Judgment :- 1. The prime question to be decided in this proceeding is whether the will dated 10th July, 1985 is genuine and validly executed and attested. The plaintiff, claiming to be the executrix appointed under the will, applied in O.P. No. 477 of 1986 for grant of probate to have effect throughout the whole of Union of India. On the filing of the caveat by the defendant, the original petition was converted into a suit numbered as T.O.S. No. 19 of 1987. 2. The undisputed facts are as follows :—Dr. Chaman Lal Gurdasram. Bali, the deceased husband of the plaintiff, had married originally a lady by name Ruby. Three sons named Ratan, Rajan and Raman were born of the marriage on 15-9-1954, 5-8-1957 and 25-5-1959 respectively. The family was living in No. 34, Union Park, Chembur, Bombay. In January 1965, Dr. Chamanlal Bali left the family and began to reside at Mirabell Hotel, Bombay. Sometime thereafter, he began to live with the plaintiff at Ashoka Apartment s, Napean Sea Road, Bombay. In 1966, Mrs. Ruby Bali initiated a maintenance proceeding against Dr. Bali and he filed a petition against her for judicial separation in the City Civil Court, of Bombay. Thereafter, she filed a petition for divorce in the City Civil Court, under S. 13(1)(i) of the Hindu Marriage Act. As a result of intervention of mutual friends, the spouses settled their disputes which led to a decree for divorce passed by the City Civil Court, Bombay on 11-3-1967. The decree provided that by consent of parties, the custody of the three sons shall continue with the lady and a consent decree will be made with respect to the maintenance. An agreement between the parties was executed on the same day whereby Dr. Bali agreed to pay a sum of Rs. 75,000 in full and final settlement of the claim for alimony and maintenance of Mrs, Ruby Bali for herself and the children of the marriage viz., Ratan, Rajan and Raman. The amount was to be invested by two persons named as trustees till the attainment of majority by the minors. Bali agreed to pay a sum of Rs. 75,000 in full and final settlement of the claim for alimony and maintenance of Mrs, Ruby Bali for herself and the children of the marriage viz., Ratan, Rajan and Raman. The amount was to be invested by two persons named as trustees till the attainment of majority by the minors. The agreement also provided that the flat situated at No. 34, Union Park, Chembur, standing in the name of the husband, shall be taken by the wife, who shall pay the rent of the premises to its owner and that the husband shall have no right, title or interest therein. In 1968 Dr. Bali married the plaintiff and a male child was born to them in 1972. He was named Such-indra. In 1980, Dr. Bali underwent an open-heart surgery in Houston, U.S.A. In 1984, the petitioner was elected as a member of the Lok Sabha. On April 21, 1986, Dr. Bali died at Madras in Apollo Hospital after neurosurgery. 3. On 1-9-1986, the plaintiff filed original Petition No. 477 of 1986 for grant of probate. The Court ordered notices to be served on Ratan Bali, Raman Bali and Rajan Bali. Notices sent through Court returned unserved and on 3-2-1987 notice was ordered to be sent by registered post with acknowledgment due. That notice was served on all the three brothers and on 27-2-1987 the defendant filed caveat. Thereafter, the Original Petition was converted into a suit and the written statement was filed by the defendant on 14-9-1987. The plaintiff filed Application No. 4788 of 1987 for permission to file a reply statement and the same was ordered on 27-11-1987. 4. In the original petition which is treated as the plaint after the conversion of the Original Petition into the suit, it is stated as follows:— Dr. Chaman Bali who died on 21-4-1986 was possessed of properties both movables and immovables within the State of Madras and also within the State of Maharashtra. The writing produced along with the petition is the last will and testament of the deceased Dr. Chaman Bali and was duly executed in his own hand-writing at Ashoka Apartment, 131, Napean Sea Road, Bom bay on the 10th day of July, 1985, in the presence of the persons whose names appear at the foot thereof. The writing produced along with the petition is the last will and testament of the deceased Dr. Chaman Bali and was duly executed in his own hand-writing at Ashoka Apartment, 131, Napean Sea Road, Bom bay on the 10th day of July, 1985, in the presence of the persons whose names appear at the foot thereof. Under the will the deceased had bequeathed all the properties to minor Suchindra Bali and the petitioner is appointed as a trustee and sole guardian of the said minor till he attains the age of 21. The petitioner is the executor by implication and entitled to the probate. The net amount of the assets which are likely to come to the petitioners son does not exceed Rs. 9,64,925 in value in the aggregate. The deceased had married one Ruby of Bombay and got three children through her. She got a divorce from the deceased by proceedings in N.J.P. No. 7568/66 on the file of the City Civil Court at Bombay and at the time of passing of the divorce decree the deceased had made full settlement to the said Ruby and her sons. The petitioner prays that she may be allowed to prove the will in common form and that probate thereof to have effect throughout the whole of Union of India may be granted to her. 5. The substance of the written statement filed by the defendant is as follows:— The suit is bad for non-joinder of Rajan Chaman Bali and Raman Chaman Bali, who are also heirs of Dr. Chaman Bali. The plaintiff has suppressed material facts and circumstances. The deceased Dr. Cheman Bali had told the defendant that he along with his brothers will have equal shares in the properties owned and possessed by him along with Master Suchindra Chaman Bali. It appears that the plaintiff induced the deceased during his weaker moments when he was intoxicated with alcoholic drinks and the plaintiff appears to have dictated the contents of the alleged will nearly at mid-night on 10th July, 1985 at Ashoka Apartment, 131, Napean sea Road, Bombay-100 006. The alleged will is dictated on the letter-head of the deceased. Dr. Chaman Bali. After his marriage with the plaintiff, had started drinking heavily. The alleged will is dictated on the letter-head of the deceased. Dr. Chaman Bali. After his marriage with the plaintiff, had started drinking heavily. The alleged will being made at 10-40 P.M. also appears to be without any witness as the signatures of one Krishnan an d one Mahavirchand Bora appear to have been obtained subsequently, as the words “Signed and sealed in the presence of both of us” and the alleged signatures of Krishnan and Bora appear to have been made subsequently. Had the alleged will been genuine and made in the presence of the alleged witnesses, Dr. Chaman Bali would have written himself those words also below the will in his own handwriting. It is, therefore, clear that the alleged will was not written by Dr. Bali in bis full senses and capacity and in sound state of health and mind but in an intoxicated condition due to alcoholic influence and perhaps in his weaker moments, as no sensible person can be believed to do or perform a job which would have significant repurcus-sions legally at an odd hour of mid-night. It is not admitted that the plaintiff is a trustee and testamentary guardian of Master Suchindra Bali. The deceased owned immovable property known as Bali House in Ooty as well as plots of land at Bangalore and Ooty respectively. The plaintiff has undervalued the property viz., Bali House at Ooty and not shown the other plots of land owned by the deceased at Bangalore and Ooty with a view to avoid payment of estate duty and/or probate duty. The plaintiff has not disclosed the list of jewellery which was in the custody and possession of Dr. Bali and which he had kept for the wives of his three sons by his previous marriage. The plaintiff is guilty of concealing not only her own assets but that of her late husband. Unless all the assets are disclosed in the schedule to the petition and proper valuation is shown of the said properties, the plaintiff is not entitled to proceed with the suit. The plaintiff has not disclosed the various documents in her possession in respect of the properties left behind by Dr. Bali. Unless all the assets are disclosed in the schedule to the petition and proper valuation is shown of the said properties, the plaintiff is not entitled to proceed with the suit. The plaintiff has not disclosed the various documents in her possession in respect of the properties left behind by Dr. Bali. The plaintiff being the step-mother of the defendant, has procured a false and bogus will with a view to illegally claim the entire property left by the deceased through her natural son and thereby attempt to disinherit the defendant and his two brothers who are also the real sons of Dr. Bali by his previous marriage. A receiver should be appointed to take charge of all the properties pending disposal of the proceeding. The proper-ties have been under-valued and an independent value should be appointed to ascertain the value of the assets. The petition has been filed at Madras deliberately with a view to cause harassment and inconvenience to the defendant and the other heirs as the petitioner being a Member of Lok Sabha is highly influential in her constituency, i.e., the City of Madras. The defendant his brothers are not aware of any terms of settlement between their father and mother and it appears from the documents that a paltry sum was paid by Dr. Bali to his wife Their mother had no authority to accept any settlement on behalf of the defendant and his brothers, who were then minors. At any rate, Dr. Bali has not disowned or disinherited the defendant and his brothers at any time and they are also entitled to all the assets. The persons, whose names appear at the foot of the will, viz., M. Krishnan and Mahaveer Chand Bora are not genuine and honest witnesses. The said Krishnan is a heavy drunkard and even otherwise an unreliable person. Sri. Mahaveer Chand Bora is a person who is known only to the plaintiff. The words at the end o f the alleged will “signed and sealed in the presence of both of us” and the bracket put therein are in different handwriting and thus sufficient to establish that the said words and the signatures have been subsequently added to the alleged will. Hence, the suit should be dismissed and letters of administration should be granted to the defendant and his brothers. 