JUDGMENT Hon’ble Sunil Ambwani, J.—Smt. Lalti Devi wife of Rajendra Pratap Singh, the plaintiff filed an application for grant of Letters of Administration of the estate and credits of her father in law, late Ambika Prasad Singh (the deceased) with will dated 11.9.2000 attached, alleged to be duly executed by him by affixing his thumb impression, attested by Aditya Narain Misra and Heera Lal, in respect of his agricultural land, Arazi No. 514 area 1.49 acres at village Haiderpur, Pargana Mungra, Tehsil Machli Sahar, District Jaunpur. 2. The citation was published in daily newspaper ‘Amrit Prabhat’ on 30.11.2001. Since no one filed objections, this Court treated the testamentary case No. 14 of 2001 as non-contentious and directed Letters of Administration to be issued to the applicant. 3. Shri Surendra Pratap Singh and Shri Mahendra Pratap Singh both sons of the deceased filed recall/restoration application on 20.2.2002. The application was allowed on 14.8.2002 and the order granting Letters of Administration was recalled subject to payment of Rs. 2000/- as costs, which was paid and the testamentary case was converted into suit. The written statement was filed, and on 18.4.2003 the following issues were framed : “(1) Whether the deceased Ambika Prasad Singh executed the Will dated 11.9.2000 in a sound and disposing mind and without any fear? (2) Whether the Will dated 11.9.2000 is a forged and fabricated documents? (3) Whether late Ambika Prasad Singh was unable to sign and he has affixed his thumb impression in presence of marginal witnesses ? (4) Whether the applicant is entitled to Letters of Administration on the basis of will dated 11.9.2000? (5) To what relief, if any, is the petitioner entitled." 4. The defendants have contested the suit on the allegation that the deceased died on 5.11.2000 leaving behind Shri Rajendra Pratap Singh, Shri Surendra Pratap Singh and Shri Mahendra Pratap Singh as his sons, and Smt. Vindu Devi and Smt. Geeta Devi as daughters and legal heirs. The deceased was a private doctor. He was an educated person and always put the signatures on the documents. He never affixed thumb impression on any document. The pradhan has certified that the deceased was literate and was a well-known personality in the area. The deceased had executed a registered sale deed dated 10.7.1980, which bears his signature as well as thumb impression. He was an educated person and always put the signatures on the documents. He never affixed thumb impression on any document. The pradhan has certified that the deceased was literate and was a well-known personality in the area. The deceased had executed a registered sale deed dated 10.7.1980, which bears his signature as well as thumb impression. The sale deed is annexed as Annexure 4, to the affidavit of Shri Mahendra Pratap Singh. Another sale deed made by four persons including the deceased as on 14.3.1988 also bears his signatures. The execution of the will dated 11.9.2000 is denied and it is stated in paragraph (vii) that the will dated 11.9.2000 does not bear the thumb impression of Late Ambika Prasad Singh. It is forged, fabricated and self-prepared document, which is void. The plaintiff instituted a suit/case No. 546 for mutation under Section 34 of the Land Revenue Act in the Court of Tehsildar on 10.1.2000, which is still pending. 5. In the rejoinder affidavit Smt. Lalti Devi has stated that the deceased was 85 years old and was physically unable to put his signatures on account of ‘Hemiplegia’ (paralysis of one lateral half of the body or part of it resulting from injury to the motor centers of the brain) of right side and hence he affixed his thumb impression on the will in the presence of the attesting witnesses. His thumb impression has also been attested by Shri R.K. Vidyarthi, Advocate who is also scribe of the will. The medical certificate dated 7.9.2000 by Medical Superintendent, Community Health Center, Sujanganj, Jaunpur is annexed to the rejoinder affidavit as Annexure RA-1. After separation between the brothers the deceased was residing with the plaintiff for last 30 years. She was taking care of the deceased, who was unable to move for about 10 years. The will dated 11.9.2000 is a genuine document and bears the thumb impression of the deceased. 6. The plaintiff examined herself as PW-1 and Shri Aditya Narain Misra, the attesting witness as PW-2 and Shri Heera Lal Yadav, the other attesting witness as PW-3 and Shri Ram Kishore Vidyarthi, Advocate, the scribe as PW-4. The defendant Shri Surendra Pratap Singh and Shri Mahendra Pratap Singh were examined as DW-1 and DW-2. 