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2012 DIGILAW 2659 (ALL)

Sukhdeo Prasad v. Prayag Nath

2012-11-09

PRAKASH KRISHNA

body2012
Prakash Krishna, J.;— This appeal under section 299 of Succession Act has been filed by the petitioners of Probate Case No.42 of 1978 in the matter of Will of late Sri Rishikesh son of Chhotu Ram Chaube. The petition for grant of Probate was filed by the appellants herein under section 276 of the Indian Succession Act on the allegations that Sri Rishikesh Chaube died on 17th of July, 1973 at 6/2 Nand Lal Mitra Lane, Sallkia Howara, leaving his last Will marked with letter 'A', duly executed by him in the presence of the witnesses named in the Will who had attested the execution of the said Will. No executor of the said Will was appointed and the petitioners/appellants claimed administration of the property and the credits of the said Sri Rishikesh as his residuary legatee. In the petition the respondents herein were arrayed as opposite parties, contested the petition by denying the allegations of the petition on the ground that the deceased left no such Will and the respondents being brothers of the deceased Rishi Ram Chaube are the legal heirs and are entitled to succeed the property of the deceased. It was stated that Rishi Ram Chaube had only one daughter Godawari who was married to one Hardev. Godawari died in the year 1947 and thereafter, the widower Hardev remarried and from this wedlock the petitioners were born. The Will in question is forged and fabricated document. The Will in question does not bear signature of the deceased Rishikesh. It was further stated that the correct name of the deceased was Rishi Ram and not Rishikesh. The due execution of the Will was denied. The parties led evidence oral and documentary in support of their respective cases. The petitioners examined Sukhdev as PW/1 who stated that the Will in question was written on 15.1.1973. It was typed out by one Mathura Prasad Dongra and the Will was attested by Gokul Pandey, Baldev Prasad and Amar Nath. Sri Mathura Prasad, the scribe of the Will was examined as PW/2 who admitted that he typed out the Will about 3-4 years ago and he had put his signatures as scribe. Baldev Prasad PW/3, Amar Nath PW/4, Sukhdev Prasad PW/5 were examined to prove the execution and attestation of the Will being witnesses of the Will in question. Sri Mathura Prasad, the scribe of the Will was examined as PW/2 who admitted that he typed out the Will about 3-4 years ago and he had put his signatures as scribe. Baldev Prasad PW/3, Amar Nath PW/4, Sukhdev Prasad PW/5 were examined to prove the execution and attestation of the Will being witnesses of the Will in question. Besides the above oral testimonies, copies of plaint of suit No.42 of 1927, notice given by them and two letters alleged to have been written by the testator were also filed and referred during the course of argument. The copy of the said plaint was filed with a view to show that there had been a dispute and difference in between the testator and other brothers in respect of the joint properties and the said suit was filed by the testator for partition of his 1/5th share therein against his brothers. The respondents examined Govind Lal as DW/1 who disputed the signatures of Rishi Ram on the Will in question. Garun Chaube was examined as DW/2 who stated that the testator had lots of Yajmans at Mathura and he was renowned Pandit (Priest) at Mathura. The last rite of the deceased testator was performed by his nephew Jai Shanker at Kolkata. Dauji was examined as DW/3, a relative of the deceased. Kashinath was examined as DW/4 who stated that it is wrong to say that Hardev was doing pairavi on behalf of Rishi Ram in a case which was going on at Agra. Hardev never realized any rent from the tenants of the deceased testator. Rishi Ram was in occupation of the properties at Mathura through his tenants and house tax and water tax in respect of the properties at Mathura and Kolkata were being paid by the testator. He further deposed that Rishi Ram had executed a gift deed in his favour which contains the admitted signatures of Rishi Ram. He also proved one letter handed over to him by Govind Lal marked as Exhibit-A1. For the sake of convenience, following three issues which were framed by the Court below are reproduced below:- 1. Whether deceased Rishi Ram Chaubey alias Rishi Kesh Chaubey validly executed a Will dated 15-1-73 in favour of the applicants? 2. To what relief, if any, are the applicants entitled? He was also pleased to frame an additional issue on 3.11.1979. 3. Whether deceased Rishi Ram Chaubey alias Rishi Kesh Chaubey validly executed a Will dated 15-1-73 in favour of the applicants? 2. To what relief, if any, are the applicants entitled? He was also pleased to frame an additional issue on 3.11.1979. 