JUDGMENT 1. THE Judgment of the Court was as follows: This appeal is against the judgment and decree dated 22nd July, 1994 passed by the learned Single Judge, dismissing Testamentary Suit No.4 of 1989, inter alia holding, that there were suspicious circumstances surrounding the execution of the Will and that the conscience of the Court was not satisfied that the Will dated 24th May, 1988 had been executed by the testator of his own free will and volition. 2. THE above appeal was heard by a Division Bench comprising A.K. Banerjee and T.K. Giri, JJ. THE Division Bench, however, could not agree and the appeal has accordingly been referred by the Hon'ble Chief Justice to me, as third Judge. While A.K. Banerjee, J. is of the view that the appeal should be allowed and probate of the Will, as prayed for, be granted, T.K. Giri, J. is of the view that the appeal should be dismissed. 3. THE issues before the learned single Judge were whether the Will dated 24th May, 1988 was genuine, whether the Will had duly been executed and attested; whether the testator had testamentary capacity at the time of execution of the Will; whether the Will had been obtained by fraud, undue influence or coercion as alleged in support of the caveat and the relief to which the parties were entitled. 4. THE learned single Judge found that the Will was not genuine, in the sense that it was not a Will made by a man of his own free will, having sound state of mind, as the testator had no testamentary capacity at the time of execution of the Will. On the basis of the evidence on record, the learned Single Judge concluded that the execution of the Will was surrounded by suspicious circumstances and the propounder had not been able to clear the conscience of the Court that the Will was genuine, and made by the testator of his free will, in sound disposing state of mind. 5. THE learned single Judge, however, held that the Will had been executed and attested in accordance with the provisions of section 63 of the Indian Succession Act. THE caveator had failed to discharge his onus of establishing that the Will had been obtained by fraud, undue influence or coercion. 6. 5. THE learned single Judge, however, held that the Will had been executed and attested in accordance with the provisions of section 63 of the Indian Succession Act. THE caveator had failed to discharge his onus of establishing that the Will had been obtained by fraud, undue influence or coercion. 6. A.K. Banerjee, J. is of the view that the appeal should be allowed since the learned single Judge has held that the execution of the Will has been proved, and the caveators have failed to discharge their onus of establishing that the Will was obtained by fraud, coercion or undue influence, and also since there is no evidence on record to show that the testator was not of sound mind at the time of execution of the Will. The properties of the testator included an undivided 1/3rd share in 18 cottahs of land at 39L Suren sarkar Road, in the heart of the city of Calcutta and 1/3rd share in a dwelling house at 39K Suren Sarkar Road, separated from 39L Suren Sarkar Road by a lane. With the rising demand for apartments in the city, the properties are a gold mine for developers and promoters. 7. THE testator died on 21st July, 1988. THE purported will as allegedly executed on 24th May, 1988, less than two months before the death of the testator and registered in the office of the Sub-Registrar, Sealdah on the same day. THE Sub-Registrar was apparently brought to the residence of the testator on commission. None of the witnesses who deposed on behalf of the propounder seem to know who called the sub-registrar to the testator's residence. 8. THE testator a bachelor has purportedly bequeathed his entire ancestral properties, including his ancestral residential dwelling house to the propounder, a servant, who worked at the testator's cowshed, to the exclusion of his own nephews and nieces including Somendra Prasad Sinha, the only surviving son of his deceased elder brother, Provat Kumar Sinha, who also resided in the same dwelling house with the members of his family. THE propounder has himself, in reply to Question No.135 to 137 and 140 admitted that he took part in the preparation of the will. THE propounder has himself, in reply to Question No.135 to 137 and 140 admitted that he took part in the preparation of the will. There also be doubt that a person can bequeath his properties to whosoever he likes, as observed by my esteemed Brother, A.K. Banerjee, J. I am also of the view that it is not impossible for a single man, neglected by his family, to bequeath his properties to an outsider, who might have taken care of him in his old age. 9. THE question is, whether the testator, executed the Will freely, voluntarily and intentionally, with full consciousness of the implications of the bequest, and bequeathed his properties, including his ancestral residential house to a servant, to the exclusion of his own nieces and nephews, with whom there is no evidence of any bitterness. 