any registration. The learned trial court had found the will not worthy of reliance on the ground that it was not duly stamped and registered and also suspicion in regard to its execution relating to the soundness of mind of the testator and that the will was executed freely, existed. However, a will need not be stamped and registered and the view taken by the learned trial court was not correct. The learned Additional Commissioner also agreed that the registration of the will was not necessary, but found the will to be suspicions. This conclusion has been arrived at only on the basis of the oral evidence of the plaintiff and want of any statement in the evidence of the defendants that at the time of the execution of the will. Badri Prasad was in a sound state of mind. The learned trial court has expressed doubt on the will being executed freely because Badri Prasad was in his old age something before his death. This is indeed not logical. Even reading himself admitted that he was growing old and growing weak but he wrote that he was in a sound state of mind. The learned trial court has expressed doubt on the will being executed freely because Badri Prasad was in his old age something before his death. This is indeed not logical. Even reading himself admitted that he was growing old and growing weak but he wrote that he was in a sound state of mind. Physical weakness and mental are two different conditions and it is well known that mental weakness. Hence mental weakness is to be proved independently. 4. In fact, the learned trial court has not considered the plaintiff's oral evidence to hold that Badri Prasad was not in a proper state of mind while executing the will but has relied on want of adequate evidence of the defendant to prove that Badri Pasad was in a proper state of mind. All the evidence on this point available is he inconsistent oral evidence from the plaintiff's side and the contents and language of the will exhibit Kha 1 itself. Plaintiff's Satyapal has deposed that the mental condition of Bedri Prasad before his death was sometimes good and sometimes bad. But witness Munnal Lal has deposed that the mind of Badri Prasad had completely failed. None of them is expert as mental doctor, and in addition to the contradiction in their versions, none has described a single instance of the behaviour of Badri Prasad showing his insanity. Here is an instance of gross failure of proper appraisal of evidence. 5. It is admitted that Badri Prasad had been a MOHARRIR of an advocate and he wrote this will entirely in his own hand. In these circumstances, the contents and language of the will become important and must be read to assess its reliability. There is nothing in this will to show that Badri Prasad had any weakness of mind or could not remember any details or was vague in his statement. Plot numbers, areas, their names and owner's share in each plot or grove owned by Badri Prasad have been precisely stated which is like a MOHARRIR of an advocate would do in his utmost sense. Whether any son got less or more is not material here although this plea also fails substantially after going through the will. The learned Additional Commissioner has stated that a perusal of the will show that the plaintiff was given less land than his other brother. Whether any son got less or more is not material here although this plea also fails substantially after going through the will. The learned Additional Commissioner has stated that a perusal of the will show that the plaintiff was given less land than his other brother. It is surprising how the learned Additional Commissioner could say so since the details of the plots in the four schedules given in the judgment of the learned trial court show that the total area was about 18 bighas while tow large plots having a total area of 5 bighas were given to the plaintiff. It appears that he was misled by the large number of plots small areas given to the other three brothers. Since the will on reading does not create any doubt as to the soundness or mind of Badri Prasad or about any vagueness in the contents of the will, just a conjecture of such suspicion of the plaintiff should not require an express statement by the witness of the defendant about the soundness of mind of Badri Prasad. It was incorrect to infer from the physical weakness of Badri Prasad in his old age that he also suffered from mental weakness. On a correct and proper appraisal of the will it must be held to be without any material defect and should have been given reliance by the trial court. 6. The learned counsel for the appellant has cited ruling reported in A.I.R. 1980 S.C. 1109 to substantiate his argument that a fresh question relating to the fact cannot be raised at the stage of second appeal and the question as to whether Badri Prasad was of sound mind or not at the time of writing the will, should have been the subject of a separate issue. The respondent has referred to rulings reported in A.I.R. 1959 S.C. 448 and A.I.R. 1972 S.C. 2492 wherein the requirements in respect of a will as evidence are summarised. The propounder of the will has to prove the signatures of the testator and, in case of suspicious circumstance, he has to explain circumstances also to the satisfaction of the courts. These circumstances may be as to the genuineness of signatures of the testators. The propounder of the will has to prove the signatures of the testator and, in case of suspicious circumstance, he has to explain circumstances also to the satisfaction of the courts. These circumstances may be as to the genuineness of signatures of the testators. The condition of mind of the testator is the disposition made in the will being unnatural and improbable or unfair in the light of relevant circumstances or these might be other indications in the will to show that the testator's mind was not free. Coming to the present case, the will was written by Badri Prasad himself and signed by him. An advocate as witness has proved it. There is no suspicion about the writing or signatures. There is no suspicion either about the condition of the testator's mind or his mind being not free. As discussed above, no reasonable suspicion has been made out. Although in view of the ruling cited by the respondent above, a separated issue was not necessary and the testator's state of mind could be discussed as has been done, the finding of the courts below on this point cannot be sustained. 7. The appellant's plea that the plaintiff did not mention anything about the will and the agreement in his plaint, does have some force. The plaintiff has admitted the agreement and it is a fact that four copies of the agreement were prepared for each of the four brothers. The plaintiff had one copy for himself. In this agreement, mention has been made of two wills executed on 30-11-1960 and 8-8-1965 and the plaintiff could not be ignorant of the will and the agreement. Obviously he tried to conceal them. 8. As regards the agreement, the learned lower appellant court had not relied upon it because one copy did not contain the signatures of Nemi Saran. The supposition contained in para 8 the judgment of the learned Additional Commissioner is not supported by facts. There is no evidence that Nemi Saran refused to sign the agreement and on this account, the partition was imperfect and could not be registered, nor was this ever cancelled. There is no question of any partition through this agreement because the agreement is clearly based on the will executed about four years back. There is no basis for the conclusion that the agreement was not in practice. There is no question of any partition through this agreement because the agreement is clearly based on the will executed about four years back. There is no basis for the conclusion that the agreement was not in practice. The agreement clearly says that after the death of their father, the parties to the agreement had occupied the land according to the will. After seeing the will and this agreement, it is obvious that the latter is merely a memorandum of the family settlement based on the will, which became effective on the death of Badri Prasad Therefore, there was no question of any registration and this agreement is found to have been rejected without sufficient reason or justification. 9. The respondent's plea that the agreement was defective on account of the signatures of Nemi Saran not being there, has been controverted by the counsel for the appellants on the strength of rulings reported in A.I.R. 1966 S.C. 292 and A.I.R. 1971 Alld. 151. The circumstances in these rulings vary but the principle enunciated is that an agreement need not be between all the parties to the agreement. It may further be added that it was Nemi Saran who could challenge the agreement for any such shortcoming. The plaintiff who admittedly had signed the agreement had no reason to go back. 10. In view of the above, the learned trial court should have relied on the will and the agreement in question and should have decided the suit accordingly. In the result, the appeal is allowed and the judgment of both the courts below dated 18-9-1972 and 1-5-1973 are hereby set aside and the case is remanded to learned trial court for decision afresh in the light of the observations made above.