JUDGMENT Ganguly, J. : This first appeal has been filed challenging the judgment and decree dated 28th June, 1991 delivered by Additional District Judge, Second Court, Alipore in O.S. No.1 of 1988. 2. The material facts of this case are as follows. 3. One Srimati Khanta Bala Dutta, wife of late Bhawani Prasad Dutta, aunt of the appellant died on 17th April, 1971 at 16, Chandra Mondal Lane, P.S. Tollygunge, Calcutta - 26. Khanta Bala [hereinafter referred to as the testatrix] was a widow and had no issue at the time of her death. 4. The dispute is over the grant of probate of a will, which the testatrix is said to have executed on 24th May, 1950. The said will was registered on 26th July, 1950. Under the will the testatrix bequeathed her entire property in favour of the defendant/opposite party No.1, Sri Paresh Chandra Dutta. On or about 12th May, 1987 the defendant/opposite party Paresh Chandra Dutta, the propounder filed an application for probate. 5. Certain admitted facts may be noted. The testatrix, at the time of her death, left behind three persons who claimed themselves as her heirs and legal representatives. They are (1) Paresh Chandra Dutta, the brother's son of the testatrix and the propounder of the will, (2) Pran Krishna Dutta, brother's son of the testatrix and (3) Gopal Dutta, brother's son of the testatrix who did not contest the probate proceeding. It is also not in dispute that all the parties including the testatrix lived at 16, Chandra Mondal Lane, P.S. Tollygunge, Calcutta 26. 6. Initially when the petition for probate was filed by Paresh Chandra Dutta, Pran Krishna, since deceased, gave his consent to the application for probate whereas Gopal another brother of the propounder, filed an objection and the probate application was treated as contentious and was registered as a suit. Thereafter, Gopal filed a written statement denying the validity of the will but ultimately filed a petition describing the will as a genuine one and did not contest the suit. But Pran Krishna even though initially gave consent to the probate application subsequently filed an application challenging the validity of the will and wanted to contest the suit. Accordingly, permission was given to Pran Krishna tp contest the proceeding which was numbered as O.S. No.1 of 1988. 7. But Pran Krishna even though initially gave consent to the probate application subsequently filed an application challenging the validity of the will and wanted to contest the suit. Accordingly, permission was given to Pran Krishna tp contest the proceeding which was numbered as O.S. No.1 of 1988. 7. In the suit a written statement was filed by Pran Krishna that the will is not a genuine document and the discovery of the same after 15 years of the death of testatrix is one of the suspicious circumstances. It was further stated that the signature of the testatrix was forged and the recitals in the will created suspicion. It was further stated that the testatrix who died in 1971 could not be expected to make the will in 1950 which is more than 20 years before her death. 8. It was also stated that there was nothing to show in the will that its contents were read over and it explained to the testatrix who was an illiterate lady. It was also stated that Kalipada Bose who is one of the attesting witnesses and who signed the petition for grant of probate and also signed the will was not one and the same person and the will is a forged one. 9. On the basis of the pleadings between the parties the following issues were framed by the Trial Court:– “1. Is the suit maintainable as framed? 2. Is the suit barred by limitation? 3. Is the suit had for defect of parties? 4. Is the impugned will dated 24-07-50 executed by Khantabala Dutta is forged and obtained by fraudulent means as alleged? 5. Is the plaintiff entitled to get Probate of the will as prayed for?” 10. Of these issues, the first three issues were not pressed at the trial. 11. In this case, in order to prove the will the propounder has examined 5 (five) witnesses and the appellant has examined himself as the only witness on his side. 12. It is an admitted position that both the attesting witnesses to the will, namely Kalipada Bose and Chinta Haran Das died at the time when the probate proceeding were going on. As such they cannot be produced. To prove their signatures, witnesses were produced. The scribe of the will was also produced. 13. P.W.1 is the scribe of the will. It is an admitted position that both the attesting witnesses to the will, namely Kalipada Bose and Chinta Haran Das died at the time when the probate proceeding were going on. As such they cannot be produced. To prove their signatures, witnesses were produced. The scribe of the will was also produced. 13. P.W.1 is the scribe of the will. In his evidence the scribe deposed that the contents of the will were written by him as per instruction of the testatrix. It was also stated that the testatrix was present when the will was written and the testatrix thumb impressed the will in his presence. It was further stated that the name of the testatrix was written by Chinta Haran, the attesting witness. The scribe also deposed that both Chinta Haran and Kalipada the two attesting witnesses signed the will in his presence and the testatrix was present when attesting witnesses signed the will. The will was marked Ext.1 and the scribe also stated that the testatrix was in a proper physical and mental condition when the will was made and executed and the will was subsequently registered. 