6. The plaintiff examined herself as PW-1 and Shri Aditya Narain Misra, the attesting witness as PW-2 and Shri Heera Lal Yadav, the other attesting witness as PW-3 and Shri Ram Kishore Vidyarthi, Advocate, the scribe as PW-4. The defendant Shri Surendra Pratap Singh and Shri Mahendra Pratap Singh were examined as DW-1 and DW-2. Shri Chotte Lal Rajak, a person of the same village was examined as DW-3 and Shri Mohan Lal, a person living in the same village as DW-4. Issue Nos. 1, 2 and 3 7. All these three issues relate to due execution of the will dated 11.9.2000 by the deceased in his sound and disposing mind. Issue No. 3 with regard to inability of the deceased to sign and to put thumb impression in the presence of marginal witnesses is also connected with due execution of the will. All these three interconnected issues are as such decided together. 8. The plaintiff (PW-1) stated that the deceased had executed the will dated 11.9.2000 in her favour at Bara Gaon. He died on 5.11.2000. The will was written by Shri Ram Kishore, Advocate and the deceased has signed on it, on his free will. At that time Shri Heera Lal Yadav, Shri Aditya Narain Misra and Shri Rajendra Pratap Singh were present as witnesses. Shri Heera Lal Yadav and Shri Aditya Narain Misra were resident of Bara Gaon. Shri Rajendra Pratap Singh was resident of Village Meerganj, District Jaunpur. After the will was written Shri Ram Kishore had signed the will and got a photocopy prepared. The deceased was literate but she does not know upto which class he had studied. His right hand used to tremble on account of paralysis, due to which the deceased could not sign and used to affix his thumb impression. He was living with her for last 30 years. He was living separately from other two sons. He was mentally fit and had written the will in his free and disposing mind. Prior to execution of the will the deceased was ill on account of paralysis and was shown at Sujanganj Hospital. He was not shown in any other hospital. Her husband has taken him to the hospital. 9. In the cross-examination the plaintiff stated that the deceased had three sons. Her husband Shri Rajendra Pratap Singh was the eldest member of the house. He was not shown in any other hospital. Her husband has taken him to the hospital. 9. In the cross-examination the plaintiff stated that the deceased had three sons. Her husband Shri Rajendra Pratap Singh was the eldest member of the house. The will was written on 11.9.2000 at 4.00 p.m. It was written at the residence. The witness had signed the will. She stated that her father-in-law was at home on that day. He was taken to Sujanganj Hospital. He was not admitted to Mungrabadshahpur Hospital. He was referred to Allahabad and was taken there for treatment. She does not remember the date on which he was referred to Allahabad. He was not carrying out any business and was living at home. He had not executed any sale deed. He was affected by paralysis for last two months and could not sign. The brothers separated 30 years ago. Shri Manoj Kumar Singh is her son. He is employed. Shri Rajendra Pratap Singh is father-in-law of her son and lives at Meerganj. The deceased was not unconscious at the time of writing of the will. He was sitting when he affixed his thumb impression. 10. The attesting witness Shri Aditya Narain Misra, PW-2 proved the will. He saw the original will and stated that it bears the thumb impression of the deceased, after which he had signed in the will. At that time two other persons namely Shri Heera Lal Yadav and Shri Rajendra Pratap Singh were present. The will was written by some Advocate after which the deceased had put his thumb impression as he could not write with his right hand. In the cross-examination the witness stated that he is 72 years old. The will was written on a full scape paper and not on a stamp paper, at the residence, in the evening. The witness stated that the deceased had two sons namely Shri Ashok Singh and Shri Manoj Singh. He had not given his house on rent to the deceased. He does not know whether the deceased was admitted at Allahabad or Sujanganj. He does not know about his admission in any hospital. The witness stated that he retired from RPF Department on 30.6.1991. The deceased was doctor by profession and used to give Deshi Dava. He then stated that the deceased was not doctor. He does not know whether the deceased was admitted at Allahabad or Sujanganj. He does not know about his admission in any hospital. The witness stated that he retired from RPF Department on 30.6.1991. The deceased was doctor by profession and used to give Deshi Dava. He then stated that the deceased was not doctor. He was educated person and had put his thumb impression on the will. He was not unconscious at that time. At that time the deceased was with the plaintiff Lalti Devi, who was his daughter-in-law. The witness pleaded ignorance of the plot number and the area of the land bequeathed under the will. 11. Shri Heera Lal Yadav, PW-3 stated in his examination-in-chief that he put his signatures after the