JUDGMENT Introduction These two appeals by defendants, are against judgment and decree dated 30.12.1988 in O.S.No.33 of 1981 on the file of the Court of Subordinate Judge, Kavali. Appellant in A.S.No.1541 of 1989 is aggrieved by the decree declaring that Shaik Hussain Bi (SHB), first respondent in appeal, is owner of items 1 and 2 of plaint-A schedule properties. Appellants in A.S.No.568 of 1989 are aggrieved by clause (2) of decree directing that they shall pay an amount of Rs.30,000/- to SHB with future interest thereon at 6% per annum from the date of the suit i.e., 04.4.1980 till the date of realisation. As both the appeals arise out of the same judgment, it is expedient to dispose of them by common judgment. For the sake of convenience, parties are referred to by their status in suit. Pleadings of plaintiff 2. SHB filed the suit for declaration of title in respect of plaint-A schedule properties and for direction to defendants 2 and 3 or first defendant in the alternative to pay her a sum of Rs.30,000/- with future interest thereon. Her case is that she is resident of Kommalapadu village of Addanki Taluk in Prakasam District. She was married to Mohammed Ali. Her husband abandoned her. She therefore came to Kavali for livelihood. She took up job as servant-maid. She came in contact with already married Konjeti Ramaiah, who maintained her'. They lived together as husband and wife, as a result of which SHB gave birth to four daughters and one son. 3. Konjeti Ramaiah was living with his wife, Smt. Chenchamma, first defendant, at house bearing NO.3-14-1. He suffered from throat cancer for one year prior to his death. It is alleged that SHB, her daughter Noorjahan and her son Masthan, stayed at Cancer Institute, Adayar, Madras, where Ramaiah was undergoing treatment. On 05.5.1979, Ramaiah executed registered will bequeathing all his movable and immovable properties including his share in business of defendants 2 and 3, to Chenchamma. Having come to know about this, on 06.5.1979, SHB went to Ramaiah along with six persons to persuade Ramaiah to make adequate provision for her and children. Ramaiah executed codicil in sound and disposing state of mind in their presence, between 5.30 and 6.00 pm. Having come to know about this, on 06.5.1979, SHB went to Ramaiah along with six persons to persuade Ramaiah to make adequate provision for her and children. Ramaiah executed codicil in sound and disposing state of mind in their presence, between 5.30 and 6.00 pm. Unregistered codicil dated 06.5.1979 gave absolute right to SHB over items 1 and 2 of plaint-A schedule as well as Rs.30,000/- due to him from defendants 2 and 3. On the same day, he became serious and was shifted to Madras where he died. Plaintiff thereafter was allegedly paid monthly maintenance of Rs.300/- by defendants 2 and 3 firms till 01.10.1979. Plaintiff approached defendants 2 and 3 for payment of Rs.30,000/- in connection with marriage of her eldest daughter Noorjahan on 18.9.1979. But at the instance of defendants 2 and 3, first defendant issued notice dated 10.10.1979 disputing right of plaintiff to seek payments from defendants 2 and 3. SHB got issued reply notice dated 22.10.1979 referring to codicil dated 06.5.1979. First defendant again issued notice dated 30.10.1979 repudiating codicil and denying relationship between Ramaiah and SHB. First defendant also alleged that codicil must have been forged with a view to deprive first defendant of the properties bequeathed to her. Pleadings of defendants 4. In her written statement, first defendant denied any relationship between Ramaiah and SHB and allegation of latter begetting children through former. She also denied allegation that Ramaiah was keeping SHB and her children in item NO.1 of plaint-A schedule house. She alleged that when Ramaiah was suffering from cancer, she herself took him to Madras for treatment. There she took a private house at Adayar and attended to her husband in the hospital. She met all the expenditure. The allegations that plaintiff's daughter and son stayed in Madras and that Ramaiah was getting letters written by Noorjahan were denied. Ramaiah was brought to Kavali where he was taking medicines prescribed by Cancer Institute, Madras. His condition did not improve.Therefore he executed registered Will on 05.5.1979 in a sound and disposing state of mind bequeathing all movable and immovable properties to his wife whom he married over 40 years back. The Will was validly executed. Testator directed first defendant to spend RS.1 0,000/- for charitable purposes and also permitted first defendant to adopt a son for the purpose of performing obsequies. Will was registered between 9.00 and 10.00 a.m. on 06.5.1979. The Will was validly executed. Testator directed first defendant to spend RS.1 0,000/- for charitable purposes and also permitted first defendant to adopt a son for the purpose of performing obsequies. Will was registered between 9.00 and 10.00 a.m. on 06.5.1979. Plaintiff never visited first defendant's house where Ramaiah was lying ill with cancer. Alleged codicil is not true and it was not executed at the house of Ramaiah between 5.00 and 6.00 p.m. on 06.5.1979 as alleged. On 06.5.1979 after registration of Will in favour of first defendant, Ramaiah's health condition worsened. He was shifted to Madras by taxi by 12 noon. At the time of alleged execution of codicil, Ramaiah was not in sound and disposing state of mind. It is unnatural that plaintiff was given valuable properties and large amount of cash whereas first defendant was given RS.1 0,000/- with a direction to spend for charities. 5. First defendant further alleged that item NO.1 of plaint-A schedule was rented out by Ramaiah to plaintiff on a monthly rent of RS.30/-. First defendant demanded payment of rent for April and May 1979. First defendant got issued notice on 10.10.1979 informing plaintiff that she committed default in payment of rent. Plaintiff sent reply alleging execution of codicil by Ramaiah. The said codicil is rank forgery set up by plaintiff with a view to deprive first defendant of her right to movable and immovable properties. Plaintiff brought Chakka Satyanarayana and others and attempted to beat first defendant three or four times by using abusive language. A complaint was given to Police, who interfered and advised SHB and her associates to desist from such bad activities. Plaintiff was in possession of item NO.1 house and she was never in possession of item NO.2 vacant site. When first defendant wanted to pay municipal taxes, she came to know that plaintiff paid them and lodged objections. Without enquiry, Municipality informed that mutation was effected in the name of plaintiff. Municipality has no right or jurisdiction to determine rights of parties and orders of mutation are illegal. 6. Konjeti Ramaiah was partner of defendants 2 and 3 firms. Due to his ill health he settled his share in both the firms prior to 31.3.1979. It was asserted that an amount of Rs.32,680.52 is due from second defendant firm. Municipality has no right or jurisdiction to determine rights of parties and orders of mutation are illegal. 6. Konjeti Ramaiah was partner of defendants 2 and 3 firms. Due to his ill health he settled his share in both the firms prior to 31.3.1979. It was asserted that an amount of Rs.32,680.52 is due from second defendant firm. Partners of second defendant executed promissory note for the said amount on 27.4.1979 agreeing to repay the same with interest at 12% per annum from 01.4.1979. Similarly third defendant became indebted in a sum of Rs.14,223.85. After receiving notice from first defendant, Amara Venkata Subbaiah, partner of third defendant firm, paid a sum of Rs.12,000/- on 19.3.1980 and second defendant firm paid a sum of Rs.3,695/- on 31.3.1980. Partners of second defendant paid balance of Rs.27,292.12 and promissory note was cancelled. Plaintiff is not entitled for any relief. Plaintiff is not in actual possession of property and therefore suit without prayer for possession is not maintainable. 7. The averments in written statement of second defendant in brief are as follows. Second defendant is a firm consisting of Amara Venkata Subbaiah, his sons and Konjeti Ramaiah and company as partners. They were carrying on wholesale cloth business at Kavali. When Ramaiah was suffering from cancer at Madras, first defendant and P. Ranga Rao were attending upon him spending money. Amara Venkata Subbaiah, partner of second defendant firm, was helping them. After few months stay, Ramaiah returned Kavali. He was taking medicines prescribed by the Doctors at Madras and his health condition was deteriorating. As Ramaiah wants to retire from partnership, Amara Venkata Subbaiah and Venkataramaiah, partners of second defendant firm, executed promissory note dated 27.4.1979 for Rs.32,680.52 agreeing to pay the same with interest at 12% per annum from 01.4.1979. They also executed another promissory note for RS.14,223.85 on behalf of third defendant firm on 27.4.1979 in favour of Ramaiah, who relinquished his rights from both the firms by settling accounts. 