JUDGMENT 1. - This appeal has been filed against the order of the learned Single Judge dated November 13, 1987 by which he has granted the Probate in respect of the Will Ex. 1 dated May 15, 1984 executed by Maharana Bhagwat Singhji Mcwar. The facts of the case giving rise to this appeal may be summarised thus. 2. On April 10, 1985, the Executors (Respondents) of the Will Ex. 1 moved a petition under Section 273, Indian Succession Act, 1925 (hereinafter called 'the Act') read with Rule 750, Rules of the High Court of Judicature for Rajasthan, 1952 (hereinafter called 'the Rules') for the grant of probate of the said Will with the averments, in short, as follows : Late Maharana Bhagwat Singhji Mewar died on November 1, 1984 at Udaipur leaving behind the said Will. He deposited the same with the Bank of India, Palace, Udaipur in a scaled envelope with the instructions to deliver it to his younger son Maharaj Kumar Arvind Singh (Executor-petitioner-respondent No.1) after his death. It was received by him from the Bank on November 5, 1984. It was the last Will of Maharana Bhagwat Singhji Mewar. It was duly executed by him in presence of the attesting witnesses who appended their signatures at the foot thereof. The petitioners have been appointed as its Executors. On June 4, 1984, late Maharana Bhagwat Singh Ji Mcwar executed and got registered a general power of attorney in favour of Maharaj Kumar Arvind Singh (petitioner No.1) and his daughter Rajkumari Yogeshwari Kumari (not a party in this case) and reference of the said Will is made therein. Original Will, its photostat copy, affidavit of the attesting witness Shri Bhanwar Lal Vyas, Advocate, affidavit of valuation and undertaking were duly enclosed with the application. On August 16, 1985, the elder son of testator, Maharana Mahendra Singh Ji entered his caveat under Rule 77 of the Rules. On August 31, 1985, the widow of the testator, Rajmata Sushila Kumari, also entered her caveat. A number of documents were enclosed with this caveat. Citations were also issued to Rajmata Sushila Kumari, Rajkumari Yogeshwari Kumari, Maharana Mahendra Singh, Maharaj Kumar Raj Singh Dungarpur, Maharaj Samar Singh Dungarpur and Ashwini Kumar Chaturvedi. They have filed their affidavits stating that they have no objection against the grant of probate in respect of the said Will. 3. A number of documents were enclosed with this caveat. Citations were also issued to Rajmata Sushila Kumari, Rajkumari Yogeshwari Kumari, Maharana Mahendra Singh, Maharaj Kumar Raj Singh Dungarpur, Maharaj Samar Singh Dungarpur and Ashwini Kumar Chaturvedi. They have filed their affidavits stating that they have no objection against the grant of probate in respect of the said Will. 3. On August 31, 1985, Maharana Mahendra Singhji filed his reply to the notice of the citation admitting that he is the eldest son of Late Maharana Bhagwat Singhji Mewar, the Executor (petitioner-respondent No.2) A. Subramaniam was in the employment of Maharana Bhagwat Singhji Mcwar for last several years, he was being treated as a member of the family, he was given unrestricted power and was wholly and solely incharge of his affairs and Maharana Bhagwat Singhji died on November 1, 1984 at Udaipur, leaving behind his widow Rajmata Shshila Kumari, two sons, namely, Maharaj Kumar Mahendra Singhji and Maharaj Kumar Arvind Singliji. The remaining averments of the petition have been denied. It has further been averred that during the course of employment Shri A. Subramaniam committed criminal breach of trust and cheated Maharana Bhagwat Singhji Mewar, he made an extra judicial confession in this respect in his own hand writing on November 18, 1978 and mortgaged his residential house in favour of late Maharana Bhagwat Singhji Mewar for the amount embezzled by him. Suit No. 63 of 1983 has been filed by him for partition against Maharana Bhagwat Singhji Mewar and others, an application for appointment of a receiver has also been moved & Shri Bhanwar Lal Vyas Advocate, counsel for Maharana Bhagwat Singhji Mewar, gave an unequivocal undertaking therein on April 23, 1983 that he (Maharana Bhagwat Singh Ji Mewar) will not transfer, sell or mortgage any of the properties belonging to the Hindu Undivided Family till the decision of the suit. The District Judge, Udaipur has also passed an order for maintaining status quo in the said partition suit. As such no Will could be executed and in fact no Will has been executed by Maharana Bhagwat Singhji Mewar. The petitioners are called upon to prove its execution and genuineness. The petitioner A. Subramaniam could not have been appointed as an Executor of the Will. 4. The following issues were framed: 1. Whether the Will Ex. 1 dated 15.5.1984 was duly executed by deceased Shri Bhagwat Singh ? 2. The petitioners are called upon to prove its execution and genuineness. The petitioner A. Subramaniam could not have been appointed as an Executor of the Will. 4. The following issues were framed: 1. Whether the Will Ex. 1 dated 15.5.1984 was duly executed by deceased Shri Bhagwat Singh ? 2. Whether the document dated May 15, 1984 alleged to be Will by the petitioner is not the Will and on the basis of which no probate could be granted? 5. The Executor-petitioners examined Ghanshyam Lal Sharma P.W.1 and Shri Bhanwar Lal Vyas P.W.2 as the attesting witnesses and Bank Manager Shri Roshanlal Nagar P.W.3 in support of their case. The caveator non- petitioners did not produce any witness. They themselves did not come in the witness box. After hearing the learned counsel for the parties, the learned Single Judge allowed the petition and granted probate of the said Will as said above, holding that the document Ex.l is a Will, it is not a trust-deed, it has been executed by Maharana Bhagwat Singhji Mewar after fully understanding it, at that time he was mentally and physically fit and there did not exist any suspicious circumstances surrounding it. 6. Mr. J. Savla, learned counsel for the caveator-appellants, contended that the document Ex.1 is not a Will but it is a trust- deed. He also contended that a Will in respect of properties belonging to Hindu Undivided Family cannot be executed, on this ground the Will Ex.1 is invalid but subsequently he did not press this point in view of Ishardeo Narain Singh v. Kanta Devi, AIR 1954 Supreme Court 280 and Chiranjilal Shrilal Goenka v. Jasjit Singh and ors., 1993(2) JT 341 : [1993(1) H.L.R. 502 (SC)) vide order-sheet dated March 18, 1993. 7. Mr. K. Parsharan Senior advocate, learned counsel for the caveator-appellants, contended that there are several suspicious circumstances surrounding the Will Ex. 1, they go to create a great doubt that the Will Ex. 1 was in fact executed by Maharana Bhagwat Singhji Mewar voluntarily and after fully understanding it. He enumerated the following suspicious circumstances: 1. The Will Ex.1 is not registered and no satisfactory explanation has been put forward as to why it was not got registered by the testator. 2. 1 was in fact executed by Maharana Bhagwat Singhji Mewar voluntarily and after fully understanding it. He enumerated the following suspicious circumstances: 1. The Will Ex.1 is not registered and no satisfactory explanation has been put forward as to why it was not got registered by the testator. 