JUDGMENT Rajiv Sharma, Judge: Since common questions of law and facts are involved in both the Regular Second Appeals, these were taken up together for hearing and are being disposed of by common judgment. 2. This Regular Second Appeal is directed against the judgment and decree, dated 27.06.200 1, passed by the learned Additional District Judge, Solan, District Solan, Himachal Pradesh, in Civil Appeal No. 50-NL/ 13 of 2000, whereby the learned Additional District Judge, Solan has partly allowed and partly dismissed the appeal. The learned Additional District Judge, Solan has held that deceased Santa had executed a valid will Ex. DW1/A in favour of the defendants. However, he has allowed the maintenance allowance @ ‘1 500/- per month from the date of institution of the suit till her life time or till she re­marry and the charge was also created qua the maintenance allowance on the suit property and the defendants were also restrained from alienating and encumbering the suit property in any manner effecting the right of maintenance of the plaintiff Paro. 3.In this appeal, the appellants-defendants are aggrieved by the judgment and decree, dated 27.06.200 1, to the extent whereby the learned Additional District Judge has granted maintenance allowance to respondent-plaintiff, Smt. Paro and also created charge on the property and they have been restrained from alienating and encumbering the suit property in any manner effecting the right of maintenance of plaintiff Paro. 4.‘Key facts’ necessary for the adjudication of these two appeals are that the plaintiff, Smt. Paro Devi (hereinafter referred to as ‘the plaintiff’ for the sake of convenience) has filed a suit for declaration against the respondents-defendants (hereinafter referred to as ‘the defendants’ for the sake of convenience). The husband of plaintiff, Shri Sant Ram @ Santa was owner in possession of the suit property, as detailed in the plaint. According to the plaintiff, she was married to Shri Sant Ram 50 years back according to Hindu rites and customs. Since no issue was born out of the wedlock, Sh. Sant Ram started maltreating her. She was not provided with necessities of life. She applied for maintenance. The maintenance case came up to High Court. She was allowed maintenance @ `60/- per month. In the month of November, 1995, Shri Santa was taken ill. He became unconscious on 29.11.1995. The defendants offered themselves to take Shri Sant Ram to hospital at Nalagarh for treatment. She was not provided with necessities of life. She applied for maintenance. The maintenance case came up to High Court. She was allowed maintenance @ `60/- per month. In the month of November, 1995, Shri Santa was taken ill. He became unconscious on 29.11.1995. The defendants offered themselves to take Shri Sant Ram to hospital at Nalagarh for treatment. Later on, it transpired that the defendants have got prepared a will, dated 29.11.1995 in their favour qua the suit property fraudulently and by mis-representation of facts. According to the plaintiff, at that time, Shri Sant Ram was senseless. He was not in a sound disposing mind. The defendants have never served Shri Sant Ram. She was serving her husband. She came to know about the alleged will on 13.12.1995. She applied for the certified copy, which was obtained on 15.12.1995. According to her, she was also entitled to the amount lying deposited in the name of her husband, Sh. Sant Ram, in the State Bank of Patiala Manpura. The nomination made in favour of the defendants was wrong and illegal. It is in these circumstances, she filed a suit for declaration to the effect that she is owner in possession of the suit property. She has also prayed for decree for possession of the suit land in case she is not found in possession or dispossessed during the pendency of the case illegally and forcibly by the defendants. She has also prayed for a decree for permanent prohibitory injunction as a consequential relief restraining the defendants from interfering in the suit property in any manner and changing nature of the same. Alternatively, she has also prayed for a decree of maintenance to the tune of @ ‘1500/- per month against the defendant till her life and for creating of charge of such maintenance upon the suit property with further prayer for restraining the defendants from alienating or encumbering the suit property in any manner. 5.The suit was contested by the defendants. According to them, the plaintiff has never lived with Shri Santa as his wife. He was dragged to unnecessary litigation by her. According to them, Sh. Santa was served by them. Due to the services rendered by them, Shri Santa executed a valid will, dated 29.11.1995 Ex. DW1/A. It was voluntarily executed by Sh. Sant Ram. The allegations of fraud, misrepresentation were denied. 6. He was dragged to unnecessary litigation by her. According to them, Sh. Santa was served by them. Due to the services rendered by them, Shri Santa executed a valid will, dated 29.11.1995 Ex. DW1/A. It was voluntarily executed by Sh. Sant Ram. The allegations of fraud, misrepresentation were denied. 6. Replication was filed by the plaintiff. Learned Sub Judge 1st Class, Arki, Camp at Nalagarh, District Solan, H.P. framed the issues. The suit was decreed on 07.06.2000. The plaintiff was declared as owner in possession of the suit property. She was also entitled to the amounts lying deposited in the branches of SBOP, Manpura and Nalagarh in the name of deceased Sant Ram @ Santa. The will, dated 29.11.1995 Ex. DW1/A was declared illegal, null and void. The defendants were permanently restrained from interfering with the ownership and possession over the suit property in any manner. 7. Feeling aggrieved by the judgment and decree, dated 07.06.2000, the defendants preferred an appeal before the learned Additional District Judge, Solan, District Solan, H.P. The same was partly allowed and partly dismissed on 27.06.2001. The learned Additional District Judge, Solan, H.P. has dismissed the suit qua reliefs No. 13(a), 13(b) (c) and (e). The plaintiff and defendants have filed separate Regular Second Appeals, as stated hereinabove against the judgment and decree, dated 27.06.2001. 8. Both the Regular Second Appeals were admitted on the following substantial questions of law on 28.09.2001: “1. Whether the findings of the Additional District Judge granting maintenance to the plaintiff/respondent at the rate of Rs.1500/- per month from the date of suit till the life time of the plaintiff and creating a charge on the property of Sant Ram restraining the appellants from alienating and transferring as also encumbering the property, are sustainable in law when the plaintiff/respondent had been disinherited by Sant Ram because of strained relations? 2. Whether the Additional District Judge has misread and misappreciated the oral and documentary evidence on record to hold the will Ex. DW-1/A as legal, valid and free from suspicious circumstances? 9. Mr. G.D. Verma, learned Senior Advocate, has supported the judgment and decree, 07.06.2000, passed by the learned Sub Judge 1st Class, Arki, Camp at Nalagarh, District Solan, H.P. He further contended that the will, dated 29.11.1995, was shrouded with suspicious circumstances. The suspicious circumstances have not been explained by the defendants. 9. Mr. G.D. Verma, learned Senior Advocate, has supported the judgment and decree, 07.06.2000, passed by the learned Sub Judge 1st Class, Arki, Camp at Nalagarh, District Solan, H.P. He further contended that the will, dated 29.11.1995, was shrouded with suspicious circumstances. The suspicious circumstances have not been explained by the defendants. He then contended that Shri Sant Ram has remained in hospital w.e.f. 27.11.1995 to 01.12.1995 and was not in sound disposing mind to execute the will. The defendants have not obtained the fitness certificate from the doctor. He further contended that Sh. Sant Ram could not be removed from the hospital without the permission of the doctor. He lastly contended that the defendants have actively participated towards the execution of will, dated 29.11.2005. 10. Mr. K.D. Sood, learned Senior Advocate, has supported the judgment and decree, dated 27.06.200 1, passed by the learned Additional District Judge, Solan, District Solan, H.P., whereby he has upheld the validity of the will, dated 29.11.2005. According to him, neither the maintenance could be awarded by the learned Additional District Judge, Solan, H.P. nor the charge could be created on the suit property. He finally argued that the will has been validly executed by Shri Sant Ram. It was not shrouded with any suspicious circumstance. According to him, the will was executed by Sh. Sant Ram in sound disposing mind. 11.I have heard the learned counsel for the parties and gone through the records carefully. 12.Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 13. PW-1, Shiv Ram has testified that he knew Sant Ram, who was from his clan. He knew the plaintiff. She was residing in the house of Sant Ram for the last 15-16 years as his wife. At the time of death, the condition of Shri Santa was very serious. He was unconscious and was suffering from Asthama. He had also stomach ache. Sant Ram was admitted in the hospital before his death. Plaintiff used to take bread and milk for him. She was in possession of the property of Sh. Sant Ram. The defendants were not in possession of the suit property. He has helped the parties in arriving at a compromise between the plaintiff and her husband. In his cross-examination, he has deposed that Sh. Plaintiff used to take bread and milk for him. She was in possession of the property of Sh. Sant Ram. The defendants were not in possession of the suit property. He has helped the parties in arriving at a compromise between the plaintiff and her husband. In his cross-examination, he has deposed that Sh. Sant Ram was unconscious and was not in a position to recognize. 14. PW-2, Smt. Paro, has deposed that she is Hindu Gujjar. She was married to Shri Sant Ram 50 years back. She was about 11-12 years old at that time. She stayed with her husband for 20 years. She could not conceive any child. Sant Ram started beating her at the instance of Narati. He was not paying any maintenance to her. She came to her matrimonial house. Thereafter, She filed a case for maintenance. The litigation lasted for 15 years. The matter between her and Santa was settled. She used to lookafter Sh. Sant Ram. She was also looking after his property. Sant Ram has sold the property and deposited the money in State Bank of Patiala, Manpura. She was the sole legal heir of the property of Sant Ram. She was owner of the same. Sant Ram died in hospital at Nalagarh. He was not in senses. Sant Ram remained in the hospital for 2-3 days. She has performed the last rights of Santa. She used to stay in the hospital from 6:00 a.m. to 8:00 p.m. In her cross-examination, she has deposed that she knew Lumberdar Sh. Nasib Chand and Shri. Jati Ram. There was no litigation between her, Sh. Nasib Chand and Sh. Jati Ram. However, Jati Ram used to ask for land for the construction of house. 15. PW-3, Dr. D.V.S. Chanaria, has deposed that Sh. Sant Ram was hospitalized between 27.11.1995 to 01.12.1995. He has proved the medical certificate Ex. PW3/A. He has denied the suggestion that Sh. Sant Ram was not admitted in the hospital. 