8. On 05.5.1979 Ramaiah executed Will bequeathing all his properties to first defendant in a sound and disposing state of mind. Will was validly executed and attested by Amara Venkata Subbaiah and Surisetty Subrahmanyam. On the next day, Ramaiah sent for Sub-Registrar to his house and got the Will registered between 9.00 and 10.00 a.m. in the presence of two attestors, who identified Ramaiah at the registration of Will. Will was validly executed and attested by Amara Venkata Subbaiah and Surisetty Subrahmanyam. On the next day, Ramaiah sent for Sub-Registrar to his house and got the Will registered between 9.00 and 10.00 a.m. in the presence of two attestors, who identified Ramaiah at the registration of Will. After registration, Ramaiah's health condition deteriorated. At 12.00 Noon on the same day he was taken to Madras by first defendant and relatives. He died on 07.5.1979 at Madras and dead body was brought to Kavali on the same night. 9. Ramaiah was business associate of Amara Venkata Subbaiah for over 40 years. He was taking advice in both personal and financial matters. Ramaiah had no illicit intimacy with plaintiff and he never got children through her. He never maintained her nor had any contact with plaintiff or her children. He was affectionate towards first defendant, who is legally wedded wife, and had no vices. First defendant was at his bedside till last breath of her husband and plaintiff had nothing to do with Konjeti Ramaiah. To the knowledge of Amara Venkata Subbaiah, no codicil was executed between 5.30 and 6.00 p.m. on 06.5.1979. Codicil was not true and it is not validly executed and attested document. At the alleged time of execution of codicil, Ramaiah was not in sound and disposing state of mind and he was not able to understand anything. 10. During lifetime of Ramaiah, his account was settled by defendants 2 and 3 firms, as on 31.3.1979. On receiving notice from first defendant, ascertained amount payable to Ramaiah was paid and promissory notes executed in favour of first defendant were cancelled. These debts due to Ramaiah have been fully discharged and no amount was due to Ramaiah. Plaintiff was aware of such payments and she is not entitled to recover a sum of Rs.30,000/- from second defendant. 11. Third defendant filed written statement disputing its liability to pay amount. While adopting written statement filed on behalf of second defendant, it is alleged that Konjeti Ramaiah retired from partnership and amount due to him as on 31.3.1979 was paid to first defendant duly obtaining acknowledgement on promissory note. Third defendant is not liable to pay any amount and plaintiff has no cause of action as against them. 12. Based on pleadings trial Court framed initially five issues. Subsequently two additional issues were framed. These are as follows. Third defendant is not liable to pay any amount and plaintiff has no cause of action as against them. 12. Based on pleadings trial Court framed initially five issues. Subsequently two additional issues were framed. These are as follows. (1) Whether the Codicil dated 06.5.1979 is true and valid? (2) Whether plaintiff is entitled to declaration of title in respect of plaint 'A' schedule properties? (3) Whether plaintiff is entitled to recover Rs.30,000/- from defendants 2 and 3 or in the alternative from the first defendant? (4) Whether defendants 2 and 3 not proper and necessary parties to this suit? (5) To what relief, is the plaintiff entitled? Additional issues framed on 18.11.1988 (6) Whether the suit is not maintainable for want of succession certificate? (7) Whether the description of defendants 2 and 3 is not correct? 13. Plaintiff, SHB, examined herself as P.W.1. Exs.A.1 to A.28 were marked. Codicil dated 06.5.1979 was marked as Ex.A.28. P.W.1 also examined scribe of EX.A.28 as P.W.2. The attestors were examined as P.Ws.3 to 7 and 9, and daughter of P.W.1 was examined as P.W.8. Presumably for the reason that registered Will dated 05.5.1979 in her favour was not seriously disputed, first defendant examined herself as lone witness D.W.1 and marked Exs.B.1 (registered Will) to B.12. 14. As seen from the above, issues 1 and 2 are main issues. After comparing signature of Konjeti Ramaiah on EX.B.1 registered Will and EX.A.28 unregistered codicil, trial Court came to the conclusion that signatures are similar. Believing evidence of P.Ws.1 to 4, 7 and 9, trial Court held that Ex.A.28 is true and genuine and was executed by Konjeti Ramaiah in sound and disposing state of mind. It was also held that the same is binding on defendants. Accordingly declaration was granted in favour of plaintiff. Insofar as payment of Rs.30,000/by defendants 2 and 3 is concerned, trial Court held that said amount should be paid to plaintiff as per direction in EX.A.28 or in alternative first defendant is liable to pay the said amount to plaintiff. 15. During pendency of A.S.No.1541 of 1989, appellant (first defendant) died and her adopted son came on record as her legal representative. In A.S.No.568 of 1989 (filed by defendants 2 and 3), Amara Venkata Subbaiah, partner of second defendant firm, died. Defendants 4 to 9 were brought on record as his legal heirs. 15. During pendency of A.S.No.1541 of 1989, appellant (first defendant) died and her adopted son came on record as her legal representative. In A.S.No.568 of 1989 (filed by defendants 2 and 3), Amara Venkata Subbaiah, partner of second defendant firm, died. Defendants 4 to 9 were brought on record as his legal heirs. Similarly, fourth defendant died and his legal heirs were brought on record as appellants 10 to 13. Submissions of Appellants 16. Learned counsel for appellant (first defendant) in A.S.No.1541 of 1989, submits that EX.A.28 codicil is forged document. In the absence of proof that Konjeti Ramaiah executed the same, by taking recourse to expert opinion, adverse inference has to be drawn against plaintiff. He submits that when execution of Will has to be proved, it would be unsafe for trial Court to compare admitted signature of testator with disputed signature on codicil. In such an event, even if number of attestors and scribe are examined, Will cannot be held to be proved. He placed reliance on Jaswant Kaur v. Amrit Kauf, State (Delhi Admn.) v. Pali Rarrr, Kalyan Singh v. Chhoti and O. Bharathan v. K. Sudhakararf. He nextly contends that there are glaring inconsistencies in the case pleaded by plaintiff and the case sought to be proved by her. Lastly he pointed out number of circumstances, which according to him are suspicious surrounding execution of Will. Learned Counsel has placed reliance on Indu Bala v. Manindra Chandra, Madhukar D. Shende v. Tarabai Aba Shedage and Rambai Padmakar Patil v. Rukminibai Vishnu Vekhande. 17. Learned Counsel for appellants (defendant Nos.2 and 3) in A.S.No.561 of 1989 made three submissions in support of appeal. First Exs. BA to B.6 promissory notes with cancellation endorsements and evidence of D.W.1 would show that amounts payable under Exs.B.2 and B.3 promissory notes by defendants 2 and 3 were paid to first defendant and in view of admission made by first defendant in her written statement as well as in her deposition, defendants cannot be held liable to pay amount of Rs.30,000/-. Secondly unless succession certificate is filed by plaintiff, as required under Section 214 of Indian Succession Act 1925, plaintiff is not entitled to demand defendants to pay amount of Rs.30,000/-. Secondly unless succession certificate is filed by plaintiff, as required under Section 214 of Indian Succession Act 1925, plaintiff is not entitled to demand defendants to pay amount of Rs.30,000/-. He points out that when first defendant approached defendants 2 and 3 by issuing notices Exs.A.11 and A.15, having regard to the registered Will, EX.B.1, they paid amount of Rs.30,000/- and they stood discharged from paying amount to late Ramaiah or his legal heirs. Lastly both the partners of second defendant firm died but successors are not brought on record. Therefore suit as against legal heirs of partners of second defendant firm is not maintainable. He placed reliance on Raman Namboodiri v. Chaldean Syrian Bank and M/s. Godavari Rice Mill Stores v. Gopala Krishna. Submissions of Respondent 18. Learned Counsel for first respondent (plaintiff) in both the appeals contends that EX.A.28 codicil was executed by Konjeti Ramaiah bequeathing only items 1 and 2 of plaint-A schedule and an amount of Rs.30,000/- due from defendants 2 and 3 leaving all other properties to first defendant. Ramaiah executed codicil because of his intimacy with SHB for many years during which they lived as wife and husband begetting five children. Therefore there was nothing unnatural in Ramaiah bequeathing some properties to SHB after giving all properties to his wife, who did not get (sic. beget) any children to him. He submits' that as Ramaiah maintained SHB for many years as his wife, on being requested by SHB and other people known to Ramaiah, Ex.A.28 codicil was executed. He points out that no injustice was done to first defendant as she has no children, and that she was given a house at Trunk Road and two tiled houses at Boddukurivari Street, and a shop at Arunodaya Cloth Market acquired by her after death of Ramaiah. She was well off and therefore Ramaiah executed Ex.A.28 codicil. According to learned Counsel, there are no suspicious circumstances surrounding execution of EX.A.28 codicil. Nextly he contends that Section 214 of Indian