CHANDRAKANTARAJ, J. ( 1 ) THIS original side appeal is by the defendant directed against the order dated 20th/21st/25th march, 1986 of the learned probate judge of this court in t. o. s. No. 1/1983 or the file of this court. ( 2 ) THE facts leading to this appeal may be stated briefly and they are as follows. Respondent-Smt. Asha halaswamy is the first of the two daughters of the appellant Dr. H. s. halaswamy. She present a civil petition praying for grant of letters of administration to the estate of her grandfather late h. Siddavcerappa limited to the immovable properly namely, his residence situated in jayanagar fully described in the affidavit of schedule to the petition founding her claim for letters on the last will and testament said to have been executed by the said siddavcerappa on 10-12-1978. That siddaveerappa died on 28-4-1981 is not in dispute. The probate civil petition No. 9/1983 was presented in this court under part vii and ix of the Indian succession Act, 1925, praying that this court may be pleased to allow the petitioner to prove the will in common form and to grant to the plaintiff letters of administration with a copy of the will to have effect throughout the union of india. The petition was admitted on 22-4-1983 and citation was directed to be taken out in one issue of deccan herald, Bangalore. The appellant entered appearance and entered caveat resisting the grant of letters inter alia on ihe ground that the will propounded by the plaintiff, his daughter could not be acted upon inassuch as the same was not the last will and testament of his father late h. Siddavcerappa. He propounded another will dated 20-12-1980 said to have been executed by his father under which he was the sole legatee and as such the plaintiff, his daughter, was not entitled to the letters. He even alleged that the will propounded by his daughter was a fraudulent one and she must be put to strict proof of the due execution of that will. It was in the light of the objections in the caveat entered that this court directed the probate civil petition No. 9/1983 to be converted into a testamentary original suit in accordance with the rules of this court treating the pleadings as plaint and written statement. It was in the light of the objections in the caveat entered that this court directed the probate civil petition No. 9/1983 to be converted into a testamentary original suit in accordance with the rules of this court treating the pleadings as plaint and written statement. ( 3 ) AS rightly observed by the learned probate judge who granted the letters in favour of the plaintiff that several inter locutory orders came to be passed both during the pendency of the testamentary original suit as well as during the pendency of this appeal in this court, it is unnecessary to make a detailed reference to all of them, though to some of them we will advert to at the appropriate stage in the light of the issues to be decided. ( 4 ) THE pleadings in the case summary of which may be stated by us are as follows. The plaintiff claimed that her grandfather executed the suit will dated 10-12-1978 under which she was the sole legatee of his jayanagar residence the will had named one dakshyiniamma, a niece of the wife of late h. Siddaveerappa, the testator, as the sole executrix as the plaintiff had not attained the majority at the time of the execution of the suit will. One of the stipulations in the will of 10-12-1978 was that in the event of death of the testator before plaintiff attained majority, the executrix should administer the estate of the testator till the plaintiff attained the age of 21 years and thereafter handover the estate to the plaintiff. ( 5 ) THE plaintiff having attained majority at the time of the death of the testator, she pleaded she was entitled to seek the letters of administration of the estate of her grandfather. It may be noticed that the executrix named in the suit will had also renounced her excculorship which was evidenced by her affidavit filled in court. The plaintiff further averred that the original of the will was not traceable because her father, the defendant, had in order to claim the house for himself either secreted or destroyed the original permanently. It may be noticed that the executrix named in the suit will had also renounced her excculorship which was evidenced by her affidavit filled in court. The plaintiff further averred that the original of the will was not traceable because her father, the defendant, had in order to claim the house for himself either secreted or destroyed the original permanently. ( 6 ) THE appellant-defendant in the written statement dated 10-6-1983 opposing the grant of letters averred that he was the only son of the deceased testator late h. Siddaveerappa and that he had two daughters namely, the plaintiff and her sister by name nanda and a son by name ravi, he with his wife leu for england for higher studies in the year 1963 when the plaintiff was only 8 months old and as desired by his parents the plaintiff was left behind with her grant parents. In 1967 he came back to India and settled down permanently. In 1971 on account of personal reasons he and his wife left for the united states of america and the plaintiff was left behind with his parents as desired by them on the understanding that she would join him later. The plaintiff in fact joined her parents some time in the year 1972 and stayed with them between July 1972 and July 1973. But returned to Bangalore to stay with her grand parents. In regard to the will of his father dated 10-12-1978 he stated inter alia that his father did not leave behind any valid will dated 10-12-1978; that he had been granted succession certificate on 7-1-1983 in respect of the movable assets of the testator; that the last will left behind by the testator was the one dated 20-12-1980 and under that will he was the sole legatee and the said will of 20-12-1980 came into his possession after he had obtained the succession certificate in respect of the movable assets of his father. He further pleaded though not with specific details that the plaintiff had fraudulently brought into existence the suit will dated 10-12-1978. He further pleaded though not with specific details that the plaintiff had fraudulently brought into existence the suit will dated 10-12-1978. He further averred that the plaintiff had been instigated to claim the property of her grandfather by some of her close relatives including his maternal uncle who had ulterior motives and as well as some others who had served his father and his family during his father's life lime and who were inimicatly disposed towards him. He asserted it was those people who were behind the litigation. He reserved for himself the liberty to file his detailed objections at a later date. But no such additional statement was filed. By an amendment application made on 20-2-1980 he amended para 5 of the written statement by adding a sentence which read "that even if late h. Siddaveerappa had executed a will dated 10-12-1978, the same was executed because of undue pressure of his wife Smt. Mahadcvamma and the same must have been revoked by him. " ( 7 ) ON the pleadings which we have summarised, the learned probate judgeframed the following issues:"1. Does the plaintiff prove that the will produced by her dated 10-12-1978 is duly executed by late Shri h. Siddaveerappa?2. Does the plaintiff also prove that the said will is the last will and testament of the said late Shri h. Siddaveerappa?3. Does the defendant prove that there is another will subsequently executed by the said late h. Siddaveerappa and that the same was valid?4. To that relief is the plaintiff entitled?" ( 8 ) THE plaintiff and the defendant went to trial on the said issues. The respondent-plaintiff in support of her case examined herself as P. W. 1. , one of the attesting witnesses krishnaraja urs as P. W. 5, one Shri ramachandra rao, branch manager of syndicate bank, jayanagar branch, as P. W. 3, the sub-registrar who had registered the will as p. w, 4 and yet another sub-registrar who had produced the thumb impression register of the sub registry as P. W. 2, she got marked as many as 18 documents exts. P-l to p-18. ( 9 ) THE defendant examined himself in support of his case as d. w. 1 and three others, two of them being the attesting witnesses of the will propounded by him. He got marked as many as 108 documents exts. P-l to p-18. ( 9 ) THE defendant examined himself in support of his case as d. w. 1 and three others, two of them being the attesting witnesses of the will propounded by him. He got marked as many as 108 documents exts. D-1 to d-108 in support of his case. ( 10 ) THE learned probate judge after lengthy analysis of the oral evidence, some of the documents exhibited on both sides came to the conclusion that in the tight of the oral evidence of P. W. 1 and P. W. 5 the will of 10-12-1978 had been proved to have been duly executed by late h. Siddavecrappa the testator and that the will propounded by the defendant was shrouded in suspicious circumstances and therefore could not be believed to have been the last will and testament of late h. Siddaveerappa and as such acted upon. In that circumstance he allowed the probate civil petition and granted letters prayed for by the plaintiff-respondent in the said case. Aggrieved by the same, the present appeal has been preferred under Section 4 of the Karnataka High Court Act inter alia on the following grounds as summarised by us in view of the pleadings in the memorandum of appeal being repetitive,long and argumentative; 1 (a) and (b) that the probate judge erred in accepting the oral evidence of P. W. 5 despite glaring contradictions in his testimony to hold that the wil! Of 10-12-1978 was duly executed; (c) that the learned probate judge ought to have drawn adverse inference against respondent-plaintiff as the other attesting witness was not examined in view of the glaring contradiction in the oral testimonies of P. W. 1 the plaintiff and p. W. 5, the other attesting witness; (d) that the learned probate judge did not attach any importance to the statement of p. W. 5 that he had attested another will executed by siddaveerappa after the attestation of the will of 10-12-1978; (e) that the learned probate judge erred in relying on ex. P-10 which was not proved that marked as an exhibit for the plaintiff; 2 (a), (b) and (c) that the learned probate judge erred in ignoring the suspicious circumstances surrounding the execution of the will of 10-12-1978, particularly the undue influence brought about by Mrs. Siddaveerappa on her husband to bequeath the house in favour of the plaintiff-respondent. P-10 which was not proved that marked as an exhibit for the plaintiff; 2 (a), (b) and (c) that the learned probate judge erred in ignoring the suspicious circumstances surrounding the execution of the will of 10-12-1978, particularly the undue influence brought about by Mrs. Siddaveerappa on her husband to bequeath the house in favour of the plaintiff-respondent. (d) that the probate judge failed to notice the unnatural disposition in favour of his first grand daughter when there was evidence pointing out the fact that he had affection equally for all his children. (e) that bequest of house properly only in favour of plaintiff without disposition of other properties owned by siddavecrappa though he was himself a lawyer and that fact should have lead the probate j udge to view the will of 10-12-1978 with suspicion, (f) that on the oral evidence of P. W. 1 and P. W. 4 the probate court should have concluded that the will of 10-12-1978 was not voluntarily executed by siddaveerappa but only to please his wife. 3 (a) that the learned probate judge erroncouly reached the conclusion that the will of 10-12-1978 was the last will of siddaveerappa. (b) that the admission of P. W. 5 that there was another will of siddavccrappa subsequent to the will of 10-12-1978 and that exts. D-82 and d-2l) supported that fact and even the plaintiff respondent in her cross-examination of d. w. 1 (appellant) had suggested that there was a will subsequent to the will of 10-12-1978 which was overlooked by the learned probate judge resulting in an erroneous conclusion. 4 (a) that in the light of the evidence on record that siddaveerappa wanted to change his will of 10-12-1978, non production of the original will of 10-12-1978 was not considered by the learned probate judge as to the consequences that follow by such non production resulting in an erroneous order (the order under appeal ). (b) that the learned probate judge failed to notice the contradiction in the evidence of P. W. 1 (respondent-plaintiff) in regard to the original will of 10-12-1978 and the version spoken in cross-examination coupled with the fact that evidence of d. w. 2 proved that P. W. 1 was not speaking the truth concerning the unit certificates and as such the learned judge should have discarded her evidence as not reliable. (c) in the circumstances of the case the learned probate judge should have concluded that siddaveerappa himself had destroyed the original of the will of 10-12-1978 as an act of revocation. (d) the fact that respondent-plaintiff made no attempts to have the khata changed to her name should have lead the learned probate judge to conclude that plaintiff was aware that the will of 10-12-1978 had been revoked. 5. That the learned probate judge erred in not drawing an adverse inference against plaintiff-respondent in not examining one sripathi bekal, sub-manager of syndicate bank at the relevant time and who had certified ex. P- 10 (other part of this ground is a repetition of ground No. L (c ). 6 (a) and (b) that the learned probate judge erred in holding ex. D-85, the will propounded by the appellant by incorrect reasoning applying different tests to ascertain the validity of the will. (c) that the learned probate judge erred in coming to the conclusion that the signature of siddaveerappa in ex. D-85 did not tally or compare with the admitted signatures. (d) that the learned probate judge erred in discarding the evidence of d. w. 3 and d. w. 4 even after holding that they were respectable persons. ( 11 ) WE have painstakingly set out all the grounds urged in the memorandum of appeal. The arguments advanced by the learned counsel before us did not strictly conform to the memorandum of appeal cither in sequence or in contents. We therefore propose to deal with the contentions advanced before us and make reference to the grounds in the memorandum wherever possible in the course of our order. ( 12 ) IN the light of the pleadings, the issues joined and the evidence lead by parties and the conclusions reached by the learned probate judge the question that really falls for consideration is whether the will propounded by the appellant-defendant may be accepted by us to be one validly made and that the propoundcr had dispelled the clouds of suspicion that surrounded its alleged execution to the satisfaction of our judicial conscience. If the answer is in the positive, the later will must prevail. If the answer is in the negative then only we will be called upon lo examine the validity of the will of 10-12-1978 propounded by the respondent-plaintiff, i. e. , asha halaswamy. If the answer is in the positive, the later will must prevail. If the answer is in the negative then only we will be called upon lo examine the validity of the will of 10-12-1978 propounded by the respondent-plaintiff, i. e. , asha halaswamy. ( 13 ) AS noticed in the grounds urged by the appellant-defendant, the attack is in regard to the findings recorded by the learned probate judge in regard to the will propounded by the respondent-plaintiff. Only the last ground i. e. , ground No. 6 relates to the will propounded by the appellant-defendant. Therefore, it is appropriate in the light of the question formulated by us, as the one falling for determination by us, that we deal with the 6th ground first. ( 14 ) THE learned probate judge has essentially given more than one reason in holding that ex. D-85 the will propounded by the appellant-defendant was not a reliable document and the same had come into existence under suspicious circumstance as could be made out from the evidence of the appellant-defendant (d. w. 1) himself read with the documents produced by the respondent-plaintiff. He has pointedly referred to ex. D-20, dated 7-4-1980, a letter written by the testator late h. Siddaveerappa to the appellant-defendant. Ex. P-6 the letter written by the defendant to the plaintiff dated 18-3-1982 and ex. P-15 the will dated 14-2-1979 said to have been executed by the defendant-appellant. The fact that the appellant defendant denied the authenticity of the suit will propounded by the plaintiff-respondent and the knowledge of its existence was not borne out by the evidence on record and the admissions of the appellant-defendant himself in the course of his oral testimony in court as well as by certain other documents. Though ex. D-85 was said to have been executed on 20-12-1980, appellant-defendant deposed that he became aware of its existence only in January 1983. The admitted fact that the appellant-defendant had obtained succession certificate earlier in respect of movables after the demise of his father and belonging to his father's estate without disclosing the existence of the later will and without seeking letters in regard to the bouse property bequeathed in favour of the respondent-plaintiff by the earlier will of 10-12-1978 was held to be a suspicious circumstance surrounding the execution of the will propounded by the appellant-defendant. Similarly, defendant's own will of 14-2-1979 as at ex. Similarly, defendant's own will of 14-2-1979 as at ex. P-5, do (did) not make any bequest in favour of respondent-plaintiff except in the event of all other bequests failing which in fact established that the appellant was aware at the time of execution of his will that his daughter, the respondent-plaintiff had been provided for by his parents and that would lead to the inevitable conclusion that he was aware of the will propounded by the respondent-plaintiff and the contents thereof. The intrinsic evidence in ex. D-85 and ex. P-2, the photostat copy of the will propounded by the respondent-plaintiff showed that while ex. P-2 was typed on a typewriter with printed letters. Ex d-85 had been typed on a typewriter with letters in italics or in the form of running hand. The three signatures of the testator found in the codicil of 1978 and in the 1978 will were in blue black ink while the signature in ex d-85 was in red ink. The signature at ex d-85 was diagonal in line unlike other admitted signatures of the testator which were horizontal. When the testator was aware that the attesting witnesses of 1978 will were alive and available yet the attesting witnesses of ex d-85 were friends of appellant-defendant not those of the testator. Yet another suspicious circumstance noticed by the learned probate judge was that d. w. 4 one of the attesting witnesses could not have retained ex. D-85 for more than two years knowing its importance. The learned probate judge has also noticed that the signature of the testator was at a place in ex. D-85 which as a man of prudence, as a former Advocate and a man of experience could not have affixed on such an important document. The learned probate judge recorded another circumstance that was against the appellant-defendant's case, that is, he had failed to mention ex d-85 at the earliest point of time when he was made aware that his father had executed ex, d-85. Despite settling the affairs of his father's estate on his visit to Bangalore after the death of his father, he had not mentioned ex d-85 to any one and his explanation to explain away that lapse was too thin for the couri accept. The last circumstance was thai the attesting witnesses lo ex. D-85 were friends of ihe appellant-defendant, Dr. Despite settling the affairs of his father's estate on his visit to Bangalore after the death of his father, he had not mentioned ex d-85 to any one and his explanation to explain away that lapse was too thin for the couri accept. The last circumstance was thai the attesting witnesses lo ex. D-85 were friends of ihe appellant-defendant, Dr. Halaswamy and though they were men of standing the possibility of their complicity in creating a fictitious document on account of their friendship was not ruled out by the learned probate judge. Lastly, the appellant-defendant presented ex. D-85 for registration nearly two years after it had come to his possession which a man of his knowledge and experience coupled with other evidence would not have done in the normal course of events. ( 15 ) IT is in the light of the above that we have to examine the arguments addressed by Shri g. p. shivaprakush, learned counsel for the appellant-defendant, to satisfy outselvcs whether the conclusions reached by the learned probate judge in regard to ex. D-85 were well founded. ( 16 ) MR, g. p, shivaprakash, learned counsel lor the appellant, in conformity with the grounds urged in the memorandum of appeal, in so far as it relates to ex. D-85, the will propounded by the appellant has essentially relied on three factors to which he has drawn our specific attention to accept its authenticity as the last will and testament of the testator late h. siddaveerappa. The first point on which he drew our attention was the admission of krishnaraju a trusted friend of late h, siddaveerappa who had been examined as the attesting witness and in proof of ex. D-s5 of the will propounded by the plaintiff-respondent lo the effect that he had attested another will executed by late h. siddaveerappa subsequent to his attesting the original of ex. P-9 the certified copy of the will propounded by the plaintiff-respondent. The learned probate- judge while discussing the evidence of P. W. 5 has given considerable weight lo the admission of P. W. 5. But, then the learned probale judge has not chosen to attach much importance to that admission because the witness also asserted thai he eould not remember when exactly he attested the will. But il is implicit in thai admission that ex. But, then the learned probale judge has not chosen to attach much importance to that admission because the witness also asserted thai he eould not remember when exactly he attested the will. But il is implicit in thai admission that ex. D-85 is not the will which he had attested because the attesting witnesses of that document are d. w. 3 and d. w. 4. The admission at best could be made use of to probabilize thai late h. Siddaveerappa had executed a will or codicil subsequent lo the original of ex. P-9. Tnlhe absence of that will or codicil being produced by any of the parties or even any evidence being led by the appellant-defendant lhat such a codicil ever existed, the court may not lake serious notice of the admission lo hold anything in favour of the appcllanl-defendanl. In fact, that admission does no more than prove that late h. Siddaveerappa was in ihe habit of making wills and changing them. H certainly docs not support by inference or otherwise that ex. D-85 was duly executed. This must be read with ex. D-20 ihe lelier written by the deceased testator lo the appellant-defendant bearing the dale 7-4-1980. The relevant portion on which strong reliance has been placed by ihe learned probale judge is as follows:"regarding the house and the will you have told me, i realise what you feel though there is nothing lo be worried. Asha feels so much for you. But to respect your feelings she is pressing me lo make any change you feel. Mother is also not adverse to il. Hence I am changing both the wills Bangalore and davangere houses within this week. / will send copies of the same. In Bangalore, the modification will be (i) the entire first floor will be given to you. As owner you can use it. You need not be under any obligation lo anybody. After your death it will go to asha. When you arc alive you are the owner and you can use it in your own right without anybody questioning about it. I have consulted lawyers and have written this. You need not be wider anybody's obligation. Regarding davangere house, that is in the name of my wife. After your death it will go to asha. When you arc alive you are the owner and you can use it in your own right without anybody questioning about it. I have consulted lawyers and have written this. You need not be wider anybody's obligation. Regarding davangere house, that is in the name of my wife. / have said in the modified will which she herself has written that after her death the property should equally go to all her grand children and that her relatives need not meddle with it. They are not interested also. If they sell they can divide the proceeds equally. This will be the arrangement. I hope you will be satisfied. " (emphasis supplied) ( 17 ) FROM the above it is obvious that the will, if any, by which Mr. H. siddavecrappa had modified the bequest concerning his jayanagar house after consulting lawyers in order to pacify the appellant as evidenced by ex. D-20, a document relied upon by the defendant himself, it could not be ex. D-85 because the contents of ex. D-85 are not in consonance with the modification said to have been effected by the testator including corresponding modifications to the will of mahadevamma, his wife, concerning the disposition of her properties in favour of her grand children. In fact, none have disputed the evidence led by the plaintiff that mahadevamma also executed a will on the same day as late h. Siddaveerappa executed the original of ex, p-9 and that will also was registered. If the modified will, if it ever came into existence at best, could have becfl the will which P. W. 5 krishnaraju claimed to have attested subsequent to the attestation he made in the original of ex. P-9. It is nobody's case that the will was registered and it is nobody's case that the will was ever found among the papers of late h. Siddaveerappa after his death. Such an important document which he made if it was made at all to please his own son, he would not have left it to the vagaries of the members of his household when admiucdly he was a prudent man of experience, an advocate, a former cabinet minister of the slate government of Karnataka and therefore presumed to be cautious and careful in such matters. The absence of such a document can only lead to one conclusion and that is that had he got into existence that document, for reasons best known to himself, siddavecrappa must have destroyed it. Undoubtedly, this is somewhat speculative on our part but then the argument is founded on the admission made by P. W. 5 to probabilize the change of mind of late h. Siddaveerappa in support of execution of ex. D-s5 as a circumstance to accept ex. D-85 as the last will and testament, which is equally speculative. ( 18 ) WHILE on this point, we may refer to another aspect of this case. Before the learned probate judge an attempt was made to get a document marked which was alleged to be in the hand writing of late h. Siddaveerappa. But the learned probate judge refused to admit that in evidence inter alia on the ground that it was an unsigned piece of paper and as such was not admissible. On an application filed when this appeal was pending before us to receive that in evidence, we allowed the application so that the appellant-defendant would have the maximum advantage of any scrap of evidence that would support his case. Therefore, that document must be considered by us at the appropriate stage. A perusal of the document does indicate that Mr. Late h. Siddavecrappa proposed certain changes in the matter of disposition of his property at jayanagar as well as suggested similar changes in respect of the will of his wife late mahadevamma who died after h. Siddaveerappa died. As we have noticed, it is a scrap of paper. No foundation was ever laid in the course of the evidence led for the appellant that siddaveerappa the testator was in the habit of making such notes. On the other hand, he was a careful man of prudence, experienced, having knowledge of law and having been a cabinet minister, a person given to certain orderliness in the matter of preserving his papers. In the absence of such foundation, in the absence of any hand writing expert being examined to prove that document was in the hand of late h. Siddavecrappa. The defendant cannot be permitted to persuade this court on a naked eye a comparison to accept that piece of evidence marked by him as ex. D-108 as conclusive of the revocation of the original of ex. The defendant cannot be permitted to persuade this court on a naked eye a comparison to accept that piece of evidence marked by him as ex. D-108 as conclusive of the revocation of the original of ex. P-9 or the execution of ex. D-85. The scrap of paper does not bear the signature or the date. Therefore, it could refer to any one of the earlier wills which Mr. H. Siddaveerappa had made though there is no intrinsic evidence to suggest in the contents that it could be a note prepared by Mr. H. Siddaveerappa. It could have been prepared anytime after the earliest of his wills, and no more. We, therefore, do not propose to attach much importance to the document for the very reason by which the learned probate j udge refused to receive it in evidence. ( 19 ) THE next point to which our attention was drawn by Mr. G. p. shivaprakash, learned counsel for the appellant, relates to the learned probate judge while accepting the status and credibility of d. w. 3 and d. w. 4 the attesting witnesses of ex. D-85 nevertheless discarded their evidence merely because they were friends of the appellant-defendant. ( 20 ) WE have while setting out the reasons given by the learned probate judge for considering the will propounded by the appellant-defendant as at ex. D-85 to be shrouded in suspicious circumstances enumerated the numerous circumstances which the learned probate judge took into consideration. ( 21 ) IN appreciating the evidence on questions of disputed facts, the court is compelled to take into account the entire gamut of evidence on both sides and not any particular evidence in isolation and without reference to the other undisputed circumstances. It is in evidence that soon after the death of h. Siddaveerappa, his son, the appellant-defendant, came to Bangalore and took charge of the affairs of his late father. He made arrangements for securing letters of administration in regard to the movable assets of his late father. He also took steps to get the amount standing to the credit of his late father in the jayanagar branch of the syndicate bank to be transferred to the name of his mother at which point of time the evidence of the plaintiff-respondent indicates ex. P-2 was presented to the bank. He also took steps to get the amount standing to the credit of his late father in the jayanagar branch of the syndicate bank to be transferred to the name of his mother at which point of time the evidence of the plaintiff-respondent indicates ex. P-2 was presented to the bank. He also took steps to intervene in eviction proceedings in respect of a certain tenant who was in occupation of the portion of the house of his father at jayanagar, the subject matter of disposal under the two wills propounded by the plaintiff and defendant. Throughout he had legal advice. He had given specific instructions to his power of attorney to state that he had succeeded to his late father's estate by devolution and claim of the respondent asha as the owner of the premises under a bequest from her grandfather was false as evidenced by ex. P-14 and yet the will propounded by him as at ex. D-85 was never produced or mentioned. His explanation was that the death of his father had come as a shock and therefore he forgot about the will having been given to him by d. w. 3. That did not convince the learned probate judge nor does it convince us. Despite shock he had chosen to contest so many other matters concerned with the estate of his late father, but to forget about the most important document relating to the estate, namely ex. D-85 is more than unusual and cannot be said to be as a result of lapse of memory under stress and shock. As rightly reasoned by the learned probate judge, knowing that his father had not enjoyed good health for a long period of which he was informed throughout by correspondence between himself and his father, his daughter the plaintiff and krishnaraju the family friend, it could not have been a surprise or a shock that ms father died at a ripe old age, past 80 years. It is such cumulative effect which compelled the learned probate judge to reject his explanation and we must concur with the learned probate judge's reasoning. ( 22 ) YET another factor is the factum of registration of ex. D-85 not by the executor of ex. D-85 but by the propounder, the appellant-defendant. The registration was made in the year 1983. It is such cumulative effect which compelled the learned probate judge to reject his explanation and we must concur with the learned probate judge's reasoning. ( 22 ) YET another factor is the factum of registration of ex. D-85 not by the executor of ex. D-85 but by the propounder, the appellant-defendant. The registration was made in the year 1983. On 2-2-1983 an endorsement by the head-quarters sub-registrar, gandhinagar, Bangalore, is to the effect "sworn to and signed before in the presence. " the will may be registered after the death of the testator in terms of Section 40 (1) of the Registration Act of 1908 by any person claiming to be executor or otherwise. In accordance with the Provisions contained in sub-section (2) of Section 41 of the said Act, the registrar registering such a will after the death of the testator should satisfy himself about its due execution. That was done is not in evidence at all. We have extracted the endorsement of the sub-registrar in question earlier. If falls short of the requirement of law contained in sub-section (2) of Section 41 of the Registration Act. No registrar who so satisfied himself was examined for the appellant-defendant. The defendant examined himself and an official of the unit trust of India and the two attesting witnesses namely, Dr. S. p. panduranga and Dr. S. p. patil and none else. ( 23 ) THE plaintiff came to the court to seek letters and to prove the will propounded by her soon after objecting to the change of katha in the corporation property register in favour of defendant-appellant after he had obtained change in his name in that behalf and after objecting to the same. This is evidenced by exts. P-3, p-4 and ex. P-6. For alt the acts and steps taken by the defendant-appellant in regard to the estate of his father he had legal assistance and it cannot in that circumstance be said that something so important as the will handed over by his friend d. w. 4 the will propounded as at ex. D-85 had slipped his mind and he remembered it in the year 1983. Ex. P-3 is dated 15-2-1983 and informs the defendant that katha change in his favour as indorsed by communication dated 18-5-1982 had been revoked on the objections of asha halaswamy the respondent-plaintiff. D-85 had slipped his mind and he remembered it in the year 1983. Ex. P-3 is dated 15-2-1983 and informs the defendant that katha change in his favour as indorsed by communication dated 18-5-1982 had been revoked on the objections of asha halaswamy the respondent-plaintiff. It further called upon him to produce letters or probate. Ex. P-4 is dated 3-3-1983. It countermands ex. P-3 and calls upon the appellant to produce probate of the will. From the above it is safe to infer that it was only between 15-2-1983 and 3-3-1983 that ex. D-85 was used for any purpose and in 1982 katha transfer had been obtained without reference to any will. Therefore, we, on proper appreciation of evidence, must concur with the finding of the learned probate judge. There were good reasons not to accept the explanation offered by the defendant and view with circumspection the oral testimony of d. ws. 3 and 4. ( 24 ) NOW looking at the oral evidence deposed to by the attesting witnesses of ex. d-85, we find that there are some material discrepancies which lend to induce the court to hold that their evidence is not reliable. In the first place, it is agreed on all sides that appellant-defendant was and is a close associate and friend of the attesting witnesses who are also men of the same profession. In his examination in chief d. w. 3 has positively stated that when he visited the house of Mr. Siddaveerappa (date and year not stated) to submit to him a blood sugar report, he found d. w. 4 already present in the house of Mr. Siddaveerappa in the room in which siddaveerappa was. He stutcd further that Dr. Palil took ex. D-85 from an almirah and gave it to siddaveerappa. As against this, d. w. 4, Dr. Patil has stated that he casually visited Mr. Siddaveerappa at his request in December 1980 during christmas holidays. At that time, it was Mrs. Siddaveerappa who opened the door for him but she left the house after some time. Then there was a call and he opened the door to find d. w. 3, Dr. Shetty, who had come to see siddaveerappa. He, then stated in his testimony that he was requested to pull out one book from the shelf and he gave the book to siddaveerappa. Then there was a call and he opened the door to find d. w. 3, Dr. Shetty, who had come to see siddaveerappa. He, then stated in his testimony that he was requested to pull out one book from the shelf and he gave the book to siddaveerappa. Siddaveerappa opened that and picked up some paper and informed them that he was going to sign the paper and they also could sign the same. No where in the course of his testimony before the court had d. w. 4 stated that what he had attested was a will nor had he stated that siddaveerappa had informed him that what he was giving to him inside the envelope was a will. Yet d. w. 4 has stated in the course of his testimony that he had informed the appellant-defendant of the contents of the will and that it was possible that in the stale of mind in which the appellant-defendant was when he was made aware of ex. D-85, he might have forgotten about it. that kind of evident read with the other circumstances to which we have already adverted cannot be said to be oral testimony on which the court may depend upon when other circumstances compel ihc court lo be cautious and if found necessary to reject such evidence. In that view of the matter, the conclusion reached by the learned probale judge, though the witnesses are persons of standing, their evidence was wanting in credibility cannot be disturbed by us. ( 25 ) IN this connection, we may at this stage itself mention that the learned counsel Shri g. p. shivaprakash mentioned lo us that the learned probate judge applied different standards in appreciating the evidence on record in regard lo ihc will propounded by the plaintiff-respondent and the will propounded by the appellant-defendant. We think it approprialc that we deal with this question before we go to the other arguments addressed in regard lo the will propounded by the plaintiff-respondent. ( 26 ) IN the light of the discussion of some of the evidence, particularly ex. D-20, prima facie, the will propounded by ihc plainliff-rcspondenl, the original of ex. P-9 cannot be said to be shrouded in suspicious circumstances in regard to its execution. We will discuss the other evidence with particular reference lo its registration by the testator before the sub-registrar, jayanagar, Bangalore. D-20, prima facie, the will propounded by ihc plainliff-rcspondenl, the original of ex. P-9 cannot be said to be shrouded in suspicious circumstances in regard to its execution. We will discuss the other evidence with particular reference lo its registration by the testator before the sub-registrar, jayanagar, Bangalore. As observed by the Supreme Court in a catena of decision, particularly, in the case of Smt. Jaswant kaur v smt, amrit kaur and others, AIR 1977 SC 74 following the earlier decision of that court in h. venkatachala lyengar v b. n. thimmajamm and others, AIR 1959 SC 443 , cases, in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of properly, the propounder himself laking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of ihc will. No doubt, in the facts and circumstances of the case on hand, it cannot be said lhat the appellant has taken part actively in the preparation and execution of the will propounded by him. But, on his own admission and that of the attesting witnesses of ex. D-85 that he look active steps in gelling the will registered some three years after its alleged execution before the sub-registrar, gandhinagar, Bangalore, cannot be in doubt. Strictly speaking, it cannot be said in ihc usual course of evenls that disposition in favour of the appcllant-defendanl in ex. D-85 lo be unnatural disposition. But seeing in the back ground of the totaly of circumstances which have unfolded themselves in the course of ihc evidence led on behalf of the plainliff-respondent as well as ihe defendant-appellant, oral and documentary, we have no doubt in our minds that the disposition of the jayanagar house entirely and exclusively in favour of the appellant does amount to an unnatural disposition. We will advert to this aspect later in the course of our judgment when we lake up the attack made on the will propounded by the plaintiff-respondent. Suffices it at this stage to state lhat while the will propounded as at ex. D-85 is shrouded in suspicious circumstances, the same may not be said in regard lo the execulion of the original of ex. P-9. Suffices it at this stage to state lhat while the will propounded as at ex. D-85 is shrouded in suspicious circumstances, the same may not be said in regard lo the execulion of the original of ex. P-9. In Smt. Jaswant kaur's case (supra,) chandrachud, j. , as he then was stated lhat the presence of suspicious circumstances makes the initial onus heavier and therefore in cases where the circumstances atlendani upon the execulion of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. Therefore, it would be unfair to the learned probale judge to contend lhat he applied different standards in evaluating the two wills propounded before him by the defendant-appellant and the plaintiff-respondent respectively. We, therefore, must reject that contention. ( 27 ) THE learned probate judge has relied upon the decisions of the Supreme Court of India as well as well settled principles governing wills in england as expounded by the judicial decisions of that country as well as renowned commentators on the subject of'law of wills'. We do not propose to advert to those decisions once again. They are found in paras 33 to 38 of the judgment under appeal. ( 28 ) NOW, we propose to consider the submissions of the learned counsel shrig. p. shivaprakash with reference to the will propounded by the plaintiff-respondc nt. ( 29 ) THE learned counsel has asked us lo hold that due execution of the original of ex. P-9 must be held not to have been proved in view of the conflicting evidence in regard to material details in ihc oral testimonies of P. W. 1 and P. W. 5 in regard to the presence at the lime of execution of the said will of the other attesting witness, plaintiff as P. W. 1 in her oral testimony before the court, in exatmnation-in-chief, has stated as follows:-"i was present when the orignal of ex. P-2 was executed by my grandfather. One p. r. krishnarajtt and one m. v. gopinath have attested the original of ex. P-2. The original of ex. P-2 was executed in our house at jayanagar. I did not go to the sub-registrar's office when it was registered. At the time of the execution of the original of ex. P-2 was executed by my grandfather. One p. r. krishnarajtt and one m. v. gopinath have attested the original of ex. P-2. The original of ex. P-2 was executed in our house at jayanagar. I did not go to the sub-registrar's office when it was registered. At the time of the execution of the original of ex. P-2, my grandfather, my grandmother, myselfand m. v. gopinath were present. Mr. Krishnaraju came the next day to attest lo the will. I cannot now say whether it was executed in the evening of 10-12-1978 or in the morning of next day. " (emphasis supplied) ( 30 ) IN regard to the execution of the will testified to on oath by respondent-plaintiff, P. W. 5 krishnaraju has said in the course of his testimony of oath in regard to the execution of the original of ex. P-2 as follows:-"i had known late siddaveerappa since 1935. i was his friend. I know about the will executed by late h. Siddaveerappa. I have attested the said will. One gopinath had also attested the said will. That will was executed in favour of his granddaughter asha halaswamy. Mr. Siddaveerappa himself requested me to attest the said will. The other attesting witness gopinath had also subscribed his signature in my presence. Late siddaveerappa was in the room when we attested the will. Ex. P-9 is the photo copy of the will and it bears my signature as attesting witness. It is at ex. P-9 (f ). Ex. P-9 (g) is the signature of the other attesting witness gopinath. Late siddaveerappa had subscribed his signature to the said will in our presence. Ex. P-9 (h) and (i) are the signatures of siddaveerappa. " (emphasis supplied) ( 31 ) THE above statements were made by the witness in the examination-in-chief. In the cross-examination, he has slated as follows:-"myself, gopinath, late siddaveerappa and his wife mahadevamma were present at the time of the execution of the will. asha his granddaughter was not present. " (emphasis supplied) ( 32 ) ON the basis of this apparent contradiction, the learned counsel contended that the only attesting witness krishnaraju having clearly pointed out that the plaintiff was not present at the time of execution as against her assertion that she was present and that gopinalh was present. asha his granddaughter was not present. " (emphasis supplied) ( 32 ) ON the basis of this apparent contradiction, the learned counsel contended that the only attesting witness krishnaraju having clearly pointed out that the plaintiff was not present at the time of execution as against her assertion that she was present and that gopinalh was present. The fact that the plaintiff asserted that it was gopinath who first signed and on the following day, krishnaraju attested the will would go to show that there was no proper evidence in proof of due execution of the will in terms of Section 63 of the Succession Act read with Section 68 of the ; Evidence Act. Provision of the latter mentioned act required the examination of atleast one of the attesting witnesses. The thrust of the argument is that if one attesting witness so examined did not corroborate the plaintiffs own evidence in proof of the will propounded by her, then due execution could not have been inferred by the probate court. ( 33 ) THE learned probate judge on this question has held that the only discrepancy thai he could notice in the evidence of the plaintiff in her evidence was on the fact of the execution of the original of ex. P-2. However, the learned judge did not have to rely solely on the evidence of the plaintiff lo prove the execution of the wilt and its attestation. While the plaintiffs evidence in regard to execution could not be accepted, evidence of P. W. 5, a person interested not only in the : defendant, as evidenced by ex. P-88, but also in the affairs of the testator, being a family friend for over so years, would not hesitate to support the case of the plaintiff and depose falsely against her father the defendant. It was in that circumstance lhat the learned probate judge met the argument founded on the discrepancy noticed in the evidence of P. W. 1 and P. W. 5 in regard lo the attestation and execution of the will. ( 34 ) WE cannot find fault with the analysis and appreciation of the evidence on record in that behalf by the learned probate judge. ( 34 ) WE cannot find fault with the analysis and appreciation of the evidence on record in that behalf by the learned probate judge. We will go a step further and see that in addition to the evidence of P. W. 5, there was the evidence of p. W. 4 the sub-registrar who had registered the original of ex. P-2 or ex. P-9. His evidence along with the documentary evidence such as the thumb impression register as at ex. P-7 and ihe certified extract of what was registered in the office of the sub-registrar, jayanagar, by P. W. 4, would lend a great deal of credence to the testimony of P. W. 5. We must, in the absence of proof lo the contrary, assume lhat the sub-registrar who registered the original of ex. P-9 or ex. P-2 had satisfied himself in regard to its due execution in accordance with the rules made in that behalf under the Karnataka rcgislralion rules. ( 35 ) ADDED to this, the learned probate j udge has condoned the inaccuracy of the statement of plaintiff on account of her tender age when the original of ex. P-9 or ex. P-2 was executed and the long lapse of lime between the date of execution and date of her deposition in the court. ( 36 ) IN that view of the mailer, we must concur with the learned probate judge that requirement of Section 68 of the Evidence Act was satisfied in so far as it related to the execution of the original of ex. P-9 or ex. P-2. ( 37 ) WE are somewhat fortified in the conclusion reached by the observation made by the Supreme Court in Smt. Jaswant kaur's case. Chundrachud, j. , as he then was, said that since Section 63 of the Succession Act required a will to be attested, it could not be used as evidence till as required by Section 68 of the evidence acl, one attcsling witness atleast had been called for, for the purpose of proving its execution if there be an attcsling witness, alive and subject to the process of the court al the lime of giving evidence. It is purt of the records of the court that the plaintiff had taken out summons to the other attesting witness m. v. gopinalh. But despite service, he remained absence and did not testify in the court. It is purt of the records of the court that the plaintiff had taken out summons to the other attesting witness m. v. gopinalh. But despite service, he remained absence and did not testify in the court. The matter was not pursued thereafter. Therefore, if the requirement of law was satisfied by the examination of P. W. 5, on account of the discrepancy, the defendant cannot claim any advantage from such minor lapse. ( 38 ) AS yet another limb of the earlier argument, it was next contended by the learned counsel for the appellant that non-examination of gopinath in the light of the contradictions in the oral testimony of P. W. 1 and P. W. 5 should necessarily compel the probate court to draw an adverse inference in terms of Section 114 (g) of the Evidence Act. We do not think there is much force in the contention. The law requires the will to be proved in a particular manner which is not any different than the law applicable to any other document except that atteast one attesting witness to the will, if alive and available, must be examined. It docs constitute the best evidence if the witness is available. If P. W. 5 was examined and the requirement of law was fulfilled in that manner then the question of drawing adverse inference on the ground that the best evidence available was not produced would not arise and as such does not attract the rigour of clause (g) of Section 14 of the Evidence Act. We have already pointed out that the plaintiff did take out summons to the said gopinath, the other attesting witness who chose to remain absent and unresponsive. Once the requirement of law had been completed, the probate court was not under an obligation to compel attendance of the other atlcsting witness only to seek clarification of the date and time of execution as the probalc court had other evidence to rely upon for due execution of the original of ex. P-2 or ex. P-9, the will propounded by the plaintiff. We have no hesitation to reject this contention as well. ( 39 ) IT was next argued, particularly, in the light of the amendment to the written statement that the testator late h. Siddaveerappa did not have a free and sound disposing state of mind while executing the original of ex. P-9, the will propounded by the plaintiff. We have no hesitation to reject this contention as well. ( 39 ) IT was next argued, particularly, in the light of the amendment to the written statement that the testator late h. Siddaveerappa did not have a free and sound disposing state of mind while executing the original of ex. P-9 because of the pressure and influence as well as coercion brought upon him by his wife, late Smt. Mahadcvamma. We have abundant evidence that Mr. Late h. Siddaveerappa had sound and disposing stale of mind till he died. In fact, the very will propounded by the defendant if accepted by the court, would be proof of such disposing state of mind as it is a much later will and at which lime or at the time of execution of which Smt. Mahadevamma was yet alive. It is in the evidence of the plaintiff that she was most unhappy with her parents while staying with them at tulsa in the united states. She has spoken of discriminatory treatment by her parents vis-a-vis the other children. When late Mrs. Mahadcvamma was on a visit to her son in the united states, the plaintiff chose to return with her grand parent and settle down and to live with the grand parents at Bangalore. It is in the evidence of P. W. 1 himself that the plaintiff was left behind from her infancy with the grand parents. The result of such long association with the child must necessarily be taken notice of by the court from the very childhood which would evoke in the grand parents a great deal of affection particularly in the absence of their son in their old age. It was in that circumstance that both late h. Siddaveerappa, the testator and his wife mahadcvamma made their respective testamentary dispositions, while one bequeathed the house at jayanagar in favour of his eldest grand daughter, the other bequeathed the properties standing in her name at davanagere to the other grand children. If such an agreement was arrived at by husband and wife, who had been married for long and who had lived together for long, it cannot be said that the wife brought about undue influence and duress on siddaveerappa to execute the original of ex. P-9. If such an agreement was arrived at by husband and wife, who had been married for long and who had lived together for long, it cannot be said that the wife brought about undue influence and duress on siddaveerappa to execute the original of ex. P-9. If one looks at the totality of the evidence, particularly, with reference to the correspondence between late siddaveerappa, his son, the defendant-respondent and correspondence between the plaintiff and her father the defendant, it becomes clear the grand parents had special affection for the plaintiff and wanted her to be well provided as they had every reason to be confident in addition to what they may provide for the other grand children, defendant himself would and should provide for the other grand children. In any event, this duress, the court is called upon to infer, but no evidence direct or circumstantial, has been led in support of that plea in the amended written statement. We, therefore, arc compelled to reject this contention also. ( 40 ) IT was next argued that disposition in favour of the plaintiff in the original ofex. P-9 or ex. P-2 was unnatural having regard to the fact that defendant-appellant was the only son of late h. Siddaveerappa, the testator. That it is represented, should be regarded as a suspicious circumstance surrounding the execution of the will which the plaintiff has not dispelled by any evidence. We have in a sense dealt with this contention earlier. Undoubtedly, such a disposition becomes unnatural but we have observed that having regard to the totality of circumstances that unfolded themselves in the course of the evidence led by the plaintiff as well as the defendant, oral and documentary, provides sufficient clue to the reasons for disposition in favour of the plaintiff. We have already observed that the grand-parents had developed special affection to the plaintiff who alone had grown up with them in their old age. For that reason, we arc not inclined to consider the disposition of the jayanagar house in favour of the plaintiff as an unnatural disposition. We must take into account, the son had shown no inclination to return to india, the other grand children were being educated in the united states or allcast one grand-son was being educated in India only with a view to take him back to america where he could continue his studies. We must take into account, the son had shown no inclination to return to india, the other grand children were being educated in the united states or allcast one grand-son was being educated in India only with a view to take him back to america where he could continue his studies. This may appear to be a conjucturc on our pan but other circumstantial evidence clearly points towards such a possibility. Therefore, there was nothing for the plaintiff to dispel which has been termed as suspicious circumstances by the learned counsel for the appellant. ( 41 ) ON the other hand, it is appropriate for us at this stage to mention, it is the defendant-appellant who propounded ex. D-85 who was required to explain the inordinate delay in bringing to light that instrument. It was held in Smt. Jaswant kaur's case (supra) by the Supreme Court that circumstances were too numerous to mention which throw a cloud of suspicion on the making of the will by gobinder singh; the will was alleged to have been made on November 26,1945 but it did not see the light of day till August 20, 1957; being an ambulatory document, it may be granted that there might be no occasion for any one to know of its existence until the death of the testator on December 15, 1954; but it was ununderstandablc that a document by which properly worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives, nay, from the sole legalee himself, for over 2 1/2 years after the testator's death; the testator had left behind him a large properly and along with it a large amount of litigation which made it impossible to believe that upon his death in december, 1954 no one bothered to go through his papers which would reflect the stale and extent of his properly; the explanation of the defendant that he hit upon the will by chance while going through some papers of his grandfather was therefore patently lame and unacceptable. The above observations of the Supreme Court fairly and squarely apply to ex. d-85 and the conduct of the defendatnt-appellant. The above observations of the Supreme Court fairly and squarely apply to ex. d-85 and the conduct of the defendatnt-appellant. ( 42 ) IN contrast, the plaintiff has at the first opportunity produced the will on which she had depended before the court under the karnalaka Rent Control Act for eviction of one of the tenants claiming to be the landlord by virtue of the testamentary disposition. Even then, the defendant-appellant did not come out with the will propounded by him. ( 43 ) THUS, we do not see any cloud of suspicious circumstances surrounding the execution of original of ex. P-2 or ex. P-9. ( 44 ) IT was next argued by Mr. G. p. shivaprakash, learned counsel for the appellant-defendant that in the absence of the original of ex. P-2 or ex. P-9 and non-examination of gopinath in the suspicious circumstance must lead to the presumption that the will was revoked in terms of Section 70 of the Indian Succession Act and that the plaintiff had failed to remove the clouds of suspicious circumstances surrounding execution of the original of ex. P-2 or ex. P-9. We have already dealt with the question of non-examination of gopinath. But, however, in the light of the decision relied upon by the learned counsel for the appellant in the case of dinesh kumar v khazan singh and others, AIR 1988 Delhi 273 decided by a learned single judge of the Delhi High Court, we should once again reiterate that the conclusion reached bv the learned judge of the Delhi High Court is not supported by the authoritative pronouncement of the Supreme Court in beni chand v Smt. Kamla kunwar and others, AIR 1977 SC 63 . It is true, the learned single judge held that propoundcr had to prove genuineness and satisfy the conscience of the court that there was no unconscionability. It is true, the learned single judge held that propoundcr had to prove genuineness and satisfy the conscience of the court that there was no unconscionability. The learned judge of the Delhi High Court held that testatrix appointing her husband sole legatee excluding her four sons and two daughters; testatrix dying after four years of execution and will brought to light 3 years after death; complete secrecy maintained about will; only one attesting witness of two, having been examined though other witness was also available; draft of the will alleged to have been prepared and which was in existence prior to wilt not examined would lead to the conclusion that the will propounded was not genuine and therefore grant of letters of administration was not valid. Though he noticed in bent chand's case (supra) in paragraph 9 of the judgment as reported in the air, he failed to refer to jaswant kaur's case decided about the same lime by the Supreme Court, wherein proof, nature and standard of evidence required was examined and ruled upon. It is useful to notice the ruling of the Supreme Court in regard to execution of the will and examination of attesting witness as held in bent chand's case, the Supreme Court ruled as follows:"there is no substance in the grievance thai the proof of the will in this cast- is incomplete for want of an attesting witness's evidence. Section 68 of the Evidence Act deals with proof of the execution of documents required by law to be attested. It provides that such documents shall not be used as evidence until atleast one attesting witness has been called to prove the execution, if there he an attesting witness alive and subject to the process of the court and capable of giving evidence. Since by Section 63 of the succession Act, 1925 a will has to be attested by two or more witnesses. Section 68 of the Evidence Act would come into play and therefore it was incumbent on the propounder of the will to examine an attesting witness to prove due execution of the wilt. But this argument overlooks that dwijendra nigam is himself one of the three persons who made their signatures below the thumb impression of jaggo bai. Section 68 of the Evidence Act would come into play and therefore it was incumbent on the propounder of the will to examine an attesting witness to prove due execution of the wilt. But this argument overlooks that dwijendra nigam is himself one of the three persons who made their signatures below the thumb impression of jaggo bai. None of the three is described in the will as an attesting witness but such labelling is by no statute necessary and the mere description of a signatory to a testamentary document as an attesting witness cannot take the place of evidence showing the execution of the document. By attestation is meant the signing of a document to signify that the attestor is a witness to the execution of the document; and by Section 63 (c) of the succession Act, an attesting witness is one who signs the document in the presence of the executant after seeing the execution of the document or after receiving a personal acknowledgment from the executant as regards the execution of the document. Nigam's evidence shows that he and the other two witnesses saw the testatrix pulling her thumb mark on the will by way of execution and lhat they all signed the will in lokcn of attestation in the presence of the testatrix, after she had affixed her thumb-mark on the will,"we have already held lhat there is no suspicious circumstance lhat may be inferred in regard to the execution of the original of ex. P-2 or ex. P-9. Bui, however, our attention was drawn to the decision of the Supreme Court in the case of durga parshad v bebi charan and others, AIR 1979 SC 145 . It was observed in thai decision lhat where a will had been properly executed and registered by the testator but nol found at the time of death the question whether the presumption that the testator had revoked the will can be drawn or not will depend on the facts and circumstances of each case. Even if such a presumption was drawn it was rather a weak one in view of the habits and conditions of indians. The presumption was a rcbultable one and could be rebutted by the slightest possible evidence direcl or circumstantial. Even if such a presumption was drawn it was rather a weak one in view of the habits and conditions of indians. The presumption was a rcbultable one and could be rebutted by the slightest possible evidence direcl or circumstantial. It would be useful to point out that in the said decision, the Supreme Court following in a passage in jarman on wills which is as follows:"if a will is traced into the testator's possession, and is nol found at his death, the presumption is that he destroyed it for the purpose of revoking it; but the presumption may be rebutted. . . . . . . . . . . Where the will makes a careful and detailed disposition of the lestalor's properly, and nothing happens to make it probable thal he wishes to revoke it, the presumption raised by the disappearance of the will may be rebutted by slight evidence, especially if il is shown that access to the box, or other place of deposit where the will was kept, could be obtained by persons whose interest it is lo defeat the will. "held on the facts and circumslances of lhat case, came lo the conclusion as a correct legal position and set out those conclusions as follow:"1. That where a will has been properly executed and registered by the leslalor but not found at the time of death ihc question whether ihe presumption that the leslaior had revoked ihc will can be drawn or nol will depend on the facts and circumslances of each ease. Even if such a presumption is drawn it is rather a weak one in view of ihe habits and conditions of our people. 2. That the presumption is a rebutlublc one and can be rcbutlcd by the slightest possible evidence direct or circumstantial. For instance, where it is proved thai a will was a slrong and clear disposition evincing ihe calcgorical inlenlion of the testator and there was nothing to indicate ihe presence of any circumstance which is likely lo bring about a change in the intenlion of the testator so as to revoke the will suddenly, ihe presumption is rebutted. 3. For instance, where it is proved thai a will was a slrong and clear disposition evincing ihe calcgorical inlenlion of the testator and there was nothing to indicate ihe presence of any circumstance which is likely lo bring about a change in the intenlion of the testator so as to revoke the will suddenly, ihe presumption is rebutted. 3. Thai in view of the fact that in our country most of the people arc not highly educaledand do nol in every case take the care of depositing the will in ihc banks or with the solicitors or otherwise take very great care of the will as a result of which the possibility of the will being stolen, lost of surreptitiously removed by interested persons cannot be excluded ihe presumption should be applied carefully. 4. That where the legatee is able lo prove the circumstances from which it can be inferred that there could be absolutely no reason whatsoever for revoking the will or that the act of revoking the will was against ihc lemperament and inclination of the testator, no presumption of revocation of the will can be drawn. 5. That in view of the express provision of Section 70 of the act the onus lies on the objector to prove the various circumstances vi/. , marriage, burning, tearing or destruction of the will. "therefore, having regard to the conclusion-6, the burden of proving the original of ex. p-2 or ex. p-9 had been destroyed by the testator was on the appellant-defendant. He did not lead any evidence. The learned counsel for the appellant relied upon a minor contradiction in the pleadings and the oral testimony of the plaintiff. In the pleadings of the case, the plaintiff in the plaint had averred that the original will executed by late siddaveerappa was not traced. The petitioner gullibly believed her father. Perhaps, in order to claim the property in himself he had cither secreted or destroyed the will permanently and it was not traced. For the reasons that are stated in the affidavit in support of i. a. i. filed in the above case, he has been himself claiming hostile title and as such the petitioner in order to establish her rights was seeking the letters of administration for the copy of the will producing the registration copy. Fortunately, for her, the will was a registered document. Fortunately, for her, the will was a registered document. As against this, in the course of oral testimony of P. W. i, respondent-plaintiff had stated that the copies were made oul of the original will which had her grandfather's signature as well as the thumb impression. She gave the will for making xerox copies. Her grandmother and her father were present with her at that time. It was thereafter that she had kept the will in cupboard in their house. When she wanted to file the petition to this court, she secured a copy of her grandfather's will from the office of the sub-registrar of jayanagar. She had earlier stated that the house was in the possession of herself and her grandmother for some lime. Her grandfather passed away in 1982. She had to go to davanagcre and her father look the keys of the house from her. When she returned she could not find the will which was kept in a cupboard in the house. Though the evidence does not strictly support the pleadings, it cannot in any way affect the fact that the original existed in the light of the evidence of ex. P-2, the photostat copy und the evidence of the official from the bank who produced the same. Under Section 62 of the Evidence Act, there is no bar for admitting secondary evidence if the primary evidence is not available or lost. Therefore, on the facts and circumstances of this case, the decision relied upon by the learned counsel in the case of durga parshad, does assist the respondenl-plainliff and not the defendant. ( 45 ) CERTAIN other arguments have been advanced such as that ex. D-88 evidences" the circumstances in which the testator was placed in the matter of disposition of properties generally and that gopinath was an unlikely choice to be an attesting witness having regard to testator's own estimate of his character as evidenced by ex. D-69. This argument should not detain us for long. Ex. D-88 is a leller dated 4-4-1974 written by p. W. 5 krishnaraju to Dr. Halaswamy. In that letler, krishnaraju a family friend has extensively pointed out the torment suffered by siddaveerappa on account of his son, daughter-in-law and grand-children having settled down in u. s. a. nothing in the said letter has any relevance or any relation to the execution of the original of ex. Halaswamy. In that letler, krishnaraju a family friend has extensively pointed out the torment suffered by siddaveerappa on account of his son, daughter-in-law and grand-children having settled down in u. s. a. nothing in the said letter has any relevance or any relation to the execution of the original of ex. P-9 or ex, p-2, the will propounded by the plaintiff-respondent. The time gap between ex. P-2 and ex. D-88 is more than four years and it is very unlikely that the mental slate of siddaveerappa in 1974 would have anything to do with the disposing state of mind on 10th december, 1978. Ex. D-69 is a letter written by siddaveerappa. It is dated 8th january, 1979 and it is addressed to his son Dr. H. Halaswamy defendant-appellant. It is addressed in the following terms, "my dear Dr. Halaswamy, ratnamma, ravi and nanda. " we would think that it was unusual that a father should address his only son, as he would address a friend instead of my dear son, daughter-in-law, ravi and nanda. The contents of the letter are no more than the unburdening of his woes to his son, the appellant-defendant, in response lo his letter which apparently provoked the testator. That letter is of 29th December written by the appellant to his father from america. In fact, as we have earlier noticed, the testator siddaveerappa had misgivings that ravi his grandson was not likely to return to India and that his son should stay only so long as his grandson ravi's studies were completed in the united stales. In 1979 he asserted that he enjoyed good health. He pointed out that out of office as minister, he spoke, though not on the verge of starvation, he was not rich. He pointed out that gopinath was not a man with whom the appellant should have had any transaction. He has mentioned that some car was returned to gopinath. He pointed out that gopinath was not a relative but like hundreds of others had misused the testator's name and made money while he was in office. He also found fault with his son for similarly assessing one shivashankaranna and requested his son to revise his opinion of that person earlier in the course of the letter, he even pointed out that swamiji of sirigere mutt was not trustworthy. He also found fault with his son for similarly assessing one shivashankaranna and requested his son to revise his opinion of that person earlier in the course of the letter, he even pointed out that swamiji of sirigere mutt was not trustworthy. The letter read as a whole reflects no more than the woes of a frustrated politician in his declining years and out of power when all friends or those who professed friendship had deserted. The letter written under such