JUDGMENT Mukherjee, J.: This appeal is directed against a judgment and decree dated December 1, 1981, passed by the learned Additional District Judge, First Court, Howrah, in Probate Suit No.4 of 1980, whereby the Probate was granted in respect of a Will of one Noor Muhammad Ansari. The wife of Noor Muhammad Ansari is the appellant. 2. The testator, Noor Muhammad Ansari died on February 16, 1980 at 484, G. T. Road (South), Sibpur. Howrah. On 7.2.80, he executed his last Will and Testament whereby he appointed his sister’s son Ekramul Haq Ansari, as the sole executor. At the time of death Noor Muhammad Ansari left behind him surviving his widow, the present appellant, Mussammat Fatema Bibi. According to the terms of the Will, the testator bequeathed Holding Nos. 74 and 75, Cows Ghat Road, with structures thereat to Ekramul Haq Ansari and one Samim Qureshi in equal shares and a provision was made that the appellant Fatima Bibi will be entitled to Rs. 150/- per month towards her maintenance from the income of the property. As Noor Muhammad was illiterate, he executed his Will by affixing his thumb impressions in presence of witnesses. On an application for probate having been made by Ekramul Haq Ansari, the appellant contested the same by filing a written objection. Her Her contention that she used to live with Noor Muhammad all along and that no such Will was at all executed by her husband. Had there been any Will, she would have known about the same. The Will in probability was manufactured after his death by procuring his thumb impression on a blank paper. It was further contended that Zubeda Khatunwas not the sister of Noor Muhammad, and that being so, Ekramul Haq Ansari was not the testator's full sister's son though it was admitted that by relation Ekramal Haq Ansari was a nephew (sister's son to the testator). 3. At the trial on behalf of the plaintiff five witnesses were examined. P. W. 1 was Muhammad Mustafa Qureshi, who was a sister's husband of one of the legatees, Samim Qureshi. He was a teacher in Howrah Muslim High School, who claimed to be a legal practitioner for sometime after having passed LL.B. Examination in 1975. He could not remember the date of his joining the Bar. P. W. 1 was Muhammad Mustafa Qureshi, who was a sister's husband of one of the legatees, Samim Qureshi. He was a teacher in Howrah Muslim High School, who claimed to be a legal practitioner for sometime after having passed LL.B. Examination in 1975. He could not remember the date of his joining the Bar. He claimed to have practised law at Howrah Criminal Court as an Advocate for sometime, but clearly admitted that at the time of drafting the Will, he was not practising but he used to attend the chamber of one Ananda Singh, Advocate. Under the instruction of Noor Muhammad given at his house, be drafted the Will but he could not remember the date on which he was so instructed to instructed to draft out the Will. On 7.2.80, he prepared the draft which was typed on the same day and it was executed by the testator by putting his thumb impressions on the same. He knew that a Muslim could bequeath 1/3rd of his property, but ho did not know the limits of the testamentary power of a Sunni Muslim. He knew the testator as a friend of his father-in-law, Sk. Kalloo Qureshi. He drafted the Will and gave it to one Gorachand Das, a moharar of an advocate, M N Ghosal. Gorachand after getting it typed, handed over the same to him and it was he who read over and explained the Will to Noor Muhammad. He claimed that Gorachand Das, Asraf Ali, Muhammad Yusuf and Fatema Bibi were all present and they signed the Will in the presence of the witnesses but in reality Gorachand Das, Amjad Ali and Muhammad Yusuf were the attesting witnesses. 4. P. W. 2, was Ekramul Haq Ansari, who claimed to be the sister's son of the testator. His testimony was that he used to -reside with his maternal uncle the testator, from the age of 4/5 years. His version was that he was not present during the preparation of the Will. His maternal uncle never instructed him regarding preparation of the Will. He used to took after the payment of rent, attendance in Court matters, etc. on behalf of the testator. The testator, however, was illiterate. He himself read upto Class VII. He denied that he took thumb impression of the testator in a white sheet of paper which was converted into a Will. He used to took after the payment of rent, attendance in Court matters, etc. on behalf of the testator. The testator, however, was illiterate. He himself read upto Class VII. He denied that he took thumb impression of the testator in a white sheet of paper which was converted into a Will. The testator was in a fit state of health. It was Gorachad who told that he went to his maternal uncle and his maternal uncle executed the Will in his favour. He used to accompany his maternal uncle to court very often where he used to meet Gorachand Babu. He knew Mustafa Qureshi, the pleader P. W. 3, Gorachand Das, was a registered clerk of an advocate, who deposed, inter alia to the effect that be knew Noor Muhammad Ansari. He worked as his moharar in different cases. The pleader Mustafa gave him one Will for the purpose of typing. He got it typed by