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2014 DIGILAW 516 (GAU)

Siba Gogoi v. Haren Gogoi

2014-05-13

C R SARMA

body2014
JUDGEMENT AND ORDER (CAV) 1. The above mentioned appeals are directed against the common judgment and order, dated 03.07.2002, passed by the learned District Judge, Tinsukia in Misc (probate) Case No. 114 of 2002 and Misc. Case No. 88 of 2002. As both these appeals have arisen out of the common judgment and order, involving same parties, represented by same sets of Advocate, for the sake of convenience and brevity, I have heard the appeals together and propose to dispose of the said appeals by this common judgment and order. 2. The relevant facts that may be necessary for the purpose of disposal of the appeals, may, in brief, be stated as follows: (i) The appellant is the wife of late Monoj Gogoi (hereinafter called the deceased) and Master Tusher Gogoi, respondent No. (ii) in Misc. (probate) Case No. 114 of 2002, is their minor son. The respondent Nos. 1 and 2 are the brother and the sister respectively of the deceased-husband of the appellant. (ii) The said couple, by entering into an agreement of separation, was living separately and the appellant instituted a proceeding, being Misc.(J) Case No. 128 of 2001, under Sections 18/20 of the Hindu Adoptions and Maintenance Act, 1956, seeking maintenance allowance for herself and their son from the deceased husband. (iii) On 21.01.2002, in Misc. Case No. 128 of 2001, the deceased filed an application, seeking conciliation between the couple with a view to continue with their peaceful marital life. The said petition was posted on 29.01.20012 and the same was pending for conciliation. The deceased, being an employee of the Indian Oil Corporation (for short IOC), on his transfer went to Jhunjhunu in Rajasthan and returned to Digboi in the Ist week of April, 2002. But, after his return to Digboi, in the Ist week of April, 2002, the deceased was found missing from 8.4.2002 and his dead body was found floating on 10.4.2002 in a drain (pond) near his paternal residence. As per postmortem report, he sustained injury caused by blunt object and the cause of death was drowning. (iv) On his death, the appellant, claiming to be his legal heir, filed an application under Section 372 of the Indian Succession Act, 39 of 1925, seeking a succession certificate for herself and their minor son. This application was registered as Misc. (Succession) Case No. 88/2002. (iv) On his death, the appellant, claiming to be his legal heir, filed an application under Section 372 of the Indian Succession Act, 39 of 1925, seeking a succession certificate for herself and their minor son. This application was registered as Misc. (Succession) Case No. 88/2002. The present respondent No. 1 (brother of the deceased) also filed an application [Misc. (probate) Case No. 114/2002], seeking a probate of Will in respect of the properties as mentioned in the Schedule ‘A’ of the petition, on the ground that the deceased had executed a Will bequeathing his property in favour of the respondent Nos. 1 and 2 and his minor son. The said application for probate of Will was registered as Misc. (probate) Case No. 114 of 2002. The respondent No. 1 in the probate case i.e. wife of the testator contested the claim of the petitioner by filing a written objection. She, challenging the validity, sufficiency, execution, attestation and the period of execution of the Will, contended that the will was a forged one and that her deceased husband, who expressed his desire to settle the maintenance Case No. 128 of 2001, for the purpose of their reunion, never executed the will and that his dead body was found in suspicious condition. She also averred that she, being a nominee in respect of the LIC policy and the service record of her deceased husband, was entitled, alongwith her minor son, to inherit the properties left by her said husband. She prayed for dismissal of the application for probate. She also contended that the Will has been fraudulently prepared for depriving her from the property of her husband and that failure of the petitioner to mention about the Will in his objection, dated 17.4.2002, filed before the LIC authority in connection with the claim of the appellant in respect of the LIC benefit of the deceased, indicates that the Will was not in existence till the said date and that the same was subsequently prepared to defeat her claim. 3. Considering the evidence on record, the leaned District Judge held that the Will was executed by the testator, that the petitioner was entitled to get probate certificate in respect of the properties, included in the Will and that the respondent No. 1 (i.e. the present appellant) was not entitled to get succession certificate in respect of the property of her deceased husband. 4. Aggrieved by the said judgment and orders, the wife-respondent, as appellant, has come up with these appeals. The grounds of challenge, amongst others, are that the learned District Judge failed to properly appreciate that there existed sufficient suspicious circumstances regarding execution of the Will, that the findings of the leaned trial Judge, that in view of the separation agreement the deceased had intended to cancel the nomination of the appellant and that the will was neither bad in law nor the wife was entitled to inherit any property of the deceased, are enormous and not based on record, inasmuch as the said findings are contradictory to the intention expressed by the testator in his application, filed in a Misc. (J) Case No. 128/2001. She has prayed for setting aside the impugned judgment and order and also sought a succession certificate in her favour, in respect of the property of her husband. 