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2000 DIGILAW 218 (CAL)

Promila Sundari Devi v. Bijoy Ghosal

2000-04-28

GORACHAND DE, Samaresh Banerjea

body2000
Judgment Samaresh Banerjea, J. The present appeal arises out of a Letter of Administration suit wherein by judgment and decree dated 7th October, 1985, the trial court has refused grant of Letter of Administration. 2. The appellants herein filed an application for grant of Letter of Administration with the Will annexed for the estate of Late Nepal Chandra Acharyya Ghosal, the husband of the appellant No.1 and father of the other appellants. 3. It is the case of the plaintiff that said Nepal Chandra Acharjya Ghosal, the husband of the appellant No.1 and father of the other appellants the testator, before his death on 14th October, 1974 executed a Will of June 26, 1974 corresponding to 11th Ashar, 1381 B.S. in presence of the witness without appointing any executor of his Will, bequeathing his property to the appellants, out of his free will and having the testamentary capacity. 4. The respondent herein contested the said proceeding by filing objection specifically pleading inter alia, that the alleged Will is not a genuine Will of the testator; the same has not been duly attested or executed; the same does not contain expression of free Will of the testator and the testator had no physical or mental capacity to execute the alleged Will at the time of alleged execution of the same. It was also pleaded that such Will is a product of misrepresentation and fraud and signature of the testator are to genuine and such Will is a unnatural Will. It was further specifically pleaded that the testator was suffering from senile decay due to his old age and he was suffering from Dropsy and blood vomitting and he was ultimately hospitalised and he was almost blind at the time of alleged execution of the Will; the testator was ill-treated by the second wife (appellant No.1) and ultimately died at hospital. It was further pleaded that the alleged Will is not the Will of testator and in any event the same was not voluntary act or expression of free will of the testator. 5. At the hearing of the suit the propounder examined the scribe of the Will of Krishna Chandra Ghosh, as also the two attesting witnesses Palan Chandra Naskar and Makhan Lal Naskar as also Niranjan Acharjya, brother-in-law of the testator (wife's brother) who was allegedly present at the time of execution of the Will. 6. 5. At the hearing of the suit the propounder examined the scribe of the Will of Krishna Chandra Ghosh, as also the two attesting witnesses Palan Chandra Naskar and Makhan Lal Naskar as also Niranjan Acharjya, brother-in-law of the testator (wife's brother) who was allegedly present at the time of execution of the Will. 6. The learned Judge after consideration of the entire evidence on record, in the impugned judgment and decree has held that the Will was not signed by the testator in the manner it was indicated by the plaintiff and on perusal of the Will it will appear that the signature of the testator was already in existence on the said dead and therefore the Will is not a genuine Will. 7. It has also been held by the learned Judge that the testator had no testamentary capacity at the time of execution of the Will. The learned Judge has also held that there was suspicious circumstances surrounding the execution of the Will and the propounder failed to remove such suspicion. 8. Having heard the learned Advocate for the parties and considering the entire material on records we are in full agreement with the learned Judge that the Will is not genuine and the plaintiff failed to remove the suspicious circumstances surrounding the execution of the Will and do not find any reason to interfere with the judgment and decree of the trial court. 9. Before going into the merits of the case, it is indeed fruitful to refer to the decision of the Supreme Court in the case of M. Venkatachala Iyengar vs. B.N. Thimma Jamma & Ors., reported in AIR 1959 S.C. 443 , where the Supreme Court had occasion to summarise the law relating to onus of proof of a Will; nature of appreciation of evidence and duty of the court in respect thereof. 10. In this connection paragraphs 18, 19 and 20 of the said judgment may be quoted hereunder wherein Their Lordships of the Supreme Court laid down the law as to the proof of execution of the Will, nature of appreciation of evidence and duty of the court. "(18) What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. "(18) What is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents sections 67 and 68, Evidence Act are relevant for this purpose. Under section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting and for proving such a handwriting under sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested and it provides that such a document shall not be used as evidence until on attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by Will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a Will. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. This section also requires that the Will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what is contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of Wills. It would prima facie be true to say that the Will has to be proved like any other document except as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. (19) However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. Even so, in dealing with the proof of Wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. The propounder would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily, when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. (20) There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature, the condition of the testator's mind may appear to be very feeble and debilitated and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testators the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances or, the Will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter." 11. In the said decision it was also held by Their Lordships if the propounder themselves take a prominent part in the execution of the Will which confers on them substantial benefit the same may amount to a suspicion circumstance. 12. It was further held by Their Lordships that in the matter of appreciation of evidence the general rule is a propounder of the Will has to prove the due and valid execution of the Will and that if there are any suspicious circumstance surrounding the execution of the Will the propounder must remove the said suspicion from the mind of the Court by cogent and satisfactory evidence. The aforesaid general and broad principle would always depend upon the fact and circumstance of the case. 13. In the case of Smt. Jaswant Kaur vs. Amrit Kaur & Ors., reported in AIR 1977 S.C. 74 , the Supreme Court after reiterating its view as expressed in the case of M. Venkatachala Iyengar vs. B.N. Thimmajamma (supra) further held that in a case where the execution of Will is shrouded with suspicion its proof cases to be a simple lis between the plaintiff and the defendant; what, generally, is an adversary proceeding, becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the Will is such as to satisfy the conscience of the Court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the Will. 14. In the case of Smt. Indu Bala Bose & Ors. vs. Manindra Chandra Bose & Anr. reported in AIR 1982 SC 133 , the Supreme Court after reiterating its earlier aforesaid views also explained what is the meaning of the suspicious circumstance. It was held that any and every circumstance is not a suspicious circumstance; a circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. 15. Thus no hard and first rule can be laid down when circumstance can be said to be a suspicious circumstance. When a circumstance will become suspicious circumstance therefore is really a question of fact and will depend under the facts and circumstances of a particular case. 16. In the case of Bileswar Kumar vs. Smt. Nirupama Debi & Ors., reported in AIR 1973 Calcutta 460, it was held by this Hon'ble Court that various discrepancies established a number of suspicious circumstances surrounding the execution of the Will and the propounder failed to satisfy the conscience of the court regarding execution and attestation of the Will. 17. Keeping the above principles of law in mind if we now proceed to examine the evidence adduced by the propounder, we find that there were number of suspicious circumstances surrounding the execution of the Will and the propounder failed to remove such suspicious circumstances by giving satisfactory and cogent evidence and there is every reason to hold that the Will is not a genuine Will. 18. Sri Palan Chandra Naskar, P.W.2 and Makhan Lal Naskar, P.W.3 are attesting witnesses to the Will and both of them have been examined by the propounder. But on examination of their deposition reveal material discrepancies and it appears to this Court that the evidence of Palan Naskar did not fulfil the requirement of section 63(c) of the Indian Succession Act. Section 63(c) of the said Act provides that the Will shall be attested by two or more witnesses, each of them has seen the testator sign or affix his mark to the Will. Section 63(c) of the said Act provides that the Will shall be attested by two or more witnesses, each of them has seen the testator sign or affix his mark to the Will. The testator therefore is required to sign or affix his mark to the Will in presence of both the attesting witnesses and each of the attesting witnesses must see that the testator signed the Will or affix his mark thereto or they must have the acknowledgment by the testator of signing the Will for execution thereof. 19. P.W.2, Palan Chandra Naskar, nowhere has stated in his evidence that the testator signed the Will in his presence or he has seen the testator to sign the Will or he has such acknowledgment from the testator. In examination-in-chief he proved his own signature and deposed inter alia that the testator read over the Will in their presence and before that he got Palan's signature and that of Makhan Lal Naskar (P.W.3 who is the another attesting witness) in the Will. He also deposed that the paper was signed by Makhan Lal Naskar in his presence and non else and he did not understand who signed at the top of the deed when he was shown the signature of the testator in English in the right hand corner top of the Will. He also deposed that he does not know English. He further deposed that the scribe, Kirshna Chandra Ghosh did not write the Will before he reached there. He further deposed 'Besides ourselves none sign the deed in our presence'. But neither during cross-examination nor in examination-in-chief he ever deposed that he has seen the testator to sign the Will or the testator signed the Will in his presence. 20. The other attesting witness viz., Makhan Lal Naskar, in his evidence, however, has deposed that the testator signed the Will in his presence. 