JUDGMENT B.P. Katakey, J. 1. By this Miscellaneous First Appeal, the Appellant has challenged the judgment dated 20.121995 passed by the learned Additional District Judge, Nagaon in Title Suit (P) No. 26 of 1992 dismissing the suit filed by the Appellant praying for grant of probate of a will executed by Maheswari Debi, wife Late Golok Ch. Barthakur. 2. The facts leading to the filing of the present appeal is that the Appellant as Plaintiff filed an application in the Court of the learned District Judge, Nagaon, Assam, which was initially registered as Misc. (Probate) 60 of 1992, for grant of probate of the Will of Maheswari Debi, wife of Late Golok Chandra Barthakur, stating inter alia, that Late Maheswari Debi during her life time executed her last Will in presence of the witnesses on 2.1.1988 bequeathing the property belongs to her. The sad proceeding was contested by the present Respondent, namely, Atul Barthakur, who is the close relative of Late Maheswari Debi, the testatrix, by disputing the execution of the Will by Maheswari Debi and by stating, inter alia, that the properties involved in the alleged Will originally belonged to Maheswar Sharma Barthakur who, in the year 1938 by a Will bequeathed the properties in favour of the objector Atul Barthakur, who was the grand son of Maheswar Sharma Barthakur, through his son Golap Chandra Sarma Barthakur, in the said Will executed by Maheswar Sharma Barthakur, another son of Maheswar as appointed as executor and accordingly Golok Chandra Sharma Barthakur took out a probate by instituting the Title Suit No. 12 of 1940 and then committed the breach of trust by executing a Will in favour of his wife Maheswari Debi, the present testatrix. Maheswari Debi, thereafter obtained the probate of the Will executed by Golok Chandra Sharma Barthakur by instituting the Title Suit No. 13/72. It has further been pleaded in the objection that since Maheswar Sharma Barthakur, the grand father of the objector, in the year 1938 bequeathed the property in favour of the objector, Maheswari Debi had no right, title and interest over the land bequeathed by the present Will in question and in fact a proceeding being No. NRK-204/89 is pending before the learned Deputy Commissioner for correction of the revenue records on the basis of the Will executed by Maheswar Sharma Barthakur and which was probated in Title Suit No. 12 of 1940. It has further been contended in the objection that Maheswari Debi, the testatrix, was a pardanasin and illiterate widow having no issue and the Plaintiff who was appointed as attorney by her took advantage of his position and manufactured the Will without any knowledge of Maheswari Debi bequeathing a big portion of the property in his favour, though she did not execute the document consciously and out of her own accord. 3. The said proceeding was thereafter transferred to the Court of the learned Additional District Judge, Nagaon and was renumbered as Title Suit (Probate) No. 26 of 1992. In the said proceeding the Plaintiff examined himself as P.W. 1, Shri Maheswar Goswami, the writer of the Will as P.W. 2, Jagat Bhattacharjee and Shri Pradip Kumar Mishra, the attesting witnesses of the Will as P.W. 3 and 4 respectively. The objector, the Respondent herein also examined three witnesses, namely, the objector himself as D.W. 1, Bijoy Sharma as D.W. 2 and Purna Chandra Sharma as D.W. 3. Apart from the oral evidence, the Plaintiff side exhibited the Will executed by the testatrix Maheswari Debi, as exhibit 1. The objector, the Respondent herein exhibited two documents, namely, certified copy of the order dated 5.2.1974 passed by the learned District Judge in Title Suit No. 13 of 1972 granting the probate of the Will executed by Golok Chandra Barthakur, husband of Maheswari Debi as Exbt. 'Ka' and the certified copy of the Will executed by Shri Maheswar Sharma Barthakur on 14.8.1938, which was probate in Title Suit No. 12 of 1940 as Exbt. 'Kha'. The learned Additional District Judge, Nagaon, thereafter upon marsheling the evidences on record, both oral and documentary, by the judgment dated 20.12.1995 dismissed the said T.S. (Probate) No. 26 of 1992 refusing to grant the probate of the Will executed by Maheswari Debi. Hence, the present appeal. 4. I have heard Mr. B.K. Goswami, learned senior Counsel assisted by Ms. T. Goswami, learned Counsel for the Appellant and also Mr. Satyen Sharma, learned Counsel appearing on behalf of the Respondent. 5. Mr. Goswami, learned senior Counsel appearing for the Appellant has submitted that under Section63 of the Indian Succession Act, the Will is required to be attested by two attesting witnesses, the testatrix must execute the Will of her free Will and there should not be any suspicious circumstances, to constitute a valid Will. 5. Mr. Goswami, learned senior Counsel appearing for the Appellant has submitted that under Section63 of the Indian Succession Act, the Will is required to be attested by two attesting witnesses, the testatrix must execute the Will of her free Will and there should not be any suspicious circumstances, to constitute a valid Will. In the instant case, according to the learned senior Counsel, the Appellant has proved the execution of the Will by examining the scribe, namely, Mahesh Goswami as P.W. 2 as well as the attesting witnesses of the said Will, namely, Sri Jagat Bhattacharjee and Shri Pradip Mishra as P.W. 3 and 4. It has come out in evidence that the testatrix executed the Will of her free Will and there was no suspicious circumstances so as not grant the probate of the Will and to hold that Will was not validly executed. Mr. Goswami, learned senior Counsel has submitted that the last wishes of the testatrix is to be honoured by the Court unless the execution of the Will is shrouded by suspicious circumstances and the Plaintiff proves the execution of the Will by the testatrix of her free Will and due execution of the same by examining attesting witnesses as required under Section 68 of the Indian Evidence Act. In the instant case, Mr. Goswami, learned senior Counsel has submitted that the Plaintiff has discharged his burden of proving the due execution of the Will by examining the scribe as well as the two attesting witnesses and therefore the learned Court below ought to have granted probate of the Will in favour of the Plaintiff. The further submission of the learned senior Counsel is that the learned Court below has refused to grant the probate of the Will on the ground that the fraud was cornmitted by Golok Ch. Barthakur, husband of Maheswari Debi bequeathing the property in her favour, which was bequeathed by executing the Will in the year 1938 and probated in Title Suit No. 12 of 1940 where by the property was bequeathed in favour of the present objector and, therefore, Golok Chandra Barthakur had no right title and interest to bequeath the said property in favour of his wife Maheswari Debi, so also Maheswari Debi had no right title and interest to bequeath the same by virtue of the present Will in question. According to the learned Counsel, the question of title to the property cannot be gone into by the learned Judge, in a probate proceeding and what the learned Judge is required to see is whether the Will was executed by the testator or testatrix of his/her free Will whether there was any suspicious circumstances and whether the person claiming the probate of the Will could prove the due execution of the Will, as to whether the Will so executed, as required under Section 63 of the Indian Succession Act and as to whether the person claiming execution of the Will could prove that the Will was so executed as required under law and the execution of the same is duly proved by examining at least one attesting witness. 6. Mr. Goswami, learned senior Counsel further contended that the learned Court below refused to grant the probate of Will on the ground of fraud though there was no pleading of fraud in the objection and the fraud has not been proved by him. According to the learned senior Counsel the plea of fraud has to be taken specifically as required under Order 6 Rule 4 of the Code of Civil Procedure and in the instant case the fraud was not alleged against either Maheswari Debi, the testatrix or against the Appellant and there being no pleadings as well as the evidence adduced by the objector on fraud, the learned Court below has committed illegality in refusing to probate the Will on the ground of fraud. It has further been contended by the learned senior Counsel that the Will executed by Golok Chandra Barthakur in favour of Maheswari Debi was probated in Title Suit No. 13 of 1972 vide order dated 5.2.1974, after hearing the objection filed by the father of the present objector wherein the learned Probate Court has held that the Will was duly executed and signed by testator in presence of the attesting witnesses and the question of title raised by the objector held to be not decidable in the probate proceeding, for which a separate suit was to be filed claiming title. But the objector inspite of grant of probate of the Will executed by Golok Chandra Barthakur, the husband of Maheswari Debi, the present testatrix, vide order dated 5.2.74, never brought any suit for declaration of his title, which according to him, he derived by virtue of the will executed by Maheswar Sharma Barthakur in the year 1938. Therefore, according to the learned senior Counsel the order dated 5.2.1974 granting probate of the Will in favour of the Maheswari Debi became final as the said order has not been challenged by the present objector in the higher Court and hence, Maheswari Debi had the right to execute a Will bequeathing the said property to the Appellant and others. 