10. THE propounder may have sincerely served the testator and become very close to the testator. However, the bequest of entire ancestral properties including a residential house where the family members of the testator lived, to an outsider to the exclusion of the testator's own close blood relations, is both unnatural and improbable and more so, when an earlier Will purportedly executed in 1982 has been produced, in terms whereof the propounder had been given life interest in the property, but expressly debarred from transferring the same. On his own admission, the propounder took part in the preparation of the will in his favour. In H. Venkatachala Iyengar v. B. N. Thimmajamma and Ors. reported in AIR 1959 SC 443 , the Supreme Court held as follows: "19. However, there is one important feature which distinguishes wills 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. 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 state 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. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances..................................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 suspicious 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. In such cases the Court would naturally expect that all legitimate suspicious 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." 21................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." As held by the Supreme Court in H. Venkatachala Iyengar (supra), if suspicious circumstances surround the execution of a Will, if the testator's mind is found feeble and debilitated, or the will appears improbable, unnatural or unfair, the Court would have to satisfy its conscience that the propounder had been able to discharge his onus of removing all legitimate suspicions with regard to the Will. 11. IN his evidence before this Court, in reply to a question on the necessity of the testator to execute two powers of attorney in favour of the propounder in March 1988 (Question 173) the propounder deposed "He was in old age. He was invalid - he was infirm. He was in bed. He could not even rise from bed. He was not in a position to discharge his duties. That is why he entrusted me." 12. THE Will was, therefore, executed after the testator had become old, infirm, bed ridden and unable to move. THE concerned Sub-Registrar was commissioned to the residence of the testator, a man of frugal means, obviously since the testator was not in a position to go to the Office of the Sub-Registrar, for registration of the Will. As observed above, the propounder has in his evidence, admitted having taken part in the preparation of the will in his favour. The behaviour of the propounder at the time of and soon after the death of the testator reflects an avaricious and calculated move to get hold of the properties of the testator. The propounder claims to have been brought up by the testator, as a son. The behaviour of the propounder at the time of and soon after the death of the testator reflects an avaricious and calculated move to get hold of the properties of the testator. The propounder claims to have been brought up by the testator, as a son. However, instead of being grief stricken by the death of the testator, the propounder was trying to collect evidence, by means fair and foul. The propounder has, in reply to Question Nos.266 - 267 deposed that he obtained a certificate from a Municipal Councillor, certifying that the testator was a pauper, with income of less than Rs. 100/- per month, because there was a will in the propdunder's favour and the propounder thought that the certificate could be used in future. The propounder obviously, obtained the certificate by suppressing the assets and properties of the deceased testator. 13. IF the propounder could procure a false pauper certificate from a Councillor, by suppressing the properties and assets of the testator, so that the same could be used in future, the propounder could very well have machinated to bring other documents into existence. No reliance can be placed on the testimony of the propounder whose own statements before this Court show his lack of ethical values. 14. THE testator had to be cremated as a pauper, but photographs of the funeral were taken by different professional photographers at home and at the burning ghat, of the propounder performing the last rites including 'Mukhagni' to create evidence. Similarly, invitation cards for the 'Shradh' were printed in the name of the propounder. Moreover, there is, in the execution of the will, an uncanny involvement of a promoter-cum-civil contractor, Motilal Biswas and his business associate, Arun Kumar Chatterjee, a timber merchant and tenant under the testator, with whose wife, the testator had purportedly executed an agreement for sale of the Premises No.39L Suren Sarkar Road, Kolkata. 