16. DW-1, Sh. Ram Parkash has deposed that he has scribed the will Ex. DW1/A. He has written the will at the instance of Sant Ram. Marginal witnesses were present on the spot. The will was executed in favour of Shri Shiv Ram and others. The will was read over in the presence of witnesses to Sh. Sant Ram. 16. DW-1, Sh. Ram Parkash has deposed that he has scribed the will Ex. DW1/A. He has written the will at the instance of Sant Ram. Marginal witnesses were present on the spot. The will was executed in favour of Shri Shiv Ram and others. The will was read over in the presence of witnesses to Sh. Sant Ram. He has put his thumb impression on the same after admitting the contents of the same to be correct. Thereafter, marginal witnesses have signed the will in the presence of Sh. Sant Ram. He has made the entry in his register at Sr. No. 572 on 29.11.1995 and obtained the thumb impression of Sh. Sant Ram. In his cross- examination, he has deposed that Sant Ram had come to him in the afternoon. The marginal witnesses were with him. Sh. Sant Ram has signed the will in the presence of marginal witnesses and the witnesses have also signed in his presence. He has admitted that Sant Ram was admitted in the hospital. He has not obtained the certificate from the doctor. According to him, Sant Ram was healthy. Defendant Shiv Ram was not with him. 17. DW-2, Shri Nasib Chand, has deposed that he knew Shri Santa. He was from his village. He has executed a will in favour of his nephew. He was told by Pola Ram that his uncle was admitted in the hospital and he and Jati Ram were summoned. They went to the hospital. Sant Ram was conscious. They inquired about his health. Thereafter, Santa and Jati Ram came to the Court complex. Santa got the will scribed from Sh. Ram Parkash. The contents of the will were read over to Santa. Santa, after admitting the contents of the same to be correct, put his thumb impression on the same. He and Jati Ram were present. Thereafter, he and Jati Ram signed the will as marginal witnesses. Thereafter, the will was produced before the Tehsildar for registration. The Tehsildar read over the contents of the will to Sant Ram. He was taken to Registration Clerk. The Registration Clerk got his signatures on the register. According to him, Sant Ram was in his senses. Paro used to stay in her parents house. In his cross-examination, he has deposed that Pola had come to him at 11: 00 a.m. He was all alone. He was taken to Registration Clerk. The Registration Clerk got his signatures on the register. According to him, Sant Ram was in his senses. Paro used to stay in her parents house. In his cross-examination, he has deposed that Pola had come to him at 11: 00 a.m. He was all alone. Thereafter, they went to the house of Jati Ram. They reached the hospital at 12:30 p.m. Neither Shiv Ram nor Pola were there. They remained in the hospital for 1/2 an hour. Sant Ram remained in the hospital. There were about 10-15 patients in the ward. They did not go to the doctor, who was treating Sant Ram. In order to take Santa outside the hospital, they obtained permission of the doctor, but he did not know the name of the doctor. Thereafter, they came to the Court complex. Pola was with them. It took about 20-30 minutes to scribe the will. They reached the office of Tehsildar at 2:30-3:00 p.m. The Tehsildar read over the contents of the will to Sant Ram. The Tehsildar has not obtained the thumb impression of Sant Ram in his presence. Thereafter, Sant Ram was left in the hospital at 4:00 p.m. They came to know about the death of Sant Ram on 01.12.1995 in the morning. Sant Ram was suffering from Asthma and stomach ache. 18. DW-3, Sh. Naresh Chand, has proved Ex. DW3/A. According to him, in 1993-94, the Ration Card of Paro Devi was with her brother. Four family members have been shown in Ration Card No. 256. In his cross-examination, he has admitted that he has not prepared the Parivar register. He has not made any entry in the Ration Card register. 19. DW-4, Shri Rattan Chand, Secretary Gram Panchayat, Malpur has proved Ex. DW4/A. DW-5, Shri Faquir Chand, had deposed that he knew Sant Ram and Paro Devi. According to him, Paro Devi never stayed with Sant Ram as wife. There was prolonged litigation between the parties. He did not know when the marriage between Sant Ram and Paro was solemnized. He did not know about the details of litigation between Sant Ram and Paro Devi. 20. DW-7, Shiv Ram, has testified that Sant Ram was his maternal uncle. According to him, the litigation between Sant Ram and Paro lasted for 20 years. According to him, Paro Devi used to stay with her brothers. He did not know about the details of litigation between Sant Ram and Paro Devi. 20. DW-7, Shiv Ram, has testified that Sant Ram was his maternal uncle. According to him, the litigation between Sant Ram and Paro lasted for 20 years. According to him, Paro Devi used to stay with her brothers. The will was executed on 29.11.1995. They got Sant Ram admitted in the hospital, since he was a patient of asthma. His brother Pola Ram was staying with him as attendant. He told him and his brother that the will was to be executed. He told them to bring Lumberdar, Sh. Nasib Chand and Jati Ram. His brother brought them in the hospital at 11:00 a.m. Thereafter, they went to the Court complex. He was brought back to the hospital at 3:00/3:30 p.m. He performed the last rites of Sant Ram. No relatives had come to perform the last rites. They were owners of the suit land. Sant Ram died at 2:00 p.m. 21.Plaintiff has proved Ex.-PA, copy of Jamabandi for the years 1990-1991. The name of Sant Ram has been shown in the column of ownership and cultivation. Ex. P-1 is the petition filed by Smt. Paro against deceased Santa under Section 488 Cr. P.C. in the Court of JMIC, Nalagarh on 02.05.1968. Ex. P-2 is the copy of reply filed by deceased Santa in maintenance petition No. 1/83, titled as Paro Vs. Santa. Ex. P-3, is the copy of order, passed by JMIC Nalagarh under Section 488 Cr. P.C. in case No. 1/83, Paro Vs. Santa, which was decided on 06.12.1968 and maintenance at the rate of ‘40/- per month was granted to Paro. Ex. P-4 is the execution petition which was filed by Smt. Paro, plaintiff against the deceased Santa under Section 125(3), Cr. P.C. qua the recovery of maintenance allowance of ‘480/- and execution petition No. 6/4 of 1975 was filed on 05.09.75, which was decided on 14.7.1977. Ex. P-5 is the reply filed by the deceased Santa qua execution petition filed by the plaintiff. Ex. P-6 is the order of JMIC, Nalagarh, dated 11.08.1976, whereby warrant of attachment of property of deceased Santa was ordered by JMIC, Nalagarh for recovery of maintenance allowance of ‘480/- and objections filed by Santa were rejected by JMIC, Nalagarh. Ex. Ex. P-5 is the reply filed by the deceased Santa qua execution petition filed by the plaintiff. Ex. P-6 is the order of JMIC, Nalagarh, dated 11.08.1976, whereby warrant of attachment of property of deceased Santa was ordered by JMIC, Nalagarh for recovery of maintenance allowance of ‘480/- and objections filed by Santa were rejected by JMIC, Nalagarh. Ex. P7 is the execution petition No. 16/2 of 1970, which has been filed by Paro against the deceased Santa under Section 125(3) Cr. P.C. for recovery of ‘1500/-. Ex. P8, is the objection filed by the deceased Santa qua the execution petition filed by Paro. Ex. P9 is the copy of order passed by JMIC Nalagarh in case No. 16/2 of 1970. Ex. P­10 is the copy of petition filed under order 39 Rule 1 and 2 C.P.C. 94 and 151 C.P.C. Ex. P-11 is the reply filed by deceased Sant Ram in case No. 72/6 of 1977, titled as Paro Vs. Sant Ram. Ex. P­12 is the order of Sub-Judge 1st Class Nalagarh in case No. 72/6 of 1977. Ex. P13 and Ex. P-14 are the applications filed under Section 488 Cr. P.C. for the recovery of maintenance allowance of ‘400/-. Ex. P15 is the copy of order passed by Sub Judge 1st Class, Nalagarh. Ex. P15, which is marked twice instead of Ex. P16 is the copy of judgment passed by the learned Sessions Judge, Solan, Camp Court at Nalagarh in Cr. Rev. No. 8-S/10 of 1977, dated 10.01.1978. 22. The defendants have placed on record the copy of will Ex. DW1 /A. Ex. DW3/A is the residence certificate which has been issued by the Gram Panchayat, Dhaha. Ex. DW4/A is the family register issued by the Gram Panchayat, Malakoo Majra. Ex. PW2/A is the Kistwar Awadi Deh. Ex. PW3/A is the admission certificate of Sant Ram, deceased in hospital at Nalagarh w.e.f. 27.11.1995 to 01.12.1995. 23.What emerges from the facts enumerated hereinabove, is that Sant Ram was owner of the suit property. He was patient of Asthma. He was admitted in the hospital on 27.11.1995. He remained in the hospital as per Ex. PW3/A w.e.f. 27.11.1995 to 01.12.1995. Plaintiff is the wife of Sant Ram. There was litigation between Sant Ram and Paro Devi. 23.What emerges from the facts enumerated hereinabove, is that Sant Ram was owner of the suit property. He was patient of Asthma. He was admitted in the hospital on 27.11.1995. He remained in the hospital as per Ex. PW3/A w.e.f. 27.11.1995 to 01.12.1995. Plaintiff is the wife of Sant Ram. There was litigation between Sant Ram and Paro Devi. However, as per the statement of PW-1, Shiv Ram and PW-2, Smt. Paro, the matter was resolved and Smt. Paro has started residing with her husband. The will was executed on 29.11.1995. 24.According to DW-7, Sh. Shiv Ram, Sant Ram has told him and his brother Pola Ram that he wanted to execute a will. He requested to summon Sh. Nasib Chand and Sh. Jati Ram. Thereafter, his brother went and brought Shri Nasib Chand and Shri Jati Ram. The will was scribed by DW- 1, Sh. Ram Parkash. Shri Sant Ram was in serious condition as per the statements of PW- 1 and PW-2. He was almost unconscious. Despite that, he was taken out from the hospital by the defendants. The defendants have not obtained any fitness certificate from the doctor whether Sant Ram was in sound disposing mind. The permission of the doctor was not sought before taking Sant Ram from the hospital. It was necessary for the defendants to seek fitness certificate from the doctor and also permission before taking Sant Ram out of the hospital. DW-2, Sh. Nasib Chand has been brought by brother of DW-7, Sh. Shiv Ram. Jati Ram was also brought by him. The defendants have actively participated towards the execution of will. The will was scribed in the Court complex. Thereafter, it was produced before the Registrar. DW-2, Shri Nasib Chand has categorically admitted that the thumb impressions were not put in the presence of Tehsildar. The parties have gone to the Registration Clerk and the Registration Clerk has obtained their signatures on the register. Jati Ram has not been produced by the defendants. The defendants have not produced any witness from the office of Registrar/Sub Registrar, Nalagarh. Mere registration of the will, will not make it valid. All the suspicious circumstances were required to be removed/explained by the defendants. It has come in the statement of PW-2 that she knew Sh. Nasib Chand and Jati Ram. Sh. Jati Ram used to ask for land from her for the construction of the house. Mere registration of the will, will not make it valid. All the suspicious circumstances were required to be removed/explained by the defendants. It has come in the statement of PW-2 that she knew Sh. Nasib Chand and Jati Ram. Sh. Jati Ram used to ask for land from her for the construction of the house. Plaintiff is the sole heir of late Shri Sant Ram @ Santa. There are no reasons assigned why she has been disinherited from the property by her husband. The defendants have also not led any evidence that they were looking after Sant Ram. To the contrary, it has come on record that he was looked after by the plaintiff. In a case where testator is seriously ill, it is always necessary to obtain fitness certificate from the doctor treating him, more particularly, when the patient is admitted in the hospital. The Court can take judicial notice that the patient cannot be taken out from the hospital without the written permission of the doctor. In the instant case, Sh. Sant Ram was taken out of the hospital from 11:00 a.m. till 3:30 p.m. Learned trial Court has correctly appreciated the oral as well as documentary evidence while returning the finding that the will executed on 29.11.1995 Ex. DW1/A was not validly executed by Shri Sant Ram in favour of the defendants. Learned 1st appellate Court has misconstrued the oral as well as documentary evidence while upholding the will, dated 29.11.1995, Ex. DW1/A. 25. In order to see whether the will has been validly executed or not, the learned Additional District Judge has not considered the sound and disposing state of mind of Sant Ram. He should have taken into consideration whether the testator has executed the will out of his free will. It was necessary for the defendants to discharge the burden regarding the legal and valid execution of will, dated 29.11.1995 by removing the suspicious circumstances. The defendants have failed to remove the suspicious circumstances and inherent improbabilities surrounding the will. No rights of the plaintiff in the property have been saved in the will and it seems to be unnatural. 26.Their Lordships of the Hon’ble Supreme Court in Smt. Indu Bala Bose and others Vs. The defendants have failed to remove the suspicious circumstances and inherent improbabilities surrounding the will. No rights of the plaintiff in the property have been saved in the will and it seems to be unnatural. 26.Their Lordships of the Hon’ble Supreme Court in Smt. Indu Bala Bose and others Vs. Manindra Chandra Bose and another (1982) 1 Supreme Court Cases 20 have held that even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court by completely removing all legitimate suspicions. Their Lordships have explained the suspicious circumstances as under: “7. This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section. 