21. But it appears from his evidence, for the reasons stated hereinafter, that he was not speaking the truth and he could not have been present at the time of execution of the Will. 22. 20. The other attesting witness viz., Makhan Lal Naskar, in his evidence, however, has deposed that the testator signed the Will in his presence. 21. But it appears from his evidence, for the reasons stated hereinafter, that he was not speaking the truth and he could not have been present at the time of execution of the Will. 22. Although he deposed in his examination-in-chief that the testator signed the Will in their presence and thereafter he signed his name on the Will, the same is wholly contrary to the evidence of P.W.2, Pal an Chandra Naskar, the other attesting witness who deposed inter alia, Nepal Babu read over the Will in their presence and before that he got his signature and signature of Makhan Naskar on the Will. From the Will also it appears that the signature of the attesting witnesses are above the signature of the testator. 23. In his examination-in-chief he deposed the two signatures of the testator on the Will were approved by him and during his cross-examination by the defendant Nos. 1 and 2 after declaring that he knew the full same of Nepal Babu which is Nepal Chandra Ghosal, he asserted that the testator signed his name as Nepal Chandra Ghosal in his presence. But the same is wholly contrary to the actual fact as it will appear from the Will itself that the same bears the signature of the testator in two places where he signed as Nepal Chandra Acharjya Ghosal and not as Nepal Chandra Ghosal. 24. But what is worst that P.W. 3 although claimed himself as an attesting witness, during his cross-examination by the defendant Nos. 1 and 2 he not only deposed about the existence of a draft Will, like the scribe, which was never corroborated by the other witnesses including Pal an Naskar, he further spoke of one original Will written on two pages by the scribe, a fair copy of the Will consisting of two pages signed by the scribe thereafter by the testator and thereafter by the attesting witness including himself and also of exhibit 1. 25. As to the exhibit 1 itself his evidence is wholly contradictory and inconsistent with his own evidence inasmuch as, first of all he deposed that two pages which the testator and the attesting witness signed is the paper being exhibit 1 (i.e. the Will). 25. As to the exhibit 1 itself his evidence is wholly contradictory and inconsistent with his own evidence inasmuch as, first of all he deposed that two pages which the testator and the attesting witness signed is the paper being exhibit 1 (i.e. the Will). But in the same breadth he again deposed that first the draft Will was prepared thereafter fair copy of the Will of two pages were prepared which the testator and the attesting witness signed and thereafter exhibit 1 was written and signed by the testator or themselves. He thus spoke of apart from draft also two Wills signed by the testator and the attesting witnesses. 26. The Will being exhibit 1, however, admittedly contains one page and not two pages. 27. It may be noted in this connection apart from P.W.3 neither the scribe nor Palan Chandra Naskar P.W.2 the other attesting witness nor any other witness spoke of preparation and execution of another Will (fair copy of Will) other than exhibit-l and signing of the same by the testator and the attesting witnesses. Neither the draft Will nor alleged fair copy of the Will were never produced. Such facts coupled with his further evidence that the testator signed as Nepal Chandra Ghosal although from Will it appears the testator signed the Will as Nepal Chandra Acharjya Ghosal demolishes his credibility and lead to a reasonable inference that P.W.3 was not even present at the time of execution of the Will and he never saw the testator signed the Will in his presence. In fact P.W. 1, the scribe, deposed that the testator signed the Will in his presence and the witnesses did not sign the Will in his presence. 28. In this connection it may also be noted that the Will in question being exhibit-l consists of only one page and not two pages and in accordance with the evidence of the P.W.3 the draft of the Will contain two pages and the fair copy of the Will which was also signed by the testator and the attesting witnesses consist of two pages. Such evidence makes the execution of the Will shrouded by suspicious circumstances. It does not stand to reason why the Will being exhibit-l had to be written and executed at all when another Will, namely fair copy of the Will, was written and signed by the testator and the attesting witnesses. Such evidence makes the execution of the Will shrouded by suspicious circumstances. It does not stand to reason why the Will being exhibit-l had to be written and executed at all when another Will, namely fair copy of the Will, was written and signed by the testator and the attesting witnesses. The same was never explained. It was also not explained why the Will being exhibit 1 had to be equeezed in one page when the draft Will and the fair copy of the Will were written in two pages. 29. The evidence as adduced by the other witnesses also appears to us, to be not reliable at all as there are serious and material contradiction therein. 