ORDER S.C. Pandey, J. 1. This is an appeal under Section 299 of Indian Succession Act 1925 (henceforth 'the Act' for short), against the order dated 15.2.1994, passed by the IVth Additional District Judge, Jabalpur, in Misc. Judicial Case No. 70/87 and Misc. Judicial Case No. 86/87. 2. The memo of appeal mentions inadvertently that this appeal is filed against M.J.C. No. 70/87. When this fact was brought to the notice of learned counsel for the appellant, he filed I.A. No. 10590/96 seeking extention of time for payment of court fee and treating this appeal against M.J.C. No. 86/87 also. He has affixed the required stamps for this purpose. In the opinion of this Court, since this is a common order, and the error in filing an appeal against one order must have been due to over-sight, it is in the interest of justice that time under Section 149 of the Code of Civil Procedure for payment of court fee is extended and the court fee paid alongwith application dated 30.11.96 be accepted. The counsel is directed to make the necessary amendment in the memo of appeal on the date of delivery of judgment. The Reader of this Court shall point out to this part of the order to the counsel and after this memo of appeal is amended, the office shall also make the necessary corrections in the register concerned and certify the correction in memo of appeal. This appeal was heard and is being disposed of as if filed against the order both the M.J.C. No. 70/87 and M.J.C. No. 86/87. 3. The facts of this case are as follows. The respondents No. 1 and 2, Mr. David Loughran and Mrs. Chandramaya Loughran filed an application under Section 276 of the Act, claiming Mrs. Mavis Ada Lynch, widow of Hope Guise Lynch died on 6.9.87. She had written a will dated 18.6.83 in their favour in her own hand and she executed it. By virtue of this will Mrs. Lynch bequeathed to the respondents all her immovable property as well as movable property owned by her and mentioned by her in the will. 4. It was stated in the application for grant of probate that during the intervening period between execution of will and her death Mrs. Lynch had made transfers by way of gift, sale and perpetual lease. Lynch bequeathed to the respondents all her immovable property as well as movable property owned by her and mentioned by her in the will. 4. It was stated in the application for grant of probate that during the intervening period between execution of will and her death Mrs. Lynch had made transfers by way of gift, sale and perpetual lease. She left after her death the movable and immovable property as per following schedule- LIST OF PROPERTIES BEQUEATHED UNDER THE WILL DATED 18.6.83 OF MRS. MAVIS ADA LYNCH 1. 10136.37 sq.ft. with the house 'The Palms' standing thereon, which is numbered 707 (new Corpn. No. 1197) and the out-houses standing at the west-south corner, situated on plot Nos. 560, 562, 563 and part of plot no. 561 on Dr. Chari Road, Napier Town, Jabalpur, Approx. Value -Rs. 4,00,000/-. 2. Fixed Deposit Receipt No. P 75041 C dated 26.10.84 for Rs. 14,000/-, maturity value 18,830/-. Punjab National Bank, Rs. 500/- only. Movable Property 3. 10 old chairs, wooden, 10 old tables, 3 different sized, wooden, 2 old almirahs, wooden, 3 beds, old, wooden, 20 old utensils worth Rs. 5,000/- 5. The application for grant of probate was verified by Dr. Loughran and one of attesting witnesses, to the will, H.B. Cardis. 6. It appears from record that the appellant, who was the caveator in this case, did not file objection formally to oppose to the application for grant of probate. After filing the caveat on 11.11.87, the appellant took time to file reply from 11.11.87 to 26.8.89. Thereafter, the appellant's case for grant of probate on the basis of subsequent will, alleged to have been executed by Mrs. Lynch, registered as Misc. Judicial Case No. 86/87, was linked with this case (Misc. Judicial Case No. 70/87). Therefore, the appellant's case can be culled out from his claim in M.J.C. No. 86/87. In short, the appellant claimed that Mrs. Lynch had executed a will dated 15.8.87 in his favour. This will was executed by her on account of the fact that the appellant was living in the same bungalow and had known her for last twenty five years. He claimed that he was managing her affairs and had performed her last rites. Therefore, the will dated 15.8.87 was her last will and testament in respect of all movable and immovable properties of Mavis Ada Lynch. 7. He claimed that he was managing her affairs and had performed her last rites. Therefore, the will dated 15.8.87 was her last will and testament in respect of all movable and immovable properties of Mavis Ada Lynch. 7. Thus, in absence of formal reply and denial on the part of objector/caveator, the application for grant of probate on the point of execution of will in favour of respondents was decided as a matter of law for grant of probate. Because law requires that execution and attestation of the will have to be proved in accordance with the law. However, the respondents, in M.J.C. No. 86/87, hotly, disputed the application under Section 276 of the Act and inter alia denied the execution of will dated 15.8.87. They denied the fact that appellant lived with Mrs. Lynch. It was denied that Mrs. Lynch was in a fit mental condition to execute the will. It was stated that the will was got executed through Shri Jagdish Tiwari, Advocate, who was on friendly terms with the appellant and attesting witnesses, Y. Dayal and Nandkishore Yadav. Thus, the respondents themselves raised a serious objection to the execution of the will dated 15.8.87. 8. The Court below has accepted the will dated 18.6.83 as validly executed and attested will and granted probate on the basis of the aforesaid will, written by Mavis Ada Lynch, to the respondents. It did not accept the will dated 15.8.87 executed in favour of the appellant and held to be a suspicious document. The plea of the appellant, therefore, was turned down by the Court below. 9. It is, therefore, necessary to consider if the will dated 18.6.83 was validity executed. Before we embark upon the discussion of this case, this Court, notes, painfully, certain happenings. It appears when this case was listed before R.S. Garg, J., on 9.11.96, the original will dated 18.6.83 was not on record. It was stated by the counsel for the appellant that the original will was returned to the counsel for the respondents. On the other hand, counsel for the respondents asserted that the original will was submitted to the trial Court. Thereupon, the Court ordered an enquiry in the matter. It was stated by the counsel for the appellant that the original will was returned to the counsel for the respondents. On the other hand, counsel for the respondents asserted that the original will was submitted to the trial Court. Thereupon, the Court ordered an enquiry in the matter. It appears that on 5.1.90, the counsel for the respondents was given back the original will but the order sheet of 16.2.90 reveals that on that date the original will was produced by Shri LP. Sanghi, counsel for the respondents and the counsel for the objector/appellant requested it to be kept in a sealed cover. On 10.1.92, the original will was called from Nazarat and sealed cover was opened and the original will was exhibited. The witnesses were shown the original will during the trial and they were examined and cross examined. During the trial stage it was on record. 10. Pursuant to the order dated 9.11.96, passed by R.S. Garg, J., a report was submitted by 1st Addl. District Judge, Jabalpur, to the effect that after 10.1.92, the original will was not sent back to Nazarat. It was kept in the record of the case. Thereafter, according to the evidence produced before the Additional District Judge, the entire record was sent to this Court. The 1st Additional District Judge found it difficult to determine how this original will was lost. However, negligence of the Reader of the Court below, who was dealing with the case, is clear, as he had not drawn the attention of the Court that the original will has to be sent back to Nazarat under sealed cover. It should have been sent to this Court under sealed cover. This was not done. Looking to the evidence on record, it is not possible to say positively that the original will was not sent to this Court. It is also not safe to conclude that it was sent. Be as it may, but on account of negligence of the officers of the Court, the will was lost. The act of Court, however, should do no harm to anybody. Fortunately, this Court can grant probate to a party on the basis of even a photocopy. The disadvantage of this course of action is that the will alleged to be written by the maker in her own handwriting, cannot be examined. The act of Court, however, should do no harm to anybody. Fortunately, this Court can grant probate to a party on the basis of even a photocopy. The disadvantage of this course of action is that the will alleged to be written by the maker in her own handwriting, cannot be examined. It would have been helpful to inspect the original will in the interests of justice. However, the trial Judge had seen the original and this Court shall bear this fact in mind. 11. The attention of this Court was drawn to Section 237 of the Act. It provides that a will is lost or mislaid since the tester's death or has been destroyed by wrong or accident and not by any act of testator and a copy or a draft has been presented, then a probate may be granted of copy or draft until the original or authenticated copy of it is produced. Therefore, if it is proved that a will was in existence at the time of testator's death and it is lost since his death and the copy produced is the true copy thereof, then probate can be granted if due execution of original document is proved. It is clear from the order sheet of the Court dated 5.1.90 in M.J.C. No. 70/87 that the will dated 18.6.83 was produced in original when one of the attesting witnesses, E.B. Rainboth was examined. It was marked as Ex.A-1. The order sheet records that the original will was taken back by the appellant and a photocopy of the will was kept on record as Ex.A-1-A. On 16.2.90, the original will was again produced and Shri L.P. Sanghi, Advocate requested that the same be kept in a sealed cover. On that date another attesting witness CD. Jones was examined. Thereafter, the order sheet of 10.1.92 indicates that original will was called from Nazarat and then with the consent of the parties it was made part of record of M.J.C. No. 70/87. Since there was no report of loss by anybody during the trial, it is reasonable to assume that the original will was on record of the trial Court. It must have been in existence on the record till the date of passing of final order on 15.2.94. Thereafter, the case was sent to record room. 12. Since there was no report of loss by anybody during the trial, it is reasonable to assume that the original will was on record of the trial