Succession Act is directory and without obtaining any succession certificate, suit is not barred. He placed reliance on In the matter of Estate, Gurcharan Oass Puri, Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai and Joginder Pal v. Indian Red Cross Society. Nextly he contends that Section 214 of Indian Succession Act is directory and without obtaining any succession certificate, suit is not barred. He placed reliance on In the matter of Estate, Gurcharan Oass Puri, Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai and Joginder Pal v. Indian Red Cross Society. He would further urge that legal heirs of Amara Venkata Subbaiah, partner of second defendant firm, were brought on record in trial stage and after death of one of them an application is also filed before this Court bringing legal representatives and therefore suit is not barred as the firm is well represented in these proceedings. He placed reliance on A. Oasaradarami Reddy v. Indian Bank, Madras-Body Corporate and Montari Industries Ltd. v. Sri Tirumala Venkateswara Agencies. Points for consideration 19. Rival submissions and background of the case would throw up three points for consideration. These are: (1) Whether suit against second defendant firm is not maintainable in the absence of legal representatives of its partners? (2) Whether plaintiff is not entitled to sue defendants 2 and 3 without obtaining succession certificate under Section 214 of Indian Succession Act? And whether defendants 2 and 3 discharged debt payable to Konjeti Ramaiah by paying money to first defendant? (3) Whether EX.A.28 codicil dated 06.5.1979 is true, valid and binding on defendants? In re Point No.1 20. Whether suit against second defendant firm is not maintainable in the absence of legal representatives of its partners? When Amara Venkata Subbaiah died, initially defendants 4 and 5 were brought on record as his legal representatives. Subsequently fourth defendant also died and defendants 5 to 10 were brought on record and therefore there was sufficient representation of estate of late Amara Venkata Subbaiah. This position is not disputed. Amara Raghavulu Setti (fifth defendant) also died and his legal representatives were brought on record as respondents 10 to 13 herein. The fact however remains that when Amara Venkateswarlu, who is also partner of second defendant firm, died no steps were taken to bring his legal representatives on record. Section 2(11) of Code of Civil Procedure 1908 (CPC) defines 'legal representative' as a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. Section 2(11) of Code of Civil Procedure 1908 (CPC) defines 'legal representative' as a person who in law represents the estate of a deceased person, and where a party sues or is sued in a representative character, the person on whom the estate devolves on the death of the party so suing or sued. When Amara Venkata Subbaiah died, initially his son Amara Venkateswarlu was also brought on record. Subsequently when Amara Venkateswarlu died, his legal representatives are not brought on record to represent his estate. This however is not fatal to maintainability of the suit. 21. A reading of Rules 1 and 4 of Order XXX CPC shows that partners may be sued in the name of the firm. When two persons are sued in the name of firm under Rule 1 of Order XXX CPC, and any of such 32 persons died during pendency of suit, it shall not be necessary to implead legal representatives of deceased as a party to suit. Secondly after death of Amara Venkata Subbaiah, two legal representatives were brought on record. When one of legal representatives died, her legal representatives were also brought on record including Amara Venkateswarlu, who was a partner in both defendants 2 and 3 firms. This is sufficient compliance with requirement of law as per Order XXX Rules 1 and 4 CPC. 22. In Mandalsa Oevi v. M.Ramnarain (P) Ltd.16, it was held as follows. ... ... ... in a normal case where all the partners of a firm are capable of being sued and of being adjudged judgment-debtors, a suit may be filed and a decree may be obtained against a firm under Order 30 of the Code of Civil Procedure, and such a decree may be executed against the property of the partnership and against all the partners by following the procedure of Order 21, Rule 50 of the Code of Civil Procedure. But there may be abnormal cases where a suit is filed against a firm under the provisions of Order 30 of the Code of Civil Procedure, and it is found that one of its partners cannot be sued or cannot be adjudged a judgment-debtor. ... ... ... ... But there may be abnormal cases where a suit is filed against a firm under the provisions of Order 30 of the Code of Civil Procedure, and it is found that one of its partners cannot be sued or cannot be adjudged a judgment-debtor. ... ... ... ... a creditor of a firm of which one of the partners cannot be adjudged to be a debtor, may institute a suit against a firm in the firm name under Order 30 of the Code of Civil Procedure, and may in such a suit obtain a decree against the firm other than the partner who cannot be adjudged a debtor. Again, take a case where the creditor of a film institutes a suit against a firm and one of its partners at the time of the accrual of the cause of action is dead at the time of the institution of the suit. The suit against the firm is really a suit against all the partners who were its partners at the time of the accrual of the cause of action, including the dead partner. Order 30 Rule 4 of the Code of Civil Procedure enables the creditor to institute the suit against the firm in the firm name without joining the legal representative of the deceased partner. The suit is, therefore, competent, but no suit can be instituted nor can a decree be obtained against a dead person. (emphasis supplied) 23. A Division Bench of this Court in A. Dasaradarami Reddy (14 supra) followed Madhvi Amma (12 supra) and explained legal position as under. ... ... ... a suit by or in the name of a firm is really suit by or in the name of all its partners. The firm's name is used for a convenient method of denoting those persons who compose the firm and the suit in truth is actually against the individuals: The decree passed though in form against the firm is in effect a decree against all the partners. A suit may be filed and a decree may be obtained against a firm and such decree may be executed against the properties of the partnership firm and against all the partners by following the procedure under Order XXI Rule 50 CPC. A suit may be filed and a decree may be obtained against a firm and such decree may be executed against the properties of the partnership firm and against all the partners by following the procedure under Order XXI Rule 50 CPC. In cases where one of the partners cannot be sued or cannot be adjudged a judgment debtor, for instance, in a case where the creditor of the firm institutes a suit against a firm and one of its partners is dead at the time of the accrual of the cause of action or at the time of the institution of the suit, under Order XXX Rule 4 CPC, the creditor is entitled for a decree against the firm in the firm name without joining the legal representatives of the deceased partner, such suit is competent by virtue of Order XXX Rule 1 read with Rule 4 CPC. However, since no suit can be instituted nor can a decree be obtained against a dead partner, the decree passed in such a suit will, therefore, bind the partnership firm and all the surviving partners, but will not affect the separate property of the deceased partner. Under Order XXX Rule 1 read with Rule 4 CPC, a decree enforceable against the partnership and the surviving partners can be passed in the event of the death of a partner before filing of the suit or during the pendency of the suit without impleading the legal representatives of the dead partner - Order XXX Rule 4 CPC being an enabling provision. (emphasis supplied) 24. The same Division Bench in Montari Industries Ltd. (15 supra) reiterated the above legal position holding that, "a suit can be filed against a firm and a decree can be obtained against the assets of the firm including the shares of the deceased partner in the firm without impleading the legal representatives of the deceased partner." Therefore the submission of learned Counsel for appellants in A.S.No.568 of 1989 cannot be accepted. The point is accordingly answered in favour of first respondent/ plaintiff. In re Point No.2 25. Whether plaintiff is not entitled to sue defendants 2 and 3 without obtaining succession certificate under Section 214 of Indian Succession Act? and whether defendants 2 and 3 discharged debt payable to Konjeti Ramaiah by paying money to first defendant? The point is accordingly answered in favour of first respondent/ plaintiff. In re Point No.2 25. Whether plaintiff is not entitled to sue defendants 2 and 3 without obtaining succession certificate under Section 214 of Indian Succession Act? and whether defendants 2 and 3 discharged debt payable to Konjeti Ramaiah by paying money to first defendant? Defendants 2 and 3 in their appeal contend that after death of Konjeti Ramaiah, first defendant, who is legatee under EX.B.1 Will, issued notice EX.A.11 calling upon them to pay promissory note amount as per Exs.B.2 and B.3 and that the same was paid vide endorsements Exs. B4 to B.6. In view of this documentary evidence and also admission made by first defendant in her written statement, defendants 2 and 3 stood discharged. First defendant admits that defendants 2 and 3 paid amounts to her under Exs. B4 to B.6 prior to filing of the suit. Therefore this evidence proves contention that defendants 2 and 3 discharged the debt. In this background, whether plaintiff could have maintained a suit without obtaining succession certificate? Section 214 of Indian Succession Act reads as under. 