5. Having heard the leaned counsel for both the parties and carefully perusing the materials, on record and the impugned judgment and order, I dispose of both the said appeals, by this common judgment and order, as follows. 6. Regarding maintainability of the petition for probate, it is found that the petition has been filed in the court of the competent jurisdiction. The concerned Will has been exhibited. The application is supported by an affidavit of a witness to the Will and all the legal heirs and near relatives were made parties and notified. There is nothing on record, to show against the maintainability of the petition. In view of the above, the learned trial Judge, has rightly decided the question regarding maintainability of the proceeding in affirmative. 7. The crux of the dispute is whether the deceased had executed the will, on 01.02.2002, as his last will in good health and sound mind. The issue Nos. (ii) and (iii) which include the said questions, have been decided by the learned Sessions Judge in affirmative i.e. in favour of the petitioner. 8. Mr. 7. The crux of the dispute is whether the deceased had executed the will, on 01.02.2002, as his last will in good health and sound mind. The issue Nos. (ii) and (iii) which include the said questions, have been decided by the learned Sessions Judge in affirmative i.e. in favour of the petitioner. 8. Mr. SK Goswami, learned counsel, appearing for the appellant, has submitted that the deceased never executed the Will during his life time, inasmuch as, he, by filing an application in the maintenance case [Misc.(J) Case No. 128/2001], expressed his desire for reunion by exonerating all the lapses, on the part of the appellant-wife and that it is hardly believable that, during the pendency of the said application, that too within eight days of expressing such desire, the deceased would have executed the Will, depriving his wife from his property entirely and his only son from the full share of his property. The learned counsel for the appellant has also contended that, after the death of the deceased, the appellant had approached the LICI for releasing the benefit arising out of the Insurance Policy, in respect of which her name was recommended, by her deceased-husband, as a nominee, but the respondent No.1 i.e. the brother of the deceased, who is one of the beneficiaries and propounder of the Will, filed objection against the prayer for release of money, alleging, therein, that, in view of judicial separation agreement, the wife i.e. the appellant was not a legal heir of the deceased. It is submitted that the failure of respondent to mention about the Will in the said objection implies that, in fact, there was no will on the said date of filing of objection. Therefore, it is strongly argued, by Mr. Goswami, learned counsel for the appellant that, the will was, subsequently and fraudulently prepared using the signature of the deceased, which was previously obtained on blank papers, with a view to deprive the appellant from the property of her husband. It has further been submitted that the propounder of the will i.e. the respondent No. 1, being a beneficiary and PW 2 (attesting witness), being a close relative (brother-in-law) of PW 1, their evidence regarding execution and genuineness of the will cannot be accepted without doubt. It is also contended, on behalf of the appellant, that the contradictory evidence, given by PW Nos. It is also contended, on behalf of the appellant, that the contradictory evidence, given by PW Nos. 1 and 2 regarding the time of preparation of the will raises doubt about the execution of the will by the testator and that the said suspicious circumstances indicate that the will was not a genuine one and as such the respondent Nos. 1 and 2 are not entitled to get any benefit from the said will. Mr. Goswami, learned counsel for the appellant, has also submitted that the appellant and her minor son, being the class-I legal heirs of the deceased, are entitled to get succession certificate in respect of the property left by her said husband. 9. In support of his contention, the learned counsel for the appellant has relied on the following decisions: 1. (2008) 7 SCC 695 (Anil Kak Vs. Sharada Raje). 2. AIR 1959 SC 443 (1) (H. Venkatachala Iyengar Vs. B.N. Thimmajamma and others). 3. (2009) 3 SCC 687 (Bharpur Singh and others Vs. Shamsher Singh). 4. 2011 (1) GLT 435 (Kamakhya Prasad Gupta and another Vs. Jibon Lal gupta). 5. AIR 2009 SC 1389 (Lalitaben Jayantilal Popat Vs. Pragnaben Jamnadas Kataria and ors.). 6. (2008) 15 SCC 365 ( Lalitaben Jayantilal Popal Vs. Pragnaben Jamnadas Kataria and others). 10. Refuting the said argument, advanced by the learned counsel for the appellant, Mr. G.N. Sahewalla, learned senior Advocate, appearing for the respondents, has submitted that there is nothing, on record, to doubt the validity and genuineness of the will, rather, it is submitted, there is sufficient evidence, on record, to show that the testator, during his life time, with sound health and mind had executed the will in presence of the attesting witnesses. It is also submitted that the examination of the will has been duly proved by the propounder of the will (respondent No. 1) and the attesting witness (PW No. 2) and that the contents of the will clearly indicate that the testator, with sound health and mind, had executed the will, thereby refusing to give any share, in his property, in favour of his wife, due to her ill-treatment towards him. The learned senior counsel, appearing for the respondents, has also submitted that the learned trial Judge committed no error or illegality, in the eye of law, by granting the probate certificate in favour of the respondent and thereby refusing to grant succession certificate in favour of the appellant. 