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator’s mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator’s mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. (See AIR 1964 SC 529 , 1959 Suppl (1) SCR 426: ( AIR 1959 SC 443 ) & (1962) 3 SCR 195 : ( AIR 1962 SC 567 )).” 27.Their Lordships of the Hon’ble Supreme Court in Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur Vs. Smt. Chhoti and others (1990) 1 Supreme Court Cases 266 have held that burden is on the person claiming right on the basis of will. The suspicious circumstances can be taken into account by the Court. Their Lordships have further held that the will constituting the plaintiff as a sole legatee with no right whatever to the testator’s wife seems to be unnatural. Their Lordships have further held that it would be 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. Their Lordships have held as under: “20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The’ executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order or 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. 22. The Privy Council in Mt. 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. 22. The Privy Council in Mt. Biro v. Atma Ram, AIR 1937 PC 101 had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his step-mother and his paternal aunt ‘These women though entitled under the Hindu Law only to maintenance were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was, however, provided that the lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her husband’s estate, if she predeceased any of her co- devisees. The will was not produced until 22 years after its execution though there were occasions to produce it, had it been in existence. Considering these circumstances, the Privy Council observed (at p. 104): “It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them. That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But this is not the only circumstance which tells against its genuineness. The will purports to have been executed on 24th August 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. But this is not the only circumstance which tells against its genuineness. The will purports to have been executed on 24th August 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so “ The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator’s wife seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff’s title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We, therefore, concur with the conclusion of the High Court and reject the will as not genuine.” 28.Their Lordships of the Hon’ble Supreme Court in Ram Piari Vs Bhagwant and others (1990) 3 Supreme Court Cases 364 have held that the testator must be in a testamentary capacity or have a disposing state of mind. In this case, the will was executed one day before the death of testator bequeathing all his properties to the sons of one of his two daughters while totally disinheriting the other daughter. Their Lordships have held as under: “2. Soft corner for grandchildren or like ability for a son or daughter or their issues is not uncommon to our society. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when dispute arises between heirs of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then Court’s responsibility of performing its duties carefully and painstakingly multiplies. Unfortunately it was not properly comprehended by any of the Courts, including the High Court which was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for Courts as their function is to judge not to speculate. Unfortunately it was not properly comprehended by any of the Courts, including the High Court which was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for Courts as their function is to judge not to speculate. Although freedom to bequeath one’s own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition.Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion. In H. Venkatachala v. B. N. Thimmajamma AIR1959 SC 443, it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, thus, by producing scribe or attesting witness or proving genuineness of testator’s thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Courts conscience is satisfied not only on execution but about its authenticity. See Kalyan Singh v.,Smt. Chhoti, (1989) 4 JT 439 ( AIR 1990 SC 396 ). 4. Ratio in Malkani v. Jamadar, AIR 1987 SC 767 was relied on to dissuade this Court from interfering, both, because the finding that Will was genuine, was a finding of fact and omission to mention reason for disinheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani’s case was land. Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property or agricultural holdings from going out of family is well-known. Property in Malkani’s case was land. Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property or agricultural holdings from going out of family is well-known. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. Although this Court does not normally interfere with findings of fact recorded by Courts below, but if the finding is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136.” In the instant case also, Sant Ram has died within three days after the execution of the will. The entire property including the FDRs. was bequeathed in favour of defendants totally disinheriting the wife. 29. Their Lordships of the Hon’ble Supreme Court in Bhagwan Kaur Vs. Kartar Kaur and others (1994) 5 Supreme Court Cases 135 have held that endorsement made by Sub- Registrar does not satisfy the requirements of Section 63 of Succession Act and does not reach up to the level of proof required under Section 68 of Evidence Act, mere registration of will is of no consequence. Their Lordships have held as under: “4. Decision on due execution of will, strictly speaking, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due execution. A method is proceeded (sic provided) in which a will shall be duly executed. Decision on due execution of will, strictly speaking, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due execution. A method is proceeded (sic provided) in which a will shall be duly executed. It inter alia provides that 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 of 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. In the matter of proof of a will Section 68 of the Indian Evidence Act, 1872 enjoins that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. Proviso thereto states that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. 5. It is required to be seen as to whether the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act had been satisfied when the High court took the exercise of examining the evidence and interfered in the finding. The approach of the High court one may say, may not be wholly unjustified, but regrettably we have to say that the result achieved was wholly undesirable. This is evident from the judgment itself where extracts of evidence have been reproduced. The approach of the High court one may say, may not be wholly unjustified, but regrettably we have to say that the result achieved was wholly undesirable. This is evident from the judgment itself where extracts of evidence have been reproduced. In the first instance, Nachhattar Singh (DW 1 one of the attesting witnesses when examined in court stated in his examination-in-chief to the effect : “The contents of the will were read over to Bachan Singh and he after admitting the same to be correct, put his signature in the presence of Jagtar Singh and me. I and Jagtar Singh put our signatures thereon in his presence.” While in cross-examination he went back on that plea and stated : “The will, Exh. D-l was scribed before my arrival and I put my signatures thereon at the instance of the defendant (the legatee). Neither Bachan Singh nor the defendant and any other witness had put his signature on Exh. D-l. I had also not put my signature on Exh. D-l in the presence of Bachan Singh.” 8. The High court took support for its view from the fact that the testator was a clerk of a lawyer, presumably knowing the intricacies of law, and that since he died about 4 years later that left no room for suspicion to the due execution of the will. The High court, however, ignored two important suspicious circumstances those being- (I) the legatee took active part in the execution of the will; and (ii) no provision was made in the will for the two widows of the testator, when one of whom, the appellant, was not even related to the legatee. The pious wish expressed by the High court that it was expected of the legatee to look after the welfare of the appellant was, according to us, of no consequence. Had these two suspicious circumstances been kept in mind by the High court, we have no doubt that the finding of fact disturbed by the High court would not have occasioned in the totality of circumstances. Thus, we have no option, but to upset the decision of the High court.” In the instant case, though the will was registered, but the parties have not signed in the presence of Sub Registrar. They have signed in the register before the Registration Clerk 30. Thus, we have no option, but to upset the decision of the High court.” In the instant case, though the will was registered, but the parties have not signed in the presence of Sub Registrar. They have signed in the register before the Registration Clerk 30. Their Lordships of the Hon’ble Supreme Court in N. Kamalam and another Vs. Ayyasamy and another (2001) 7 Supreme Court Cases 503 have held that signature of scribe of will cannot be granted equality of status with signatures of attesting witnesses, which are required under Section 63( c), (read with Section 68, Evidence Act and Section 3 of Transfer of Property Act) for proving property execution of a will. Their Lordships have held as under: “1. The latin expressions ‘onus probandi’ and ‘animo attestandi’ are the two basic features in the matter of civil Court’s exercise of testamentary jurisdiction : Whereas ‘onus probandi’ lies in every case upon the party propounding a Will - the expression ‘animo attestandi’ means and implies animus to attest : to put it differently and in common parlance it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the Will and the evidence is admissible to show whether such was the intention or not (see in this context Theobald on Wills 12th Ed. Page 129). This Court in the case of Girija Datt v. Gangotri Datt ( AIR 1955 SC 346 ) held that two persons who had identified testator at the time of registration of the Will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put “animo attestandi”. In an earlier decision of the Calcutta High Court in Abinash Chandra Bid vanidhi Bhattacharya v. Dasarath Malo (1929) ILR 56 Cal 598 : (AIR 1929 Cal 123), it was held that a person who had put his name under the word “scribe” was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a “scribe”. In the similar vein, the Privy Council in Shiam Sunder Singh v. Jagannath Singh (1928) 54 Mad LJ 43 : (AIR 1927 PC 248) held that the legatees who had put their signatures on the Will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatee. In this context, reference may be made to the decision of this Court in M. L. Abdul Jabbar Sahib v. H. V. Venkata Sastri & Sons (1969) 3 SCR 513 : ( AIR 1969 SC 1147 ) wherein this Court upon reference to S. 3 of the Transfer of Property Act has the following to state (Para 8 of AIR) : “It is to be noticed that the word “attested”, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact, Briefly put, the essential conditions of valid attestation under S. 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is as scribe or an identifier or a registering officer, he is not an attesting witness. 3. Turning on to the former expression ‘onus pro bandiç it is now fairly well-settled principle that the same lies in every case upon the party propounding the Will and may satisfy the Court’s conscious that the instrument as propounded is the last Will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the Will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the Will if the propounder leads evidence to show that the Will bears the signature and mark of the testator and that the Will is duly attested. This attestation however, shall have to be in accordance with S. 