6. Hence, the suit should be dismissed and letters of administration should be granted to the defendant and his brothers. 6. In the reply statement filed by the plaintiff, the allegations made in the written statement are denied. It is stated that the brothers of the defendant having received notices and failing to enter caveat, are not necessary parties. While refuting the allegation that the will was dictated by the plaintiff to Dr. Bali when he was under the influence of alcohol, it is stated that the deceased himself had written the will in his own writing while in sound disposing state of mind. It is averred that the plaintiff herself came to know of the execution of the will only when Dr. Bali while in the hospital informed her about the same and wanted her to take custody of the same. All the assets left by the deceased have been disclosed and the deceased did not possess any plots in Bangalore or Ooty as alleged by the defendant. Nor did he leave behind any jewellery as stated in the written statement. All the allegations in the written statement are stoutly denied. 7. On the above pleadings, the following issues were framed by the Court on 27-11-1987:—. 1. Whether the will dated 10-7-1985 executed By the deceased Dr Chaman Bali is genuine, true and valid in law? 2. Whether the deceased Dr. Chaman Bali executed the will dated 10-7-1985 while he was in a sound and disposing state of mind? 3. Whether the allegations made by the defendant that the above said will was obtained by fraud and undue influence are true? 4. Whether the suit is bad for non-joinder of Shri Rajan Chaman Bali and Raman Chaman Bali, the other heirs of Dr. Chaman Bali (since deceased) and whether Shri Rajan Chaman Bali and Shri Raman Chaman Bali, the other heirs of the deceased are proper and necessary parties to the suit? 5. Whether the alleged will dated 10th July, 1985 was dictated bv the plaintiff to her husband Dr. Chaman Bali at 11-40 P.M. (nearly midnight) in the circumstances alleged by the defendant in para 3 of the written statement? 6. Whether the plaintiff (Vyjayanthimala Bali.) is a Legal Trustee and the Testamentary guardian of Master Suchindra Chaman Bali (a minor) and whether the said minor is properly represented in the suit as required by law? 7. Chaman Bali at 11-40 P.M. (nearly midnight) in the circumstances alleged by the defendant in para 3 of the written statement? 6. Whether the plaintiff (Vyjayanthimala Bali.) is a Legal Trustee and the Testamentary guardian of Master Suchindra Chaman Bali (a minor) and whether the said minor is properly represented in the suit as required by law? 7. Whether the plaintiff has correctly disclosed and valued the assets left by the deceased or has the said assets been concealed and undervalued with a view to defeat the payment of Estate Duty and or probate duty? 8. Whether the words “signed and sealed in the presence of both of us” endorsed at the foot of the alleged will on the left hand side and enclosed with a bracket and the alleged signature opposite the bracket have been subsequenlty put with a view to commit foregery and pass off the alleged writing on the letter head of the deceased as last will and testament of the deccased? 9. Whether the plaintiff is qualified and/or entitled to act as executrix and apply for probate of the alleged will in this suit? 10. Whether under the alleged will dated 10th July 1985 the plaintiff along with her minor son Master Suchindra Bali, are the only legal heirs of the deceased as contended by her in para 8 of the petition (now converted as suit)? 11. Whether the defendant is entitled to the reliefs claimed for in para 8 of the written state ment? 12. Whether any settlement between the defendants mother Mrs. Rubi Chaman Bali with the defendants father (Dr. Chaman Bali) is legal and binding upon the defendant and his two brothers Rajan and Raman, ail of whom were minors at the time of divorce of their parent in M.J. Petition No. 7588 of 1966? 13. Whether the plaintiff (Petitioner) is liable to render true and correct account of all the properties (disclosed and concealed) and the income derived therefrom belonging to the deceased from the date of his death upto date and furnish statement of accounts and full particulars thereof to the defendant and other heirs of the deceased? 14. Whether the plaintiff is entitled to any other reliefs? 8. The plaintiff examined the two attestors of the will viz., M. Krishnan and Mahaveer Chand Bora as P.Ws.1 and 2 respectly. 14. Whether the plaintiff is entitled to any other reliefs? 8. The plaintiff examined the two attestors of the will viz., M. Krishnan and Mahaveer Chand Bora as P.Ws.1 and 2 respectly. She took the permission of the Court under order XVIII, Rule 3-A of the Code of Civil Procedure for examining herself as P.W.3. One Mrs. Seetha Sivaramakrishnan, ex-President of the Inner Wheel Club. Madras District 323 attached to Rotary International District was examined as P.W.4 to depose that the plaintiff attended a meeting at the Club held on 11-7-1985 in Woodlands Hotel between 10 A.M. and 12-30 P.M. The plaintiff also filed 14 documents on her side as exhibits. The defendant examined himself as D.W.1 and a chartered accountant by name N.C Sundararajan as D.W.2. The defendant marked 22 documents as exhibits on his side. 9. Application No. 6057 of 1988: When the plaintiff was in the midstream of cross-examination by the defendants counsel, she filed the application for striking out issues 7, 11 and 13. In the affidavit filed in support of the application it is stated that the said issues are wholly unnecessary for the purpose of deciding the controversies between the parties. It is also stated that the issues are wholly irrelevant and outside the scope of the suit. The affidavit referred to the sending of notices to the Collectors along with copies of affidavit of assets as the time of filing the original petition for ascertaining the correct value of the properties. Reference is also made to the procedure prescribed under Ss. 55 to 64 of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. It is asserted in the affidavit that the plaintiff has disclosed all the assets available at the time of filing the original petition. A long counter-affidavit has been filed by the defendant. In paragraph 2, the defendant requested the Judge before whom the matter was then pending to remove the same from his Board so that it may be assigned to some other Judge of this Court. There is a reference in the said paragraph to a memo, filed by the defendants counsel on 22-11-1988 in the Court which also contained the same request. The counter-affidavit proceeded to state that it was too late in the day for the plaintiff to make the application for the reliefs prayed for therein. There is a reference in the said paragraph to a memo, filed by the defendants counsel on 22-11-1988 in the Court which also contained the same request. The counter-affidavit proceeded to state that it was too late in the day for the plaintiff to make the application for the reliefs prayed for therein. According to the counter-affidavit, P.Ws.1 to 3 have already been cross-examined in detail on the said issues, as they bad let in evidence in the Chief-examination with regard to the same. It was stated in the counter affidavit that the issues were framed by the Court only after a lengthy discussion between counsel and Court and that no objection was raised by the plaintiffs counsel, senior as well as junior, when the defendants counsel cross-examined P.W.3 on those issues. It is not necessary to refer in detail to the various averments and contentions in the counter affidavit, the substance of which has been given above. 