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2014 DIGILAW 461 (GAU)

Kushal Kumar Das v. Nilima Mudoi

2014-04-25

NISHITENDU CHAUDHURY

body2014
1. This is an appeal under section 384 of the Indian Succession Act, 1925 challenging judgment and order dated 30.4.2010 passed by the learned Additional District Judge (FTC), Nagaon in T.S. (Probate) No. 54/2009 and thereby allowing the probate of Will dated 11.4.2007 claimed to have been executed by one Dhaneswar Bania. 2. The aforesaid probate proceeding was initiated on the basis of an application filed by executor Nilima Mudoi claiming that her father Late Dhaneswar Bania ('the testator') had executed a registered Will on 11.4.2007 thereby bequeathing his property in favour of two persons, namely, the executor herself and her brother's son, Sri Debastuti Das. It was stated in the application that testator was survived by two sons, namely, Sri Pabitra Kumar Das and Sri Kushal Kumar Das, one daughter Smt. Nilima Mudoi and a grand-son, Sri Debastuti Das as legal heirs. Sri Kushal Kumar Das, one of the two sons of the testator, filed objection raising dispute as to execution of Will and claiming that suspicious circumstances were present surrounding alleged execution of the Will. On such objection, the application filed under section 276 of the Indian Succession Act was converted in the form of suit under section 295 of the same Act and the learned court proceeded to decide the same by following procedures of a suit as far as practicable. 3. On the rival contentions of the parties, the learned court framed following five issues : (i) Whether plaintiff/petitioners has/have any cause of action? (ii) Whether the petition is maintainable in its present form under Indian Succession Act? (iii) Whether the Will, annexed with the petition for probate, was duly executed, attested by the executor, Sri Dhaneswar Bania? (iv) Whether Will in question was executed under suspicious circumstances and manufactured by plaintiff and as such the said Will is not genuine one? (v) To what relief/reliefs are the parties entitled under the law, equity and justice? 4. The propounder examined four witnesses including herself and exhibited 2 (two) documents, namely, the Will as Ext.1 and death certificate of the testator as Ext.2. The objector, on the other hand, examined two witnesses including himself. The learned court after hearing the parties and on perusal of the materials available on record, passed the impugned judgment and order dated 30.4.2010 allowing probate of the Will in question. The objector, on the other hand, examined two witnesses including himself. The learned court after hearing the parties and on perusal of the materials available on record, passed the impugned judgment and order dated 30.4.2010 allowing probate of the Will in question. This judgment and order passed by the learned probate court has been challenged in the present appeal. 5. I have heard Mr. S.K. Goswami, learned counsel for the appellant and Mr. A. Barkataki, learned counsel for the respondents. 6. After hearing the learned counsel for the parties and on perusal of the materials on record including the respective pleadings of the parties and the evidence led by them the following points for determination seem to arise in this appeal : (a) Whether the probate petition was duly and properly filed in accordance with the procedure prescribed by law as well as fundamental principles of judicial procedure? (b) Whether there are suspicious circumstances attending the execution of the Ext.1 Will and if so, whether the propounder has succeeded to dispel these suspicious circumstances by leading appropriate evidence? 7. Before deciding the aforesaid points for determination it is necessary to have an appraisal of the evidence led by both sides. Propounder was examined as PW1. She proved the Will in question as Ext. 1 and the death certificate of the testator as Ext.2. Her examination-in-chief was submitted under order XVIII, rule 4 of the Code of Civil Procedure in the form of an affidavit. She has stated in the said affidavit that before his death, testator used to live in his permanent residence at Nagaon Town. However, she is a permanent resident of Guwahati. According to her, she was informed about the Will when her father visited her Guwahati residence after execution of the Will. She claimed that a certified copy of the Will was handed over to her along with registration receipt by none other than the testator with request to collect the original Will by producing the registration receipt and thereafter to take necessary steps for probate thereof in appropriate time. She stated that her father executed and registered the Will on 11.4.2007 and by the said Will the property was bequeathed equally in her favour as well as Sri Debastuti Das, the grand-son of the testator. She stated that her father executed and registered the Will on 11.4.2007 and by the said Will the property was bequeathed equally in her favour as well as Sri Debastuti Das, the grand-son of the testator. She stated that in April 2008 her father came to her house when he had fallen sick and thereupon he was admitted to G.N.R.C. hospital and that the testator died on 21.4.2008 in the said hospital. In reverence to the solemn desire of her father, she made enquiry in Sub-Registry office and applied for the probate of the Will by filing the certified copy thereof along with probate petition. She claimed to have taken steps for calling the original Will from the custody of