deceased had signed on the will. He saw the original will and proved the same and stated that he signed on the first and second page. In the cross-examination he stated that the deceased died at his residence in the evening. He however, cannot give the time of his death as he had gone to market at that time. He does not know about the education of the deceased. The deceased was conscious when the will was written. He was affected by paralysis of his right side and had put his thumb impression. The deceased was admitted to Sujanganj Hospital. The witness pleaded ignorance of the fact whether the deceased was referred to Allahabad Medical College. On a question as to why the deceased did not execute the will in favour of his son, the witness stated that the plaintiff was serving the deceased due to which the will was executed in her favour. There was no enmity between the deceased and his two other sons and it is wrong to say that the will is forged document. 12. Shri Ram Kishore Vidyarthi, PW-4, the scribe stated that he is practicing in Tehsil Handia and District Court as lawyer since 1970. He knew the deceased, who was resident of Village Bara Gaon, Post Nibhapur, District Jaunpur. The deceased used to prescribe Desi Jaributi. The will was written by him at the residence of the deceased on his instructions. At that time Shri Aditya Narain Misra and Shri Heera Lal Yadav and Shri Rajendra Singh were present. The deceased had put his thumb impression on the will after which he had identified the photograph. The deceased used to prescribe Desi Jaributi. The will was written by him at the residence of the deceased on his instructions. At that time Shri Aditya Narain Misra and Shri Heera Lal Yadav and Shri Rajendra Singh were present. The deceased had put his thumb impression on the will after which he had identified the photograph. The witness was shown the original will and he proved the same. He identified the thumb impression of the deceased and his signatures. In the cross-examination he stated that the will was written in plain paper. The deceased was 85-86 years old. The photograph was affixed in his presence. There was no conspiracy or usurping the property of two brothers. The witness stated that the deceased had told him that Lalti Devi is the only person, who is serving him and that other daughter-in-laws did not take care of him and he is executing the will in her favour. The will was only in respect of the property at Haiderpur. It is written in the will that the property of Bara Gaon shall be equally shared by the sons. The witness admitted that it was possible to write the will in the presence of other two sons and their wives. He has stated that the deceased was literate person but was unable to write as right portion of the body was affected by paralysis. He does not remember whether the deceased had put the right or left thumb impression on the will. He was aware of the fact that left thumb impression has to be put but does not remember that Ambika Prasad had put his left or right thumb impression on the will. 13. The defendant No. 1 Shri Surendra Pratap Singh (DW-1) stated that the deceased was his father. He died on 5.11.2000. He had three sons. His father did not execute any will. His father was taken to Swaroop Rani Nehru Hospital on 11.9.2000 and was discharged after about 2-3 days. The witness was shown the original will and stated that it was a forged document and did not bear his father’s thumb impression. His father was a doctor. He was MBBI. His father had executed a sale deed in respect of his land. The witness stated that he does not know Lalti Devi. They are three brothers. After the death of his father they are living separately. His father was a doctor. He was MBBI. His father had executed a sale deed in respect of his land. The witness stated that he does not know Lalti Devi. They are three brothers. After the death of his father they are living separately. The bequeathed land is in their possession. In the cross-examination the witness stated that he is retired as clerk one year ago from Shri Girja Shankar Tiwari Inter College, Nebhapur, Jaunpur. He is educated upto Class 12th. When he was asked about the name of his mother, he tried to remember and then stated that she had a name similar to Ramraji. She died in 1965-66 when he was 25 years old. His date of birth according to school register is 1.7.1944. They are three brothers. His older brother is Rajendra Pratap Singh and younger one is Mahendra Pratap Singh. Both the brothers are married and that he himself also is married. He does not remember the name of wife of his brother Mahendra Pratap Singh. The witness stated that his wife’s name is Sudha Devi. His father was suffering from paralysis in right side and was admitted to Swaroop Rani Hospital, Allahabad. In the morning at about 6.30-7.00 