214. Proof of representative title a condition precedent to recovery through the Courts of debts from debtors of deceased persons. (1) No Court shall (a) pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, or (b) proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt, except on the production, by the person so claiming of (i) a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased, or (ii) a certificate granted under Section 31 or Section 32 of the Administrator General's Act, 1913, (3 of 1913) and having the debt mentioned therein, or (iii) a succession certificate granted under Part X and having the debt specified therein, or (iv) a certificate granted under the Succession Certificate Act, 1889 (7 of 1889), or (v) a certificate granted under Bombay Regulation No. VIII of 1827, and, if granted after the first day of May, 1889, having the debt specified therein. (2) The word "debt" in sub-section (1) includes any debt except rent, revenue or profits payable in respect of land used for agricultural purposes. 26. A plain reading of sub-section (1) of Section 214 of Indian Succession Act, would show that passing a decree against debtor of a deceased person for payment of his debt to a person claiming succession to the assets of deceased person without production of inter alia a succession certificate granted under Part-X is absolutely prohibited. Therefore in the present case plaintiff cannot maintain a suit for recovery of Rs.30,000/- as against defendants 2 and 3. This view is supported by Raman Namboodiri (9 supra) and In the matter of Estate, Gurcharan Oass Puri (11 supra). 27. In Raman Namboodiri (9 supra), a Division Bench of Kerala High Court while relying on Ramutti v. Padmanabha, laid down thus. Now S.214 of the Indian Succession Act (39 of 1925) for bits among others, the passing by a court of a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, except on production by the person so claiming of a succession certificate granted under Part X and having the debt specified therein. This section has been held to be mandatory. So much so, a court cannot pass a decree against its terms even if it is otherwise satisfied that the plaintiff is the real heir or the successor of the deceased. A conditional decree directing the production of a certificate before the execution of the decree, has even been held to be illegal. And if the succession certificate is not produced before the decree and after an opportunity is given to the plaintiff, the only order the court can pass upon the suit is to dismiss it. (emphasis supplied) 28. In the matter of Estate, Gurcharan Oass Puri (11 supra), it was held as follows. And if the succession certificate is not produced before the decree and after an opportunity is given to the plaintiff, the only order the court can pass upon the suit is to dismiss it. (emphasis supplied) 28. In the matter of Estate, Gurcharan Oass Puri (11 supra), it was held as follows. Section 214 of the Act inter alia provides that no Court shall pass a decree against a debtor of a deceased person for payment of his debts to a person claiming on succession to be entitled to the estate of the deceased person or to any part thereof or proceed, upon an application of a person claiming to be so entitled, to execute against such a debtor a decree or order for the payment of his debt except on the production, by the person so claiming of a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased. Thus, it is evident that letters of administration are required to be obtained for the purposes of getting the payment of debts etc., of the deceased. 29. Learned Counsel for plaintiff relying on Madhvi Amma (12 supra) and Joginder Pal (13 supra), submits that Section 214 of Indian Succession Act is directory and therefore claim of plaintiff against defendants 2 and 3 is not barred. This Court is afraid the submission cannot be accepted. In both the cases, the question that was considered was, whether a decision on the issue in a proceeding to grant succession certificate would operate as res judicata to the issue raised in the subsequent suit. Both the decisions hold that it we uld not operate as res judicata, that enquiry for grant of succession certificate or probate or letters of administration being summary in nature, the same does not operate as res judicata and that Section 387 of Indian Succession Act permits filing of suit or other proceedings even though succession certificate might have been granted. In view of these reasons, this point is held against plaintiff and in favour of defendants 2 and 3. The suit for recovery of a sum of Rs.30,000/- from defendants 2 and 3 is not maintainable without obtaining succession certificate. Secondly, plaintiff had no privity of contract with first defendant and therefore she could not have maintained suit for recovery of money. Further, in view of Exs. The suit for recovery of a sum of Rs.30,000/- from defendants 2 and 3 is not maintainable without obtaining succession certificate. Secondly, plaintiff had no privity of contract with first defendant and therefore she could not have maintained suit for recovery of money. Further, in view of Exs. B.4 to B.6, it must also be held that defendants 2 and 3 stood discharged from payment of any money as claimed by plaintiff. In re Point No.3 30. Whether EX.A.28 codicil dated 06.5.1979 is true, valid and binding on defendants? There is no serious dispute with regard to execution of Will dated 05.5.1979 (registered on 06.5.1979) by Konjeti Ramaiah bequeathing all his movable and immovable properties in favour of his wife, first defendant. In Ex.B.1 first defendant was also given entire amount due to testator from defendants 2 and 3 firms. Ramaiah also gave authority to his wife to adopt a son and spend Rs.10,000/- for charities. A reading of EX.B.1 Will would show that all the properties which testator owned and possessed or on which he had a right, were bequeathed to first defendant and nothing was left out from bequeath. Property bequeathed 31. There is disagreement between contesting Counsel as to property bequeathed by Ramaiah under EX.B.1 and property bequeathed under EX.A.28. Whether property given to SHB under Ex.A.28 renders EX.B.1 Will an useless bequeath in the sense that only a pittance was left to be inherited by first defendant? 32. The record reveals that Ramaiah was living at house bearing Door No.3-12-84, Ward NO.3. Under Ex.B.1, entire immovable property and profits from the business of defendants 2 and 3 firms were subject matter of bequeath. If items 1 and 2 of plaint-A schedule and house bearing NO.3-12-84 were only immovable properties of Ramaiah, it stands to reason that all properties were bequeathed to first defendant. It is however not possible to draw such an inference. There is no evidence on record to show that house bearing door NO.3-12-84 was owned by Ramaiah. However as per Ex.A.28 items 1 and 2 of plaint-A schedule and an amount of Rs.30,000/- were bequeathed to plaintiff. Here again no evidence is available on record as to how and when Ramaiah purchased items (1 and 2) of plaint-A schedule. There is no evidence on record to show that house bearing door NO.3-12-84 was owned by Ramaiah. However as per Ex.A.28 items 1 and 2 of plaint-A schedule and an amount of Rs.30,000/- were bequeathed to plaintiff. Here again no evidence is available on record as to how and when Ramaiah purchased items (1 and 2) of plaint-A schedule. EX.B.12 dated 27.8.1978 is a sale deed executed by Konduru Sesha Reddy, s/o.Siva Rami Reddy, alienating item NO.1 of plaint-A schedule in favour of Ramaiah. Interestingly demised property was handed over on the date of execution of Ex.B.12. Therefore it is reasonable to infer that by reason of alleged codicil Ex.A.28, which altered EX.B.1 Will, what was given to first defendant is only profits which accrued to Ramaiah in defendants 2 and 3 firms, after paying an amount of Rs.30,000/- to SHB. As noticed, while considering point No.2, during lifetime of Ramaiah defendant NO.2 settled the matter finally agreeing to pay a sum of Rs.32,682.52 and executed promissory note EX.B.2. Likewise defendant NO.3 settled the matter finally agreeing to pay a sum of Rs.14,223.85 and executed promissory note EX.B.3. Thus providing Rs.30,000/- to SHB as per EX.A.28 codicil, what was given to first defendant was Rs.16,906.37. Therefore except the said amount, all properties of Ramaiah remain bequeathed under EX.A.28. It is in the evidence of first defendant as D.W.1 that after death of Ramaiah, she purchased a shop in Arunodaya Cloth Market, which does not form part of EX.B.1 or EX.A.28. Legal principles 33. A codicil is an instrument in relation to the Will and explaining altering or adding to its dispositions. A codicil is deemed to be part of Will. Under Section 62 of Indian Succession Act, a Will can be altered by maker of it at any time when testator is competent to dispose of his property. A person may be competent by reason of being a sound and disposing state of mind but subsequently if he is shown lacking such disposing state of mind, a codicil executed by such person cannot be given effect to. The law is well settled that even an unregistered codicil in relation to a registered Will, would have to be read as complementing the Will. This is however subject to condition that such codicil must have been executed following same rules of execution as applicable to a Will to which it relates to. The law is well settled that even an unregistered codicil in relation to a registered Will, would have to be read as complementing the Will. This is however subject to condition that such codicil must have been executed following same rules of execution as applicable to a Will to which it relates to. The evidence adduced in proof of codicil must also satisfy same requirements as applicable to proof of execution of Will. In other words, even a codicil has to be proved in accordance with Section 63(c) of Indian Succession Act read with Section 68 of Indian Evidence Act 1872 (Indian Evidence Act, for short). (see Bhagat Ram v. Suresh). 