jurisdictional Sub-Registry. According to her, the testator bequeathed 3 Kathas, 314 Lechas of her land and Sri Debastuti Das in equal share and the rest of the movable and immovable property was entrusted to her for management and preservation. This witness was cross-examined by the objector. She disclosed during her cross-examination that she was the only daughter of the testator. However, the testator had three sons out of whom two were surviving at that time. Sri Pabitra Kumar Das was the eldest son with whom the testator did not have good relation and so disowned him. Sri Debastuti Das is the son of Pabitra Kumar Das. She stated that prior to death of testator, this Pabitra Kumar Das had filed a civil suit against the testator in Nagaon civil court in the year 2007. She further stated that her first husband died in a scooter accident where after she married for the second time. She further disclosed that testator had given land to the second wife of Sri Pabitra Kumar Das and also to the objector, Sri Kushal Kumar Das who is another son of the testator. She stated that testator had given land to her husband also but she could not recollect as to whether any land was given to her mother. Subsequently she stated that no land was given to her mother. She admitted in course of her cross-examination that her father used to reside in Nagaon along with family of Sri Kushal Kumar Das, the objector of the proceeding although the testator used to eat in a separate mess. Subsequently she stated that no land was given to her mother. She admitted in course of her cross-examination that her father used to reside in Nagaon along with family of Sri Kushal Kumar Das, the objector of the proceeding although the testator used to eat in a separate mess. In cross, she further claimed that she was informed telephonically by her father about execution of the Will and handed over the certified copy thereof on his visit to Guwahati in the year 2007. She stated that the land given by the testator to her husband was sold by her. According to her, she arranged for engagement of advocate to defend the testator in the suit instituted against him by Sri Pabitra Kumar Das. She, however, denied to have visited the house of the advocate for causing disposal of the suit on compromise or that testator was not physically and mentally fit at the time of execution of the Will or that on her inducement, the Will was made and that the Will was not made at the free volition of the testator. Although she did not exhibit the registration receipt of the Will but the same was put in record in original and the same is available there, 8. PW2, Madan Bairagi, is the scribe of Will in question. He stated that he is a petition writer in Nagaon sub-registry office since 1977. He proved Ext.1, Will and deposed that the Will was written by him at the instance of the testator by personally coming to Nagaon Sub-Registry Office. He had discussed about the Will 1 /2 days prior to the date of execution and it was ultimately written on 11.4.2007 in the sub-registry office. He claimed to have prepared the Will after having gone through the documents of the landed property of the testator. By the Will the testator bequeathed his property in favour of Smt. Nilima Mudoi and Sri Debastuti Das. He could not recollect as to whether anybody else had accompanied the testator as on that date. According to the PW2, on being read over the Will to him, the testator affixed his signature where after witness Sushen Saikia and Hara Bairagi gave their respective signatures. He stated that both the witnesses signed after the Will was signed by the testator in his presence. Sushen Saikia also signed as identifier at the time of registration. According to the PW2, on being read over the Will to him, the testator affixed his signature where after witness Sushen Saikia and Hara Bairagi gave their respective signatures. He stated that both the witnesses signed after the Will was signed by the testator in his presence. Sushen Saikia also signed as identifier at the time of registration. He stated that testator himself made expense for registration and also purchased the stamp paper for the purpose. In course of cross-examination, he stated that 1/2 days prior to the execution when the testator had visited him he did not bring Jamabandi of the land. No draft was prepared prior to preparation of Ext.1 and it was directly written on the stamp paper. He, categorically, stated that he did not know the son or daughter of the testator and knew the testator only. He purchased the stamp paper on the same day from vendor after coming to the sub-registry office. He stated that Sushen Saikia and Hara Bairagi sit in the adjacent table where he sits. Sushen Saikia's table is to the west of his seat whereas Hara Bairagi sits to the north. He, further, deposed in course of cross-examination that when he was writing the Will, the witnesses were busy in other works and after the Will was signed by the testator he took signature of the witnesses where after he himself gave his signature as scribe. Although he knew the testator well yet he did not identify him for the purpose of registration. He denied that the attesting witnesses did not give signatures in his presence. 