JUDGMENT : N.K. Das, J. - Defendant is the Appellant. The original Defendant died during pendency of the appeal and his legal representatives have been substituted in his place. Respondent Jayasri Roy filed a petition u/s 278 of the Indian Succession Act for grant of letters of administration on a will executed in her favour by Kamalnath Rayon 12-2-1972 bequeathing there under a case deposit of Rs. 73.303 63 p. in the State Bank of India, Jeypore and an amount of Rs. 6,615.12 p. towards compensation dues pending in favour of Kamalnath Roy with the Estates Abolition Tribunal, Snkakulam. 2. Plaintiff's case is that Kamalanath Roy was treating the Plaintiff with greatest affection and love and on 12-2-1972 he executed a will in her favour bequeathing his savings in the bank account amounting to Rs. 73,393.63 p. in the State Bank of India, Jeypore and the money to be received from the Estates Abolition Tribunal, Srikakulam in Andhra Pradesh. Thus, the amount of assets which are likely to come to the bands of the Plaintiff is a bout Rs. 79,618.75 p. under the will. The deceased left no other assets and the Plaintiff being the universal legatee of the assets of die deceased is entitled to grant of letters of administration. She applied to the State Bank of India, Jeypore for the amount, but she was directed by the bank to procure letters of administration and, accordingly, the present suit was filed. Citations were issued from the Court calling upon all persons claiming to have any interest in the assets of the deceased to file objections if any. The present Appellant who is the sister's son of late Kamalnath Roy challenged the genuineness of the will on the ground that Kamalnath was suffering from paralytic stroke and was unable to write or sign properly. He has denied the Execution of any such will. He contends that since the Plaintiff and her brothers and sisters had filed petition in the Srikakulam Court for adding them as legal representatives of Kamalnath Roy and the present Plaintiff did not claim herself as a legatee under the will, she is not entitled to the amount due to the deceased from that Court. Objections relating to non-filing of the clearance of Estates Duty as well as non-payment of court-fees were also taken. 3. Objections relating to non-filing of the clearance of Estates Duty as well as non-payment of court-fees were also taken. 3. The trial Court has held that the will was duly executed by Kamalnath while in a sound state of mind and the will was duly attested. Accordingly, he has granted the letters of administration in favour of the Plaintiff and has negatived all the contentions made by the present Appellant. 4. Admittedly, Kamalnath died on 12-4-1972 and he was suffering from paralytic stroke. It is also admitted that Kamalnath had two wives. P.W. 2 is the son through the first wife. The first wife is dead. Plaintiff is the daughter of Jaganmohini. Through Kamalnath, Jaganmohini had a number of issues of whom Plaintiff is one. It is also admitted that the objector Appellant is the sister's son of Kamalnath. 5. The position of law is that onus of proof of a will lies on the propounder. The questions for consideration in such a case are: Whether the will set up by the propounder is proved to be the last will of the testator? Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will Did he put his signature to the will knowing what it contained? All these factors are to be considered in determining the, nature of the finding on the question of the proof of the will. Prima facie, the will has to be proved like any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act. In addition to the aforesaid circumstances, there is one important factor which distinguishes wills from other documents Unlike other documents, will speaks from the death of the testator and so when it is propounded or produced before a Court, the testator who has already departed the word cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily, when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the 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 See H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Others, . In the aforesaid Supreme Court decision, it has also been held as follows: There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the 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 to be unnatural, improbable or unfair in the light of relevant circumstances; or the will may otherwise indicate that the said dispositions may not be the result of the 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 caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but even without such pleas circumstances may raise a doubt as to whether the testator was acting of his 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. It has further been held in the aforesaid decision that if it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. The law on the subject has been clearly laid down by the Supreme Court in the aforesaid case and this has been continuously followed and approved by the subsequent decisions of the Supreme Court, A four-Judge Bench of the Supreme Court in Rani Purnima Devi and Another Vs. Kumar Khagendra Narayan Dev and Another a five-Judge Bench in Shashi Kumar Banerjee and Others Vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and