7. Learned senior Counsel Mr. B.K. Goswami, therefore submits that the judgment passed by the learned Court below is bad in law and liable to be set aside and the probate as prayed for is to be granted in favour of the Appellant. The learned senior Counsel in support of his contention has placed reliance on the decisions of the Apex Court in Rani Purnima Debi v. Kumar Khagendra Narayan Deb reported in AIR 1962 SC 567 , Varanasaya Sanskrit Vishwavidyalaya v. Dr. Rajkishore Tripathi, reported in AIR 1977 SC 615 , P.S. Sairam andanother v. P.S. Rama Rao Pisey reported in AIR 2004 SC 1619 , Rabindranath Mukherjee v. Panchanan Banerjee (Dead) by L.Rs. reported in (1995) 4 SCC 459 , Ghulam Qadir v. Special Tribunal and Ors. reported in (2002) 1 SCC 33 , DaulatRam and Ors. v. Sodha and Ors. reported in (2005) 1 SCC 40 , Meenakshiammal (Dead) through L.Rs. v. Chandrasekaran and Anr. reported in (2005) 1 SCC 280 and Sridevi and Ors. v. Jayaraja Shetty and Ors. reported in (2005) 2 SCC 784 . 8. Mr. Satyen Sharma, learned Counsel on behalf of the Respondent/objector, on the other hand has submitted that the execution of the Will is shrouded by suspicious circumstances as the Appellant being the power of attorney holder of the testatrix took undue advantage of his position as power of attorney holder and got the Will executed by her without her knowledge. Mr. Satyen Sharma, learned Counsel on behalf of the Respondent/objector, on the other hand has submitted that the execution of the Will is shrouded by suspicious circumstances as the Appellant being the power of attorney holder of the testatrix took undue advantage of his position as power of attorney holder and got the Will executed by her without her knowledge. It has further been submitted by the learned Counsel that testatrix Maheswari Debi had no right, title and interest to bequeath the property in question by executing any Will as the said property was bequeathed by Maheswar Sharma Barthakur by Will executed in the year 1938, which was probated in the year 1940, in favour of the objector being grand son, but though Golok Chandra Barthakur, husband of Maheswari Debi, got the probate of the said Will executed by Maheswar Sharma Barthakur being the administrator appointed by him, the said property was bequeathed by Golok Ch. Barthakur in favour of Maheswari Debi by executing a will on 7.11.1970 which was probated in Title Suit No. 13/72 and the said property was ultimately bequeathed by Maheswari by executing the Will in question. According to the learned Counsel as Maheswar Sharma Barthakur in the Will executed in the year 1938 bequeathed the property to the present objector, Golok Chandra Barthakur his eldest son as well as Maheswari Debi, wife of Golok Chandra Barthakur had no right title and interest to execute the Will and bequeathed the said property to anybody else and as such according to the learned Counsel, the Will even if executed by Maheswari Debi, cannot be probated, as she had no right, title and interest over the property in question. Learned Counsel has submitted that Section 30 of Successions Act provides that the Testator and Testatrix must be capable of the disposing of the property by him/her by way of Will and then only will be valid one. Learned Counsel has submitted that Section 30 of Successions Act provides that the Testator and Testatrix must be capable of the disposing of the property by him/her by way of Will and then only will be valid one. The further submission of the learned Counsel for the Respondent is that as the fraud was committed by Golok Chandra Barthakur in executing the Will by him in the year 1970 in favour of Maheswari Debi, the present Will executed by Maheswari was rightly refused to be probated by the learned Court below as the fraud vitiate all subsequent actions including execution of the Will by Golok Chandra Barthakur in favour of Maheswari and by Maheswari to the present Appellant and others. Mr. Sharma, learned Counsel has further submitted that the objector is a close relation of the testatrix being the 'Barma' (father's elder brother's wife) and there is no ground as to why the property will be bequeathed to the Appellant and others, when she had the close relatives and which gives right to suspicious circumstances. It has further been submitted that admittedly the Testatrix was a paradanasin illiterate lady. It is not in evidence, according to the learned Counsel, that the contents of the Will was written as per her instruction and it was read over and explained to her before execution of the same. It has further been contended that the Appellant has failed to prove that the Testatrix put her thumb impression on the Will in presence of the attesting witnesses and the attesting witnesses put their signatures in the Will in her presence and, therefore, the requirement of proving the due execution of the Will has not been fulfilled and hence the learned Court below has rightly refused to grant probate as spayed for by the Appellant. Mr. Satyen Sharma, learned Counsel for the objector, has further submitted that it is evident from the Will executed by Maheswari, which was registered in the office of the Sub-Registry that it was dated 2.12.88, though it was stated to be executed on 2.1.1988 and the same creates grave doubt about the execution of the Will by Maheswari in favour of the Appellant and others. Moreover, the registration of such Will was not done in accordance with the requirement of Registration Manual of Assam, inasmuch as, the thumb impressions as required to be taken under Clause 47 of the said Manual, have not been taken, therefore, the execution of the Will by Maheswari is shrouded by suspicious circumstances and as such the same was rightly refused to be probated by the learned Court below. 9. Learned Counsel Mr. Sharma in support of his contention, has placed reliance on the following decisions: 1) Mustt. Jubedakhatun v. Sulaiman Khan reported in 1986(1) G.L.R. 147 2) Bimalendu Das v. Manjushree Chakraborty reported in 1993 (Supp) (1) G.L.R. 152, 3) Jarina Khatun (Mustt) v. Md. Hassen Ali and Anr. reported in 2000 (1) G.L.T. 594, 4) Keshab Prasad Shah v. Rampujan Shah and Ors. reported in 2001 (3) G.L.T. 436, 5) Guljan Bibi v. Nazir- Uddin Mia reported in AIR 1975 Gau 30 . 6) Tazmul Ali and Ors. v. Md. Ulairaja reported in AIR 1978 Gau 56 , 7) Gujarat Ginning and Manufacturing Co. Ltd. v. Motilal Hirabhai Spinning and Manufacturing Co. Ltd. reported in AIR 1930 Bom 71, 8) Tincowri Pramanik v. Narayan Chandra Mukherjee and Anr. reported in AIR 1957 Cal 364 , 9) Gnambal Ammal v. T. Rajuayyar and Ors. reported in AIR 1951 SC 103 , 10) Ishwardeo Narain Singh v. Sm. Kamta Devi and Ors. reported in AIR 1954 SC 280 , 11) Rani Purnima Debi v. Kumar Khagendra Narayan Deb and Anr. reported in AIR 1962 SC 567 , 12) Mst. Kharbuja Kuer v. Jangbahadur Rai reported in AIR 1963 SC 1203 , 13) P.K. Ghosh, I.A.S. and Anr. v. J.G. Rajput reported in AIR 1996 SC 513 , 14) Director General E.S.I, and Anr. v. T. Abdul Razak reported in AIR 1996 SC 2292 , 15) Surendra Pal v. Dr. (Mrs.) Saraswati Arora and Anr. reported in (1974) 2 SCC 600 , 16) T. Arivandandam v. T.V Satyapal and Anr. reported in (1977) 4 SCC 467 , 17) Chiranjilal Shrilal Goenka v. Jasjit Singh and Ors. reported in (1993) 2 SCC 507 , 18) S.P. Chengalvaraya Naidu v. Jagannath (Dead) by L.Rs. reported in (1994) 1 SCC 1 , 19) Gowrishankar and Anr. v. Joshi Amba Shankar Family Trust and Anr. reported in (1996) 3 SCC 310 20) Muninanjappa and Ors. v. P. Manual and Anr. reported in (1993) 2 SCC 507 , 18) S.P. Chengalvaraya Naidu v. Jagannath (Dead) by L.Rs. reported in (1994) 1 SCC 1 , 19) Gowrishankar and Anr. v. Joshi Amba Shankar Family Trust and Anr. reported in (1996) 3 SCC 310 20) Muninanjappa and Ors. v. P. Manual and Anr. reported in (2001) 5 SCC 363 , 21) BhagatRam (Dead) by L.Rs v. Teja Singh (Dead) by L.Rs. reported in (2002) 1 SCC 210 , 22) Rakesh Wadhawan and Ors. v. Jagdamba Industrial Corporation and Ors. reported in (2002) 5 SCC 440 , 23) John Vallamattom and Anr. v. Union of India reported in (2003) 6 SCC 611 , 24) Rafique Bibi (Dead) By L.Rs. v. Sayed Waliuddin (Dead) by L.Rs. reported in (2004) 1 SCC 287 , 25) Uma Devi Nambiar and Ors. v. T.C Sidhan (Dead) reported in (2004) 2 SCC 321 , 26) Kailash Chand and Anr. v. Dharam Dass reported in (2005) 5 SCC 375 . 10. I have considered the submission of the learned Counsel for the parties and also perused the records of Title Suit (Probate) No. 26 of 1992. 