15. THE said Motilal Biswas attested the will as witness and also identified the testator before the concerned Sub-Registrar for the purpose of registration of the will. There are serious discrepancies in the evidence as to who brought the Sub-Registrar to the residence of the testator. THE will has apparently been drafted by Debabrata Moitra, an Advocate of Sealdah Court, who was introduced to the propounder by Motilal Biswas, shortly before execution of the purported will. There are serious discrepancies in the evidence as to who brought the Sub-Registrar to the residence of the testator. THE will has apparently been drafted by Debabrata Moitra, an Advocate of Sealdah Court, who was introduced to the propounder by Motilal Biswas, shortly before execution of the purported will. Motilal Biswas has in his oral evidence deposed that he introduced Debabrata Moitra to the testator in March/April, 1988 (Question No.111-114). 16. THE other witness to the purported will is Debashis Chatterjee, the son of the said tenant, Arun Kumar Chatterjee, who cannot be said to be a disinterested witness, when there was a purported sale agreement with his mother in respect of at least 6 cottahs (the testator's 1/3rd share of 18 cottahs) of prime land in the heart of the city of Kolkata. That apart Motilal Biswas, the promoter-cum-civil contractor has in his oral evidence deposed, in reply to Question Nos. 39 to 49 that Arun Kumar Chatterjee was a timber merchant from whom Motilal Biswas purchased timber. As supplier of timber to Motilal Biswas, Arun Kumar Chatterjee had financial, interest in the business ventures of Motilal Biswas. THE evidence on record indicates the possibility of a clandestine arrangement between Motilal Biswas and Arun Kumar Chatterjee for development of the land being the subject-matter of the sale agreement, over which Arun Kumar Chatterjee claimed 'thika tenancy' rights. The Powers of Attorney were purportedly executed by the testator on or about 8th March, 1988, about two and a half months before the alleged execution of the purported will, which purported to authorize the propounder to inter alia transfer Premises No.39L and 39K Suren Sarkar Road, Kolkata- 14 respectively. The purpoted Power of Attorney were prepared by another Advocate, known to Motilal Biswas and Arun Kumar Chatterjee, Abani Kanta Banerjee and signed by the same witnesses Motilal Biswas and Debashis Chatterjee. 17. ON the necessity to execute the aforesaid Powers of Attorney, the propounder deposed that as the testator was bed ridden and unable to discharge his duties, he entrusted the propounder. However, the question which irks this Court is, why would it be necessary to execute general Powers of Attorney authorizing a practically illiterate servant employed in the 'khatal' to sell the immovable properties of the testator on his behalf, during his lifetime? However, the question which irks this Court is, why would it be necessary to execute general Powers of Attorney authorizing a practically illiterate servant employed in the 'khatal' to sell the immovable properties of the testator on his behalf, during his lifetime? No prudent person, who is himself educated, would empower a virtually illiterate servant with sale of immovable properties. The testator was educated. His educational certificates are on record. It is doubtful whether any prudent educated parent would execute such Powers of Attorney in favour of an uneducated son with no experience in property dealing. Could the testator have executed the Powers of Attorney consciously, with full awareness of the implications and/or consequences thereof? The Court cannot rule out the strong possibility of the purported Powers of Attorney being the result of misplaced trust of an emotionally weak, mentally debilitated, bedridden man on a scheming promoter-cum-civil contractor eyeing the properties of the testator, in league with a tenant, who might have won or even bought the servant over. 18. MOTILAL Biswas knew Abani Kanta Banerjee who drafted the Powers of Attorney. He has in his evidence deposed that he was interested in purchasing property and had in that connection taken advice from Abani Kanta Banerjee (Question 66). He met Abani Kanta Banerjee 15 to 20 times (Question 89). He had introduced Abani Kanta Banerjee to the tenant Arun Kumar Chatterjee (Question 99). He was aware of the agreement for sale between the testator and Sm. Mira Chatterjee, the wife of Arun Kumar Chatterjee, discussions having taken place in his presence (Question No.46). The suspicion surrounding the execution of the purported will is strengthened by the suspicious Powers of Attorney. Three witnesses were examined on behalf of the propounder, the propounder himself, the said Motilal Biswas, and Debashis Moitra, the lawyer practising in the Sealdah Court, introduced to the testator by Motilal Biswas, who had drafted the Will. Somendra Prasad Sinha deposed on behalf of the caveators. 