34. The propounder of a Will is required to prove Will in the Court by examining one or more attesting witnesses. When such proof of execution of Will is offered and accepted, more often than not, the last wish of testator has to be respected and dispositions in the Will are to be given effect to Nevertheless if caveator (challenger of Will) alleges fraud, coercion or undue influence in regard to execution of Will, the Court subject to proof of such things by caveator, has to reject the Will. In addition to these yet another situation where the Will cannot be treated as last testamentary conscious disposition by testator is, when execution of the Will is surrounded by suspicious circumstances. Ordinarily suspicious circumstances pleaded by caveator are few. In the course of the trial or at the time of arguments, many circumstances with reference to evidence available on record come to the fore. However all such circumstances at or about execution of Will are not suspicious circumstances. 35. In H. Venkatachala Iyengar v. B.N. Thimmajamma19, it is laid down that the onus is on propounder of proof of essential facts, which are: (i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder. It was also held that if a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. 36. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee, a Constitution Bench of Supreme Court approved the law in H. Venkatachala Iyengar (19 supra), and laid down as below. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications in the will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. 37. In Indu Bala (6 supra), Madhukar D. Shende (7 supra), Rambai Padmakar Patil (8 supra) and Shashi Kumar (20 supra) also Supreme Court reiterated law in H. Venkatachala Iyengar (19 supra). 38. An element of solemnity is attached to the Will because it is last testament of testator and speaks from death of testator. Therefore when suspicious circumstances are alleged every allegation cannot be treated as suspicious and if allegations are well founded, the Court has to subject the Will to a closer scrutiny. 38. An element of solemnity is attached to the Will because it is last testament of testator and speaks from death of testator. Therefore when suspicious circumstances are alleged every allegation cannot be treated as suspicious and if allegations are well founded, the Court has to subject the Will to a closer scrutiny. In Jaswanth Kaur (2 supra), Supreme Court pointed out that when the Will is allegedly shrouded in suspicion, its proof ceased to be a simple lis between plaintiff and defendant. An adversary proceeding in such cases becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy Court's conscience that Will was duly executed by testator. For doing so the propounder is bound to offer cogent and convincing explanation of suspicious circumstances shrouding the making of Will. 39. As held by Supreme Court in Indu Bala (6 supra), a circumstance would be "suspicious" when it is abnormal or is not normally expected in a normal situation or is not expected of a normal person. In H. Venkatachala Iyengar (19 supra), Supreme Court intei alia pointed out that when the disposition in the Will appears to be unnatural, improbable or inferior in the light of relevant circumstances and when propounder took prominent role in execution of Will and received substantial benefit, that itself is treated as suspicious circumstance attending execution of Will. Here it may be mentioned that though in subsequent judgments, Supreme Court held that mere exclusion of a nearest relative from bequeath by itself does not render the Will suspicious, but in connection with attending circumstances, it would lead to suspicion. In a recent judgment in Pinnaka Hanumantha Rao v. Garlapati Dhanalakshmi, this Court after referring to relevant law, culled out various principles with regard to proof of Will and while doing so, summarized inter alia following circumstances which can be treated as suspicious. 6. The execution of the Will may be surrounded by suspicious circumstances like, - (a) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (b) The condition of the testator's mind may be very feeble and debilitated. (c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons. (b) The condition of the testator's mind may be very feeble and debilitated. (c) The dispositions made in the Will may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provision for the natural heirs without reasons. (d) The dispositions may not appear to be the result of the testator's free Will and mind. (e) The propounder takes a prominent part in the execution of the Will conferring substantial benefit on him. (f) The testator used to sign blank papers. (g) The Will did not see the light of the day for long. (h) Incorrect recitals of essential facts. (i) The unregistered Will challenged as forged comes from the custody of major beneficiary. Proof of Ex.A.28 Codicil 40. Plaintiff's case is as follows. SHB is kept mistress of Konjeti Ramaiah. She bore him five children; four are surviving. She also allegedly served him when he was terminally ill due to throat cancer. On 06.5.1979, she came to know that Ramaiah executed EX.B.1 bequeathing all his properties to first defendant. SHB therefore went to Ramaiah's house along with P.ws.3, 6,7,9 and others. They persuaded Ramaiah to make adequate provision for SHB and her children. He agreed to execute codicil. On the same day between 5.30 and 6.00 p.m., Ramaiah executed EX.A.28 codicil bequeathing items 1 and 2 of plaint-A schedule and an amount of Rs.30,000/- from out of profits from defendants 2 and 3 firms. The codicil was scribed by P.W.2 and attested by six persons, P.Ws.3 to 7 and 9. Plaint is however silent as to the time when SHB went to Ramaiah's house on 06.5.1979. An averment however is made in plaint that EX.A.28 is executed between 5.30 and 6.00 p.m. on that day whereas Ex.A.28 itself shows that it was executed at 5.00 p.m. 41. SHB as P.W.1 stated that she went to Ramaiah's house at 8.00 a.m. and that when she asked about execution of EX.B.1 Will without providing any means for her, Ramaiah told her to bring document writer in the evening for writing document. She also deposed that again in the evening she went along with P.Ws.3, 5 to 7, 9 as well as Amara Venkateswarlu and Vemuru Chenchaiah. Then EX.A.28 was scribed by P.W.2 and Ramaiah signed on it. P.Ws.3 to 7 and 9 attested EX.A.28 and all of them saw Ramaiah signing the document. She also deposed that again in the evening she went along with P.Ws.3, 5 to 7, 9 as well as Amara Venkateswarlu and Vemuru Chenchaiah. Then EX.A.28 was scribed by P.W.2 and Ramaiah signed on it. P.Ws.3 to 7 and 9 attested EX.A.28 and all of them saw Ramaiah signing the document. She stated that codicil was written at about 5.00 p.m. Though she took a plea in the plaint that when she went to Ramaiah's house in the morning on 06.5.1979, first defendant was present, in cross-examination she stated that except seeing first defendant in the Court after the suit started, she did not know Ramaiah's wife, and that she came to know later that Chenchamma is wife of Ramaiah. When she went to Ramaiah's house at 8.00 a.m. EX.B.1 Will was not registered and P.W.1 states that Sub-Registrar came to Ramaiah's house and registered document at 10.00 or 11.00 a.m. EX.B.1 itself shows that document was registered between 9.00 and 10.00 a.m. This only shows that though SHB went at 8.00 a.m. and was allegedly asked to come in the evening with elders and document writer, she stayed back at Ramaiah's house upto 11.00 a.m., which means she also saw EX.B.1 being registered by Sub-Registrar. 