11. In support of his submissions, the learned senior counsel, has relied on the following decisions. 1. (2007) 11 SCC 621 (Savithri and others Vs. Karthyani Amma and others. 2. (2005) 11 SCC 189 (Durga Vs. Anil Kumar). 12. From the rival contentions, raised by both the parties, it appears that there is no dispute regarding the signature of the testator in the will. The dispute, raised by the appellant, is that the will has been fraudulently prepared, after the death of her husband, by using the signed papers, in collusion with the advocate of the deceased, who was engaged by the deceased in the Misc. Case 281 of 2001, filed by the appellant against her said husband. In view of the above, it is to be determined as to whether the said will is a genuine one? 13. The law regarding genuineness of a will has been laid down in a catena of decisions. In the case of Anil Kak (Supra), the Supreme Court observed: “49. The (sic proving of) execution of a will does not only mean proving of the signature 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 document but the statutory conditions imposed by reason of Section 63 (c) of the Act and Section 68 of the Evidence Act can’t be ignored. 53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. 54. It may be true that deprivation of a due share by (sic to) the natural heir by itself my not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a will. 55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.” 14. As held in the said case the execution of will must be proved at least by one of the attesting witnesses. In the case of Benge Behera Vs. 55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.” 14. As held in the said case the execution of will must be proved at least by one of the attesting witnesses. In the case of Benge Behera Vs. Braja Kishore Nanda ( 2007 SCC 728 ), it has been held that the existence of the suspicious circumstances itself may be held sufficient to arrive at a conclusion that the Will has not been duly proved. 15. Admittedly, in the case at hand, the natural heir i.e. the wife/appellant has been deprived from the entire share and the only son has been deprived from the full share in the property left by the deceased. In view of the above, deprivation of the natural heirs suggests existence of suspicious circumstances in the execution of the will, raising doubt about its genuineness. Therefore, the deprivation of the natural heir is a factor for consideration, with regard to the genuineness of the will. 16. In the Case of H. Venkatachala Iyengar (Supra) the Supreme Court observed that if the propounder received substantial benefits and played prominent role in execution of the will, then the execution of the will is to be treated as an act done under suspicious circumstance and that the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is the burden of the propounder to satisfy the conscience of the court for holding that the instrument so prepared is the last will of a free and capable testator. It has also been observed that the genuineness of the will, despite existence of the signature of the testator, is liable to be rebutted by proof of suspicious circumstances. Therefore, existence of the signature of the testator on the will cannot be sufficient to hold the will to be a genuine one. 17. In the case of Bharpur Singh (Supra) the Supreme Court observed: “14. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator.” In the said case, the Supreme Court referred to the following observations made in the case of H. Venkatachala (Supra) regarding the burden of a propounder of a will: (i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will and (ii) when the evidence adduced in support of the will disinterested satisfactory and sufficient to prove the sound and disposing state of testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of a propounder, and (iii) If a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein.” The Supreme Court, in Bharpur Singh (Supra), while discussing the factors relating to suspicious circumstances observed:- “23. Suspicious circumstances like the following may be founded to be surrounded in the execution of will: (i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. (ii) The condition of the testator’s mind may be feeble and debilitated at the relevant time. (iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like execution of or absence of adequate provisions for the natural heirs without any reason. (iv) The dispositions may not appear to be the result of the testator’s free will and mind. (v) The propounder takes a prominent part in execution of the will. (vi) The testator used to sign blank papers. (iv) The dispositions may not appear to be the result of the testator’s free will and mind. (v) The propounder takes a prominent part in execution of the will. (vi) The testator used to sign blank papers. (vii) The will did not see the light of the day for long. (viii) Incorrect recitals of essential facts. 