L. M. GHOSH, J. ( 1 ) SANAT Kumar Halder of village Jamalpur, District-Burdwan, died on 31. 5. 73. The petitioner, Nimai Chand Basu, filed Probate Suit No. 227 of 1973 in the District Court for obtaining the probate of the will of late Sanat Kumar Halder, said to have been executed on 18. 5. 72. The petitioner-propounder submitted that Sanat Kumar Halder executed the will of his free will and that he had bad disposing capacity. The petitioner is the son of late Hrishikesh Basu, who was the friend of late Sanat Kumar Halder. It was stated that the testator had love and affection for the sons of Hrishikesh Basu and as a token of affection towards the petitioner and his brothers, made the provision in their favour by the said will. Sanat Kumari Halder died bachelor. ( 2 ) PHANINDRA Nath Halder and Jagadish Halder, brothers of late Sanat Kumar Halder, filed objection. Various suggestions were thrown in the objection petition of the caveators. It was suggested that Sanat Kumar Halder was not aware of the true import and the contents of the will. It was next contended that the will was not at all executed or signed out of free will of the deceased, Sanat Kumar Halder. Then it was pointed out that in the month of Jaistha, 1379 B. S. , the body and mind of late Sanat Kumar Halder were in a bad condition and he had lost the natural faculties of forming judgment of his own. Towards the end of the month of Falgoon, 1378 B. S.- so it was urged - Sanat Kumar had had an attack of cancer in the throat and the same became very severe since the month of Baisakh, 1379 B. S. , which had a serious impact on the body and mind, so that he (Sanat Kumar) lost his senses, judgment and intelligence relating to property, etc. Then it was stated that the opposite parties and their relatives looked after Sanat Kumar all along and even during his illness and that after his death, Niranjan Halder performed the religious ceremonies. The suggestion was thrown that Hrishikesh Basu, the father of the propounder, was very cunning and shrewd and that he was doing the jobs of stamp Vendor and Deed writer in the Memari Sub-Registry Office and then continued his avocation at the Jamalpur Sub-Registry Office. The suggestion was thrown that Hrishikesh Basu, the father of the propounder, was very cunning and shrewd and that he was doing the jobs of stamp Vendor and Deed writer in the Memari Sub-Registry Office and then continued his avocation at the Jamalpur Sub-Registry Office. Kazi Moqbul Hossain was also a Deed writer at the Jamalpur Sub-Registry Office. Kazi Asgar Hossain and Kazi Mozamel Hossain were stated to be the sons of Kazi Maul Hossain. Dhirendra Nath Banerjee, an attesting witness of the will was described as an employee in the Joint Sherista of Kazi Moqbul Hossain and others. Suggestions were thrown as regards the predicament of the other witnesses too. Then, it was specifically stated that Hrishikesh Babu created the paper, described as a will, and got it registered fraudulently by means of trick. With regard to that, it was further narrated that Hrishikesh Babu out of greed prepared another instrument written by Kazi Moqbul Hossain styled as a Deed of Gift, dated the 11th of Kartick, 1379 B. S. , corresponding to 28. 10. 72, in respect of the remaining lands and the homestead of Sanat Kumar, giving a wrong impression to Sanat Kumar and not letting him know about the contents of the Deed. It was summed up that the deceased Sanat Kumar Halder never intended to execute a will or to give away any of his properties to the petitioner or to his brothers. ( 3 ) UPON these pleadings, three issues were raised. ( 4 ) ON behalf of the petitioner three witnesses, including the propounder, were examined. Five witnesses were examined for the opposite parties. ( 5 ) THE learned Trial Court - the Additional District Judge, 2nd Court, Burdwan - upon a conspectus of the entire facts and circumstances transpiring, dismissed the suit. 5a. The petitioner has preferred this appeal against that judgment and order. ( 6 ) MR. Roy Chowdhury, the learned Advocate for the appellant, has argued that the learned Trial Court should not have dismissed the suit, because the signatures of late Sanat Kumar Raider were not denied and because the due execution of the said will was proved by legal evidence. Mr. Roy Chowdhury has referred to several decisions to convince the Court that the suit was not liable to be dismissed. ( 7 ) MR. Mr. Roy Chowdhury has referred to several decisions to convince the Court that the suit was not liable to be dismissed. ( 7 ) MR. Mitra, the learned Advocate for the respondents has supported the judgment of the Court below. He has pointed out that there were several suspicious circumstances which were not explained by the petitioner propounder and, therefore, the learned Trial Court was amply justified in dismissing the suit. ( 8 ) BEFORE entering into the facts of the case, it will be profitable to bear in mind the guidelines in deciding a matter relating to will. In the case of Ram Chandra Ram Bux, (AIR 1965 SC 354) it was settled by the Supreme Court that the mode of proving a will did not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Succession Act. It was, however, further observed that where there were suspicious circumstances, the onus was on the propounder to explain them to the satisfaction of the Court, before the Court accepted the will as genuine. Mr. Mitra has cited this decision and has relied upon the observations made therein with regard to the suspicious circumstances. A similar principle was laid down in the case of H. Venkatachala Ainger (AIR 1959 SC 143), also cited by Mr. Mitra. It was observed that if a caveat was filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas might have to be proved by the caveators; but even without such pleas