Others a Division Bench in Ramchandra Rambux Vs. Champabai and Others, two three-Judge Benches, one in Surendra Pal and Others Vs. Dr. (Mrs.) Saraswati Arora and Another and the other in Seth Beni Chand (Since Dead) Now by L.Rs. Vs. Smt. Kamla Kunwar and Others have also accorded approval to the observations referred to above. A Bench of this Court in Nilambar Bewa Vs. Fagu Prusty has also held in the same way relying on a number of English decisions and decisions of the Privy Council. So also in Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others. it has been held: In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the Plaintiff and the Defendant. So also in Smt. Jaswant Kaur Vs. Smt. Amrit Kaur and Others. it has been held: In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis 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 which arises for consideration is whether the evidence led by the propounder of the with 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. 6. The principle enraging out of the aforesaid decisions of the Supreme Court as well as of this Court is that the will has to be proved by the propounder like any other document. In cases where the execution of the will is surrounded by suspicious circumstances, the case stands on a different footing. The presence of suspicious circumstances makes the initial onus heavier and, therefore such circumstances excite the suspicion of the Court. It is for the propounder to remove all legitimate suspicion before the document can be accepted as the last will of the testator. The test of satisfaction of the judicial conscience of the Court emphasises that in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is called upon to decide a solemn question and by reason of suspicious circumstances the Court has to be satisfied fully that the will has been validly executed by the testator. Of course, if a caveator alleges fraud undue influence, coercion etc. in regard to the execution of the will, he has to prove all those facts. But the Supreme Court has laid down a principle that 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 it is for the propounder to remove all reasonable doubts in the matter. The entire position has been analysed in a recent decision of this Court in Malli Bewa Vs. Natabar Naik and Others, . 7. The entire position has been analysed in a recent decision of this Court in Malli Bewa Vs. Natabar Naik and Others, . 7. On the aforesaid principles laid down, the evidence in this case is to be considered. Admittedly, Kamalnath was suffering since 1964 when he was admitted into a hospital. So also he had an attack of paralytic stroke in 1971. He has left a major son, P.W. 2, through his first wife. Of course, it is disputed whether the mother of P.W. 2 was a married wife of Kamalnath, or she was a concubine. So also there is dispute if Jaganmohini, mother of the Plaintiff, was the concubine or a married wife of Kamalnath. It is asserted on behalf of the Defendant that Jaganmohini was not the married wife of Kamalnath. There is no evidence on record that Kamalnath had really married Jaganmohini. It is also admitted that Jaganmohini has a number of issues through Kamalnath. Plaintiff is the daughter of Jaganmohini and was all along living with Kamalnath. The evidence adduced on behalf of the Plaintiff also shows that Kamalnath, after the first paralytic stroke though recovered was not able to write properly and his hands were shaky. P.W. 1 has been examined to say that he was a friend of Kamalnath. He is a newspaper agent. He states that after the first paralytic attack the hands of Kamalnath were shaky and Kamalnath was not at all coming out of the house after the first attack. According to him, he had seen Kamalnath sometimes going to one Dr. Samantaray in rickshaw for treatment. But P.W. 2, the son of Kamalnath, states that Dr. Samantaray never treated Kamalnath after his first attack. This witness wants to say that Ext. 1, a note book contained poems composed by Kamalnath, but he admits that he was not present when these poems were written. He further states that he cannot deny the right hand and leg and speech were affected by the paralytic stroke. He had not seen Kamalnath writing anything after the paralytic stroke. When the alleged will Ext. 2 was shown to him he stated that the writings in the will mayor may not be in the hand of Kamalnath. P.W. 2 is the son of Kamalnath. He is a driver in the All India Radio at Jeypore. He had not seen Kamalnath writing anything after the paralytic stroke. When the alleged will Ext. 2 was shown to him he stated that the writings in the will mayor may not be in the hand of Kamalnath. P.W. 2 is the son of Kamalnath. He is a driver in the All India Radio at Jeypore. The Telugu document said to have been written by Kamalnath was attempted to be proved by him, but he says that he does not know Telugu, nor can he read the same. It is stated that Kamalnath was maintaining a diary, but this witness states that he has not seen his father writing any diary, Some counterfoils relating to cheques said to have been issued by Kamalnath were exhibited, but the real cheques have not been called for. The counterfoils are in the handwriting of this witness. On the date of execution of the will Ext. 2, according to this witness, till he left for the