Judgment M.L.Singhal, J. 1. For a better understanding of the case, the following pedigree table is given :- Jawala | ---------------------------------------------------- | | | Mela Keli Gandu | | Kashmir Singh Rattan Singh Garib Singh (deceased) & Kishan SIngh ------------------------------------- | | | Bachan Darshan Bakshish Singh Singh Singh 2 Rattan Singh was owner in possession of 1/2 share of land measuring 94 kanals 7 marlas situated in village Jalalpura as detailed in the heading of the plaint. Rest 1/2 share of land measuring 94 kanals 7 marlas was owned by Bakshshish Singh and his two brothers Darshan Singh and Bachan Singh. Bakhshish Singh instituted suit for declaration against Darshan Singh and Bachan Singh etc. defendants to the effect that he is owner in possession of 1/2 share of land measuring 94 kanals 7 marlas pertaining to Rattan Singh on account of will dated 29.12.1978 executed by him in his favour to the exclusion of Darshan Singh and Bachan Singh etc. defendants. It was alleged in the plaint that Rattan Singh was bachelor. He was putting up with him (Bakshish Singh) jointly. He (Bakshish Singh) was looking after him and serving him. He was joint in mess and cultivation with Rattan Singh. Rattan Singh had love and affection being rendered by him to him. He, therefore, constituted him as his sole heir by will dated 29.12.1978 thereby bequeathing his entire property movable and immovable to him. So far as other brothers of Bakshish Singh i.e. Bachan Singh and Darshan Singh are concerned, they are residing in U.P. They were not in a position to look after and serve Rattan Singh. Similarly, Bakshish Singhs sisters were putting up with their in-laws and were not in a position to look after and serve Rattan Singh. Rattan Singh died in September 1979. His last rites were performed by him (Bakhshish Singh). Mutation No. 943 was entered by the patwari in his favour on the basis of that will. That Mutation was rejected by SDO (Civil) exercising the powers of Assistant Collector 1st Grade, Amritsar unjustly thereby ignoring the will, Darshan Singh etc. had no right, interest or title in the inheritance of Rattan Singh and as such he asked for permanent injunction restraining them from interfering in his possession. 3. That Mutation was rejected by SDO (Civil) exercising the powers of Assistant Collector 1st Grade, Amritsar unjustly thereby ignoring the will, Darshan Singh etc. had no right, interest or title in the inheritance of Rattan Singh and as such he asked for permanent injunction restraining them from interfering in his possession. 3. Darshan Singh, Garib Singh and Smt. Bachni defendants filed written statement admitting the will and consequentially the claim of the plaintiff as laid in the plaint. Bachan Singh, Smt. Charni, Kishan Singh and Bissi defendants contested the suit of the plaintiff urging that Rattan Singh never executed any will in favour of the plaintiff. Will set up by him is false and forged. It was denied that Rattan Singh was residing with the plaintiff jointly or that they had a joint mess. Rattan Singh was residing all alone and he was being served by the defendants. Rattan Singh had love and affection for the defendants. Defendants 4 and 5 i.e. Garib Singh and Kishan Singh have their residence in village Jalalpura. It was denied that last rites of Ratan Singh were performed by the plaintiff. In fact, his last rites were performed by the defendants. Will was rightly adjudged to be false and forged by AC 1st Grade. Ajnala who rejected the mutation. Rattan Singh was first cousin of Bakshshish Singh, Darshan Singh, Bachan Singh, Garib Singh and Kishan Singh and as such there was no occasion for him to have preferred Bakshish Singh and exclude all others equally related to him. 4. On the pleadings of the parties, the following issues were framed by the trial Court :- 1. Whether the plaintiff is the owner in possession of the suit land ? OPP 2. Whether Rattan Singh executed a valid will in favour of the plaintiff on 29.12.1978? OPP 3. Whether the order of SDO (C) refusing to sanction the mutation on the basis of alleged will in favour of the plaintiff if illegal, null, void and without jurisdiction ? OPP 4. Whether the plaintiff has locus standi to file the present suit ? OPP 5. Whether the suit is properly valued for the purposes of court fee and jurisdiction ?OPP 6. Relief. OPP 4. Whether the plaintiff has locus standi to file the present suit ? OPP 5. Whether the suit is properly valued for the purposes of court fee and jurisdiction ?OPP 6. Relief. Subordinate Judge 1st Class, Amritsar dismissed the plaintiffs suit vide order dated 29.11.1982 in view of his findings that Rattan Singh had not executed any will in favour of Bakhshish Singh dated 29.12.1978 as set up by him and that Assistant Collector 1st Grade. Amritsar had justly refused to sanction mutation on the basis of that will. 5. Aggrieved from this judgment and decree dated 29.11.1982 of Sub Judge 1st Class, Amritsar, Bakhshish Singh went in appeal. Additional District Judge, Amritsar accepted the appeal and set aside vide order dated 23.11.1984 the judgment and decree of Sub Judge 1st Class, Amritsar and decreed the plaintiffs suit for declaration that he is owner in possession of 1/2 share of land measuring 94 kanals 7 marlas as detailed in the heading of the plaint pertaining to Rattan Singh on the basis of will dated 29.12.1978 executed by Rattan Singh in his favour and for permanent injunction restraining the defendants from interfering in his possession of the land in view of his finding that the will set up by Bakhshish Singh was genuine. 6. In this appeal, the only question arising is "whether Rattan Singh had executed any will dated 29.12.1978 Ex.P1 in favour of Bakhshish Singh while in sound disposing mind". For determining this question, we have to look to the nature of the proof required in case of a will, so that will could have to be said genuinely executed by testator with the intention that it should operate as his last will and his testament. In H. Venkatachala Iyengar v. B.N. Thimmajamma and Ors., AIR 1959 S.C. 443 the Honble Supreme Court observed as under :- "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, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Sections 67 and 68 of the 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 one 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 the 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 there 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. 