24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of providing the will need not be complied with.” 18. In the case of Lalitaben Jayantilal Popat (Supra), the Supreme Court observed: “11. 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 read as under: Section 63.- Execution, of unprivileged wills-every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,} or a mariner at sea, shall execute his Will according to the following rules:- (a) -- (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.” 19. In view of the above, for valid execution of a will, the attesting witness must sign the will and they must see the testator signing the same or affixing his mark to the will or by some other person by his direction and in his presence. In view of the above, for valid execution of a will, the attesting witness must sign the will and they must see the testator signing the same or affixing his mark to the will or by some other person by his direction and in his presence. If the testator does sign or affix his mark to the will in presence of one of the attesting witnesses then the witness signing the will, as an attesting witness, must receive an acknowledgment from the executant a personal acknowledgement of his signature or mark or of the signature of such other persons, each of whom has signed the instrument in presence of the executant. However, all the witnesses need not be present at the same time. If one of the attesting witnesses is examined, he must prove the attestation of the will by the other witness in presence of the testator and failure do so will be a deficiency. It must be proved that the attesting witness signed the will in presence of the testator. 20. In this Case the observations made in the case of Anil Kak (Supra) regarding the standard of satisfaction of the court has been referred. 21. In the case of Durga Vs. Anil Kumar reported in (2005) 11 SCC 189 the Supreme Court found that both the witnesses deposed that the testator in sound mind had executed and signed the Will on being read over to them and after understanding the contents thereof and that the witnesses had put their signatures, in the presence of the testator and each other. In view of the above the Supreme Court held that the there was sufficient compliance of the requirement for execution of valid and genuine will. 22. In the case of Kamakhya Prasad Gupta (Supra), this court held that the delay in filing an application for grant of probate may be condoned under Section 5 of the Limitation Act, 1963 and that the proceeding (under Section 295 of the Indian Succession Act), if contested, is to be treated as a regular suit for the limited purpose of applying to it the provisions of the Code of Civil Procedure, but the proceeding would retain its character as a proceeding and does not become a regular suit. 23. 23. In the Case of Savithri (Supra), the Supreme Court held that a scribe of the will, who saw the testator sign the will, after the same was read out to him, can be an attesting witness. In the said case the Supreme Court observed: “22. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a will in their favour, no exception thereto can be taken. Even then, something was left for the appellant.” 24. As discussed above, in the present case, one of the natural heirs i.e. the wife of the deceased has been fully deprived from the property left by the testator and the only son has been given one third share (1 x 3rd) and the remaining two-third (2/3rd) shares have been given to one of the brothers and one of the sisters of the testator. This deprivation, though, in view of the above cited decision, can’t be sole good creating suspicion about the genuineness of will, this is to be treated factor for consideration. Because, such deprivation must be based on some reasons and it is also the burden of the propounder to remove such attending suspicion. 25. As contended, on behalf of the propounder, due to the ill treatment etc caused by the wife, the couple, by a mutual agreement used to live separately and that the appellant had harassed her said husband by instituting several proceedings, including a case for maintenance (Misc (J) Case. 128 of 2001). It is argued, on behalf of the respondent No. 1, that for such activities, on the part of the appellant, the testator had deprived her from getting any share in his property. PW1 stated that due to ill treatment made by the wife-appellant, the deceased had bequeathed his property in favour of his son, brother and sister. 128 of 2001). It is argued, on behalf of the respondent No. 1, that for such activities, on the part of the appellant, the testator had deprived her from getting any share in his property. PW1 stated that due to ill treatment made by the wife-appellant, the deceased had bequeathed his property in favour of his son, brother and sister. Facts remains that the testator had recommended the appellant wife as his nominee in respect of his LICI policy and service record and the said nomination was not been withdrawn. But, this allegation stands controverted by the application filed by the deceased in the said Misc. Case, for conciliation. 26. That apart, the only son of the testator has also been deprived from the entire share in the property of his father. The deprivation of the said natural heirs, more particularly the son, appears to an unnatural act. The active role played by the propounder, who is also a beneficiary of the will fortifies the existence of suspicious circumstance. Therefore, the propounder (PW 1) is required to show the justification, which prompted the testator to deprive his natural heirs, in the said manner. 