19. DEBABRATA Moitra, the lawyer, has in his evidence stated that he made over the draft will to the testator but the final will was not prepared by him. The testator was bed ridden and unable to move as per the evidence of the propounder himself. If the final will had not been prepared by DEBABRATA Moitra, there was obviously someone else, who got the final will typed out. The testator was bed ridden and unable to move as per the evidence of the propounder himself. If the final will had not been prepared by DEBABRATA Moitra, there was obviously someone else, who got the final will typed out. None of the witnesses appearing on behalf of the propounder have thrown any light on who got the purported will finalized. Since the propounder claims to have constantly been near the testator, who was unable to move, it may reasonably be presumed that the propounder played an active part in the preparation of the final will. 20. THERE are discrepancies in the evidence given by the three witnesses, who deposed on behalf of the propounder, with regard to the state of health of the testator. However, the evidence of the lawyer who on his own admission met the testator only three times, and the evidence of an occasional visitor, Motilal Biswas, cannot be better than the evidence of the propounder who was in service of the testator and thus in constant touch of the testator. Moreover, the fact that the sub-registrar had to be commissioned to the residence of the testator, a man of frugal means who was cremated as a pauper by obtaining a certificate from a Councillor, leads to the conclusion that the testator was not in a position to go to the office of the sub-registrar. 21. A.K. Banerjee, J. has observed that discrepancies in the evidence of the propounder and the other witnesses with regard to the state of health of the testator might raise suspicion with regard to the physical health of the testator, but not his mental health. 22. THERE may not be any cogent evidence of the testator being of unsound mind, but illness of the kind, deposed by the propounder would tend to make the mind feeble and debilitated. The purported will is unnatural and improbable. The Court would thus have to satisfy itself that all legitimate suspicions have completely been removed before the purported will can be accepted. Discrepancies in the 'evidence with regard to the physical health of the testator may not create suspicion of unsoundness of mind of the testator. However, glaring discrepancies in the evidence definitely create suspicion with regard to the credibility of the concerned witnesses. 23. Discrepancies in the 'evidence with regard to the physical health of the testator may not create suspicion of unsoundness of mind of the testator. However, glaring discrepancies in the evidence definitely create suspicion with regard to the credibility of the concerned witnesses. 23. THE discrepancies in the oral evidence of the different witnesses, who deposed before this Court, with regard to the state of health of the testator, is significant and raises serious doubts about the objectivity, and credibility of the witnesses who deposed on behalf of the propounder. 24. THE nephew of the testator as well as the propounder, a semi-literate servant, not aware of the consequences of an improbable and unnatural bequest, of a man in a debilitated and weak state of mind, has deposed that the testator was old, infirm, bed ridden and could not move around. The witnesses familiar with law, that is, the lawyer and the promoter- cum-civil contractor, who as per his own evidence in answer to Question Nos.82 to 100 and 103 to 107, was acquainted with many lawyers, same of whom were professionally engaged by him from time to time, deposed that the testator was not in bad health. In reply to Question No. 17, Motilal Biswas deposed that the testator was in more or less good state of health. In reply to Question No. 125, he said that prior to the death of the testator, the testator was fit enough to move about and to manage his own affairs. 25. THE evidence of Motilal Biswas is totally contrary to the evidence of the propounder and no reliance can be placed thereon. THE lawyer, Debabrata Moitra has deposed that the testator was in normal health, but weak. His evidence is also inconsistent with evidence of the propounder himself and, therefore, not reliable. 