10. As the defendant prayed for the matter being posted before some other Judge, Abdul Hadi, J. directed the office to place the papers before the Chief Justice in order to post before another Judge. The latter passed orders directing the inclusion of the matter in my list and consequently it came before me. On finding that considerable evidence had been let in by the parties on the three issues, I suggested to learned counsel on both sides to proceed with the trial and conclude the examination of the witnesses without prejudice to the contentions raised in the application. I said that arguments on the application could be advanced along with the arguments in the main suit after the conclusion of the evidence. I suggested the said course as I was of the view that any order which might be passed by me on the application separately would be challenged in appeal by the aggrieved party and the trial of the suit would be stayed. As that would only cause hardship to both parties, I decided to get along with the trial and relegated the hearing of the application to the end of the same. Luckily, counsel on both sides agreed to the said course and the cross-examination of P.W.3 by the defendants counsel continued. 11. Before arguing on the merits of the suit, learned counsel for the plaintiff, advanced arguments on the application. Luckily, counsel on both sides agreed to the said course and the cross-examination of P.W.3 by the defendants counsel continued. 11. Before arguing on the merits of the suit, learned counsel for the plaintiff, advanced arguments on the application. Learned counsel submitted that the scope of a proceeding for grant of probate is very limited and the only question to be decided by the Court is whether the will propounded is the last will of the testator and whether the right to represent the estate may be conferred upon the applicant. According to learned counsel, questions relating to title to the properties and value of the same are extraneous to a proceeding for grant of probate. He submitted that an elaborate procedure has been prescribed by Ss. 5 to 59 of the Tamil Nadu Court Fees and Suits Valuation Act and that the Revenue authorities will take care of the proper valuation and see that the appropriate probate duty and Court fee are paid. He relied on the statement of law in M.K. Sowbhakiammal and another v. Komalangi Ammal and another 1, Venkatasubba Rao, J. observed in that case as follows:— “The function of the Court of probate is to decide whether the will propounded is the last will of the testator and whether the right to represent the estate may be conferred upon the applicant. The Court of Probate does not profess to decide the disputed title to every item of property mentioned in the will” He pointed out that the said decision was affirmed by a Division Bench in Komalanki ammal v. M.K. Sowbhakiammal and another 2. The following passage in the judgment of the Bench is relied on by learned counsel:— “It has long been settled that it is not the province of a Court of probate to determine questions of title to a property which a testator purports to dispose of by his will, the reason being that the grant of probate does no more than establish the factum of the will and the appointment of the executors (if any) named in the will” 12. Learned counsel drew my attention to the observation of the Supreme Court in Ishwardeo Narain Singh v. Smt. Kamta Devi and others 3, that the Court of Probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. A similar observation made by a Division Bench of the Calcutta High Court in Dhane Ali Mia and others v. Sobhan Ali and others 1, was also relied on by learned counsel. Learned counsel invited my attention to the judgment of a Division Bench in In the matter of Mrs. Mira Bhojwani, Ashok Bhojwani and another 2, Referring to S. 19-H and 19-I of the Court-fees Act (7 of 1870), the Division Bench held that the Court had no machinery of its own to find out whether the items mentioned in the Annexures to an application under S. 276 of the Indian Succession Act for grant of Probate have been under-valued or wrongly included, unless challenge is made by the Collector. It was observed that where the Collector had not objected to the valuation of the property and the Court directed the petitioner to add the value of certain items mentioned in Annexure B to the valuation stated in Annexure A and to pay additional stamp duty on the basis of such valuation, the direction given by the Court was invalid. The Bench took the view that the Legislature having given power to the Revenue Authority, it does not stand to reason that the Court should be expected on its own to delve into the correctness or otherwise of the valuation and try to arrive at its decision without support from any party raising the matter before it. 13. Learned counsel placed reliance on a recent decision of a Division Bench of this Court in Philo Peter and Arputhasamy v. Divyanathan and 8 others and Mariapushpam and 2 others 3 . The question which was referred to the Division Bench was as to whether Court-fee was payable on one half of the value of the properties on an application filed under S. 276 and 222 of the Indian Succession Act for grant of Probate regarding a will when the matter become contentious. The question which was referred to the Division Bench was as to whether Court-fee was payable on one half of the value of the properties on an application filed under S. 276 and 222 of the Indian Succession Act for grant of Probate regarding a will when the matter become contentious. The Bench held that when a proceeding for the grant of Probate or Letters of Administration became contentious and was required to be tried in the form of regular suit according to the provisions of the Code of Civii Procedure, it could not be considered as a suit in the strict sense of the term and as such Ad Valorem court-fee was not payable on such application under Art. 11 (k) (ii) sub-Cl.(2) of Schedule II of the Tamil Nadu Court Fees and Suits Valuation Act, 1955. 14. Learned counsel for the plaintiff submitted that even if there is an error in the valuation at the time of filing the petition, it could be subsequently rectified by the Court. He drew my attention to the provisions of S. 261 of the Indian Succession Act Under the said Section, errors in names and descriptions, or in setting forth the time and place of the death of the deceased or the purpose in a limited grant, may be rectified by the Court and the grant of probate or letters of administration may be altered and amended accordingly. In his commentary on the said section P.L. Paruck, at page 699, observed that if the total amount of the estate is increased by the amendment, the estate must be resworn and the additional stamp duty must be paid. Hence, it is contended by learned counsel for the plaintiff that issues 7, 11 and 13 are outside the scope of the present proceeding. 15. In answer to the said contentions urged by learned counsel for the plaintiff, Mr. Kripalani, learned counsel for the defendant argued that disclosure of all assets left by the deceased is a condition precedent for the grant of probate. He submitted that under R. 4(e) of O. 25 of the Original Side Rules, an application for Probate shall be accompanied by the affidavit of assets prescribed by S. 55 of Madras Act (XIV of 1955) and a copy of such affidavit. He submitted that under R. 4(e) of O. 25 of the Original Side Rules, an application for Probate shall be accompanied by the affidavit of assets prescribed by S. 55 of Madras Act (XIV of 1955) and a copy of such affidavit. Under the said Rule, the affidavit of assets shall, in addition to particulars given in Annexure A, Part 1 of Schedule HI of the Court Fees Act give as far as possible particulars of the survey or patta number of all lands and shall include the rents of all lands or houses that have accrued since the date of the death of the deceased and the debt with the names of the creditors and the dates of debts. Learned counsel for the defendant submitted that the said provision in the Rule is mandatory and if there is a failure on the part of the applicant to comply with the said rule, the Court shall refuse to grant the probate. It was next argued by learned counsel for the defendant that the nondisclosure of some of the assets belonging to the estate is part of a scheme of fraud played by the propounder. According to him, the defendants contention is that the will was dictated by the propounder when the testator was under the influence of alcohol and that the omission to give the details of the properties owned by the testator in the will is a significant fact which goes to prove that the will is not a product of a voluntary decision taken by the testator to dispose of the properties in the manner in which it is purported to have been done. According to learned counsel, it is only in that context the question whether all the assets owned by the deceased have been disclosed in the affidavit of assets is very relevant and an important matter to be considered by the Court when it decides the question of the genuineness of the Will. It was next contended by learned counsel that the properties have been deliberately under-valued by the plaintiff in the application with a view to