Kanaibabu, a typist of Civil Court and he handed over the typed Will to Muhammad Mustafa Qureshi, Advocate, at 484, G. T. Road, Howrah, in presence of Noor Muhammad Ansari and Muhammad Mustafa. Then Amzad Ali and another person came and Mustafa Qureshi read over the contents of the Will to the testator and all those were present. Noor Muhammad told him that the Will was all right and then put his thumb impression on the Will. At that time Muhammad Mustafa Qureshi, Amjad Ali, Kalloo Qureshi, Samim Qureshi and one or two other women were present. He himself, Muhammad Mustafa Qureshi, Muhammad Yusuf, Amjad Ali were the witnesses. Noor Muhammad was in good health and mind during the execution of the said Will. He denied that the thumb impression was taken on a blank sheet of paper after his death. He could not say whether Fatema Bibi was present as he did not know her, but 2/3 women were present at that rime whom he did not know. He further admitted that he was making tadbir in the case. 5. P. W. 4, Amjad Ali was a resident of 49. Cows Ghat Road, Sibpur. He testified, inter alia, to the effect that Noor Muhammad was present when he signed, Mustafa, Amjad Ali, Gora Babu and Muhammad Yusuf also signed the deed as witnesses. Noor Muhammad put his thumb impression. Noor Muhammad also saw the witnesses to sign the deed. 5. P. W. 4, Amjad Ali was a resident of 49. Cows Ghat Road, Sibpur. He testified, inter alia, to the effect that Noor Muhammad was present when he signed, Mustafa, Amjad Ali, Gora Babu and Muhammad Yusuf also signed the deed as witnesses. Noor Muhammad put his thumb impression. Noor Muhammad also saw the witnesses to sign the deed. Mustafa Qureshi read over the contents of the deed to Noor Muhammad and thereafter Noor Muhammad put his thumb impression. Fatema Bibi, wife of Noor Muhammad and the wife of Kalloo were also present there. Noor Muhammad was in a good mind and health when he executed the deed. Noor Muhammad put his thumb impression at about 3/3-30 p. m. Samim Qureshi called him. Ekramul Haq was not present when the paper was signed. The Holding No. 74 and 75, Cows Ghat Road Sibpur, Howrah, weft given by the deed to two persons. He signed the deed being told do so by Noor Muhammad after going through contents of the same. It was not a fact that Noor Muhammad was in a bad state of health and mind when he executed the deed. He did Dot know that Noor Muhammad suffered from any ailment but he had some pain in his belly but he was talking. He visited the residence of Noor Muhammad before the deed was executed. Fatema Bibi did not sign. He denied the suggestion that he was deposing in the case falsely as he was a friend of Samim Qureshi and Ekramul Haq. P. W. 5 was Muhammad Yusuf who signed the Will and proved his own signature in the deed marked Ext. 1(h). He signed in presence of Noor Muhammad. Mustafa Qureshi read over She contents of the Will being asked by Noor Muhammad to do so and thereafter Noor Muhammad put his thumb impression. Noor Muhammad was then in a good state of mind and health when he executed the deed. Fatema Bibi, wife of Noor Muhammad, wife of Kalloo Qureshi and another woman whom he did not know, were also present at that time. He worked in the beef shop of Kalloo Qureshi. Kalloo Qureshi wag the father of Samim Qureshi. He did not know where Gorachand was residing. He could not say the address of Muhammad Yusuf, but he could give out the address of Samim Qureshi, son of Kalloo Qureshi. He worked in the beef shop of Kalloo Qureshi. Kalloo Qureshi wag the father of Samim Qureshi. He did not know where Gorachand was residing. He could not say the address of Muhammad Yusuf, but he could give out the address of Samim Qureshi, son of Kalloo Qureshi. It was the son of Kalloo Qureshi who called him. He knew Noor Muhammad for the last 15/16 years. Noor Muhammad died of injury and be suffered from that for about 3/4 weeks. He died about one week after be executed the Will. Noor Muhammad was suffering from disease for which he was taking medicine. Samim Qureshi gave the paper to Noor Muhammad and Noor Muhammad put his left thumb impression himself and Mustafa Qureshi was also a witness in the deed. The deed was complete by about 3-30/3-40 p. m. Gorachand was there when he went there. He denied the suggestion that he was deposing falsely the request of Kalloo Qureshi. He denied that it was an untrue suggestion that Noor Muhammad never executed the deed or that it was subsequently manufactured with prior left them impression of Noor Muhammad obtained on a blank paper. He could not say if the deed was registered or not nor did he understand English. He even did not know the contents the deed. Noor Muhammad gave the houses to Samim Qureshi and Ekramul Haq. 6. Mr. Syed Atanumabi, the learned Advocate who appeared on behalf of the appellant, also drew our attention to the testimony of the four defence witnesses examined on behalf of the present appellant. D.W. 1, Fatema Bibi, testified to the effect that her husband died of cancer. He had an ulcer in his rectum. He used to evacuate bowels and pass urine in his wearing apparels while lying in bed. Her husband used to reside in his own house previously but two months before his death, he shifted to Kalloo Qureshi’s house at 484, G.T. Road. One Chandsi doctor used to treat her husband. Last medical treatment was done by Dr. Sankar Sen, whose dispensary was at Mallick Fatak, Howrah. Fifteen days before his death her husband’s voice was choked. 