26. THE oral evidence given by the propounder is devious, motivated and dishonest. THE statement of the propounder in his evidence, in answer to Question Nos. 126 to 130 that he all along resided with the testator at 39 K. Suren Sarkar Road, Kolkata-14 with the members of his family is contrary to the Will itself, and the Powers of Attorney, wherein it is stated that the propounder was residing at 98A/H/9 Suren Sarkar Road, Kolkata-14. THE propounder's mother owned the said premises No.98A/H/9 Suren Sarkar Road, Kolkata-14, as admitted by the propounder in his answer to Question Nos. THE propounder's mother owned the said premises No.98A/H/9 Suren Sarkar Road, Kolkata-14, as admitted by the propounder in his answer to Question Nos. 122 and 123. The testator was a resident of 39K. Suren Sarkar Road, Kolkata-14. The evidence reveals that there was only one room under the occupation of the testator, two rooms under one tenant and one room under another tenant. It is impossible to believe that the propounder resided in the testator's house, in the same room as the testator, with his wife and children, leaving his own mother, who owned Premises No.98A/H/9 Suren Sarkar Road, Kolkata-14, alone. It appears to this Court that the propounder has deliberately made an incorrect assertion in his evidence with a view to impress the Court of his proximity to the testator. The propounder, however, exposed himself in cross- examination, when the propounder was asked the 'gotra' of the testator. In answer to Question Nos.297 to 299 the propounder said "I was working at the Khatal (cow shed). How could I know so much." 27. THE answers given by the propounder in his examination in chief evince a cunning attempt to make out a case of affinity with the testator to the exclusion of others. For example, in Question No.7 the propounder was only asked, if the testator was married, but in his reply to the question, he was quick to add "but he reared us". Similarly, in Question No. 12 the propounder was only asked who were the near relatives of the testator at the time of his death. THE propounder skirted the question to give the following answer "We used to live with him and Somendra Prasad Sinha used to live upstairs, but he did not look after Arun Kumar Sinha". 28. THE devious answers given by the propounder, when he was questioned whether he knew Suniti Ghosh, Chaya Dutta and Indira Sarkar, also cast serious doubts on his honesty and integrity as a witness and reveal a clever attempt to create the impression that the testator did not have much to do with Members. The propounder claimed that he only knew Suniti Ghosh by name. The propounder admitted that Chaya Dutta came of and on, but stated that he did not know her. The propounder deposed that Indira Sarkar came occasionally (Question Nos. 15 to 17). The propounder claimed that he only knew Suniti Ghosh by name. The propounder admitted that Chaya Dutta came of and on, but stated that he did not know her. The propounder deposed that Indira Sarkar came occasionally (Question Nos. 15 to 17). When asked whether Suniti Ghosh, Chaya Dutta and Indira Sarkar were related to the testator, the propounder replied that they were probably the distant relations and then said Sister's daughter or something like that. A sister's daughter is definitely not a distant relation. It is possible to believe that a person who claims to have stayed in the same room as the testator for years would not know the close relations of the testator, who admittedly, visited him, if not frequently, at least once in a while. 29. WHEN asked whether he knew Prabir Sarkar, the propounder replied that Prabir Sarkar was Arun Sinha's Sister's son. From the evidence of Soumendra Prasad Sinha it appears that Prabir Sarkar was Arun Sinha's sister's grand son and not his sister's son. Had the propounder actually stayed in the same room as the testator for years together, he would have known the close relations of the testator. 30. EVEN though the propounder has in his evidence claimed that he was reared by the testator and actually resided in the same room as the testator at 39 K. Suren Sarkar Road, Kolkata-14, since his marriage, the propounder has denied knowledge of any agreement of sale with Smt. Mira Chatterjee, occupier of Premises No.39L. Suren Sarkar Road, Kolkata-14 separated from premises No.39K, Suren Sarkar Road, Kolkata-14 by a lane. The propounder has in his evidence admitted that he knew Mira Chatterjee, but denied knowledge of whether Smt. Mira Chatterjee was the wife of Arun Chatterjee, a tenant under the testator. The propounder has admitted that Debashis Chatterjee one of the witnesses to the execution of the will is the son of Arun Chatterjee. In reply to the question of whether Mira Chatterjee was Debashis Chatterjee's mother, the propounder answered "may be, I do not know". 31. WHAT is most surprising is that the propounder, who claims to have been brought up by the testator and conferred the right to perform his last rites including the "Shradh" did not even bother to ascertain the 'gotra' of the testator. On being questioned the propounder gave himself out saying "I worked at the Khatal (cow shed). 31. WHAT is most surprising is that the propounder, who claims to have been brought up by the testator and conferred the right to perform his last rites including the "Shradh" did not even bother to ascertain the 'gotra' of the testator. On being questioned the propounder gave himself out saying "I worked at the Khatal (cow shed). How could I know so much." Even though the propounder claims to have performed the Shradh' he could neither name the priest not give his address. 