Court. It must have been in existence on the record till the date of passing of final order on 15.2.94. Thereafter, the case was sent to record room. 12. Therefore, in view of Section 237 of the Act, this Court proceeds to examine the will dated 18.6.83 Ex.A-1-A (Photocopy) with a view to find out if the will dated 18.6.83 was executed by Mrs. Lynch in favour of the respondents. There was no dispute about the state of mind of Mrs. Lynch on or about 18.6.83. The execution of will was proved by the evidence of E.B. Rainboth (A.W.1) who retired as a Commissioner, Jabalpur. E.B. Rainboth stated in his evidence that he was known to Mrs. Lynch from the childhood. He was called by her about 10 to 12 years back. At that time Mr. Jones, Mr. and Mrs. Cardis and Mr. and Mrs. Loughran were present. Mrs. Lynch had already drafted a will in her own handwriting. The will was read over by her. The will was signed by Mrs. Lynch in his presence and Mr. and Mrs. Loughran, Mr. Jones and Mr. and Mrs. Cardis. Thereafter, he, Mr. Jones, Mr. and Mrs. Cardis signed the will in the capacity of attesting witnesses. The original will was shown to the witness and was marked as Ex.A-1 and photocopy thereof is Ex.A-1-A. The witness was not effectively cross examined. A.W.2, Mr. Jones also corroborated the version of E.B. Rainboth saying that the will was written by Mrs. Lynch in her own hand. It was read over and was signed by her before him, E.B. Rainboth and Mr. and Mrs. Cardis. Thereafter, the aforesaid persons signed the will in token of attestation of the will. Apart from this evidence, there is evidence of David Loughran, A.W.5 and Chandra Maya Loughran, A.W.6. These witnesses appear to be truthful witnesses to this Court. A searching cross examination of these two witnesses could not dislodge them. Slight discrepancy here and there, does not mar the evidence of these two witnesses who were deposing in the Court of Law after seven years. The trial Court has given cogent reasons for believing these witnesses. Thus, there is complete corroboration to ocular testimony of these witnesses. A searching cross examination of these two witnesses could not dislodge them. Slight discrepancy here and there, does not mar the evidence of these two witnesses who were deposing in the Court of Law after seven years. The trial Court has given cogent reasons for believing these witnesses. Thus, there is complete corroboration to ocular testimony of these witnesses. Believing the testimony of these witnesses, the trial Court did not examine the evidence further. It had the advantage of visual examination of had writing and the signature of Mrs. Lynch on the original will dated 18.6.83 with certain other documents produced and proved by the respondents to be in the handwriting of Mrs. Lynch. Two documents marked as Exhibit A-5 were proved by A.W.7, Mrs. Chandramaya Loughran and A.W.9, Smt. A. Vashisht. This witness further proved A-6, A-7 and A-8. This witness was the Principal of Christ Church Girls School, Jabalpur, when she retired. She was working with Mrs. Lynch prior to her retirement. Mrs. Lynch was Vice Principal and manager of that school. Since the original will has been lost completely and it is hazardous to compare the handwriting and signature in the photocopy of the will with the original, hand-writing and signature of Mrs. Lynch in the aforesaid documents. However, the trial Court itself should have done so when the original was in its custody. It appears to this Court that appellants did not seriously dispute the execution and attestation of the will in favour of the respondents in the trial Court because of overwhelming evidence of respectable witnesses in her favour like E.B. Rainboth, A.W.1, retired Commissioner of Jabalpur, Mr. Jones, A.W.3, and employee of South Eastern Railway. They were not even cross examined in any detail to dislodge their firm testimony. It is to be noted that the appellant did not file a written reply denying the execution of the will. Even in this appeal no specific ground was taken in the memo of appeal challenging the will dated 18.6.83 executed by Mrs. Lynch. Therefore, during the argument there was faint reference to evidence of the witnesses examined by the respondents. All that learned counsel for the appellant was able to point out was that there was slight discrepancy regarding the fact of writing of the will. Mr. Rainboth stated that when he reached the house of Mrs. Lynch, she had already written the will. All that learned counsel for the appellant was able to point out was that there was slight discrepancy regarding the fact of writing of the will. Mr. Rainboth stated that when he reached the house of Mrs. Lynch, she had already written the will. The learned counsel for the appellant sought to argue that A.W.7, Chandramaya Loughran said in her evidence that Mrs. Lynch had written the will in her hand. From this, learned counsel for the appellant sought to argue that the will was prepared by Mrs. Lynch before the witness. Nothing of that sort could be inferred from the evidence of this witness, because in paragraph 3 itself she stated that will was already written by Mrs. Lynch. She was deposing earlier that will was written by Mrs. Lynch obviously because it was is in her handwriting. The conscience of the Court is fully satisfied that the will dated 18.6.83 was executed by Mrs. Lynch infront of the four attesting witnesses and each of them saw Mrs. Lynch signing the will before putting her signature. The Court also comes to conclusion from the testimony of independent witnesses that Mrs. Lynch was of sound disposing mind and was fully conscious when she wrote in her own hand, the will, and executed it in favour of the respondents No. 1 and 2. This Court affirms the finding of the trial Court on this point. 13. However, the main challenge of the appellant is that the will in favour of respondents may have been executed by Mrs. Mavis Ada Lynch, but in any case, the subsequent will in favour of the appellant was her last will and the testament. Therefore, by execution of will dated 15.8.87 in favour of Vivian Pereira, the appellant, the earlier will stood revoked. This Court must, therefore, carefully examine the aforesaid will allegedly executed in favour of the appellant by Mrs. Mavis Ada Lynch a few days before her death, on 6.9.87. 14. The appellant claimed probate by filing an application under Section 276 of the Act. This case was registered as M.J.C. No. 86/87. Shortly stated, in this case, the appellant claimed that Mrs. Lynch died issueless on 6.9.87. Her nephews were living in U.K. He was living in the same bungalow alongwith her. On 15.8.87 the will was executed by Mrs. Lynch who was a literate lady. This case was registered as M.J.C. No. 86/87. Shortly stated, in this case, the appellant claimed that Mrs. Lynch died issueless on 6.9.87. Her nephews were living in U.K. He was living in the same bungalow alongwith her. On 15.8.87 the will was executed by Mrs. Lynch who was a literate lady. At the time she executed the will, she was of sound disposing mind. The will was drafted by her counsel Shri Jagdish Tiwari. It was duly executed by her in presence of her counsel, Shri Jagdish Tiwari and two attesting witnesses, Mr. Dayal and Nandkishore Yadav. By this will, all her movable and immovable properties were bequeathed by Mrs. Lynch to the appellant Vivian Pereira. He was appointed the sole executor of the will. The application for grant of probate was verified by the appellant and his attesting witnesses. 15. The respondents, on the other hand, hotly denied the execution of the will dated 15.8.87. They claimed that the appellant was not living with Mrs. Lynch. He was living in one of the outhouses of Mrs. Lynch. It was denied that the appellant had any connection with the affairs of the deceased. It was stated that she was owner of House No. 707. It was denied that she was of sound disposing mind on 15.8.87. The execution and attestation of the will was denied. It was denied that Mrs. Lynch put her signature on the will before two attesting witnesses Y. Dayal and Nandkishore Yadav. 16. Thus, the precise question for consideration before the Court below was if the will executed in favour of appellant was in accordance with law. Even if it be assumed that the will was executed in the sense, Mrs. Lynch put her signature on the will, could it be said if the will was her last will and testament of Mrs. Lynch superseding the earlier will alleged to be executed in favour of the respondents. 17. It appears to this Court that the trial Court has dealt with the matter in very slipshod manner, therefore, this Court is required to examine the evidence on record carefully so that this Court gives effect to the last will and testament of the testator in accordance with law. 18. The Court, therefore, first takes up the case of execution of the will. Section 63 of the Act reads as under- 63. 18. The Court, therefore, first takes up the case of execution of the will. Section 63 of the Act reads as under- 63. Execution of unprivileged wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, (or an airman so employed or engaged,) or a mariner at sea, shall execute his will according to the following rules - (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other persion in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses; each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. 