a.m. he was referred after consultation with 2-4 doctors of the village. His father was first taken to Primary Health Center from where he was referred to Swaroop Rani Hospital. They had consulted the doctor at 4.00 a.m. in the morning privately at his bungalow and were advised to take him immediately to Swaroop Rani Hospital. He had not given any referring letter. The doctor’s name was written on the sign board as K.K. Pandey. At that time all the three brothers were present. His father was discharged from Swaroop Rani Hospital at about 4.30 p.m. on 13.9.2000. He does not have the discharge certificate, which could be with his brother. All the three brothers were present when the father was discharged and after the thirteen day ceremony they separated. His brother Mahendra Pratap Singh built a house at Jaghai Badshahpur road separately from other brothers during the life time of his father. Mahendra Pratap Singh was in service and he had money to purchase the land and construct the house. His father had executed sale deed in favour of Ram Sumer Yadav. He does not remember the dates. His brother Mahendra Pratap Singh built a house at Jaghai Badshahpur road separately from other brothers during the life time of his father. Mahendra Pratap Singh was in service and he had money to purchase the land and construct the house. His father had executed sale deed in favour of Ram Sumer Yadav. He does not remember the dates. He also does not remember whether his father has executed any other sale deed. His father was cremated at Banaras at about 11.00 p.m. 14. The other brother Mahendra Pratap Singh (DW-2) stated that he is son of the deceased. He is a teacher. His father died on 5.11.2000. His father was Vice-President of Shri Girja Shankar Tiwari Inter College. He was educated upto High School and had three sons. The witness was teacher in the college where his father was Vice-President and that upto the death of his father they were living separately in the same house. His father was suffering from paralysis of the right portion but he could read and write as his right hand was working. His father had sold a portion of the property at Haiderpur as also at Bara Gaon. Both the sale deeds were registered in the office of Sub-Registrar, Tehsil Machali Sahar. He was not present at the time of execution of the sale deed. He knows Lalti Devi, who is wife of elder brother Rajendra Pratap Singh. His father did not execute any will. He saw the original will and denied the thumb impression of his father and stated that on 11.9.2000 his father was seriously ill and was taken to hospital at 4.00 a.m. at Primary Health Center, Mugra Badshahpur. His condition did not improve and on which Dr. B.K. Pandey of Primary Health Center, Mugra Badshahpur referred him to Swaroop Rani Hospital where he was admitted at about 6.00 a.m. After 2-3 days when father’s condition did not improve the witness came back. He was admitted upto 14.9.2000 after which he was taken back and died after about 1 and 1/2 month on 5.11.2000. His father was looked after and served by all the three brothers and their wives. All the three brothers performed his religious rites. After the death of the deceased all the brothers are living separately. Shri Rajendra Pratap Singh is Samdhi of Lalti Devi. His father was looked after and served by all the three brothers and their wives. All the three brothers performed his religious rites. After the death of the deceased all the brothers are living separately. Shri Rajendra Pratap Singh is Samdhi of Lalti Devi. His father suffered from paralysis of right leg and could read, write and sign even after he suffered with the stroke of paralysis. The will is forged. Lalti Devi has studied upto Class 5th. 15. In the cross-examination on 16.1.2006 the witness stated that he is teacher in Shri Girja Shankar Tiwari Inter College, Nebhapur since 18.9.1982. He has taken his father to Allahabad Hospital from 11.9.2000 to 14.9.2000. His father was suffering from paralysis and was unconscious. He was first referred to Primary Health Center, Mugra Badshahpur and then referred to Swarup Rani Hospital. He was shown at Mugra Badshahpur at about 4-5 a.m. and was referred on an official paper by the doctor to Allahabad. He had deposited the registration fees for Parcha but cannot say whether registration was entered in the register. He was first taken to emergency where he was admitted for two days. When he did not recover, he was taken home on 3rd day. The witness could not state the ward number and bed number and stated that since they did not have money, they did not take discharge certificate and brought him back on their will. At the time of execution of the sale deed by his father he was very young and was not present with him. He stated that he had taken their father to Mugra Badshahpur by jeep taken on rent but he does not know the name of the owner of the jeep. They did not get any receipt. When his father was admitted to Swaroop Rani Hospital, the elder brother was looking after everything. After the death of their father all the brothers separated. 