11. An application for grant of probate of the Will of Maheswari Debi, wife of Late Golok Chandra Barthakur was filed by the Appellant Shri Durlav Chandra Bhattacharjee, stating inter alia, that Maheswari Debi during her life time executed her last Will on 2.1.1988, and died on 30.3.1991. In the said application it was also mentioned that Maheswari Debi left behind Shri Atul Barthakur, Respondent herein, Shri Dilip Barthakur, Shri Promode Barthakur, Pranab Barthakur and Pradip Barthakur as her near relations. The said application was initially registered as Misc. (Probate) No. 60 of 1992 and thereafter as T.S. (Probate) No. 26 of 1992. In the said application it was also mentioned that Maheswari Debi left behind Shri Atul Barthakur, Respondent herein, Shri Dilip Barthakur, Shri Promode Barthakur, Pranab Barthakur and Pradip Barthakur as her near relations. The said application was initially registered as Misc. (Probate) No. 60 of 1992 and thereafter as T.S. (Probate) No. 26 of 1992. On receipt of the notice by the relations of Maheswari Debi, Shri Atul Barthakur, the Respondent herein contested the said probate proceeding by filing the written objection stating inter alia, that the Will or testamount sought to be probated was not duly executed by Maheswari Debi in presence of the witnesses, that the properties bequeathed by way of Will belonged to Maheswar Sharma Barthakur, previously and in the year 1938 he bequeathed the said property by means of a Will in favour of the objector, who was the grandson of the said Testator, through his son Golap Chandra Sharma Barthakur, that the eldest son of Maheswar Sharma Barthakur, Shri Golok Chandra Barthakur, obtained the probate of the said Will executed by Maheswar by instituting the Title Suit No. 12 of 1940 but then he committed the breach of trust and willed away the properties in favour of his wife, Maheswari Debi, who secured the probate of the said Will by Golok by instituting the Title Suit No. 13/72. It was further contended in the written statement that as property involved in the present Will was initially bequeathed by Maheswar Sharma Barthakur to the objector in the year 1938, in favour of the objector, which will was probated, Maheswari Debi had no right, title and interest in the property to further bequeath the same by executing the Will. The objector has also stated in the written statement that a proceeding being NRK No. 204/89 is pending before the learned Deputy Commissioner, for correction of revenue records on the basis of the Will left behind by Maheswar Sharma Barthakur, which was probated by instituting the Title Suit No. 14/1940, that Maheswari Debi was a pardanasin illiterate widow having no issue and ageing and sick. As the lady had no one to look after, she took the help of the propounder of the Will Durlav (Appellant) a co-villager, who was subsequently been appointed as her attorney and in the course of his duty as attorney, the propounder manufactured the Will without any knowledge of Maheswari Debi bequeathing a big portion of the properties in favour of him and the said Will was not executed by Maheswari Debi consciously and out of her own accord, and the same was a product of conspiracy by the propounder in collaboration of the other beneficiaries named in the said Will. 12. The learned Additional District Judge, on the basis of the pleadings of the parties, framed as many as 8 issues namely: 1) Whether there is cause of action for the suit? 2) Whether the petition for probate has been properly drawn up, subscribed, verified and presented? 3) Whether the testatrix, Maheswari Devi, had any right or title to dispose of the properties under the will in question? 4) Whether the deceased Maheswari Debi executed the will? 5) Whether the Will was executed by Maheswari Devi voluntarily and consciously, fully knowing the contents and implications? 6) Whether the will was obtained by the Plaintiff Petitioner fraudulently and by exercise of undue influence as he being an attorney of Maheswari Debi? 7) Whether the Will is shrouded by suspicious circumstances for which it is liable to be struck out? 8) What relief? 13. The propounder of the Will, Durlav Chandra Bhattacharjee, the Appellant herein, in support of his application for probate examined 4 witnesses, namely the propounder himself as P.W. 1, Shri Mahesh Goswami, scribe, who had written the Will, as P.W. 2 Shri Jagat Chandra Bhattacharjee and Sri Pradip Misra, the attesting witnesses to the said Will as P.W. 3 and 4. The objector Shri Atul Chandra Barthakur, Respondent herein also examined three witnesses, namely, the objector himself as D.W. 1, Shri Bijoy Sharma, as D.W. 2 and Shri Purna Chandra Sharma as D.W. 3. The propounder also exhibited the Will executed by Maheswari Devi as Exbt. 1. The objector Shri Atul Chandra Barthakur, Respondent herein also examined three witnesses, namely, the objector himself as D.W. 1, Shri Bijoy Sharma, as D.W. 2 and Shri Purna Chandra Sharma as D.W. 3. The propounder also exhibited the Will executed by Maheswari Devi as Exbt. 1. The objector during the cross-examination of the propounder of the Will, exhibited the certified copy of the order dated 5.2.1974 passed by the learned Additional District Judge in Title Suit No. 13/72 granting probate of the Will executed by Golok Chandra Barthakur in favour of Maheswari Devi and also exhibited certified copy of the Will dated 14.3.1938 executed by Maheswar Sharma Barthakur as Exbt. Kha, during the examination of the objector. 14. P.W. 1 the propounder of the Will in his deposition has stated that Maheswari Devi was the wife of his distantly related elder brother and executed the Will, being Exbt. 1, written by Mahesh Chandra Goswami, P.W. 2, in presence of the attesting witnesses Kushal Deb Goswami, Arun Sharma, Jagat Bhattacharjee, (P.W. 3) and Pradip Misra, (P.W. 4). It has further been stated, during examination in chief, that except Jagat Bhattacharjee and Pradip Misra and other attesting witnesses are not alive. It has come out from the evidence of P.W. 1 that Maheswari Devi died issue less and her husband had two wives and she had no good relation with her nephews (i.e. objector and his brothers) In fact, a case was instituted against her by her husband's brother and also contested the Will execute, by her husband Golok in her favour, by the father of Atul Barthakur and since then there was no good terms between them. P.W. 1 in his deposition has also stated that Atul filed a mutation case for obtaining mutation over the properties belonging to Maheswari Devi and being the power of attorney holder, P.W. 1, took necessary steps in that case on behalf of Maheswari Devi. During cross-examination, this witness has stated that when he was the attorney of Maheswari since 1971, Maheswari Debi got some land from her husband Golok Barthakur, some of which are self acquired, her husband, bequeathed the land in her favour (Maheswari Devi) by Will, which was probated vide Exbt. 'Ka' Order. During cross-examination, this witness has stated that when he was the attorney of Maheswari since 1971, Maheswari Debi got some land from her husband Golok Barthakur, some of which are self acquired, her husband, bequeathed the land in her favour (Maheswari Devi) by Will, which was probated vide Exbt. 'Ka' Order. P.W. 1 during cross-examination has also stated that he does not know if Maheswar Sarma Barthakur bequeathed the entire land to his grand son Atul Barthakur by way of Will and also does not know about the probate granted in the year 1940 in Title Suit No. 12/1940 and in the said Will Golok Barthakur, the husband of Maheswari Devi was the executor and though he obtained probate of the said Will he bequeathed the said land in the name of his wife Maheswari Devi instead of giving it to Atul Barthakur. A suggestion was put to the effect that Maheswari Devi has no right, title and interest over the suit land, to which the witness denied. During cross-examination P.W. 1 has further stated that being Brahmin widow she had to live under cover yet she came to the office for taking her pension money. At the time of making Will she was about 70/71 years old and put her thumb impression in the Will as she could not give the signature. It has also come from the evidence that Maheswari Devi died due to old age ailment and had rheumatic pain and cough. This witness i.e. propounder of the Will has also stated that he was also present at the time of execution of the Will by Maheswari Devi, Mahesswari Devi adopted Bhaben Sarma and Suren Sarma as her sons as she had no issues and bequeathed an area of land measuring 26 bighas 3 kathas 1/3 lechas by way of Will in their favour and an area of land measuring 20 bighas 3 kathas 9 lechas was bequeathed in favour of the propounder through Ext. 1. This witness has denied the suggestion that taking advantage of illness of Maheswari Devi, her illiteracy and old age he got the Exbt. 1 executed and Maheswari Devi did not execute the said Will. 1. This witness has denied the suggestion that taking advantage of illness of Maheswari Devi, her illiteracy and old age he got the Exbt. 1 executed and Maheswari Devi did not execute the said Will. The objector did not cross-examine the propounder of the Will P.W. 1 on the statement made by him that P.W. 3 and 4, namely Jagat Bhattacharjee and Pradip Misra were attesting witnesses of the said Will and also P.W. 2 Mahesh Goswami was the scribe of the said Will. The objector's case, as it appears from the cross-examination of the P.W. 1, propounder of the Will, is that the property in question bequeathed by the present Will belonged to Maheswar Sharma Barthakur which was bequeathed by him by means of a Will in the year 1938, and probated in the year 1940 wherein the objector Atul Barthakur was the beneficiary, though the said Will was probated by Golok Chandra Barthakur husband of Maheswari Devi, being the eldest son of Maheswar, subsequently instead of giving the property to Atul, the property was given to his wife Maheswari Debi by Golok Barthakur by executing another Will which was probated in the year 1972 and, therefore, Maheswari Debi had no right, title and interest to bequeath the said property by way of Will and that Maheswari Debi was old and was suffering from ailment and did not execute the Will voluntarily. 