defeat the various statutory provisions under the Court Fees Act, Stamp Act and the Wealth Tax Act. It was next contended by learned counsel that the properties have been deliberately under-valued by the plaintiff in the application with a view to defeat the various statutory provisions under the Court Fees Act, Stamp Act and the Wealth Tax Act. Learned counsel contended that the provisions of S. 75 of the Indian Succession Act compel the Court to enquire into every material fact relating to the persons who claim to be interested under the Will, the property which is claimed as the subject of disposition, the circumstances of the testator and of his family, and into every fact a knowledge of which may conduce to the right application of the words which the testator has used. According to learned counsel, the issues under consideration viz., issue Nos. 7, 11 and 13 would fall within the enquiry contemplated under S. 75 of the Indian Succession Act. It was further argued by learned counsel that the plaintiff did not challenge the framing of the issues for nearly a year and let in evidence on the said issues. According to him the principle of natural justice would be defeated if the issues are struck off as unnecessary and irrelevant after the plaintiff had let in evidence and has been cross-examined on the same. Learned counsel submitted that filing affidavit of assets is not a mere formality and the affidavit forms part of the record giving a right to the defendant to cross-examine the deponent of the affidavit under Order XIX of the Code of Civil Procedure. Lastly it was submitted that as per the ruling of the Division Bench in Philo Peter and Arputhasamy v. Divyanathan and 8 others and Mariapushpam and 2 others 1 (relied on by learned counsel for the plaintiff), the proceeding is not a suit in the strict sense and as such the provisions of Order XIV of the Code of Civil Procedure will not apply with the result that the application for striking off the issues is not maintainable. 16. I agree with learned counsel for the plaintiff that the scope of the suit is very limited as defined in M.K. Sowbhagiammal and another v. Komalangi Ammal and another 2 and the three issues viz., issue Nos. 7, 11 and 13 as framed travel beyond the scope of the suit. 16. I agree with learned counsel for the plaintiff that the scope of the suit is very limited as defined in M.K. Sowbhagiammal and another v. Komalangi Ammal and another 2 and the three issues viz., issue Nos. 7, 11 and 13 as framed travel beyond the scope of the suit. However, I am inclined to accept one of the contentions urged by learned counsel for the defendant that non-disclosure of assets left by the deceased should be considered while discussing his case that it is a part of a scheme of fraud played by the plaintiff in execution of which, the will was brought into existence, though it is not necessary to make it subject matter of an issue, as ordinarily any evidence pertaining to the alleged fraud and the alleged nondisclosure of assets in the will as well as the petition has to be considered when the genuineness of the will is decided. But, the issue having been framed already and remaining unchallenged for quite some time untilneerly 3/4th of the evidence has been recorded, I do not think it necessary to strike off the same as prayed for by the plaintiff. I would recast the issue in the following manner: “Whether the plaintiff has correctly disclosed and valued the assets left by the deceased?” The second part of the issue as framed originally is, in my view, beyond the scope of the suit and it is, therefore, left out. Incidentally, it has to be pointed out that there is no question of concealment or undervaluation with a view to defeat the payment of Estate Duty, as it has been abolished during the relevant period. Under-valuation of the estate is a matter left to the concern of the Revenue Authority by the Legislature. The provisions of Ss. 55 to 59 of the Tamil Nadu Court-fees and Suits Valuation Act contain the necessary safeguards. It is not for this Court to worry about the same. The argument of learned counsel for the defendant that the proceeding not being a suit, there cannot be an application for striking off issues is untenable. Even though the proceeding is not a suit in the strict sense of the term after it becomes contentious, it shall take the form of a regular suit, as nearly as may be, according to the provisions of the Code of Civil Procedure. Even though the proceeding is not a suit in the strict sense of the term after it becomes contentious, it shall take the form of a regular suit, as nearly as may be, according to the provisions of the Code of Civil Procedure. (Vide S. 295 of the Indian Succession Act). 17. Issue No. 11 relates to the entitlement of the defendant to the reliefs claimed in paragraph 8 of the written statement. In the said paragraph, the defendant has prayed for the appointment of a receiver with all powers under O. 40, R. 1 of the Code of Civil Procedure and for grant of mandatory injunction restraining the plaintiff, her servants and/or agents from dealing with or disposing of or in any way otherwise alienating, assigning and/or encumbering the properties set out therein or any part thereof pending the hearing and final disposal of the proceedings. Thus, all the reliefs prayed for in paragraph 8 of the written statement are only interlocutory and there is no prayer for grant of any relief at the time of final disposal of the proceeding. If the defendant had been keen on getting interlocutory reliefs, he could have filed separate applications therefor and invited the Court to consider whether such reliefs could be granted or not. He did not choose to do so. The prayer in paragraph 8 of the written statement cannot by the very terms thereof be the subject matter of an issue in the suit requiring a trial. On the other hand, if the reliefs had been prayed for by the defendant to be granted at the time of final disposal, they would be outside the scope of the proceeding. If the Will is upheld, the defendant will not be entitled to the reliefs prayed for and if the will is not accepted by the Court, the only consequence (sic) will be to dismiss the suit and in that event also, there is no question of granting the reliefs prayed for by the defendant. Hence, Issue No. 11 is struck off. 18. Turning to Issue No. 13, this also travels beyond the scope of the suit. If the plaintiff succeeds in establishing the genuineness and validity of the will, there is no question of her rendering a true and correct account of the assets and the income to the defendant. Hence, Issue No. 11 is struck off. 18. Turning to Issue No. 13, this also travels beyond the scope of the suit. If the plaintiff succeeds in establishing the genuineness and validity of the will, there is no question of her rendering a true and correct account of the assets and the income to the defendant. On the other hand, if she fails, the suit has to be dismissed and the remedy of the defendant will be elsewhere. Hence, Issue No. 13 is also struck off. 19. Issue Nos. 1 to 3, 5, 7 and 8: — These are the pivotal issues in the case, as they relate to the genuineness and validity of the will. The principles which govern the proving of a will are well settled and the Supreme Court has in more than one case laid down the same in unmistakable terms, (see H. Venkatachala Iyengar v. B.N. Thimmajamma 1, Rani Purnima Devi v. Khagendra Narayan Dev 2, and Shashi Kumar v. Subodh Kumar 3. The following passage found in the last of the judgments referred to above is useful and instructive:— “.. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of will by S. 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however, there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testators mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testators mind was not free. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testators mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testators mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on, him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the wili might be unnatural and might cut off wholly or in part near relations” The very same passage is found in a later judgment of the Supreme Court in Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another 1. 20. Bearing the above principles in mind, I will advert to the evidence on record. I have already referred to the undisputed facts in paragraph 2 of this judgment. Keeping those facts in the background, the evidence in the case has to be approached. Ex. P-1 is the will in dispute. The following circumstances are admitted:— (a) The letter head utilised for the purpose of the document is that of Dr. Chaman Bali. (b) The date, time and address found at the top are admitted. (c) The entire document is written in the hand writing of Dr. Chaman Bali and it is his usual ‘fancy handwriting’. (d) The words and figures found at the bottom of the will viz., signed and sealed on 10th July 85 are in the hand-writing of the deceased. (e) The signature below the same is that of the deceased. (f) The age of the testator as mentioned in the first sentence is correct. (g) The statement that the mother of the defendant viz., Smt. Ruby had married one Bajaj after the official divorce is also correct. (h) The hand-writing found in the document is quite steady. The defendant while giving evidence as D.W.I was asked about it in cross-examination. (f) The age of the testator as mentioned in the first sentence is correct. (g) The statement that the mother of the defendant viz., Smt. Ruby had married one Bajaj after the official divorce is also correct. (h) The hand-writing found in the document is quite steady. The defendant while giving evidence as D.W.I was asked about it in cross-examination. The question and answer are as follows:— “Q. You find the handwriting in both sides very steady and very uniform in Ex. P.1? A. Yes.’ (i) The deceased was in normal health and suffered no ailment during the relevant period. D.W. 1 was questioned thus:— Q. ‘I am asking you whether he had any serious problem or he was normal in July, 1985?’ The answer is: ‘A. He was normal. He was not having any ailment.’ The testator was alive for more than nine months after the execution of the will. Even according to the evidence of D.W.1, the testator was aware of the same and spoke to him about it in March, 1986 when he met him in Delhi. Of course, D.W.1 deposed that his father told him that the documents were obtained by Mrs. Bali (plaintiff) under the influence of alcohol and that the two witnesses were not present in Bombay. The relevant portion of the cross-examination is in the following terms:— “Q. Mr. Rattan, I put it to you that your allegations in the written statement about the fabricated nature of the will, Ex. P.1 and about its having been dictated by Mrs. Vyayanthymala Bali and about your father being addicted to alcoholic drinks and P.Ws.1 and 2 attesting subsequently are all your impressions? A. ‘That is not true’ Q: ‘Wherefrom you got that information?’ A: “My father told me that the various documents had been obtained by Mrs. Bali under the influence of alcohol and also the two witness were not present in Bombay.” The answer given by D.W.1 really lets the eat out of the bag. It is clear from the said answer that Dr. Bali was not only aware of the execution of the document but also the attesation by the witness. If really Dr. Bali had told the defendant that the documents were obtained by Mrs. Bali under the influence of alcohol and that the witnesses were not present in Bombay, nothing could have prevented Dr. Bali was not only aware of the execution of the document but also the attesation by the witness. If really Dr. Bali had told the defendant that the documents were obtained by Mrs. Bali under the influence of alcohol and that the witnesses were not present in Bombay, nothing could have prevented Dr. Bali from, concelling the said will and writing a fresh will. The fact that Dr. Bali lived for over nine months after the execution of the will and yet did not make any attempt to cancel it goes a long way to prove the conscious execution and valid attestation in his presence. 21. Before referring to the oral evidence as to execution and attestation, it is necessary to avert to the presumption in law in favour of the genuineness of a holograph will. A ‘holographic will’ has been defined to be one entirely written, dated and signed by the testator. In this case there is an additional feature that the time of execution of the will has been written by the testator himself. A Division Bench of the Calcutta High Court has in Ajit Chandra Majumdar v. Akhil Chandra Majumdar 1, held that the law makes a great presumption in favour of the genuineness of a holograph will for the very good reason that the mind of the testator in physically writing out his own will is more apparent in a holograph will then where his signature alone appears to either a typed script or to a script written by somebody else. The Supreme Court has in Shashi Kumars case 2, already referred to, placed great reliance on the fact that the will in dispute was a holograph will and admittedly in the hand of the testator and held that it raised a strong presumption of its regularity and of its being duly executed and attested. 22. P.W.1 is one of the attestors. He has been working with Dr. Bali as his private secretary for 17 to 18 years. He was attending to all his official duties and all the work entrusted to him. He was working both in Madras and Bombay. He was summoned by Dr. Bali to Bombay in July, 1985 to attend to Duru Mahal matter and Suchindra Arts matter, He was staying in the same premises as Dr. Bali and along with him P.W.2, the other attestor was also staying. He was working both in Madras and Bombay. He was summoned by Dr. Bali to Bombay in July, 1985 to attend to Duru Mahal matter and Suchindra Arts matter, He was staying in the same premises as Dr. Bali and along with him P.W.2, the other attestor was also staying. According to him, Dr. Balis health was absolutely alright and he was fit. He deposed that in the night of July 10, 1985 himself and P.W.2 were sitting in the office and attending to urgent office work and they were both called by Dr. Bali to his room. Then Dr. Bali told them that he bad written a will and wanted them to attest the same as witnesses. Thereafter, Dr. Bali wrote “signed and sealed” at the bottom of the will and signed his signature in the presence of both. Then he asked them to write signed and sealed in the presence of both of us” and sign as witnesses. He asked P.W.I to sign as the first witnesses. When P.W.1 signed, both Dr. Bali and P.W.2 were present and saw the same and when P.W.2 signed, both Dr. Bali and P.W.1 watched the same. He wrote the words “signed and sealed in the presence of both of us”. That portion is marked as Ex. PI(a). The signature and seal of Dr. Bali are marked as Ex. P1(b). He deposed that Dr. Bali told himself and P.W.2 not to disclose the execution of the will until he himself told anybody. He said that he infor med Mrs. Bali about the will after the death of Dr. Bali. In the cross-examination it was elicited that he is at present employed under Mrs. Bali. He was cross-examined at great length by the defendants counsel, but nothing useful to the defendant could be elicited from the witness He denied the suggestion that his signature as a witness was put by him at Madras. It was elicited from him that he never had any discussion about the will with the plaintiff. P.W.2 was the auditor for Dr. Bali and the plaintiff for income-tax purposes. He gave evidence on the same lines as P.W.1 He was subjected to a mors lengthy cross-examination by the defendants counsel than P.W.1. He denied the suggestion that he did not sign or put his signature on Ex. P1. He said that Mr. P.W.2 was the auditor for Dr. Bali and the plaintiff for income-tax purposes. He gave evidence on the same lines as P.W.1 He was subjected to a mors lengthy cross-examination by the defendants counsel than P.W.1. He denied the suggestion that he did not sign or put his signature on Ex. P1. He said that Mr. Krishnan had a discussion about the will with Mrs. Bali. A suggestion that Dr. Bali was on life-saving drugs prior to July, 1985 and be called for such drugs from abroad was put to this witness though no such suggestion was put to P.W.1. The witness answered that he did not know. He denied the suggestion that he was giving evidence to oblige the plaintiff who was a Member of Parliament. 23. Learned counsel for the defendant commented upon the discrepancy in the evidence of the two witnesses. He relied on the fact what while according to P.W.2, P.W.1 bad a discussion with Mrs. Bali about the will, P.W.1 expressly denied having had any discussion. I do not think that there is a material discrepancy on this aspect of the matter. P.W.1 bad stated that he informed Mrs. Bali about the will after the death of her husband. P.W.2s evidence that P.W.1 had a discussion with Mrs. Bali would only refer to the same. In so far as the execution and attestation of the will are concerned, there is absolutely nothing inconsistent or discrepant in the evidence of the two witnesses. Another comment made by learned counsel for the defendant is that neither P.W.1 nor P.W.2 has been able to produce any iota of evidence to prove that they were in Bombay on 10-7-1985. Learned counsel for the defendant spent much time on this aspect of the matter not only during the cross-examination of the witnesses, but also during his arguments. Learned counsel submitted that the witnesses said that they had been attending to certain matters in Court in Bombay and certain matters in the office of the Registrar of Companies. Learned counsel vehemently contended that the witnesses could have produced official documents to prove their presence in Bombay on 10-7-1985. I do not accept the argument of learned counsel for the defendant for two reasons. First, persons in the ordinary walk of life cannot be expected to keep documentary proof for being in a particular place on a particular date. Learned counsel vehemently contended that the witnesses could have produced official documents to prove their presence in Bombay on 10-7-1985. I do not accept the argument of