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 it 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. 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 it 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. 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, that testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an elements 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. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testators 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. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 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 propounded case that the signature in question is the signature of the testator may not remove that doubt created by the appearance of the signature; the condition of the testators 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 testator; 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 testators 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. 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. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word conscience in the context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive." It is thus, clear that where the execution of will is surrounded by suspicious circumstances, it is for the propounder to dispel those suspicious circumstances and satisfy the conscience of the Court that there was reason for the testator to prefer the propounder and exclude others. In determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding the solemn question and must be fully satisfied that it was executed by testator but no longer alive. In this case, therefore, we have to appreciate the evidence produced on record to find out whether Rattan Singh was so favourably disposed towards Bakshsish Singh that he felt inclined to exclude all others and prefer him although they were all his first cousins. Will Ex.P1 (certified copy purports to have been attested by Lambardar Pritam Singh, Amar Singh and Rood Singh. It purports to have been scribed by Lal Singh deed writer, Ajnala on 29.12.1978. Rattan Singh died in September 1979. He thus remained alive for 8/9 months after he has executed the alleged will. This will could have been got registered but was not got registered. It purports to have been scribed by Lal Singh deed writer, Ajnala on 29.12.1978. Rattan Singh died in September 1979. He thus remained alive for 8/9 months after he has executed the alleged will. This will could have been got registered but was not got registered. It is also true that an unregistered will does not stand on a weaker footing vis a vis a registered will. It is equally true that a registered will may stand on a better footing vis a vis an unregistered will because when a will is produced before the Sub Registrar, it is read out to the testator by him and he registers the will after he makes sure that the executant of the will is of sound disposing mind. In this case, more credence could have been attached to this will if it had been got registered because Bakhshish Singh, Darshan Singh etc. are all first cousins of Rattan Singh. If Rattan Singh was really to exclude Darshan Singh etc., Sub Registrar could question him whether he was really excluding them and preferring Bakshshish Singh though they were equally nearly related to him. Rattan Singh and Bakhshish Singh were residing in the same house as they were recorded as voters but they were not separate in cultivation. Rattan Singh was cultivating another strip of land though khata was joint. Rattan Singh did have affinity with Bakhshish Singh. In this case, however, there is serious snag so far as the execution of the will by Rattan Singh is concerned. Amar Singh is one of the attesting witnesses of this will. It was suggested to Amar Singh that it was he who thumb marked the will in place of Rattan Singh. Rattan Singh did have affinity with Bakhshish Singh. In this case, however, there is serious snag so far as the execution of the will by Rattan Singh is concerned. Amar Singh is one of the attesting witnesses of this will. It was suggested to Amar Singh that it was he who thumb marked the will in place of Rattan Singh. Amar Singh was called upon to give the sample thumb impression of his left thumb in Court and he gave left thumb impressions in Court, will and the said sample thumb impressions were sent to Finger Print Bureau, Phillaur for the comparison of thumb impression purporting to be that of Rattan Singh on will with the sample thumb impressions of Amar Singh which he had given in Court and the report of Director, Finger Print Bureau, Phillaur was that the impression marked Y on the will (X) was partly ink smudged but, otherwise it is comparable and there exist sufficient (not less than 8) points of similarity i.e. matching ridge characteristic details in their identical sequence, without any discordances, between its comparable portion and the corresponding portion of the thumb impression of. Amar Singh marked I on his sample paper vide largements marked as (Y/Y and I/I) respectively. 8 points of similarity in their same form and position have been graphically shown on them. The nature, direction and sequence of each point has been indicated in its relevant circle. So many points of similarity cannot be found to occur in the impressions of different thumbs and fingers. These were, therefore, identical or were of one and the same person. According to the Finger Print Bureau, Phillaur, the will was bearing the thumb impression of Amar Singh. How could will be acted upon when it had not been proved to have been executed by Rattan Singh. Bakhshish Singh claimed to have been the cynosure of the eyes of Rattan Singh, who bestowed on him his entire immovable and movable property including 1/2 share of land measuring 94 K 7 M. It was for Bakhshish Singh to have satisfied the conscience of the Court that it was Rattan Singh, who had thumb marked this will and it was through this will that he set at naught the hopes of other equally nearly related to him by constituting him alone as his sole heir. Such a will the very execution of which by Rattan Singh is shrouded in grave mystery could not have been acted upon. 7 For the reasons given above, this appeal succeeds and is allowed. Judgment and decree passed by the first Appellate Court are set aside and those passed by Sub Judge 1st Class, Amritsar are restored. In consequence, the suit of the plaintiff-respondent is dismissed.