32. IN forming the opinion that it would not be proper to deny the propounder the probate of the Will, A. K. Banerjee, J. took note of the fact that at least one of the nephews of the caveator, Kamal had given no objection to the probate of the Will, even though his interest would adversely be affected by grant of probate of the Will. It is not for this Court to speculate the reasons which prompted Kamal to give his 'No Objection'. The 'No Objection' of Kamal cannot bind the other natural heirs and/or co-sharers. The evidence on record reveals that Kamal had filed a partition suit which was jointly being contested by the testator along with his elder brother Provat Sinha, father of Somendra Prasad Sinha, who died less than a year before the testator. Kamal who had an independent share in the joint property, but not in possession thereof, might have considered it prudent to sacrifice a small share, in the expectation that induction of outsiders might facilitate partition and sale and enure to the benefit of Kamal. 33. ANALYZING the judgment in R. Venkatachala Iyengar (supra) A. K. Banerjee, J. held that the test to prove a will was satisfied, once there was proper compliance of sections 67 and 68 of the Evidence Act read with Section 63 of the Indian Succession Act. 34. HIS Lordship observed "The testator was an illiterate person. He was managing his own affairs. He had business. What more could be required to obtain the probate of the will is not known to me. Rather it shocks my conscience to refuse grant of probate which may amount to acting contrary to the pious wish of the testator. 34. HIS Lordship observed "The testator was an illiterate person. He was managing his own affairs. He had business. What more could be required to obtain the probate of the will is not known to me. Rather it shocks my conscience to refuse grant of probate which may amount to acting contrary to the pious wish of the testator. To come to such conclusion that the will must not be probated, despite compliance of sections 67 and 68 of the Evidence Act read with section 63 of the Indian Succession Act, sufficient evidence must come out to show that he was not in testamentary capacity. Despite my great endeavour, I could not find any such attempt made by the caveator nor was there any such evidence on record." T.K. Giri, J. held that the onus of proving a Will was on the propounder. The propounder had to show that the Will was executed by the testator of his own free will and volition and in sound disposition of mind. It was also necessary for the propounder to prove that the Will was signed by the testator in the presence of at least two witnesses, who attested the Will in his presence and in presence of each other. 35. T.K. Giri, J. held that when there were suspicious circumstances, the onus was on the propounder to clear the suspicion so that the Will could be accepted as genuine. 36. ON analysis of the evidence on record, T.K. Giri, J. noted discrepancies in the evidence of the propounder and found that his submission that he had been residing with the testator at 39 K. Suren Sarkar Road, Kolkata was incorrect. T. K. Giri, J also found a link between the two attesting witnesses and the lawyer, Debabrata Moitra, an advocate of Sealdah Court, who admittedly prepared the Will. 37. FROM the evidence on record, T.K. Girl, J. deduced that the possibility of Motilal and Debabrata being interested in the preparation of the Will in the name of a domestic help could not be ruled out. 38. 37. FROM the evidence on record, T.K. Girl, J. deduced that the possibility of Motilal and Debabrata being interested in the preparation of the Will in the name of a domestic help could not be ruled out. 38. I am in agreement with T.K. Giri, J. that the evidence of the propounder and the other witnesses, who deposed on his behalf clearly reveal that Arun Chatterjee, father of Debashis Chatterjee along with Motilal Biswas and Debabrata Moitra took active part in preparation of the Will in the name of the propounder who was only a domestic help. It is reiterated that on his own admission, the propounder took part in the preparation of the will. From the evidence of the propounder, it emerges that the testator was old, invalid, infirm and in bed. Mr. Chowdhury appearing on behalf of the respondents, rightly argued that in this appeal, the respondent could assail the findings that were in favour of the propounder, including the finding that the Will had duly been executed and attested in accordance with the provisions of the Indian Succession Act. On analysis of the evidence on record, I have no hesitation in arriving at the conclusion that the purported will was signed by the testator in the presence of the witnesses who put their signatures on the will in the presence of each other, after the testator. 