circumstances might 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 such legitimate doubts in the matter. The case of Jaswan Kaur, reported in AIR 1977 SC 74 , cited by Mr. Roy Chowdhury, reiterates the same principle. In paragraph 10 of the report, some observations are made about suspiciouscircumstances. The case of Jaswan Kaur, reported in AIR 1977 SC 74 , cited by Mr. Roy Chowdhury, reiterates the same principle. In paragraph 10 of the report, some observations are made about suspiciouscircumstances. It is noted that if a suspicion is raised about the execution of the will, that suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made. ( 9 ) THUS, it is clear that in the case of a will, it is not enough merely to prove execution of the same, but the propounder has to dispel the suspicion that can legitimately arise in the mind of the Court. Cases of will stand on a different footing from other cases because in the cases of wills, the Court has to deal with the dead person. The Court has to hear the voice of the testator, as it were the Court has also to get a vision about the mind of the testator. Now, to do that, one has to travel through the passage of time and also the circumstances. If during that course, there appear suspicious circumstances, then naturally the voice of the dead would not reach the Court and its vision would be blurred. But unless the Court can form a clear idea about the mind and capacity of the testator, no order for probate would be granted, even though the other formalities are observed. ( 10 ) WE now turn to the facts of the case. As stated before, on behalf of the petitioner, three witnesses have been examined. P. W. 1, Dhananjoy Mtra is an attesting witness. PW2 has come to prove that himself, his brothers and his father used to take care of Sanat Babu. He has denied the suggestion that any misrepresentation was practised for obtaining the document. P. W. 3 merely comes to prove an earlier Deed of Gift by Sanat Kumar, Ext. 2 (a ). ( 11 ) ON behalf of the opposite parties, the first witness is Mr. Bholanath Chatterjee, who claims that he last treated Sanat Bnbu about one year before his death. At that time, it is said, his voice was broken and was also suffering from cold. 2 (a ). ( 11 ) ON behalf of the opposite parties, the first witness is Mr. Bholanath Chatterjee, who claims that he last treated Sanat Bnbu about one year before his death. At that time, it is said, his voice was broken and was also suffering from cold. It appeared to him that he was suffering from cancer. O. P. W. 2 merely proves that Phanindra, Jagadish and Sanat were on visiting terms with each other. O. P. W. 3 is Niranjan Halder and he again comes to prove that there was good relationship between Sanat Babu and himself and others. He has next stated that Sanat Babu was attacked with cancer from Falgoon/chaitra, 1378 B. S. and that in Jaistha, 1379 B. S. he was little unbalanced. He claims that arrangement was made for treatment by Dr. Bholanath Chatterjee (O. P. W. 1 ). O. P. W. 4 is Phanindra Nath Halder, one of the caveators. He has merely come to prove that there was no love lost, between Sanat and himself and the other brothers. Then he has spoken about the family deity, which is not of much consequence in the present context. O. P. W. 5's statement is almost similar; he proves that there was good relationship between Sanat on the one hand and Phanindra and Niranjan, etc. , on the other hand and that there is a family deity, Burashib, at the house of Phanindra. ( 12 ) THAT exhausts the oral evidence. It would appear that the oral evidence about the mental capacity of Sanat Babu at the relevant time is almost equipoised there is the evidence of P. W. 1, supported by the evidence of P. W. 2, and the contrary evidence of O. P. W. 3. In such a position, the circumstances of the case would have to be seriously considered. ( 13 ) THAT the will bears the signature of Sanat Babu, is not denied. But now it has become obvious that the mere proof of mechanical execution of the instrument would not be sufficient; it would have to be proved that Sanat Babu executed the instrument of his free will, having sound disposing power. And, in connection with the last aspect, if there are suspicious circumstances, the Court will be slow to grant any relief to the petitioner, unless those circumstances are explained away by the petitioner. And, in connection with the last aspect, if there are suspicious circumstances, the Court will be slow to grant any relief to the petitioner, unless those circumstances are explained away by the petitioner. In this case, there are several serious suspicious circumstances. The first such circumstance is that the will, on the face of it appears to be unnatural. Sanat Babu and the petitioner and his brothers had no blood relationship. On the other hand, the opposite parties are the full brothers of Sanat Babu. Ordinarily, it would be unnatural for a person to deprive the brothers and their sons, and to make a disposition in favour of strangers. No doubt the mere fact that the disposition was unnatural, would not be enough for throwing away the will, for, if it is clearly established that the testator made a disposition of his free will in favour of strangers, then the same must be upheld, notwithstanding that it may appear to be unnatural on the face of it. It is upto the testator to make disposition in favour of this or that and he is the sole judge. Even if the disposition is unnatural, it is not for the Court to cancel it, if the device appears to be voluntary on the part of a person having a sound mind. But the fact remains that whenever there is an unnatural disposition that becomes a suspicious circumstance. ( 14 ) THE second suspicious circumstance is that all the witnesses of the will come from one particular