5/6 hours before his death, he was given oxygen. Her husband used to reside at Sadar Ghat at 484, G.T. Road and she used to look after him and used to stay with him. Last medical treatment was done by Dr. Sankar Sen, whose dispensary was at Mallick Fatak, Howrah. Fifteen days before his death her husband’s voice was choked. 5/6 hours before his death, he was given oxygen. Her husband used to reside at Sadar Ghat at 484, G.T. Road and she used to look after him and used to stay with him. At that time she had great love with Noor Muhammad and she never had any dispute with him. All his papers and things were with her being kept by her husband. He did not tell her anything regarding 74 and 75, Cows Ghat Road. She contended that it was not true that Noor Muhammad executed any document in respect of any property. She did not know any such Will. She contended that it was not true that in presence of Amjad, Muhammad Yusuf, Mustafa Qureshi, Gorachand Das, Moharar and herself Noor Muhammad executed any Will. She knew Ekramul Haq who was her step bhagina. When Ekramul was aged 4 years his mother died and while he was aged 3 years his father died and he was brought up by his nana nani. Ekramul also stayed with them in his younger days. It was not true that Ekramul used to look after the work of Noor Muhammad. Noor Muhammad’s shop was closed and he himself used to look after the Court matters. Samim and Ekramul used to realise rent of Holdings No. 74 and 75, and pay those to her. In the last part of April, 1980, after the death of her husband, she came to know of the Will. She sent his brother Samsuddin to pay rents to the landlord and it was from the landlord that she came to know that there was a letter from an Adovcate, Mustafa Qureshi giving out that a will was executed by Noor Muhammad Ansari and until that matter was settled up, there would be no mutation. 7. D. W. 2 Dr. Sankar Nath Chatterjee, was a medical practitioner who had his dispensary at 533, G. T. Road (South) Mallick Fatak, Howrah. He treated Noor Muhammad Ansari at 484, G. T. Road (South). Noor Muhammad as suffering was suffering from rectum cancer for more than a month. Ekaramul called him to treat noor Mohammad. According to him, for the last 12 days before his death he was sometime semi-conscious and sometime unconscious. He treated Noor Muhammad Ansari at 484, G. T. Road (South). Noor Muhammad as suffering was suffering from rectum cancer for more than a month. Ekaramul called him to treat noor Mohammad. According to him, for the last 12 days before his death he was sometime semi-conscious and sometime unconscious. He did not remember the date on which he exactly treated Noor Muhammad, but he noted the date in his prescription such dates and cusiously enough he brought prescription and also a hand written khata which contained the contents of the prescriptions showing the medicines that were served. By consulting his notes he deposed, inter alia, to the effect that he examined Noor Muhammad on 28th January, 1980, 4th February, 1980, 8th February, 1980, 15th February, 1980 and 16th February, 1980 and it was on 16th February, 1980 that Noor Muhamad ultimately expired. His case was an advanced stage of rectum cancer. Noor Muhammad made some sound after so many calls when he was semi-conscious. He also granted the death certificate. On 5.1.80, he examined Noor Muhammad in his clinic and gave prescription. The prescription of 28.1.80 was not with and it was given to the patient and he did not keep any copy of that prescription. The prescription dated 5.1.80 was written and singned by him which was marked Ext. A. The medicine of this prescription was served by him for which he retained this prescription. The prescription dated 4.2.80 was proved as Ext. A(1). The prescription dated 8.2.80 was also marked as Ext. A(2). There was no prescription for the date 15. 2. 80 thought he attended the patient on that day. In cross-examination he deposed. Inter alia, to the effect that he was not a specialist in cancer. At first he could not diagnose the disease and he referred the case to the expert, Dr. Saroj Gupta. He proved the letter written by him and the answer be obtained from Dr. Gupta which was marked Ext.2. He candidly admitted that the treatment of cancer of the patient was started by him on the advice of Dr. Gupta after he diagnosed cancer. Though he heated the patient but the treatment was according to the instruction given by Dr. Gupta and according to his advice and directions medicines were administered and he was just a helping hand. All the prescriptions given by Dr. Gupta after he diagnosed cancer. Though he heated the patient but the treatment was according to the instruction given by Dr. Gupta and according to his advice and directions medicines were administered and he was just a helping hand. All the prescriptions given by Dr. Gupta were actually' lying with Ekramul Haq. The learned Trial Judge, however, brushed aside the testimony of Dr. Chatterjee just because in his cross-examination he staled that there was no note about the condition of the patient in his prescriptions. He had to admit that he had no independent recollection about the case apart from the records and it was suggested to him in cross-examination that he came to give tutored evidence. We are unfortunately not convinced that the criticism as made by the learned Trial Judge about his evidence being of no avail, was a fair criticism in respect of this witness. 