15. The scribe of the Will Mahesh Goswami was examined as P.W. 2, who in his examination in chief as stated that he is an Advocate's Clerk in Nagaon Bar Association since 1971 and wrote the Will i.e. Exbt. 1 in terms of the direction of Maheswari Debi, as per her own words, which was read over to her and thereafter she put her thumb impression. This witness has identified his signature and also notes under thumb impression of Maheswari Debi in the said Will i.e. Exbt. 1. This witness has further stated that the testatrix Maheswari Devi put her thumb impression in presence of the attesting witnesses Kusha Deb Goswami and Pradip Misra, (P.W. 4) Arun Chandra Sarma and Jagat Bhattacharjee (PW3) and also the attesting witnesses put their signatures to the said Will. This witness has further stated that in presence of the attesting witness Maheswari Debi put her thumb impression and though she was old aged but she could move. This witness has further stated that in presence of the attesting witness Maheswari Debi put her thumb impression and though she was old aged but she could move. During cross-examination, the P.W. 2 has stated that the testatrix was more than 60 years of old, the propounder Durlav was present at the time of execution of the Will an Will was read over to the testatrix. This witness has denied the suggestion put by objector that Will was written and read over by Durlav and the same was written as per the words of Durlav. A categorical statement was made by this witness during cross-examination to the effect that he himself read out the same to the testatrix. This witness also denied the suggestion that there was collusion between Durlav and him and as a result of which the Will was illegally created. The objector's case as it appears from the cross-examination of this witness is that the testatrix was old and not in a position to execute the Will, the Will was not read over to her and the same was written by Durlav Bhattacharjee, the propounder and was read over by him and the same was written as per the words of Durlav. 16. P.W. 3, Jagat Chandra Bhattacharjee, who is one of the attesting witnesses to the Will, in his examination in chief has stated that he was a witness to the Exbt. 1 Will, executed by Maheswari Debi, who put her thumb impression in his presence and he also put his signature in the said document. It has further been stated that at the point of time Maheswari Debi carried a good health and she could move on her own strength and besides him, Arun Sarma, Kushal Goswami and other witness were there in the said Will. During cross-examination this witness has categorically stated that Maheswari Debi put her thumb impression in his presence, he was present while the Will was prepared. The thumb impression was put by Maheswari Devi after completion of writing. Durlav Bhattacharjee, was also present at that time. Maheswari Debi put her thumb impression in the office of the Sub-registry also. She was at that time 65/70 years old. A suggestion was put by the objector that at the time of making the Will Maheswari Debi was ailing and was old. Durlav Bhattacharjee, was also present at that time. Maheswari Debi put her thumb impression in the office of the Sub-registry also. She was at that time 65/70 years old. A suggestion was put by the objector that at the time of making the Will Maheswari Debi was ailing and was old. The statements that the Will was written in presence of this witness, thumb impression was given by Maheswari Debi in his presence and he was also put his signature in the said document, Maheswari Devi's condition at that time was good and she could move about on her own, have been established by the evidence of PW 3 Jagat Bhattacharjee. It appears from the suggestion put by the objector that the objector's case is that Maheswari Devi was ailing and old and therefore, she was not in a position to execute the Will. 17. Pradip Kr. Misra, another attesting witness was examined as P.W. 4, who during his examination in chief, has stated that he was a witness to the Will executed by Maheswari Debi, who put her thumb impression in his presence and he also put his signature in the said document. During cross-examination, this witness has stated that Maheswari Devi is the mother in law of his elder brother and, therefore, he knew her before making the Will, she called him, informing him that she will make a Will, he was present while the Will was written and read out the same to Maheswari Devi, he was present while Maheswari Devi put her thumb impression and he was also present while the same was registered, but this witness has stated that Durlav Bhattacharjee was not there while making the Will. To the suggestion put by the objector that he is not telling the truth and deposed falsely in collusion with Durlav, propounder of the Will, he denied the same. From the cross-examination of this witness, it appears that the objector case is that the witness was not present while the testatrix put her thumb impression. But it has come out from the positive evidence of this witness that he was present while the testatrix put her thumb impression and that the Will was read over to her and he was there as he was called by the testatrix who is the mother in law of his elder brother. 18. But it has come out from the positive evidence of this witness that he was present while the testatrix put her thumb impression and that the Will was read over to her and he was there as he was called by the testatrix who is the mother in law of his elder brother. 18. D.W. 1 in his deposition has stated that the testatrix Maheswari Devi was his 'Barma' (wife of father's elder brother), that mutation case in respect of the land belonging to Maheswar Sharma Barthakur, which he bequeathed by means of a Will to the said objector, pending, that Golok Barthakur, husband of testatrix was appointed as executor and after getting probate of the said Will he deceived the objector by bequeathing the entire land in favour of his wife by the Will, which was subsequently probated by Maheswari Debi, wife of Golok Barthakur and the probate as granted inspite of the objection raised by the objector and others and thereafter Maheswari Debi bequeathed the said land to the propounder of her Will, which is the subject matter of the present proceeding. This witness also exhibited the order granting probate of the Will executed by Maheswar Sharma Barthakur as Exbt. 'Kha' and also stated that he is in possession of the land. This witness has further deposed that Maheswari Debi died at the age of 79/80 years and though there was a suit pending in respect of the suit land between them, he has the visiting terms with Maheswari Debi and helped in her funeral after her death, who died of rheumatic and high blood pressure, for which she was suffering from 1988 and was bed ridden. This witness has further stated that she had no capacity to travel by bus or by other vehicles, while she was suffering from illness. This witness has further stated that Maheswari Debi adopted two sons of her elder brother and also brought up a daughter for her and gave her marriage. Maheswari Devi received political pension which was drawn by Durlav Bhattacharjee, the propounder of the Will, by virtue of the authority and Durlav used to visit her house in 1971 and had a close relation between them. Maheswari Devi received political pension which was drawn by Durlav Bhattacharjee, the propounder of the Will, by virtue of the authority and Durlav used to visit her house in 1971 and had a close relation between them. D.W. 1 has further stated that he does not believe that Maheswari Devi bequeathed her land to Durlav Bhattacharjee and to her adopted sons by way of Will, which was made on 2.1.1988 as at that time Maheswari Debi was not in a position to do so and the Will was fraudulent, besides Maheswari Debi has no right over the land to bequeath the same to others by way of Will. It has also come out from the evidence that Maheswari Debi was illiterate. During cross-examination, this witness has further stated that the other witnesses Bijoy Sharma and Purna Chandra Sharma are in relation. During cross-examination, this witness has admitted that Maheswari Debi filed a suit against his father and even a proceeding under Section 107 Code of Criminal Procedure was initiated by his father against Maheswari Debi apart from a proceeding before the Revenue authority. He saw Maheswari Debi appeared in the said case in the month of March, 1990 and admitted that he did not file objection in the probate proceeding filed by Maheswari Debi for probate of the Will executed by her husband Golok, but the objection was filed by his father and inspite of the objection, the Court granted probate in favour of Maheswari Debi, against which order no appeal has been preferred. It has further been stated, during cross-examination that the names of the adopted sons are Suren and Bhaven and also admitted that Durlav Bhattacharjee, propounder of the Will had taken care of Maheswari Devi during her illness. This witness has also stated that Maheswari Debi's two nephews lived with her and they too looked after her. DW 1 during cross-examination has also stated that he is not in a position to file any document in support of Maheswari Debi's illness. To the suggestion given by the propounder of the Will that Maheswari Debi executed the Will voluntarily, in presence of the witnesses, this witness relied in negative. 19. Bijoy Sharma, who was examined as D.W. 2, in his deposition stated that Maheswari Debi was related to him being the sister of Golok Ch. To the suggestion given by the propounder of the Will that Maheswari Debi executed the Will voluntarily, in presence of the witnesses, this witness relied in negative. 