learned counsel for the defendant for two reasons. First, persons in the ordinary walk of life cannot be expected to keep documentary proof for being in a particular place on a particular date. In the case of Government servants and other officials, records in the shape of T.A. Bills and other documents may be readily available. That is not the case with other individuals who do not hold any official positions. Secondly, I have already referred to the evidence of D.W.1 to the effect that Dr Bali spoke to him about the two witnesses. I have already dealt with the inference to be drawn from the deposition of D.W.1. That goes to show that the evidence of P.Ws. 1 and 2 is true. 24. Learned counsel for the defendant invited my attention to the affidavit filed by P.W.I at the time of the institution of the original petition. The affidavit of the attestor was filed as required by R.4(c) of O 25 of the Original Side Rules. In paragraph 5 of the affidavit it is stated as follows:— “I state that the said deceased Sri Dr. Chaman Bali wrote the above said will and affixed his signature in our presence.” Learned counsel for the defendant contended that according to the oral evidence given by P.Ws.1 and 2, they did not see Dr. Bali write the will and, therefore, what was stated in the affidavit was false. According to learned counsel that makes the deposition of the witness unworthy of acceptance, I do not agree. Learned counsel had in the cross-examination drawn the attention of P.W.1 to the said paragraph in the affidavit and elicited an answer. The relevant questions and answers are as follows:— “Q. See your statement in the affidavit dated 1st September, 1986 in paragraph 5 you have stated as follows: “I state that the said deceased Dr. Chaman Bali wrote the above said will and affixed his signature in our presence”. Is that statement correct? A. He said that he had written that will. So, he wrote that will. Q. You again read paragraph 5 of your affidavit —the statement that he wrote the will and signed in your presence—is that statement correct? A. Dr. Chaman Bali wrote the above said will and affixed his signature in our presence”. Is that statement correct? A. He said that he had written that will. So, he wrote that will. Q. You again read paragraph 5 of your affidavit —the statement that he wrote the will and signed in your presence—is that statement correct? A. Dr. Bali said that he had written the Will and asked to attest his signature. Q. So, when you said that he wrote the will in your presence is not correct? A. He never wrote the Will in our presence. Q. You do not know when Dr. Bali wrote that Will? A He said that he has written the Will. Q. You do not know personally when Dr. Bali wrote that Will. Is it correct? A. I do not know. By Court: Q. When did he say about the Will? A. When he called us to witness the signature in the Will he said he has written a Will. Q. When actually he wrote the Will? A. He had just finished writing the Will when we were called, that is when we were called to the room to attest the Will.” The statement in the affidavit filed by the attestor cannot be interpreted to mean that the will was written in the presence of the attestors. As the witness has rightly explained Dr. Bali himself having told them that he wrote the will, the attestor thought fit to state in the affidavit that Dr. Bali wrote the will. The words “in our presence” cannot be attributed to the writing of the will, but they shall legitimately go with the affixture of Dr. Balis signature. In any event, I do not think it to be a material discrepancy on the basis of which the evidence of P.W.I should be disbelieved. It is too well known that affidavits are prepared by the advocates and the parties simply sign the same even without reading them. The cavalier fashion in which affidavits are prepared and filed now-a-days in Court, is no doubt a matter for condemnation. In this case, the statement found in the affidavit filed by P.W.I would not lead to the total rejection of the deposition of P.W.1. There is nothing on record which would justify the rejection of the attestors evidence. The cavalier fashion in which affidavits are prepared and filed now-a-days in Court, is no doubt a matter for condemnation. In this case, the statement found in the affidavit filed by P.W.I would not lead to the total rejection of the deposition of P.W.1. There is nothing on record which would justify the rejection of the attestors evidence. Hence, I hold that P.Ws.1 and 2 have proved the execution and attestation of the will. 25. The plaintiff examined herself as P.W.3. According to her, she was not in Bombay at the time of the execution of the will and that she came to know of the will for the first time when her husband was taken to Appollo Hospital a few days prior to his death. She stated that her husband just told her that he had written a will and only two persons knew about the same. She added that she did not want to hear more about it, because she was in such a frame of mind due to emotions and as she wanted him to live long, she did not ask him anything further about the will. She deposed that she took custody of the will after the religious ceremonies in connection with her husbands death concluded. She said that she went to Bombay along with a close friend of hers by name Mrs. Dr. Chander Mehta and found the will in the personal steel cub-board of her husband and then she took custody of the same. She also stated that she gave the will to her counsel immediately for getting it probated it is seen from the original petition that it was signed and attested on 1-8-1986 at New Delhi, though it was presented in this Court on 1-9-1986. Her version that she gave the will to her counsel soon after taking custody of the same for probating it, is quite probable. XXXX The discussion relating to the evidence of P.W.P. 1 to 4 is omitted—Ed. 29. Now, I will refer to the various circumstances, which, according to learned counsel for the defendant, are suspicious. According to him, they have not been explained properly and the due execution and attestation of the will have not been proved as required by law. The following are the circumstances catalogued by him :— (1) Dr. Bali had no reason for disinheriting his first wifes sons. According to him, they have not been explained properly and the due execution and attestation of the will have not been proved as required by law. The following are the circumstances catalogued by him :— (1) Dr. Bali had no reason for disinheriting his first wifes sons. (2) The time of execution of the will viz., 11 -40 P.M. is very odd and there was no earthly reason for executing the will at that time. (3) The absence of a Schedule of the properties and the omission to describe the same in the will proves the scheme of fraud played by the plaintiff taken along with her failure to disclose all the as sets owned by Dr. Bali in the original petition. (4) The allegation made against the defendant and his brothers in the will prove that it was not written by Dr. Bali when he was in a sound disposing state of mind. (5) The last paragraph of the will to the effect that the testator would like his wife and his son to enjoy their lives without any trouble from any quarters, creates a great suspicion as there was no occasion previously indicating that a trouble would arise in future. (6) The body of the will does not contain the words “In witness whereof” and the details of the attestors are not mentioned therein. (7) The date of the will is given in two places, both at the top and again at the bottom. (8) P.Ws.1 and 2 are the employee of the plaintiff and they have not produced any records to show that they were in Bombay on 10-7-1985. (9) The plaintiff has not produced the ring with which the will has been sealed. (10) The plaintiff has failed to examine Dr. Mrs. Chander Mehta, who is said to have accompained her when she went to Bombay to take custody of the will. (11) The discrepancies and contradictions in the evidence of P.Ws.1 and 2 on the one hand and D.W.2 on the other. (12) The non-disclosure of the will to the defendant till it was filed in Court. (13) P.W.3s refusal to answer Certain questions and failure to produce record which show the correct valuation of the properties. (14) Dr Bali was a drunkard as made out by D.W.I in his deposition. 30. (12) The non-disclosure of the will to the defendant till it was filed in Court. (13) P.W.3s refusal to answer Certain questions and failure to produce record which show the correct valuation of the properties. (14) Dr Bali was a drunkard as made out by D.W.I in his deposition. 