8. O. P. W. 3. Maimunessa was a sister's daughter of the appellant and she claimed to be a resident of 484, G. T. Road. Her testimony was that Noor Muhammad had no senses for 15 days before his death. In cross-examination she stated that Noor Muhammad could not talk properly for which she assumed that Noor Muhammad had no sense. Fatema also in her cross-examination could not say when she talked last with Noor Muhammad before his death. But then, the learned Trial Judge drew an inference clear enough that all these did not show at all that Noor Muhammad was physically and mentally unable to execute the Will. O. P. W. 4 was Samsuddin the brother of Fatema Bibi. He came to know about the death of Noor Muhammad one week from the date. From his cross-examination the learned Trial Judge drew an inference that Fatema Bibi gave no instruction regarding the suit which he conveyed to the lawyer at the time of starling of the case. It was suggested to him that he committed theft in the shop of Noor Muhammad for which Noor Muhammad drove him out but this witness denied such an imputation. His evidence was also brushed aside by the learned Trial Judge without assigning any specific reason whatsoever. 9. The learned Trial Judge C6me to a finding that there was no suspicious circumstances surrounding the execution of the Will and that the propounder was entitle to the grant of a probate to the Will. His evidence was also brushed aside by the learned Trial Judge without assigning any specific reason whatsoever. 9. The learned Trial Judge C6me to a finding that there was no suspicious circumstances surrounding the execution of the Will and that the propounder was entitle to the grant of a probate to the Will. According to the learned Trial Judge, even though the Will was an unregistered one and admittedly contained a purported thumb impression of Noor Muhammad. P. W. 1, Muhammad Mustafa Qureshi. who drafted the will and in whose presence the testator thumb impressed the Will duty proved the execution and attestation of the Will and there was absolutely nothing to disbelieve his evidence. Precise stand taken by the appellant in the court below was that even though the thumb impression might be that of her husband it was a thumb impression obtained on a blank sheet of paper which was converted into a Will by Ekramul Haq with the connivance of the so-called attesting witnesses where P. W. 1 played a predominant role in giving perjured evidence for the benefit of his own wife’s brother who was a beneficiary to the Will even though latter was a stranger to the testatory’s family. 10. Mr. Syed Ataunnabi, the learned Advocate for the appellant, contended that there was enough suspicious circumstance surrounding the execution of the Will on account of which the Will ought not to have been probated at all. He contended by way of a list of the different surrounding suspicious circumstances that the drafting of the Will was done by a teacher whose wife’s brother got a half-share in the property by the bequest even though he was a stranger to the testator’s family. There was no reason for the testator to make a bequest in respect of the half-share of the property to Samim Qureshi, the wife’s brother of P.W. 1, Muhamad Mustafa Qureshi, It was an unnatural disposition just because he happened to be the son of a friend of the testator, Kalloo Qureshi. The life-long companion of the testator, the appellant, who was the widow Fatema Bibi, with whom there was no evidence of a any quarrel or disagreement of the testator was excluded for which no explanation was forthcoming in the Will or from the testimony of any of the witnesses examined on behalf of the plaintiff in the Court below. The life-long companion of the testator, the appellant, who was the widow Fatema Bibi, with whom there was no evidence of a any quarrel or disagreement of the testator was excluded for which no explanation was forthcoming in the Will or from the testimony of any of the witnesses examined on behalf of the plaintiff in the Court below. That apart, the disposition was contrary to the Muslim law. Even if the Will was probated, the Will could not take effect except only to the extent of 1/3rd share in favour of Samim Qureshi only. The propounder claming to be the sister’s son of the deceased gets nothing. The deceased having been a wordly wise person and admittedly a litigant since 1956 as would be evident from P. W. 3 in his testimony, it is reasonable to suppose that he would have taken advice from a competent lawyer if he wished to execute a Will at all. That apart, no expert was examined to prove the left thumb impression of Noor Muhammad by comparing it with proved documents. Mr. Ataunnabi contended that the onus