16. Shri Chote Lal (DW-3) stated that he knew the deceased for last 20 years and was resident of village Haiderpur at a distance of 1 and 1/2 km. from the residence of the deceased. He does not remember the names of the daughters of the deceased. He did not remember whether he has written the name of the daughters in the affidavit. from the residence of the deceased. He does not remember the names of the daughters of the deceased. He did not remember whether he has written the name of the daughters in the affidavit. He stated that the deceased was taken to Allahabad and was admitted there but he had not come to Allahabad to visit him. When he had gone to Bara Gaon, they were taking the deceased to hospital and in the second meeting he was taken back. When he was taken to Allahabad, he was not present nor remembered the date when the deceased was brought back from Allahabad. He has witnessed the sale deed executed by the deceased in favour of Brij Bhushan Tiwari. The deceased was MBBI and was an old doctor. He had not seen the degree. He used to give medicine at house and sometimes visit patients. The deceased was literate and used to sign and affix thumb impression only at the time of registration of documents. He does not know Lalti Devi and was not present when the deceased had died. We had, however, gone to Bara Gaon when he was taken to Kashi for cremation. 17. The last witness Shri Mohan Lal (DW-4) stated that he lives at a distance of 300-400 mtrs. from the house of the deceased, who had three sons and two daughters. The daughters’ name are Geeta and Bindu and both are married. He does not know as to where they are married. Rajendra Pratap and Surendra Pratap lives in the same house, whereas Mahendra Pratap lives separately for 4-5 years ago. The deceased was admitted to Swarup Rani Hospital in September and he had seen him when he was taken in a jeep at about 9-10 a.m. All his three sons and some other persons of the village were present. He was discharged from the hospital after about 2-3 days. The witness stated that he had failed in High School and cannot read English. He does not know about the degree of the deceased. He had seen Ambika Prasad Singh signing and certifying school papers and prescribing medicines. He was suffering from paralysis but he does not know as to which portion of his body was affected. He was not enimical to Lalti Devi. He does not know about the degree of the deceased. He had seen Ambika Prasad Singh signing and certifying school papers and prescribing medicines. He was suffering from paralysis but he does not know as to which portion of his body was affected. He was not enimical to Lalti Devi. He could not give the names of the wives of Mahendra Pratap and Surendra Pratap as he does not know the name of the women of the village. The witness have not proved the documents filed along with their affidavit and that these documents have not been exhibited. 18. The law relating to proof of due execution of the will by the propounder, where the will is attacked on the ground that the testator did not possess free and disposing mind, is fairly well settled. In H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 , the Supreme Court laid down the principles of onus of proof of the will as follows : “The party propounding a will or otherwise asking a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. However, there is one important feature which distinguishes will from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing statement of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law. Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. Courts would be justified in making a finding in favour of the propounder. In other words the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder’s case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator’s mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the will may otherwise indicate that the said dispositions may not be the result of the testator’s free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. Apart from the suspicious circumstances above referred to in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience. The lest merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is no doubt true that on the proof of the signature of the deceased or his acknowledgment that he has signed the will he will be presumed to have known the provisions of the instrument he has signed; but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case." 19. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case." 19. These principles were reiterated in Rani Purnima Debi v. Kumar Khagendra Narayan Deb, AIR 1962 SC 567 ; Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee, AIR 1964 SC 529 ; Ramchandra Rambux v. Champabai, AIR 1965 SC 354: Pushpavati v. Chandraia Kadamba, AIR 1972 SC 2492 ; Jaswant Kaur v. Amrit Kaur, AIR 1977 SC 74 ; S. Sundaresa Pai v. Sumangala T. Pai, AIR 2002 SC 317 ; Janki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761 ; Pentakota Satyanarayana v. Pentakota Seetharatnam, AIR 2005 SC 4362 and Madhukar D. Shende v. Tarabai Aba Shedage, AIR 2002 SC 637 . 20. Shri K.K. Misra, learned Counsel for the defendant made an oral request for calling an expert to compare the thumb impression of the deceased on the sale deeds and will. He has not made any application for that purpose. He stated that the Court may, in order to find out the truth, summon the expert. The Court cannot follow such a procedure. Both the parties have not made any attempt to get thumb impressions compared with admitted documents by an expert. The Court as such has to rely only upon oral evidence led by the parties. The documents annexed to the affidavit. They were not filed with the list. The parties did not choose to admit and deny these documents except the ‘will’, and have not proved them on record by the witnesses. 21. The parties are at variance about the presence of the deceased at his residence at Bara Gaon in the evening of 11.9.2000, when the will is said to be executed. The deceased had suffered from a stroke of paralysis, which had affected a part of his body. The defendants tried to establish that his right hand was not affected and he could sign. The plaintiffs have tried to prove that the will was written by an Advocate at his residence in the evening at 4.00 p.m. and attested by two attesting witness whereas the defendant state on that day the deceased was taken to Primary Health Center Mugra Badshahpur and was referred to Swarup Rani Hospital Allahabad. The plaintiffs have tried to prove that the will was written by an Advocate at his residence in the evening at 4.00 p.m. and attested by two attesting witness whereas the defendant state on that day the deceased was taken to Primary Health Center Mugra Badshahpur and was referred to Swarup Rani Hospital Allahabad. The defendants allege that all the three brothers took the deceased at Allahabad in a jeep at about 10.00 a.m. and that he was admitted in emergency in Swaroop Rani Hospital at Allahabad and stayed in the hospital upto 14th September, 2000, when he was discharged against medical advice and was brought back to the village. The referring letter of the Superintendent, Community Health Center, Sujanganj, Jaunpur No. 19124 dated 7.9.2000, which gives the age of the deceased as 85 years and diagnosis, ‘On right side, Hemiplege’, “BP 190/100 mg”, prescription of four medicines and reference to Medical College, Allahabad, does not give any other details. The signature of the doctor is not legible. This document is annexed as RA-1 to the affidavit of Lalti Devi. It is photo copy, which has not been proved. No other evidence has been filed, in proof of allegation of consultation with any other doctor and purchase of medicines. The defendants have also not filed any documents with regard to taking the deceased to Swaroop Rani Hospital, Allahabad. The discharge certificate has not been filed. They have not even given the bed and ward number, the name of the Doctors or the attendants, who attended their father and the medicines, which they had purchased. Both the defendants have conveniently stated that all these documents are with the eldest brother (husband of the plaintiff), who was incurring all the expenses. 22. The two independent defence witnesses namely Chote Lal, DW-3 and Mohan Lal, DW-4 of the same village tried to prove that the deceased was taken to Allahabad. Chote Lal stated that he saw the deceased coming back in the second meeting. Both of them, however, did not accompany the deceased to the hospital and could not give the details of the hospital, name of Doctors or the medicines prescribed or purchased. It is surprising that the sons of the deceased do not even remember anything about the treatment given to their father. Both these persons are educated and were employed in the same college of which their father was Vice-President. It is surprising that the sons of the deceased do not even remember anything about the treatment given to their father. Both these persons are educated and were employed in the same college of which their father was Vice-President. They allege to have brought him back after three days against the medical advice, as they did not have expenses for treatment. They do not remember anything else. It is very unusual for the sons, who allege to have brought back their father against medical advice for want of money for treatment, to forget the facts about the hospital, ward, treatment and doctors at all. 23. In the circumstances I do not believe the case set up by the defendants and their witnesses that their father was referred to and was taken to Allahabad by them, with their elder brother and that he was not present on the date of execution of the will in the village. 