2. The hand written portion appearing at the end of the Will Ex.1 at page 10 is contradictory to the Direction No.2 appearing at its page No.4. 3. There is no material on record to show as to who prepared the draft of the Will and who typed it. 4. The petitioner-respondent No. 2 A. Subramaniam was in the employment of Maharana Bhagwat Singhji Mewar, he misappropriated his money and cheated him, he made extra judicial confession about it in his agreement, paper No. 73-74, and he executed mortgage deed, paper No. 78-81, of his house for the amount misappropriated by him. It is not clear as to why he was appointed by the testator as one of the two Executors of his Will Ex. 1 despite such a conduct. 5. Petitioner-respondent No. 1 Maharaj Kumar Arvind Singhji took active part in the execution of the Will Ex.1, he is the greatest beneficiary and he exercised undue influence upon the testator. 6. It is not clear as to why the Will Ex.1 was deposited with the Bank of India, Udaipur and not with the District Registrar, Udaipur under Section 42, Registration Act. 7. There is no evidence on record to indicate as to why the testator deprived his wife Maharani Sushila Kumari (non-petitioner-appellant No.1) from her share. 8. Non-appearance of the propounders in the witness box casts a serious doubt in the genuineness of the Will Ex.1. 9. Maharaj Kumar Arvind Singhji had already lost the confidence of his father Maharana Bhagwat Singhji Mewar. 10. Reading of the Will Ex.1 by the testator before its execution is itself suspicious. 8. They also contended that no adverse inference can be drawn against the caveator appellants for not producing any evidence and for not coming in the witness box as they were not at all aware of the execution of the Will. Reliance was placed upon H. Venkatachala Iyengar v. B.N. Thimmajamma: AIR 1959 Supreme Court 443, Rani Purnima Debi v. Kumar Khadgendra Narayan Deb, AIR 1962 Supreme Court 567; Krishnaji v. Mohd. Reliance was placed upon H. Venkatachala Iyengar v. B.N. Thimmajamma: AIR 1959 Supreme Court 443, Rani Purnima Debi v. Kumar Khadgendra Narayan Deb, AIR 1962 Supreme Court 567; Krishnaji v. Mohd. Haji Latif, AIR 1968 Supreme Court 1414, Ramachandra v. Champa Bai, AIR 1965 Supreme Court 354, Jaswant Kaur v. Amrit Kaur, AIR 1977 Supreme Court 74 : [1977 H.L.R. 731 (SC) Kalyan Singh v. Smt. Chhoti, AIR 1990 Supreme Court 396, Ram Piari v. Bhagwant, AIR 1990 Supreme Court 1742, Gurbux Singh v. Gurdial Singh, AIR 1927 PC 230 , Martland v. Radha Bai, AIR 1931 Bombay 97, Ramnathpuram Market Committee v. East India Corp. Ltd., AIR 1976 Madras 323, Sarat Kumari Bibi v. Raisakhi Chand Bahadur, AIR 1929 PC 45 , Mst. Biro v. Atma Ram, AIR 1937 PC 101 , Mst. Ramanandi Kaur v. Mst. Kalawati Kaur, AIR 1928 PC 2 and Kanti Lal Rajhu Ram Thakkar v. Director Agricultural Marketing and Rural Finance, AIR 1989 Gujarat 9. 9. In reply, it has been contended by the learned counsel for the petitioner-respondents that the points raised by Mr. J. Savla, learned counsel for the non-petitioner-appellants, were not touched by Shri K. Parasharan Senior Advocate and he relied upon Sukhlal v. Deep Chand, 1954 RLW 373. They further contended that the learned Single Judge has rightly held the document Ex. 1 as a will and has given good reasons in support of his findings. He relied upon Tajo Raj Nath v. Baneshwar Nath, AIR 1962 Assam 106. They also contended that it is well proved from the evidence on record that the testator Maharana Bhagwat Singhji Mewar was in a sound and disposing state of mind when he executed the Will Ex.1, he fully and correctly understood its contents and nature and he voluntarily executed it. They further contended that the aforesaid circumstances pointed out by the learned counsel for the appellants are normal circumstances and are not suspicious. They also contended that the execution of the Will Ex.1, is well proved from the statements of Ghanshyam Lal P.W.1 and Shri Bhanwar Lal Vyas Advocate P.W.2 and it has not been pleaded as to how the testator was not in sound and disposing state of mind when he executed the Will Ex. 1. They also contended that the execution of the Will Ex.1, is well proved from the statements of Ghanshyam Lal P.W.1 and Shri Bhanwar Lal Vyas Advocate P.W.2 and it has not been pleaded as to how the testator was not in sound and disposing state of mind when he executed the Will Ex. 1. They also contended that the Caveator Maharaj Kumar Mahendra Singh has stated in para No. 9 of his affidavit, paper No. 53-63, that the executors obtained the signatures of the testator on the alleged document by playing fraud, exercising undue influence and under intoxication and the alleged Will is a forged document but their necessary particulars have not been given. It was further contended by them that the cavcators themselves have filed a certified copy of the written statement of the testator filed in the partition suit stating that cavcator Maharaj Kumar Mahendra Singhji and Maharani Sushila Kumari had already been given sufficient properties by him (Maharana Bhagwat Singhji Mewar). They also contended that the aforesaid circumstances pointed out by Mr. K. Parasharan Senior Advocate, learned counsel for the appellants, do not go to create any suspicion in the genuineness of the Will Ex.1 or in the physical and mental state of the testator Maharana Bhagwat Singhji Mewar at the time of its execution. They lastly contended that an appeal under Section 299 of the Act lies against an order of a District Judge and not against an order of the High Court. They relied upon Ram Dhan v. Bhanwar Lal, AIR 1985 Rajasthan 185 (FB). 10. It is correct that under Section 299 of the Act Appeal lies against an order passed by a District Judge. There is no provision in the Act providing appeal against an order passed by a High Court. Section 18, Rajasthan High Court Ordinance clearly provides that an appeal lies to the High Court from the judgment of one judge of the High Court. Thus appeal is maintainable. 11. The first question for consideration in this appeal is about the nature of the document Ex.1 Section 2(h) of the Act defines 'Will'. It runs as under: "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death." 12. Thus appeal is maintainable. 11. The first question for consideration in this appeal is about the nature of the document Ex.1 Section 2(h) of the Act defines 'Will'. It runs as under: "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death." 12. Sections 5 and 6, Indian Trust Act, 1852 deal with the trust of immovable property and their creation. They run as under: "5. Trust of immovable properly; Trust of movable properly.- No trust in relation to immovable property is valid unless declared by a non-test- tanmentary instrument in writing signed by the author of the trust or the trustee and registered, or by the Will of the author of the trustor the trustee. No trust in relation to movable property is valid unless declared as aforesaid, or unless the ownership of the property is transferred to the trustee. These rules do not apply where they would operate so as to effectuate a fraud. 