was on the propunder, even if no such case or a different case was made out by the caveator in cross-examination of the witnesses. He cited the decision of (1) Ramchandra v. Champabai reported in AIR 1965 SC 354 in this context. We, however, do not agree with the learned Advocate for the appellant that the onus was not discharged at all by the propounder; but then, in analysing the circumstances further we find suspicious circumstances galore. Mr. Ataunnabi contended further that the Will was drafted, typed and executed in course of a few hours as would be evident form the testimony of P.W. 1. The typist Kanailal Majumdar was not examined and the Court was bound to draw adverse inference on the said account. Mr. Ataunnabi contended with reference to the reported decision in (2) 1981 (2) CLJ 426 , Anathnath Das v. Sm. Sarala Bala Debi & Ors. whether the Court rightly drew an inference for not examining the actual typist who typed out the Will. The draft of the Will was also not produced in Court. There was not much substance in the contention of the learned Advocate for the appellant that the propounder did not examine Dr. Gupta under whose guidance D.W. 2 Dr. whether the Court rightly drew an inference for not examining the actual typist who typed out the Will. The draft of the Will was also not produced in Court. There was not much substance in the contention of the learned Advocate for the appellant that the propounder did not examine Dr. Gupta under whose guidance D.W. 2 Dr. Sankar Chatterjee medically treated the deceased for about three weeks before his death. The Will was executed on 7th Feburary, 1980, within 9 days of which the testator died, his date of death being 16th February, 1980. There was no reason to brush aside the testimony of Dr. Chatterjee, D.W. 2 in the manner it was so done by the learned trial Judge. There was no substance however, in the other contention of Mr. Ataunnabi that Mr. Ananda Singh, Advocate, whose chamber P.W. 1 used to attend as a trainee lawyer was not examined and there was no explanation as to why he was not consulted by P.W. 1 There was no testimony given by P.W. 1 himself that he went to consult the said senior lawyer at whose behest the draft Will was prepared and that being so, the propounder was not really called upon to examine Mr. Ananda Singh whose chamber P.W.1 attended at the relevant time though P.W. 1 was not practising as a lawyer at the relevant time of his drafting of the Will. The non-registration of the Will was indeed a factor which could weigh as a surrounding circumstance suspicious enough. The learned Advocate for the appellant referred to the decisions reported in AIR 1965 SC 354 (Ram Chandra v. Champabai) and (3) AIR 1962 SC 567 (Rani Purnima Debi v. Kumar Khogendra Narayan). Whether the Will was most unnatural and therefore, was of a suspicious circumstance is a question of fact and such facts ought to have been satisfactorily explained before the propounder could get letters of administration. The Supreme Court held that the respondent was required to remove the said suspicion by clear and satisfactory evidence, even if it was a case where the Will was a registered one. The Supreme Court held that the respondent was required to remove the said suspicion by clear and satisfactory evidence, even if it was a case where the Will was a registered one. Supreme Court held that even if a Will has been registered that is a circumstance which may, having regard to the circumstance, prove its genuineness but the mere fact that the Will is registered one would not by itself be sufficient to dispel all suspicion regarding it. Whether suspicion exists or not cannot be scrutinised without submitting the evidence of registration to a close examination. That was a case where the testator did not make proper provision for his wife and sister who were dependants on him and the propounder got the sole benefit of the Will subject to the maintenance of the testator's wife and sister. The testator was in the habit of signing blank papers and the signature of the testator was not in the same ink and not with the same pen with which the body of the Will was written in AIR 1965 SC 354 (Ram Chandra v. Champa Bai) it was held by the Supreme Court that in all cases in which a Will was prepared under circumstance which arouses suspicion of the Court or that it did not express the mind of the testator properly or that it was prepared under highly suspicious circumstance it is for the propounder of the Will to remove such suspicion. The principle in (4) Sarat Kumari Bibi v. Sikhinath reported in AIR 1929 PC 45 : 1956 IA 62 was duly noted by us. In (5) Shashi Kumar Banerjee v. Subodh Kumar Banerjee reported in AIR 1964 SC 529 . the Supreme Court held that the suspicious circumstance may be as to the genuineness of the signature of the testator, condition of the testator's mind, the disposition made in the Will being unnatural, or unfair in the light of the relevant circumstances or there might be other indication of the Will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicions should completely be removed before the document attested as the last Will of the testator is probated. In such a case the Court would