3. Whether the suit has been undervalued and whether the court fee paid is insufficient? The Court below by its judgment and decree dated 7th October, 1982 dismissed the petition for grant of probate of the Will in question in view of the findings returned by it under issue no.1 holding that the Will is not proved. There appears to be some confusion with regard to the actual name of daughter of Rishikesh. In the written statement the respondents have given her name as Godawari, while PW/1 in statement has given her name as Shanti. However, the discrepancy in the names is not material and it does not touch the merit of the case. Heard Sri K.N. Tripathi, senior advocate, along with Sri Neeraj Tripathi, learned counsel for the appellant and Sri Neeraj Agrawal, learned counsel for the respondents. The only point involved in the present appeal is--Whether the petitioners have been able to explain the suspicious circumstances surrounding the execution of the Will dated 15th January, 1973 set up by them. The Court below found that the following suspicious circumstances surrounding the execution of the Will have not been explained and they cast doubt about execution and genuineness of the Will in question. Those circumstances may be stated briefly: 1. The petitioners could not show how they came in possession of the Will in question. 2. The petition for grant of probate was filed with considerable delay. The alleged Will is dated 15th January, 1973 and the petition giving rise to the present appeal was filed on 19th of May, 1978 i.e. after about five years. 3. The Will itself shows that the spacing between the lines in the Will is not equal. Towards the end of the document in question there is less space between the lines. 4. The petitioners have failed to take steps in the light of the Will immediately after the death of Rishi Ram who died on 17th of July, 1973. 5. There is no evidence regarding the payment of municipal taxes etc. after the death of testator by the petitioners in respect of any of the properties left by the deceased. 4. The petitioners have failed to take steps in the light of the Will immediately after the death of Rishi Ram who died on 17th of July, 1973. 5. There is no evidence regarding the payment of municipal taxes etc. after the death of testator by the petitioners in respect of any of the properties left by the deceased. Sri K.N. Tripathi, learned senior counsel for the appellants, submitted that the aforestated circumstances cannot be considered as suspicious circumstances surrounding the execution of the Will and even if it is so, the circumstances have been properly explained by the appellants, the propounders to prove the Will in question. The Court was taken through the oral depositions of the witnesses of the Will in question and two letters of the testator to show that the relation of the testator with his brothers was not cordial as there had been a previous litigation between them in the shape of partition suit referred to above. The learned counsel further submitted that notwithstanding the death of Godawari who was married to Hardev, the testator had good relation with Hardev Prasad. Hardev Prasad had extended his helping hands to the testator but unfortunately he died during the life time of the testator. In consideration of that love and affection with Hardev Prasad, it is not unnatural if the testator had decided to bequeath all his properties to the exclusion of his brothers, to the propounder of the Will in question. Much emphasis was laid on the letter dated 4.1.1973 alleged to have been written by the testator addressed to one Ghanshyam Lal and Sukhdev (appellant no.1) which clearly discloses the mind of testator before execution of the Will in question. The Will in question was executed thereafter, after about 10-11 days. In contra, the learned counsel for the respondents submitted that the Will in dispute on the face of it is a forged and fabricated document. It is a small document written on one page. The spacing between the sentences towards the bottom of the document clearly depicts that it was a blank signed paper on which the contents of Will were typed out subsequently. The attesting witnesses of the alleged Will are own persons of the petitioners. It was further submitted that the Will was not disclosed shortly after the death of the testator. The spacing between the sentences towards the bottom of the document clearly depicts that it was a blank signed paper on which the contents of Will were typed out subsequently. The attesting witnesses of the alleged Will are own persons of the petitioners. It was further submitted that the Will was not disclosed shortly after the death of the testator. The petitioners herein had served a legal notice dated 13th of August, 1973 (paper no.73Ka) staking their claim over the properties left by the deceased. In reply, vide their letter dated 20th August, 1973 the respondents denied the execution or existence of any such Will alleged to have been left by Rishi Ram. It was stated that Hardev sometimes used to do pairavi of the cases of Rishikesh and if petitioners with mala fide intention have prepared a Will on blank signed paper of Rishi Ram, the said Will is of no avail to them. It was further submitted that after the death of Rishi Ram or Rishikesh the respondents had taken possession of the properties left by the deceased by way of succession