9. PW3, Sushen Saikia stated that he is a Deed Writer in the Sub-Registry Office at Nagaon since 1974. He sits near Madan Bairagi and Hara Bairagi who are also deed writers like him. He claims to have personally known Dhaneswar who was a Jailor. This witness stated that Madan wrote Ext.1 Will on 11.4.2007 and thereafter read out the same to Dhaneswar who on being satisfied gave his signature thereon whereafter he and Hara Bairagi signed on the documents as witnesses. He proved the signatures of testator as well as that of himself and stated that he identified Dhaneswar in front of the Register. In course of cross-examination he could not say as to when was the deed executed. He could not say whether he had purchased the stamp paper. He proved the signatures of testator as well as that of himself and stated that he identified Dhaneswar in front of the Register. In course of cross-examination he could not say as to when was the deed executed. He could not say whether he had purchased the stamp paper. He deposed that the stamp paper was purchased on 11.4.2007. According to him after purchasing of the stamp paper, it was given to Madan Bairagi who wrote and gave signature as scribe where after Dhaneswar gave his signature. He said that Hara Bairagi signed while sitting in his own table when Dhaneswar was sitting in between he and Madan. He could not say what is the age of Dhaneswar Bania at that time. However, he denied that Dhaneswar did not give his signature in his presence. 10. PW4, Hara Bairagi is another witness of Ext. 1. He is also a deed writer of the same Sub-Registry Office. He said that on the very day the deed was executed, he came to know Dhaneswar. He had come once in the sub-registry office and held talks with Madan Bairagi. He stated that Dhaneswar executed Ext.l Will of which Madan Bairagi was the Scribe. According to him, after completion of writing of the deed Madan took signature of Dhaneswar and thereafter took his signature as well as the signature of Sushen and thereafter Madan gave his own signature. He claimed that when Dhaneswar gave signature he was present. However, he admitted that at the time of registration of the deed he was sitting outside. In course of cross-examination he stated that Madan identified Dhaneswar who had come at around 11.30/12.00 noon on 11.4.2007. At that time he was learning the job of a scribe under Madan Bairagi and since Madan asked him to sign on the Will as witness, he signed it. However, he denied that before he had given his signature, testator and Sushen did not give their signatures. 11. After the aforesaid 4 witnesses on the side of the propounder were examined, the objector filed affidavit on his behalf examining himself as DW1. The objector Kushal Kumar Das stated that propounder was his own sister and that the probate proceeding was filed on the basis of fraudulent and manufactured Will. 11. After the aforesaid 4 witnesses on the side of the propounder were examined, the objector filed affidavit on his behalf examining himself as DW1. The objector Kushal Kumar Das stated that propounder was his own sister and that the probate proceeding was filed on the basis of fraudulent and manufactured Will. He stated that propounder has all along been living outside Nagaon town and lastly at Guwahati and that she had never looked after the testator. For certain reasons the testator had disowned Sri Pabitra Kumar Das who is the elder brother of DW1 and Debasruti Das is the son of this Pabitra Kumar Das who never lived with testator at Nagaon. He claimed that his father died at 83 years of age and since March 2007 he was not in a sound and disposing state of mind. Having heard that testator was ill, Nilima (propounder) visited Nagaon in the last part of March 2007 and thereafter started visiting Nagaon frequently almost in every week. He admitted that he had strained relation with the propounder who had sold out the share of her property given by testator to her and had also taken away the money of the testator out of sale proceeds of 1 Katha of land. According to DW1 this information was disclosed to him by none other than the testator. He further stated that testator who was living with him never disclosed that he had any wish or intention to execute any Will. Since first part of April 2007 he was lying in unconscious state due to insomnia and there is no reason as to why the testator should have dis-inherited him from the property. The reason stated in the Will was imaginary as manufactured by the propounder. He claimed that the Will was never executed by the testator. In course of cross-examination he stated that testator died on 21.4.2008 at G.N.R.C. Hospital, Guwahati. He was suffering from heart ailments and according to medical certificate he died of renal failure. He was admitted to hospital on 11.4.2008 and he did not get him admitted. He said that his mother pre-diseased his father. Propounder is his elder sister and Pabitra Kumar Das is elder brother while Debasruti is son of Pabitra. He was suffering from heart ailments and according to medical certificate he died of renal failure. He was admitted to hospital on 11.4.2008 and he did not get him admitted. He said that his mother pre-diseased his father. Propounder is his elder sister and Pabitra Kumar Das is elder brother while Debasruti is son of Pabitra. He admitted that he did not make payment of bills in G.N.R.C. Hospital and that he along with his brother Pabitra had instituted Title Suit No. 24/2006 against their father in which Advocate Rabin Dey was their counsel. The suit ended in compromise on 10.9.2007 on joint application being filed by both the sides. Even in cross-examination he claimed that he and his father lived together and that he was compelled by the family members to institute the suit