42. Learned Counsel for first defendant pointing out the above admitted sequence of events, submits that EX.A.28 is not proved and there are inconsistencies in the evidence of P.W.1, P.W.2 (scribe) and P.Ws.3 to 7 and 9 (six attesting witnesses). He would also submit that Ramaiah was seriously ill and from the afternoon of 06.5.1979 he was almost unconscious and therefore Ex.A.28 cannot be said to have been executed in sound and disposing state of mind. According to learned Counsel, EX.A.28 is forged and learned trial Judge erred in comparing admitted signature of Ramaiah on EX.B.1 with disputed signature on Ex.A.28 to come to conclusion that both the signatures are similar. He also submits that the entire case of plaintiff rests on her plea that she had carnal intimacy with Ramaiah but the same is quite improbable and there is no evidence to support her plea. He also points out that though allegedly Ramaiah fathered five children, all the four surviving children had Muslim names and name of husband of SHB was shown as father of these children. He also points out that though allegedly Ramaiah fathered five children, all the four surviving children had Muslim names and name of husband of SHB was shown as father of these children. Learned Counsel for plaintiff points out that the admissions made in written statement of first defendant and statements of witnesses, P.Ws.3, 5, 8 and 9 would prove intimacy of SHB with Ramaiah and even if children were given Muslim names and were shown to be children of husband of SHB, the same is not relevant to the fact in issue for deciding the controversy. In view of these submissions, apart from legal proof of Ex.A.28, having regard to suspicious circumstances pointed out by learned Counsel for first defendant, various issues raised by both the Counsel need to be addressed. (i) SHB's intimacy with Ramaiah 43. SHB came to Kavali from Kommalapadu village in Prakasam District to eke out living, after she was abandoned by her husband. When she came to Kavali, is not clear either from plaint or from her evidence as P. W.1. The probable year of her arrival to Kavali can be fixed by reference to evidence of P.W.1 herself and her eldest daughter - Noorjahan, P.W.S. SHB was married when she was 15 years of age to Mohammed AIL Her life with husband did not last long. After a month or two with her husband, she went to her parents' house at Kommalapadu. After one month stay with parents, she went to Kavali even without informing her husband. In Kavali she was employed as maidservant in the house of Bala Kotaiah on a monthly salary of RS.5/or RS.10/-. In one month's time SHB allegedly came into contact with Konjeti Ramaiah, who appears to have asked Bala Kotaiah to arrange a young lady as mistress. Whatever be arrangement, Ramaiah took SHB into his fold and kept her for 15 years in the house of Konduru Jayarami Reddy. SHB used to pay RS.5/- or RS.1 0/- per month till item NO.1 of plaint-A schedule house was purchased. Jayarami Reddy, vendor of said item, was no more but his sons are alive. They were not examined. Be that as it is, during 15 years of SHB's stay with Ramaiah, five children were born. By the time Ramaiah went to Madras for medical treatment, according to plaintiff, P.W.S and D.W.1 accompanied him. Jayarami Reddy, vendor of said item, was no more but his sons are alive. They were not examined. Be that as it is, during 15 years of SHB's stay with Ramaiah, five children were born. By the time Ramaiah went to Madras for medical treatment, according to plaintiff, P.W.S and D.W.1 accompanied him. In 1979, by the time P.W.S attained the age of 15 or 16 years, she was married. This means P.W.S must have born in 1964 or 1963. At the time of her examination as P.W.S, Noorjahan was aged 25 years. This shows that SHB in all probability must have come to Kavali in 1962 or 1963. 44. The evidence of P.Ws.3, 5 and 9 on the question of intimacy of SHB with Ramaiah is also not sound. P.W.5 was examined as one of the attesting witnesses. He deposed that Ramaiah had told him that he had illegal intimacy with SHB. This is hearsay evidence and though it is the evidence in relation to relationship, it does not strictly fall within the ambit of Section 32(5) of Indian Evidence Act. P. WS.1 and 8 are interested witnesses. Even the evidence of P.W.9 is also not clinching. In addition to this, Noorjahan admits that in school records, Ramaiah is not shown as father and as admitted by P.W.1, all the children have Muslim names and shown as children of husband of P.W.1. Therefore though allegedly P.W.1 had close carnal intimacy with Ramaiah and that they lived as wife and husband, with the evidence on record it is not possible to accept such plea without doubt. In the light of this evidence. Exs.A.3 to A.7, post cards of the year 1978 sent by P.W.8 to SHB, are of no clinching value. Indeed in none of these letters name of Ramaiah is found nor mentioned. (ii) Evidence of scribe and attestors 45. Plaintiff went to Ramaiah's house at about 8.00 a.m. on 06.5.1979 along with P.Ws.3, 6, 7, 9 and others, as pleaded in the plaint. In her evidence, she deposed that P.Ws.3 to 5, 8, 9 and other elders accompanied her in the evening. She also deposed that Ramaiah agreed to execute codicil, P.W.2 scribed it in the evening. Ramaiah signed the same and as many as seven persons attested EX.A.28 codicil. Except Amara Venkateswarlu, all the attestors are examined. In her evidence, she deposed that P.Ws.3 to 5, 8, 9 and other elders accompanied her in the evening. She also deposed that Ramaiah agreed to execute codicil, P.W.2 scribed it in the evening. Ramaiah signed the same and as many as seven persons attested EX.A.28 codicil. Except Amara Venkateswarlu, all the attestors are examined. Learned Counsel for first defendant pointed out inconsistencies in evidence of P.W.1, P.W.2 and attestors, and submits that execution of Ex.A.28 is highly improbable. EX.B.1 Will was scribed by one Khuddus, who is a retired Sub Registrar but Ex.A.28 was scribed by P.W.2, who admittedly is a licensed document writer. P.W.2 deposed that as instructed by Ramaiah, Khuddus prepared draft codicil and he (P.W.2) scribed fair copy whereafter Konjeti Ramaiah executed the same. He also deposed that Khuddus read over the contents to Ramaiah. P.Ws.3, 4 and 9 also support P.W.2 that draft was prepared by Khuddus but other attesting witnesses P.Ws.5 to 7 do not support this version. Indeed P.W.1 propounder of Ex.A.28 does not even whisper Khuddus being present and preparing draft codicil. Any amount of doubt arises from these divergent depositions with regard to preparation of Ex.A.28. 46. A Will/codicil requires execution by testator in a sound and disposing state of mind after understanding its contents. Except P.Ws.2 and 9, other attestors do not say that contents were read over to Ramaiah. Even with regard to attestation, there are inconsistencies. P.W.5 deposed that he has not seen Ramaiah signing Ex.A.28. P.W.7 deposes that on 06.5.1979 at about 4.30 or 5.00 p.m. when he was going to bazaar, he was called by somebody to Ramaiah's house where he sawall the attestors of codicil being present. He admits that he does not know nature of document. In other words, P.W.7 was not even aware that codicil was being executed by Ramaiah. Therefore in spite of large number of attestors being examined in the trial, execution as well as attestation of Ex.A.28 codicil are themselves doubtful. 47. P.W.1 throughout her case asserts that in morning as well as in evening, she went to house of Ramaiah and Ex.A.28 was executed at 5.00 p.m. On this aspect also, there is no corroboration from plaintiff's witnesses. P.W.1, P.W.2 and P.W.3 state that attestors came to Ramaiah's house after one hour, P.W.4, P.W.7 and P.W.9 depose that EX.A.27 (sic. 47. P.W.1 throughout her case asserts that in morning as well as in evening, she went to house of Ramaiah and Ex.A.28 was executed at 5.00 p.m. On this aspect also, there is no corroboration from plaintiff's witnesses. P.W.1, P.W.2 and P.W.3 state that attestors came to Ramaiah's house after one hour, P.W.4, P.W.7 and P.W.9 depose that EX.A.27 (sic. A-28) was drafted, executed and attested at the house of Ramaiah. P.Ws.5 and 6 however in their chief examination deposed that EX.A.28 was written in the house of Sami Seshaiah situated opposite to the house of Konjeti Ramaiah. Thus even with regard to place of execution of Ex.A.28, there is no unanimity among witnesses examined by plaintiff. Even attesting witnesses do not support case of P. W.1 that they went to Ramaiah's house in morning and in evening when Ex.A.28 was executed. (iii) Proof of disputed signature 48. Whether inconsistent and divergent depositions of P.W.1, P.W.2 and attesting witnesses (P.Ws.3 to 7 and 9) render Ex.A.28 an improperly executed codicil? For the reasons as above, it must be held that plaintiff has not proved execution of Ex.A.28 codicil to the satisfaction of the Court. First defendant challenged Ex.A.28 also on the ground that it is forged. Trial Court did not frame any issue on this. Learned trial Judge compared admitted signatures of Konjeti Ramaiah on Ex.B.1 with disputed signature in Ex.A.28 and found that signatures in both documents are similar. Learned Counsel for first defendant would urge that when forgery of Will is alleged, the propounder ought to have taken necessary steps for sending disputed signatures of Ramaiah to an expert. In the absence of such efforts by plaintiff, learned Counsel would submit that Court ought to have drawn an adverse inference. He placed reliance on the decisions of Supreme Court in Beni Chand v. Kamla Kunwar22 and Kalyan Singh (4 supra). 