as owners and are paying the municipal tax etc. In short, the claim of the petitioners on the basis of the alleged Will was denied specifically. The petitioners were further asked through the said reply to show them the Will, if any, alleged to have been executed by Rishikesh so that the real state of affair could be ascertained. This is paper No.78Ka. Through another legal notice dated 5th of September, 1973, paper no.79Ka a reminder was given to the petitioners asking them to produce a certified copy of the Will allegedly executed by Rishi Ram but the petitioners did not pay any heed. The submission is that the findings recorded by the Court below are well considered findings and are based on correct appreciation of the evidence on record and needs no interference in the present appeal. Considered the respective submissions of the learned counsel for the parties and perused the record. Much emphasis was laid by the learned counsel for the appellant that even the Court below found that the Will in question contains the signature of the testator. It was submitted that the execution of the Will stands proved and its attestation has been proved by calling all the three attesting witnesses and the scribe as well. Much emphasis was laid by the learned counsel for the appellant that even the Court below found that the Will in question contains the signature of the testator. It was submitted that the execution of the Will stands proved and its attestation has been proved by calling all the three attesting witnesses and the scribe as well. This being so, the learned counsel for the appellants submitted that the Court below was not justified in dismissing the petition for probate on the ground that the execution and attestation of the Will is surrounded by suspicious circumstances. The Will denotes a testamentary document. It means a legal document of the intentions of the testator with respect to his properties which he desires to be carried into effect after his death. It is in its own nature ambulatory and revocable during his life. A testator by his Will may make any disposal of his properties subject to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. A will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution. A Will in normal connotation takes the effect after the demise of the testator. H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others: AIR 1959 SC 443 is the leading case on the subject. The Apex Court has pointed out that there is one important feature which distinguishes the Will from other documents. Unlike the 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. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the pro-pounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Further, apart from the suspicious circumstances, 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 surrounding the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. Further, it has been laid down that it is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. Further, it has been laid down that it is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson (1) " where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth ". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect. In view of the legal proposition as delineated above, the argument of the appellant that the execution and the attestation of the Will in question having been proved, the probate of the Will should have been granted needs consideration. Unless the suspicious circumstances are duly explained to the satisfaction of the Court, the appellants cannot succeed on the fact that the document in question (Will) bears the signature of the testator and the attestation is proved. The contention of the appellant is that the testator died on 17th of July, 1973 and the factum of the Will in question was disclosed by the petitioners through the legal notice dated 13th of August, 1973 vide paper no.73 Ka. There appears to be no dispute between the parties with regard to the said paper no.73 Ka. The contention of the appellant is that the testator died on 17th of July, 1973 and the factum of the Will in question was disclosed by the petitioners through the legal notice dated 13th of August, 1973 vide paper no.73 Ka. There appears to be no dispute between the parties with regard to the said paper no.73 Ka. This is one thing to say that the existence of the Will was disclosed through the notice dated 13th of August, 1973 but the fact remains that the copy of the Will in question was not made available to the respondents herein in spite of their request through the notice dated 20.8.1973 given in reply and reminder/notice dated 5th September, 1973. There is no plausible explanation for not providing a copy of the Will or showing it to the respondents on demand; what was the hitch or reason -- no explanation is there. The matter was not pursued any further by the petitioners. It was not followed by any overt act by them. They kept quiet for a considerable period of time of about five years and filed the present petition on 19th of May, 1978. The failure to show the contents of the