19. Bijoy Sharma, who was examined as D.W. 2, in his deposition stated that Maheswari Debi was related to him being the sister of Golok Ch. Barthakur's first wife and he is also related to objector Atul Barthakur, as Atul's mother is his sister. This witness has stated that he used to visit Maheswari Debi's house occasionally during the period from 1974-78 where he saw Durlav Bhattacharjee, the propounder of the Will, who had no matrimonial relationship with Golok Barthakur, the husband of the testatrix. This witness has further stated that after 1978 also he used to visit Maheswari Debi's house occasionally and found that she carried a good health. He was further stated that he could not come when Maheswari Debi died but his brother came. During cross-examination, this witness has stated that he met Maheswari Debi in the year 1985-86 and saw her nephews living with her towards the end of her life. 20. D.W. 3, Sri Purna Chandra Sharma, the brother-in-law of the objector Atul Barthakur, in his deposition has stated that he knew Maheswari Debi and saw Durlav Bhattacharjee in her house, that Maheswari Debi died of rheumatic pain and high blood pressures, for which she was suffering for a couple of years and he could not attend her Sradha ceremony due to some difficulties. During cross-examination, this witness has stated that he does not know whether his father-in-law's family came to Maheswari Debi's house or not and also does not know in respect of any treatment of Maheswari Debi. 21. From the deposition of the witnesses examined by objector Atul Barthakur it is evident that there are disputes between Atul's family and Maheswari Devi for which a number of cases are pending between them and the relation as such, was not that congenial. It has also come out from their deposition that Durlav Bhattacharjee, propounder of the Will looked after Maheswari during her illness and Maheswari Devi adopted her nephews, Suren and Bhaven, as her sons, apart from another girl who she married off. It has also come out from their deposition that Durlav Bhattacharjee, propounder of the Will looked after Maheswari during her illness and Maheswari Devi adopted her nephews, Suren and Bhaven, as her sons, apart from another girl who she married off. D.W. 1 though stated that Maheswari Devi was suffering from rheumatic and high blood pressures since 1988 and was in bed and during that period she had no capacity to travel by busses or by vehicles, the other witnesses, namely Bijoy Sharma and Purna Sharma, who visited the house of Maheswari Devi, has stated that she carried a good health. Bijoy in his cross examined though has stated that he met Maheswari Debi in the year 1985-86, did not say anything about her illness or suffering from any rheumatic pain and high blood pressure incapaciting her to move around. D.W. 2 and 3 though are admitted to be related to Maheswari Debi, even did not attend the Sradha ceremony of Maheswari Devi on her death and also they had stated that they do not know whether the other members of the family of Atul attended that sradha ceremony, which goes to show that the relationship between the two families was strain. The further stand of the objector Atul, as it appears from his deposition, is that Maheswari Debi was not in a position and capable to execute the Will, which was fraudulent and she had no right over the property to bequeath the same to others. None of these witnesses have stated anything to the effect that the Will was not executed in presence of the attesting witnesses attesting witnesses did not put their signatures in her pressure and the same was not read over and explained to her. 22. Altogether three documents were exhibited by the propounder of the Will Durlav Bhattacharjee and by the objector Atul Barthakur in the said probate proceeding instituted by Durlav for probate of the Will executed by Maheswari Devi on 2.1.1988. Exbt. 1 was the Will executed by Maheswari, probate for which the present suit has been instituted, Ext. 'Ka' is the order dated 5.1.1974 passed by the learned District Judge, Nagaon in Title Suit No. 13/72 granting probate of the Will executed by Golok Chandra Barthakur, husband of Maheswari Debi in favour of Maheswari Debi, Exbt. Exbt. 1 was the Will executed by Maheswari, probate for which the present suit has been instituted, Ext. 'Ka' is the order dated 5.1.1974 passed by the learned District Judge, Nagaon in Title Suit No. 13/72 granting probate of the Will executed by Golok Chandra Barthakur, husband of Maheswari Debi in favour of Maheswari Debi, Exbt. -'Kha' is the certified copy of the Will dated 14.8.1938 executed by Maheswar Sharma Barthakur which was probated by filing Title Suit No. 12/1940. There is no dispute regarding the order being Exbt. 'Ka' and the Will executed by Maheswar Sharma Barthakur, being Exbt. 'Kha' By Exbt. 1, the present will in question-executed by Maheswari Devi on 2.1.1988, she bequeathed 20 bighas 3 kathas and 14½ lechas to the propounder Durlav Bhattacharjee and 26 bighas 3 kathas 1/3 lechas in favour of her two adopted sons, who are nephews i.e. Bhaben and Suren. It is evident from the contents of the said Will that Durlav, Suren and Bhaven have to take care of her during her hard days and she being issue less she adopted her nephews Suren and Bhaven, who are living with her. It also reveals from the document that she kept a female child Smt. Mira Debi, daughter of Late Priyanath Sharma Barthakur, with a view to adopt her as her daughter and provision has also been made to the effect that Suren and Bhaben shall give marriage to said Mira Devi and shall bear all costs of the said marriage out of the profit of the land bequeathed to them and they will maintain her till the marriage. It is therefore, evident that Durlav Bhattacharjee, who is the propounder of the said Will, is one of the beneficiaries apart from Bhaben and Suren as well as Mira Debi. 23. Section 63 of the Indian Succession Act provides how an unprivileged Will is to be executed. It is therefore, evident that Durlav Bhattacharjee, who is the propounder of the said Will, is one of the beneficiaries apart from Bhaben and Suren as well as Mira Debi. 23. Section 63 of the Indian Succession Act provides how an unprivileged Will is to be executed. It provides that to be a valid Will the testator/testatrix shall have to sign or affix his or her mark to the Will in presence of two or more witnesses, each of whom seen the testator/testatrix signing or affixing his or her mark to the Will in presence and by the direction of the testator or testatrix and each of the witnesses shall have to sign the Will in presence of testator/testatrix, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary. For better appreciation, Section 63 of the Indian Succession Act, is quoted below: 63. Execution of unprivileged wills.- Every testator not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witness shall sign the will in the presence of the testator, but it shall be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 24. Section 68 of the Indian Evidence Act provides how the execution of a document, required by law to be attested, is to be proved. 24. Section 68 of the Indian Evidence Act provides how the execution of a document, required by law to be attested, is to be proved. Section 68 provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Proviso to Section 68 provides that a document not being a Will, is not required to be proved by calling the attesting witness. Therefore, in order to prove the execution of a Will, atleast one of the attesting witnesses has to be called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. In the instant case, it has come out from the evidence of the propounder of the Will Durlav Bhattacharjee, that there were 4 attesting witnesses, namely, Kushal Deb Goswami. Arun Sharma, Jagat Bhattacharjee and Pradip Misra, out of which Kushal and Arun Sharma died and Jagat Bhattacharjee and Pradip Misra were examined as P.W. 3 and 4. The said version of Durlav, propounder of the Will, who was examined as P.W. 1, has not been challenged by the objector Atul while cross-examining him. 25. From the discussion, of the evidences on record, made above, it appears that the case of the propounder is that Maheswari Debi having sound disposing state of mind executed the Will of her free will and put her thumb impression to the said Will, written by P.W. 2 Mahesh Goswami as per her words, which was subsequently been read over to her, she put her thumb impression thereon, and in presence of attesting witnesses Jagat Bhattacharjee and Pradip Misra, who saw Maheswari Devi put her thumb impression in the said Will and they also have put their signatures in her presence. It is the further case of the propounder of the Will that though Maheswari Debi had the rheumatic pain and high blood pressure she was capable to move around and even collected the political pension by attending the office and put her thumb impression as she is an illiterate lady. It is the further case of the propounder of the Will that though Maheswari Debi had the rheumatic pain and high blood pressure she was capable to move around and even collected the political pension by attending the office and put her thumb impression as she is an illiterate lady. The objector's case as it appears from the deposition of the witnesses, that Maheswari Debi had no right, title and interest to bequeath the property, she was old aged suffering from ailment and was not in a position to execute the Will and the Will was false. However, D.Ws. 2 and 3 did not corroborate the statement of D.W. 1, the objector, regarding the health condition of Maheswari Debi and have not stated anything that she was suffering from such an illness so as to incapacitate her from executing a Will of her free will and was not in sound disposing state of mind. The objector by cross-examining the witness of the propounder of the Will as well as by adducing evidence, is sought to raise the suspicious circumstances relating to the health condition of the testatrix and also that the Will executed by Maheswari Devi being influenced by Durlav Bhattacharjee, propounder as he was the power of attorney holder. 