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well settled that in the event of there being circumstances surrounding the execution of the Will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence. 25. The requirement of attestation presently in the country is statutory in nature, as noticed herein before and cannot as such be done away with under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor shall have to be assessed in its proper perspective but that does not however mean and imply non-compliance of a statutory requirement. The intention of the attestor and its paramount importance cannot thwart the statutory requirement. No doubt the scribe has subscribed his signature but scribe in accordance with common English parlance means and implies the person who writes the document. Significantly, however, in England the King’s Secretary is popularly known as Scribaregis. Be that as it may, in common parlance an attribute of scribe as a mere writer as noted above, does not stretch the matter further. In the contextual facts, while the writer did, in fact, subscribe his signature but the same does not under-rate the statutory requirement of attestation as more fully described hereinbefore. True it is, that strenuous submissions have been made in support of the appeal that “attesting witnesses” have no other role to play but to subscribe their signatures in order to prove the genuineness of the Will and that in fact, when the scribe signs the Will, the same can be read as attestation. Needless to record however that the scribe Arunachalam was examined and it is on this score the learned advocate contended that the evidence of an attestor thus can be said to be on record so as to make the document namely the ‘will’ in the instant case thus otherwise in accordance with law. 26. Needless to record however that the scribe Arunachalam was examined and it is on this score the learned advocate contended that the evidence of an attestor thus can be said to be on record so as to make the document namely the ‘will’ in the instant case thus otherwise in accordance with law. 26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a will the same is required), is a requirement of the statute thus cannot be equated with that of the scribe. The Full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons v. Rahilna Bi, AIR 1962 Mad 111 , wherein Ramchandra Iyer, J. speaking for the full bench in his inimitable style and upon reliance on Lord Cambell’s observation in Burdett v. Spilsbory (1842-43 (10) Cl and F 340 : 59 RR 105) has the following to state pertaining to the meaning to be attributed to the word ‘attestation’ (paras 3 and 4 of AIR) : The definition of the term “attested” which is almost identical with that contained in S. 63(c) of the Indian Succession Act, has been the result of an amendment introduced by Act 27 of 1926. Prior to that amendment it was held by this Court that the word ‘attested’ was used only in the narrow sense of the attesting witness being present at the time of execution. In Shamu Pattar v. Abdul Kadir (1912) ILR 35 Mad 607 (PC), the Privy Council accepted the view of this Court that attestation of a mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that a mere acknowledgment of his signature by the executant to the attesting witness would not be sufficient. The amending Act 27 of 1926 modified the definition of the term in the Transfer of Property Act so as to make a person who merely obtains an acknowledgment of execution and affixed his signature to the document as a witness, an attestor. It will be noticed that although S. 3 purports to define the word “attested” it has not really done so. It will be noticed that although S. 3 purports to define the word “attested” it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose of the Act; the word ‘attest’ is used as a part of the definition itself. It is, therefore, necessary first to ascertain the meaning of the word “attest” independent of the statute and adopt it in the light of the extended or qualified meaning given therein. The word “attest” means according to the Shorter Oxford Dictionary “to bear witness to, to affirm the truth or genuineness of, testify, certify.” In Burdet v. Spilsbury, (1842-43) 10 Cl and F 340, Lord Cambell observed at page 417, “What is the meaning of an attesting witness to a deed? Why, it is, a witness who has seen the deed executed, and who signs it as a witness.” The Lord Chancellor stated, “the party who sees the will executed is in fact a witness to it, if he subscribes as a witness, he is then an attesting witness.” The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign. Further, attestation being an act of a witness, ie. to testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended by Act 27 of 1926 . Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution. Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution. (4) After the amendment of S. 3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received from the executant a personal, acknowledgment of his signature, mark, etc. Thus of the two significant requirements of the term “attest”, namely (1) that the attestor should witness the execution, which implies his presence, then, and (2) he should certify or vouch for the execution by subscribing his name as a witness; which implies a consciousness and an intention to attest, the Amending Act modified only the first, the result is that a person can be an attesting witness, even if he had not witnessed the actual execution, by merely receiving personal acknowledgment from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter requirement, namely, certifying execution which implies that the attesting witness had the animus to attest.” 27. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependant on the fact situation. The learned Judge as noticed above has himself recorded that two significant requirements of the term ‘attest’ viz., that the attestor should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not but depict otherwise. Unfortunately, however, the factual score presently available does not but depict otherwise. The scribe’s presence cannot be doubted but the issue is not what it is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise - this issue unfortunately we are not in a position to lend concurrence with. The will as produced, records the following at page 4 thereof (page 106 of the P. Book) :“Witnesses L. T. I. of Masanae Gowder 1. (Sd/- T. Subbiya) S/o Verai Gowder 25-298, Thomas Street Coimbatore. 2.(Sd/-) B. Govindaraju S/o S. Balagurumurthy Chettiar, 2 5/250, Rangai Gowder Street, Coimbatore. .. Sd/- Arunachalam” The animus to attest, thus, is not available so far as the scribe is concerned. He is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the Court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be proof of due attestation unless the situation is so expressed in the document itself. This is again however not the situation existing presently in the matter under consideration. Some grievance was made before this Court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available.” 31.Their Lordships of Hon’ble Supreme Court in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695 have held that mere proving of signatures of executors and attesting witnesses is not sufficient. Their Lordships have held as under: “49. The execution of a Will does not only mean proving of the signatures of the executors and the attesting witnesses. It means something more. A Will is not an ordinary document. It although requires to be proved like any other documents but the statutory conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Indian Evidence Act cannot be ignored. It means something more. A Will is not an ordinary document. It although requires to be proved like any other documents but the statutory conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Indian Evidence Act cannot be ignored. 32.Their Lordships of the Hon’ble Supreme Court in Babu Singh and others Vs. Ram Sahai (2008) 14 Supreme Court Cases 754 have held that the will must be shown to be product of free mind of testator and propounder is required to dispel the suspicious circumstances surrounding the will. Their Lordships have held as under: “12. Indisputably a Will is to be attested by two witnesses in terms of Section 68 of the Indian Evidence Act (Act). Indisputably, the requirement of Section 63(1)(c) of the Indian Succession Act is required for to be complied with for proving a writ. Section 68 of the Act mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of Will must be proved but actually execution must be attested by at least two witnesses. Attestation must of execution of Will be in conformity with the provisions of Section 3 of the Transfer of Property Act. 13. ‘Attestation’ and ‘execution’ connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested. 14. In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words ‘at least’ have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon. 15. The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender. {See Savithri & Ors. v. Karthyayani Amma & Ors. [JT (2007) 12 SC 248]} 17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, ie., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others. 18. Whereas, however, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Indian Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved.” 33.Their Lordships of the Hon’ble Supreme Court in Lalitaben Jayantilal Popat Vs. Pragnaben Jamanadas Kataria and others (2008) 15 Supreme Court Cases 365 have held that for proving a will mere fulfillment of statutory requirement is not sufficient, but the will should also be found to be ordinarily free from suspicious circumstances. Their Lordships have held as under: “8. The law in regard to proof of a valid Will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Their Lordships have held as under: “8. The law in regard to proof of a valid Will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Section 63(c) of the Indian Succession Act reads as under : “Section 63.—Execution of unprivileged Wills - -Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :-(a) and (b) ... (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 acknowledgement of his signature or mark, or of 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.” Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses. 12. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. A Will is required to be attested by two or more witnesses. 12. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. What is meant by the word ‘attestation’ is defined in Section 3 of the Transfer of Property Act which reads as under : Section 3.—Interpretation-clause—In this Act, unless there is something repugnant in the subject or context,-XXX XXX XXX “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 20. Whether a Will is surrounded by suspicious circumstances or not is essentially a question of fact. We have noticed hereinbefore that there was a large number of suspicious circumstances in the instant case. We have also pointed out that suspicious circumstances appear on the face of the Will. Inferences of suspicious circumstances must be drawn having regard to the evidence of Ranjit Singh. Even the statutory requirements for proof of the Will have not been complied with. It is a trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the Court may take aid of the presumptive evidences also.” 34.Their Lordships of the Hon’ble Supreme Court in K. Laxmanan Vs. Thekkayil Padmini and others (2009) 1 Supreme Court Cases 354 have again reiterated that the onus to prove the will lies on the propounder. When such evidences are brought on record, the Court may take aid of the presumptive evidences also.” 34.Their Lordships of the Hon’ble Supreme Court in K. Laxmanan Vs. Thekkayil Padmini and others (2009) 1 Supreme Court Cases 354 have again reiterated that the onus to prove the will lies on the propounder. He should prove the legality of execution and genuineness of the will by explaining the suspicious circumstances, if any, surrounding the will and also by proving the testamentary capacity and the signature of testator. Their Lordships have further held that even where plea of suspicious circumstances is not raised but circumstances give rise to doubt, the propounder must satisfy the conscience of the Court by removing such doubt. Their Lordships have held as under: JUDGMENT Rajiv Sharma, Judge: Since common questions of law and facts are involved in both the Regular Second Appeals, these were taken up together for hearing and are being disposed of by common judgment. 