office in the morning there was no proposal for execution of any will. He came home at about 12 noon for his lunch and at that time also there was no talk about execution of any will, Though he says that his father told him in the evening that he had executed a will, yet he did not ask his father about the contents of the will nor did he ask him to show the will. Even after the execution of the will he did not see the same. He also did not ask anything to P.W. 1 about the will, nor to any of the attesting witnesses to the will. But in another breath he says that on the day following the death of his father, the Plaintiff produced the will Ext 2 along with the cover before him and he showed the will to one Dr. Kumun Ram four or five days thereafter for preparation of attested copies. The said Kumun Ram has not been examined, nor any attested copy of the document is forthcoming. He says that after death of Kamalnath, he applied to the Tahsildar for issue of heirship certificate for the entire family, but he did not show the will to the Tahsildar. P.Ws. 3 and 4 have been examined as attesting witnesses to the will. He says that after death of Kamalnath, he applied to the Tahsildar for issue of heirship certificate for the entire family, but he did not show the will to the Tahsildar. P.Ws. 3 and 4 have been examined as attesting witnesses to the will. P.W. 3 states that about 3 to 4 p.m. on 12-2-1972 he went to the house of Kamalnath as usual. At that time Kamalnath was sitting in the front veranda of his house and Plaintiff and P.W. 4 were present there and Jaganmohini P.W. 6 was present in an adjoining room. By the time he reached the spot, Kamalnath was writing the will. This shows that only Jaganmohini, P.W. 4 and the Plaintiff were present when the will was written. He further states that when he reached the spot, Kamalnath told him that he was executing a will. He suggested to Kamalnath that it would be better to get a draft from a lawyer, but Kamalnath replied that he intended that there should be no publication about the will and secrecy should be maintained. But it appears from other evidence available on record, especially from the evidence of P.W. 2 that Kamalnath informed P.W. 2 that he had executed a will and the will was shown to Dr. Kumun Ram four or the days after the will. If Plaintiff and her mother were present at the time of execution of the will and Kamalnath told P.W. 3 that secrecy about the execution of the will was to be maintained then in natural course the Plaintiff and those others would not have disclosed about the will to anybody. But P.W. 2 says that on the day following the death of Kamalnath, Plaintiff showed the will to P.W. 2. From the evidence of P.W. 3, it appears that he has no idea about the family of Kamalnath nor about his family affairs. One Dr. Samantaray appears to be a close friend of Kamalnath, but that person has not been examined in this case. The will appears to be in Telugu script, and P.W. 3 says that he cannot read Telugu. According to this witness, P.W. 4 was present at the spot. Plaintiff has adduced evidence to show that P.W. 4 was the servant of Kamalnath and he is now running a hotel. But this witness P.W. 3 says that he does not know where he was putting up. According to this witness, P.W. 4 was present at the spot. Plaintiff has adduced evidence to show that P.W. 4 was the servant of Kamalnath and he is now running a hotel. But this witness P.W. 3 says that he does not know where he was putting up. P.W. 4 says that he was the personal servant of Kamalnath and he is running a hotel at present. This witness states that he was called by Kamalnath at about 2.30 or 300 p.m. to his residence and when he reached the house of Kamalnath he found Kamalnath and Plaintiff both present there and Kamalnath took out a paper and wrote out the will. After writing, Kamalnath read out the contents of the will to this witness and then put his signature. But P.W. 3 does not say anything about the signing of the will. According to this witness, P.W. 4 signed first and then P.W. 3 signed. But from the alleged will Ext. 2, it appears that P.W. 3 has signed first and then this witness has signed. On the very date of execution of the will, he states, Kamalnath went to his hotel, but he did not tell anything about the proposed will at that time. His further statement is: I do not know what Kamalnath and his daughter Jayasari talked about the will. He also states that Kamalnath did not ask to call P.W. 2 or P.W. 3 while the will was written or executed. Though he states that by the time he arrived at the spot Kamalnath was writing out the will, in another breath he says that Kamalnath started writing out the will after arrival of P.W. 3. He does not speak anything about P.W. 3 suggesting to prepare a draft of the will by Kamalnath and that Kamalnath advised to maintain secrecy about the will. P.W. 5 is the Plaintiff propounder of the will. He says that the will was read over to all the witnesses present along with her. But P.W. 3 does not speak anything about the writing out of the will to them. She states that she did not ask P.W. 3 whether the will was correctly written out or not. She admits that she was sitting near Kamalnath when the will was being written. P.W. 6 is the mother of the Plaintiff. But P.W. 3 does not speak anything