6. Creation of trust- Subject to the provisions of Section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust (b) purpose of the trust, (c) the beneficiary, and (d) the trust- property, and (unless the trust is declared by Will or the author of the trust is himself to be the trustee) transfers the trust- property to the trustee." 13. There is nothing in the document Ex.1 to indicate that it was irrevocable. It was ambulatory and revocable during the life time of the testator Maharana Bhagwat Singhji Mewar. The heading of the document Ex.1 is 'Will'. Great reliance was placed on the following clauses/sentences of the document Ex.1 by Mr. J. Savla Advocate in support of his arguments that the documents Ex.1 is a trust-deed: 1. Shivniwas Palace and Shambhu Niwas Palace shall remain with the Trust and arc not alienable. 2. The Trust shall be custodian of the heir-looms. 3. Lakeshore Palace Hotel Pvt. Ltd should always remain a closely knit family concern. 4. Thus gradually and ultimately the Trust becomes the Institution holding the shares of the Lakeshore Palace Hotel Pvt. Ltd., in place of the family. 2. The Trust shall be custodian of the heir-looms. 3. Lakeshore Palace Hotel Pvt. Ltd should always remain a closely knit family concern. 4. Thus gradually and ultimately the Trust becomes the Institution holding the shares of the Lakeshore Palace Hotel Pvt. Ltd., in place of the family. These portions neither indicate nor mean that the Trust came into existence on the day the document Ex.1 was executed. They are to be read in the context in which they appear. The intention of the executant of the document Ex.1 was to create a trust by it but it was to come into existence only after his death. 14. The following portions of the documents Ex.1 also deserve notice here: (a) I, Maharana Bhagwat Singhji Mewar, am making this last Will and testament. (b) All my movable and immovable properties which I may be owning at the time of my demise, of whatever description, I give to and place in a Trust which shall be known as Maharana Mewar Institution Trust (Page 2 para 2) (c) I direct my executors and trustees to pay out of my estate in the first instance for my funeral obsequies and testamentary expenses. I further direct my Executors and Trustees to pay out my Estate in the first instance, duty, if any, estate duty and other taxes, debts and other liabilities (Page 4 para 1). (d) Shivniwas Palace and Shambhu Niwas Palace are my self acquired properties received by a Royal Grant from my late father in the early forties. The same shall remain with the Trust and are non-alienable (Page 4 para 3). (e) Maharani Sushila Kumari will continue to enjoy the right of residence in the upper portion of this Palace. The right of residence that I am giving and hereby give to the Maharani is personal to her alone............To this grant of residence, I add a proviso that all this right will be available to Maharani Sushila Kumari only if she does not lay any contest to this document as my last Will or plead the property as belonging to any joint family (Page 5). (f) Out of my jewellery and ornaments, the pearl and Rudraksha Necklace should be retained with the Trustees. The rest of my jewellery, ornaments and silver articles are to be distributed equally between Princess Yogeshwari Kumari and Maharaj Kumar Arvind Singh (Page 6 para 4(a)). (f) Out of my jewellery and ornaments, the pearl and Rudraksha Necklace should be retained with the Trustees. The rest of my jewellery, ornaments and silver articles are to be distributed equally between Princess Yogeshwari Kumari and Maharaj Kumar Arvind Singh (Page 6 para 4(a)). (g) Out of my Equity Shares of various Companies , I bequeath the following shares to the members of my family. (h) I also wish to place on record that just as other members of the family, Maharani Sushila Kumari has more than sufficient assets with her to maintain herself for the rest of her life commensurate with her status. Most of these assets, I have given to her from time to time. 1, therefore, do not consider it necessary to make any further provision in this Will for her (page 7). (i) If I take leave from this world before the final decision of the suit, then I would like to and hereby do give directions for the defence/ conduct thereof after me (Page 8). (j) If within one month of the filing of this Will in the court by my legatees or my Executors, Maharaj Kumar Mahendra Singh accepts this Will as my last Will, then my legatees/Executors Will not be permitted to continue the counter-claim that I have preferred against Maharaj Kumar Mahendra Singh (Page 8). (k) In case Maharaj Kumar Mahendra Singh does not accept the genuineness of this document as my last Will and chooses to contest the same directly or indirectly, the concession which I am giving in the preceding paragraphs will not be available to him (Page 8). (l) I appoint Maharaj Kumar Arvind Singh, my son, and Shri A. Subramaniam, as the Executors of this Will of mine (Page 9). (m) These Executors shall take charge of my properties movable or immovable on my death, meet my funeral expenses, pay of all my liabilities and then carry out the directions as contained in this Will immediately commencing on my death (Page 9). (n) As I see, there is absolutely no possibility of the suit for partition filed by Maharaj Kumar Mahendra Singh succeeding. However, in the remote possibility of its doing so, I do not want my Executors to hear an argument that this Will of mine does not accord with section 30 of the Hindu Succession Act. (n) As I see, there is absolutely no possibility of the suit for partition filed by Maharaj Kumar Mahendra Singh succeeding. However, in the remote possibility of its doing so, I do not want my Executors to hear an argument that this Will of mine does not accord with section 30 of the Hindu Succession Act. For this reason I am putting this clause down and stating that this Will firstly debars Maharaj Kumar Mahendra Singh and Maharani Sushila Kumari from receiving or inheriting any part of my,estate. (Page 9). (o) I have signed this Will in the presence of two attesting witnesses who have also signed in my presence. (Page 10). These portions of the documents Ex. 1 leave no manner of doubt that it is a Will. The document is to be read as a whole. A Trust was also created by it and it was to come and came into existence only after the death of the testator Maharana Bhagwat Singhji Mewar and not prior to it. It has been observed in Pyare Lal v. Rameshwar Lal, AIR 1963 Supreme Court 1703 para 5, as follows : "It must be conceded that there is some conflict of ideas in the document; but in constructing a Will executed in 1897 the Court should try its best to get at the intention of the testator by reading the Will as a whole. We must accept, if possible , such construction as would give to every expression some effect rather than which would render any of the expression imperative. Another rule which may also be useful in the context of the present Will is that the words occurring more than once in a Will shall be presumed to be used always in the same sense unless a contrary intention appears from the Will; see Section 86 of the Indian succession Act. So too, all parts of a Will