naturally expect that all legitimate suspicions should completely be removed before the document attested as the last Will of the testator is probated. If the propounder himself takes part in the execution of the Will which conferms substantial benefit to him that is also a suspicious circumstance to be taken into account and the propounder will remove the doubt by clear and satisfactory evidence. Only after removal of all suspicious circumstance the Court would grant probate even if a Will might be unnatural. In order to judge credibility of the witness the Court is not confined only to the way in which witnesses have deposed or to the demeanour of the witnesses, but it is open to it to look to the surrounding circumstances, so that it may be able to conform to a correct idea of the trustworthiness of the witnesses. The issue, namely whether the testator did execute a Will and if he did, then whether it was duly attested by the witnesses, cannot be determined by merely considering the evidence adduced in the Court separately from the surrounding circumstances, which the appellant brought out in the evidence or which appear from the nature and contents of the document itself. In the facts of the said case in Ram Chandra v. Champa Bai after considering the circumstances, it was held that the Court was right in rejecting the evidence of the attesting witnesses and the scribe as well as the propounder of the Will with regard to the execution of the Will by the testator. Mr. Ataunnabi further contended that the attesting witnesses were all interested ones. The wife's brother of P.W. 1 was a legatee. P. W. 5 is employed in the but her's shop of Samim Qureshi’s . P. W. 3 was acting as a moharar of the propounder in the probate proceeding and was caned as a witness without summons. The deceased, Noor Muhammad Ansari was taken to the house of Kalloo Qureshi, father of Samim Qureshi two months before his death and the Will, it is alleged was executed at Kalloo's residence. P. W. 2, Ekramul Haq Ansari, the propounder indeed obtained a transfer certificate from Howrah Muslim High School showing the Dame of the deceased as father of the propounder, but the admission form was not produced in Court. P. W. 2, Ekramul Haq Ansari, the propounder indeed obtained a transfer certificate from Howrah Muslim High School showing the Dame of the deceased as father of the propounder, but the admission form was not produced in Court. That itself may not be a suspicious circumstance enough to weigh with us. But then, even though it is a fact that Ekramul Haq Ansari was a sister's son of the testator and he was reared up by the testator himself and the testator might have admitted him in a school giving out his own name as father of Ekramul that itself did not prove that the testator was to make a joint bequest with Samim Qureshi in favour of the propounder leaving only a maintenance of Rs. 150/- to his wife, Fatema Bibi. Mr. Ataunnabi further contended that the evidence of the propounder that he was not present at the time of the execution of the Will Was unnatural and not worthy of credence and it was most unlikely that the Will would be left under the bed of the deceased to afford an opportunity to the widow to remove and destroy it before it was discovered by the propounder three days after the death of Noor Muhammad Ansari as deposed to by P.W. 2 in course of his testimony. The description of the property as given in the Will was 7 cottahs and 14 chittacks but actual measurement showed it to be five cottahs only. The father's name of the testator was also given out wrongly which showed that had the testator been in proper senses, he must have given out the correct name of his own father and would not allow P.W. 1 to write out the father's name of the testator in an incorrect manner as was done in the Will. Mr. Ataunnabi placed before us the decision in (6) Furkan v. Mst. Mumtaz Begum reported in AIR 1971 Raj 149 and contended further that a bequest in favour of the heir could only be valid if there be consent of other heirs after the testator's death. The testator may, however, give specific share not exceeding 1/3rd to a stranger without consent of heirs. The decision reported in (7) AIR 1922 Privy Council 391 (Salehjee v. Fatema Binbi) was also relied upon. The testator may, however, give specific share not exceeding 1/3rd to a stranger without consent of heirs. The decision reported in (7) AIR 1922 Privy Council 391 (Salehjee v. Fatema Binbi) was also relied upon. Having taken into consideration paragraphs 117, 118, 119 and 131 of Mollah’s treaties on Mohammedan Law, we are of the view that the limit of testamentary power of a Mohammedan is confined to 1/3rd share of his total estate. Mr. Ataunnabi further cited before us a decision of the Gujarat High Court reported in (8) AIR 1961 Guj 85 (Bai Jibhabai v. Competent Officer) for the proposition that section 213 would not apply to a suit relating to the Will of Mohammedan and the right of the legatee can be established in any Court of justice without obtaining the probate of the Will. That was a case where the moot question was whether in the absence of a probate of a Will there was a bar to entertaining the suit. The suit