49. In Beni Chand (22 supra), Supreme Court observed as follows. It is well-settled that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. ... . . . By "free and capable testator" is generally meant that the testator at the time when he made the will had a sound and disposing state of mind and memory. ... . . . By "free and capable testator" is generally meant that the testator at the time when he made the will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the will is discharged if the propounder leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by Section 68 of the Evidence Act. But where, ... ... ... the circumstances surrounding the execution of the will are shrouded in suspicion, it is the duty and the function of the propounder to remove that suspicion by leading satisfactory evidence. ... ... ... Ultimately, that is the test to adopt for one cannot insist on mathematical proof even where the circumstances attendant on the execution of the will raise a suspicion as regards its due execution. (emphasis supplied) 50. In Kalyan Singh (4 supra), the above principles are reiterated as below. ... ... ... a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be,stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. (emphasis supplied) 51. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. (emphasis supplied) 51. When propounder of Will has to prove its due execution including signature of testator, is it permissible for trial Court to compare disputed signatures of testator with admitted signatures and infer due execution? Section 45 of Indian Evidence Act enables the Court to seek help of an expert when it has to form an opinion, inter alia as to identity of handwriting. This is however not an invariable or inflexible rule. In every case of disputed handwriting there is no necessity to refer to handwriting expert. Section 73 of Indian Evidence Act empowers the Court to compare the signature, writing or seal of person by whom it is made with one which is to be proved in evidence. Learned Counsel for first defendant submits that in certain circumstances like proof of Will where burden lies on propounder to prove signature of testator, resort to Section 73 of Indian Evidence Act is not always safe. This Court feels compelled to countenance this submission. 52. In Pali Ram (3 supra), it was held that though ample power is given to the Court to compare the signature under Section 73 of Indian Evidence Act, Court should hesitate to base its finding with regard to identity of handwriting which forms sheet anchor of the prosecution case against the person accused of an offence. Indeed in paragraph 23 thereof, after interpreting Section 73, in the light of Section 45 of Indian Evidence Supreme Court laid down as below. Just as in English Law, the Indian Evidence Act recognises two direct methods of proving the handwriting of a person: "(1) By an admission of the person who wrote it. (2) By the evidence of some witness who saw it written." These are the best methods of proof. These apart, there are three other modes of proof by opinion. They are: "(i) By the evidence of a handwriting expert. (Section 45) (ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Section 47) (iii) opinion formed by the court on comparison made by itself. These apart, there are three other modes of proof by opinion. They are: "(i) By the evidence of a handwriting expert. (Section 45) (ii) By the evidence of a witness acquainted with the handwriting of the person who is said to have written the writing in question. (Section 47) (iii) opinion formed by the court on comparison made by itself. (Section 73)" All these three cognate modes of proof involve a process of comparison. In mode (i) the comparison is made by the expert of the disputed writing with the admitted or proved writing of the person who is said to have written the questioned document. In (ii) the comparison takes the form of a belief, which the witness entertains upon comparing the writing in question, with an exemplar formed in his mind from some previous knowledge or repetitive observance of the handwriting of the person concerned. In the case of (iii) the comparison is made by the court with the sample writing or exemplar obtained by it from the person concerned. Yet again it was held as follows. The matter can be viewed from another angle, also. Although there is no legal bar to the Judge using his own eyes to compare the disputed writing with the admitted writing, even without the aid of the evidence of any handwriting expert, the Judge should, as a matter of prudence and caution, hesitate to base his finding with regard to the identity of a handwriting which forms the sheet-anchor of the prosecution case against a person accused of an offence, solely on comparison made by himself. It is therefore, not advisable that a Judge should take upon himself the task of comparing the admitted writing with the disputed one to find out whether the two agree with each other; and the prudent course is to obtain the opinion and assistance of an expert. (emphasis supplied) 53. In O. Bharathan (5 supra), election of appellant as Member of Kerala Legislative Assembly in 1991 with majority of 291 votes, when challenged by defeated candidate, was declared void by High Court on the ground that large number of void votes were illegally cast in his favour. It was alleged that names of some persons were entered in voters list more than once and that all of them voted twice rendering their votes void. The High Court agreed with the plea. It was alleged that names of some persons were entered in voters list more than once and that all of them voted twice rendering their votes void. The High Court agreed with the plea. In coming to such conclusion High Court examined some of signatures in counter foils alleged to be related to witnesses who admitted that they voted twice. On appeal to Supreme Court, a contention was raised that approach adopted by High Court is contrary to Section 73 of Indian Evidence Act. The Supreme Court while accepting plea held that High Court erred taking upon itself the task of comparing disputed signature on its own without aid of an expert or evidence of persons conversant with disputed signatures. Relevant placitum is as follows. The learned Judge in our view was not right either in brushing aside the principles laid down by this Court in Pali Ram (supra) on the ground that it was not a criminal case or taking upon himself the hazardous task of adjudicating upon the genuineness and authenticity of the signatures in question even without the assistance of a skilled and trained person whose services could have been easily availed of. Annulling the verdict of popular will is as much a serious matter of grave concern to the society as enforcement of laws pertaining to criminal offences, if not more. Though it is the province of the expert to act as judge or jury after a scientific comparison of the disputed signatures with admitted signatures, the caution administered by this Court is to the course to be adopted in such situations could not have been ignored unmindful of the serious repercussions arising out of the decision to be ultimately rendered. 54. It is axiomatic that propounder's burden of proving due execution is discharged if evidence is let in to show that Will bears signature or mark of testator and the same is attested. That Will bears signature of testator cannot be subjected to comparison by trial Judge under Section 73 of Indian Evidence Act. It is not safe to resort to such hazardous method when Will is challenged on the ground of forgery and fabrication. In this case, first defendant alleged that Will is forged. She also disputed execution of EX.A.28 at 5.00 p.m. on 06.5.1979. It is not safe to resort to such hazardous method when Will is challenged on the ground of forgery and fabrication. In this case, first defendant alleged that Will is forged. She also disputed execution of EX.A.28 at 5.00 p.m. on 06.5.1979. The inconsistency in the evidence of P.W.1, P.W.2 (scribe) and P.Ws.3 to 7 and 9 (attesting witnesses) would certainly lead to a conclusion that plaintiff ought to have taken steps for sending EX.A.28 to handwriting expert. Having not done so, it must be held that plaintiff has not proved execution of Ex.A.28 codicil as required under law. (iv) Suspicious Circumstances 55. If the propounder takes active part in execution of Will and if the bequeath excludes the natural heirs, it would be certainly suspicious as held in H. Venkatachala Iyengar (19 supra). If the entire estate of the testator is conferred on a stranger to the family, such a Will is suspect. One may recall the dicta in Indu Bala (6 supra) laying down that, "a circumstance which is abnormal or is not normally expected in a normal situation or is not expected of a normal person" is a suspicious circumstance. Abnormalities are all pervasive with regard to Ex.A.28. (a) Could Ramaiah who had lived with his wife, first defendant, for about forty years have excluded her from inheriting the property? As noticed supra, except directing first defendant to adopt son for performing obsequies and giving a sum of