Judgment :- Sengupta, J 1. This is an appeal against the judgment and order dated 14th August, 1985 granting probate of a testamentary instrument of one lady called Sirtarjee Thakurani, which is described to be the last will and testament. 2. The application for grant of probate was originally contested. By this instrument the lady has appointed the propounder as the sole executor as well as the sole beneficiary. This application was contested originally by the predecessor-in-interest and husband of Sulka Devi and minor daughter Kumari Parbati Devi of Late Shyam Narayan Singh. Hriday Narayan Singh and Shyam Narayan Singh both were brothers. On the death of said Shyam Narayan Singh, the appellants were substituted and they continued with the contest. 3. In order to prove the execution and attestation of the said will as well as the testamentary capacity, the propounder examined three witnesses which included himself and one of the attesting witnesses and also the draftsman of the will; while the defendants examined one of the defendants, viz., defendant No. 1 and other witnesses. 4. The learned Trial Judge while considering the pleading, has framed six issues, out of which, the learned Trial Judge dealt with issue Nos. 3 and 4 which concern execution, attestation as well as testamentary capacity. Issue Nos. 1 and 2 were hot pressed; so the learned Trial Judge did not give any answer and rightly so. The issue Nos. 5 and 6 are consequential in nature. 5. The learned Trial Judge on reading and analysis of the evidence came to the conclusion that the will was duly executed and attested and the same has been proved by the two witnesses, namely, P.W. 1 and 2. The learned Trial Judge found that the lady had testamentary capacity and she was having sound health and this fact has been testified by P.W. 1,2 and also P.W.3. The contradiction, as pointed put by the defendant at the time of the trial, was not accepted by the learned Trial Judge, nor did he find any suspicious circumstance surrounding execution, attestation of the will. Therefore, caveat was discharged, consequently probate was granted. 6. Mr. Animesh Kanti Ghoshal, learned Counsel, appearing for the appellant contends that the learned Trial Judge has overlooked the serious contradiction, not only of the individual witnesses in their evidence, but the witnesses amongst themselves have contradicted in various ways and means. Therefore, caveat was discharged, consequently probate was granted. 6. Mr. Animesh Kanti Ghoshal, learned Counsel, appearing for the appellant contends that the learned Trial Judge has overlooked the serious contradiction, not only of the individual witnesses in their evidence, but the witnesses amongst themselves have contradicted in various ways and means. He submits that it will appear from the evidence of P.W.2, being the only attesting witness, that contents of the will was not explained and read over before she put her thumbimpression. He further contends that admittedly the lady was a Hindi knowing person and why the language of the will was in Bengali, was not explained. It is also an admitted position again that the lady could sign, but why she put thumb impression, that too on the top of the document was also not explained. He urges that there has been no explanation as to the existence of the draft. The alleged draftsman of the will has lied himself when he says that he used to look after the litigation and documentation of the said lady; whereas P.W.3 said that he used to look after everything and he did not know this gentleman. This leads to conclusion that a stranger has come forward to draw the document and this itself is suspicious circumstance and it is also the testimony of the P.W.3 and other witnesses that other persons who signed the document as attesting witness were not known to the propounder. Therefore, it shows that they are also strangers. Mbreover, he says that why the appellant was excluded and the propounder has got all the benefits; is also not explained with acceptable evidence. It was not known to any of the heirs or members of the family why the lady had executed the will. He further submits that the evidence as a whole, would definitely go to show that there exists a strong suspicious circumstance. Citing three decisions of the Supreme Court, he says what the Court should do before a testamentary instrument is accepted as being a genuine and valid one. 7. In paragraph 18 of the decision of the Supreme Court in case of H. Venkatachala Iyengar v. B. N. Thimmajamma, reported in AIR 1959 SC 443 it is explained what the Court should do. 7. In paragraph 18 of the decision of the Supreme Court in case of H. Venkatachala Iyengar v. B. N. Thimmajamma, reported in AIR 1959 SC 443 it is explained what the Court should do. In the said paragraph the Supreme Court laid down the guidelines in the following manner: "Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained ?" 8. At the same time, in the same paragraph the Supreme Court has said as follows: "It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters." 9. Following the aforesaid decision, Supreme Court in paragraph 5 of the case of Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr., reported in AIR 1962 SC 567 says so : "Even if the onus of proving the will was on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to discharge the onus. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine........Even where there were no such pleas, but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court." 10. Where, however, there were suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine........Even where there were no such pleas, but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court." 10. Taking note of the aforesaid two judgements, in the case of Kalyan Singh v. Smt. Chhoti and Ors., reported in AIR 1990 SC 396 , Justice Shetty speaking for the Bench in paragraph 20 has summarised what the Court should do in the manner as follows : 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." 11. While carefully reading the aforesaid principle of law and following the same, this Court is to scrutinise as to whether the aforesaid tests have been satisfied while occupying the instrument being genuine in this matter or not. 12. Normally, appreciation of evidence by the first Court, is not interfered by the appellate Court unless such appreciation of evidence appears to be absurd or there has been serious challenge to such exercise. This proposition of law has been so firmly settled that it does not require any reiteration by citing any authority. Nonetheless, when it is urged that there has been a contradiction to disbelieve the entire testimony, we, therefore, take us ourselves through the evidence in order to find out whether the conclusion arrived at by the learned Trial Judge is correct or not. 13. Nonetheless, when it is urged that there has been a contradiction to disbelieve the entire testimony, we, therefore, take us ourselves through the evidence in order to find out whether the conclusion arrived at by the learned Trial Judge is correct or not. 13. P.W.1 is the scribe and/or draftsman. He has said that upon instruction he drafted the will then he read out and explained the contents of the same to the lady. He deposed that after having obtained approval he finalised the draft. After having finalised the draft, he put his signature as the draftsman of the will. He was cross-examined. Unfortunately, there has been no cross-examination on the factum of preparation of draft or visiting the lady personally or the factum of reading over the contents of the draft; nor there has been any cross-examination, or suggestion either that he did not put his signature on the document as a scribe. 14. Mr. Ghoshal wants to dent his testimony contending that testimony of P.W. 1 should be disbelieved because he failed to explain the whereabouts of the draft. He admitted that the P.W. 1 was not present at the time of execution and attestation of the will and as such his testimony should not be relied upon. In cross-examination he stated that he never looked after any litigation of the lady. 15. According to us, each and every contradiction of any witness in his testimony does not render his entire evidence unbelievable or unacceptable. We are of the opinion that those contradictions are germane, which really affect the fact in issue or the relevant fact. Here his testimony is regarding preparation of the draft, writing of the draft and getting approval and finalisation of the draft. When there is no cross-examination on those subjects nor suggestions, we have no option but to accept this evidence to be that of a truthful witness. The impact of non-cross-examination as well as failure to put suggestion on those facts, is very fatal and such fatality is literally discussed in an old case of this Court reported in AIR 1961 Cal. 359 (A.E.G. Carapietv. A. Y. Derderian). Justice P.B Mukharji, as His Lordship then was, speaking for the Bench has said : "The law is clear on the subject. 359 (A.E.G. Carapietv. A. Y. Derderian). Justice P.B Mukharji, as His Lordship then was, speaking for the Bench has said : "The law is clear on the subject. Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all. It is wrong to think that this is merely a technical rule of evidence. It is a rule of essential justice. It serves to prevent surprise at trial and miscarriage of justice, because it gives notice to the other side of the actual case that is going to be made when the turn of the party on whose behalf the cross- examination is being made comes to give and lead evidence by producing witnesses. It has been stated on high authority of the House of Lords that this much a Counsel is bound to do when cross-examining that he must put to each of his opponents witnesses in turn, so much of his own case as concerns that particular witness or in which that witness had any share. If he asks no question with regard to this, then he must be taken to accept the plaintiffs account in its entirety. Such failure leads to miscarriage of justice, first by springing surprise upon the party when he has finished the evidence of his witnesses and when he has no further chance to meet the new case made which was never put and secondly, because such subsequent testimony has no chance of being tested and corroborated." 16. So we hold that the lady was having sound mind even before execution of the document as she had given instruction to P.W. 1 to prepare draft, he did it and read over and explained. 