about the writing out of the will to them. She states that she did not ask P.W. 3 whether the will was correctly written out or not. She admits that she was sitting near Kamalnath when the will was being written. P.W. 6 is the mother of the Plaintiff. She states that she was present in an adjoining room when the will was written out and executed. From her evidence it transpires that Kamalnath had love and affection for P.W. 2 and the household was being managed by the income of P.W. 2. D.W. 1 is admittedly the sister's son of Kamalnath. He says that in 1964 Kamalnath fell seriously ill and was admittedly in a hospital. He suggested to execute a will, but Kamalnath replied that he had already executed a will in 1964 and there was no necessity of any other will. From his evidence, it transpires that Kamalnath was writing out poems in Telugu and Ext. 1 contains such poems. 8. From the evidence adduced, as discussed above, the following facts and circumstances appear: (1) P.W. 2 was the son of Kamalnath. He was an earning member and the family was being managed out of his Income. (2) In the will Ext. 2, it is mentioned that Kamalnath has no heir except the Plaintiff, but this fact is absolutely false and gives rise to reasonable suspicion. (3) P.W. 2 being a driver used to remain absent from home for long periods. The Plaintiff and her mother were all along with Kamalnath and as such, they were in a position to prevail over Kamalnath. Kamalnath was an invalid person and he was never coming out of his house after the first paralytic stroke. (4) The hands of Kamalnath were shaky and he was not able to write properly after the first paralytic stroke in 1971. A bare look at Ext. 2 shows that the writings of the contents of the will are not in a shaky hand. (5) While the will was being written the Plaintiff and her mother were present. By that time none of the so called attesting witnesses had come there. P.W. 3 was never called to be an attesting witness to the will. 2 shows that the writings of the contents of the will are not in a shaky hand. (5) While the will was being written the Plaintiff and her mother were present. By that time none of the so called attesting witnesses had come there. P.W. 3 was never called to be an attesting witness to the will. This would show that the very presence of the propounder of the will along with her mother who were all along with Kamalnath makes the circumstances much more suspicious. (6) No draft of the will was prepared. P.W. 3 states that he suggested that a draft of the will was to be prepared by a lawyer, but it is said that Kamalnath told that secrecy was to be maintained. But the evidence shows that no secrecy was, in fact, maintained about the alleged will. So, the story advanced about the writing and execution of the will appears to be unreliable. The evidence of the attesting witnesses is also contradictory to each other. (7) The evidence of the propounder of the will is not in consonance with the evidence of the so-called attesting witnesses. (8) Two months after the execution of the will there was another paralytic stroke and Kamalnath succumbed to that stroke and for the intervening period he was invalid and his right side was paralysed. (9) The counterfoils of the cheque book do not show that Kamalnath at any time had signed those counterfoils of the cheques. 9. It may be a fact that Kamalnath was writing poems in Telugu long before he was attacked with paralysis, but that does not help the Plaintiff in any way. The propounder of the will has to establish that the testator out of his free will and in a sound disposing state of mind himself wrote out the will which was executed in presence of the attesting witnesses who also put signatures in presence of the testator and has also to remove all suspicious circumstances so as to give a clear picture in the mind of the Court that there were no suspicious circumstances in the execution of the will. As discussed above, the story of the will has been surrounded by suspicious circumstances. As discussed above, the story of the will has been surrounded by suspicious circumstances. The presence of the propounder, namely, the Plaintiff, and her mother tells a lot about the suspicious circumstances relating to execution of the will and the will also does not appear to be the writings of a person having paralytic hand. The will is not free from suspicion and the evidence adduced in this case does not clear out the suspicious circumstances. Judging the facts and circumstances on the principles laid down by the Supreme Court and this Court discussed above, we hold that the Plaintiff's suit should be dismissed. 10. Certain other legal points were raised by the Appellant. It was also contended that estate Duty certificate has not been produced, but the same has been produced with an affidavit in this Court. It is further contended that the Subordinate Judge has no power to give a decision under the Succession Act, but there has been notification empowering the Subordinate Judge to grant letters of administration. Therefore, this contention is without any force. 11. On the aforesaid analysis, we hold that the appeal is to be allowed. 12. In the result, the appeal is allowed and the decision of the Court below is set aside with costs. R.N. Misra, J. 13. I agree. Final Result : Allowed