19. Thus, the requirements under Section 63 (c) of the Act are that- (i) The will must be attested by two or more witnesses. (ii) each of whom should see the testator sign or affix his mark to his will or has seen some other person sign the will in presence and by direction of the testator; (iii) or has received from the testator a personal acknowledgment of his signature or mark or the signature of other person. (iv) Each of witnesses shall sign the will in presence of testator, but it will not be necessary that more than one witness be present at the same time. (v) No particular form of attestation is necessary. The above analysis of Section 63 (c) of the Act would show that a will must be attested by two or more witnesses. To attest means to bear witnesses to the execution of the will and sign it animo testandi. (v) No particular form of attestation is necessary. The above analysis of Section 63 (c) of the Act would show that a will must be attested by two or more witnesses. To attest means to bear witnesses to the execution of the will and sign it animo testandi. If the case of propounder is that each of the witnesses has seen the testator sign the will, and each of the witnesses testify to the fact they had seen the testator sign the will, and they point out to the same signature, then both the witnesses must be present at one and the same time. Their presence at one and the same time is fortified by the fact if they say that they signed the will immediately after the testator signed the will. It is obvious that what has been said above would also apply when the testator affixes his mark or asks somebody to affix his signature on his behalf at one and the same time in presence of two witnesses. However, when a witness received from the testator an acknowledgment of his signature or personal mark or signature of a person, signing on his behalf, then it is not necessary for the attesting witnesses to be present at one and the same time. All that is necessary to say in evidence that the witness received from the testator an acknowledgment of his signature or mark; or signature of another person on his behalf; and in token thereof signed the document. Here, the fact of acknowledgment could be an event separated in time and, therefore, presence of one witness at the same time is not necessary. Each of the attesting witnesses may say that testator acknowledged his signature or mark or signature of another person on his behalf before him individually and signed the will before the testator. If both the attesting witnesses make the above statement, execution is proved. However, different consideration arises in the circumstance when the witnesses are deposing about single transaction when the testator signed the will and thereafter immediately the two attesting witnesses signed the will then it is necessary that evidence must be such that the presence of both the witnesses at one and the same time must be proved to the satisfaction of the Court. It is true that under Section 68 of the Evidence Act it is not necessary to call both the attesting witnesses and if one of the attesting witnesses testifies to the fact of attestation and execution, it would enough. However, if both the witnesses are called then it is imperative that both the witnesses must assert when they are testifying that they actually witnessed the execution and put their signatures on the will in token of attestation, simultaneously. In this case, the evidence of Y. Dayal, N.A.W. 5, is to the effect that he saw Mrs. Lynch putting her signature at place 'A to A' in his presence, on the will, Ex.D-1, dated 15.8.87. Thereafter, he signed the will Ex.D-1 at place 'B to B'. The signature of the lawyer is at place 'C to C' and that of Nandkishore Yadav at place 'K to K'. On the other hand, Nandkishore, N.A.W. 6 is silent about signature on will by any witness was made in his presence. He, however, says that he saw Mrs. Lynch signing the will at place 'A to A' and attested the will and signed the will dated 15.8.87 at 'K to K' and 'B to B'. The witness signed in English and has admitted that he was employed as a liftman in the High Court. The witness could not be totally unaware of the fact that there was another witness present who must have signed the will in his presence. The propounder, Vivian Pereira, N.A.W. 8, himself says in his evidence that two attesting witnesses signed after Mrs. Lynch signed the will on the last page. N.A.W.9, Shri Jagdish Tiwari, also says so. However he has not identified his signature and has not said that he had signed the document as an attesting witness. Therefore, he cannot be treated as an attesting witness. The question, therefore, whether the will is attested as per requirement of Section 63 (c) of the Act. The will, being the last will and testament of the maker must be strictly proved. The burden of proof is on the propounder. In this connection, the evidence of Nandkishore Yadav has to be scrutinized carefully. The evidence of Nandkishore Yadav is most unnatural and unreliable. It appears that this witness did not know Mrs. The will, being the last will and testament of the maker must be strictly proved. The burden of proof is on the propounder. In this connection, the evidence of Nandkishore Yadav has to be scrutinized carefully. The evidence of Nandkishore Yadav is most unnatural and unreliable. It appears that this witness did not know Mrs. Lynch and remembered that on 15.8.87 he went to the house of Vivian Pereira and after being told by his father went to Mrs. Lynch's house in search of Vivian Pereira. There he found Mrs. Lynch, lying on her bed and when he began to go away after meeting Vivian Pereira, she asked him to wait. After ascertaining from him about his employment, she told that she was giving all her properties to Vivian Pereira and asked him to bear witness to the will, when he told her his name and that he was an employee of High Court. The witness stated in his examination-in-chief that there were two or three persons already present. The witness posed that he was a mere acquaintance of Vivian Pereira. The evidence of this witness that he was the attesting witness of this will cannot be relied upon. Firstly, he claims that he was neither very well known to Pereira and met Mrs. Lynch for the first time. It is totally unbelievable that Mrs. Lynch, who had been the Vice Principal of Christ Church Girl's School, could rely on an attesting witness whose name she was told for the first time. How could she rely on utter stranger ? The witness himself says that two or three persons were present. Why should she choose an utter stranger instead of persons present. None of the witnesses threw any light on this phenomenon. Perhaps the witness wanted to say that she was impressed by the fact that he was an employee of the High Court, but he was a mere lift-man and that too did not know engough English. Looking to the fact that he did not say that he signed the document alongwith Y. Dayal, after Mrs. Lynch signed the document Ex.D-1, it was all the more possible that he did not sign the document in presence of the testator. For all these reasons, evidence of Y. Dayal, N.A.W.5, Vivian Pereira, the propounder, N.A.W.8 and Jagdish Tiwari, N.A.W.9 is utterly unreliable. Lynch signed the document Ex.D-1, it was all the more possible that he did not sign the document in presence of the testator. For all these reasons, evidence of Y. Dayal, N.A.W.5, Vivian Pereira, the propounder, N.A.W.8 and Jagdish Tiwari, N.A.W.9 is utterly unreliable. It appears to this Court that his signature on the document was obtained subsequently. In somewhat similar circumstances, it was held by the Supreme Court in the case of Girja Datt Singh v. Gangotri Datt Singh reported in AIR 1955 SC 346 , at page 351 (paragraph 15, sub paragraph 2) that- ....... One could not presume from the mere signatures of Mahadeo Pershad and Nageshur appearing at the foot of the endoresement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the Willi......... In the same case, after quoting Section 63 of Indian Succession Act, their Lordships held at page 351 in paragraph 14 that- ........In order to prove the due attestation of the will Ex.A-36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased...... 20. Since the attesting witness Nand Kishore, N.A.W.6 is utterly silent about the fact of appending his signature just after or almost simultaneously with that of Y. Dayal, to will after Mrs. Lynch signed the will, there remains a lacuna in his evidence as an attesting witness. The lacuna cannot be cured by evidence of the other attesting witness for the reason, Nandkishore Yadav may be utterly truthful witness and if he is to be believed, Y. Dayal did not sign the will in his presence. Nor it is clear from his evidence that Y. Dayal was present at the time of execution of the will, as he does not name him. The learned counsel for the appellant was unable to give any cogent reason for the lapse on the part of this witness. He, however, argued that the respondents should have cross examined N.A.W.6, Nandkishore. It was not duty of the respondents to prove what the witness did not say. The learned counsel for the appellant was unable to give any cogent reason for the lapse on the part of this witness. He, however, argued that the respondents should have cross examined N.A.W.6, Nandkishore. It was not duty of the respondents to prove what the witness did not say. The learned counsel for the appellant argued that Y. Dayal, N.A.W.5 has, however, stated that N.K. Yadav, N.A.W.6 has signed the will alongwith him. The evidence of this witness would be acceptable only when N.K. Yadav, N.A.W.6, himself had said so. The position that emerges is that one of the attesting witnesses, N.K. Yadav, N.A.W.6 has not supported the case of the appellant that the testator executed the will in presence of both the witnesses and both the witnesses signed the will in presence of testator. The learned counsel for the appellant sought to argue that the presence of both the witnesses at one and the same time is not necessary. This argument is not acceptable for the reasons that it is not case of appellant himself. The transaction of execution and attestion was projected as one and single transaction. If the case of appellant was that one of the witnesses i.e. Y. Dayal or N.K. Yadav received the acknowledgment of signature of Mrs. Lynch individually at different times and signed the will accepting the acknowledgment at different times in presence of testator as attesting witnesses, then evidence should have been led accordingly. But, this is not the evidence of Vivian Pereira, the appellant, N.A.W.8 and Jagish Tiwari, N.A.W.9. The event of execution of will by Mrs. Lynch in favour of the appellant, if true, should have been finely woven tapestry of cloth to carry conviction in the mind of the Court for proving execution of will as per Section 63 (c) of the Art. However, it is presented as a shreded cloth showing the warp and the woof and patching is clearly apparent in the evidence led by the appellant. It is impossible to believe that N.K. Yadav, N.A.W.6 would forget to mention the name of Y. Dayal, N.A.W.5, who almost simultaneously alleged to have signed the will. Under these circumstances, the Court has no option but to hold that the appellant did not prove the execution of the will as per Section 63 (c) of the Act. 21. The matter, however, does not rest here. Under these circumstances, the Court has no option but to hold that the appellant did not prove the execution of the will as per Section 63 (c) of the Act. 21. The matter, however, does not rest here. A still more probe is necessary to find if the propounder has proved in this case if the will dated 15.8.87 was the last will and testament of the propounder. It is, however, necessary to bear in mind certain general principles regarding the wills. It may be necessary to remind oneself that the will itself is a document which cannot be proved by the maker as it sees the light of day in the Court of Law, after the death of the maker. A moral duty is cast upon the Court to give effect to the last will and testament of the maker provided it is convinced that last wishes of the maker of the will are crystalized in that document. This duty is very delicate and, therefore, the Court must examine in solemn seriousness, the will with a view to uphold and not to turn it down. On the other hand, it is also the duty of the Court to satisfy itself if the will generally