17. Now the evidence of P.W.3, who was one of the attesting witnesses, has to be examined. He has said in his evidence that in his presence the testatrix put her thumb impression on the top of the document. He put the name in his hand thereafter and he put his signature as an attesting witness and he also said that when he put his signature the lady was present. The other witnesses also put their signatures, after the lady put her thumb impression. He put the name in his hand thereafter and he put his signature as an attesting witness and he also said that when he put his signature the lady was present. The other witnesses also put their signatures, after the lady put her thumb impression. He has also testified that she was absolutely in sound health, befitting to her age at the relevant point of time. We made every attempt to find in the cross-examination, whether anything has been done to dent the examination-in-chief. Unfortunately, no attempt was made in cross-examination on the question of putting signature by the lady or by any of the witnesses. However, Mr. Ghoshal points out that reading over and explaining part was done after the lady put her thumb impression. According to us, without understanding the document before hand, the lady was asked to sign. 18. We are of the view that this cannot be a suspicious circumstance, as it is proved as observed by us that the final draft was read over and explained by P.W. 1 and even after putting signature or thumb impression, and then the document being read over and explained, if the document is not discarded nor destroyed, then it shall be presumed that the testator or testatrix has accepted the document and the contents thereof, as per her wishes and instruction. 19. The lady despite her having sound health put thumb impression, cannot be a factor of doubt in anyones mind. There are varieties of reasons for which signature might not be put. However, law in no way says that signature must be put. If it is so, then no illiterate person can execute any document. In this connection, we just put the requirements of law, namely, Section 63 of the Indian Succession Act, 1925. Section 63 of the Indian Succession Act, reads thus: "Section 63. Execution of unprivilged Wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :-(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 20. On a plain reading of the said provision of Evidence Act it appears that it is not legally mandatory that signature must be put in and the same must be proved; rather mark is good enough. Even the thumb impression is not required to be put in. Any special mark of the choice of the executor or executrix is good enough. Only thing required under law is that any mark is given by the testator or testatrix to acknowledge a document to be his/her own last testament or will. Hence, this ground cannot be a factor to conclude that there exists any suspicious circumstance for which Court will look into the matter otherwise. 21. The Supreme Court in Kalyan Singhs case (supra), gave guidance to what extent the Court can look into. That apart, in Purnima Devis case (supra) it is said that if the propounder takes the benefit of the will, then it is a prima facie proof that there is suspicious circumstance. But if we read the document by ourselves, we find, so also found by the learned Trial Judge that the lady has given reasons as to why predecessor -in- interest of the present appellant has been excluded. She has given reasons that earlier some properties were gifted to the husband of the appellant but her husband being the original caveator has frittered away property with his bad habits. Whether it is true or not, hardly matters. She has given reasons that earlier some properties were gifted to the husband of the appellant but her husband being the original caveator has frittered away property with his bad habits. Whether it is true or not, hardly matters. It matters what the perception of the testatrix is, and perception may be based on wrong belief still then it prevails. She has decided to dispose of the property in the way she has written in the document. 22. We are, therefore, unable to accept the submission of Mr. Ghoshal that there is any suspicious circumstance surrounding attestation and execution of the will. Significantly, though alleged and suggestion was given that the lady was so unwell to execute any document, no evidence was given except oral evidence by the appellant No.1. In her evidence she promised the Court that the Doctor who treated the testatrix, would be examined to testify the testamentary incapacity of the testatrix. Unfortunately that Doctor was not brought, either issuing of summons or bringing by the appellant by herself. On the other hand, we find that Doctor has signed the document as one of the attesting witnesses. It is not necessary to examine that Doctor when ordinary prudent men, namely, attesting witnesses, P.W.1 and the P.W.2 testified the soundness of health of the testatrix special evidence of the Doctor is not required. 23. We, accordingly, do not find any illegality and infirmity in the well written, reasoned and compact judgment of the learned Trial Judge and we have no hesitation to accept the same. Hence, the appeal fails and dismissed without any order as to costs. 24. Matter will appear on Monday. 25. After the judgment is dictated, Mr. Jiban Ratan Chatterjee submits that he will bring her client on Monday next (29/3/2010). Let his client remain present on that date. Let lower Court records along with the original will with sealed cover be sent down forthwith.