24. On the other hand the statement of scribe, who is an Advocate practicing at Tehsil and District Allahabad and the two attesting witnesses, about due execution of the document by the deceased is more worthy of belief. In the ‘will’ the deceased has left the house to all the three brothers and has given the agricultural land at village Haiderpur to the plaintiff, the eldest daughter-in-law, who was taking his care for last 30 years after the death of his wife. The defendants have nowhere stated that they took care of their father at any time after the death of their mother. Infact defendant No. 1 does not even correctly remember the name of his mother, which discredits his entire testimony. DW-3 was living close to the house of the deceased and has mentioned about the names of his daughters in affidavit but could not give these names in his cross-examination. He did not even know if they were married, which is ordinarily known to the residents of the same villages and specially neighbours. 25. The will has been proved by the scribe and the two witnesses, who had seen the testator put his thumb impression and thereafter, signed on the will in the presence of the testator and each other. The qualifications of the deceased were not known to any one. His degree or registration has not been produced. 25. The will has been proved by the scribe and the two witnesses, who had seen the testator put his thumb impression and thereafter, signed on the will in the presence of the testator and each other. The qualifications of the deceased were not known to any one. His degree or registration has not been produced. It appears that he was not an authorized medical practitioner and was carrying out medical practice in the village from his residence. He was about 80 years old and had suffered from paralysis of his right side of the body. He had sold some part of the land about 15 years ago. 26. After the close of evidence learned Counsel for defendant made an application to summon Dr. V.K. Pandey, Medical Officer, PHC, Mugra Badshahpur with patient registration register and the Chief Medical Superintendent, S.R.N. Hospital with registers pertaining to late Ambika Prasad Singh. These applications were rejected on 20.4.2006 on the ground that the names of these persons were not given in the list of witnesses nor the defendants made any application during the entire proceedings and upto close of evidence for summoning these persons with documents. The issues were framed almost three years ago and that the plaintiffs evidence was closed on 24.1.2005. The application was found to be highly belated and filed only to fill up the lacuna on the date of hearing of the suit. 27. From the aforesaid discussion I find that the deceased was present in his house on 11.9.2000 and had executed the will by putting his thumb impression in the presence of witnesses, who had also signed on the will. He was ill but was in sound and disposing mind. The writing of the will on his instructions, the execution and the attestation of the will have been proved. The propounder has removed all the suspicions surrounding the execution of the ‘will’. The plaintiff has proved the execution and attestation of the will. Issue Nos. 1 and 3 regarding due execution and attestation of the will by the deceased in his sound and disposing mind and putting his thumb impression in the presence of marginal witnesses is returned in favour of the plaintiff, and issue No. 2 as to whether the will is forged and fabricated document is returned against the defendants. 28. On the findings of issue Nos. 28. On the findings of issue Nos. 1, 2 and 3 and on proof of due execution of the will by the deceased and its proof by the attesting witness the issue Nos. 4 and 5 are also decided in favour of the plaintiff. The plaintiff is held to be entitled to Letters of Administration of the estate of the deceased to the extent it is provided in the will dated 11.9.2000, along with copy of the will attached to letters. 29. The suit is decreed. The letters of administration shall be granted to the plaintiff to the extent of properties of the deceased given in the ‘will’, with will dated 11.9.2000 attached on payment of Court fees by her, to be worked out by the office and to the satisfaction of the Registrar General of the Court and after execution of the administration bond. The defendants shall pay Rs. 20,000/- as cost of the proceedings to the plaintiff. Suit Decreed. ———