expresses the will of the maker because by a will he expresses so to say, the law of the maker, as opposed to general law of inheritance and succession as the will is likely deprive a person entitled to property in accordance with the general law of inheritance and succession. The Courts have evolved general principles in order to hold the balance between two aforesaid conflicting duties. It may be remembered that a will otherwise is like any other document. Therefore, the nature of evidence for the execution of that document would not vary except that the law requires a greater degree of proof. The relevant Sections are Section 59 and Section 63 of the Act and Section 68 of the Indian Evidence Act. Apart from these sections in given cases Sections 67, 45 and 47 of Evidence Act may be relevant. It is also well established that burden of proof of proving a will is on the propounder. The relevant Sections are Section 59 and Section 63 of the Act and Section 68 of the Indian Evidence Act. Apart from these sections in given cases Sections 67, 45 and 47 of Evidence Act may be relevant. It is also well established that burden of proof of proving a will is on the propounder. It may be interesting to note that in ordinary circumstances a will would be held to be proved provided its execution is proved in accordance with Section 63 (c) of the Act subject to condition that the maker of the will was of sound disposing mind. Why it is necessary to prove that maker was of sound disposing mind ? It is for the reason that the maker is not present to testify to the veracity of the will. Therefore, it is incumbent upon the Court to satisfy its conscience that the will was made by the person who knew what he was doing. This factor takes a front seat because human experience tells us that the wills are often alleged to be made by the maker who is about to die. Therefore, Courts take extra precaution to verify the mental state of the maker so that they can put their stamp and seal only the genuine wills lest the alleged propounder may take the undue advantage of the handicap, a dying person suffers to due to age and failing health at the time he is on death-bed. The rule of sound disposing mind is recognized by Section 59 of the Act. The three factors have to be proved by the propounder -(i) Due execution (ii) Maker was of sound disposing mind; and (iii) The maker understood what he was doing. Ordinarily, if these factors are proved by the propounder, the wills are accepted by Courts. 22. However, human experience is not so simple. It is complex and compound. Sometimes, wills made in utter secrecy, are surrounded by suspicious circumstances. This naturally arouses a doubting Thomas in the mind of a Court. The Court raises its eyebrows in circumspection. Here, the matter is altogether different. The smokescreen of suspicion has to be cleared before the will is accepted. On whom the burden lies of clearing this pall ? Obviously, the propounder. Otherwise, will shall fail. The human circumstance is so variable that no guidance in this matter can be taken from decided cases. Here, the matter is altogether different. The smokescreen of suspicion has to be cleared before the will is accepted. On whom the burden lies of clearing this pall ? Obviously, the propounder. Otherwise, will shall fail. The human circumstance is so variable that no guidance in this matter can be taken from decided cases. The holding in a particular case must be confined to the facts of that case. The general principle evolved can, however, be looked into for guiding the Court in discovering the new territory. In the opinion of this Court the cases decided by various Courts, including the Apex Court, can be used for showing how to proceed to evaluate the evidence on record. The facts of a particular case stated in a precedent regarding the evaluation of will executed in suspicious circumstances are, however, of no guide to decide the case of will on facts. Reverting now to a suspicious will. How does a Court is guided in holding that a will is prepared in suspicious circumstances. Again, no hard and fast rule can be applied. It is for the Judge to determine looking to the common course of events if the will is of suspicious nature. It does not start with suspicion that will must be forged, fabricated, false or otherwise invalid. It, however, starts with a possibility in mind that will may be not what it purports to be. This is common sense. It examines that possibility bearing a holistic picture in the mind of entire circumstances to rule out the necessary doubt. The case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, reported in AIR 1959 SC 443 , enumerates certain circumstances and the decision itself says what has already been stated. Gajendragadkar, J., speaking for the Court, stated as follows, at page 452, paragraph (22)- (22) It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal WN 895: (AIR 1946 PC 158) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilent, cautious and circumspect. It would be obvious from what has been stated above that the Court is required neither to persist in "obdurate disbelief" nor in 'willing suspension of disbelief'. It has to follow a middle path based on common sense. The 'necessary doubt' of a scientist and philosopher has to be applied but the horse of scepticism must be held in reins so that it does no cross the boundary of necessity and become an unrulely horse. 23. There is another category of will which causes the Court to raise its quizzical eyes. This involves active participation of a propounder in making the will. Here the problem is compounded by the fact that the maker of will may have been taken for a ride by the propounder. In other words, he may have been unduly influenced by him to the disadvantage of others. He may have been dominated or dictated to adopting a particular course to the detriment of others. The probability of such a circumstances put the will in a shroud of suspicion. This shroud must be torn before the will has to be accepted. In other words, he may have been unduly influenced by him to the disadvantage of others. He may have been dominated or dictated to adopting a particular course to the detriment of others. The probability of such a circumstances put the will in a shroud of suspicion. This shroud must be torn before the will has to be accepted. As earlier pointed out in H. Venkatachala Iyengar's case, AIR 1959 SC 443 (supra), at page 452, in paragraph 21, that test shall be applied under such circumstances would be almost the same as in England. The test that has been accepted in England, and followed in India, is that such a will in order to get a judicial nod must satisfy the 'judicial conscience'. However, elusive this term may appear sans definition; sans clarity; not clear cut and dried, but there is something in this term. Here it is not the logic but experience of a Judge that comes handy. It is true that 'judicial conscience' may vary from Judge to Judge and it may not be same in all the circumstances. It may be difficult to define the term because it is rough and ready but it serves the practical purpose. It is said there is comity among judges. The forensic experience of a judge or a lawyer makes him apply certain standards that are intermixture of feeling experience and logic. 'Judicial conscience' is all them rolled together and much more. It is intuitive feeling towards a particular set of facts. As a Wu Li Master learns to dance with his pupils (see 'Dancing Wu Li Masters', by Gary Zukav), a judge must also learn to dance with the panorama of circumstances presented to him in order to develop a proper 'judicial conscience'. The more he does so the better evolved his 'judicial conscience' shall be. So, this 'judicial conscience' guides a judge in reaching the conclusion when faced with a will of this latter category. There is nothing morally wrong for the beneficiary in lending a helping hand to the maker of will in the process of making the will. The more he does so the better evolved his 'judicial conscience' shall be. So, this 'judicial conscience' guides a judge in reaching the conclusion when faced with a will of this latter category. There is nothing morally wrong for the beneficiary in lending a helping hand to the maker of will in the process of making the will. The only question that should trouble a judicial mind is whether the will is genuine or influence of the propounder on the maker is so much, that but for his influence, brought upon the maker, the will would not have been made; or in the alternative, the propounder dominated and dictated his will in such a manner that the judge sees the chink in the armour of the propounder so that it is necessary to reject the will. However, in ultimate analysis, 'judicial conscience' is akin to 'a value judgment' for which all logical reasons cannot be furnished and judgments can never be uniform and one likely to vary from person to person depending upon the experience and the personality of a judge in given cases. For obvious reasons, except in rare cases, uniform opinions can be formed despite the forensic training of a lawyer/judge may not be the same. 24. Reverting to the case, at hand, there are certain circumstances that this Court must weigh in forming the opinion, if this Court has to grant probate to the appellant. The first circumstance, which strikes the mind that Mrs. Lynch, on 15th August, 1987, was aged about 83 years and it is not disputed by the parties that she had suffered a fracture of left femur for which she was admitted in private clinic of Dr. Jamdar. The second circumstance that strikes the mind is that Mrs. Lynch died about three weeks after she made the will on 6.9.1987. However, the said will was not registered during her life-time. It was registered only after her death on 21.9.1987. There was, however, time lag between the execution of will and her death. It was sufficient gap of time for the propounder to make an attempt to get the will registered. The third thing that strikes the mind is that there is no mention of the earlier will or even registered gift-deed dated 10th October, 1980, Ex.P-9-A, proved by A.W. 10, Smt. A. Vashishth. It was sufficient gap of time for the propounder to make an attempt to get the will registered. The third thing that strikes the mind is that there is no mention of the earlier will or even registered gift-deed dated 10th October, 1980, Ex.P-9-A, proved by A.W. 10, Smt. A. Vashishth. The fourth circumstance is that there are certain gaps in the will. Certain details regarding Block No. or Plot No. have not been filled, even though the will was registered subsequently. The fifth circumstance is that the will says that the propounder shall be responsible for cremation expenses of Mrs. Lynch. The sixth circumstance is that there is mention regarding the signatures taken by Mr. D.A, Loughran without specifying the document on which Mr. Loughran had taken signatures. The seventh circumstance is that each and every page of the will has been signed at the bottom by Mrs. Lynch, but none of the witnesses deposes about that fact. The eighth circumstance is that there is no space left in the will at the bottom of the will for signature of the scribe or the draftsman on the will. There is an endorsement of Jagdish Tiwari on the margin at page 5 to the effect that the will was drafted by him on 15.8.87. The ninth circumstance is that there are two sets of signatures of attesting witnesses. One at the bottom of the will just on the left hand side of the signature of Mrs. Lynch at leaf No. 5, marked by 'B to B' in case of Y. Dayal and 'K to K' in case of N.K. Yadav and they are dated 15.8.87. Thereafter at the bottom of that page it is written - 'P.T.O.' If we turn over leaf 3 (page 6), we find an endorsement to the following effect- Signed and declared by the above Mrs. Lynch the testator in the presence of us, the undersigned at the same time, and who at her request have hereto signed our names as witnesses in the presence of the said testator and in the presence of each other. Thereafter, there is purported signature of Y. Dayal at place No. 1, but not proved by him. His address is also given there. There is signature of Nandkishore Yadav at place marked as No. 2 alongwith his address. Thereafter, there is purported signature of Y. Dayal at place No. 1, but not proved by him. His address is also given there. There is signature of Nandkishore Yadav at place marked as No. 2 alongwith his address. His signature has been proved by him and is marked at 'B to B'. There is no signature of the testator on page 6. Last, but not the least, the will states that Vivian Pereira, the propounder was living in the same bungalow. The Court must weigh all these circumstances in the mind before deciding one way or the other, in favour or against the appellant. In the opinion of this Court, the will dated 15.8.87 in favour of the appellant cannot be accepted unless its 'judicial conscience' is satisfied, this was the last will and testament of Mavis Ada Lynch for the reason she was feeble and emaciated when she purported to sign the will. She was aged 83 years and was lying on the bed without any outside help which is facilitated by freedom to move about. This finding of the Court, apart from other evidence, is supported by the subsequent event of her death soonafter allegedly making the will. Therefore, the first question that this Court shall address itselfs to, is if there is evidence to the effect that she was of "sound disposing" mind, when she executed the will. 25. The evidence in this regard is of conflicting nature. Dr. Jitendra Jamdar, N.A.W.7, is an Orthopedic Surgeon. He is a private practitioner. He had stated in his evidence that he had admitted Mrs. Lynch on 6th June, 1987 for treatment of fracture, upto 12th July, 1987. Thereafter, he corrected himself to say that she was admitted on 4th June, 1987 to 12th July, 1987; and stated that he had given the certificate Ex.D-2 which states that Mrs. Lynch suffered from fracture of crack of femur. In his evidence he stated that the fracture of left hip-bone was treated. He further stated that on 20th August and 25th August, he had visited Mrs. Lynch in her house and had found her mental condition satisfactory. In Ex.D-2, the medical certificate, this witness has given a certificate to the effect that he had seen her on 14.8.87, 20.8.87 and 25.8.87 and found her mentally alert and fit to sign the document. The certificate was given by Dr. Jamdar on 30.10.1987. Lynch in her house and had found her mental condition satisfactory. In Ex.D-2, the medical certificate, this witness has given a certificate to the effect that he had seen her on 14.8.87, 20.8.87 and 25.8.87 and found her mentally alert and fit to sign the document. The certificate was given by Dr. Jamdar on 30.10.1987. By this time the will was already got registered on 21.9.87 after death of Mrs. Lynch on 6.9.87. This is clear from her death certificate dated 11.9.87, Ex.D-3, and also from another certificate issued by the witness, marked as Ex.A-10. This certificate is not dated but was admitted by Dr. Jamdar to have been issued by him. This certificate states that Mrs. Lynch was under his treatment from 6th June, 1987 till her death on 6.9.1987. The cause of death was given in Ex.A-10 to be due to septicaemia secondary to severe U.T.I. Another certificate, Ex.A-11 was issued by Dr. Jamdar to the effect that Mrs. Lynch was admitted in his nursing home between 6.6.1987 to 12.7.1987 and he had received Rs. 3,100/- from Mrs. Loughran. Ex.A-12 is the card, issued by the nursing home and appears to have been signed by Dr. Shirish Naik, a colleague of Dr. Jamdar, showing the fact that Mrs. Lynch was admitted between 6th of June 1987 to 12th of July, 1987. Dr. Jamdar had to admit in paragraph 6 of his cross examination that Mrs. Lynch was admitted between 6th June 1987 to 12th of July, 1987 and not between 4th June 1987 to 12th July, 1987 and the date given by him in Ex.D-2 as 4.6.1987 was wrong. The witness was unable to say to whom he had given Ex.D-2. He denied that he had given to Ashok Sachdeva, who was his friend and who was present in the Court. However, Dr. Jamdar did not deny that Ashok Sachdeva was his friend. As far as the appellant's case is concerned that Mrs. Lynch was admitted into Dr. Jamdar's Nursing Home, between 6.6.1987 to 12.7.1987 for treatment of fracture, there is no dispute between the parties about these dates. In fact, the Ex.P-11 itself shows that Rs. 3,100/- were received by Dr. Jamdar from Mrs. Loughran. The question, therefore, is after discharge from the nursing home whether Dr. Jamdar was required to attend to her. Jamdar's Nursing Home, between 6.6.1987 to 12.7.1987 for treatment of fracture, there is no dispute between the parties about these dates. In fact, the Ex.P-11 itself shows that Rs. 3,100/- were received by Dr. Jamdar from Mrs. Loughran. The question, therefore, is after discharge from the nursing home whether Dr. Jamdar was required to attend to her. It is obvious that the fracture of left femur in old age could not heal even after she was discharged. The possibility of Dr. Jamdar visiting the house of Mrs. Lynch cannot be ruled out provided he was called for looking after her, for verifying the state of fracture and the urinary trouble she had developed. Dr. Jamdar, however, did not depose about the state of fracture. He says that he treated her on 20th and 25th of August and found her mentally alert and fit. It is strange that he did not say in examination-in-chief about seeing her on 14.8.87 despite he said so in Ex.D-2. Mrs. Lynch, however, died on 6.9.87 according to Doctor, on account of septicaeimia - a kind of blood poisoning due to infection of blood by multiplication of bacteria. It is not clear from the evidence of Dr. Jamdar that blood poisoning was an independent disease or was a consequence of open trochancter reduction done in his hospital, as per Ex.A-12. However, infection in the urinal tract as per Ex.-A-10 appears to be a post-operative disease. It bears no relation to treatment of fracture. Dr. Jamdar admitted that he was an Orthopedic Surgeon. Therefore, he would be called for treatment of infection of urinary tract appears to be doubtful. The complication was not his specialty. Dr. Jamdar does not say in this examination-in-chief that he had given any treatment to Mrs. Lynch on the dates of his visits. In cross examination he says that he applied catheter for passing the urine from time to time. Dr. Jamdar admitted that he had kept no record of his visits to Mrs. Lynch. He did not remember who had called him to the house of Mrs. Lynch on 14th, 20th and 25th of August, 1987. He stated in cross examination that he was unable to say on the date of evidence whether the condition of Mrs. Lynch was good or bad. At another place he stated that her health was good and she could orally dictate the contents of will. Lynch on 14th, 20th and 25th of August, 1987. He stated in cross examination that he was unable to say on the date of evidence whether the condition of Mrs. Lynch was good or bad. At another place he stated that her health was good and she could orally dictate the contents of will. Dr. Jitendra Jamdar is shakey about Dr. A.P. Dubey. Dr. Jamdar admitted that he knew Dr. A.P. Dubey for the last ten years and it was at his residence Mrs. Lynch was admitted in his nursing home for the treatment of fracture. But, it is strange that he denied that he did not know whether Dr. Dubey did medical consultancy and then in the next breath admitted that Dr. Dubey lived in Cantonment and practised in medicine. This discrepancy in the evidence of Dr. Jamdar appears to be because perhaps the witness was conscious that Dr. A.P. Dubey had not supported him. Even though the document produced by the appellants, Ex.A-10 and Ex.A-11 were admitted by Dr. Jamdar to be in his own handwriting, he denied that Mrs. Loughran was present in the hospital. He admits obliquely that an old lady was looking after Mrs. Lynch in his nursing home. He, however, refused to recognized her even though he admitted that he had received Rs. 3,100/- from Mrs. Loughran. This amnesia on the part of Dr. Jamdar appears to be feigned and deliberate. It appears to this Court that Dr. Jamdar is not telling the truthfully. He is suppressing the truth. Dr. Jamdar had asked whether he had issued the certificate Ex.D-2 subsequently in the year 1992 but he denied this fact. There are certain aspect of the matter which must be noted here. Dr. Jamdar has given the certificate dated 30.10.87, Ex.D-2, testifying to mental soundness of Mrs. Lynch. No Doctor would give such a certificate unless asked to give one. This document was produced by the appellant in the Court, therefore, it reasonable to presume that Dr. Jamdar had given Ex.D-2 on demand of Vivian Pereira, the appellant. However, he feigned amenesia and refused to recognize Vivian Pereira in the Court. Nor did he keep any record of the matter. Under such circumstances, the Court comes to the conclusion that Dr. Jitendra Jamdar is not totally a truthful witness and how far his evidence could be relied upon shall be considered later. However, he feigned amenesia and refused to recognize Vivian Pereira in the Court. Nor did he keep any record of the matter. Under such circumstances, the Court comes to the conclusion that Dr. Jitendra Jamdar is not totally a truthful witness and how far his evidence could be relied upon shall be considered later. Another aspect of the matter may be noted that the Ex.D-11 and Ex.D-12 appear to be written on the same writing-pad because on top right sides names of three Doctors are mentioned in Hindi, such as Dr. Jitendra Jamdar, M.S. (Ortho.), Dr. Sau. Sirish Jamdar, M.B.B.S. and Dr. Shirish Naik, M.S. (Ortho.). However, another pad was used by Dr. Jamdar, for giving Ex.D-2. In Ex.D-2, the name of Dr. Sau. Shirish Jamdar is missing. Could it be due to the fact that Ex.D-2 was given much later and not about the same time when Ex.A-11 and Ex.A-12 were given ? 