26. Will being a document has to be proved by adducing preliminary evidence except where the Court permits proving of the document by secondary evidence. Section 63 of the Indian Succession Act, 1925 requires that the Will has to be executed by the testator or testatrix in presence of atleast two witnesses who have seen the execution of such Will and who are present, that the testator or testatrix put her signature or thumb impression in presence of each of them and they also put their signatures in presence of the testator or testatrix. To prove the execution of the Will, Section 68 of the Indian Evidence Act, 1872 requires that such will cannot be used as evidence until one of the attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to process of the Court and capable of giving evidence. In order to assess as to whether the Will has been validly executed and the document is genuine, the propounder is also required to prove that thumb impression or signature was put by the testator or testatrix to the said testament of his/her own free will and at the relevant point of time was in sound disposing state of mind and understood the nature and affect of the disposition. Apart from this, if there is any suspicious circumstances, the onus is on the propounder of the Will to remove the suspicion by leading appropriate evidence. Once these elements are established, the onus, which rests on the propounder is discharged. On the other hand, when there is any allegation that the Will was forged or was obtained by undue influence or by coercion or by playing fraud the burden lies on the person who makes such allegations. 27. In the instant case, from the discussion of the evidence of P.W. 1, 2, 3 and 4, it is evident that though testatrix Maheswari Debi was suffering from rheumatic pain and high blood pressure she was in a sound disposing state of mind at the time of execution of the Will and she put her thumb impression of her free will in presence of attesting witnesses, namely P.W. 3 and 4 apart from two others, and who also put their signatures to the Will as attesting witnesses in presence of the testatrix. It has also come out from the evidence of P.Ws. 2, 3 and 4 that P.W. 2, the writer of the Will, has written the same as per the words of the testatrix, read over the same to her and she put her thumb impression thereafter. P.W. 2, 3 and 4 have all stated about the testatrix putting her thumb impression in presence of the attesting witnesses and also the attesting witnesses put their signatures in her presence. P.W. 4 Purna Sharma during cross-examination has also stated that he was present at the time of writing of the Will and also the Will was read over to her. The objector could not bring out anything, during cross-examination, contrary to such positive statement made by the witnesses. P.W. 4 Purna Sharma during cross-examination has also stated that he was present at the time of writing of the Will and also the Will was read over to her. The objector could not bring out anything, during cross-examination, contrary to such positive statement made by the witnesses. The objector also has not led any evidence to prove that the testatrix has not put her thumb impression in presence of the attesting witnesses in the Will, Will was not written as per her words, Will was not read over to her and the attesting witnesses did not put their signatures in presence of the testatrix. Though objector's case is that she was not in a sound disposing state of mind, the propounder of the Will by adducing evidence could prove that though she was suffering from rheumatic pain and high blood pressure, she was in sound disposing state of mind and executed the Will other free will. D.W. 2 has specifically stated that Maheswari Debi carried a good health and though he met Maheswari Debi in the year 1985-86 he did not speak about her health condition as well as state of mind. From the discussion of the evidences on record, it is therefore evident that the testatrix was in sound disposing state of mind, executed the Will of her free will, understood the nature and affect of disposition as the same was read over to her, which was written as per her words and she put her thumb impression in the said Will in presence of each of the attesting witnesses and the attesting witnesses also put their signatures in her presence. Therefore, the onus, which rests on the propounder, to prove due execution of the Will has been discharged. 28. The Apex Court in Ishwardeo Narain Singh (Supra) has held that the Court of probate is only concerned with the question as to whether the document put forward as the last Will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate Court. The question whether a particular bequest is good or bad is not within the purview of the probate Court. It has further been held that there is nothing in law which requires the registration of a Will and to draw any inference against the genuineness of the Will on the ground of its non registration was wholly unwarranted. 29. Similar view has also been taken in Rani Purnima Devi (supra). In Rani Purnima Devi, the Apex Court has further held that it is the burden of the Propounder to dispel the suspicious circumstances, if there is any such circumstances exists, which surrounded the execution of the Will. It has further been held that if a Will is registered, that is a circumstances which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists. If the evidence as to registration shows that it was in a perfunctory manner that the Officer registering the Will did not read it over to the testator or did not bring home to him that he had not executed the Will and did not satisfy himself in some other way that the testator knew that it was a Will, the execution of which that he was admitting, the fact that the Will was registered would not be of much value. Due and proper execution of the Will has to be proved by the propounder. 30. In Gnambal Ammal (Supra) the Apex Court has held that while constructing a Will an endeavour to ascertain the intention of the testator and the suspicious circumstances must be considered while coming to the finding whether there was due and proper execution of the Will by the testator or testatrix. 31. The Apex Court also in Surendra Pal (Supra) has held that the propounder has to show that the Will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he out his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established the onus rests on the propounder is discharged. But where there are suspicious circumstances surrounding the execution of the Will, such as where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds of interested in getting his property, or where in the light of the relevant circumstances the disposition appears to be unnatural, improbable and unfair or where there are other reasons for doubting that the disposition of the Will are not the result of the testator's free will and mind, such suspicious circumstances must be removed by the propounder of the Will by clear and satisfactory evidence. 32. The Apex Court in John Vallamattom (Supra) has also reiterated the legal position of proof of a Will by the propounder. In the said case it has further been held that all persons who have sufficient discretion and free will are capable of disposing of their property by a Will. 33. The said legal requirements were also reiterated by Apex Court in Daulat Ram (Supra), Meenakshiammal (Supra) and Sreedevi (Supra). In Sreedevi case the Apex Court has held that though onus to explain the suspicious circumstances on the propounder but onus to establish the allegation of undue influence, fraud or coercion is on the persons who make such allegations. Proving either case should be one of the satisfaction of the prudent man and when the Will is found to be duly executed as required under the law and propounder dispel the suspicious circumstances, if any, and when the person alleging undue influence, fraud or coercion failed to discharge his burden, the probate of the Will has to be granted by the Court. The single Bench of this Court in Bimalendu Das (Supra) relying on the various pronouncement of the Apex Court has also reiterated the aforesaid legal proposition. 34. In Chiranjilal Shrilal Goenka, the Apex Court has held that the probate Court is not to decide the question of title or existence of property involved in the Will but it has to seen whether the Will was duly executed and attested as required under the law. 34. In Chiranjilal Shrilal Goenka, the Apex Court has held that the probate Court is not to decide the question of title or existence of property involved in the Will but it has to seen whether the Will was duly executed and attested as required under the law. It has further been held that in case of probate of will the Civil Court has no jurisdiction and the jurisdiction lies only on the probate Court judgment by probate Court is in rem and binds not only the parties but also the whole world. The Apex Court has further held that the decree passed by the Court without jurisdiction is a nullity and non est. In Ghulam Qadir (Supra), it has been held by the Apex Court that there can be no dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of executor and the valid execution of the Will. It does not decide more than the factum of Will as the probate Court does not decide the title or the existence of property mentioned therein. A Division Bench of this Court in the case of Keshab Prasad Shah, relying on the judgment of the Apex Court in Ishwardeo Narain Singh, as well as Chiranjilar Shrilal Goenka case has also reiterated the said position of law. 35. The Apex Court in Uma Devi Nambiar has held that the intention of the testator has to be found out on a reading of the Will and there cannot be any hard-and-fast rule of uniform application to find out as to whether the grant was absolute or it was subject to any condition or stipulation. It has further been held that the Will is executed to alter the ordinary mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of the natural heirs. If a persons intends his property to pass to his natural heirs there is no necessity at all of executing a Will, but at the same time the propounder is bound to remove all suspicious circumstances i.e. the doubt conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything cannot be held to be a suspicious circumstances. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything cannot be held to be a suspicious circumstances. The Apex Court in Rabindranath Mukherjee (Supra) also took the same view. 36. In P.S. Sairam (Supra) the Apex Court has held that the contents of the Will has to be read over to the testatrix and if it is read over to her and thereafter she put her signature or thumb impression on the same in the presence of the attesting witnesses who also put their signatures to the Will as attesting witnesses, the onus lies on the propounder is discharged. The Apex Court on the basis of the facts of the said case has held that bequeathing the property in favour of the second wife and his son from her can not be said to be unnatural and Will was held to be duly executed by the testator. 37. In Muninanjappa (Supra) the Apex Court while dealing with the provision of Hindu Succession Act has held that the Hindu male has a limited right to joint property but he has the right to seek partition and to transfer to the extent of his right. A widow of a person holding a limited a estate under a will, was held to be not entitled to absolute right over such estate by virtue of Section 14(1) of the Hindu Succession Act, 1956 and she would not be treated as Class-I heir and would acquire no right of allegation over it. It has further been held that principle that when constructing a Will, the intention of the testator should be carried out can not be disputed and where language of the words of a Will are clear, and there is no ambiguity and it could be understood clearly without any doubt then it would not be proper to either supplement the words or read it down to give benefit to either of the contesting parties. In the instant case there is no ambiguity in the Will and the words of the Will are clear. 38. In the instant case there is no ambiguity in the Will and the words of the Will are clear. 38. In Bhagat Ram (Supra) the Apex Court dealing with the provision of Hindu Succession Act, 1956, more particularly, the provision contained in Section 15(2)(a)(1)(b) and 14, has held that succession to property inherited by female Hindu from her parents or husband or father-in-law, in absence of children or children of any predeceased child would devolve upon the heirs other father and even if the female Hindu who has limited ownership becomes full owner by virtue of Section 14(1) of the Act, the rules of succession given under Section 15(2) of the Act, does not in any way alter. 39. The Apex Court has already held in various decisions, as discussed above, that the function of the probate Court is not to decide the question of title of the testator or testatrix but is to see whether the Will was legally and validly executed as required under the law. Therefore, the aforesaid two decisions cited by Mr. Sharma, learned Counsel for the Respondent, is not applicable in the instant case. 40. The Apex Court Varanassaya Sanskrit Viswavidyalaya (Supra) while dealing with the provision contained in Order 6 Rule 4 of the Code of Civil Procedure has held that the allegation of collusion or fraud has to be specifically pleaded and proved and the statement of general nature will not suffice. 41. In S.R Chengal Varaya Naidu it has been held by the Apex Court that the Principle of finality of litigation is not applicable when the judgment is obtained by a party by playing fraud on the Court. The frauds vitiate everything. In Gowrishankar (Supra) the Apex Court has held that judgment obtained by playing fraud on the Court is nullity and non est in the eye of law and it can be challenged even in collateral proceeding. The Full Bench of this Court in Tazmul Ali case has held that execution of a decree alleged to have been obtained by fraud is an 'injury' within the meaning of Order 39 Rule2 and in an appropriate case injunction may be issued by the Court. 42. The Apex Court in Mst. The Full Bench of this Court in Tazmul Ali case has held that execution of a decree alleged to have been obtained by fraud is an 'injury' within the meaning of Order 39 Rule2 and in an appropriate case injunction may be issued by the Court. 42. The Apex Court in Mst. Kharbuja Kuer (Supra) while dealing with the provision of Section 101-103 of the Evidence Act, has held that in case of execution of document by a pardanashing lady, the burden to establish that she executed it after understanding, is on the person who relies on it. A Division Bench of this Court in Mustt. Jubeda Khatun, relying on the said decision of the Apex Court, has also held that burden is upon the person who seeks to sustain a document executed by a pardanasin lady that she executed it with a true understanding mind. The proof of fact that it has been explained to her is not the only mode of discharging the burden. The fact whether she voluntarily executed the document or not can be ascertained from other evidences direct and circumstantial and once it is established that the execution was not merely her physical act but also her mental act, burden is discharged. It has further been held that the burden may also been discharged by proving that the document was explained to her and to that she understood the nature and contents of the document and/or by other evidence. A Single Bench of this Court in Ms. Jarinakhatun's case has also reiterated the said proposition. 43. In Guljan Bibi (Supra) a Single Bench of this Court has held when fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden lies on him to prove such fraud, undue influence or mis-representation. But, when a person such as illiterate woman is in a fiduciary relationship with another and the latter is in a position of active confidence, the burden of proving the absence of fraud, mis-representation or undue influence is upon the person in the dominating position and he has to prove that there was fair play in the transaction and that the apparent is the real i.e. in other words, that the transaction is genuine and bona fide. 44. Learned Counsel for the Respondent also relied on a decision of the Bombay High Court in Gujarat Ginning and Manufacturing Co. 44. Learned Counsel for the Respondent also relied on a decision of the Bombay High Court in Gujarat Ginning and Manufacturing Co. Ltd, which relates to a decision under the Easements Act. Learned Counsel also relied on a Division Bench decision of the Calcutta High Court in Tincowri Pramanik v. Narayan Chandra Mukherjee which relates to the restriction of power of will by the Executor of a Will in the absence of clear and specific provision and which restrictions may be expressed or implied. The said decisions are not applicable in the facts and circumstances of the instant case. 45. In T. Arivandandam (Supra) the Apex Court while dealing with the provision of Section 35-A, Order 7 Rule 11 and Order 10 of the Code of Civil Procedure, 1908, has held that the party persistently resorting to frivolous litigations and vexatious litigations to evade the proper process of Court is to be dealt with by the Court under its contempt power. The said decision is also not applicable in the facts and circumstances of this Case. 46. The decision of the Apex Court in P.K. Ghosh I.A.S. (Supra) which has been relied upon by the learned Counsel for the Respondent relates to a proceeding wherein an objection was raised regarding taking up of a matter by a particular Judge, but inspite of such objection the matter was taken up. The Apex Court on that background has held that if there be any basis which cannot be treated as unreasonable for a litigant to expect that the matter should not be heard by a particular Judge, and there is no compelling necessity, such as the absence of an alternative, it is appropriate that the learned Judge should rescue himself from the bench hearing the matter as a basic postulate of the rule of law is that 'justice should not only be done but it must also be seen to be done' There is absolutely no allegation by either of the parties objecting to taking up the matter by the learned District Judge who dispose of the probate proceeding. Therefore, the said decision is also not applicable in the facts and circumstances of this case. 47. Another decision cited by Mr. Therefore, the said decision is also not applicable in the facts and circumstances of this case. 47. Another decision cited by Mr. Sharma, learned Counsel for the Respondent in Director General E.S.I. v. Abdul Razak (Supra) relates to the proceeding under the provision of Employees' State Insurance Corporation Act, (34 of 1948), which has absolutely no relevance in the facts and circumstances of this case. Learned Counsel for the Respondent also relied upon the decision of the Apex Court in Kailash Chand (Supra) while dealing with the provisions of H.P. Urban Rent Control Act, 1987, has held that a statute can never be exhaustive, as the legislature is incapable of contemplating all possible situation which may arise in future litigations and in myriad circumstances. Therefore, scope is always there for the Court to interpret the law with pragmatism and consistently with the demand of varying situation. In the instant case what is required to be decided as to whether the propounder of the Will could prove due execution of Will by the testatrix, which does not require interpretation of any provision of any statute. 