39. WHEN evidence in support of the Will is disinterested, satisfactory and sufficient to prove sound and disposing state of the testator's mind and his signature as required by law, the Court would be justified in making a finding in favour of the propounder. In such a situation, the onus on the propounder could be taken to be discharged. 40. WHERE, however, the execution of the Will is surrounded by suspicious circumstances, as in this case, and the testator's mind is found feeble and debilitated, or the Will appears to be unnatural, improbable or unfair, or the propounder has himself taken a prominent part in the execution of the Will, which confers on him substantial benefits, the Court would satisfy its conscience that all legitimate suspicion were completely removed before the document was accepted as the last Will of the testator. In such circumstances, the initial onus would be on the propounder to remove legitimate doubts that might arise. In such circumstances, the initial onus would be on the propounder to remove legitimate doubts that might arise. There is an admission of the propounder having taken part in the preparation of the Will. There are serious discrepancies in the evidence of different witnesses. The propounder in his evidence stated that he was introduced by the testator to Motilal Biswas, with whom he later grew close. In my view, the propounder has not been able to remove all legitimate doubts. Mr. Chowdhury argued, and in my view rightly that the Court must, in deciding the solemn question of grant of probate, be fully satisfied that the Will had validly been executed by the testator who is no longer alive. No hard and fast or inflexible rules could be laid down for the appreciation of the evidence. 41. THE property that has purportedly been bequeathed to the propounder is ancestral property and not self-acquired property of the testator. Although as rightly submitted by Mr. De, bequest of property to an outsider in preference to family members is not in itself unnatural, one does not ordinarily bequeath ancestral property including the residential house to outsiders in preference to the blood related lineal descendents of those from whom the testator inherited the property. While self-acquired property is freely dealt with, in dealing with ancestral property, particularly residential, one tends to act in defence to the natural wishes of the ancestors that the property should devolve on their descendants. 42. THE Will was executed less than two months before the death of the testator, at a time when admittedly, as per the oral evidence of the propounder, the testator was infirm, bedridden and unable to move and was preceded by purported execution of suspicious Powers of Attorney. Mr. De pointed out that the power of attorney had not, in fact, been misused by the propounder. This was perhaps because a purported will was brought into existence and the testator died soon thereafter. Moreover, it is also not known whether the power of attorney had been utilized, but the utilization later suppressed in view of the subsequent developments. 43. NO disinterested witnesses have come forward to give evidence with regard to the relationship between the testator and "his blood relations, including the caveators who would ordinarily have inherited the property, had the testator died intestate. 43. NO disinterested witnesses have come forward to give evidence with regard to the relationship between the testator and "his blood relations, including the caveators who would ordinarily have inherited the property, had the testator died intestate. There is no evidence at all that the relationship between the testator and his blood relations including the caveators was acrimonious. 44. IT appears that there was an earlier Will in terms whereof the propounder had only been given life interest in the property. There is no evidence of anything that happened in the intervening period to make the testator change his mind all of a sudden, just before his death. There is evidence on record that the testator jointly with his elder brother, contested legal proceedings and gave instructions to laywers. A letter written by the testator to his own nephew, Kamal, who sought partition of joint properties, reflects his cordial relationship with other members of the family including the deceased elder brother. 45. SOMENDRA Prasad Sinha, one of the caveators, was cross-examined at length and several suggestions were put to him in an attempt to establish that his relationship with his uncle was not good. 46. MR. Jawahar Lal De, appearing on behalf of the appellant-propounder placed great emphasis on a few notes and bills, to suggest that the relationship between the testator and his nephew Somendra Prasad Sinha was so strained that the testator raised bills on the nephew for milk supplied by the testator to his nephew for consumption of the nephew's daughter. In my view, undue emphasis has been placed on a triviality from which nothing concrete emerges. The testator had a small business of supply of milk for which he had to maintain cows. The maintenance of cows involved expenses. 