2. This Regular Second Appeal is directed against the judgment and decree, dated 27.06.200 1, passed by the learned Additional District Judge, Solan, District Solan, Himachal Pradesh, in Civil Appeal No. 50-NL/ 13 of 2000, whereby the learned Additional District Judge, Solan has partly allowed and partly dismissed the appeal. The learned Additional District Judge, Solan has held that deceased Santa had executed a valid will Ex. DW1/A in favour of the defendants. However, he has allowed the maintenance allowance @ ‘1 500/- per month from the date of institution of the suit till her life time or till she re­marry and the charge was also created qua the maintenance allowance on the suit property and the defendants were also restrained from alienating and encumbering the suit property in any manner effecting the right of maintenance of the plaintiff Paro. 3.In this appeal, the appellants-defendants are aggrieved by the judgment and decree, dated 27.06.200 1, to the extent whereby the learned Additional District Judge has granted maintenance allowance to respondent-plaintiff, Smt. Paro and also created charge on the property and they have been restrained from alienating and encumbering the suit property in any manner effecting the right of maintenance of plaintiff Paro. 4.‘Key facts’ necessary for the adjudication of these two appeals are that the plaintiff, Smt. Paro Devi (hereinafter referred to as ‘the plaintiff’ for the sake of convenience) has filed a suit for declaration against the respondents-defendants (hereinafter referred to as ‘the defendants’ for the sake of convenience). The husband of plaintiff, Shri Sant Ram @ Santa was owner in possession of the suit property, as detailed in the plaint. According to the plaintiff, she was married to Shri Sant Ram 50 years back according to Hindu rites and customs. Since no issue was born out of the wedlock, Sh. Sant Ram started maltreating her. She was not provided with necessities of life. She applied for maintenance. The maintenance case came up to High Court. She was allowed maintenance @ `60/- per month. In the month of November, 1995, Shri Santa was taken ill. He became unconscious on 29.11.1995. The defendants offered themselves to take Shri Sant Ram to hospital at Nalagarh for treatment. Later on, it transpired that the defendants have got prepared a will, dated 29.11.1995 in their favour qua the suit property fraudulently and by mis-representation of facts. According to the plaintiff, at that time, Shri Sant Ram was senseless. He was not in a sound disposing mind. The defendants have never served Shri Sant Ram. She was serving her husband. She came to know about the alleged will on 13.12.1995. She applied for the certified copy, which was obtained on 15.12.1995. According to her, she was also entitled to the amount lying deposited in the name of her husband, Sh. Sant Ram, in the State Bank of Patiala Manpura. The nomination made in favour of the defendants was wrong and illegal. It is in these circumstances, she filed a suit for declaration to the effect that she is owner in possession of the suit property. She has also prayed for decree for possession of the suit land in case she is not found in possession or dispossessed during the pendency of the case illegally and forcibly by the defendants. She has also prayed for a decree for permanent prohibitory injunction as a consequential relief restraining the defendants from interfering in the suit property in any manner and changing nature of the same. She has also prayed for a decree for permanent prohibitory injunction as a consequential relief restraining the defendants from interfering in the suit property in any manner and changing nature of the same. Alternatively, she has also prayed for a decree of maintenance to the tune of @ ‘1500/- per month against the defendant till her life and for creating of charge of such maintenance upon the suit property with further prayer for restraining the defendants from alienating or encumbering the suit property in any manner. 5.The suit was contested by the defendants. According to them, the plaintiff has never lived with Shri Santa as his wife. He was dragged to unnecessary litigation by her. According to them, Sh. Santa was served by them. Due to the services rendered by them, Shri Santa executed a valid will, dated 29.11.1995 Ex. DW1/A. It was voluntarily executed by Sh. Sant Ram. The allegations of fraud, misrepresentation were denied. 6. Replication was filed by the plaintiff. Learned Sub Judge 1st Class, Arki, Camp at Nalagarh, District Solan, H.P. framed the issues. The suit was decreed on 07.06.2000. The plaintiff was declared as owner in possession of the suit property. She was also entitled to the amounts lying deposited in the branches of SBOP, Manpura and Nalagarh in the name of deceased Sant Ram @ Santa. The will, dated 29.11.1995 Ex. DW1/A was declared illegal, null and void. The defendants were permanently restrained from interfering with the ownership and possession over the suit property in any manner. 7. Feeling aggrieved by the judgment and decree, dated 07.06.2000, the defendants preferred an appeal before the learned Additional District Judge, Solan, District Solan, H.P. The same was partly allowed and partly dismissed on 27.06.2001. The learned Additional District Judge, Solan, H.P. has dismissed the suit qua reliefs No. 13(a), 13(b) (c) and (e). The plaintiff and defendants have filed separate Regular Second Appeals, as stated hereinabove against the judgment and decree, dated 27.06.2001. 8. Both the Regular Second Appeals were admitted on the following substantial questions of law on 28.09.2001: “1. The learned Additional District Judge, Solan, H.P. has dismissed the suit qua reliefs No. 13(a), 13(b) (c) and (e). The plaintiff and defendants have filed separate Regular Second Appeals, as stated hereinabove against the judgment and decree, dated 27.06.2001. 8. Both the Regular Second Appeals were admitted on the following substantial questions of law on 28.09.2001: “1. Whether the findings of the Additional District Judge granting maintenance to the plaintiff/respondent at the rate of Rs.1500/- per month from the date of suit till the life time of the plaintiff and creating a charge on the property of Sant Ram restraining the appellants from alienating and transferring as also encumbering the property, are sustainable in law when the plaintiff/respondent had been disinherited by Sant Ram because of strained relations? 2. Whether the Additional District Judge has misread and misappreciated the oral and documentary evidence on record to hold the will Ex. DW-1/A as legal, valid and free from suspicious circumstances? 9. Mr. G.D. Verma, learned Senior Advocate, has supported the judgment and decree, 07.06.2000, passed by the learned Sub Judge 1st Class, Arki, Camp at Nalagarh, District Solan, H.P. He further contended that the will, dated 29.11.1995, was shrouded with suspicious circumstances. The suspicious circumstances have not been explained by the defendants. He then contended that Shri Sant Ram has remained in hospital w.e.f. 27.11.1995 to 01.12.1995 and was not in sound disposing mind to execute the will. The defendants have not obtained the fitness certificate from the doctor. He further contended that Sh. Sant Ram could not be removed from the hospital without the permission of the doctor. He lastly contended that the defendants have actively participated towards the execution of will, dated 29.11.2005. 10. Mr. K.D. Sood, learned Senior Advocate, has supported the judgment and decree, dated 27.06.200 1, passed by the learned Additional District Judge, Solan, District Solan, H.P., whereby he has upheld the validity of the will, dated 29.11.2005. According to him, neither the maintenance could be awarded by the learned Additional District Judge, Solan, H.P. nor the charge could be created on the suit property. He finally argued that the will has been validly executed by Shri Sant Ram. It was not shrouded with any suspicious circumstance. According to him, the will was executed by Sh. Sant Ram in sound disposing mind. He finally argued that the will has been validly executed by Shri Sant Ram. It was not shrouded with any suspicious circumstance. According to him, the will was executed by Sh. Sant Ram in sound disposing mind. 11.I have heard the learned counsel for the parties and gone through the records carefully. 12.Since both the substantial questions of law are interconnected and interlinked, the same are taken up together for determination to avoid the repetition of discussion of evidence. 13. PW-1, Shiv Ram has testified that he knew Sant Ram, who was from his clan. He knew the plaintiff. She was residing in the house of Sant Ram for the last 15-16 years as his wife. At the time of death, the condition of Shri Santa was very serious. He was unconscious and was suffering from Asthama. He had also stomach ache. Sant Ram was admitted in the hospital before his death. Plaintiff used to take bread and milk for him. She was in possession of the property of Sh. Sant Ram. The defendants were not in possession of the suit property. He has helped the parties in arriving at a compromise between the plaintiff and her husband. In his cross-examination, he has deposed that Sh. Sant Ram was unconscious and was not in a position to recognize. 14. PW-2, Smt. Paro, has deposed that she is Hindu Gujjar. She was married to Shri Sant Ram 50 years back. She was about 11-12 years old at that time. She stayed with her husband for 20 years. She could not conceive any child. Sant Ram started beating her at the instance of Narati. He was not paying any maintenance to her. She came to her matrimonial house. Thereafter, She filed a case for maintenance. The litigation lasted for 15 years. The matter between her and Santa was settled. She used to lookafter Sh. Sant Ram. She was also looking after his property. Sant Ram has sold the property and deposited the money in State Bank of Patiala, Manpura. She was the sole legal heir of the property of Sant Ram. She was owner of the same. Sant Ram died in hospital at Nalagarh. He was not in senses. Sant Ram remained in the hospital for 2-3 days. She has performed the last rights of Santa. She was the sole legal heir of the property of Sant Ram. She was owner of the same. Sant Ram died in hospital at Nalagarh. He was not in senses. Sant Ram remained in the hospital for 2-3 days. She has performed the last rights of Santa. She used to stay in the hospital from 6:00 a.m. to 8:00 p.m. In her cross-examination, she has deposed that she knew Lumberdar Sh. Nasib Chand and Shri. Jati Ram. There was no litigation between her, Sh. Nasib Chand and Sh. Jati Ram. However, Jati Ram used to ask for land for the construction of house. 15. PW-3, Dr. D.V.S. Chanaria, has deposed that Sh. Sant Ram was hospitalized between 27.11.1995 to 01.12.1995. He has proved the medical certificate Ex. PW3/A. He has denied the suggestion that Sh. Sant Ram was not admitted in the hospital. 