avocation of life. Moqbul Hossain, the scribe and the witness of the Deed, is the Deed writer. Dhirendra Nath Bandhapadhya is a stamp vendor at Jamalpur. Admittedly, Kazi Mozamel Hossain and Kazi Asgar Hossain, are the sons of Mogul Hossain. It is in evidence that the father of the petitioner, Hrishikesh Basu, was also a Deed writer and a stamp vendor. P. W. 2 has admitted that Hrishikesh Babu was a stamp vendor and a Deed writer at Memari Sub-Registry Office, though he has denied that he acted as such at Jamalpur Sub-Registry Once. Be that as it may, we get that most of the witnesses come from a certain circle and Hrishikesh, the father of the petitioner, also belonged to the circle of Deed writers. It is also interesting to note that the same set of witnesses signed as attesting witnesses in Ext. Be that as it may, we get that most of the witnesses come from a certain circle and Hrishikesh, the father of the petitioner, also belonged to the circle of Deed writers. It is also interesting to note that the same set of witnesses signed as attesting witnesses in Ext. 1 (the will) and Ext. 2 (the Deed of Gift ). It is made out that the will was executed on 18. 5. 72, whereas the Deed of Gift (Ext. 2) was executed on 28. 10. 72. After the lapse of more than five months, the same witnesses were attesting Ext. 2. That by itself may not be anything against the law, but raises a reasonable suspicion as to whether both the documents were prepared in the same sitting. This suspicion is further strengthened when it is considered that both the documents were registered on the same date, that is, 1. 11. 72. It is not necessary that a will must be registered, but if it was thought advisable to register it, why there was such a long gap of time and why there was the coincidence that the same was registered on the day Ext. 2 was registered. Along with that, it has to be considered that the expressions of the two documents, in most parts, are almost identical. After the lapse of more than five months, the same language could not have been used even there is identity as regards the rhetoric part. That could be explained if evidence was led that Ext. 2 was written on the basis of the will, Ext. 1. Then again, if a device was intended to be made by the will, there is no reason why subsequently a Deed of Gift, giving away even the homestead property, was executed. All these facts raise a legitimate suspicion, that the will and the Deed of Gift were prepared in the same sitting, although a show is made that there was a gap of time of more than five months. If both the documents were prepared in the same sitting, then the whole thing gets vitiated and the suspicion engulf the whole matter so as to make it impossible for the Court to act in favour of the petitioner. ( 15 ) MOQBUL Hossain was the scribe of both the Deeds. If both the documents were prepared in the same sitting, then the whole thing gets vitiated and the suspicion engulf the whole matter so as to make it impossible for the Court to act in favour of the petitioner. ( 15 ) MOQBUL Hossain was the scribe of both the Deeds. He could very well enlighten the Court as to how and under what circumstances the documents were executed. P. W. 2 had answered that lie would examine Moqbul, if necessary. He was also cited as a witness. But there is no reason why he was not called as a witness. Mr. Roy Chowdhury, the learned Advocate for the appellant, has argued that it is not essential that the scribe must be examined. In that connection, he has referred to the decision reported in AIR 1938 Cal. 290. It was observed in the decision that there was nothing wrong in the omission to call the writer, so long as the other witnesses were examined and they gave evidence of a convincing nature. That undoubtedly is the law, where there is other evidence of a convincing nature, the omission to call the scribe cannot be fatal. In this case, it has been discussed that the evidence is not of that convincing nature as the same is equipoised. Moreover, it is a circumstance in the facts of the case to be taken into consideration, not that the circumstance alone is being considered as fatal to the petitioner's case. ( 16 ) AS regards the illness of late Sanat Kumar, it is admitted that he was suffering from cancer. There is only controversy as to when he had the disease. According to the petitioner, Sanat Babu was attacked with cancer three or four months before his death. According to the opposite parties, he was attacked with that disease in Falgoon or Chaitra, 1378 B. S. In that connection, the evidence of O. P. W. 1, Dr. Bholanath Chatterjee, is very relevant. He has answered that he treated Sanat Babu about one year before his death. It is a more acceptable version that Sanat Babu was suffering from before than that suggested by the petitioner, because the evidence of Dr. Chatterjee cannot be thrown out. Bholanath Chatterjee, is very relevant. He has answered that he treated Sanat Babu about one year before his death. It is a more acceptable version that Sanat Babu was suffering from before than that suggested by the petitioner, because the evidence of Dr. Chatterjee cannot be thrown out. It is true that the question of Sanat Babu's having had an attack of cancer has not direct bearing, because in spite of that ailment, the mental capacity might not have been impaired. ( 17 ) BUT the serious suspicious circumstances have not been explained away by the petitioner. It is not known what exactly happened, but the Court's conscience is not clear that the document was the result of the free will of Sanat Babu. The learned Trial Court dismissed the suit rightly. ( 18 ) THE appeal fails. It is dismissed. The injunction petition is disposed of. We make no order for costs of this appeal. Sunil Kumar Guin, J: I agree. Appeal dismissed.