against his father. He stated that he did not know anything about the Will. None of the family members of the testator was aware about it. His father used to come to court in connection with T.S. No.24/ 2006 and that he knew how to write English as he retired as Jail Superintendent. He stated that he has speaking relation with his elder brother Pabitra Kumar Das although he did not have any discussion with him in regard to this proceeding. He stated that he was present in G.N.R.C. Hospital when his father died. On being pointedly asked as to whether there was any proof in support of his claim that the testator was not in sound and disposing state of mind he answered in the negative. According to him his residential house belongs to his father and that the land covered by the Will is a different land. He stated that he came to know about the Will only after getting notice in this case. All other suggestions put to him on behalf of the propounder were also denied by him. But he stated that on 11.4.2007, i.e., the date when Will is shown to have been executed, the testator was in his house and he had not gone out of the house during the whole day. He stated that his father was 87 years of age at the time of death. When his father was in Nagaon,Nilima used to visit sometimes from Guwahati and also when testator was hospitalized at G.N.R.C. for 2/3 times. 12. He stated that his father was 87 years of age at the time of death. When his father was in Nagaon,Nilima used to visit sometimes from Guwahati and also when testator was hospitalized at G.N.R.C. for 2/3 times. 12. DW2, Tankeswar Bora is a neighbour of the testator and the opposite party for long time. He claimed that he used to visit their house very occasionally but since first part of April 2007 he could not recognize the DW1. But after he was told his name then the testator could recognize him. He disclosed at that time that he was not feeling well. His health condition was not sound and he was mentally upset. But he never disclosed that he intended to make any Will in favour of anybody. He stated that during illness of testator, propounder used to visit his house and thereafter he was taken to Guwahati where he died. In course of cross-examination this witness claimed that he knew the testator since 1985. He knew his sons and daughters and his one son died. Younger son was Kushal, the opposite party whom he knew very well but he does not know anything about the Will. He stated that about 15/20 days prior to his death, testator was taken to Guwahati but since last one year he could speak only occasionally. 13. Upon perusal of the aforesaid evidence led by the parties, the learned trial court arrived at the finding that the Will was duly executed by the testator out of his own volition. The attesting witnesses and the scribe had duly proved the Will and that there was no suspicious circumstances attending execution of the Will. 14. With these findings, the learned court allowed the probate proceeding and granted probate of the Will dated 11.4.2007 as prayed for by the propounder. This judgment has been brought under challenge in the present appeal. From the aforesaid conspectus of circumstances brought on record by the parties, some facts are admitted. 14. With these findings, the learned court allowed the probate proceeding and granted probate of the Will dated 11.4.2007 as prayed for by the propounder. This judgment has been brought under challenge in the present appeal. From the aforesaid conspectus of circumstances brought on record by the parties, some facts are admitted. These are, the testator used to ordinarily reside in Nagaon in the same house where the objector and his family members lived, the testator had disowned his elder son Pabitra who had filed a suit against his own father, one of the two beneficiaries happens to be son of this disowned son of testator, the testator died in GNRC Hospital at Guwahati on 21.4.2008 and that one of the beneficiaries Smt. Nilima Mudoi who is also the executor of the Will got the testator admitted to GNRC Hospital at Guwahati and looked after him during this period. The dispute is in regard to execution of Will and finger of suspicion has been pointed towards the propounder. 15. The first point for determination in this case as referred to above being related to validity of the probate proceeding, it is first taken up for decision. Under the provisions of the Indian Succession Act, 1925, the District judge has been vested with Power not only to grant probate but also to revoke the same in appropriate case and existence of such jurisdiction of the District Judge is indicated in section 296 of the Indian Succession Act, 1925 ('the Act'). The Act has not laid down the circumstances when can an order granting probate be revoked. However, invalidity of a will has been the subject in a number of places in the whole body of the Act. For instance, section 59 lays down the guideline to determine as to who is competent to make Will. Section 61 provides that in case of fraud, coercion or importunity a Will would be void. Section 63 lays down the procedure for making Will. Section 89 mandates that in case of uncertainty a bequest would be void. These are some of the situations when a bequest would be illegal or void. Section 276 shows what should be content of a probate application. It does not require disclosure of the names of the legal heirs. Section 63 lays down the procedure for making Will. Section 89 mandates that in case of uncertainty a bequest would be void. These are some of the situations when a bequest would be illegal or void. Section 276 shows what should be content of a probate application. It does not require disclosure of the names of the legal heirs. However, in section 278 while laying down the requirements for a petition for getting letter of administration it has been specifically required under clause (b) that mention should be made of the family or other relatives of the deceased and their respective residences. Now, a question may legitimately arise as to whether disclosure of .the names of legal heirs and representatives is necessary in a petition for probate when section 276 does not require so. To find answer to this question it is necessary to examine as to what would happen if a legal heir or representative of a deceased testator is kept in dark about a probate order. A legal heir/legal representative of a person dying intestate automatically inherits the estate of the deceased to the prescribed proportion under law. A probate proceeding is essentially a judicial proceeding. The valuable right of inheritance of a legal heir/representative of a person dying intestate is limited or extinguished in such proceeding. Probate of a Will bars flow of title in the legally prescribed channel adversely affecting some or all of the legal heirs. It is an incident in law of divesting or limiting right, title and interest of a legal heir which consequently would occasion civil consequence on him. In that view of the matter, compliance of the principles of natural justice must be an inherent requirement in such proceeding failing which the whole exercise shall be vitiated. The sections referred to above deal with validity of a Will and not the validity of probate proceeding. As stated above, the proceeding being essentially a judicial proceeding, the fundamental judicial procedures like compliance of the principles of natural justice has to be ensured both in letter as well as in spirit. In the instant case, it has come out from the depositions of the probate petitioner that all the legal heirs of the deceased were not made parties. The legal heirs of Chandrakamal Das, the predeceased son of the testator have not been made parties in the proceedings. In the instant case, it has come out from the depositions of the probate petitioner that all the legal heirs of the deceased were not made parties. The legal heirs of Chandrakamal Das, the predeceased son of the testator have not been made parties in the proceedings. In this view of the matter, the very proceeding has been vitiated. The first point for determination, therefore, is decided in favour of the appellant and against the respondent. 16. The second point for determination in this appeal is in regard to execution of the Will. Learned counsel of the appellant has strenuously urged that there are suspicious circumstances galore in this appeal. He further submits that the alleged execution of the Will is attended by suspicious circumstances and the following are those suspicious circumstances : (i) the Will 4s written in two sheets whereas the signatures of the testator are on the upper part of the paper which gives rise to suspicion that the paper was signed by the testator for being used in the suit filed against him by his sons. If the Will would have been really executed the signature would have been given at the space where the recital ends. The testator was a retired Jail Superintendent and he was an educated person; (ii) the Will does not contain a definite description of the properties sought to be bequeathed. The recital if taken at face value would mean that entire property of the testator has been placed at the custody of the propounder. The uncertainty of the properties mentioned in the Will not only is indicative of indecisiveness of the testator but also gives rise to suspicion as to whether the Will was at all executed or not; (iii) the executor of the Will being the prominent beneficiary as well, this itself is a suspicious circumstance; (iv) the propounder deliberately did not implead all the legal heirs of the testator understandably to obtain probate behind their back and this can be only due to the fact that the propounder is aware about the falsity of the execution or factors influencing execution, if there was at all any execution. The learned counsel has also argued that merely because some tutored witnesses supported the claim of the propounder that they were present when the testator had executed the Will, and that they gave their respective signatures on the Will as witnesses in presence of the testator after he had so executed, would not be sufficient to grant probate. The propounder is duty bound to dispel the last stain of suspicion by leading cogent evidence. In support of his contention, the learned counsel has placed reliance on the following decisions : Bharpur Singh v. Shamser Singh, (2009) 3 SCC 687 . Anil Kak v. Sharada Raje, (2008) 7 SCC 695 . H. Venkatachala lyenger v. B.N. Thimmajama AIR 1959 SC 443 . Lalitaben jayantilal Popat v. Prganben J. Kataria, (2008) 15 SCC 365 . 17. In the case of H. Venkatachala fyangar (supra) the hon'ble Supreme Court elaborately dealt with the law as to proof of Wills. In paragraph 18 of this judgment, the hon'ble Supreme Court observed that a party propounding a Will or otherwise making a claim under a Will is no doubt seeking to prove a document and in deciding how it is to be proved sections 67 and 68 of the Evidence Act are relevant. Under section 67 of the Evidence Act, if a document is alleged to be signed by a person the signature of the said person must be proved to be in his hand writing and for proving such a hand writing under section 45 and 47 of the Act the opinions of experts and person acquainted with the hand writing of the person concerned are made relevant. Section 68 deals with proof of execution of documents which are required by law to be attested. Section 68 provides that such a document shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. In the same breath, sections 59 and 63 of the Indian Succession Act, 1925 are also relevant in this regard. Section 59 provides as to who can make a Will. As per this section every person of sound mind not being a minor is capable of making Will. In the same breath, sections 59 and 63 of the Indian Succession Act, 1925 are also relevant in this regard. Section 59 provides as to who can make a Will. As per this section every person of sound mind not being a minor is capable of making Will. Section 63, on the other hand requires that testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and that signature or mark, as the case may be, should indicate the intention of the testator to give effect to the writing as a Will. This section requires that a Will should be attested by two or more witnesses. On joint reading of section 63 of the Indian Succession Act and section 68 of the Indian Evidence Act, it is clear that a Will has to be proved by examining at least one attesting witness. On such observation, the hon'ble Supreme Court held as follows : "18. Thus question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the Will? Did he understand the nature and effect of the dispositions in the Will? Did he put his signature to the Will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof Wills. It would prima facie be true to say that the Will has to be proved like any other document expect as to the special requirements of attestation prescribed by section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of satisfaction of the prudent mind in such matters. 19. However, there is one important feature which distinguishes Wills from other documents. As in the case of proof of other documents so in the case of proof of Wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of satisfaction of the prudent mind in such matters. 19. However, there is one important feature which distinguishes Wills from other documents. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the testator. Even so, in dealing with the proof of Wills the court Will start on the same enquiry as in the case of the proof of documents. The propounde would be called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the depositions and put his signature to the document of his own free Will. Ordinarily when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in unnatural, improbable or unfair in the light of relevant circumstances; or, the Will may otherwise indicate that the said dispositions may not be the result of the testator's free Will and mind. In such cases the court would naturally expect that the legitimate suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant or treat the document as the last Will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the Will propounded, such pleas may have to be proves by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free Will in executing the Will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred, in some cases the Wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstances attending the execution of the Will and the propounder is required to remove the said suspicious by clear and satisfactory evidence, it is in connection with Wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to Wills; but any objection to the use of word "conscience" in this context would, in out opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last Will of the testator, the court is deciding a solemn question and it must be fully satisfied that it has been validly executed by the testator who is no longer alive." 18. The law laid down in the case of H. Venkatachala lyengar (supra) was considered and followed in subsequent judgments in umpteen number of cases. In the case of Surendra Pal and Others v. Dr. The law laid down in the case of H. Venkatachala lyengar (supra) was considered and followed in subsequent judgments in umpteen number of cases. In the case of Surendra Pal and Others v. Dr. (Mrs) Saraswati Arora, (1974) 2 SCC 600 the guidelines in regard to nature and extent of burden of proof on the propounder was restated. The hon'ble Supreme Court held in the said case that propounder is duty bound to show that the Will was signed by the testator, that he was at the relevant time in sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free Will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder stands discharged. In paragraph 7 of the judgment it was further held that when execution is surrounded by suspicious circumstances such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair or where there are other persons for doubting that the dispositions of the Will are not the result of the testator's free Will and mind, in all those cases the legitimate suspicious circumstances must be reviewed and satisfactorily explained before the Will is accepted. In the same paragraph, the hon'ble Supreme Court restated the concern expressed in H. Venkatachala lyengar (supra) that in a case where propounder himself takes a prominent part in the execution of the Will and derives benefit out of the Will it must be viewed as a suspicious circumstance. 19. All the major previous judgments of the hon'ble Supreme Court in regard to proof of execution of Will were reiterated in the case of B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449 and Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 . The burden of proof on the propounder and the standard of proof of a Will have been discussed in the said judgments also relying on the guidelines broadly laid down in the earlier case of H. Venkatachala lyengar (supra). 20. The burden of proof on the propounder and the standard of proof of a Will have been discussed in the said judgments also relying on the guidelines broadly laid down in the earlier case of H. Venkatachala lyengar (supra). 20. In Bharpur Singh (supra) all previous judgments of the hon'ble Supreme Court starting from 1959 have been discussed. The synopsis of these judgments is that a Will must be proved having regard to the provisions of section 63 of the Act and section 68 of the Evidence Act. Atleast one attesting witness should be examined to prove execution of Will. Although the burden is on a propounder to prove execution of Will by the testator being in sound and disposing state of mind but once the caveator takes a ground that the Will was executed by playing fraud or coercion on the testator in that event, the burden shall be on the caveator. An illustrative list of suspicious circumstances has been furnished in the case of Bharpur Singh (supra) which includes a case where the propounder takes substantial benefit in the Will like the present case. However, referring to Anil Kak (supra), it has been held in Bharpur Singh (supra) that court is required to adopt a rational approach, to satisfy its conscience as to existence of the suspicious circumstances. It is also to be seen as to whether animus attestandi of the attesting witness is proved. If law so far settled in this regard is to be summarized in a sentence, it can be said that not only due execution of the Will is to be proved by the propounder by examining at least one Attesting Witness but also it has to be proved that the testator desired to execute the Will out of own volition and free Will without there being any force, coercion or undue influence and that, too, being in sound and disposing state of mind. To ensure that a solemn document of a dead person receives due importance, care and caution, the procedural safeguards like general citations as provided under section 283 of the Act and above all principles of natural justice have to be scrupulously complied. 21. To ensure that a solemn document of a dead person receives due importance, care and caution, the procedural safeguards like general citations as provided under section 283 of the Act and above all principles of natural justice have to be scrupulously complied. 21. In the case in hand, the propounder gave an impression during evidence that she was not present at the time of execution of the Will but she was informed by the testator later on while giving her a certified copy of the Will. But the same propounder placed on record the registration receipt of the Will which, however, was not formally exhibited and from the said receipt it appears that the propounder was involved in the process. Although, it is settled law that a document merely placed in record but not duly exhibited cannot be relied on (see Amarnath Agarwala v. Dhilloy Transport Agency, AIR 2007 SC 2402 Pr. 2) yet court cannot shut its eyes to such a conspicuous deviation in the stand of propounder. This may be yet another suspicious circumstance because there is scope to have an impression that the propounder is trying to hide something and that she had taken prominent role in execution of the Will. It is equally true that statement of a tutored witness cannot be the sole yardstick for verifying execution of a solemn document like Will. The overall circumstances have to be considered in entirety to satisfy the conscience of the court. The impugned judgment instigates a feeling that something more was required to have been done by the learned probate court to ensure a full proof answer to the vexed questions referred to above. Since, while deciding the first point of determination it has been held that the proceeding itself is vitiated for not impleading the legal heirs of late Chandrakamal Das, this court feels that in the interest of propriety and fairness to both sides, no opinion should be given on the second point for determination and the learned trial court be allowed to make a fresh exercise keeping in view the observations made hereinabove. 22. The appeal is accordingly allowed. Impugned judgment and order is set aside and the case is remanded to the learned trial court with direction to implead legal heirs of late Chandrakamal Das, the predeceased son of the testator and thereafter to decide the probate proceeding afresh. 22. The appeal is accordingly allowed. Impugned judgment and order is set aside and the case is remanded to the learned trial court with direction to implead legal heirs of late Chandrakamal Das, the predeceased son of the testator and thereafter to decide the probate proceeding afresh. Having regard to the fact that the matter is considerably old, the learned trial court shall endeavour to decide the matter expeditiously and preferably within six months from the date of receipt of records. Send down records immediately. No order as to costs.