Will in dispute weighs heavily against the appellants and gives rise to a presumption that no such Will dated 15.1.1973 was in existence even on the date of their notice dated 13th August, 1973. Had it been in existence there would have been no difficulty in providing its copy to the respondents on their asking. It is an acknowledged legal position that the existence of the Will should be disclosed at the earliest immediately after the death of the testator, specially to such persons who would otherwise inherit the properties of the deceased. There being no satisfactory explanation, the Court below was justified in drawing an adverse inference against the execution and attestation of the Will in question by the testator. The argument of the appellant's counsel that the existence of the Will was disclosed shortly after the death of the testator on the facts of the present case lacks merit and is hereby rejected. Perused a copy of the Will dated 15.1.1973 which is in dispute. The said Will is a simple Will and it contains only four clauses. The argument of the appellant's counsel that the existence of the Will was disclosed shortly after the death of the testator on the facts of the present case lacks merit and is hereby rejected. Perused a copy of the Will dated 15.1.1973 which is in dispute. The said Will is a simple Will and it contains only four clauses. It recites that the testator had earlier executed a Will in favour of Hardev Prasad who has unfortunately expired and this necessitated him to execute another Will as the circumstances after execution of the first Will have changed causing the necessity to execute a fresh Will. Even from naked eyes it can be seen that the spacing in between the last five lines towards the bottom of the document is less and they are closely typed in comparison to the rest of lines. Consciously, the matter was squeezed on single page. It is indicative of the fact that the Will was manufactured on a single blank but signed paper. When it was found that the matter is not going to be completed on one page, the spacing between the lines were reduced. Mathura Prasad PW/2, the scribe of the Will in question, typist by profession, was put to cross examination on the above aspect of the case. He admits that the spacings in between few lines towards the bottom of the Will is less. He tried to explain it by saying that the person who had called him and taken to the residence of Rishikesh had instructed that the entire draft matter should be typed out on only one side of this paper. Consequently, the distance between the lines towards the bottom of the document was reduced. Although he denied the suggestion that the document was already containing signature but the circumstances do indicate that no reliance can be placed on the said denial. There appears to be no reason or problem for getting the rest of the matter typed out on the next page if the executor of the alleged Will had been present there. An inference can safely be drawn that the petitioners had only one signed blank paper in their possession. Attempt was made to type out the entire Will on the said signed page purporting to be the Will of Rishikesh. An inference can safely be drawn that the petitioners had only one signed blank paper in their possession. Attempt was made to type out the entire Will on the said signed page purporting to be the Will of Rishikesh. The another important aspect is that the deceased was admittedly a Pandit and was famous for delivering religious discourses. He belonged to Braj area. In the Will in question, there is no flavour or touch of Braj dialect at all. Rather, the words of Urdu such as Faut (death) finds mention therein. The tenor of the Will shows that it was got prepared by a person having legal background. The above factum weighs heavily against the appellants and they have not been able to explain the same. On a meaningful reading of the Will in question from all angles, it would show that it is written in ordinary Hindi dialect as is spoken in other parts of the Hindi speaking area which is different from Braj dialect generally spoken in Braj area comprising of Mathura, Vrindavan etc.. Hindi language even in Hindi speaking region has touch of local dialect. It is spoken and written in State of Bihar differently known as Maithili dialect. In Awadh region it is known as Avadhi which can be found in the work of famous Saint and Poet Goswami Tulsidas. In eastern part of U.P. Hindi is spoken with Purvi dialect. It is a case of the petitioners that the Will was dictated by the testator himself, who has been called as Chaube Ji by the scribe of the Will. From the two letters produced by the appellants, it is evident that the testator was in habit of writing Hindi in Braj dialect which is not so in the case of the Will in question, allegedly dictated by him. The language dialect of a person has always its effect and depict on his writings. But the Will in question is beyond the dialect of its testator. These circumstances weighs heavily against the appellants. Although, in the disputed Will it finds mention that the testator