was relating to the Will of a Mohammadan and in that context a Division Bench of the Gujrat High Court held following a Calcutta High Court decision reported in (9) Sakina Bibi v. Mohed Inshalla reported in ILR 37 Calcutta 839 that section 213 of the Indian Succession Act did Dot apply in case of Wills made by a Mohammedan; the right of the legatee can be established in any Court of justice without obtaining a probate of the Will. 11. Mr. Barun Kumar Roy Chowdhury, the learned Advocate appearing on behalf of the respondents, took us through section 115 of Mollah’s treaties on Mohammedan Law and contended that not only registration was not necessary but writing was also not necessary for a Muslim to make a gift on his death-bed. He attached the credibility of the testimony of D. W. 2 regarding the prescription coming from the doctor and asked us to disbelieve the testimony of D. W. 1 also in this context that Noor Muhammad could not remain unconscious for about 5/6 hours as claimed by her. D. W. 3 qualified the matter as to what was made by unconsciousness and consciousness and stated further that when Noor Muhammad did not talk properly, there was thus a presumption that he was unconscious. Mr. D. W. 3 qualified the matter as to what was made by unconsciousness and consciousness and stated further that when Noor Muhammad did not talk properly, there was thus a presumption that he was unconscious. Mr. Roy Chowdhury contended that no defence suggestion was even there and no specific pleading was also taken out in the written statement that Noor Muhammad' was unconscious or semi-conscious. There was no contention raised in the pleading also with regard to the absence of the testamentary capacity of Noor Muhammad. He further contended that when the first hand testimony of Dr. Saroj Gupta was not forthcoming, the Court was not inclined to believe D. W. 2 Dr. Chatterjee, and that being so, there was no reason for this Court to take a different view of !he matter. Mr. Roy Chowdhury further cited before us the two other reported decisions-one reported in (10) AIR 1978 SC 1202 (Brij Mohanlal Arora v. Giridharilal Manucha) and the other reported in (11) AIR 1985 SC 500 (Satyapal Gopal Das v. Panchu Bala Dassi). In Brij Mohanlal Arora v. Giridharilal Manucha (Supra), the testatrix bequeathed all her properties in favour of her brother’s grand son in whom the whom the reposed full confidence and the sons of her husband’s brother contested the factum and validity of the Will by alleging suspicious circumstance surrounding the Will. On facts the Will was held valid as suspicious circumstances were not proved and the testatrix was proved to be of sound disposing mind though physically incapable of signing her name at the time of execution of the Will when she was aged about 70 years. The decision of the Supreme Court in this case, however, did not lay down any general principle of law to be followed in all probabilities. The Supreme Court was satisfied that the suspicion, if any, was completely dispelled and some of the alleged suspicious circumstances were insignificant enough to be having any import at all. In Satyapal Gopal Das v. Smt. Panchu Bala Dassi (Supra), the Will was in favour of a person brought as a child of the testator’s family. All the properties of the testator were bequeathed to the legatee under the Will and no provision was made for the testator’s wife and widowed daughter-in-law. In Satyapal Gopal Das v. Smt. Panchu Bala Dassi (Supra), the Will was in favour of a person brought as a child of the testator’s family. All the properties of the testator were bequeathed to the legatee under the Will and no provision was made for the testator’s wife and widowed daughter-in-law. The Will was executed and presented for registration by the testator himself and the testator died four years later after the execution and registration of the Will and did not take any step to cancel or revoke the Will. It was held in the facts and circumstance of that case, that the circumstances dispelled any suspicion that may be attached to the Will. In (12) Chamanlal v. Ramkotari, ( AIR 1972 SC 2296 ), which was a case of the execution of a Will by an illiterate lady, the Supreme Court held on the facts of that case that the testator though an illiterate lady, intelligently understood its contents when the Will was read over to her and thereafter directed some changes at the last moment. The mere fact that the son-in-law of the testator who acquired no beneficial interest in the property was charged with the management of the property under the Will, did not lead to the conclusion that the Will was a handiwork of the son-in-law or that the Will was not genuine. In (13) AIR 1984 SC 1999 (Surendra Pal v. Dr. Mrs. Saraswati Arora), it was held that where there was suspicious circumstances, the onus will be on the propounder to explain them to the satisfaction of the Court before he Will could be accepted as genuine and where the caveator alleges undue influence, fraud and coercion, the onus is on the caveator to prove the same. If the caveator does not discharge the burden which rests upon him in establishing the circumstances which show that the Will had been created by