16. DW-1, Sh. Ram Parkash has deposed that he has scribed the will Ex. DW1/A. He has written the will at the instance of Sant Ram. Marginal witnesses were present on the spot. The will was executed in favour of Shri Shiv Ram and others. The will was read over in the presence of witnesses to Sh. Sant Ram. He has put his thumb impression on the same after admitting the contents of the same to be correct. Thereafter, marginal witnesses have signed the will in the presence of Sh. Sant Ram. He has made the entry in his register at Sr. No. 572 on 29.11.1995 and obtained the thumb impression of Sh. Sant Ram. In his cross- examination, he has deposed that Sant Ram had come to him in the afternoon. The marginal witnesses were with him. Sh. Sant Ram has signed the will in the presence of marginal witnesses and the witnesses have also signed in his presence. He has admitted that Sant Ram was admitted in the hospital. He has not obtained the certificate from the doctor. According to him, Sant Ram was healthy. Defendant Shiv Ram was not with him. 17. DW-2, Shri Nasib Chand, has deposed that he knew Shri Santa. He was from his village. He has executed a will in favour of his nephew. He was told by Pola Ram that his uncle was admitted in the hospital and he and Jati Ram were summoned. They went to the hospital. Sant Ram was conscious. They inquired about his health. He was from his village. He has executed a will in favour of his nephew. He was told by Pola Ram that his uncle was admitted in the hospital and he and Jati Ram were summoned. They went to the hospital. Sant Ram was conscious. They inquired about his health. Thereafter, Santa and Jati Ram came to the Court complex. Santa got the will scribed from Sh. Ram Parkash. The contents of the will were read over to Santa. Santa, after admitting the contents of the same to be correct, put his thumb impression on the same. He and Jati Ram were present. Thereafter, he and Jati Ram signed the will as marginal witnesses. Thereafter, the will was produced before the Tehsildar for registration. The Tehsildar read over the contents of the will to Sant Ram. He was taken to Registration Clerk. The Registration Clerk got his signatures on the register. According to him, Sant Ram was in his senses. Paro used to stay in her parents house. In his cross-examination, he has deposed that Pola had come to him at 11: 00 a.m. He was all alone. Thereafter, they went to the house of Jati Ram. They reached the hospital at 12:30 p.m. Neither Shiv Ram nor Pola were there. They remained in the hospital for 1/2 an hour. Sant Ram remained in the hospital. There were about 10-15 patients in the ward. They did not go to the doctor, who was treating Sant Ram. In order to take Santa outside the hospital, they obtained permission of the doctor, but he did not know the name of the doctor. Thereafter, they came to the Court complex. Pola was with them. It took about 20-30 minutes to scribe the will. They reached the office of Tehsildar at 2:30-3:00 p.m. The Tehsildar read over the contents of the will to Sant Ram. The Tehsildar has not obtained the thumb impression of Sant Ram in his presence. Thereafter, Sant Ram was left in the hospital at 4:00 p.m. They came to know about the death of Sant Ram on 01.12.1995 in the morning. Sant Ram was suffering from Asthma and stomach ache. 18. DW-3, Sh. Naresh Chand, has proved Ex. DW3/A. According to him, in 1993-94, the Ration Card of Paro Devi was with her brother. Four family members have been shown in Ration Card No. 256. Sant Ram was suffering from Asthma and stomach ache. 18. DW-3, Sh. Naresh Chand, has proved Ex. DW3/A. According to him, in 1993-94, the Ration Card of Paro Devi was with her brother. Four family members have been shown in Ration Card No. 256. In his cross-examination, he has admitted that he has not prepared the Parivar register. He has not made any entry in the Ration Card register. 19. DW-4, Shri Rattan Chand, Secretary Gram Panchayat, Malpur has proved Ex. DW4/A. DW-5, Shri Faquir Chand, had deposed that he knew Sant Ram and Paro Devi. According to him, Paro Devi never stayed with Sant Ram as wife. There was prolonged litigation between the parties. He did not know when the marriage between Sant Ram and Paro was solemnized. He did not know about the details of litigation between Sant Ram and Paro Devi. 20. DW-7, Shiv Ram, has testified that Sant Ram was his maternal uncle. According to him, the litigation between Sant Ram and Paro lasted for 20 years. According to him, Paro Devi used to stay with her brothers. The will was executed on 29.11.1995. They got Sant Ram admitted in the hospital, since he was a patient of asthma. His brother Pola Ram was staying with him as attendant. He told him and his brother that the will was to be executed. He told them to bring Lumberdar, Sh. Nasib Chand and Jati Ram. His brother brought them in the hospital at 11:00 a.m. Thereafter, they went to the Court complex. He was brought back to the hospital at 3:00/3:30 p.m. He performed the last rites of Sant Ram. No relatives had come to perform the last rites. They were owners of the suit land. Sant Ram died at 2:00 p.m. 21.Plaintiff has proved Ex.-PA, copy of Jamabandi for the years 1990-1991. The name of Sant Ram has been shown in the column of ownership and cultivation. Ex. P-1 is the petition filed by Smt. Paro against deceased Santa under Section 488 Cr. P.C. in the Court of JMIC, Nalagarh on 02.05.1968. Ex. P-2 is the copy of reply filed by deceased Santa in maintenance petition No. 1/83, titled as Paro Vs. Santa. Ex. P-3, is the copy of order, passed by JMIC Nalagarh under Section 488 Cr. P.C. in case No. 1/83, Paro Vs. P.C. in the Court of JMIC, Nalagarh on 02.05.1968. Ex. P-2 is the copy of reply filed by deceased Santa in maintenance petition No. 1/83, titled as Paro Vs. Santa. Ex. P-3, is the copy of order, passed by JMIC Nalagarh under Section 488 Cr. P.C. in case No. 1/83, Paro Vs. Santa, which was decided on 06.12.1968 and maintenance at the rate of ‘40/- per month was granted to Paro. Ex. P-4 is the execution petition which was filed by Smt. Paro, plaintiff against the deceased Santa under Section 125(3), Cr. P.C. qua the recovery of maintenance allowance of ‘480/- and execution petition No. 6/4 of 1975 was filed on 05.09.75, which was decided on 14.7.1977. Ex. P-5 is the reply filed by the deceased Santa qua execution petition filed by the plaintiff. Ex. P-6 is the order of JMIC, Nalagarh, dated 11.08.1976, whereby warrant of attachment of property of deceased Santa was ordered by JMIC, Nalagarh for recovery of maintenance allowance of ‘480/- and objections filed by Santa were rejected by JMIC, Nalagarh. Ex. P7 is the execution petition No. 16/2 of 1970, which has been filed by Paro against the deceased Santa under Section 125(3) Cr. P.C. for recovery of ‘1500/-. Ex. P8, is the objection filed by the deceased Santa qua the execution petition filed by Paro. Ex. P9 is the copy of order passed by JMIC Nalagarh in case No. 16/2 of 1970. Ex. P­10 is the copy of petition filed under order 39 Rule 1 and 2 C.P.C. 94 and 151 C.P.C. Ex. P-11 is the reply filed by deceased Sant Ram in case No. 72/6 of 1977, titled as Paro Vs. Sant Ram. Ex. P­12 is the order of Sub-Judge 1st Class Nalagarh in case No. 72/6 of 1977. Ex. P13 and Ex. P-14 are the applications filed under Section 488 Cr. P.C. for the recovery of maintenance allowance of ‘400/-. Ex. P15 is the copy of order passed by Sub Judge 1st Class, Nalagarh. Ex. P15, which is marked twice instead of Ex. P16 is the copy of judgment passed by the learned Sessions Judge, Solan, Camp Court at Nalagarh in Cr. Rev. No. 8-S/10 of 1977, dated 10.01.1978. 22. The defendants have placed on record the copy of will Ex. DW1 /A. Ex. DW3/A is the residence certificate which has been issued by the Gram Panchayat, Dhaha. Ex. P16 is the copy of judgment passed by the learned Sessions Judge, Solan, Camp Court at Nalagarh in Cr. Rev. No. 8-S/10 of 1977, dated 10.01.1978. 22. The defendants have placed on record the copy of will Ex. DW1 /A. Ex. DW3/A is the residence certificate which has been issued by the Gram Panchayat, Dhaha. Ex. DW4/A is the family register issued by the Gram Panchayat, Malakoo Majra. Ex. PW2/A is the Kistwar Awadi Deh. Ex. PW3/A is the admission certificate of Sant Ram, deceased in hospital at Nalagarh w.e.f. 27.11.1995 to 01.12.1995. 23.What emerges from the facts enumerated hereinabove, is that Sant Ram was owner of the suit property. He was patient of Asthma. He was admitted in the hospital on 27.11.1995. He remained in the hospital as per Ex. PW3/A w.e.f. 27.11.1995 to 01.12.1995. Plaintiff is the wife of Sant Ram. There was litigation between Sant Ram and Paro Devi. However, as per the statement of PW-1, Shiv Ram and PW-2, Smt. Paro, the matter was resolved and Smt. Paro has started residing with her husband. The will was executed on 29.11.1995. 24.According to DW-7, Sh. Shiv Ram, Sant Ram has told him and his brother Pola Ram that he wanted to execute a will. He requested to summon Sh. Nasib Chand and Sh. Jati Ram. Thereafter, his brother went and brought Shri Nasib Chand and Shri Jati Ram. The will was scribed by DW- 1, Sh. Ram Parkash. Shri Sant Ram was in serious condition as per the statements of PW- 1 and PW-2. He was almost unconscious. Despite that, he was taken out from the hospital by the defendants. The defendants have not obtained any fitness certificate from the doctor whether Sant Ram was in sound disposing mind. The permission of the doctor was not sought before taking Sant Ram from the hospital. It was necessary for the defendants to seek fitness certificate from the doctor and also permission before taking Sant Ram out of the hospital. DW-2, Sh. Nasib Chand has been brought by brother of DW-7, Sh. Shiv Ram. Jati Ram was also brought by him. The defendants have actively participated towards the execution of will. The will was scribed in the Court complex. Thereafter, it was produced before the Registrar. DW-2, Shri Nasib Chand has categorically admitted that the thumb impressions were not put in the presence of Tehsildar. Shiv Ram. Jati Ram was also brought by him. The defendants have actively participated towards the execution of will. The will was scribed in the Court complex. Thereafter, it was produced before the Registrar. DW-2, Shri Nasib Chand has categorically admitted that the thumb impressions were not put in the presence of Tehsildar. The parties have gone to the Registration Clerk and the Registration Clerk has obtained their signatures on the register. Jati Ram has not been produced by the defendants. The defendants have not produced any witness from the office of Registrar/Sub Registrar, Nalagarh. Mere registration of the will, will not make it valid. All the suspicious circumstances were required to be removed/explained by the defendants. It has come in the statement of PW-2 that she knew Sh. Nasib Chand and Jati Ram. Sh. Jati Ram used to ask for land from her for the construction of the house. Plaintiff is the sole heir of late Shri Sant Ram @ Santa. There are no reasons assigned why she has been disinherited from the property by her husband. The defendants have also not led any evidence that they were looking after Sant Ram. To the contrary, it has come on record that he was looked after by the plaintiff. In a case where testator is seriously ill, it is always necessary to obtain fitness certificate from the doctor treating him, more particularly, when the patient is admitted in the hospital. The Court can take judicial notice that the patient cannot be taken out from the hospital without the written permission of the doctor. In the instant case, Sh. Sant Ram was taken out of the hospital from 11:00 a.m. till 3:30 p.m. Learned trial Court has correctly appreciated the oral as well as documentary evidence while returning the finding that the will executed on 29.11.1995 Ex. DW1/A was not validly executed by Shri Sant Ram in favour of the defendants. Learned 1st appellate Court has misconstrued the oral as well as documentary evidence while upholding the will, dated 29.11.1995, Ex. DW1/A. 25. In order to see whether the will has been validly executed or not, the learned Additional District Judge has not considered the sound and disposing state of mind of Sant Ram. He should have taken into consideration whether the testator has executed the will out of his free will. DW1/A. 25. In order to see whether the will has been validly executed or not, the learned Additional District Judge has not considered the sound and disposing state of mind of Sant Ram. He should have taken into consideration whether the testator has executed the will out of his free will. It was necessary for the defendants to discharge the burden regarding the legal and valid execution of will, dated 29.11.1995 by removing the suspicious circumstances. The defendants have failed to remove the suspicious circumstances and inherent improbabilities surrounding the will. No rights of the plaintiff in the property have been saved in the will and it seems to be unnatural. 26.Their Lordships of the Hon’ble Supreme Court in Smt. Indu Bala Bose and others Vs. Manindra Chandra Bose and another (1982) 1 Supreme Court Cases 20 have held that even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court by completely removing all legitimate suspicions. Their Lordships have explained the suspicious circumstances as under: “7. This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section. 63 of the Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator’s mind, the dispositions made in the will being unnatural, improbable or unfair in the light of relevant circumstances, or there might be other indications in the will to show that the testator’s mind was not free. In such a case the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. In such a case 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. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. (See AIR 1964 SC 529 , 1959 Suppl (1) SCR 426: ( AIR 1959 SC 443 ) & (1962) 3 SCR 195 : ( AIR 1962 SC 567 )).” 27.Their Lordships of the Hon’ble Supreme Court in Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur Vs. Smt. Chhoti and others (1990) 1 Supreme Court Cases 266 have held that burden is on the person claiming right on the basis of will. The suspicious circumstances can be taken into account by the Court. Their Lordships have further held that the will constituting the plaintiff as a sole legatee with no right whatever to the testator’s wife seems to be unnatural. Their Lordships have further held that it would be 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. Their Lordships have held as under: “20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The’ executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order or judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanour. 