has been separated from his brothers since a long time and the testator is separate in mess and the properties from his brothers but no explanation has been given to disinherit them. These circumstances weighs heavily against the appellants. Although, in the disputed Will it finds mention that the testator has been separated from his brothers since a long time and the testator is separate in mess and the properties from his brothers but no explanation has been given to disinherit them. At this stage, the appellant's counsel tried to urge that the relations of the testator with his brothers were not cordial as is apparent from the copy of the plaint of partition suit no.42 of 1927. The said suit was filed for partition more than forty years ago. It has come on record that the testator had gifted certain property vide gift deed paper no.84 Ka to one of his brothers, Kashinath, the respondent no.3 herein. The execution of the said gift deed is not in issue between the parties and it belies the theory of bad relations, if any, of the testator with his brothers. On the contrary, an inference can reasonably be drawn that all the brothers had cordial relation among them and apparently there was absolutely no circumstance to disinherit them. Interestingly, the appellant no.1/PW/1 has not even whispered in his deposition that the relations of the testator were bad in any manner with his brothers. In the disputed Will it is mentioned that earlier a Will was executed by the testator in favour of Shri Hardev Prasad without giving its any detail. However, the Will, if any, in favour of Hardev Prasad has not seen the light of the day and the respondents have denied the existence of any such Will by the testator. The other circumstances which weigh heavily against the execution of the Will is that indisputably the deceased had permanently shifted to Kolkata and was residing there for most of the time. Occasionally, he used to come Mathura to meet his family members and look after his properties. In normal circumstances, the Will, if any, should have been executed at the ordinary place of residence i.e. at Kolkata and not at Mathura. Much was said by the appellants that the testator had every intention to execute a Will and it is apparent from his letter dated 4th of January, 1973 vide paper no.23A/2. The said letter was written by the testator about 11 days before the execution of the Will in question and seven months prior to his death. Much was said by the appellants that the testator had every intention to execute a Will and it is apparent from his letter dated 4th of January, 1973 vide paper no.23A/2. The said letter was written by the testator about 11 days before the execution of the Will in question and seven months prior to his death. The said letter is addressed to one Ghanshyam Lal and Sukhdev. Sukhdev is appellant no.1 herein. At its bottom, it has been written that he would come to Mathura soon and would do and serve him. At the bottom it is written that the said letter may be perused by Sukhdev. Thereafter, allegedly the testator visited Mathura and executed the Will on 15th of January, 1973. The submission of the appellant is that reading of the letter along with the Will in question dispels all the suspicious circumstances surrounding the execution of the Will. In this connection the statement of Appellant No.1 as PW/1 is relevant. He has stated that in the month of January, 1973 Rishikesh came to Mathura and fell ill for 10-12 days and thereafter he went to Kolkata. The letter dated 4.1.1973 must have taken 3-4 days to reach the destination. The testator fell ill for 10 to 12 days, therefore, the execution of the Will on 15.1.1973 is not free from doubt. The execution of the Will in question on 15th of January, 1973 is itself doubtful. The said argument of the learned counsel for the respondents cannot be said to be wholly irrelevant and definitely casts a doubt about the due execution of the Will in question. The statement of the PW/1 shows that he took active part in the alleged execution of the Will in question. He called the scribe of the Will as well as the witnesses. The entire property has been bequeathed through the alleged Will to the appellants, the two brothers, to the exclusion of the natural heirs. Heavy burden lay on them to prove the due execution and attestation of the Will which they have failed to discharge. The oral testimony of the appellant's witnesses is discrepant. From the statement of the PW/1 it is clear that Gokul Pandit, one of the attesting witnesses, was first to reach at the residence of the testator. Mathura Prasad and Gokul Pandey came after about one hour. The oral testimony of the appellant's witnesses is discrepant. From the statement of the PW/1 it is clear that Gokul Pandit, one of the attesting witnesses, was first to reach at the residence of the testator. Mathura Prasad and Gokul Pandey came after about one hour. The statement of scribe PW/2 shows the presence of only Rishikesh at the time of the dictation of the Will and of the appellant no.1. The statement of PW/3 Baldev Prasad shows that he was last