48. In Rakesh Wadhawan (Supra), on which the learned Counsel for the Respondent has placed reliance, the Apex Court has dealt with the provision of E.R Urban Rent Restriction Act, 1949 as well as Section 114 of Transfer of Property Act and Section 17 and 115 of the Evidence Act. In Raft que Bibi (Supra) on which the learned Counsel for the Respondent also placed reliance, the Apex Court has dealt with the procedure for challenging a decree for voidness or illegality. The decisions are not applicable in the facts and circumstances of this case. 49. In the instant case, testatrix was admittedly a pardanasin illiterate lady and she put her thumb impression in the Will. The law requires that in case of the document executed by a pardanasin lady, the burden is on the person who seeks to sustain execution of a deed, to prove that the contents of the deed was explained to her and she understood the nature of the document executed and its contents. The law requires that in case of the document executed by a pardanasin lady, the burden is on the person who seeks to sustain execution of a deed, to prove that the contents of the deed was explained to her and she understood the nature of the document executed and its contents. In the instant case, it is evident from the discussion of the witnesses, examined by the propounder of the Will that the Will was written in presence of the testatrix as per her words, which was read over to her and thereafter she put her thumb impression in presence of each of the attesting witnesses, who also put their signatures in her presence. The objector, the Respondent herein, has not been able to bring out anything during cross-examination or while examining his witnesses that the Will was not written as per her words, it was not read over and explained to her and she did not understood the contents of the Will. Therefore, the burden lies on the propounder of the Will has been successfully discharged by him. 50. The law requires the propounder of the Will to remove the suspicion by adducing evidence, if there is any suspicious circumstances. In the instant case, according to the objector, the suspicious circumstances, is, the testatrix was not in a good health and was not capable of executing the Will of her free will. The said point has already been dealt with above negating the contention of the objector. The other suspicious circumstances which was raised by the objector is that Durlav Bhattacharjee was present at the time of execution of the Will and he being the power of attorney holder influenced the testatrix in executing the Will. 51. It has come out from the evidence that Durlav was present when the Will was executed. It is also evident from the deposition of the witness, as discussed above, that Durlav was the power of attorney holder and looking after the testatrix's property since 1971 as there was none to look after her. It has also come out from the evidence that the objector's family and Testatrix was not in good terms and in fact, number of litigations were pending between them. As because Durlav was present that alone cannot be constituted as the suspicious circumstance for refusing to grant of the probate of the Will. It has also come out from the evidence that the objector's family and Testatrix was not in good terms and in fact, number of litigations were pending between them. As because Durlav was present that alone cannot be constituted as the suspicious circumstance for refusing to grant of the probate of the Will. Durlav being the power of attorney holder is naturally be present while the Will was executed by the testatrix. None of the witness examined by the propounder have stated anything about exerting any influence by Durlav on the testatrix nor the objector could bring out anything during cross examination of those witnesses to that effect. The objector has also not been able to adduce any evidence to the effect that Durlav exerted any influence on the testatrix to execute the said Will. Therefore presence of Durlav cannot be the suspicious circumstances so as to refuse granting of probate. Another suspicious circumstance which is sought to be raised, is regarding the date 2.12.1988 appears in one place of the Will. The sad date is naturally be the slip of pen as the document was presented for registration and registration was done on 2.1.1988, which shows that the said will was in fact executed on 2.1.1988. Therefore, the said contention of the objector also cannot be accepted and hence rejected. Another submission of the learned Counsel for the objector/Respondent is that the Will was not properly registered as required under the law i.e. as required under the Registration Manual of Assam. The Will, under the law, is not compulsorily registerable document and, therefore, non registration or defective registration of Will, will not make the Will executed by the testator or testatrix invalid. 52. The main thrust of objection of the objector is that Maheswari Debi had no right, title and interest to bequeath the property as by the Will executed by Maheswari Sharma Barthakur in the year 193 8 the property was given to the objector Atul Barthakur, but the said property was thereafter bequeathed by Golok Barthakur to his wife Maheswari Debi, which was probated in the year 1972 by depriving Atul Barthakur, the objector, from the benefit of the Will executed by Maheswar Sharma Barthakur. It is a settled position of law that the probate Court cannot go into the question of title of the Testator or Testatrix over their property bequeathed by a Will nor it has the jurisdiction to decide about the existence of the property of the Will. The objector never challenged the Will executed by Golok Barthakur in favour of Maheswari Debi which was probated in the year 1972 by Exbt. 'Ka' Order dated 5.2.1974 and though the father of the objector objected to granting of probate, the said order of the learned District Judge was never challenged by the objector's father or by the objector in an appeal or no suit for declaration of right, title and interest has ever been filed by the objector claiming the title by virtue of the Will executed by Maheswar Sharma Barthakur in the year 1938, which was probated in the year 1940. Therefore, the contention of the objector on this point also cannot be accepted and hence rejected. 53. Further contention of the learned Counsel for the objector is that the fraud was committed in executing the Will and there was undue influence. Order 6 Rule 4 of the Code of Civil Procedure provides that in all cases in which party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, particulars, with date and time if necessary, shall be stated in the pleading. It appears from the pleadings i.e. the objection filed by the objector that there is no allegation of fraud against Maheswari Debi, but against Golok Chandra Barthakur, husband of Maheswari Debi to the effect that Golok Chandra Barthakur after obtaining the probate of the Will executed by Maheswar Sharma Barthakur in the year 1938 did not give the property to the beneficiaries to the said Will i.e. Atul Barthakur and instead bequeathed the said property by a Will in favour of his wife Maheswari. As discussed above, the Will executed by Shri Golok Chandra Barthakur has already been probated vide order dated 5.2.1974 despite objection given by the father of the present objector, but no further steps have been taken to get that order set aside as required under the law. No suit was also filed by the objector claiming title over the said land. 54. To establish the fraud or undue influence, specific allegations must be given. No suit was also filed by the objector claiming title over the said land. 54. To establish the fraud or undue influence, specific allegations must be given. Statement, general in nature, will not sufficient to constitute such undue influence or fraud. In the instant case, there is no allegation of fraud or undue influence against Maheswari, apart from what has already been discussed above. Therefore, objector has failed to discharge his burden of proof to establish that Will was executed by committing fraud or Will was fraudulent. 55. In view of the above, I am of the view that the propounder of the Will has discharged his burden of proving due execution of the Will by Maheswari Debi and also there is no suspicious circumstances existed and hence he is entitled to get the probate of the Will executed by Maheswari. Accordingly the probate of the Will executed by Maheswari Debi is granted. The judgment and order dated 20.12.1995 passed by the learned Additional District Judge, Nagaon, in T.A. (P) 26 of 1992, dismissing the application for probate, is set aside. 56. Keeping in view the entire facts and circumstances of the case, the parties are directed to bear their own costs.

Durlabh Chandra Bhattacharjee v. Atul Barthakur