14. In cross-examination, the scribe said that he presented the will for registration. But he has also admitted that he did not see the testatrix from before. One of the attesting witnesses, Chinta Haran, brought her to the scribe. The scribe also stated that he got his licence as a deed writer in 1949. He also admitted that there is no endorsement on the will that the will was read over and the contents of the will were explained to the testatrix. He also deposed that Kalipada, another attesting witness was also a senior deed writer. He also deposed that the testatrix did not thumb impress the will at the bottom of the recital nor did the attesting witnesses put the date below their respective signatures. The scribe said that the draft will was made and the contents of the draft will was also read over to the testatrix and thereafter, the contents of the will were written and read over once more to the testatrix and thereafter, the thumb impression of the testatrix was taken on the will and the name of the testatrix on the will was written. The attesting witness signed on the will and the scribe also signed on the will and the testatrix was present throughout in his Sherista. The witness denied the suggestion that anybody did set up the testatrix or that he prepared the will on the instruction of another person. 15. P.W.2 Apurba Ranjan Bose son of Kalipada, deposed that he knew the hand-writing of his father and identified the signature of his father, Kalipada, in page 2 of the application for grant of probate. The witness also deposed that the signature alongwith the other writings regarding the village address were written by Kalipada in the presence of the witness. The said witness also proved the death of Kalipada by producing his death certificate. The witness denied the suggestion that both the sing nature of Kalipada marked as Ext. 1/2 and Ext.2 are not by the same hand. An attempt was made on behalf of the defendant to introduce some inconsistencies in the evidence of the witness with reference to the address of Kalipada, but the said inconsistencies are very minor in nature in view of the deposition of the witness. 16. The evidence of P.W3, Smt. Usha Rani Das, daughter of Chintaharan, is not of much value. Smt. Sova Mitra, P.W.5., the grand-daughter of Chintaharan, proved the signature of Chintaharan. The death of Chintaharan has been proved on the basis of the death certificate and the same is marked Ext.4. Therefore, the attempt which was made by the appellant's Counsel before this Court to show that the death of Chintaharan has not been proved is not correct. It also appears that P.W.5 is also known to the objector. 17. The evidence of the propounder, viz. Paresh Chandra Dutta, P.W.4 is also consistent with the evidence of other P.Ws. His evidence is that he was born in the year 1937 and migrated to India from Bangladesh in the year 1947. The propounder came with his aunt in the year 1947. The aunt had no children and her husband died and the husband was not alive when aunt brought the propounder to India. He gave explanation for the delay in filing the application for probate. He deposed that he had no knowledge of the requirement for filing such application for probate and tried for mutation of his name in the property. The aunt had no children and her husband died and the husband was not alive when aunt brought the propounder to India. He gave explanation for the delay in filing the application for probate. He deposed that he had no knowledge of the requirement for filing such application for probate and tried for mutation of his name in the property. Then he became aware of the necessity of filing such application and applied for probate. The propounder identified the will. From the evidence, it is clear at the time of the making of the will in the year 1950, the propounder was barely 13 year old. The propounder also proved the signature of Kalipada on the probate application. 18. Then comes the evidence of the appellant. In his evidence, the appellant said that the propounder is senior to him by 5 to 6 years and denied that Chintaharan or Kalipada are related either to them or to their aunt. It was stated by him that the will is a fictitious document and was not executed by the testatrix. His evidence is that the said will was created by the propounder with the assistance of people of his group. He admitted that during the lifetime, the testatrix used to grant rent receipt by putting her thumb impression. His evidence before the Court is that the will was created by the propounder with the help of a lady and the subject matter of the will is a thika tenancy property. In his cross-examination, the appellant admitted that he knows the house of Chintaharan, but never visited the house. He also knows P.W.5, grand-daughter of Chintaharan, personally. He admitted in his cross-examination that both he and his brother filed a suit against the propounder for partition in the Alipore Court, but, the subject matter of the will does not figure in the said partition suit, even though the said suit was filed in the year 1989. He admitted that he did not pay the taxes of the property, which is the subject matter in these probate proceedings. He said that the will was not executed in his presence nor did he see how the will was executed. He made it clear that the will was executed with the assistance of a lady. But, he did not ascertain the actual identity of the lady who allegedly impersonated the testatrix. He said that the will was not executed in his presence nor did he see how the will was executed. He made it clear that the will was executed with the assistance of a lady. But, he did not ascertain the actual identity of the lady who allegedly impersonated the testatrix. His evidence is that about 50 years back, he came to know from the propounder that the will had been created. But he did not report the fact to his aunt. He also admitted that after the death of the testatrix the appellant did not realise any rent from the tenant in respect of the property and the propounder started realising rent. He never made any attempt to collect the rent. He deposed in the cross-examination that he gave his consent to the grant of probate knowing fully well that the will was a genuine one. 19. This is the state of evidence in this case. 20. The learned Counsel for the appellant has raised the following questions in support of his contentions that the appeal should be allowed :– (i) The execution of the will by the Testatrix has not been established. (ii) The second point was Kalipada who gave his declaration to the probate application is different from Kalipada who is the attesting witness. (iii) The death of Chintaharan has not been established. (iv) The will has not been proved under Section 68 of the Indian Evidence Act. 21. The learned Counsel also relied on two decisions. One is reported in 74 CWN 297 and the other is reported in (1994) 5 SCC 135 . 22. This Court is unable to accept the contentions of the learned Counsel for the appellant. Exts. 3 and 4, which are the death certificates, prove the death of Kalipada and Chintaharan. It is clear that both the attesting witnesses expired before the commencement of probate proceedings. The signature of both the attesting witnesses have been proved. In the case of Kalipada, it was done by his son and in the case of Chintaharan by his grand-daughter. (So far as the identification of the testatrix is concerned, this Court finds that in the will itself, which is Ext. The signature of both the attesting witnesses have been proved. In the case of Kalipada, it was done by his son and in the case of Chintaharan by his grand-daughter. (So far as the identification of the testatrix is concerned, this Court finds that in the will itself, which is Ext. 1 which was brought to the Court from the custody of the Registrar, the execution is admitted by the testatrix and on the back of the will, there is a thumb impression of the testatrix and the testatrix was identified by Chintaharan at the time of registration before the Registrar. It is clear that the L.T.I. of the testatrix which has numbered as 3314 was by the pen of Chintaharan. Chintaharan's signature has also been indentified by his granddaughter who is also known to the appellant. The will was presented before the Registrar by the testatrix and the testatrix admitted the execution of the will before the Registrar. In the application for grant of probate, Kalipada gave the declaration and in the declaration, Kalipada made it clear that he and the other attesting witnesses were present and saw the testatrix to put her signature on the will. 23. Much argument was made by the learned Counsel for the appellant on the ground that Kalipada, one of the attesting witnesses, declared that the testatrix had put her signature but whereas testatrix had given thumb impression on the will. This, according to the learned Counsel, is a vital discrepancy in the evidence and creating suspicion about the will. This Court finds that the testatrix is an illiterate lady. Under the General Clauses Act, under Section 3 (56), it is clear that in case of a person who is unable to read and write his name, the expression ‘sing’ shall include a mark. 24. In Indian Succession Act, by Paruck. 7th Edition, at page 135, it has been stated that in the case of an illiterate person, a mark would mean his signature. So this argument of the learned Counsel for the respondent does not have much substance and nothing turns on this. 25. The learned Counsel for the appellant has also made a point that the will has not been signed at the bottom by the testatrix. So this argument of the learned Counsel for the respondent does not have much substance and nothing turns on this. 25. The learned Counsel for the appellant has also made a point that the will has not been signed at the bottom by the testatrix. This Court has perused the original will and found that there is the thumb impression of the testatrix on the right hand side corner of the first page as also on the reverse of the first page. Then again there is a thumb impression on the right-hand corner of the second page and also on the right-hand corner of the last page. In view of so many thumb impressions given by the testatrix on the body of the will, the absence of a thumb impression at the end of the will is of no consequence. It is well settled that according to Section 63(b) of Indian Succession Act, the requirement is that the signature of mark of the testatrix or the signature of the person signing for him shall be placed in such a way that it shall appear that it was intended to give effect to the writing as a will. That itself, is valid execution (see the decision of the Calcutta High Court in the case of Savitri v. F.A. Sain, reported in 19 CWN 1297). To the same effect is the judgment of Justice Ashutosh Mookherjee speaking for the Division Bench in the case of Sagar Chandra Mondel v. Digambar Mondol reported in 14 CWN 174. 26. The learned Judge, relying on Jarman on Wills 5th Edition, Vol. 1 page 80 and Redfield on Wills 4th Edition, Vol. 1, page 208 held in Sagar Chandra (supra), that if there is one signature made with the intention of authenticating the whole instrument, it is sufficient though the will may contain several sheets of paper. It has also come in the cross-examination of the scribe that after the draft of the will was made ready, the contents were read over to the maker. Thereafter, the contents of the will was written and read over once again to the maker and, thereafter, the thumb impression of the maker was taken. This evidence in the cross-examination clinches the issues. Thereafter, the contents of the will was written and read over once again to the maker and, thereafter, the thumb impression of the maker was taken. This evidence in the cross-examination clinches the issues. Again from the evidence of P.W. 2, it is clear that the death certificate of Kalipada was produced and there is no suggestion to the P.W. 2 about the wrong identify of Kalipada. In view of such state of evidence, it is difficult for this Court to accept the contentions of the learned Counsel for the appellant that the will has not been properly proved. The learned Counsel for the appellant relied on the decision rendered in the case of Smt. Bijonlata Mukhopadhyay v. Bibhuti Bhushan Mukhopadhyay (74 CWN 297) in order to contend that the will in this case has not been proved. The learned Counsel relied on the para 7 of the judgment. 