30. P.W. 1 Krishna Chandra Ghose, the scribe, in his examination-in-chief deposed that he signed the Will as a scribe and the said Will was written by him and the testator signed the Will in his presence, but prior to that he had gone through the Will. He further deposed specifically that the witnesses did not sign the Will in his presence. In cross-examination he, however, stated for the first time that there was a draft Will which he gave to the testator who verbally approved the same and after writing of the Will be handed over the written Will along with the draft to the testator. But in the same breadth he deposed in cross-examination that after reaching the house of the testator he was instructed about the terms and conditions to be incorporated in the Will. 31. If such evidence of P.W. 1 is accepted the inevitable conclusion would be that there was no draft Will as P.W. 1 never deposed that a draft was also written at the testator's house under the instruction of the testator, but P.W. 1 deposed that he handed over the draft to the testator who approved the same. The draft, in fact, was never produced. Of the two attesting witnesses P.W.2 does not refer to any draft Will. P.W.3, however, spoke of a draft Will, but as pointed out hereinbefore he spoke of two more Wills viz., the exhibit-l and also a fair copy of the Will signed by the testator and the attesting witnesses. 32. The draft, in fact, was never produced. Of the two attesting witnesses P.W.2 does not refer to any draft Will. P.W.3, however, spoke of a draft Will, but as pointed out hereinbefore he spoke of two more Wills viz., the exhibit-l and also a fair copy of the Will signed by the testator and the attesting witnesses. 32. P.W.5 Niranjan Acharjya, testator's wife's brother, who, according to him was present through out at the time of execution of the Will when confronted with the question of draft Will deposed that he was not aware of any draft Will. 33. P.W.1, the scribe during his cross-examination contradicted himself by claiming that he was also witness to the Will (Isadi) although admittedly he was not an attesting witness to the Will. 34. What is more during cross-examination he further stated that an executor was appointed in the Will and the testator instructed him to appoint his wife as the executrix in the Will, although, in fact, no executor was appointed in the Will. 35. He further deposed in his cross-examination that at the time of execution of the Will the testator's wife was present and thereby contradicted P.W.4 the wife of the testator and Niranjan Acharjya, P.W.5, who deposed that the wife was not present at the time of execution of the Will. 36. P.W. 1 although deposed that during his presence the witness did not sign the Will, in cross-examination he deposed so long he was present and read out the Will they are present including the attesting witnesses. P.W.2 Palan Chandra Naskar who is the attesting witness, however, deposed that the Will was not written in his presence and it was already written when he reached the house of the testator. 37. P.W.4 the wife of the testator, in her cross-examination categorically denied that she was present at the time of execution of the Will although P.W. 1, the scribe, deposed that at the time of execution of the Will the wife was present. 38. P.W.5 Niranjan Acharjya, the testator's brother-in-law (wife's brother) claims that he was present at the time of execution of the Will. 38. P.W.5 Niranjan Acharjya, the testator's brother-in-law (wife's brother) claims that he was present at the time of execution of the Will. He further deposed inter alia that after the Will was written by the scribe as per direction of the testator the Will was read out by the scribe, thereafter the same was read out by the testator and thereafter the testator signed the Will and the scribe and the attesting witness signed the Will in presence of the testator. 39. Thus he materially contradicts Palan Chandra Naskar, P.W.2 who deposed that Nepal Babu read over the Will but before that he got the signature of Palan and Makhan on the Will. 40. The said P.W.5 during his cross-examination when confronted with question as to the date of execution of the Will, introduced the story that he saw the date of execution of the Will in a notice book of the testator 3/4 months back where it was written that on 11th Ashar the Will was written. Such notice book was never produced. 41. It also appears to us that although the Will on the face of it is a suspicious document and there were suspicious circumstances surrounding the execution of the Will, the propounder failed to remove such suspicious circumstances. 42. The Will itself (exhibit-2) is shrouded with suspicion. The Will contains two signatures of the testator, one at the top at right-hand corner of the Will and another at the bottom of the paper, even below the signature of the attesting witness. The first 7 lines of the Will have been written keeping space for the right-hand corner of the Will where there is signature of the testator. 43. The normal human conduct for a testator would be to sign the Will after it is written and therefore if the testator also sign at the top right-hand corner, the Will be written, after keeping a space for such signature, from below such space. 44. But even assuming the evidence of P.W.2 the scribe that he instructed that the testator to sign there is to be accepted, it does not stand to reason as to why in such a case the Will had to be written in such a manner keeping space on the right-hand corner when such writing could have been started below the space for signature at the top right-hand corner. 45. 45. The explanation sought to be given by P.W. 1 the scribe that a Will is written by him in such a manner is hardly satisfactory. 