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 or 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. 22. The Privy Council in Mt. Biro v. Atma Ram, AIR 1937 PC 101 had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his step-mother and his paternal aunt ‘These women though entitled under the Hindu Law only to maintenance were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was, however, provided that the lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her husband’s estate, if she predeceased any of her co- devisees. The will was not produced until 22 years after its execution though there were occasions to produce it, had it been in existence. Considering these circumstances, the Privy Council observed (at p. 104): “It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them. That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But this is not the only circumstance which tells against its genuineness. That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But this is not the only circumstance which tells against its genuineness. The will purports to have been executed on 24th August 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so “ The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator’s wife seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff’s title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We, therefore, concur with the conclusion of the High Court and reject the will as not genuine.” 28.Their Lordships of the Hon’ble Supreme Court in Ram Piari Vs Bhagwant and others (1990) 3 Supreme Court Cases 364 have held that the testator must be in a testamentary capacity or have a disposing state of mind. In this case, the will was executed one day before the death of testator bequeathing all his properties to the sons of one of his two daughters while totally disinheriting the other daughter. Their Lordships have held as under: “2. Soft corner for grandchildren or like ability for a son or daughter or their issues is not uncommon to our society. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when dispute arises between heirs of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then Court’s responsibility of performing its duties carefully and painstakingly multiplies. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when dispute arises between heirs of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then Court’s responsibility of performing its duties carefully and painstakingly multiplies. Unfortunately it was not properly comprehended by any of the Courts, including the High Court which was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for Courts as their function is to judge not to speculate. Although freedom to bequeath one’s own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition.Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion. In H. Venkatachala v. B. N. Thimmajamma AIR1959 SC 443, it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, thus, by producing scribe or attesting witness or proving genuineness of testator’s thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Courts conscience is satisfied not only on execution but about its authenticity. See Kalyan Singh v.,Smt. Chhoti, (1989) 4 JT 439 ( AIR 1990 SC 396 ). 4. See Kalyan Singh v.,Smt. Chhoti, (1989) 4 JT 439 ( AIR 1990 SC 396 ). 4. Ratio in Malkani v. Jamadar, AIR 1987 SC 767 was relied on to dissuade this Court from interfering, both, because the finding that Will was genuine, was a finding of fact and omission to mention reason for disinheriting the daughter or taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani’s case was land. Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property or agricultural holdings from going out of family is well-known. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, then the standard of scrutiny is not the same and if the Courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review. Although this Court does not normally interfere with findings of fact recorded by Courts below, but if the finding is recorded by erroneous application of principle of law, and is apt to result in miscarriage of justice then this Court will be justified in interfering under Article 136.” In the instant case also, Sant Ram has died within three days after the execution of the will. The entire property including the FDRs. was bequeathed in favour of defendants totally disinheriting the wife. 29. Their Lordships of the Hon’ble Supreme Court in Bhagwan Kaur Vs. Kartar Kaur and others (1994) 5 Supreme Court Cases 135 have held that endorsement made by Sub- Registrar does not satisfy the requirements of Section 63 of Succession Act and does not reach up to the level of proof required under Section 68 of Evidence Act, mere registration of will is of no consequence. Their Lordships have held as under: “4. Decision on due execution of will, strictly speaking, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due execution. A method is proceeded (sic provided) in which a will shall be duly executed. Decision on due execution of will, strictly speaking, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due execution. A method is proceeded (sic provided) in which a will shall be duly executed. It inter alia provides that 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 of 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. In the matter of proof of a will Section 68 of the Indian Evidence Act, 1872 enjoins that if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. Proviso thereto states that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied. 5. It is required to be seen as to whether the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act had been satisfied when the High court took the exercise of examining the evidence and interfered in the finding. The approach of the High court one may say, may not be wholly unjustified, but regrettably we have to say that the result achieved was wholly undesirable. This is evident from the judgment itself where extracts of evidence have been reproduced. The approach of the High court one may say, may not be wholly unjustified, but regrettably we have to say that the result achieved was wholly undesirable. This is evident from the judgment itself where extracts of evidence have been reproduced. In the first instance, Nachhattar Singh (DW 1 one of the attesting witnesses when examined in court stated in his examination-in-chief to the effect : “The contents of the will were read over to Bachan Singh and he after admitting the same to be correct, put his signature in the presence of Jagtar Singh and me. I and Jagtar Singh put our signatures thereon in his presence.” While in cross-examination he went back on that plea and stated : “The will, Exh. D-l was scribed before my arrival and I put my signatures thereon at the instance of the defendant (the legatee). Neither Bachan Singh nor the defendant and any other witness had put his signature on Exh. D-l. I had also not put my signature on Exh. D-l in the presence of Bachan Singh.” 8. The High court took support for its view from the fact that the testator was a clerk of a lawyer, presumably knowing the intricacies of law, and that since he died about 4 years later that left no room for suspicion to the due execution of the will. The High court, however, ignored two important suspicious circumstances those being- (I) the legatee took active part in the execution of the will; and (ii) no provision was made in the will for the two widows of the testator, when one of whom, the appellant, was not even related to the legatee. The pious wish expressed by the High court that it was expected of the legatee to look after the welfare of the appellant was, according to us, of no consequence. Had these two suspicious circumstances been kept in mind by the High court, we have no doubt that the finding of fact disturbed by the High court would not have occasioned in the totality of circumstances. Thus, we have no option, but to upset the decision of the High court.” In the instant case, though the will was registered, but the parties have not signed in the presence of Sub Registrar. They have signed in the register before the Registration Clerk 30. Thus, we have no option, but to upset the decision of the High court.” In the instant case, though the will was registered, but the parties have not signed in the presence of Sub Registrar. They have signed in the register before the Registration Clerk 30. Their Lordships of the Hon’ble Supreme Court in N. Kamalam and another Vs. Ayyasamy and another (2001) 7 Supreme Court Cases 503 have held that signature of scribe of will cannot be granted equality of status with signatures of attesting witnesses, which are required under Section 63( c), (read with Section 68, Evidence Act and Section 3 of Transfer of Property Act) for proving property execution of a will. Their Lordships have held as under: “1. The latin expressions ‘onus probandi’ and ‘animo attestandi’ are the two basic features in the matter of civil Court’s exercise of testamentary jurisdiction : Whereas ‘onus probandi’ lies in every case upon the party propounding a Will - the expression ‘animo attestandi’ means and implies animus to attest : to put it differently and in common parlance it means intent to attest. As regards the latter maxim, the attesting witness must subscribe with the intent that the subscription of the signature made stands by way of a complete attestation of the Will and the evidence is admissible to show whether such was the intention or not (see in this context Theobald on Wills 12th Ed. Page 129). This Court in the case of Girija Datt v. Gangotri Datt ( AIR 1955 SC 346 ) held that two persons who had identified testator at the time of registration of the Will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put “animo attestandi”. In an earlier decision of the Calcutta High Court in Abinash Chandra Bid vanidhi Bhattacharya v. Dasarath Malo (1929) ILR 56 Cal 598 : (AIR 1929 Cal 123), it was held that a person who had put his name under the word “scribe” was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a “scribe”. In the similar vein, the Privy Council in Shiam Sunder Singh v. Jagannath Singh (1928) 54 Mad LJ 43 : (AIR 1927 PC 248) held that the legatees who had put their signatures on the Will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatee. In this context, reference may be made to the decision of this Court in M. L. Abdul Jabbar Sahib v. H. V. Venkata Sastri & Sons (1969) 3 SCR 513 : ( AIR 1969 SC 1147 ) wherein this Court upon reference to S. 3 of the Transfer of Property Act has the following to state (Para 8 of AIR) : “It is to be noticed that the word “attested”, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact, Briefly put, the essential conditions of valid attestation under S. 3 are : (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is as scribe or an identifier or a registering officer, he is not an attesting witness. 3. Turning on to the former expression ‘onus pro bandiç it is now fairly well-settled principle that the same lies in every case upon the party propounding the Will and may satisfy the Court’s conscious that the instrument as propounded is the last Will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the Will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the Will if the propounder leads evidence to show that the Will bears the signature and mark of the testator and that the Will is duly attested. This attestation however, shall have to be in accordance with S. 