should be construed in relation to each other; vide Section 84 of the said Act. It is also a well recognised rule of construction that the Court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like: see Section 75 of the said Act." 15. It is also a well recognised rule of construction that the Court will look at the circumstances under which the testator makes his Will, such as the state of his property, of his family and the like: see Section 75 of the said Act." 15. The next question is regarding the execution of the Will Ex.1 Section 59 of the Act enshrines that every person of sound mind may dispose of his property by Will. Its Explanation IV provides that no person can make a Will while he is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing. Its illustration II runs as under : "(ii) A, executes an instrument purporting to be his Will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid Will." Section 61 says that a will or any part of a will, the making of which has been caused by fraud or coercion, or by such importunity as takes away the free agency of the testator, is void. It has been observed in H. Venkatachalla Ayanger v. B.N. Thimmajamma, AIR 1959 Supreme Court 443 at page 451 para 19, that the propounder would be called upon to show by satisfactory evidence that the testator at the relevant time was in sound and disposing state of mind, he understood the nature and effect of the dispositions and he put his signatures on the document on his own free Will. Its paras 20, 21 and 22 discuss the nature and effect of the suspicious circumstances surrounding a Will. 16. The attesting witness Ghanshyamlal Sharma P.W. 1, 78 years, has deposed that he was knowing Maharana Bhagwat Singhji Mewar for last 50 years, he was in his employment from 1978 to 1984. Late Maharana asked him and Mr. Bhanwar Lal Vyas Advocate P.W. 2 to attest his Will Ex. 1, Late Maharana himself read over each page carefully in their presence, he signed each page of it, initialled the corrections, thereafter, he asked him and Shri Bhanwar Lal Vyas Advocate P.W. 2 to attest it and, thereon, he put his signatures on it as an attesting witness. Bhanwar Lal Vyas Advocate P.W. 2 to attest his Will Ex. 1, Late Maharana himself read over each page carefully in their presence, he signed each page of it, initialled the corrections, thereafter, he asked him and Shri Bhanwar Lal Vyas Advocate P.W. 2 to attest it and, thereon, he put his signatures on it as an attesting witness. He has further deposed that Maharana was in full sense when he executed the Will and it was executed out of his free Will. In the cross- examination, he disclosed that he was a man of confidence of late Maharana, neither Maharaja Kumar Arvind Singhji nor Mr. A Subramaniam was present at that time, Shri Bhanwarlal Vyas Advocate P.W. 2 was the legal adviser to Maharana Bhagwat Singhji during the period of his service and Maharana Bhagwat Singhji was quite hale and hearty at the time of execution of the Will. 17. Shri Bhanwar Lal Vyas Advocate P.W. 2 has deposed that he is practicing as an Advocate for last 45 years, he was the legal adviser to late Maharana Bhagwat Singhji Mewar, he was called by Maharana to attest his Will, he went to Shambhu Niwas Palace, Udaipur on May 15, 1984 at 11 A.M. to attest the Will, Shri Ghanshyam Lal Sharma P.W. 1 also came there, Maharana Bhagwat Singhji read the Will Ex. 1, made corrections in it and signed it in [heir presence, thereafter, he asked him to attest it and then Ghanshyam Lal Sharma P.W. 1 was asked to attest it. Accordingly, he put his signature to the last page of the Will Ex. 1. Shri Vyas has further deposed that at the time of the execution of the Will, Maharana Bhagwat Singhji was perfectly healthy, he was of sound mind and he executed it out of his own free Will. He also stated in his examination-in-chief that late Maharana also executed a power of attorney Ex. 2 in favour of his daughter Rajkumari Yogeshwari Kumari and his younger son Shri Arvind Singhji in his presence, he has also attested it and he identified him before the Sub-Registrar, Udaipur when it was registered. In the cross-examination, he disclosed that Maharana Bhagwat Singhji himself prepared the draft of the General Power of Attorney Ex. 2, after the execution of the Will Ex. In the cross-examination, he disclosed that Maharana Bhagwat Singhji himself prepared the draft of the General Power of Attorney Ex. 2, after the execution of the Will Ex. 1, it remained with the Maharana, there was a branch of the Bank of India in a part of the Shambu Niwas Palace and neither Maharaj Kumar Arvind Singhji nor Mr. A. Subramaniam was present at the time of the execution of the Will. He denied the suggestion that Maharana Bhagwat Singhji was very sore and disturbed and his mind was upset as his elder son had filed a suit for partition against him. The witness further says that Maharana Bhagwat Singhji told him that he was not at all disturbed by the filing of the suit and he never found Maharana Bhagwat Singhji depressed and living in state of recluse during the pendency of the partition suit. He also denied the suggestion that Maharaj Kumar Arvind Singhji was dominating Maharana Bhagwat Singhji and has deposed that as a matter of fact Maharana Bhagwat Singhji dominating. In the cross-examination, he has disclosed that he himself did not read the Will and he overheard some portions of it when Maharana was reading it. He also disclosed that on the last page of the Will note was given by the Maharana Bhagwat Singhji in his own handwriting in his presence and he used to meet him (testator) almost daily when he (witness) was at Udaipur. 18. Normally known and reliable persons are called to attest a Will. The testator also did it so. Nothing damaging could be elicited out in the lengthy cross-examination of these two attesting witnesses. No case of fraud, coercion, undue influence or intoxication has been made out. It is stated in para No. 3 of the affidavit, paper No. 136-151, of Rajmata Sushila Kumari Appellant No. 1 that Maharana Bhagwat Singhji suddenly died on November 3, 1984 due to cardiac failure. The appellant No. 1 Rajmata Sushila Kumari has filed a copy of the letter dated December 31, 1984 (page 165) along with her reply, papers No. 133-135. It is stated in this letter that after the execution of the will Maharana Bhagwat Singhji Mewar went to U.S.A. and England. The appellant No. 1 Rajmata Sushila Kumari has filed a copy of the letter dated December 31, 1984 (page 165) along with her reply, papers No. 133-135. It is stated in this letter that after the execution of the will Maharana Bhagwat Singhji Mewar went to U.S.A. and England. They confirm the statements of Shri Ghanshyam Lal P.W. 1 and Shri Bhanwarlal P.W. 2 that Maharana Bhagat Singhji was hale and hearty and was of sound mind at the time of the execution of the Will Ex. 1. If it would not have been so, he could not have corrected the Will under his initials and given the note at its end in his own handwriting. 19. It is proved from statements of Ghanshyam Lal P.W. 1 and Bhanwarlal Vyas Advocate P.W. 2 that the testator Maharana Bhagwat Singhji Mewar executed General Power of Attorney Ex. 2 in favour of Rajkumari Yogeshwari Kumari and Maharaj Kumar Arvind Singhji and it was registered on June 4, 1984. It has a reference of the said document Ex. 1 dated May 15, 1984 as a Will. This General Power of Attorney Ex. 2 has not at all been challenged in the memo of appeal, running in 30 pages. 20. The learned Single Judge has observed in his judgment at page 13 (10th to 14th line) "At the time of arguments in the matter, the fact that the Will contains the signatures of late Maharaja Bhagwat Singh, has not been disputed." and at page 25 (4th to 9th line) "As already stated above, the fact that the Will bears the signatures of late Maharana Bhagwat Singhji has not been disputed before me at the time of arguments....." These observations made in the judgment have neither been challenged in the memo of appeal nor during the arguments. They have to be believed. ( AIR 1982 SC 1249 ). 21. There is no force in the contention that no counter affidavit to the affidavit filed in support of the caveat was filed and it means that there was no written statement of the propounders. In view of the provisions of Section 295 of the Act, the propounders were plaintiffs and caveator's were defendants. The appellant Maharana Mahendra Singhji himself states in para No. 2 of his application, papers No. 197-198, dated November 21, 1985. "2. In view of the provisions of Section 295 of the Act, the propounders were plaintiffs and caveator's were defendants. The appellant Maharana Mahendra Singhji himself states in para No. 2 of his application, papers No. 197-198, dated November 21, 1985. "2. That the probate being contested and this being a contested case, under Rule 781 of the Rajasthan High Court Rules, the proceedings have become a suit and the petitioner will be plaintiff and the Caveator's will be treated as Defendants." 22. Now, we come to the main question whether the Will Ex. 1 is rendered a suspicious document by the circumstances enumerated in para 7 supra. These circumstances are taken ad seriatim.FIRST 23. It is correct that the Will Ex. 1 could be registered under Section 41, Registration Act. Absence of registration is not a suspicious circumstances. It has been observed in Ishwardas Narain Singh v.Kanta Devi, AIR 1954 Supreme Court 280 para 4, as follows : "The High Court has relied on the fact that the Will was not registered or deposited with the District Registrar. There is nothing in law which requires the registration of a Will and Wills are in a majority of cases not registered at all. To draw any inference against the genuineness of the Will on the ground of the non-registration appears to us to be wholly unwarranted." In case of its registration, the caveator-appellants might have known and would have created difficulties during the life- time of the testator. The testator Maharana Mahendra Singh had already filed partition suit against the testator and others.SECOND 24. It is correct that as per direction No. 2 appearing at page No. 4 of the Will Ex. 1, the testator directed that estate duty, taxes, debts and other liabilities will be paid by the executors and trustees from his estate i.e. cash in banks in his name, cash due to him, cash in other movable properties and shares in Indian Companies which were to go to Maharana Mewar Institution Trust vide item 'B' (7) & (9) (Page 3.) According to the Note given in the end of the Will Ex. 1 estate duty was to be paid pro-rata by each beneficiary, namely, Arvind Singh and Yogeshwari Kumari. This inconsistency is not of such a nature that may go to create a suspicion in the genuineness of the Will Ex. 1 estate duty was to be paid pro-rata by each beneficiary, namely, Arvind Singh and Yogeshwari Kumari. This inconsistency is not of such a nature that may go to create a suspicion in the genuineness of the Will Ex. I or sound disposing mind of the testator. On the contrary, this 'Note' is in his own handwriting and it goes to remove all suspicions or inconsistencies put forward by the appellants. In view of Section 88 of the Act, his note will prevail and not the direction No. 2.THIRD 25. It is also correct that there is no evidence on record to show as to who prepared the draft of the Will Ex. 1 and who typed it. No question was put to any attesting witness on this point. It has not been laid down in H. Venkatachala lyengar v. B.N. Thimmajamma, AIR 1959 Supreme Court 443, as an absolute principle of law that if the draft of the Will is not produced, it must be held to be fictitious and not genuine. Will Ex. 1 is not a holograph but type-written. This is not a suspicious circumstance. Para 30 of the memorandum of special appeal itself states as follows : "30. Late Maharana Bhagwat Singhji appears from proof available on record as astute businessman who could well manage his vast estate and a good number of trusts founded and companies floated by him." The testator was being represented by Shri Arun Mohan Advocate, New Delhi in the partition suit and his name finds mention in the Will Ex. 1 vide para 2(c) of caveator's application dated April 10, 1987 papers No. 266-269. He could have easily got the draft of his Will prepared and got typed it. Under the facts and circumstances of the case, absence of evidence on the point does not go to create any suspicion in the genuineness of the Will Ex. 1 and sound disposing power of the testator. He was already in touch with good lawyers.FOURTH 26. Admittedly, the respondent No. 2 A. Subramaniam has been appointed as one of the Executors of the Will Ex.1. Great reliance was placed on the agreement dated 18.11.78, papers No. 73-74, containing confession about the misappropriation of the money by him belonging to the Mewar State and the mortgage-deed dated 27.11.78, paper No. 73-81, which was subsequently executed by him to recoup the loss. Great reliance was placed on the agreement dated 18.11.78, papers No. 73-74, containing confession about the misappropriation of the money by him belonging to the Mewar State and the mortgage-deed dated 27.11.78, paper No. 73-81, which was subsequently executed by him to recoup the loss. It was contended that in view of this character of A. Subramaniam the testator would not have appointed him as one of the executors of his Will and this fact goes to show that Will was not voluntarily executed by him. There is no great force in this contention. Firstly, the agreement and mortgage deed have not been proved. Secondly, the testator Maharana Bhagwat Singhji had stated in para No. 25 of his written statement dated July 13, 1983, papers No. 82 to 106, about A. Subramaniam as follows:- "Shri Subramaniam has been a faithful employee over the years. He was only a Company Secretary of the 'Lake Palace Hotels and Motels Pvt. Ltd.' while the plaintiff (Maharaj Kumar Mahendra Singh) was a director. Shri Subramaniam was paid little salary while the plaintiff got more. The plaintiff also enjoyed the privileges of being a Director and also being the son of the answering defendant, but the plaintiff brought the company down to a grinding halt and it was people like Subramaniam by dint of whose honesty and labour it surfaced again." This copy of the written statement has been filed by the caveator himself along with his caveat. It is clear from these averments made in his written statement that Maharana Bhagwat Singhji Mcwar was greatly impressed with the faithfulness and honesty of A. Subramaniam. As such his appointment as one of the Executors of the Will Ex. 1 is not a suspicious circumstance.FIFTH 27. There is no material on record to indicate that the Executors and propounders of the Will Ex. 1 took prominent part in its execution. Maharaj Kumar Arvind Singhji and A. Subramaniam were not even present when the Will Ex. 1 was executed. Mere knowledge of the deposit of the Will Ex. 1 with the Bank does not lead to conclusion that Maharaj Kumar Arvind Singhji took active part in its execution. If Maharaj Kumar Arvind Singhji would have influenced his father Maharana Bhagwat Singhji he would have obtained a Will in his favour in respect of all the properties belonging to the testator. 1 with the Bank does not lead to conclusion that Maharaj Kumar Arvind Singhji took active part in its execution. If Maharaj Kumar Arvind Singhji would have influenced his father Maharana Bhagwat Singhji he would have obtained a Will in his favour in respect of all the properties belonging to the testator. He would not have allowed the formation of Maharana Mewar Institution Trust. It is correct that the petitioner - respondent No. 1 Maharaj Kumar Arvind Singhji is the greatest beneficiary of the Will Ex. 1. Shares, jewellery, ornaments and silver articles have been given to Maharaj Kumar Arvind Singh and Princess Yogeshwari Kumari and nothing there form has been given to Maharani Sushila Kumari. It is also correct that the income of the Maharana Mewar Institution Trust shall be utilised by and between (1) Princess Yogcshwari Kumari, (2) Maharaj Kumar Arvind Singh and his family (3) Rani Raghuraj Kumari (sister of testator) and (4) Maharani Anna Bela Singh and not by Rajmata Sushila Kumari and Maharana Mahendra Singhji. From these facts, it cannot be said that he exercised undue influence upon his father Maharana Bhagwat Singhji Mewar for executing the Will Ex. 1. It has been stated in para No. 6 of the application. Papers No. 42-51, dated August 16, 1985 that the signatures of the testator were obtained on the Will Ex. 1 by undue influence and in Para No. 9 it is stated that it is quite clear from the reading of the Will that the testator was under great pressure and undue influence of certain persons who were on inimical terms with the legal wife and son of the testator (caveator) and wanted to gain undue advantage for themselves and they had obtained the signatures of the testator on the alleged document Ex. 1 by playing fraud, exercising undue influence and under intoxication. Necessary particulars of the fraud, undue influence and intoxication have not been given as required under Order 6 Rule 4, Civil Procedure Code Similar averments have been made by the caveator in his affidavit, paper No. 53-63. All the paragraphs of this affidavit have been verified on the basis of his own personal knowledge. Despite it, the caveator Maharana Mahendra Singh has not come in the witness-box in support of his caveat. All the paragraphs of this affidavit have been verified on the basis of his own personal knowledge. Despite it, the caveator Maharana Mahendra Singh has not come in the witness-box in support of his caveat. It is stated in para No. 14 of the said written statement that the plaintiff (Mahendra Singh) has been a failure in life and it is as a vent for that frustration in which the origin of the present suit lies. It is also stated in para No. 24 of the written statement that the plaintiff has mismanaged his life and has done nothing useful and frittered away the money entrusted to him. Schedule of the written statement (pages 82-106) contains the details of the properties given to the caveator-appellant No. 2. It is further averred in para No. 25 that false insinuations are made and character-assassination is indulged in only as a vent to frustration of an unsuccessful man in life. At the risk of repetition, it may be mentioned here that if the petitioner - respondent No. 1 would have exercised undue influence over the testator Maharana Bhagwat Singhji, the said note would not have been given in the end of the Will Ex. 1 requiring the prorata payment of estate duty by the beneficiaries. A testator has under the law freedom to hire his property to whomsoever he likes. What strikes the Court as an eccentric or an unjust or an unnatural disposition can certainly be taken into consideration on the main question of finding out whether the testator was acting as a free agent and with a sound disposing and understanding. But once it is established that the testator was free and had a sound disposing mind, it is no longer the duty of the court to go further to inject its own ethics of what is or is not a moral or fair disposition according to its own standard. It has been observed in Indubala Bose v. Manindra Chandra, AIR 1982 Supreme Court 133 para 7, as follows : "If the propounder succeeds in resolving the suspicious circumstances the court would grant probate, even if the Will might he unnatural and might cut off wholly or in part near relations. It has been observed in Indubala Bose v. Manindra Chandra, AIR 1982 Supreme Court 133 para 7, as follows : "If the propounder succeeds in resolving the suspicious circumstances the court would grant probate, even if the Will might he unnatural and might cut off wholly or in part near relations. (See AIR 1964 Supreme Court 529, 1959 Suppl (1) SCR 426 : ( AIR 1959 SC 443 ) and (1962) 3 SCR 195 : ,( AIR 1962 SC 567 )." SIXTH 28. It is correct that Will Ex. 1 was deposited with the Bank of India, Palace Branch, Udaipur and not with the District Registrar, Udaipur under Section 42, Registration Act. It is clear from the statement of Manager of. the Bank, Roshal Lal Nagar P.W. 3 that a branch of Bank of India was in the Palace of the testator. The witness has further deposed that on the call of Maharana Bhagwat Singh he went to the Palace and the Maharana handed over to him a scaled envelope with the direction that it may be handed over to Maharaj Kumar Arvind Kumar Singhji after his death under receipt. He has further deposed that he issued receipt Ex. PW 3/1, kept the scaled cover in safe custody and entry was made in the Safe Custody Register Ex. Pw 3/4. He has also deposed that after the death of Maharana Bhagwat Singhji he delivered the sealed envelope to Maharaj Kumar Arvind Kumar Singhji as per instructions of Maharana Bhagwat Singhji, after obtaining receipt Ex. PW3/3 from him. There is no good reason to disbelieve his testimony. Perhaps for the reason that Bank was in his Palace, he deposited the Will in the Bank of India and not with the District Registrar, Udaipur under Section 42 of the Registration Act.SEVENTH 29. It is also correct that right of residence only has been given to Rajmata Sushila Kumari to reside in the upper portion of the Palace provided she does not lay any contest to the Will or plead property as belonging to joint family. (a) Para No. 2 of page 7 of the Will runs as under : "I also wish to place on record that just as other members of the family Maharani Sushila Kumari has more than sufficient assets with her to maintain herself for the rest of her life commensurate with her status. (a) Para No. 2 of page 7 of the Will runs as under : "I also wish to place on record that just as other members of the family Maharani Sushila Kumari has more than sufficient assets with her to maintain herself for the rest of her life commensurate with her status. Most of the these assets, I have given her from time to time. I, therefore, do not consider it necessary to make any further provision in this Will for her. What is owned by her and standing in her name is her property and she may deal with them as she likes. (b) It is stated in para 29 of the written-statement of the testator, papers No. 82-106, that the jewellery was always looked after and managed by Maharani Sushila Kumari, the answering defendant (testator) has no jewellery in his possession except a few personal wearing items and whatever jewellery is remaining or not remaining must be with the second defendant Maharani Sushila Kumari. (c) Along with his caveat, the appellant No. 2 Maharana Mahendra Singh has filed a photostat copy of the trust deed, papers No. 109 to 126, of the Chetak Trust, Udaipur executed and got registered by Maharana Bhagwat Singhji in the year 1975. Declaration of this Trust. (page 112 para 1) shows Mrs. Anna Bela Singh (Maharani) as his wife. This trust has reference in para No. 14 (pages 50-51) of the caveat of the appellant No. 2. This Will Ex. 1 gives a right of residence to Mrs. Anna Bela Singh in his flat situated on the fifth floor of Mewar Building, Bombay, Rajmata Sushila Kumari admits in para No. 4(b) of her affidavit (papers No. 130-151, at page 141) that the testator used to reside in the lower story of the Shambhu Niwas Palace and she is living in its upper storey. (d) The testator Maharani Bhagwat Singh ji scored off the words 'My Wife' appearing in the beginning of page 5 after the words 'Maharani Sushila Kumari' and added 'Maharani' after the words 'Ms Anna Bela Singh' at page......of the Will Ex.1, under his initials. (d) The testator Maharani Bhagwat Singh ji scored off the words 'My Wife' appearing in the beginning of page 5 after the words 'Maharani Sushila Kumari' and added 'Maharani' after the words 'Ms Anna Bela Singh' at page......of the Will Ex.1, under his initials. It has been observed in Motibai Hormusjee's case, AIR 1924 PC 28 at page 33, as follows : "A man may act foolishly and even heartlessly; if he acts with full comprehension of what he is doing the Court will not interfere with the exercise of his volition." It has been observed in Surendra Pal v. Dr.(Mrs.) Saraswati Arora, AIR 1974 Supreme Court 1999 para 9 as follows:- "It is not for us to fathom the motivation of a man. His actions and reactions are unpredictable as they depend upon so many circumstances. There is, however, always some dominant and impelling circumstances which motivates a man's action though in some cases even a trivial and trifling cause impels him to act in a particular way which a majority of others may not do. At times psychological factors and the frame of mind in which he is, may determine his actions." Reference of Ajit Chandra Majumdar v. Akhil Chandra Majumdar, AIR 1960 Calcutta 551, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 Supreme Court 529 and Satya Pal Gopal Das v. Smt. Panchubala Dasi, AIR 1985 Supreme Court 500 may also be made here.EIGHTH 30. As already observed above, the propounders were not present at the time of the execution of the Will. There is also nothing on the record to indicate that any of the two propounders took any part in the preparation of the draft of the Will or its execution. As such it was not necessary for them to come in the witness-box. In such circumstances, their non-appearance in the witness-box is not a suspicious circumstance.NINTH 31. Ghanshyam Lal Sharma P.W. I (Page 329) has disclosed in his cross-examination that Maharana Bhagwat Singhji did not attend the marriage of his younger son Maharana Arvind Singh and all arrangements of his marriage were made by his elder brother Maharana Mahendra Singhji (appellant). On the basis of this statement, it was contended that Maharana Bhagwat Singhji could not have left a Will in favour of Maharana Arvind Singhji. This contention had no great force. On the basis of this statement, it was contended that Maharana Bhagwat Singhji could not have left a Will in favour of Maharana Arvind Singhji. This contention had no great force. It is quite probable that Maharana Bhagwat Singhji might not have attended the marriage of Maharaj Kumar Arvind Singhji for some reason. There is nothing on record to indicate that this displeasure continued till the execution of the Will Ex. 1. It is also correct that Maharaj Kumar Arvind Singhji supported his elder brother Maharana Mahendar Singhji (plaintiff) in the partition suit on the point that the suit properties belonged to the Hindu Undivided Family and not to the Maharana Bhagwat Singhji individually. It may be mentioned here that Maharana Bhagwat Singhji himself made declarations (papers No. 66 to 70 and 127 to 130) on 1.4.69, 18.4.70, 21.1.71 and 1.12.72 to this effect. Copies of these declarations have been filed by the caveator appellants themselves. In his written statement (papers No. 158-159), has also averred as follows :Para No. 1. ".........However whatever Trusts have been created or the properties sold/transferred to the companies etc. this defendant does not wish to challenge those transfers and vestings and would submit that the matter should not be re-opened. What continues to be in the hands of defendant No. 1 is joint Hindu Family property with all its characteristics." Para No. 2. "This defendant takes strong objection to the various accusations against defendant No. 1 by the plaintiff. All those allegations and accusations are incorrect and denied. Defendant No. 1 has wilfully done nothing wrong and in any case it does not behove dependants of such illustrious house to make such accusations. The Court may pass appropriate orders." Para No. 3. "However, if the first defendant wants to create any further trusts for public or charitable or even for the benefit of the family or old servants, etc., he may do so and this defendant has not only no objection but would be willing to give reasonable portion of his interest also to such trust. This defendant would not like to do anything which will come in the way of discharge of moral and social responsibility of the family to the people of Mewar." In view of these facts and circumstances, it cannot be said that Maharana Arvind Singhji lost confidence of his father Maharana Bhagwal Singhji. This defendant would not like to do anything which will come in the way of discharge of moral and social responsibility of the family to the people of Mewar." In view of these facts and circumstances, it cannot be said that Maharana Arvind Singhji lost confidence of his father Maharana Bhagwal Singhji. If it would have been so, he would not have been the greatest beneficiary under the Will Ex. 1 and he would not have been appointed as one of the two Executors.TENTH 32. Both the attesting witnesses have deposed that the testator read the Will