46. But even if such an explanation can be accepted, there is no explanation whatsoever why the testator in execution of the Will had to append his signature at the bottom of the paper even below the signature of the attesting witnesses. 47. For the purpose of execution of a Will the normal human conduct for a testator would be to put his signature just below the writing of the Will and the attesting witnesses of the Will normally will not put their signatures just below the writings of the Will above the signature of the testator. Normally the witness of the Will append their signature always below the signature of the testator or at the left corner bottom of the Will. 48. The existence of the signature of the attesting witnesses just below the writings of the Will above the signature of the testator and the position of the signature of the testator at the bottom of the paper even below the signature of the attesting witnesses is highly suspicious and will lead to an inference that the signature of the testator was already there in a blank paper which was subsequently filled in by the writings of the Will and signature of the attesting witnesses. 49. P.W.1 in his evidence deposed inter alia that after reading of the Will the testator first of all got the signature of the witnesses in the Will. Even if so, the same does not explain why the attesting had to sign the Will at the end of the writings of the Will above the signature of the testator. 50. We are not oblivious of the fact that although under the English Law the testator must sign at the end of the writings of the Will, in India there is no specific place as to the placement of the signature of the testator and it has been held by this Hon'ble Court in the case of Savitri vs. Savi, 19 CWN 1297 that the signature of the testator need not necessarily be at the end of the Will and in the Will executed in vernacular language it is usual to put the signature at the top of the Will. 51. 51. At the same time section 63(b) of the Indian Succession Act, 1925 requires the signature or mark of the testator to be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. It cannot also be overlooked that although it may be common practice in India, when the Will is written in vernacular language, to execute the same by signing at the margin of the top right-hand corner, when the Will is executed by signing at the bottom of the Will it is also the general practice to put the signature immediately below the writing of the Will and that too above the signature of attesting witnesses. 52. In the instant case the Will has been written in the vernacular language although the testator signed the same in execution thereof in English language. The signature of the testator not only appears at the top right-hand corner of the Will, but also at the bottom of the page far below the writings of the Will and in fact even below the signature of the attesting witnesses. The same being against the normal practice becomes a suspicious circumstances and as pointed out hereinbefore the propounder has failed to remove such suspicion by giving a satisfactory explanation in respect thereof. 53. Under the facts and circumstances of this particular case because of the placement of the signature of the testator in the manner aforesaid below the signature of the attesting witnesses, the intention of the testator to give effect to the writing of the Will indeed becomes doubtful. 54. That apart if the attesting witnesses have signed the Will even before the execution of the Will by the testator by signing the same, the attesting witnesses can hardly be said to be witnesses to the execution of the Will. 55. As held by the Supreme Court in the case of Benichand vs. Kamala Kanwar, reported in AIR 1977 SC 63 , attestation means the signing of a document to a signify that the testator is a witness to the execution of the document; attesting witness is one who signs the documents in presence of the executant after seeking the execution of the document or after receiving a personal acknowledgement from the executant with respect to the execution of document. 56. 56. The position of the signature of the attesting witness even above the signature of the testator and just below the writing of the Will being against normal practice and behaviour also makes the Will highly suspicious and there is every probability that the attesting witness had to append their signature above the signature of the testator as the said document already contained the signature of the testator at the bottom of the page and the Will was written subsequently and hence the attesting witness had to sign above the signature of the testator. 57. As to the finding of the trial court as to the lack of testamentary capacity of the testator to execute the Will because of his illness, although the same may be and subject to criticism, inasmuch as, sufferance from tuberculosis or dropsy by the testator cannot lead to the inference in absence of evidence, that such disease affected mental faculty of the testator and therefore he was not in a position to exercise his free will at the time of execution of the Will, it is not really necessary for the court to go into such question in detail in view of the fact we have already held accepting the finding of the trial court that the propounder failed to prove execution of the Will by the testator and the Will was not genuine Will. For the reasons stated above the appeal fails and the same is hereby dismissed. There will be no order as to costs. G.C. De, J.: I agree. Appeal dismissed.