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well settled that in the event of there being circumstances surrounding the execution of the Will, shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence. 25. The requirement of attestation presently in the country is statutory in nature, as noticed herein before and cannot as such be done away with under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor shall have to be assessed in its proper perspective but that does not however mean and imply non-compliance of a statutory requirement. The intention of the attestor and its paramount importance cannot thwart the statutory requirement. No doubt the scribe has subscribed his signature but scribe in accordance with common English parlance means and implies the person who writes the document. Significantly, however, in England the King’s Secretary is popularly known as Scribaregis. Be that as it may, in common parlance an attribute of scribe as a mere writer as noted above, does not stretch the matter further. In the contextual facts, while the writer did, in fact, subscribe his signature but the same does not under-rate the statutory requirement of attestation as more fully described hereinbefore. True it is, that strenuous submissions have been made in support of the appeal that “attesting witnesses” have no other role to play but to subscribe their signatures in order to prove the genuineness of the Will and that in fact, when the scribe signs the Will, the same can be read as attestation. Needless to record however that the scribe Arunachalam was examined and it is on this score the learned advocate contended that the evidence of an attestor thus can be said to be on record so as to make the document namely the ‘will’ in the instant case thus otherwise in accordance with law. 26. Needless to record however that the scribe Arunachalam was examined and it is on this score the learned advocate contended that the evidence of an attestor thus can be said to be on record so as to make the document namely the ‘will’ in the instant case thus otherwise in accordance with law. 26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a will the same is required), is a requirement of the statute thus cannot be equated with that of the scribe. The Full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons v. Rahilna Bi, AIR 1962 Mad 111 , wherein Ramchandra Iyer, J. speaking for the full bench in his inimitable style and upon reliance on Lord Cambell’s observation in Burdett v. Spilsbory (1842-43 (10) Cl and F 340 : 59 RR 105) has the following to state pertaining to the meaning to be attributed to the word ‘attestation’ (paras 3 and 4 of AIR) : The definition of the term “attested” which is almost identical with that contained in S. 63(c) of the Indian Succession Act, has been the result of an amendment introduced by Act 27 of 1926. Prior to that amendment it was held by this Court that the word ‘attested’ was used only in the narrow sense of the attesting witness being present at the time of execution. In Shamu Pattar v. Abdul Kadir (1912) ILR 35 Mad 607 (PC), the Privy Council accepted the view of this Court that attestation of a mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that a mere acknowledgment of his signature by the executant to the attesting witness would not be sufficient. The amending Act 27 of 1926 modified the definition of the term in the Transfer of Property Act so as to make a person who merely obtains an acknowledgment of execution and affixed his signature to the document as a witness, an attestor. It will be noticed that although S. 3 purports to define the word “attested” it has not really done so. It will be noticed that although S. 3 purports to define the word “attested” it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose of the Act; the word ‘attest’ is used as a part of the definition itself. It is, therefore, necessary first to ascertain the meaning of the word “attest” independent of the statute and adopt it in the light of the extended or qualified meaning given therein. The word “attest” means according to the Shorter Oxford Dictionary “to bear witness to, to affirm the truth or genuineness of, testify, certify.” In Burdet v. Spilsbury, (1842-43) 10 Cl and F 340, Lord Cambell observed at page 417, “What is the meaning of an attesting witness to a deed? Why, it is, a witness who has seen the deed executed, and who signs it as a witness.” The Lord Chancellor stated, “the party who sees the will executed is in fact a witness to it, if he subscribes as a witness, he is then an attesting witness.” The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign. Further, attestation being an act of a witness, ie. to testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended by Act 27 of 1926 . Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution. Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution. (4) After the amendment of S. 3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received from the executant a personal, acknowledgment of his signature, mark, etc. Thus of the two significant requirements of the term “attest”, namely (1) that the attestor should witness the execution, which implies his presence, then, and (2) he should certify or vouch for the execution by subscribing his name as a witness; which implies a consciousness and an intention to attest, the Amending Act modified only the first, the result is that a person can be an attesting witness, even if he had not witnessed the actual execution, by merely receiving personal acknowledgment from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter requirement, namely, certifying execution which implies that the attesting witness had the animus to attest.” 27. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependant on the fact situation. The learned Judge as noticed above has himself recorded that two significant requirements of the term ‘attest’ viz., that the attestor should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not but depict otherwise. Unfortunately, however, the factual score presently available does not but depict otherwise. The scribe’s presence cannot be doubted but the issue is not what it is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise - this issue unfortunately we are not in a position to lend concurrence with. The will as produced, records the following at page 4 thereof (page 106 of the P. Book) :“Witnesses L. T. I. of Masanae Gowder 1. (Sd/- T. Subbiya) S/o Verai Gowder 25-298, Thomas Street Coimbatore. 2.(Sd/-) B. Govindaraju S/o S. Balagurumurthy Chettiar, 2 5/250, Rangai Gowder Street, Coimbatore. .. Sd/- Arunachalam” The animus to attest, thus, is not available so far as the scribe is concerned. He is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the Court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be proof of due attestation unless the situation is so expressed in the document itself. This is again however not the situation existing presently in the matter under consideration. Some grievance was made before this Court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available.” 31.Their Lordships of Hon’ble Supreme Court in Anil Kak Vs. Kumari Sharada Raje and others (2008) 7 Supreme Court Cases 695 have held that mere proving of signatures of executors and attesting witnesses is not sufficient. Their Lordships have held as under: “49. The execution of a Will does not only mean proving of the signatures of the executors and the attesting witnesses. It means something more. A Will is not an ordinary document. It although requires to be proved like any other documents but the statutory conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Indian Evidence Act cannot be ignored. It means something more. A Will is not an ordinary document. It although requires to be proved like any other documents but the statutory conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Indian Evidence Act cannot be ignored. 32.Their Lordships of the Hon’ble Supreme Court in Babu Singh and others Vs. Ram Sahai (2008) 14 Supreme Court Cases 754 have held that the will must be shown to be product of free mind of testator and propounder is required to dispel the suspicious circumstances surrounding the will. Their Lordships have held as under: “12. Indisputably a Will is to be attested by two witnesses in terms of Section 68 of the Indian Evidence Act (Act). Indisputably, the requirement of Section 63(1)(c) of the Indian Succession Act is required for to be complied with for proving a writ. Section 68 of the Act mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of Will must be proved but actually execution must be attested by at least two witnesses. Attestation must of execution of Will be in conformity with the provisions of Section 3 of the Transfer of Property Act. 13. ‘Attestation’ and ‘execution’ connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested. 14. In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words ‘at least’ have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. Proof of execution of the Will would, inter alia, depend thereupon. 15. The Court, while granting probate of the will, must take into consideration all relevant factors. It must be found that the will was product of a free will. The testator must have full knowledge and understanding as regards the contents thereof. For the said purpose, the background facts may also be taken note of. Where, however, a plea of undue influence was taken, the onus wherefor would be on the objector and not on the offender. {See Savithri & Ors. v. Karthyayani Amma & Ors. [JT (2007) 12 SC 248]} 17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, ie., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others. 18. Whereas, however, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Indian Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved.” 33.Their Lordships of the Hon’ble Supreme Court in Lalitaben Jayantilal Popat Vs. Pragnaben Jamanadas Kataria and others (2008) 15 Supreme Court Cases 365 have held that for proving a will mere fulfillment of statutory requirement is not sufficient, but the will should also be found to be ordinarily free from suspicious circumstances. Their Lordships have held as under: “8. The law in regard to proof of a valid Will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Their Lordships have held as under: “8. The law in regard to proof of a valid Will is now well settled. It has to be proved not only by proving the signature of the executor but it should be found to be free from any suspicious circumstances. Section 63(c) of the Indian Succession Act reads as under : “Section 63.—Execution of unprivileged Wills - -Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules :-(a) and (b) ... (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 acknowledgement of his signature or mark, or of 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.” Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses. 12. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. A Will is required to be attested by two or more witnesses. 12. Section 68 of the Evidence Act provides that the propounder must prove execution and attestation of the Will by examining at least one of the attesting witnesses. What is meant by the word ‘attestation’ is defined in Section 3 of the Transfer of Property Act which reads as under : Section 3.—Interpretation-clause—In this Act, unless there is something repugnant in the subject or context,-XXX XXX XXX “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” 20. Whether a Will is surrounded by suspicious circumstances or not is essentially a question of fact. We have noticed hereinbefore that there was a large number of suspicious circumstances in the instant case. We have also pointed out that suspicious circumstances appear on the face of the Will. Inferences of suspicious circumstances must be drawn having regard to the evidence of Ranjit Singh. Even the statutory requirements for proof of the Will have not been complied with. It is a trite law that execution of a Will must be held to have been proved not only when the statutory requirements for proving the Will are satisfied but the Will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the Court may take aid of the presumptive evidences also.” 34.Their Lordships of the Hon’ble Supreme Court in K. Laxmanan Vs. Thekkayil Padmini and others (2009) 1 Supreme Court Cases 354 have again reiterated that the onus to prove the will lies on the propounder. When such evidences are brought on record, the Court may take aid of the presumptive evidences also.” 34.Their Lordships of the Hon’ble Supreme Court in K. Laxmanan Vs. Thekkayil Padmini and others (2009) 1 Supreme Court Cases 354 have again reiterated that the onus to prove the will lies on the propounder. He should prove the legality of execution and genuineness of the will by explaining the suspicious circumstances, if any, surrounding the will and also by proving the testamentary capacity and the signature of testator. Their Lordships have further held that even where plea of suspicious circumstances is not raised but circumstances give rise to doubt, the propounder must satisfy the conscience of the Court by removing such doubt. Their Lordships have held as under: