Judgment GOKHALE H.L., J.: - Appeal No. 141 of 1998 is a First Appeal by original defendants seeking to challenge the judgment and decree dated 3rd October, 1997 passed by Civil Judge, Senior Division, Pune, in Special Civil Suit No. 776 of 1990 granting a decree as prayed for. The said suit was a suit for partition and separate possession filed by the Respondent (original plaintiff) herein claiming ½ share in the suit property. Appellant No. 1 and the Respondent are a brother and his married sister respectively, the respondent being elder to appellant No. 1. Appellant Nos. 2 and 3 are the wife and son of appellant No. 1. 2. The property involved in the litigation is a house property situated at 1222 Shivajinagar, Pune, wherein the appellants reside. There are a few tenants who also reside in a part of this house property. The property belonged exclusively to the deceased father of appellant No. 1 and the respondent, on Shri Vitthal Krishnaji Chitale who died on 20th August, 1967 at the age of 67 leaving behind him the appellant No. 1 and the Respondent as his heirs and legal representatives. The wife of said Shri Vitthal Krishnaji Chitale had pre-deceased him on 4th April, 1965 and it was the defence of the appellants in the suit that after the death of his wife and long before his death, Vitthal Krishnaji Chitale had executed his last Will on 19th April, 1965 in his own handwriting and by that Will, he had bequeathed the said property to appellant No. 1 in its entirety to the exclusion of the Respondent. The learned trial Judge held that the Will was not proved. He therefore, decreed he suit as prayed. This Appeal is filed to challenge the said judgment and decree. 3. As stated above, the Appellants had pleaded that the suit property had been bequeathed exclusively to appellant No. 1 by late Shri Vitthal Krishnaji Chitale by a Will. In view of this plea raised by the Appellants in their written statement, the respondent amended her plaint and prayed for a declaration that the Will be declared as bogus and of no value in the eyes of law. Issue No. 3 framed by the learned trial Judge was on this idea whereon he gave a finding that the Will was not proved, and decreed the Suit for partition. Issue No. 3 framed by the learned trial Judge was on this idea whereon he gave a finding that the Will was not proved, and decreed the Suit for partition. The judgment and decree, however, does not contain a declaration that the Will was bogus and not effective in the eyes of law. Hence, in view of absence of this finding, the respondent has filed the connected First Appeal No. 188 of 1998. Which is limited only to this aspect. Inasmuch as this is a cross appeal to First Appeal No. 141 of 1998, both of them have been directed to be heard together and the same have been heard and are being disposed of together. The status quo with respect to the suit property has been directed to be maintained during the pendency of these appeals by an order passed on First Appeal No. 188 of 1998 and that has been running during the pendency of these appeals. 4. Since First Appeal No. 141 of 1998 is the principal appeal for the sake of convenience. We are referring in this judgment. The main contesting parties as per their status in this appeal. Thus, Dr. Madhav Chitale is referred as "appellant No. 1" and Smt. Bharati Ranade as "respondent". 5. The principal case of the respondent as disclosed in her plaint and particularly in paras/thereof. Is that she was all the while on cordial terms with appellant No. 1 and never inquired with him about her share in their fathers property nor demanded it. She accepts that immediately after the demise of their father, the 1st appellant obtained her signature on a letter, which according to her "purported to be a letter for entering their names to the Government record." The respondent further states that she was under the impression that appellant No. 1 was acting on her behalf also as the owner of the suit property. She did not demand any share since the income therefrom was meagre. The respondent accepts that the 1st appellant enjoyed the said income to the exclusion of the respondent for over 23 years by the time the suit was filed in the year 1990. She did not demand any share since the income therefrom was meagre. The respondent accepts that the 1st appellant enjoyed the said income to the exclusion of the respondent for over 23 years by the time the suit was filed in the year 1990. Thereafter the respondent states that in the year 1989 when she inquired with appellant No. 1 about the status of the suit property for the purposes of filing a return under section 6(1) of the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter, for the sake of brevity, referred to as "the said Act"). To her shock and surprise, appellant No. 1 told her that she had no share in the suit property. The respondent further states that upon further investigation and an elaborate search, she came to know that names of the appellants were entered into the City Survey record as each 1/3rd holder of the suit property. She states that appellant Nos. 2 and 3 had no right, title or interest in that property. Then the respondent states that "It was noticed for the first time by the plaintiff that the name of the defendant(s) was entered in the city survey records on the basis of so called Will of Mr. Vitthal Krishanji Chitale dated 19-4-1965." This ultimately led to the filing of the above-referred special Civil Suit No. 776 of 1990 for partition and half share. Appellant No. 1 and the respondent were the only heirs of the deceased Vitthal Krishanji Chitale and on that basis. She has claimed half share. 6. Appellant No. 1 filed a written statement to defend the suit. Appellant No. 1, through his Written Statement placed on record that late Shri Vitthal Krishnaji Chitale had executed his last Will and Testament on 19th April, 1965 long before his death which occurred on 29th August, 1967. The Will was made by him in his own handwriting and the same was duly attested by two witnesses. Under that Will, the house property was bequeathed to Appellant No. 1. It was submitted that the respondent knew about the execution of the Will and that she had signed the letter for bringing his name in the Government record. The Will was made by him in his own handwriting and the same was duly attested by two witnesses. Under that Will, the house property was bequeathed to Appellant No. 1. It was submitted that the respondent knew about the execution of the Will and that she had signed the letter for bringing his name in the Government record. In para-11 of the written statement, it was specifically stated that it was false to say that the respondent was under the alleged impression that appellant No. 1 was acting on behalf of himself as well as herself. In para-12 of the written statement, the contention of the respondent that she inquired about the status of the property in the year 1989 for filing the return under the said Act, was refuted to be false. This was because the return was expected to be filed way back in the year 1976, appellant No. 1 submitted that the respondent had given no valid reason as to why all of a sudden she felt a need for the first time after lapse of more than 13 years to file a return under the said Act. 7. In para-16 of the written statement the 1st Appellant referred to the entire correspondence of the years 1967 and 1968 with respect in his name being brought on record in place of his deceased father. These documents were subsequently tendered in evidence. Thus, it is stated in this para-16 that, by his letter dated 27th September, 1967 (Exhibit-180), appellant No. 1 had applied to the city survey office on the basis of the Will dated 19th April, 1965 that his name may be substituted for the name of his father. Below that letter there is an endorsement made by the respondent as follows :- "The contents of the above application are true and I have no objection to the substitution of Dr. Madhav Vitthal Chitale name for the name of Shri Vitthal Krishnaji Chitale since deceased. Sd/- (Sou. Bharati Vasudeo Ranade)" In this para-16, Appellant No. 1 referred to the office order passed by the City Survey Office Pune, with respect to the mutation on 20th January, 1968. That order specifically states in the second paragraph thereof as follows :- "Mrs. Bharati Vasudeo Ranade by her applications dated 27-9-1967 and 12-1-1968 has given consent to record the only name of brother Dr. Madhav Vitthal Chitale. That order specifically states in the second paragraph thereof as follows :- "Mrs. Bharati Vasudeo Ranade by her applications dated 27-9-1967 and 12-1-1968 has given consent to record the only name of brother Dr. Madhav Vitthal Chitale. Hence, the name of deceased Vithal Krishna Chitale is deleted from the city survey record of Pune Pethi Shivajinagar and in its place name of Dr. Madhav Krishna Chitale is recorded. Dated 20-1-1968. Sd/- City Survey Officer City Survey Officer Pune." The aforesaid letter of the respondent dated 12-1-1968 was subsequently brought on record in evidence and it was marked as Exhibit-181. The letter dated 12th January, 1968 sent by the respondent clearly states that she has no objection for recording the name of the brother to the particular property and that she has given her full consent for the same. 8. In para-17 of the written statement, appellant No. 1 raised the issue of limitation. It was submitted that the respondent had the knowledge of the Will as far back as on 27-9-1967 i.e. when she put the endorsement of "No Objection" on appellant No. 1s application for substituting his name for that of his father. It was, therefore, submitted that the right to have the Will set aside was barred by limitation and hence, the reliefs could not be granted. In para-18 of the written statement, appellant No. 1 raised the plea of ouster by contending that he was the sole owner and in exclusive possession of the property for more than 12 years openly and to the knowledge of the respondent. 9. It was the case of the respondent that she became aware of the Will only in the year 1989 and was not having a copy thereof. After appellant No. 1 took a specific stand in the written statement that there was such a Will and further that under the Will, the property was entirely given to him, the respondent amended her plaint and added/the following clause at the beginning of prayer Clause (a) which added clause is as follows:- "That it be declared that the alleged Will of late Vitthal Krishnaji Chitale dt. 19-4-1965 is bogus and has no value in the eyes of law." This clause was inserted in Prayer (a) before the earlier existing clause in Prayer (a) which reads as follows:- "It be declared that the plaintiff is the owner of ½ share in the property." In view of this amendment of the plaint, appellant No. 1 filed an additional Written Statement denying that the Will dated 19-4-1965 was bogus or had no value in the eyes of law. 10. Thereafter the learned Judge framed the issues arising out of the pleadings. Issue Nos. 3 and 4 thereof were the principal issues which read as follows :- "3. Whether defendant No. 1 proves that on 19-4-65 his further executed a Will and at the time of execution of the Will he was able and was in a position to know the facts of testamentary dispossession?" "4. Whether plaintiff proves that on or about 19-4-65 her father was under the influence of defendant? " 11. Since the burden of proving issue No. 3 was on appellant No. 1, evidence was first led on behalf of appellant No. 1. The disputed Will was executed by the testator in the presence of two witnesses viz. Shri K.V. Dikshit and Shri Prabhakar B. Raje. It so happened that by the time the suit went for trial, both these attesting witnesses had also died. Therefore, to prove their handwriting, appellant No. 1 examined the daughter of Shri K.V. Dikshit by name Shashikala Yashwant Kelkar and son of Late Shri P.V. Raje, one Shri Arun Prabhakar Raje. Thereafter appellant No. 1 examined himself. From the respondents side, she examined herself and her son Sunil. 12. Before we refer to the salient features of the evidence, it would be desirable to refer to the principal contents of the disputed Will. The Will is claimed to be written by Shri Vitthal Krishna (Krishnaji) Chitale in Marathi in his own handwriting and he has signed it on 19th April, 1965 in the presence on the above-referred Shri K.V. Dikshit and Shri Prabhakar B. Raje. The Will runs into 5 pages and at the bottom thereof, the testator has signed in Marathi as Vitthal Krishna (Krishnaji) Chitale. Thereafter there occurs the following writing in Marathi:- "Witnesses : The above signature has been executed by Vitthal Krishna (Krishnaji) Chitale in our presence : (1) K.V. Dikshit 19-4-1965 (2) P.B. Raje 19-4-1965. The Will runs into 5 pages and at the bottom thereof, the testator has signed in Marathi as Vitthal Krishna (Krishnaji) Chitale. Thereafter there occurs the following writing in Marathi:- "Witnesses : The above signature has been executed by Vitthal Krishna (Krishnaji) Chitale in our presence : (1) K.V. Dikshit 19-4-1965 (2) P.B. Raje 19-4-1965. " The Will records that the test or had completed 65 years of age and that he was not keeping good health and was not sure about his remaining life. He was, therefore, making the Will about his property. The Will thereafter states in para-1 that the testator had received the concerned property from his father. The Will further records that the testator has been paying all the taxes of the particular property for last over 36 years. It then states that apart from this property, the testator received from his father some utensils bed and bedding (Hantharun Pangharun in Marathi) and furniture worth Rs. 200/-. In para-2 of the Will, it is recorded that the testator had done his B.A. LL.B. and taken the sanad as an Advocate but he did not like that "business" (Dhanda in Marathi) and, therefore, he took up the occupation of a teacher. Since the earning was not much, he could not add anything to the movables or immovables. The Will further records that the testators wife Laxmibai was not keeping good health (Nadurust in Marathi) since about 1947 and for the last about 10 year she was bed-ridden. Ultimately she died on 4th April, 1965 due to cancer. Thereafter it is recorded in para-2 of the Will that the testator son Madhav had stayed in Mumbai for about 7 years for education and the testator had to spend for that. Besides, the testator had to bear entire expenditure at the time of marriage of his daughter Sushila. For incurring this expenditure as well as the medical expenses of his wife, he had to sell some of his streedhan and ultimately he was left with paltry amount for day to day expenditure. 13. In para-3 of the Will, it is stated that if the Will was not executed the property would be divided equally between son Madhav and daughter Sushila as per the provisions of the Hindu Succession Act. 13. In para-3 of the Will, it is stated that if the Will was not executed the property would be divided equally between son Madhav and daughter Sushila as per the provisions of the Hindu Succession Act. Both of them loved Shri Vitthal Krishnaji Chitale and he also loved them equally and, therefore, there would not be anything wrong if such a thing was to happen. However, there were practical difficulties in effecting partition and the immovables were not worth dividing. Besides, none of the two children were in a position to buy the share of the other. The property had become very old and was not repaired or painted for number of years. The municipal and Government taxes were increased. However, the rent charged to the tenants continued to be the old rent in view of the Rent Act. If the tenants pay their rent regularly, annually Rs. 2166/- are received. The taxes for house property, water and the Government revenue come to Rs. 427/-. and what remains thereunder is an amount of Rs. 1739/-. If it is considered that one is entitled to 8% rent on the investment, the property would be worth Rs. 21,737.50 and that also if there is any purchaser, because the tenants are not likely to leave the tenements. Having considered all these aspects, he was making the following Will- "I have spent adequately on the education and marriage of my only daughter Sushila. She is married in a good place. I have looked after her quite well before her marriage and even thereafter and even now also. I do not think there is any need for her in her marital home. Hence, I am not inclined to give anything to her from my property and I am not giving. My only son Dr. Madhav is a noble person and he has lot of affection for his parents. He used to attend devotedly to his mother until she died on 4th April, 1965. He has started his private clinic in Pune after obtaining his B.D.S. Degree from the Mumbai University and after serving over there for some-time only for looking after his parents herein in Pune. I am sure that he will earn sufficiently for himself, his wife and his sweet child Vinay of 4 ½ years of age. Many of the things that he has achieved are quite creditable. I am sure that he will earn sufficiently for himself, his wife and his sweet child Vinay of 4 ½ years of age. Many of the things that he has achieved are quite creditable. He has become quite popular because of his qualities and will also continue to be so. He does become angry occasionally, yet he is a noble, loving and considerate person. Of course, nobody can be completely perfect. I am pleased with his qualities and hence. I am giving all/movable and immovable properties to my only son Madhav and he should get it on the strength of this would exclusively on my death. I have written this Will at my own desire. Let good come to all. Date 19th April, 1965. Sd/- Vitthal Krishna (Krishnaji) Chitale. Witnesses : The above signature is made by Vitthal Krishna (Krishnaji) Chitale in our presence : "(1) K.V. Dikshit 19-4-1965 (2) P.V. Raje 19-4-1965 " 14. Now, when we look to the evidence of the various witnesses, Shashikala Yashwant Kelkar, the first witness for Appellant No. 1, deposed that until her marriage in the year 1958, she was staying with her father at Chitalewadi, Pune. Her father died in the year 1990. She was conversant with the signature and handwriting of her father. Shashikala was shown the document of the Will dated 19th April, 1965 and thereon she has stated as follows :- "Now I am shown the document of Will dated 19th April, 1965. It bears my fathers signature. The two lines above his signature are in the handwriting of my father. Below the Marathi handwriting there is signature of my father. The handwriting of the date and year is in his handwriting. " It is material to note that the above-referred two lines above the signature of Shri Dikshit are to the following effect. "The above signature is executed by Vitthal Krishna (Krishnaji) Chitale in our presence. " In her cross-examination, Shashikala Kelkar stated that till the year 1958, her father used to sign in English. At times, he used to sign in Marathi. Smt. Shashikala was asked about the various signatures made by her father, particularly in the documents of purchasing a flat in Karve Nagar and she stated that she did not remember whether her father signed the documents in Marathi. At times, he used to sign in Marathi. Smt. Shashikala was asked about the various signatures made by her father, particularly in the documents of purchasing a flat in Karve Nagar and she stated that she did not remember whether her father signed the documents in Marathi. Shashikala accepted that she had not produced any document to show that the handwriting and the signature appearing on the Will are that of her father. Smt. Shashikala was then asked about the signatures of her father in the I.I.S. Law College where he was in service whereon she stated that he might be signing in Marathi over there. It is, however, material to note though these suggestions were made to Smt. Shashikala Kelkar, no document was shown to her. It was also not put to Shashikala that her father never signed in English and that the particular signature under the Will was not that of her father. 15. The second witness examined by appellant No. 1 was Shri Arun Prabhakar Raje. He also identified she signature of his father and stated that the handwriting of the date, month and the year below that signature was in his fathers handwriting. In his cross-examination, this Arun was asked whether he had preserved his progress books of school which he could not state positively. Then Arun was asked about the counter foil of the rent receipts, which he had not produced. Thereafter this witness Arun stated that he did not know whether appellant No. 1 had filed any suit for possession against his father in the small causes Court. Arun denied the suggestion that he was making a statement in favour of appellant No. 1 only because appellant No. 1 paid his father some money in that suit. He denied the suggestion to them the Will did not bear the signature of his father. 16. As far as appellant No. 1 is concerned, In his examination-in-chief, he stated that he came to know about the Will when he made search of his fathers belongings kept in a trunk after the death of his father. Appellant No. 1 stated that he was conversant with his fathers handwriting and he identified the same. Appellant No. 1 further stated that he could identify the signatures of the two witnesses. They were his tenants after the death of his father. Appellant No. 1 stated that he was conversant with his fathers handwriting and he identified the same. Appellant No. 1 further stated that he could identify the signatures of the two witnesses. They were his tenants after the death of his father. Appellant No. 1 produced the counter foil of the receipts of rent which also had the signatures of the deceased. The counter foil was exhibited at Exhibit-172 and he stated that the counter foil of the receipts dated 1-6-1966 to 31-3-1967 were bearing initials of his father and signatures of the tenants. Appellant No. 1 also produced the receipts given by his father in favour of one Gangadhar G. Pandit. They were all in the handwriting of his father. Appellant No. 1 stated that those receipts were bearing his fathers signatures and they were exhibited at Exhibits 173, 174 and 175. Appellant No. 1 also produced another letter of his father dated 10th April, 1966 containing his signature and it was exhibited at Exhibit 176. 17. Appellant No. 1 thereafter stated that on the strength of Will he had applied to the City Survey office for entering his name and that the respondent had given her consent below the application dated 27th September, 1967. She had confirmed this by subsequent letter dated 12th January, 1968 and on the strength thereof, the City Survey office had subsequently passed the order dated 20th January, 1968. He stated that the respondent had made her endorsement on the letter dated 27th September, 1967 only after understanding the contents thereof and in any case, the letter dated 12th January, 1968 was respondents own letter sent from her residence. Thereafter appellant No. 1 stated that after his name was entered into the property, he alone used to pay the Municipal taxes for the property. He had filed proceedings against his tenants. He had paid the estate duty. He had filed the return under the Urban Land (Ceiling) Act, 1976. The plaintiff was aware of all this. Appellant No. 1 thereafter produced a letter written by his father on 23rd March, 1956 to Dakshini Brahman Sahakari Bank Ltd. on behalf of his fathers sister Kusum. The letter dated 23rd March, 1956 bears the signature of his father in English and thereafter he has written his name thereunder in Marathi as Vitthal Krishna Chitale. Appellant No. 1 thereafter produced a letter written by his father on 23rd March, 1956 to Dakshini Brahman Sahakari Bank Ltd. on behalf of his fathers sister Kusum. The letter dated 23rd March, 1956 bears the signature of his father in English and thereafter he has written his name thereunder in Marathi as Vitthal Krishna Chitale. Appellant No. 1 also stated that his sister and her husband were financially quite well off. In the cross-examination, Appellant No. 1 denied that the Will was neither in the handwriting of his father nor was it bearing his signature. He denied the suggestion that the contents of the application dated 27th September, 1967, Exhibit 180, were not explained to the respondent. Appellant No. 1 denied the suggestion that the language in the Will was not that of his father and that the words "Hantharun Pangharun" were not thereof the testator. Appellant No. 1 denied the suggestion that his father was not making signature as "Vitthal Kirshna (Krishnaji) Chitale". Appellant No. 1, however, accepted that he had not found any document to show that his father was making a signature as "Vitthal Krishna (Krishnaji) Chitale". As far as this evidence is concerned, it is again material to note that no suggestion is put to the 1st Appellant that he had exerted any pressure on his father or that his father was not a person of sound mind and that he had executed the Will under any influence. 18. The respondent stated in her deposition that her father had never told her he was going to give his entire property to appellant No. 1. According to her, there were differences of opinion between the 1st appellant and his father. The respondent denied that she had been told by the 1st appellant after the death of her father that he had executed a Will. The respondent admitted her signature under the letter dated 27th September, 1967 (Exhibit 180) but maintained that the application was not read over to her. As far as her own letter dated 12th January, 1968 is concerned, the respondent admitted her signature thereunder. The respondent stated that her father used to sign as "Vitthal Krishna Chitale". The respondent denied that the Will was shown to her by her aunt. She disputed the cross signature on the Will to be in her fathers handwriting. As far as her own letter dated 12th January, 1968 is concerned, the respondent admitted her signature thereunder. The respondent stated that her father used to sign as "Vitthal Krishna Chitale". The respondent denied that the Will was shown to her by her aunt. She disputed the cross signature on the Will to be in her fathers handwriting. The respondent submitted that her father never used the words like "Hantharun Pangharun" and "Nadurust". In her cross-examination, the respondent accepted that she studied in Modern High School. The respondent stated that she had not informed her husband about her signature on the letter dated 12th January, 1968, Exhibit 181. The respondent, however, accepted that her husband knew of her signature below the letter dated 27th September, 1967 (Exhibit 180). As far as the respondents knowledge of English is concerned, she accepted in her cross-examination that one Y.G. Patwardhan used to take actions in the suit premises and she had attended his tuitions. The respondent further stated that English was one of her subjects in S.S.C. examination. 19. Thereafter the matter was argued and the learned Judge gave a finding on issue No. 3 that appellant No. 1 has failed to prove that his father had executed the Will as claimed on 19th April, 1965. Thereafter as far as issue No. 4 is concerned, the learned Judge held at the end of Para-37 of his judgment that since the plaintiff had proved that her father had not executed the Will in favour of defendant No. 1, issue No. 4 did not arise for consideration. As far as the evidence of Shashikala and Arun (daughter and son of two witnesses to the Will) is concerned, the learned Judge did not accept the evidence of Shashikala and commented that in her cross-examination Shashikala could not give any satisfactory reply whether her father used to sign in English or Marathi and when no other document is produced on record, it cannot be said that the said signature was of attesting witness K.N. Dikshit. Similarly as far as the evidence of Arun Raje is concerned, the learned Judge has raised a doubt about his truthfullness since Arun was not aware about the suit for possession filed against his father. The learned Judge has observed about Arun that he did not produce any document signed by his father on record. Similarly as far as the evidence of Arun Raje is concerned, the learned Judge has raised a doubt about his truthfullness since Arun was not aware about the suit for possession filed against his father. The learned Judge has observed about Arun that he did not produce any document signed by his father on record. The learned Judge noted that when the testator is a law Graduate, it is pertinent to note that the document was not registered. He also found substance in the submission that the language used in the Will was not that of a well educated person like testator. The learned Judge further noted that since the family belonged to Kokanastha Brahmin Community, he would not use the words like "Hantharun Pangharun" (i.e. bed and bedding), "Nadurust" (not well) and "Pesha Patkarla" (took occupation). The learned Judge observed that appellant No. 1 had not produced any other document to show that his father was making the signature as "Vitthal Krishna (Krishnaji) Chitale" and the Will was the only document of such a signature. Thereafter as far as the respondents own letter dated 12th January, 1968 (Exhibit 181) is concerned, the learned Judge observed that there is no reference to any Will therein. 20. In para-37 of his judgment, the learned Judge has observed that appellant No. 1 was elder brother of the respondent and thereafter he has noted that when the brother produced the application for entering his name in the property, she might have signed the application (meaning thereby the application dated 27th September, 1967 (Exhibit. 180)). The Judge commented that this, however, did not mean that the respondent was aware about the Will. As far as the rent receipts are concerned, the learned Judge observed in para-37 of his judgment that it is true that defendant No. 1 (i.e. appellant No. 1 herein) has produced the rent receipts. However, the learned Judge noted that the deceased his father was lawyer and was taking tuitions, and such other documents ought to have been produced. The learned Judge, therefore, took the view that the Will was not proved. However, the learned Judge noted that the deceased his father was lawyer and was taking tuitions, and such other documents ought to have been produced. The learned Judge, therefore, took the view that the Will was not proved. Then the Judge observed that "Merely because it is written in the handwriting of his father, it cannot be said that it being a holography it is a genuine Will." The learned Judge, therefore, decreed the suit as prayed and declared that appellant No. 1 and the respondent had ½ share in each of the property and appointed the Court Commissioner for effecting the partition. 21. The main point for determination which arises in the present appeal is as to whether the learned Civil Judge, Senior Division, has erred in law and on facts in holding that the Will dated 19th April, 1965 of the deceased Vitthal Krishnaji Chitale was not proved. 22. Mr. Rege, learned Counsel appearing for the appellants, submitted that, as seen from para-37 of the judgment, the learned Judge does not dispute that the Will is written in the handwriting of the father of appellant No. 1. The learned Judge accepts that Appellant No. 1 has produced the rent receipts bearing the signature of his father yet, he feels that appellant No. 1 ought to have produced some more documents. Now, it is material to note that the father of appellant No. 1 and the respondent died way back in the year 1967. The suit was filed in the year 1990 and the evidence was being recorded in the year 1997. In the circumstances, the learned Judge should have weighed the documents which were produced rather than commenting on absence of some more documents which could have been produced and which were naturally difficult to produce after such a long lapse of time. In any case, appellant No. 1 had also produced a letter written by his father dated 23rd March, 1956 on behalf of the sister of the deceased to the Dakshini Brahman Sahakari Bank Ltd., which had his signature in English and his name below that in Marathi i.e. Vitthal Krishna Chitale. Therefore, there was no reason to dispute either the handwriting or the signature of the deceased below the Will. 23. As far as witnesses to the Will are concerned, the children of both the witnesses have spoken about the writing of their parents. Therefore, there was no reason to dispute either the handwriting or the signature of the deceased below the Will. 23. As far as witnesses to the Will are concerned, the children of both the witnesses have spoken about the writing of their parents. Shashikala has stated that the writing below the Will was that of her father whereas Arun Raje has stated that Vitthal Krishna (Krishnaji) Chitale had executed the Will in his presence (i.e. in the presence of K.V. Dikshit). Shashikala has deposed that the endorsement at the bottom of the Will in Marathi, the signature in English and the date thereunder were that of her father. In her cross-examination, Shahikala stated that till 1958, her father used to sign in English and at times, he uses to sign in Marathi. It was put to Shashikala that her father used to sign on various documents in Marathi, but it was not put to her that he had never signed in English and it was also not put to her that the particular signature was not that of her father. Smt. Shahikala was also not called upon to produce any such document bearing her fathers signature in Marathi nor was she shown any such document. Similarly as far as Arun Raje is concerned, he also deposed that the second signature below the Will as witness and the date thereunder were that of his father. It was put to him that the particular signature was not that of his father which he denied. It was also put to Arun that he is making such a false statement because appellant No. 1 paid some money to his father in the small causes Court proceedings. Again, no particulars of that suit were mentioned in the cross-examination. Mr. Rege, therefore, submitted that the evidence of the two witnesses could not be said to be disturbed. When no attesting witnesses were available one had to prove that the attestation of one attesting witness atleast was in his handwriting. That was the expectation of section 69 of the Indian Evidence Act, 1872, read with the definition "proved" under section 3. Mr. Rege submitted that there was no reason for the learned Judge to discard the evidence of the two witnesses. That was the expectation of section 69 of the Indian Evidence Act, 1872, read with the definition "proved" under section 3. Mr. Rege submitted that there was no reason for the learned Judge to discard the evidence of the two witnesses. With respect to the execution of the Will and the signature of Vitthal Krishna (Krishnaji) Chitale, the learned Judge commented that no such other document was produced with the signature of Vitthal Krishna (Krishnaji) Chitale. Mr. Rege submitted that Krishnaji was by way of honorific and by mere use of that word into the bracket, the signature of the deceased could not be said to be disturbed. Similarly as far as the language used in the Will is concerned, Mr. Rege submitted that the words "Pesha Patkara" (took the particular occupation) or that his wife was "Nadurust" (she was not well ) could not said to be the words not used in good Marathi. As far as the words "Hantharun Pangharun" (bed and bedding) are concerned, the word "Pangharun" was undoubtedly a regular word in use and as far as the word "Hantharun" is concerned, he referred to Molesworths Marathi-English Dictionary to submit that the word "Hantharun" (to spread) was a regularly accepted word in Marathi language. In his submission on such terminology, the Will could not be disturbed and that the learned Judge was in error in coming to that conclusion. 24. Over and above what was most material was that the respondent did not dispute that she had made her endorsement below the letter dated 27th September, 1967 (Exhibit 180) which stated that she had no objection to the substitution of Dr. Madhav Chitale's name in place of her father. It was no use for the respondent to say that she did not know English. It had clearly come in the respondent's cross-examination that she had studied upto S.S.C. and English was one of her subjects and over and above, the respondent has accepted in her cross-examination that even her husband was aware about her signature on that document. That apart, the letter dated 12th January, 1968 (Exhibit 181) was her own letter sent from her residence. In that letter, the respondent clearly states that she had no objection to the name of her brother being entered on to the property. That apart, the letter dated 12th January, 1968 (Exhibit 181) was her own letter sent from her residence. In that letter, the respondent clearly states that she had no objection to the name of her brother being entered on to the property. This letter is in reply to the letter from the office of City Survey record dated 18-12-1967. The respondent, however, did not produce that letter. The office order of the city survey dated 20th January, 1968 referred to both these letters dated 27th September, 1967 and 12th January, 1968 and thereafter in view of the Will of the deceased, effected the necessary chance. Mr. Rege submitted that it is too late in the day for the respondent to state that she wanted to file her return under the Urban Land (Ceiling and Regulation) Act in the year 1989 and for that purpose the respondent made a query and then she discovered that she was being denied her share in the property. It was put to the respondent in her cross-examination that it was because of her son Sunil that the respondent had chosen to file her proceedings and that the respondent did not choose to do so during the life time of her husband. Mr. Rege submitted that the learned Judge has ignored this clear supporting material on record. He, therefore, submitted that the Will had been proved by proving the signatures of the deceased and that of the two witnesses and also there was a corresponding contemporaneous record which/also showed that the respondent knew about it and had according acted all these years and the filing of the suit was clearly an afterthought and learned Judge had erred in accepting such submissions on behalf of the respondent. 25. Mr. Rege submitted that there was one intrinsic factor towards the genuineness of the Will. It is material to note that Will being made in the year 1965 when Appellant No. 1 was just about 30 years old. He had just started his practice as Dentist in Pune and the Will itself indicates and even otherwise mentions the young age of Appellant No. 1 and that he was yet to settle down. The respondent was already married. She is elder to appellant No. 1 by more than 6½ years. From the evidence on record, it has clearly been pointed out that the respondent is otherwise well off. The respondent was already married. She is elder to appellant No. 1 by more than 6½ years. From the evidence on record, it has clearly been pointed out that the respondent is otherwise well off. The Will indicates and it is not disputed that the deceased had spent good amount at the time of her marriage. The testator did not have any other property except this particular house property. It had his own tenants and as the Will shows that from the annual income of Rs. 2166/-, hardly Rs. 1739/- remained after paying various taxes. The property was not being looked after properly. There was not repair nor was it painted for so many years. In the year 1965, the testator did not have any such idea that the property would become valuable after 25 years. The Will has to be looked at in this background. The Will states that the property was such that it was not divisible and further that either of the parties were not in a position to buy share of the other. It is for this reason that the testator has considered the requirements of both his children. The testator has noted the fact that his son had attended to his wife who was bedridden for so many years. Considering all these factors, the testator had decided to give the house property to his son alone. Mr. Rege submitted that it could not be said that there was anything highly improbable in the Will. On the contrary, that Will the best thing that the testator could do and which he had done and no fault could be found with that. 26. Mr. Gupte, learned Counsel appearing for the respondent, on the other hand, submitted that the respondent was not in the know of the Will and the burden of proving it strictly was on appellant No. 1. In his submission, apart from the signature on the Will, no other documents containing the signature as Vitthal Krishna (Krishnaji) Chitale were produced. Similarly Shashikala had not produced any other document pertaining to the English signature of her father and Arun Raje/ had given the deposition at the behest of appellant No. 1 and it was put to him that his father was paid certain amount in the small causes Court suit against him. These were the aspects which raised doubts and they had to be resolved. These were the aspects which raised doubts and they had to be resolved. In his submission, the language used in the Will was also an intrinsic factor. The words such as "Hantharun", "Pesha Patkarla" and "Nadurust", would not be used in the Will of a person belonging to "Kokanastha Brahmin Community. Beside, the Will was also not registered. As far as the writings of the respondent are concerned. Mr. Gupte submitted that both these writings did not indicate in any way that she had any knowledge about it. Thereafter it is only stated that she had no objection to the name of her brother being recorded on to the property. This did not mean that the respondent was giving her claim. In his submission, therefore, this circumstantial evidence could not be pressed too much against the respondent. He further submitted that the learned Judge was right in coming to the conclusion that he had arrived at. 27. On the question of the Will being proved, Mr. Rege submitted that. In the present case, the children of the both the witnesses to the Will I have proved the signature and writing made by their respective fathers. Mr. Rege stated that this was sufficient competence within the meaning of section 69 of the Evidence Act. He drew our attention to a judgment of the Apex Court in the case of (Palanivelayutham Pillai ors. v. Ramchandran ors.)1, reported in 2000(6) S.C.C. 151 where only a scribe of the Will who was a testator and who had also signed on the Will, was examined to prove the Will. The Apex, Court held that he had ascribed his signature apart from describing himself as a scribe and through his evidence, the Will was held to be proved. 28. With respect to the approach to be adopted concerning the proof of execution, Mr. Rege referred to and relied upon a judgment in the case of (Madhukar D. Shende v. Tarabai Aba Shedage)2, reported in 2002(6) Bom.C.R. (S.C.)522 : 2002(2) S.C.C. 85 where Apex the Court held that if the evidence adduced was legal and convincing, satisfied the conscience of the Court and there is nothing unnatural about the transaction, mere conjecture or unfounded suspicion should not be permitted to sway the verdict that the Will has been proved. The Court further held that well-grounded suspicion may be a reason for closer scrutiny of the evidence, but a judicial verdict cannot be based on suspicion alone. In para-8 of that judgment, the Court held that the requirement of proof of a Will is the same as any other document excepting that the evidence tendered in proof of a Will should additionally satisfy the requirement of section 63 of the Indian Succession Act, 1925 and section 68 of the Indian Evidence Act, 1872. In para-9 of the judgment, the Court held that ." .... one who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law." ....."If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a Will, the Court would not return a finding of "not proved" merely on account of certain assumed suspicion or supposition." 29. The respondent had not produced the letter from the City Survey Office in reply to which, she wrote her consent in January, 1968. Mr. Rege submitted that, therefore, an adverse inference had to be drawn against her for this purpose. Mr. Rege referred to a judgment of the Apex Court in the case of (Gopal Krishna Ketkar v. Mohamed Haji Latif)3, reported in 1968(71) Bom.L.R. 48 to the following effect:- "Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof." 30. Mr. Gupte, learned Counsel appearing for the respondent, on the other hand, submitted that where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court and all legitimate suspicion should be completely removed. In this behalf, he relied upon a judgment in the case of (Shashi Kumar Banerjee ors. Mr. Gupte, learned Counsel appearing for the respondent, on the other hand, submitted that where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court and all legitimate suspicion should be completely removed. In this behalf, he relied upon a judgment in the case of (Shashi Kumar Banerjee ors. v. Subodh kumar Banerjee )4, reported in A.I.R. 1964 S.C. 529, for that purposes. The judgment in the case of (Indu Bala Bose ors. v. Manindra Chandra Bose anr.)5, reported in A.I.R 1982 S.C. 133, is to the same effect. Mr. Gupte then referred to the judgment in the case of (Pushpavati v. Chandraja Kadamba)6, reported in A.I.R. 1972 S.C. 2492, to submit that where the disposition made in the Will were unnatural, improbable or unfair, that would undoubtedly create some doubt about the Will, especially when the document is unregistered and comes from the custody of the beneficiary. He lastly relied on the judgment in the case of (Kalyan Singh v. Chhoti)7, reported in A.I.R. 1990 S.C. 396, to submit that it was for the propounder of the Will to remove suspicious circumstances by placing satisfactory material on record. In his submission, the 1st Appellant had failed in dosing so and, therefore, the Will was rightly held to be not proved. CONCLUSIONS: 31. Now as far as the proposition of law with respect to proving of the Will is concerned, it is by and large well settled. It is correct to contend that it is for the propounder of the Will to prove it. He has to satisfy the conscience of the Court and has to remove all legitimate suspicions concerning the Will. This is what is laid down in a series of judgments viz. in the cases of Shashi Kumar Banerjee ors. v. Subodh Kumar Banerjee, Smt. Indu Bala Bose ors. v. Manindra Chandra Bose ors. and Kalyan Singh v. Smt. Chhoti (all cited above). At the same time as held by the Apex Court in Madukar Shende's case (supra), mere conjecture or unfounded suspicion should not be permitted to sway the verdict of the Court. As held by the Apex Court in that judgment the requirement of proof of Will is the same as for any other document. At the same time as held by the Apex Court in Madukar Shende's case (supra), mere conjecture or unfounded suspicion should not be permitted to sway the verdict of the Court. As held by the Apex Court in that judgment the requirement of proof of Will is the same as for any other document. However, here the Will must additionally satisfy the requirement of section 63 of the Indian Succession Act, 1925 and section 68 of the Evidence Act, 1872. Section 63 of the Succession Act amongst others requires the testator to sign or affix his mark to the Will and the Will has to be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will and each of the witnesses shall sign the Will in the presence of the testator. The section also provides that it is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Section 68 of the Evidence Act requires that such document, which is required by a law to be attested, shall not be used as evidence until one attesting witness at-least has been called for the purpose of proving its execution, if there be an attesting witness alive. Section 68 of the Evidence Act provides that if no such attesting witness can be found, it must be proved that attestation of one attesting witness at-least is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. 32. For proving that the signature of Vitthal Krishna Chitale is in his handwriting, Appellant No. 1 has produced certain material on record. Appellant No. 1 has produced the rent receipts bearing the signatures of his father and the learned Judge has accepted this fact in para-37 of the impugned judgment. Appellant No. 1 produced the letter written by this father dated 23rd March, 1956, below which the testator has signed in English and thereunder has written his name in Marathi as Vitthal Krishna Chitale. That this writing is that of the deceased and also the signature is not disputed. The learned Judge has also accepted in para-37 that the Will is written in the handwriting of the testor. That this writing is that of the deceased and also the signature is not disputed. The learned Judge has also accepted in para-37 that the Will is written in the handwriting of the testor. He has however commenced-"Merely because it is written in the handwriting of his father, it cannot be said that it being a holography it is a genuine Will". The dispute raised is about the signature thereunder in Marathi as Vitthal Krishna (Krishnaji) Chitale. It is material to note that the contents of the Will with the date 19th April, 1965 and the signature as Vitthal Krishna (Krishnaji) Chitale are written by the testator. Below that, the following endorsement appears :- "Witnesses. The above signature is made by Vitthal Krishna (Krishanji) Chitale in our presence. 1. K.V. Dikshit 19-4-1965. 2. P.V. Raje 19-4-1965. " 33. By the time the evidence was recorded, Shri Dixit and Shri Raje had both passed away. Shashikala, the daughter of K.V. Dikshit, has gone into the witness box and has identified her father's signature and writing. She has stated that the two lines above this signature are in his handwriting. Below the aforesaid two lines in Marathi is a date and signature which is in the handwriting of her father. It was not put to Shashikala any where that the said two lines, the date and the signature are not that of her father or that she is making a false statement. It was also not put to Shashikala that her father never signed in English. Yet the learned Judge commented that in her cross-examination Shashikala could not give any satisfactory reply whether her father used to sign in English or in Marathi. In fact, Shashikala categorically stated that till 1958, her father used to sign in English. At times, he used to sign in Marathi. It was also not put to Shashikala that her father never signed in English thereafter. It was suggested to Shashikala that her father had signed all the documents concerning the purchase of a flat at Karve Nagar in 1975-76 in Marathi but no such documents were produced. Similarly it was suggested to Shashikala that in his service in I. L S. Law College, her father used to sign in Marathi but again no document was produced to cross her nor was she called upon to produce any such documents. Similarly it was suggested to Shashikala that in his service in I. L S. Law College, her father used to sign in Marathi but again no document was produced to cross her nor was she called upon to produce any such documents. The learned Judge has commented on her evidence that since no other documents were produced by Shashikala, it cannot be said that the said signature was that of attesting witness Dikshit. 34. Similarly when it comes to the evidence of Shri Arun Raje, he identified the signature of his father and stated that the handwriting of the date, month and the year below the signature was that his father. Shri Arun Raje was asked about his progress books from the school days as also the counter foils and the rent receipts. Shri Arun was also asked about the suit which was filled against his father in the Court of Small Causes and it was put to Arun that he was making a statement in favour of appellant No. 1 since appellant No. 1 had paid some money to Arun's father. No particulars of the suit were given nor was this witness called upon to produce any such documents. The learned Judge has sought to disbelieve both these witnesses on the ground that they have not produced any further documents showing the signature of their fathers of similar type. From the evidence, it is seen that father of Shashikala has died in August, 1990. Father of Arun has died sometime in 1989 since Arun is giving his deposition in the year 1996 and has stated that his father died some 7 years back. Evidence of both the witnesses was being recorded in the year 1996-97. Shashikala, who was then 62 years of age, was asked about her father's writings made some 20 years back i.e. in 1975-76. Similarly Shashikala was asked about her father's signatures in the I.L.S. Law College where he was serving in the year 1965 i.e. about 30 years back. These were the suggestions given to Shashikala. She was not called upon to produce any such document nor was any document shown to her. She is related to both parties. The testator's wife was the sister of Shashikala's father. No suggestion has been made to Shashikala as to why she was deposing in favour of appellant No. 1 when she was equally related to the respondent. She was not called upon to produce any such document nor was any document shown to her. She is related to both parties. The testator's wife was the sister of Shashikala's father. No suggestion has been made to Shashikala as to why she was deposing in favour of appellant No. 1 when she was equally related to the respondent. The learned Judge expects Shashikala to produce some more documents executed by her father some 20 to 30 years prior to the date on which Shashikala was giving her evidence and merely because such documents are not produced, though she is not called upon to produce them, the Judge has declined to accept her statement that the above-referred endorsement and the signature and the date below it are that of Shashikala's father. 35. Similarly Arun Raje, Who was 49 years of age on the date on which he entered the witness box, was asked about his school books. Arun was also asked about the suit which was supposed to have been filed against his father wherein some money was claimed to have been given to his father in that suit. Again, no particulars of this suit are given. Arun's father had died some 7 years before the date on which he was giving evidence. The learned Judge has raised a doubt about the truthfulness since Arun did not know about that suit and for not producing any other signature of Arun's father which would tally with the signature on the Will. Same is the criticism on Shashikala as can be seen from para-33 of the impugned judgment. 36. As far as the deposition of appellant No. 1 is concerned, the learned Judge has accepted that the writing on the Will is in the handwriting of the deceased. The learned Judge has also accepted that to show the handwriting of the testator the rent receipts were produced and similarly the letter written by him in the year 1956 for his sister. The learned Judge has further accepted that nothing is unusual for a person to sign a document in two different scripts. Yet for the absence of some more documents and the signatures being produced by appellant No. 1 or some other documents containing the signatures of the two attesting witnesses, he has refused to accept their evidence. The learned Judge has further accepted that nothing is unusual for a person to sign a document in two different scripts. Yet for the absence of some more documents and the signatures being produced by appellant No. 1 or some other documents containing the signatures of the two attesting witnesses, he has refused to accept their evidence. As against that, the case of appellant No. 1 is that the daughter and son of late S/Shri Dikshit and Raje have stated on oath that the signatures below the Will were that of their respective fathers and there was no reason to disbelieve their depositions. Shashikala has stated that the endorsement below the Will was that of her father and the endorsement records that the signature above it is made by Vitthal Krishna (Krishnaji) Chitale in their presence . Once the writing of Shri Dikshit is proved, there is a sufficient compliance of section 69 since it has proved that the attestation of one of the attesting witnesses is in his handwriting. Once the endorsement gets proved, as per the contents of the endorsement, the execution of the Will by Vitthal Krishna (Krishnaji) Chitale also gets proved. 37. The respondent has stated that at times there used to be quarrels between the deceased and appellant No. 1 and further that there was no reason why nothing from the property should be given to her. It is material to note that the respondent was married in December, 1949. At that time, she was about 20 years old. Appellant No. 1 is born on 6th December, 1934. That means at the time of the respondent's marriage, appellant No. 1 was just about 15 years of age and he is younger to her by about 6 ½ years. The learned Judge has obviously made an error in para-37 of the judgment where he has recorded that appellant No. 1 is the elder brother. The disputed Will is made on 19th April, 1965 i.e. about 16 years after her marriage and about 15 days after the death of the wife of the testator. Appellant No. 1 has stated in para-8 of his deposition that about 50 tolas of gold was presented to the respondent at the time of her marriage. He has deposed the fact that the respondent, her husband and their family were quite well off. These statements are not controverted. Appellant No. 1 has stated in para-8 of his deposition that about 50 tolas of gold was presented to the respondent at the time of her marriage. He has deposed the fact that the respondent, her husband and their family were quite well off. These statements are not controverted. Appellant No. 1 has alleged in his deposition that prior to her death in the year 1965, his mother suffered from Rheumatic Arthetics and for last about 12 years before her death, she was completely bedridden i.e. since 1953. In para-9 of his cross-examination, appellant No. 1 has stated that during these 12 years, he used to be at Bombay and at times he used to be at Pune. Till the year 1954, appellant No. 1 and his father used to cook and his father was rendering other services to his mother. Appellant No. 1 also stated that during the last days of his mother. She suffered from cancer and he has spoken about the treatment given to her. All these aspects are also reflected in the Will made by the testator as seen above. The testator has stated as to how he looked after his wife and then how his son also looked after her. He has also stated to the Will as to how a considerable amount was spent on the medical expenses. There is no denial of day of these statements in the evidence of the respondent or through cross-examination of Appellant No. 1. 38. The respondent herself accepts in her plaint that she did not demand any share in the property earlier since the income therefrom was meagre. This also goes to prove the contents of the Will where it is stated that the income from the property was hardly any amount. Appellant No. 1 has also deposed to the fact that he was paying the municipal taxes on the property. He had paid the estate duty and also filed suits against the tenants and that the respondent never participated in any of those proceedings. On this background, we have to examine as to whether the Will was executed as claimed or whether there were any intrinsic contradictions and whether the disposition was improbable or unnatural. For this purpose we will have to consider the material which has come on record in its entirety. On this background, we have to examine as to whether the Will was executed as claimed or whether there were any intrinsic contradictions and whether the disposition was improbable or unnatural. For this purpose we will have to consider the material which has come on record in its entirety. It is seen that the income from the house property was meagre as stated in the plaint itself. The wife of the testator was bedridden for long time and it was the testator and his son- Appellant No. 1 who looked after her for nearly 12 years prior to her death. Much prior to her mother's illness, the respondent was married and was given 40/50 tolas of gold in her marriage. The respondent was undoubtedly in much better financial position which is not disputed by her. Would it be improbable in such a situation for a father to make a Will and give the house property only to his son and to the exclusion of his daughter ? The Will states that there were tenants in that property and there was hardly any income. It also records that appellant No. 1 had recently started his practice in Pune. One has to consider the face that the Will was being made in the year 1965. The father having noted that his daughter was already well settled in life and having also noted that the property could not be properly divided, thought it fit to give it to his son who was otherwise also staying with him and who was yet not fully settled in life. 39. It is sought to be canvassed that the language in the Will is not of a person belonging to the community, to which the deceased belonged. Emphasis is sought to be laid on the word "Hantharun" (bedding) used in the Will as also the terms such as "Pesha Patkarla" (took the occupation) and "Dhanda" (business) for the legal profession and the term "Nadurust" (not well) for describing the health of his wife, Mr. Rege submitted and in our view, rightly so, that there cannot be any objection to the words like "Nadurust" and "Pesha Patkarla". Rege submitted and in our view, rightly so, that there cannot be any objection to the words like "Nadurust" and "Pesha Patkarla". Even as far as the word "Dhanda" is concerned, one has to see that the deceased had developed a dislike for the legal profession and, therefore, he left it and started taking tuitions as is disclosed in the Will and the depositions. If the Will of such a person used the word "Dhanda" (business) for the legal profession, in our view, it cannot be objected to. That leaves only the word "Hantharun" (bed and bedding). In this behalf. Mr. Rege has drawn our attention to the verb "Hantharane" appearing in Molesworth's Marathi-English Dictionary to submit that the word is a properly accepted word. It was submitted that the Will was not registered but there is no legal requirement that a Will ought to be registered. It was further submitted that the deceased was a person with a legal background and normally he would register the Will. However, in our view, a mere absence thereof cannot be led to create a suspicion. 40. However, what is most important to note on this background is the conduct of the respondent. It is to be noted that the respondent says that in 1989, she made inquiries since she wanted to file returns under the Urban Land (Ceiling) Act. We cannot ignore that this Act came into force in 1976 and the returns were to be filed at that time. This reason is not believable. Mr. Gupte fairly conceded that no other explanation whatsoever has been given by the respondent for her having agreed to let the property be transferred to the name of the appellant not jointly with her. If they were joint owners there was no advantage for the property records not mentioning the same. We therefore, have no hesitation in accepting the appellant's case. The respondent claims that she came to know about the Will only when she made inquiries in the year 1989. Now, on this background, one has to see is that way back on 27th September, 1967, the respondent put her endorsement on the letter of Appellant No. 1 that she had no objection to the substitution of his name in place of her father. Now, on this background, one has to see is that way back on 27th September, 1967, the respondent put her endorsement on the letter of Appellant No. 1 that she had no objection to the substitution of his name in place of her father. Thereafter there is her own letter sent from her residence dated 22nd January, 1968 wherein she has clearly stated that she had no objection to the recording of the name of her brother to the particular property. The respondent tried to contend that she did not know English well but it has clearly come in her evidence that the respondent has studied upto S.S.C. and English was one of her subjects in S.S.C. Even with respect to her endorsement made on 27th September, 1967, the respondent was specifically asked in her cross-examination as to whether her husband was aware about her signature thereunder and she has answered it in the affirmative. Thus, her husband was aware about the signature below the application made by appellant No. 1 on 27th September, 1961. On 12th January, 1968, the respondent herself gave her consent through her own letter to the name of her brother being recorded. Now, it is material to note that the letter dated 12th January, 1968 was written by her in response to the letter from the City Survey Office dated 18th December, 1967 sent prior thereto. The respondent has not produced that letter before the Court and Mr. Rege has, therefore, rightly submitted that an adverse inference should be drawn against her. 41. Now, when we see the totality of the circumstance, in our view, the learned Judge was entirely in error in insisting upon additional documents being produced by appellant No. 1 or by Shashikala and Arun to produce additional signatures either of the testator or the father of Shashikala and father of Arun. Appellant No. 1 had produced the rent receipts and had also produced a letter written by his father in the year 1956 on behalf of his father's sister. Shashikala, who is related to both parties, had stated that the endorsement below the Will and the signature and the date thereunder was that of her father. She had no reason to give any statement in favour of appellant No. 1 and against the respondent as Shashikala is related to both of them. Shashikala, who is related to both parties, had stated that the endorsement below the Will and the signature and the date thereunder was that of her father. She had no reason to give any statement in favour of appellant No. 1 and against the respondent as Shashikala is related to both of them. Shashikala was asked with respect to the documents which were about 20/30 years old. For not producing such documents, her deposition came to be discarded and the learned Judge has committed a grave error in it. In our view, Shashikala has proved the endorsement, signature and the date put by her father and when that endorsement gets proved, the endorsement proves that the signature below the Will was that of the testator. This is apart from the fact that appellant No. 1 has produced the rent receipts and the letter bearing the handwriting of the testator. The respondent did not dispute the handwriting on the Will nor did ask for sending it to any handwriting expert. There is no suggestion of any coercing exerted by Appellant No. 1 on the testator. Similarly there was no reason to disbelieve the deposition of Shri Arun Raje with respect to the signature of his father. 42. In paragraph 38 of the judgment, the learned Judge has held that the property was ancestral property and that, therefore, the deceased could not have disposed off the same. We are entirely in agreement with Mr. Rege that this finding was totally unwarranted. There was no pleading to this effect. No issue in this regard was framed and hence such finding was uncalled for. We, therefore, set aside the same. 43. In the circumstances, in our view, the learned Judge has committed a grave error in coming to the conclusion that the Will was not proved. His finding on issue No. 3 was, therefore, erroneous, and is hereby reversed. Hence, on the point for determination which arises in the present appeal, we hold that the learned Judge has erred in law and on facts in holding that the Will dated 19th April, 1965 of the deceased Vitthal Krishna (Krishnaji) Chitale was not proved. On issue No. 3 we hold that the Will was duly proved. We further hold the Will was valid and effective in the eyes of law. On issue No. 3 we hold that the Will was duly proved. We further hold the Will was valid and effective in the eyes of law. Consequently Appeal No. 141 of 1998 is allowed, the judgment and decree dated 3rd October, 1997 passed by the learned Civil Judge, Senior Division, Pune, is set aside and the suit will stand dismissed. Appeal No. 141 of 1998 is allowed with costs throughout. 44. First Appeal No. 188 of 1998 is the Cross Appeal of the respondent in First Appeal No. 141 of 1998. In view of our finding on Issue No. 3, as rendered above, this cross appeal will stand dismissed. There will not be any separate order as to costs in this appeal. 45. The order of status quo which was running during the pendency of first Appeal No. 188 of 1998 will stand vacated. 46. Authenticated copy of this order be made available to the parties. Order accordingly.