A.D. MANE, J. :---This second appeal is preferred by the original defendant No. 1 and legal heirs of the defendant No. 3 in Regular Civil Suit No. 14 of 1976 filed by the respondent No. 3 and 4 for partition and separate possession of their shares in the property originally possessed by one Deorao. By this appeal, they challenged the validity, legality or propriety of the judgment and decree passed by the lower Appellate Court in Regular Civil Appeal No. 252 of 1984 preferred by the defendant No. 2 against the judgment and order dismissing the plaintiff's suit for partition and separate possession of their shares. 2.There is no dispute that on the death of Deorao, his widow Laxmibai alias Malanbai possessed the property as the sole heir. Malanbai got two daughters namely,; Kausalayabai and Krishnabai. Plaintiffs No. 1 and 2 are the daughters of Kausalayabai, whereas, defendants No. 1 and 2 are the daughters of Krishnabai. Defendant No. 3 is the son of defendant No. 1 Sharayu. Laxmibai died in the year 1962. 3.On the death of Laxmibai, the plaintiffs being the daughters of Kausalayabai filed suit for partition and separate possession. The suit was contested by defendant No. 3 Anilkumar Yadavrao Barde by filing his written statement at exhibit 19. That written statement was adopted by the defendants No. 1 and 2. It is the contention of the defendant No. 3 that the suit property was bequeathed by Laxmibai in his favour vide the registered will-deed dated 5-6-1962. Therefore, he denied the rights of the plaintiffs to claim partition and separate possession of their respective shares. 4.The learned trial Judge upheld the validity of the will and dismissed the plaintiffs' suit by the judgment and decree dated 31-10-1983. That judgment and decree was questioned in appeal on behalf of the defendant No. 2 in Regular Civil Appeal No. 252 of 1984. 4.The learned trial Judge upheld the validity of the will and dismissed the plaintiffs' suit by the judgment and decree dated 31-10-1983. That judgment and decree was questioned in appeal on behalf of the defendant No. 2 in Regular Civil Appeal No. 252 of 1984. The lower Appellate Court on closely examining the evidence set out certain circumstances which, in the opinion of the lower Appellate Court, show that the execution of the will on which reliance is placed by the defendant No. 3 was surrounded by suspicious circumstances and by applying the test of satisfaction of judicial conscious, the lower Appellate Court took the view that since the so called will alleged to have been executed by Laxmibai was unproved, the plaintiffs as well as the defendant No. 2 were entitled for partition and separate shares in the suit property. 5.Now, Mr. Gatne, learned Counsel appearing for the appellants, who took me through the judgments of the trial Court as well as the lower Appellate Court, submits that the lower Appellate Court was not justified in invalidating the will by taking into account the circumstances which, according to the learned Counsel for the appellants, by themselves are not sufficient for raising any suspicion on genuineness of the will executed by Laxmibai in favour of the defendant No. 3. In support of his submissions Mr. Gatne, learned Counsel cited some rulings namely; (Rabindra Nath Mukherjee and another v. Panchanan Banerjee (dead) By L.Rs. and others)1, A.I.R. 1995 S.C. 1684, (Ryali Kameswara Rao v. Bendapudi Suryaprakasarao and others)2, A.I.R. 1962 A.P. 178, and (Smt. Rajeshwari Rani Pathak v. Smt. Nirja Guleri and others)3, A.I.R. 1977 P.H. 123. Mr. Gatne, learned Counsel for the appellants, also urged that the suit was barred by law of limitation especially when the main prayer in the suit was for declaration that the will was invalid though, according to him, there was also prayer for partition and separate shares of the suit property in the suit. 6.Now, coming to the first question it is not in dispute that the learned Judge of the lower Appellate Court has correctly set out the principles governing the will and the question arises whether he has properly applied them. 6.Now, coming to the first question it is not in dispute that the learned Judge of the lower Appellate Court has correctly set out the principles governing the will and the question arises whether he has properly applied them. 7.In the first place it is mentioned that it is clear from the judgment of the trial Court that it has adopted a course causing burden on the plaintiffs to prove the validity or genuineness of the will. The lower Appellate Court, however, kept the burden of proof on the defendant No. 3. Mr. Gatne, learned Counsel for the appellants, does not dispute that the onus lies on the party who asserts the execution of the will. In other words, it is one of the principles as set-out in (Smt. Jaswant Kaur v. Amrit Kaur and others)4, A.I.R. 1977 S.C. 74 that the burden lies on the propounder of the will to satisfy the conscious of the Court that the will was duly executed by the testator. 8.The lower Appellate Court on scrutiny of the oral evidence has set out the following circumstances as proved : (1) That deceased Laxmibai was an old lady with impaired eye-sight and hearing. (2) She was suffering from cancer. (3) She was bed-ridden. (4) She died seven days after the alleged execution of the Will, Exh. 61. (5) Though the will is registered the Sub-Registrar is not examined. (6) The father of the beneficiary i.e. defendant No. 3 was Talathi and at the relevant time he was posted at Mirajgaon where Laxmibai was residing. (7) The father of the defendant No. 3 got his name mutated in the revenue record on the basis of a purported application Exh. 64 of Laxmibai, before the execution of the will. It was two months before the execution of the Will i.e. on 12-4-1962. (8) Though the defendant No. 3 asserted that Laxmibai was of sound mental condition as she was under the treatment of Medical Officer Dr. Zende of Primary Health Centre at Mirajgaon, he was not examined by the defendant No. 3. (9) Though the defendant No. 3 asserted that the plaintiffs were also present at the time of execution of the will no independant witness is examined nor is there any evidence to show that the testator discussed any matter with them and who then consented for the execution of the Will. (9) Though the defendant No. 3 asserted that the plaintiffs were also present at the time of execution of the will no independant witness is examined nor is there any evidence to show that the testator discussed any matter with them and who then consented for the execution of the Will. The lower Appellate Court reading these circumstances together took the view that the cumulative effect of these circumstances clearly show that the father of the defendant No. 3 took a prominent part in the execution of the Will which conferred substantial benefit on his son