30. Before considering the aforesaid circumstances one by one, it is necessary to advert to the dicta of Supreme Court in two cases. In Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another 1 the Supreme Court indicated that the suspicious circumstances surrounding the execution of the will would be (a) where the signature is doubtful, (b) the testator is of feeble mind or is overawed by powerful minds interested in getting his property, (c) where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair and (d) where there are other reasons for doubting that the dispositions of the will are not the result of the testators free will and mind. It Was held that in such cases, where there may be legitimate suspicious circumstances, they must be reviewed and satisfactorily explained before the will is accepted. In Smt. Indu Bala Bose and others v. Manindra Chandra Bose and another 2, the Supreme Court observed as follows:— Needless to say that any and every circumstance is not a suspicious circumstance. A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.” XXXX 31. Circumstance No. 1:— Discussion relating to facts is omitted—Ed. 31. It cannot be said that the disinheritance of the defendant and his brothers is a suspicious circumstance surrounding the execution of the will. The provisions of the will cannot be said to be unnatural. 32. In this connection, the following observations made by a Division Bench of the Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar 3, may be referred to with advantage:— “(34) The will has been challenged on the ground that it is an unnatural Will, because the testator prefers one son to others. On the question of unnatural and officious Will a Court of Probate has to act with great caution. On the question of unnatural and officious Will a Court of Probate has to act with great caution. The testator who has full testamentary powers and a disposing mind cannot be dictated by the Court as to what is a fair and an unjust disposition. The Will is the Will of the testator and he has, under the law, the freedom to give his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural disposition can certainly be taken as a consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding mind. But once it is established that the testator was free and had a sound disposing mind, then it is no longer the duty of the Court to go further to inject its own ethics of what is or is not a moral or a fair disposition according to the Courts own standards Judged by that test, many a Will by a father depriving his sons would be unjust and indeed many a Will exhibits mans iniquity against his nearest and dearest relations and yet not on that ground alone have those Wills been declared by this Court invalid Such wrongs, however grievous, are not for the temporal courts of justice to correct and are better left to Him who adjusts all wrongs and non-justiciable iniquities, and under whose “munificence the testater and the disinherited alike live and die. (35) A strong warning is given by the Privy Council in C. Harwood v. M. Baker 4. on this subject of unjust exclusion and will still bear the following question: “The question which their Lordships propose to decide in this case, is not whether Mr, Baker (testator) knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property. If he had not the capacity required, the properiety of the disposition made by the Will is a matter of no importance. If he had not the capacity required, the properiety of the disposition made by the Will is a matter of no importance. If he had it, the injustice of the exclusion would not affect the validity of the disposition, though the justice or injustice might cast some light upon the question as to his capacity.” 33. Circumstance No. 2: The second circumstance pointed out by learned counsel for the defendant is that the will was executed at an odd hour viz., 11-40 P.M. He points out that the time of the execution of the will has not been disclosed in the Original Petition. According to him, it is a deliberate non-disclosure. This is not a suspicious circumstance at all in view of the fact that the time has been written by Dr. Bali in his own hand. There is no dispute that the document was written at that time. The evidence of P.Ws.1 to 3 shows that Dr. Bali used to work till late in the night. It is not uncommon to see people working till late in the night and going to bed only after raid-night. XXXX [Discussion in Paras 34 to 43, 45, 46 and omitted as it relates to facts—Ed.] 44. There is no failure on the part of the plaintiff to produce the best evidence available to prove due attestation. XXXX 47. Circumstance No. 13: Learned counsel places reliance on the refusal of the plain tiff to answer certain questions and failure on her part to produce records which would show the correct valuation of the properties. I have already, in paragraph 27, referred to the reason for P.W.3s refusal to answer certain questions. There is no need to delve any further on this aspect of the matter With regard to the records for proving the valuation of the properties, there is no necessity for the plaintiff to have produced them at this stage. The question of valuation is a matter for the Revenue Authorities as pointed out already. Hence, this is not a suspicious circumstance surrounding execution of the will. XXXX 48. The demeanour of D.W.1 when he was in the witness box indicated against his credibility. In the chief-examination he deposed that he was present in the drinking parties held in his house late in the night. Admittedly, he was less then ten years old at that time. XXXX 48. The demeanour of D.W.1 when he was in the witness box indicated against his credibility. In the chief-examination he deposed that he was present in the drinking parties held in his house late in the night. Admittedly, he was less then ten years old at that time. Yet, he claimed to have been present in those parties. I am of the view that D.W.1 is not a person who can be believed. 49. At this stage, it will be convenient to refer to a ruling in A.K.D. Rangaswami Raja v. A.K.D. Venkata Raja and others 1. A Division Bench of this Court has dealt with the law on this subject at some length. The following passage in the Judgment is very useful and instructive:— “The argument is that unless and until suspicions are dispelled and the conscience of the Court is satisfied, probate ought to be declined, though it is or might be indisputably established by the evidence that the will was executed by a free and capable testator, and that it represents his intentions, this is, of course, apart from a plea of undue influence. This attitude to the entire question does not appear to be justified, upon the fundamental postulates earlier referred to. It is relevant to note the dicta of the Judicial Committee in Harmes v. Hinkson 2: “These rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. The true position in that where circumstances of suspicion or grave suspicion exist, they determine the perspective of approach of the Court to the central issue. The evidence adduced might either prove the execution of the testament as that of a free and capable testator, and thus dispel those suspicions, or leave them undispelled, even darkened further. In the latter case, the Court will certainly decline probate. But where the Court is satisfied, from the evidence, that the will was validly executed by a testator with capacity, the suspicions are dispelled by the very force of that conclusion. A simple illustration will be sufficient to show this. A testator might leave his entire estate to a favourite mistress, to the unmerited and total exclusion of a faithful and loyal wife. A simple illustration will be sufficient to show this. A testator might leave his entire estate to a favourite mistress, to the unmerited and total exclusion of a faithful and loyal wife. It might even be that the mistress had something to do with the circumstances of the execution of the will. These are powerful grounds for suspicion, and the Court will approach the facts in that perspective. But if we suppose it is fully established, in such a case, that a free and capable testator did execute such a will, suspicion is then reduced to a perversity is the mind of the testator upon which the Court will not judge. For the Court does not make a will, and apart from the question of the execution of the will by a free testator with capacity, the Court is not concerned with the wisdom and righteousness of the dispositions. Again, as pointed out by Willmer, J. In re R. Deceased 3, the circumstances, which excite the suspicion of the Court must be relevant to the preparation and execution of the will, in some form, and cannot merely be suspicious concerning the veracity of witnesses. It may very well be that the fourth defendant (D.W.7) has given untrue evidence in certain respects, or that Subbaraya has done so. But the question is whether those matters concerned the execution of the will, and render that fact doubtful. It is also pertinent to observe that where the evidence proves that the will was read over to a capable testator or dictated by him, and then executed by him, as here, these circumstances efford a very grave and strong presumption that he knew and approved all the contents, a presumption which can be rebutted only by the clearest evidence. Graoson v. Taylor4. XXXX The dictum of Hennen, J. in Burdett v. Thompson 1, that ‘whatever is the highest degree of soundness of mind is required to make a will’ may be easily misunderstood. Testamentary capacity is not a special faculty, given only to few, or to most persons only wherein an exceptional state of clearness of thought and memory. That is not the