Ex. 1 in their presence, thereafter, he signed it and then they attested it on the testator's request. No question was put to them in the cross- examination as to why the testator read the Will Ex. 1 in their presence. Reading of Will Ex. 1 by the testator is not a circumstance which may go to create any suspicion in it. On the contrary, this action on his part shows that he was in a position to read and understand it. 33. Facts and circumstances of all the cases relied upon by the learned counsel for the appellants are quite different and distinguishable. In Sarat Kumari Bibi v. Rai Sakhi Chand Bahadur, AIR 1929 PC 145, the testator was at a different place at the time of execution of the Will, he was seriously ill, Will was not registered at the local registration office, the Will was not produced and probate was not applied for. In Mst. Ramanandi Kaur v. Mst. Kalawati Kaur, AIR 1928 PC 2 , the writer of the Will was given substantial benefit under it and para 12 of the Will was missing in its draft. In Mst. Biro v. Atma Ram, AIR 1937 PC 101 , the Will was produced after 22 years of its execution despite the fact that there were several occasions to produce it. In the instant case, the testator died on November 3, 1984, the Will Ex. 1 was received from the Bank of India, Palace Branch, Udaipur on November 5, 1984 and its copy was filed in the said partition suit No. 63/83 pending in the court of the District Judge, Udaipur on November 6, 1984 vide application dated November 6, 1984, paper No. 302. 1 was received from the Bank of India, Palace Branch, Udaipur on November 5, 1984 and its copy was filed in the said partition suit No. 63/83 pending in the court of the District Judge, Udaipur on November 6, 1984 vide application dated November 6, 1984, paper No. 302. In H. Venkatachalla v. B.N. Thimmajamma, AIR 1959 Supreme Court 443, the propounders took prominent part in the execution of the Will, it conferred substantial benefits on them and power of attorney was taken that very day. In Purnima Devi v. Khangendra Narain, AIR 1962 Supreme Court 567, the propounder took active part in the execution of the Will, he was the sole beneficiary, the signatures of the testator were unusual, he was in the habit of signing blank papers, application for registration on commission was given by the agent, Sub Registrar sent his clerk to execute the commission and there was nothing on the record to show that the Will was read over to the testator before he executed it. In Rama Chandra Rambux v. Champa Bai, AIR 1965 Supreme Court 354, Sita Bai came in possession of the testator's property after his death, Will was not brought to light immediately after the death and Sita Bai was allowed to continue in possession of the properties of the testator. In Jaswant Kaur v. Amrit Kaur, AIR 1977 Supreme Court 74, there was no reference of the Will in the written statement, it came into light after 12 years of its execution and the explanation of the defendant was that he happened to see it while going through the papers of the testator. In Kalyan Singh v. Smt. Chhoti, AIR 1990 Supreme Court 396, the Will was not produced in the court or any other authority despite the fact that there were several occasions to do so and no provision was made in it for the lestor's wife. In Ram, Piari v. Bhagwant, AIR 1990) SC 1742, the testator died the next day of the execution of the Will, he put his thumb impression though he used to put his signatures, professional scribe was brought by legatee's father, he (scribe) found the testator covered with quilt, he had no talk with hint about his health and there were other suspicious circumstances. There can be no dispute with the principle laid down in Gopal Singhji v. Mohd. There can be no dispute with the principle laid down in Gopal Singhji v. Mohd. Hari Latif, AIR 1968 Supreme Court 1413 and Gurbuksh Singh v. Gurdial Singh, AIR 1927 PC 230 that the party in possession of best evidence which can throw light upon the issues in controversy should produce it irrespective of the fact that the nus to prove does not lie upon him. There is nothing on the record to indicate that the executor-respondents were in possession of the draft of the Will. As such Rio adverse inference can be drawn against them on account of its non-production. It is correct that it has been hold in Martland v. Radha Bai, AIR 1931 Bombay 97 and Ramathpuram Marketing Corporation v. E.I. Corporation, AIR 1976 Madras 323 that it is bounden duty of a party personally knowing the facts and circumstances to give statement on his own behalf and to submit himself to cross- examination and his non-appearance as a witness would be the strongest possible circumstance which Will go to discredit the truth of his case. It is correct that the executor-respondents have not come in the witness box. It is clear from the petition moved by them under Section 273 of the act that they were neither the attesting witnesses of the Will Ex. 1 nor it was executed in their presence. Affidavit of the attesting witness Shri Bhanwar Lal Vyas Advocate was enclosed with it. As already observed above, there is nothing on the record to indicate that any of the executors P>took any part in the preparation of the draft of the Will or in its execution. As such no adverse inference could be drawn against them if they did not appear in the witness box. It may be mentioned here that the caveator Maharana Mahendra Singhji has verified all the 14 contents of his application, papers 53-68, moved for permission to enter caveat on the basis of his knowledge. Despite it, he has not appeared in the witness box. As such this ruling goes against him and not against the executor-respondents. 34. The execution of the Will Ex. 1 is well proved from the sworn testimony of Ghanshyam Lal Sharma P.W. 1 and Bhanwar Lal Vyas Advocate P.W. 2 which could not be assailed on any good ground. The Will Ex. 1 finds reference in the General Power of Attorney Ex. 34. The execution of the Will Ex. 1 is well proved from the sworn testimony of Ghanshyam Lal Sharma P.W. 1 and Bhanwar Lal Vyas Advocate P.W. 2 which could not be assailed on any good ground. The Will Ex. 1 finds reference in the General Power of Attorney Ex. 2 executed by the testator Maharana Bhagwat Singhji after about a couple of weeks of the execution of the Will Ex. 1. At the risk of repetition, it may again be mentioned that the execution of the Will Ex. 1 by Maharana Bhagwat Singhji was not challenged before the learned Single Judge. 35. Various suspicious circumstances pointed out by the appellants do not have the effect of dislodging the positive evidence adduced in support of the truth and validity of the Will. In Chhote Narain Singh v. Mst. Ratan Kaur, (1895) 22 Indian Appeals 12, Privy Council observed as follows : "The theory of improbability remains to be considered; and the observation which their Lordships have to make is, that, in order to prevail against such evidence as has been adduced by the respondent in the case, the improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, the impossibility............." Thus there is no substance in the appeal. 36. Accordingly, the appeal is dismissed with costs.Appeal dismissed. *******