i.e. defendant No. 3 who was then a minor. That is a strong suspicious circumstance attending the execution of the Will. Secondly it is held that it was highly improbable to believe the version of the defendant No. 3 that at the instance of the testator the Sub-Registrar was brought to her house for registering the Will. The lower Appellate Court, on the contrary, took the view that the Sub-Registrar was brought at the behest of the father of defendant No. 3, with whom the deceased was residing. It was also held that the defendant No. 2, who is examined as one of the attesting witnesses, was highly interested witness. The lower Appellate Court also found that if regard be had to the physical condition of the deceased it is difficult to see that she was in a sound state of mind to execute the alleged Will in favour of the defendant No. 3. The will was, therefore, surrounded with suspicious circumstances and since the defendant No. 3 failed to discharge his burden the will was not having any binding effect to deny the claim of the plaintiffs. 9.Now coming to the authorities relied on by the learned Counsel for the appellants, it may be stated that in Ryali Kameswara Rao's case (cited supra) it has been held that: "The onus probandi lies in every case upon the party propounding a Will and he must satisfy the conscience of the Court that the instrument so propounded is the last Will of a free and capable testator. If a party writes or prepares a Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased." There cannot be any dual opinion as to the fact that all the suspicious circumstances cannot be distinct or enumerated exhaustively. They must depend necessarily on the facts of each case. 10.Mr. Gatne, learned Counsel, however, submits that in that case it was observed that the fact that the signature was in shaky handwriting did not raise any suspicious as to the genuineness of the will. It has also been pointed out that merely because no signature of the testator was affixed to the will at the time of registration but the evidence shows that it could not be affixed because the testator was physically incapable, could not also throw any suspicious. It has also been observed in that case that though no signature of identifying witnesses was taken because soon thereafter testator became unconscious, the endorsement was to held to be admissible and the will genuine. It is not possible to accept the submissions of the learned Counsel for the appellants to rely on those circumstances as appearing in that case, since the facts of the present case are quite distinguishable on facts, but applying the rule as embodied in that case, the circumstances as appearing in this case as above, would certainly go against the defendant No. 3. 11.Mr. Gatne, learned Counsel for the appellants, wants to rely on the observations in para 16 of the judgment reported in Smt. Rajeshwari Rani Pathak's case, A.I.R. 1977 P.H. 123 that it was not all necessary to produce the Oath Commissioner when the two attesting witnesses have been produced. There cannot be any dispute that when the evidence of two attesting witnesses is reliable, examination of the Commissioner could be dispensed with. In the present case, even the evidence of one of the attesting witnesses was also not believed and I think rightly. This case will not in any way support the arguments of Mr. Gatne, learned Counsel for the appellants. In the present case, even the evidence of one of the attesting witnesses was also not believed and I think rightly. This case will not in any way support the arguments of Mr. Gatne, learned Counsel for the appellants. 12.Lastly in Rabindra Nath Mukherjee's case (cited supra) the will was attacked on the ground that active part was played by one Subodh, a close relation of Rabindra, one of the executors in getting the execution of the will. That circumstance, though capable of raising suspicion, in the absence of other circumstances on the record, was held not sufficient to show un-voluntary character of the document. Mr. Gatne further relies upon a circumstance as appearing in that case about the certificate of the Sub-Registrar. The Supreme Court observed that : "In case where a Will is registered and the Sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested lose significance." It may be stated that in that case the executant was merely an old lady but there were no circumstances as apparent in the present case which throw considerable suspicion on the genuineness of the Will relied on by the defendant No. 3. 13.I, therefore, feel that even no reliance can be placed on the above decision. The result, therefore, is that the finding recorded by the lower Appellate Court cannot be interfered with in second appeal on the point of genuineness of the document of will. 14.Now coming to the second contention of Mr. Gatne learned Counsel for the appellants it may be stated that the lower Appellate Court for sound reasons rejected the same and I see no ground to interfere with the reasoning. In para 19 of the judgment, the lower Appellate Court dealt with the argument for the appellants that the plaintiffs has knowledge of the will four years after the death of Laxmibai alias Malanbai and the suit filed in 1971 was beyond three years from the date of knowledge therefore, it was barred by law of limitation. There is no dispute that the plaintiffs filed suit earlier in 1971 and it was withdrawn with liberty to file fresh suit on the same subject matter. There is no dispute that the plaintiffs filed suit earlier in 1971 and it was withdrawn with liberty to file fresh suit on the same subject matter. The suit as framed no doubt contained the prayer for declaration that the will was void but at the same time there is no dispute that the plaintiffs also sought for partition and separate possession of their shares. The lower Appellate Court relied on the decision in (Gokula v. Gokula)5, A.I.R. 1918 Madras 1198. It has been held that in a given case the prayer for declaration that the will was null and void was unnecessary. It has been further held that: "The Joinder of an unnecessary prayer in a claim which is barred with other substantial reliefs not barred not entail the dismissal of the suit . The former may be struck out and the claim adjudicated with regard to the substantial reliefs." No contrary decision could be shown and therefore, I fully endorse the reasoning recorded by the lower Appellate Court that the prayer that the will be declared null and void was unnecessary and as such the suit was well within time for partition and separate possession of shares of respective parties. I, therefore, find no force in this contention of Mr. Gatne, learned Counsel for the appellants. The result is that the appeal is liable to be dismissed summarily. It is dismissed summarily. Appeal dismissed.