law, and if that were to be the law, it would lead to the startling consequence that many average persons might be incompetent altogether to make a will. Testamentary capacity is not a special faculty, given only to few, or to most persons only wherein an exceptional state of clearness of thought and memory. That is not the law, and if that were to be the law, it would lead to the startling consequence that many average persons might be incompetent altogether to make a will. It is the normal state or self recollected ness of a sane person, who is in good health, and whose powers of judgment and memory have not been pathologically affected. It is impossible to subscribe to the proposition advocated by the learned Counsel for the appellants that anxieties and tensions which Dharma Raja was then undergoing, should have effected his testamentary capacity. Life is full of anxieties and tensions and this testator was, by all accounts, a particularly strong willed and resolute man. If one were compelled to wait for a relative tranquillity of min d, in order to make a valid will, it would merely be waiting, as the Tamil proverb of homely wisdom has it, ‘to take a sea-bath after the waves first subside’. XXXX But, as pointed out by Venkatarama Ayyar, J. in Naresh Charen v. Paresh Charan 2 It is not every influence which is ‘undue’ and the aspiring legatee may well plead his case before the testator, or importune him; or by the practical value of his assistance, persuade the testator to benefit him. As Lord Penzance stated in Hall v. Hall 3, ‘A testator may be led, but not driven.’ “It, has been held in several decisions that the burden of proving coercion or undue influence is on the person who alleges the same. Vide Ajit Ghandra Majumdar v. Akhil Chandra Majumdar 4, and Shashi Kumar v. Subodh Kumar 5. The defendant, on whom the burden rests in this case, has miserably failed to prove the same. 50. In Edara. Venkata Rao v. Edara Venkayya 6, it was held that in a civil case, unlike criminal cases, it cannot be said that the benefit of every reasonable doubt must necessarily go to the defendant and that the failure of the defendant to prove his positive case which intended to rebut the case of the plaintiff must be given its due weight. 51. 51. Learned counsel for the defendant cited the following cases in support of his contention that the onus of proving due execution and attestation of a will is on the propounder: 1. Gnanaprakasam Pillai and another v. Parasakthy Ammal and others 7. 2. Kalidindi Venkatta Subbaraju and others v. Chintalapati Subbaraju and others 8. 3. Moonga Devi and others v. Radha Ballobh 9. 4. Billeswar Kumar v. Smt. Nirupama Debi and others 10. The proposition is well known and beyond dispute. In this case, I hold that the plaintiff has discharged the onus and proved the due execution and attestation of the will in question. 53. I hold on issue No. 1 that the will dated 10-7-1985 executed by Dr. Chaman Bali is genuine, true and valid in law. On issue No. 2 I hold that Dr. Chman Bali executed the will while he was in sound and disposing state of mind. Issue No. 3 is answered in the negative against the defendant. On issue No. 5, I hold that the will was not dictated by the plaintiff in the circumstances alleged by the defendant in paragraph 3 of the written statement. On issue No. 7 I hold that the plaintiff has correctly disclosed the assets and the valuation thereof is to be decided by the Collector. Issue No. 8 has not been correctly framed and it is somewhat clumsy. I hold that the words “signed and sealed in the presence of both of us” at the foot of the will were written properly when Dr. Chaman Bali wanted P.W.1 and P.W 2 to attest the will and that attestation was immediately after the execution of the will by Dr. Bali, Issue No. 4: It is the contention of the defendant that the suit should fail for nonjoinder of his brothers Rajan Bali and Raman Bali. I have already referred to the judgment of this Court in Philo Peter and Arbuthasamy v. Divyanathan and 8 others and Mariapushpam and 2 others 1 holding that a proceeding referred to in S. 295 of the Indian Succession Act does not become a suit in the strict sense of the term even after it becomes contentious. Order XXV of the Original Side Rules prescribes the procedure for proceedings under the Indian Succession Act with reference to testamentary and intestate matters. Order XXV of the Original Side Rules prescribes the procedure for proceedings under the Indian Succession Act with reference to testamentary and intestate matters. Rule 51 of Order XXV of the original Side Rules provides that if any person intends to oppose the Issue of a grant of probate or letters of administration, must either personally or by his advocate file a caveat in the Registrars office in Form No. 69. A caveat shall state the name, place of abode, description, occupation and the address for service of the caveator. Under the rule, when a caveat is filed, the Registrar shall give notice thereof to the petitioner. Under R. 52, where a caveat is entered after an application has been made for a grant of probate or letters of administration, the affidavit in support of the caveat shall be filed within eight days of the caveat being filed. Such affidavit shall state the right and interest of caveator and the grounds of the objections to the application. Upon the affidavit in support of the caveat being filed, the proceeding shall be numbered and registered as a suit in which the petitioner shall be the plaintiff and the caveator shall be the defendant. As per the Rules, the only person who can be a defendant in the suit is the caveator. No person who has not filed the caveat is entitled to be impleaded as a defendant. The records of this Court show that notices in the original Petition for grant of probate were issued to all the three sons of Dr. Bali by his first wife. In other words, notices were sent to the defendant and his two brothers. In spite of having been served with notices in the Original Petition, the defendants brothers did not choose to file caveat. The defendant is the only caveator and thus he is the only person entitled to be a party to this suit. In Smt. Rukmani Devi and others v. Narendra Lal Gupta 2, the Supreme Court held that the failure of the appellants in that case to enter a caveat to contest the proceedings after having been served with the citation, would preclude them from contesting the validity of the will in other proceedings. There is no substance in the argument of learned counsel for the defendant that the present suit should fail for non-joinder of the defendants brothers. There is no substance in the argument of learned counsel for the defendant that the present suit should fail for non-joinder of the defendants brothers. Hence, I find issue No. 4 against the defendant. 54. Issue Nos. 6 and 9:—Once the will is found to be genuine and valid, it follows automatically that the plaintiff is a legal trustee and testamentary guardian of minor Suchindra Cabmen Bali and the minor is properly represented in this suit by her. Undoubtedly, she is qualified and entitled to act as executrix and under S. 22 of the Indian Succession Act, she is entitled to apply for probate of the will. 55. Issue No. 10: The Will declares unequivocally that Suchindra Bali is the one and the only heir to all the property and wealth that the testator leaves behind. Obviously, the statement in paragraph 8 of the petition that the petitioner and the minor are the sole legal heirs has crept in by inadvertence. That does not mean that she is claiming an interest jointly with the minor. 56. Issue No. 12 : Strictly speaking, this issue is entirely outside the scope of this proceeding. But, learned counsel for the plaintiff wanted the issue to be retained and argued that the defendant and his brothers have no caveatable interest and as such the defendant has no locus standi to contest the proceeding. His argument is that under the agreement Ex. P6, all the claims of the defendant and his brothers including their right to succeed to the fathers estate after his death were settled and the defendant and his brothers are not entitled to succeed even if Dr. Bali had died intestate. 1 do not agree. Ex. P6 does not in any manner deal with the right of the defendant and his brothers to succeed as heirs of their father after his death. Hence, the defendant has a caveatable interest. But, in the way in which the issue has been framed, it has to be held that the settlement between Dr. Bali and Ruby is legal and binding on the defendant and his two brothers. They have never challenged it and it is no longer open to challenge. 57. Issue No. 14 , The plaintiff is entitled to grant of probate as prayed for in the suit. The defendant shall pay the costs of the suit to the plaintiff. Bali and Ruby is legal and binding on the defendant and his two brothers. They have never challenged it and it is no longer open to challenge. 57. Issue No. 14 , The plaintiff is entitled to grant of probate as prayed for in the suit. The defendant shall pay the costs of the suit to the plaintiff. The application is allowed partly as indicated already. No costs.