47. WHEN income is meager, even parents have little option but to ask earning sons and daughters to pay for their own expenses and for expenses incurred on their spouses and children. The evidence on record has established that the testator was not well off. Somendra Prasad Sinha has deposed that he offered to pay for the extra milk for his daughter, as being employed he could afford it. 48. The evidence on record has established that the testator was not well off. Somendra Prasad Sinha has deposed that he offered to pay for the extra milk for his daughter, as being employed he could afford it. 48. THE fact that the testator did not involve his independent, employed nephew in his business or kept separate notes and accounts of milk supplied by the testator to his nephew, does not in itself establish embittered relationship between the testator and his nephew to such an extent, that the nephew should be disinherited. If the relationship between the testator and his nephew had been that bitter, the nephew and the testator would perhaps not have had anything at all to do with each other. Milk could very well have been procured from the market. This Court cannot speculate the reasons for maintaining separate accounts of milk supplied to the nephew. The testator might simply have been meticulous in maintaining business accounts. Human idiosyncrasies are also difficult to gauge. Manifestation of ego and pride assume different forms. Separate notes and accounts could very well have been prompted by a sense of pride and self respect; lest people should think that the testator was meeting his own expenses or was running his entire business from out of funds provided by his nephew. 49. THE conduct of the propounder at the time and after the death of the testator also raises suspicion. THE testator was cremated as a pauper by obtaining exemption of the meager municipal charges that are ordinarily required for cremation of a dead body. In reply to Question No.82 the propounder replied that he was penniless at the time of the testator's death. At the same time, the propounder claims to have printed 150 invitation cards for the Shradh ceremony. THE propounder deposed that fifty guests were invited. THE only refreshments served at the Shradh ceremony were curd, parched rice (cheera) and a sweet. Yet, on the admission of the propounder a professional photographer was engaged to take photographs of the cremation at the crematorium and also of the dead body lying at home. This was obviously with a view to preserve evidence of the propounder performing "Mukhagni". Admittedly, the photographer who took photographs at the crematorium had to be paid. 50. Yet, on the admission of the propounder a professional photographer was engaged to take photographs of the cremation at the crematorium and also of the dead body lying at home. This was obviously with a view to preserve evidence of the propounder performing "Mukhagni". Admittedly, the photographer who took photographs at the crematorium had to be paid. 50. NEEDLESS to mention that it is rather unusual to take photographs of the funeral at the crematorium, and that too of a person who had to be cremated as a pauper by obtaining the certificate of a Councillor. The propounder could not produce photographs of his own mother's funeral. On the propounder's own admission the Councillor's certificate was obtained so that it could be used in future in connection with the purported Will. An overall assessment of the evidence leads to the conclusion that there were definite attempts on the part of the propounder himself and/or persons rallying around the propounder to create evidence of the propounder performing the "Mukhagni" and of the propounder performing the Shradh ceremony with a view to use the same at a subsequent point of time. 51. MUCH emphasis has been put on the fact that the testator had only 1/3rd share in the property and that the propounder would inherit only 1/3rd and would have to enter into an arrangement with the other co-owners. The l/3rd share included 1/3rd of 18 cottahs of land which means 6 cottahs of land in a prime locality in the heart of Kolkata. Furthermore, the induction of outsiders in the joint property could force some sort of an arrangement with the co-owners. As observed above, along with the propounder, an interested tenant, the members of his family and his business associate a promoter-cum-civil contractor took a prominent part in the execution of the Will. 52. FOR the reasons discussed above, I am unable to agree with my learned Brother, Banerjee, J. that the appeal should be allowed. I agree with my learned Brother, T.K. Giri, J. that the appeal should be dismissed. Appeal dismissed