to visit the residence of Rishikesh. When he reached, Rishikesh Chaube, Gokul Pandy and Amarnath Chaube and the scribe were already present. While the statement of Amarnath PW/4, one of the attesting witnesses shows that the draft of the Will was dictated by Rishikesh Chaube which was taken down by the typist (scribe). he along with other witnesses remained there and Gokul Pandey, one of the attesting witnesses went along with the typist. The statement of the appellant no.1 and of his witnesses are not coherent, may be due to lapse of time. Sri Neeraj Agrawal, the learned counsel for the respondents, rightly points out that a person who executes a will, normally would give the details of all his properties movable and immovable, such as the bank account number, locker number besides the municipal numbers of the immovable properties sought to be bequeathed. Strangely enough, the disputed Will is completely silent about the details of the properties. The testator was not a rustic villager. He was semi literate at least and was familiar with the worldly affairs. Such a person is supposed to know the details of the properties owned by him. Non mention of the details of movable and immovable properties casts doubt on the due execution of the Will. This is also a relevant factor to discard the Will in question. The admission of the appellant no.1 in his cross examination that after the death of the testator, the petitioners/appellants/propounder of the Will took no steps by asking the tenants to pay the rent to them or by filing the mutation application etc. goes against them. There is no overt act claiming any right under the Will, till the filing of the petition, corroborates the respondents' stand that the Will in dispute is manufactured one. goes against them. There is no overt act claiming any right under the Will, till the filing of the petition, corroborates the respondents' stand that the Will in dispute is manufactured one. The learned counsel for the appellant has placed reliance upon B. Venkatamuni vs. CJ Ayodhya Ram Singh and others, (2007) ACJ 423 for the proposition that the mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by section 63 of the Indian Succession Act. There cannot be any quarrel to the above proposition of law. In the case of Will it has been further laid down that 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 signature of the testator as required by law. In the case on hand, it has been found by the Court below and rightly so that the Will is surrounded by suspicious circumstances. The propounder of the Will took active part in the execution of the Will. The appellants have failed to clear the suspicious circumstances regarding the execution of the Will the onus lies on the propounder to explain them to the satisfaction of the Court and only when such circumstances are explained can be said to be duly executed vide K. Laxmanan vs. Thekkayil Padmini, AIR 2009 SC 951 . It has been laid down therein that even where there are no such pleas regarding the suspicious circumstances but the circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. In this case the Apex Court has referred its earlier judgment in Shashi Kumar Banerjee Vs. Subodh, AIR 1964 SC 529 and Pushpawati Vs. Chandraraja Kadamba, (1973) 3 SCC 291 . The learned counsel for the appellant also referred one decision of the Calcutta High Court in Moti Lal Shau Vs. Mandodari Devi, AIR 2005, Calcutta 10 to show that the delay in disclosure of the Will by its propounder is not fatal and it will depend on the facts and circumstances of each case. There the delay was about eighteen years. It has been laid down that the factor of delay will depend on the facts and circumstances of each case. There the delay was about eighteen years. It has been laid down that the factor of delay will depend on the facts and circumstances of each case. In the case on hand, the propounder failed to provide a copy of the Will on demand and waited for five years is sufficient to doubt the very existence of a genuine Will as discussed above. There is one more aspect of the matter yet. The execution of the Will in question was disputed and denied by the respondents herein through their reply/notice dated 20.8.1973. The period of limitation has started running from the date of receipt of the reply. Article 137 of the Limitation Act, 1964, has prescribed a period of limitation of three years from the date of the accrual of the cause of action. The petition was not filed within three years. It was filed on 19.5.1978. The Apex Court in Kunwarjeet Singh Vs. Kiran Deep Kaur, AIR 2008 SC 2058 has held that Article 137 of the Limitation Act is aplicable so, the petition is liable to be dismissed being barred by time. The upshot of the above discussion is that the findings recorded by the trial Judge are based on terra-firma and its conclusion is based on relevant evidence on record. The findings of the Court below do not suffer from any perversity and calls for no interference in the appeal. In the result, there is no merit in the appeal. The appeal is dismissed with costs. _____________