fraud or undue influence, a probate of the Will must necessarily be granted if it is established that the testator had full testamentary capacity and had in fact executed it validly with a free mind. That was case where one Bhim Sain Arora, an old man and a widower, married the respondent. Dr. That was case where one Bhim Sain Arora, an old man and a widower, married the respondent. Dr. Saraswati, a young lady doctor and after having lived a conjugal life for about three years disinherited one son and four daughters by his first wife and made the testamentary disposition in favour of his second wife, Smt. Saraswati. The Court was satisfied on the facts that the Will was genuine and all the formalities required were fully satisfied and it was executed by the testator in a sound disposing mind and it was duly attested as required by law and the case of the Will not being a genuine one or that the signature of the testator not being his real signature and the testator not knowing the contents of the Will and not giving out any instruction to his solicitor or consulting them or that the Will not having been read over and explained to the testator and he not also having read it by himself before it was executed and not being aware of the nature and effect of the Will or that the Will have been written and executed by practising fraud, coercion and undue influence on him In collusion with his wife and wife's brother-in-law, and that after making the wm the testator was prevented by force and threats from executing a further Will, could not have been prayed by the caveator. Mr. Roy Chowdhury further contended that if it was not a piece of forgery, it must be held to be a creation out of free will of the testator. Had the propounder the intention of grabbing the entire property of the appellant, he would not have brought in Samim Qureshi to be a legatee under the Will, but there was no case of undue influence or coercion brought out in the pleading or in evidence. The testator was capable of understanding the fact as to what he was doing though written and the Will though written in English and typed in English was read over and explained to the testator by P. W. 1. which fact was corroborated by other witnesses for the plaintiff. That apart, caveator's case was put to the witnesses as was held in (14) 54 CWN 576 : AIR 1961 Calcutta 359, A. E. G. Carapiet v. A. Y. Deverian. which fact was corroborated by other witnesses for the plaintiff. That apart, caveator's case was put to the witnesses as was held in (14) 54 CWN 576 : AIR 1961 Calcutta 359, A. E. G. Carapiet v. A. Y. Deverian. There was no evidence about wrong description or measurement of the property and no hard and fast rule could be drawn against a non-practising lawyer Mr. Roy Chowdhury further contended with reference to the case reported in (15) AIR 1976 Bombay 315, Totaram Kaharu v. Ramabai & Ors. that the existence of a Will not being known to the wife was itself not a suspicious circumstance, That apart, the propounder in the said case was a man having general power of attorney as a Muktar. That apart, the non-examination of the typist was not vital because of the examination of she person who had drafted the Will and the examination of P.W. 3, the clerk. No specific role bad been played by the typist as regards the execution of the Will. The decision as reported in 1981(2) Cal LJ 426 at 431, Anath Nath Dos v. Smt. Sarala Bala & Anr. regarding typist not being produced and the Court making an adverse inference in respect of the propounder should no be made applicable in the present case. Mr. Roy Chowdhury further contended that the plaintiff's witnesses were disinterested and not gaining anything out of testamentary disposition and Ekramul was actually son of Kalloo, who collected rents and held Noor Muhammad's treatment in his own house. There was no suspicious circumstance for the purpose of refusing the probate of the Will. 12. Having regard to the entire facts and circumstances of the present case we are of the firm view that even if the surrounding suspicious circumstances would have been removed by propounder, the Will could not have any effect except to the extent of 1/3rd share of the entire property because a Muslim cannot give to a stranger more then 1/3rd share of the total estate. If the propounder is otherwise a normal heir under the Muslim law he has nothing to lose by way of the Will not having been probated and in the facts and circumstances of the preset case we find the suspicious circumstances are telling enough so as to reach a conclusion that the propounder has not been successful in removing the doubts that genuinely bear in the mind of the Court regarding the testamentary capacity as also the unnatural tenor of the Will. 13. In the result, the appeal stands allowed and the judgment and decree of the court below are set aside. The probate of the Will as granted by the learned trial Court in favour of the propounder stands refused. There will, however, be no order as to costs. We make it clear that with regard to the normal succession in accordance with law, having been apprised of a pending suit in some other forum, we do not make any observation on merits. Roy, J.: I agree.