26. As against the evidence of Dr. Jamdar, there is evidence of Dr. A.P. Dubey, A.W.1, (who was examined on Commission) to the effect that Mrs. Lynch developed urinary complications in the nursing home of Dr. Jamdar and she was not in a sound mental condition to execute the will. It appears from the evidence of Dr. Jamdar himself that Dr. A.P. Dubey had referred her to his nursing home. Therefore, it is reasonable to believe that Dr. A.P. Dubey must have seen her prior to sending her to nursing home. He had given an affidavit marked as C-1. He had stated that Mrs. Lynch was not in a sound mind to execute the will. It is true that Dr. Dubey's affidavit was given at the instance of Mrs. Loughran. But his testimony has filled the gap in the evidence of Dr. Jamdar. His evidence regarding the cause of death of Mrs. Lynch is the same as that the given by Dr. Jamdar. Dr. Jamdar does not say how Mrs. Lynch developed the urinary disease. Dr. A.P. Dubey says that she was suffering from this disease when she returned from the nursing home of Dr. Jamdar. Dr. Jamdar does not give any graphic account of state of health of Mrs. Lynch beyond saying that she was of sound mind. On the other hand, Dr. A.P. Dubey says that she developed a bedsore, which is quite likely. A.P. Dubey says that she was suffering from this disease when she returned from the nursing home of Dr. Jamdar. Dr. Jamdar does not give any graphic account of state of health of Mrs. Lynch beyond saying that she was of sound mind. On the other hand, Dr. A.P. Dubey says that she developed a bedsore, which is quite likely. He has also testified that there was a nurse looking after her. 27. Now, we examine the evidence of N.A.W.8, Vivian Pereira. It is significant that this witness is silent about the state of health of Mrs. Lynch in his examination-in-chief. If he was looking after Mrs. Lynch for 25 years, he should have straightway told the Court regarding the fracture suffered by Mrs. Lynch. However, he made a statement in the Court in only his favour suppressing the fact about her illness. If she treated him almost like a son, he should have been aware about her illness and suffering in the last lap of her life after she came back from the nursing home of Dr. Jamdar. In cross examination, all he says that Mrs. Lynch suffered a fracture on 4th June 1987 and was admitted on 6th of June 1987. The witness does not say anywhere if Dr. A.P. Dubey or Dr. Jitendra Jamdar treated her any time after she came back from the nursing home. Nor does he say a word about the state of health of Mrs. Lynch. He is significantly silent about Mrs. Lynch's health. N.A.W.9, Mr. Jagdish Tiwari, Advocate shows similar indifference to her health. No description regarding the state of her health comes out from his mouth. The version of this witness is like that of a person who was asked to testify to the fact of execution of will. He gave evidence as if he saw nothing. Y. Dayal, N.A.W.5, however, says that she had injury on the back. Nandkishore Yadav, N.A.W.6 says that she was lying on bed. Y. Dayal does not say anything in his evidence regarding septicaemia. Nandkishore Yadav denied knowledge about her fracture or blood poisoning. The evidence of N.A.W.1 Banjamin Joseph David, N.A.W.2, J.M. Mathew, N.A.W.3, Arthur Marshal and N.A.W.4, George Wilson also does not show the state of health of Mrs. Lynch after she came back from nursing home. Apart from the evidence led by the appellant, there is evidence of Mrs. Nandkishore Yadav denied knowledge about her fracture or blood poisoning. The evidence of N.A.W.1 Banjamin Joseph David, N.A.W.2, J.M. Mathew, N.A.W.3, Arthur Marshal and N.A.W.4, George Wilson also does not show the state of health of Mrs. Lynch after she came back from nursing home. Apart from the evidence led by the appellant, there is evidence of Mrs. Loughran, A.W.7 that after Mrs. Lynch suffered fracture, in June 1987, she was lying on her bed throughout till her death. She had kept a nurse for looking after her on 13.7.87 and 18.7.87 and she had produced Ex.A-5 given by the nurse, Demallo. In paragraph 11 she had stated that she had suffered urinary infection and she was running fever. She also stated that Mrs. Lynch had a bedsore. Her evidence corroboates the version of Dr. Jamdar and Dr. A.P. Dubey that she was suffering from urinary infection. David Loughran, A.W.6, has supported the evidence of Dr. A.P. Dubey and that of Dr. Jamdar that Mis. Lynch was admitted by them in the hospital of Dr. Jamdar at the instance of Dr. A.P Dubey. 28. The question that has now to be answered by the Court is whether the appellant has proved beyond reasonable doubt that Mrs. Lynch was of sound disposing mind on 15.8.87. It is not in dispute that Mrs. Lynch was aged about 83 years when she suffered a fracture for which she was admitted on 6.6.87. Thereafter, she was discharged from nursing home on 12.6.87. Dr. Jamdar has not given any information regarding the fact how she suffered from the disease. He is utterly silent on the point. Dr. Jamdar is also silent about the post-operative treatment given to Mrs. Lynch. He says that he made two visits to the house of Mrs. Lynch and found her of sound mind. Now, Dr. Jamdar is an Orhtopedic Surgeon. The complication that arose subsequently after operation was not related to his specialty. Dr. Jamdar does not co-relate the complication of urinary infection to the operation performed at his nursing home regarding the fracture. Therefore, possibility of his being summoned for treating Mrs. Lynch for urinary infection seems to be remote. Dr. Jamdar did not state that he advised Mrs. Lynch to be admitted in his hospital. He only says that he had used catheter. The use of catheter cannot be made by a visiting Doctor. Therefore, possibility of his being summoned for treating Mrs. Lynch for urinary infection seems to be remote. Dr. Jamdar did not state that he advised Mrs. Lynch to be admitted in his hospital. He only says that he had used catheter. The use of catheter cannot be made by a visiting Doctor. Passing of urine by use of catheter requires constant attendance for frequent passing of urine. Therefore, constant vigilance of a nurse must have been necessary. Dr. Jamdar does not say anything about the presence of a nurse. It is further surprising that Dr. Jamdar was summoned on two dates only. On the contrary, Dr. A.P. Dubey has for thrightly said Mrs. Lynch was unwell from the day she left the nursing home and she became weak day by day. She refused to be shifted to Medical College. She was barely able to talk. Under the facts and circumstances of the case, and looking to burden of proof the appellant required to discharge it, cannot be held that Mrs. Lynch was of sound disposing mind. Looking to her age and the fact that she had developed bedsore, it is clear that Mrs. Lynch was gradually sinking. Therefore, unless she was woman of exceptional vitality, it would be difficult for her to maintain mental equilibrium for exercising her option of making a will. It is true that Dr. Jamdar has supported the case of the appellant by issuing Ex.D-2, dated 30.10.87. He had stated in this certificate that he had reviewed her case on 14.8.87 and further examined her on 20.8.87 and 25.8.87. He gave a certificate to the effect that she was 'mentally alert and fit to sign documents'. This certificate must have been given at the instance of someone who wanted to prove that she was able to sign documents. Dr. Jitendra Jamdar has not stated in his examination-in-chief why did he testify about mental state of the deceased. He was not forthright in his evidence asserting that he had given the certificate to Vivian Pereira. Dr. Jamdar has not even stated in his evidence that "he had 'reviewed' her on 14.8.87 again". The certificate itself says that he had visited her on "two more occasions", on 20th and 25th. That obviously, means that he had seen her on 14th August, 1987. The date of 14.8.87 was for proving that testator was of lucid mind on 15.8.87. Dr. The certificate itself says that he had visited her on "two more occasions", on 20th and 25th. That obviously, means that he had seen her on 14th August, 1987. The date of 14.8.87 was for proving that testator was of lucid mind on 15.8.87. Dr. Jamdar did not say in the examination-in-chief that he had visited her on 14.8.87. In cross examination. Dr. Jamdar admitted that he had not kept the records of Ex.D-2. Then Dr. Jamdar was not in a position to say who called him on 14.8.87 and said that he was not in a position to state about the state of her health. The witness had issued Ex.D-2 to the effect Mrs. Lynch was admitted between 4.6.1987 to 12.6.1987. The other certificates Ex.A-10, Ex.A-11 and Ex.A-12 clearly indicated that Mrs. Lynch was admitted on 6th June 1987. The witness remained shifty about the date. When pressed relentlessly, in cross examination he had to admit that Mrs. Lynch was admitted on 6th June, 1987. Now, there is reason for this certificate, Ex.D-2, mentioning 4th June, 1987 as the date of admission because the date of fracture mentioned in the will is 4th June, 1987. It appears that Ex.D-2 was given by Dr. Jitendra Jamdar without verifying from record of his hospital, at the instance of the propounder who wanted the date of fracture to tally with that the will. None of the witnesses examined by the appellant proved the date of accident as on 4th of June, 1987. That apart, there is internal evidence that Ex.D-2 was not given near about 30th October, 1987. The letter pad used by Dr. Jamdar, for Ex.D-2 names two doctors whereas two certificates issued by Dr. Jamdar, Ex.A-10 and Ex.A-11, mention the name of three doctors. It appears that Ex.D-2 was given much later than Ex.A-10 and Ex.A-11 and was given presumably to help the propounder. The Court, therefore, holds that the applicant was unable to prove to satisfaction of the Court that Mrs. Lynch was of sound disposing mind and the evidence of Dr. Jamdar is a bit too shakey for proving the state of her mind on 14.8.87. 29. However, the matter does not end here. The Court shall further examine the other circumstances to satisfy itself if any injustice is not being done to the appellant and the maker of the will in his favour. Jamdar is a bit too shakey for proving the state of her mind on 14.8.87. 29. However, the matter does not end here. The Court shall further examine the other circumstances to satisfy itself if any injustice is not being done to the appellant and the maker of the will in his favour. After all, it could be her last will and testament. Let us then examine the evidence on record. Let us then examine the evidence of Mr. Jagdish Tiwari, Advocate. Jagdish Tiwari, Advocate, N.A.W.9, when cross examined about blank spaces in the will, came out with strange story. He stated that he went to Dr. Jamdar's hospital for check up of one of his relatives and there when he came to know that Mrs. Lynch was admitted, he went to her and there she requested him to scribe a will in favour of the appellant. Then he asked her about the details of the property and she said that details were not available in the hospital. It is totally unreliable story. The evidence of this witness that he drafted the will and left blank spaces because he was instructed at the nursing home of Dr. Jamdar is not true. The will runs into great details. It gives the details of the property. It also talks about respondents. It also accuses David Loughran of causing injury to her on 4th June, 1987. It talks about Dr. A.P. Dubey's advice. It does not specifically refer to will executed by Mrs. Lynch, but obliquely refers to certain documents got signed by Mr. Loughran. No reference is made to registered giftdeed. The documents are cancelled by the maker of the will. Jagdish Tiwari is not telling the truth and whosoever instructed him to draft the will had given incomplete details about the property of Mrs. Lynch. It is very interesting that the names of Mr. and Mrs. H.B. Cardis are mentioned in the will and freedom is given to eject them. Therefore, it is difficult to accept the testimony of Jagdish Tiwari when he says that Mrs. Lynch instructed her in the nursing home of Dr. Jamdar. The witness appeared to be fidgety about Vivian Pereira and denied that he knew him. At least he must have known on 15th of August, 1987 that the will has to be written in the name of Vivian Pereira son of H. Pereira. Lynch instructed her in the nursing home of Dr. Jamdar. The witness appeared to be fidgety about Vivian Pereira and denied that he knew him. At least he must have known on 15th of August, 1987 that the will has to be written in the name of Vivian Pereira son of H. Pereira. The witness did not disclose to the Court how he knew Mrs. Lynch and why did he visit her in nursing home. The version of this witness that he had drafted the will on instructions of Mrs. Lynch in the hospital and he had prepared it accordingly and Ex.D-1 was read it over to her is in continuation. It gives the impression that the will was readover to her in the hospital. Looking to the fact that the stamps upon which the will was written, were purchased on 10.8.87 and Mrs. Lynch was discharged on 12.7.87, the original will could not have readover to her in the hospital. The witness does not say that he had prepared a draft. The counsel for the appellant, however, tried to argue that reading over the will was referable to the date of execution that is to say, 15.8.87. The witness himself was an advocate and was of considerable standing. He must have a lot of experience of proceedings in the Court of law. He could not have been so panicky to give an impression by making a statement which was not the case of the appellant. He could have corrected it or it was duty of the counsel for the appellant in lower Court to ask for re-examination of this witness to fix the loose ends in his evidence. The respondents cannot bear the blame. There is another interesting aspect of the matter. The will contains a recital regarding cremation expenses. It is not disputed by the witnesses that Mrs. Lynch did not want cremation which was not according to Christian practice and she objected to the lines in the will. The witness asserted that he did not delete it and told Mrs. Lynch that this correction will be done at the time of registration. The explanation given by the witness is palpably false for the reason any correction in the text of the will has to be made prior to its execution. Similar explanation was given by him for blank spaces in the will. Lynch that this correction will be done at the time of registration. The explanation given by the witness is palpably false for the reason any correction in the text of the will has to be made prior to its execution. Similar explanation was given by him for blank spaces in the will. The blank spaces could not be filled for lack of relevant information. The evidence of this witness does not inspire any confidence for the reason he was asserting that a will duly executed could be interfered with by making correction after execution. If this be permitted there can always be interpolation in the will. His statement, as an advocate is all the more astonishing. The witness says this document was written on 15.8.87, in examination-in-chief. In cross examination his evidence is susceptible to another date when Mrs. Lynch was in hospital. The will is typed one. It is obvious that it was typed by somebody. No typist was examined by the appellant. Jagdish Tiwari does not say anything about the draft of the will. He also does not say that the will was typed on his oral direction. There is deep silence on his part on these vital matters. He denies presence of Vivian Pereira and says that he took assistance of Assistant Registrar, Dube, who helped him in drafting the will. However, the witness did not give any detail of the facts supplied to him before drafting the will. The evidence of Mr. Jagdish Tiwari regarding the execution of will is totally mechanical. He merely says that the will was readover to Mrs. Lynch and thereafter witnesses signed it. Mr. Tiwari ought to have named the attesting witnesses, if he was present at the spot. He is no ordinary witness. He is an advocate and had considerable experience as an advocate. The witness does not prove even his own signature on the will and the endorsement that he drafted the will on 15.8.1987. For all these reasons, his evidence is totally unreliable. 30. Now, we turn to the evidence of Vivian Pereira. His evidence is key to the entire case. He is the chief architect and the sole beneficiary of the entire drama. The version of this witness is that Mr. Jagdish Tiwari had prepared a draft of the will according to the direction given by Mrs. Lynch. 30. Now, we turn to the evidence of Vivian Pereira. His evidence is key to the entire case. He is the chief architect and the sole beneficiary of the entire drama. The version of this witness is that Mr. Jagdish Tiwari had prepared a draft of the will according to the direction given by Mrs. Lynch. After writing the entire matter, Jagdish Tiwari said that he shall come back after getting the will typed. It appears from the tenor of the evidence of this witness that all this happened on 15.8.87. No draft of the will was produced by the appellant. It was stated by the witness that the unsigned draft of the will was with Jagdish Tiwari, but he was unable to say who had this draft at the time when his deposition was recorded. This version of the appellant is totally different from what Jagdish Tiwari stated. Jagdish Tiwari did not state anything about the draft of will written down by him at the instance of Mrs. Lynch. It is impossible that Jagdish Tiwari would forget that he had taken direction from Mrs. Lynch on 15.8.87 and then he got it typed. On the other hand, he says that he had drafted the will with the help of Assistant Registrar, Dube. The will could not have been drafted without the instructions of the maker or the propounder, or somebody on behalf either of them. Therefore, version of this witness that there was some draft on which the original will was based is probable but whether this draft was prepared on the instructions of Mrs. Lynch has not been proved. Jagdish Tiwari has neither referred to the draft of the will nor did he produce it. Under such circumstances in absence of any explanation on the part of Jagdish Tiwari regarding the draft of the will, an adverse inference can be drawn against the appellant. No plausible explanation is given by any witness for omissions in the will and mention of cremation in the will. It appears to the Court that Mrs. Lynch would not be ready to sign a will mentioning her cremation as nobody disputes that she had an objection to it. No plausible explanation is given by any witness for omissions in the will and mention of cremation in the will. It appears to the Court that Mrs. Lynch would not be ready to sign a will mentioning her cremation as nobody disputes that she had an objection to it. She would sign only when the will was not read by her or was not readover to her at all or when she had no mental capacity to understand the will or her signature on the papers were obtained on blank papers. 31. There is another aspect of the matter, which the Court must take into consideration. There is a recital in the will that Vivian Pereira resided in her bungalow for last 25 years. This fact has been repeated in the application for grant of probate. However, the evidence of Vivian Pereira, N.A.W. 8 is to the effect that he lived in the outhouse. This deviation from factual position was made in order to show that appellant was very near to Mrs. Lynch. There is no positive evidence on record to show that he is, in anyway, related to Mrs. Lynch. He himself does not say so. Therefore, introduction of these wrong facts show that the person instructing, was scribe of the will, was not confident that the appellant had the status for getting the property by will. The Courts can take a will with equanimity even in favour of a person living in an outhouse but when wrong facts are stated, the Court begins to doubt the authenticity of the will. 32. There is another factor which has escaped the attention of all the parties. The will dated 15.8.87 itself shows that it has been signed at the bottom of every page by Mrs. Lynch and it is dated 15.8.87, Ex.D-1. In fact, there are three signatures marked as A to A, at each of the bottom of leaf 1, 2 and 3 of the will. None of the witnesses, examined by the appellant, says that she made three signatures at the bottom of each leaf of the will and executed the will by signing third page. Eventhough all signatures of Mrs. Lynch are marked as A to A, it cannot be presumed that witnesses have testified to all her signatures. The fact of making three signatures is not spoken to. Eventhough all signatures of Mrs. Lynch are marked as A to A, it cannot be presumed that witnesses have testified to all her signatures. The fact of making three signatures is not spoken to. That creates serious doubt in the mind if any witness saw Mrs. Lynch executing the will. The possibility of obtaining blank signatures at the bottom of stamp and connected water-mark papers cannot be ruled out looking to the space left out on the stamp and second leaf. Looking to the fact, on the third leaf, the water-mark paper was insufficient and, therefore, declaration was signed by the witnesses overleaf. Significantly, this has not been authenticated by Mrs. Lynch as she has done on earlier pages. 