Rs.16,906.37, out of which first defendant had spent Rs.10,000/- for charities, all properties went to plaintiff. In normal circumstances, it is certainly abnormal. (b) If Ramaiah had so much love to P.W.1, in preference to D.W.1, two things remain unexplained. Admittedly EX.B.1 was executed on 05.05.1979. P.W.1 came to know about this. She went to Ramaiah's house at 8.00 a.m. on 06.05.1979. Others also accompanied her. By that time, Ex.B.1, Will was not registered. P.W.1 admittedly stayed in Ramaiah's house from 8.00 a.m. to 11.00 a.m. on 06.05.1979. EX.B.1 was registered between 9.00 am and 10.00 a.m. on 06.05.1979. There is no evidence to show that P. W.1 or her supporters objected to EX.B.1 being registered. If Ramaiah wanted to give something to P.W.1 and her children because of alleged illegal intimacy with P.W.1, in normal circumstances, Ramaiah would not have gone ahead with registration oi EX.B.1. EX.B.1 was registered between 9.00 am and 10.00 a.m. on 06.05.1979. There is no evidence to show that P. W.1 or her supporters objected to EX.B.1 being registered. If Ramaiah wanted to give something to P.W.1 and her children because of alleged illegal intimacy with P.W.1, in normal circumstances, Ramaiah would not have gone ahead with registration oi EX.B.1. Instead he would have ignored EX.B.1 and executed a fresh Will distributing his assets to both women if P.W.1's theory of illegal relationship is to be accepted. It was not done. The fact that EX.B.1 was registered in the presence of P.W.1 between 8.00 a.m. and 10.00 a.m. on 06.05.1979 at the house of Ramaiah itself would show that execution of Ex.A.1 (sic. A-28) is very suspicious. In that view of the matter, the desperate statement made by P.W.1 that Ramaiah also agreed to register EX.A.28 subsequently is unbelievable. (c) As already analysed, the evidence of P.W.1 to P.W.7 and P.W.9 leaves doubt with regard to time of execution of Ex.A.28, place of its drafting and the sequence of execution. It is not clear whether Ex.A.28 is drafted in the house of Ramaiah or in the house of Somisetti Seshaiah as deposed on oath by P.Ws.5 and 6. (d) When Ramaiah got EX.B.1 drafted by Khuddus, retired Sub-Registrar, curiously P.W.2 drafted Ex.A.28. At that time, Khuddus was very much present and why Khuddus declined to draft Ex.A.28 is not explained. When Ramaiah as alleged was very affectionate towards P. W.1 and her children (as deposed by P.W.8) and wanted to give her something, certainly he would have insisted an expert like Khuddus to draft Ex.A.28. No explanation is given for P.W.2 being brought to fair copy the draft prepared by Khuddus as alleged by plaintiff. Thus, the draft of the codicil, place of preparation of draft and execution are certainly suspicious, which remain unexplained to satisfy the conscience of the Court. (e) Yet another glaring aspect is the attitude of P.W.1 in not taking eldest daughter P.W.8 to the house of Ramaiah on 06.05.1979. It is normally expected that a women having unenviable position and status like P.W.1 would normally take assistance of eldest child when somebody is to be accosted with demand for some property. (e) Yet another glaring aspect is the attitude of P.W.1 in not taking eldest daughter P.W.8 to the house of Ramaiah on 06.05.1979. It is normally expected that a women having unenviable position and status like P.W.1 would normally take assistance of eldest child when somebody is to be accosted with demand for some property. There is also no explanation by P. W.1 as to why in the morning of 06.05.1979, she was accompanied by P.Ws.3, 6, 7 and 9 and others and why she did not take her daughter. (f) As rightly pointed out by learned counsel for first defendant, when first defendant went to Ramaiah's house at 8.00 a.m. on 06.05.1979, Amara Venkata Subbaiah and Sunisetti Venkata Subrahmanyam, atestors for Ex.B.1, were present. Plaintiff had also taken P.Ws.3, 6, 7 and 9 and others. When so many persons were present in the morning itself and Ramaiah also had agreed to make provision for plaintiff and her children, why execution of Ex.A.28 was postponed till evening? This remained a mystery. If Ramaiah having executed Ex.B.1 on 05.05.1979 bequeathing all her movable and immovable properties to first defendant, subsequently realized on seeing plaintiff on 06.05.1979 and wanted to make some provision for her and children, he, as a dying man, would not have postponed execution of Ex.A.28 till evening. (g) Apart from property of negligible value being given to legally wedded wife, even the disposition under Ex.A.28 appears to be abnormal. Ramaiah had no issues through his wife, D.W.1. In such circumstances, even if he had developed carnal intimacy with P.W.1, the said intimacy may have further blossomed after birth of children. In such a case, the love and affection of a man, who fathered children would be towards the children. P.W.1 had three daughters and one son. Curiously no provision is made for the children and entire property and cash was given to plaintiff. This circumstance has not been explained. As alleged in the plaint, plaintiff went to Ramaiah's residence on 06.05.1979, "to persuade Ramaiah to make adequate provision for the plaintiff and her children". She also deposed to the same effect in her evidence. Curiously, Ex.A.28 does not leave anything to children. Even in this regard, P.W.1 or her witnesses did not offer any explanation. As alleged in the plaint, plaintiff went to Ramaiah's residence on 06.05.1979, "to persuade Ramaiah to make adequate provision for the plaintiff and her children". She also deposed to the same effect in her evidence. Curiously, Ex.A.28 does not leave anything to children. Even in this regard, P.W.1 or her witnesses did not offer any explanation. (h) According to plaintiff, Ex.A.28 was executed between 5.30 p.m. and 6.00 p.m. As P.W.1, she refined a statement stating that it was executed at about 5.00 p.m. EX.B.1, dated 05.05.1979 does not contain a detail as to time and place of execution whereas EX.A.28 mentions that it is executed at Door No.3-12-84, Ward NO.3. In its preamble, EX.A.28 mentions that it is executed at 5.00 p.m. on 06.05.1979. The case of first defendant, however, is that on 06.05.1979 Ramaiah suddenly became unconscious due to deterioration of mental and physical condition and he was immediately moved to Madras by Taxi at 12.00 p.m., and that he was not in a sound and disposing state of mind. In her evidence, however, she admitted that at 12.00 or 1.00 p.m. on 06.05.1979, he was semi conscious that he started his last journey to Madras at about 10.00 or 10.30 p.m. She also asserted that her husband was seriously ill from 3.00 p.m. on 06.05.1979. Ramaiah ultimately died on 07.05.1979 at about 3.00 or 3.30 p.m. and his body was brought to Madras for last rites. The statement of D. W.1 that from 12 noon onwards on 06.05.1979, Ramaiah was seriously ill and that he was semi conscious was not seriously challenged nor the said statement is impeached. It is not in controversy that Ramaiah was staying at Door No.3-12-84, Ward No.3. The lone person residing with him till he left for Madras for the last time was the first defendant. According to her, though Ramaiah became sick at 12 Noon she had to wait for one Ranga Rao, to come from Ongole. Ranga Rao appears to be closely related to Ramaiah and first defendant, and it is he who performed last rites after death of Ramaiah. According to her, though Ramaiah became sick at 12 Noon she had to wait for one Ranga Rao, to come from Ongole. Ranga Rao appears to be closely related to Ramaiah and first defendant, and it is he who performed last rites after death of Ramaiah. Therefore, in all probability, Ramaiah became seriously ill between 12.00 noon and 1.00 p.m. and it is quite improbable he would have executed EX.A.28 at 5.00 p.m. When a person is on the death bed, any relative or close friend with sound mind would not insist that the sick person should write his last testament. The execution is itself therefore very suspicious. 56. It is now well settled that when a Will is challenged as also surrounded by suspicious circumstances, the proof of the Will is no more a dispute between propounder and challenger. The Court shall have to take a proactive role in piercing one after the other the events and circumstances at or about the time and during the execution of the Will as well as the contents of the Will, to arrive at a view that it is true testament of the dead person. Unless and until all circumstances and events which are suspicious or property explained and removed, the Will in spite of its legal proof, cannot be and shall not be treated as a last I testament of the executant. Applying these principles, this Court holds that plaintiff, propounder of Ex.A.28 has failed to properly prove its execution and also failed to explain and remove all suspicious circumstances surrounding its execution. Therefore, EX.A.28 cannvt be treated as a validly executed codicil and it does not in any manner alter dispositions made by Ramaiah in the Will EX.B.1. 57. In the result, for the above reasons, these appeals are allowed. The Judgment and decree in O.S.No.33 of 1981 are reversed and the said suit shall stand dismissed. The appellants in both the appeals shall be entitled to costs throughout.