27. The learned Judges of the Division Bench in Bijonlata held that in matters of granting probate of a will a duty is cast upon the Court to make itself free from any reasonable doubt, and in doing so the Court should consider all the material circumstances of the case. The learned Judges also held that each case in to be Judged on its own facts and in this regard proper approach is to be adopted by the Court. 28. This Court is in respectful agreement with the aforesaid propositions laid down in Bijonlata. But from para 7 in Bijonlata, it appears that the scribe was not examined and the explanation for not explaining the scribe is that the scribe, a gomosta of the testator, was dismissed about 4 or 5 months prior to the date the will was written. It was also stated that some criminal cases were pending against the scribe. But the Division Bench found that no papers relating to the criminal cases were produced and it was strange for a dismissed employee to come and write the will after his dismissal. 29. In view of these factual backgrounds tile learned Judges of the Division Bench held that the approach of the trial Court in accepting the explanation for not producing the scribe is not correct and the scribe should have been produced as the Court witness. 30. 29. In view of these factual backgrounds tile learned Judges of the Division Bench held that the approach of the trial Court in accepting the explanation for not producing the scribe is not correct and the scribe should have been produced as the Court witness. 30. The facts are totally different here and the scribe was produced and his evidence clearly supports and genuineness of the will. Therefore, the ratio in Bijonlata is not attracted here. 31. The learned Counsel also relied on the decision in the case of Bagawan Kaur v. Kartar Kaur, reported in (1994) 5 SCC 135 . In that case also the Supreme Court set aside the judgment of the High Court in Second Appeal whereby the High Court interfered with the concurrent findings of fact reached by the trial Court and the first appellate Court. The decision of Supreme Court was reached in the facts of that case, which are totally different from the facts in the present case. The principle laid down in that case that mere registration of the will does not operate, as the ouster of its due execution is an acceptable principle. But in the instant case, apart from registration the due execution of the will has also been proved. Therefore, reliance on the ratio in Bagawan Kaur is of no assistance to the appellant. 32. The learned Counsel also relied on the provision of Section 68 of the Evidence Act. The said section requires that the document which is to be attested shall not be used in evidence unless at least one attesting witness has been called to prove its execution if the attesting witnesses is alive. In this case both the attesting witnesses are dead and their death has been proved by competent witnesses. So there has been no violation of Section 68. 33. So far as the proof of a will is concerned, the matter has been authoritatively decided by the Hon'ble Supreme Court after discussion the Case Laws on the point in the case of H. Venkatchelia Iyenger v. B.N. Thimma Jamma & Ors., reported in AIR 1959 SC 443 . In para 19 of the judgment, the learned Judges laid down that there is one important feature, which distinguishes the will from other document. Unlike other documents, the will speaks after the death of the Testator. In para 19 of the judgment, the learned Judges laid down that there is one important feature, which distinguishes the will from other document. Unlike other documents, the will speaks after the death of the Testator. When it is produced before the Court, the Testator cannot depose about the will and this introduces an element of solemnity in the decision on the question whether the document is proved to be the last will of the Testator. In such a situation, the probate can be obtained on the basis of satisfactory evidence to the effect that (i) the will was signed by the Testator, (ii) that the Testator at the relevant time was in sound state of mind, (iii) that he understood the nature and the effect of the disposition, (iv) that he put his signature to the document of his own free will. 34. The learned Judges of Supreme Court held that after the aforesaid factors are proved, the onus is said to have been discharged by the propounder. In the instant case, the aforesaid facts have been proved. The witnesses who have given evidence are disinterested witnesses. They are not the beneficiaries under the will. Even the appellant has admitted in the cross-examination that he gave his consent to the grant of probate, as the will was genuine. Therefore, this Court affirms the judgment of the learned trial Judge and dismisses the appeal. 35. The original will which was produced before this Court from the custody of the Registrar is again sent back to the Registrar. 36. It may be noted that in view of the aforesaid facts, no order need be passed on the application under Order 41 Rule 27 of the Code, which was not pressed before us, and, as such, the same is dismissed. There will be, however, no order as to costs. Banerji, J. : I agree.