circumstances cannot evidence that it was unlikely gopinath was called to attest the original of ex. P-9. On the other hand, it was the appellant who appears to have had transactions with gopinath and what was done more than a year earlier than the date of the letter as at ex. D-69 by asking gopinath to attest the original of ex. P-9 would not go to establish the type of relationship late siddaveerappa had with gopinath at an earlier point of time. Therefore, the arguments of g. p. Shivaprakash in this behalf are liable to be rejected and they are so rejected. ( 46 ) IT was also urged by the learned counsel that plaintiff was in possession of the original of ex. P-2 but had not produced for fear that some endorsement of cancellation on it would render it invalid. We have already held that due execution of the original of ex. P-2 or ex. P-9 had been proved by the evidence of P. W. 5 and P. W. 3 as well as p. W. 4. The plaintiff on oath had asserted that it was her father who had destroyed the will. As against that assertion, it is only the bare denial of the appellant that he was never aware of the will i. e. , the original of ex. P-2. That ex. P-9 read with ex. P-10 given by Dr. Halaswamy to the syndicate bank as deposed by P. W. 3 was produced from the custody of the bank though P. W. 3 was not the officer at the relevant time when the exhibit in question were received at the bank cannot be disregarded. Nothing in the cross-examination of that witness has been elicited which should discredit the authenticity of ex. P-10. Therefore, that plaintiff had concealed the original will would really have no support. On the other hand, ex. Nothing in the cross-examination of that witness has been elicited which should discredit the authenticity of ex. P-10. Therefore, that plaintiff had concealed the original will would really have no support. On the other hand, ex. D-10 strengthen her testimony as to what could have happened to the original or at least it would lead the court to come to the conclusion that the original was at some point of time after the death of siddaveerappa was lost or misplaced. ( 47 ) IT was further argued by the learned counsel for the appellant-defendant, Shri g. p. shivaprakash that the court must have regard to the conduct of the agent of the plaintiff in trying to secure the dividends of unit trust standing in the name of late h. Siddaveerappa as evidenced by ex. D-107. Ex. D-107 does no more than intimate the plaintiff-respondent that her request as contained in ex. D-106 could not be granted unless necessary succession certificate or probate of will or letters of administration issued by a competent court covering the unit certificates was produced by her. All this had happened in february, 1982 long after the death of siddaveerappa and a couple of months before the death of testator siddaveerappa's wife mahadevamma who died on 23-4-1982. When in February mahadevamma was alive, it could well be that ex. D-106 was written by the plaintiff-respondent on her instructions and not necessarily on her own. ( 48 ) AS against the submissions of Shri g. p. shivaprakash, learned counsel for the plaintiff-respondent, Mr. Padubidri raghavendra rao, the learned counsel who appeared before us did no more than support the reasoning and the conclusions reached by the learned probate judge. He drew our attention to the fact that there was considerable material discrepancy in the oral testimony of d. ws. 3 and 4. The only evidence in regard to alleged pressure put by mahadcvamma is to be found in the oral testimony of d. w. 4 that too in re-examination. It was never spoken to either in examination in chief or at any earlier point of time by any one else. All said and done, the learned probate judge, for good and sufficient reason has come to the conclusion that d. w. 4 as well as d. w. 3 were witnesses interested in the appellant-defendant and therefore their testimonies eould not be relied and acted upon. All said and done, the learned probate judge, for good and sufficient reason has come to the conclusion that d. w. 4 as well as d. w. 3 were witnesses interested in the appellant-defendant and therefore their testimonies eould not be relied and acted upon. He further drew the attention of the court to ex, d-82 another letter written by late siddaveerappa to his son dated 28th april, 1980. In that letter, the following is found:"regarding the will. There is much force in what you say. I did not like to go against your wishes. With the concurrence of asha and mother I have made arrangements for the change. The will (codicil) is ready. 1 have not sent to registration. On 26-7-1980 asha comes of age. If you want I can get it registered. I can wait until that time. "the above, the learned counsel for the plaintiff-respondent, contended, clearly established that defendant-appellant knew of the original of ex. P-2 and had put some kind of pressure to have that will changed. The codicil said to have been executed by siddaveerappa in ex. D-82 could have been only that which was attested by P. W. 5 after he hud attested the original of ex. P-2 or ex. P-9. He, therefore, commended to the court that codicil not having seen the day light, it strengthened the case of the plaintiff-respondent and supported the conclusions reached by the learned probate judge. We must admit thai there is force in that contention. ( 49 ) IT was further argued by Mr. Padubidri raghavendra rao, learned counsel appearing for the plaintiff-respondent, that non-registration of ex. D-85 by siddaveerappa himself was a circumstance which the court should take notice of as he had got the earlier wills of himself and his wife duly registered and was waiting for the return of plaintiff-respondent from her holiday as evidenced by ex. D-82 to get the codicil also registered. The thrust of the argument is that such a person would not have failed to get the will registered if ex. D-85 was a genuine document. Knowing that it had upset or altered or modified his earlier disposition in favour of the plaintiff-respondent. The fael that ex. D-82 to get the codicil also registered. The thrust of the argument is that such a person would not have failed to get the will registered if ex. D-85 was a genuine document. Knowing that it had upset or altered or modified his earlier disposition in favour of the plaintiff-respondent. The fael that ex. D-82 speaks of consent of mahadevamma for the codicil, he further contended evidenced that there was no coercion by her at any time to influence late h. Siddaveerappa in the matter of disposition of his property. Even this we must accept as probably reflecting the true state of affairs than what was contended for the appellant-defendant. ( 50 ) FOR all the above reasons, we do not see any merit in this appeal. There fore,we must reject it. As observed by chandrachud, j. , as he then was, in beni chand's case (supra), it is well settled that the onus probandi lies in every case upon the party propounding the will and he must satisfy the conscience of the court that the instrument so propounded was the last will of a free and capable testator. It is in the light of the decided cases of this court as well as the Supreme Court, to some of which we have referred that we have to observe that the onus probandi has been discharged by the respondent-plaintiff to the satisfaction of our judicial conscience while the same cannot be said of the will propounded by the appellant-defendant. In these matters, it is ultimately the court's conscience which determines the conclusion. Mere reasoning is not adequate. The court will have to view the entire back-ground, the totality of circumstances, the evidence oral and documentary placed before it and then perform the difficult task of satisfying its conscience one way or the other. ( 51 ) HAVING regard to ihe relationship of the contesting parties, more than one attempt was made by this court to bring about a settlement by which neither the plaintiff-respondent nor the appellant-defendant would be deprived of the property. One attempt was made even after the hearing of the appeal had stood concluded. During the pendency of the appeal the plaintiff- respondent was married and defendant-appellant, the father, came to perform that marriage and attended and blessed his daughter. One attempt was made even after the hearing of the appeal had stood concluded. During the pendency of the appeal the plaintiff- respondent was married and defendant-appellant, the father, came to perform that marriage and attended and blessed his daughter. We brought the father and daughter together along with the newly married husband of the plaintiff-respondent in our chambers and put a number of propositions which would have satisfied any average father and daughter. Whatever may be the cause, the plaintiff-respondent was adamant and stood her ground by the will she had propounded. We have earlier referred to her utter dislike for her mother and to some extent her father for the treatment she received in the united stales when for a short while she stayed with her parents. That too, lo our mind, appear to have left a deep impression on her mind and a feeling of in-sucurity has taken deep roots. She appears lo associate her security in life only with her grand-parents and what they have done to her. It is no daubt, it is our own assessment of the character of the plaintiff-respondent on the evidence available. We must admit our failure lo bring about a settlement. ( 52 ) IN the result, we affirm the order of the learned probate judge under appeal and dismiss the appeal. All interim orders made in the course of the proceedings before the learned probate judge and this bench in regard to the collection of rent of the house at jayanagar, the property in dispute in this appeal, stand dismissed and the receiver appointed discharged. We had released some amount earlier towards the expenses of the marriage of the plaintiff, some of the amounts are still in deposit in court. All amounts in deposit in court on this dale shall be withdrawn by the plaintiff-respondent in view of her success in this unfortunate litigation. ( 53 ) BUT, in the circumstances of the case, we make no order as to costs and part with this case with the obscrvallon that even now it may not be too late for wisdom to prevail on either of the parties lo bring about some kind of re-conciliation by which the enjoyment of the property of siddaveerappa situated in Bangalore will not be a thorn or a barbed wire fence separating the father and the daughter in the years to come. --- *** --- .