33. Then there is no reasonable explanation given by the appellant why registration of the will could not be done during the life-time of Mrs. Lynch. There were about three weeks for getting it registered. Vivian Pereira says Jagdish Tiwari was suffering from jaundice during that period and, therefore, will was not registered, till 21.9.87. Jagdish Tiwari does not say so. The inference is that it is a lame excuse. The will could have been registered by bringing the Sub Registrar during the life-time of Mrs. Lynch and it would have given clear authenticity to the will. However, this omission on the part of the appellant points out to another probability that Mrs. Lynch was not in a sound disposing mind and the cat would be out of bag if Sub Registrar were to be called for execution or registration of the will. 34. The next point that has to be considered is if Vivian Pereira was in a position to dominate the will of Mrs. Lynch. We have to borrow the wings of imagination to consider the plight of old sticken lady lying on her bed with a fracture of hip bone and suffering from urinary infection at the age of 83 years, lady without the help of outside world, as Vivian Pereira himself tried to say, is likely to be influenced by the person who had taken charge of her debilitated body. Such a person is likely to dominate the will of old fore lom woman without the support of anybody. The appellant has failed to lead any trustworthy evidence for proving how and why Mrs. Lynch developed a liking for him. Such a person is likely to dominate the will of old fore lom woman without the support of anybody. The appellant has failed to lead any trustworthy evidence for proving how and why Mrs. Lynch developed a liking for him. If he had served faithfully for 25 years there would be more trustworthy evidence to support his case. Twenty five years of selfless service would be known to all and sundry who knew Mrs. Lynch. However, no such evidence is forthcoming. 35. On the order hand, it is said that the appellant and his cronies indulged in laying uncalled for blame at the door of respondents. It is stated in the will that on 4th June, 1987 David Loughran pulled the chair to cause fracture to Mrs. Lynch. It is also stated in the will itself that Dr. A.P. Dubey was called immediately. It is interesting to note that no such suggestion was made to Dr. A.P. Dubey regarding the fracture. He was the first independent person to know about the fracture. Nor does Dr. Jamdar say any such thing about the fracture. N.A.W.8, Vivian Pereira also does not say a word about fracture caused by David Loughran by pulling the chair. He was specifically asked about the date of fracture. He stated that the date of accident and fracture was 4th June, 1987 and she was admitted on 6th June, 1987 because beds were not available. He is the only witness who says so. If Mrs. Lynch suffered for two days before her admission in the nursing home, she must have been given aid at home. No witness was examined to prove this fact. It appears to this Court that whosoever scribed the will did not know exactly about the date of accident. It could not have been 4th June, 1987. It is more probable that it was 6th June, 1987 when she was admitted in the nursing home. There was one witness, N.A.W.1 Benjamin Joseph David who said that he visited Mrs. Lynch in the hospital, in June 1971. Then altered his statement with the assertion that he was not sure about the year. This witness admitted that he attended the funeral of Mrs. Lynch in 1987. He could not have made such an egregious blunder of asserting that he met Mrs. Lynch in the year 1971 in the hospital. Lynch in the hospital, in June 1971. Then altered his statement with the assertion that he was not sure about the year. This witness admitted that he attended the funeral of Mrs. Lynch in 1987. He could not have made such an egregious blunder of asserting that he met Mrs. Lynch in the year 1971 in the hospital. The evidence of this witness that he know the handwriting of Mrs. Lynch, is totally false for the reason Mrs. Lynch has signed the registered document Ex.A-2 and her signature tallies with that in the will, dated 18.6.83, Ex.A-1. The witness says that he was present when the will in favour of Vivian Pereira was made but it is strange that he was not made an attesting witness when he was so intimate with Mrs. Lynch, as he claims. He has been totally exposed in paragraph 12 of his cross examination. N.A.W.2, K.M. Mathew is one witness who admits that an old lady use to look after Mrs. Lynch. Obviously, he does not want to say it was Mrs. Loughran. He uses the word 'BUDHIYA' for the old lady. In paragraph 5, Dr. Jamdar also says that an old lady was looking after Mrs. Lynch and admitted that Mrs. Loughran paid him the fee. He, however, is shifty about Mrs. Loughran looking after Mrs. Lynch but admits that, that was an old lady 'VRADDHMAHILA'. Obviously, both the witnesses do not want to admit that Mrs. Loughran looked after Mrs. Lynch at home as well as at nursing home. The evidence of N.A.W.2, Arthur Marshal is to the effect that on 1st June, 1987 Mrs. Lynch suffered a fracture and she was weeping and blaming David Loughran for pulling the chair and causing her fracture. The evidence of this witness is worthless because Mrs. Lynch did not suffer any fracture on 1st June, 1987. Similarly, his presence at the time of execution of will is devoid of any details. He is a liar as he says that the advocate wrote the will before him. Although he names Dayal, but he is not able to name the Advocate or the other witness. He does not even mention the date and time of execution of will. N.A.W. 4, George Wilson, a friend of the appellant, in all, stated that Mrs. Lynch told her that she wanted to give the property to Mr. Pareira. 36. Although he names Dayal, but he is not able to name the Advocate or the other witness. He does not even mention the date and time of execution of will. N.A.W. 4, George Wilson, a friend of the appellant, in all, stated that Mrs. Lynch told her that she wanted to give the property to Mr. Pareira. 36. This is the entire evidence led by the appellant. There is no reliable evidence on record that fracture was caused on 4th June, 1987. There is no reliable evidence on record that Mrs. Lynch suffered fracture on account of David Loughran, pulling the chair. On the other hand, this appears to be an amateurish attempt to create evidence. No person would like to injure a person in a manner so that the injured may complaint to the entire world about the wicked deed. David Loughran would not do that if had a modicum of commonsense. David Loughran, if he is wicked man, would have attempted to kill Mrs. Lynch instead of pulling a chair and causing her hurt. This attempt on the part of the appellant is ludicrous in the extreme and devalues his claim to truthfulness even in unessential matters. Mrs. Lynch could have given the property to the appellant even without any allegation of hurt by David Loughran, but devious mind tries to invent false stories in order to bolster his claim, unaware that such ludicrous attempts are likely to boomerang upon him. Such is the case here. 37. It is apparent that Mrs. Lynch had written a will in favour of respondents and she had every right to change her mind. The respondents were no relatives of Mrs. Lynch. She had nothing to fear from them. She could have openly said so if she changed her mind that she was revoking the previous will made by her in favour of respondents and making a new will in favour of Vivian Pereira. This fact should have been mentioned in the will. However, the will asserts another cock and bull story that David Loughran obtained signature of Mrs. Lynch on blank stamp papers. There are no stamp papers. The will in favour of the respondent was written on plain paper entirely in the handwriting of Mrs. Lynch and it was attested by four respectable witnesses who were well known to Mrs. Lynch unlike Y. Dayal and Nandkishre Yadav. Lynch on blank stamp papers. There are no stamp papers. The will in favour of the respondent was written on plain paper entirely in the handwriting of Mrs. Lynch and it was attested by four respectable witnesses who were well known to Mrs. Lynch unlike Y. Dayal and Nandkishre Yadav. The scribe of the will did not know about the will made four years back completely and, therefore, made oblique reference to it or was he feigning ignorance ? 38. Thus, to sum up, this Court comes to the conclusion that the will made by Mrs. Lynch on 18.6.83 in favour of respondents No. 1 and 2 is proved and it is good and valid and, therefore, the order of the trial Court granting probate to the respondents in M.J.C. No. 70/87 is confirmed. The exeuction of the will dated 15.8.87 has not been proved by the appellant in accordance with law and this Court further holds that no probate can be granted to the appellant on the basis of this will as the appellant/propounder was unable to prove it to the satisfaction of this Court that will dated 15.8.87 is genuinely the last will and testament of the testator. 39. Before parting with the case, it may be mentioned here that counsel for the appellant has cited the cases of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 SC 443 (supra); Gopinath Sunderlal v. Chunnilal Sunderlal and another, AIR 1953 Nag 316; Mannalal v. Ramchandribai, 1982 J.L.J., S.N. 58; Smt. Ladhi Bal v. Thakur Shriji and others, AIR 1968 Raj. 41 ; Kotni R.N. Subudhi v. V.R.L. Murthy, AIR 1961 Ori 180 and Celestine Silva Bai and others v. Josephine Noronha Bal and another, reported in AIR 1956 Mad 566 . The Court is of the view in the matter of constitution, or proof of a will, the precedents are of little value. Each case has to be decided on its facts. The moral of this case appears to be that those who want to prove a false case in a Court of Law, must give attention to details so that they present a well woven fabric which cannot be discerned and discovered easily. However, when the woven material is coarse and mixed, the patching in the woven material shows only an artist can weave a fine yarn. However, when the woven material is coarse and mixed, the patching in the woven material shows only an artist can weave a fine yarn. The attempt of the appellant failed because not only patching shows but also the warp and woof. 40. The result is that this appeal, which is directed aganist the common order passed in M.J.C. Nos. 70/87 and 86/87, fails, and is dismissed. The impugned order passed by the Court below granting probate to respondents No. 1 and 2 is confirmed. However, it is directed that due to the loss of the original will from the record of the case, the trial Court shall grant probate to the respondents on the basis of photocopy of the will, i.e. Ex.A-1-A, on record. It is also directed that all interlocutory orders passed during the pendency of this appeal shall be deemed to have merged in the order passed by this Court and shall abide the result in this appeal accordingly. The appellant shall pay costs of both the appeals to the respondents. The consolidated fee of the counsel in both the appeals shall be Rs. 2000/- (Rupees two thousand), if certified. Appeal dismissed