27. From the Ext. No. A, which is a letter, dated 17.04.2002, written by the petitioner i.e. the propounder of the will, it appears that he had requested the LIC authority not to release the LIC policy money in favour of the wife of the deceased, on the ground that there was a judicial separation agreement executed by the couple. Perusing the Ext. No. A, it is found that he did not mention about the existence of the will in the Ext A. He admitted that the minor son of the said couple was living with the appellant, that there was no divorce between them and that, in the said agreement, it has mentioned that there was every possibility of their reunion. He also stated that the will was drafted by a lawyer in his presence and the same was written on the next morning at 9.00 a.m. According to this witness, except himself, the testator and the lawyer, there was no body at the time of writing the will. He further stated that the witnesses were present, on 01.02.2002, at the time of final typing of the will. He further stated that the witnesses were present, on 01.02.2002, at the time of final typing of the will. Though this witness stated that the testator returned to Jhunjhunu in Rajasthan i.e. the place of his work, on 03.02.2002, he contradicted his said evidence by saying, again, that he did not know when the deceased had returned to Jhjunjhunu. He denied the suggestion that the deceased went to Jhunjhun on 30.01.2002 and returned to Digboi only on 07.04.2002. The said contradictory evidence, given by PW 1, raises doubt as to whether, on 01.02.2002 i.e. the date of execution of the Will, the deceased was at Digboi. 28. From the evidence PW 1 it is found that the Will was drafted on 31.01.2002, in the house of the lawyer and at that time, this witness, the testator and the lawyer were present and the attesting witnesses were present on 01.02.2002 when the Will was finally typed. Sri Anjan Kataki, one of the attesting witnesses, was examined as PW No.2. According to this witness, on 01.02.2002, the testator had expressed his desire to execute a Will and accordingly, he had requested Sri Kamakhya Chakraborty, Advocate, Digboi to prepare the Will. He stated that the will was read out to the testator and he had put his signature in presence of the witnesses. He has exhibited his signature and the signatures of the lawyer and witnesses, Shri Tham Gogoi and Shri Pratap Saikia. A careful reading of the evidence of PW Nos. 1 and 2 reveals that according PW 1 the testator had expressed his desire to make Will in presence of PW 1 and the lawyer, on the previous night and accordingly the will was drafted on the previous night and the same was written ( i.e. finally) on the next day at 9.00 a.m. PW 1 clearly stated that, at the time of drafting the will, the attesting witnesses were present. But according to P W. 2, on 01.02.2002, itself, the testator had expressed his desire to make a will and accordingly the will was prepared and on the day of preparation itself, the will was signed. PW2 clearly stated that the will was finalized on 01.02.2002 in the afternoon. 29. But according to P W. 2, on 01.02.2002, itself, the testator had expressed his desire to make a will and accordingly the will was prepared and on the day of preparation itself, the will was signed. PW2 clearly stated that the will was finalized on 01.02.2002 in the afternoon. 29. Though PW 2, in his in-chief-examination, stated that the testator had himself told the lawyer to prepare the will on 01.02.2002, in his cross examination, he stated that he was not aware as to what instructions were given to the lawyer by the testator. This statement of PW 2 contradicts his earlier evidence regarding the desire of the testator to make the Will. From the evidence of PW 2 it can’t be concluded that the testator had instructed the lawyer, in his presence, to prepare the will depriving his wife from the benefit of the will. From the evidence of PW 2 it is found that he was the brother- in-law of PW 1. Therefore, there is a reason to believe, that he being a close relative of PW 1, was an interested person to ensure benefit in favour of PW 1, who is a beneficiary. That apart, according to PW 1 the Will was drafted on the previous night and it was written at 9.00 a.m. Hence it trespasses that though the Will was drafted on the previous night, the same was finally written on the next morning (i.e. on o1.02.2002) at 9.00 a.m. The words “drafted” and “written”, used by the PW 1, implies that the will was drafted on the night of 31.01.2002 and the same was finally written on 01.02.2002. This indicates that the preparation of the Will was completed at about 9.00 a.m. on 01.02.2002. 30. PW 2 who claims to be an attesting witness, in his cross examination, did not speak about the drafting of the will on the previous night. Of course, according to PW 1, PW 2 was not present at the time of drafting the Will and the witnesses were present at the time of typing the will. This implies that PW 2 was present at the second (final) stage of the preparation of the Will. A close reading of the evidence of PW 1 and PW 2 lead to find that the will was drafted on the previous night and it was finally prepared on the next day. 31. This implies that PW 2 was present at the second (final) stage of the preparation of the Will. A close reading of the evidence of PW 1 and PW 2 lead to find that the will was drafted on the previous night and it was finally prepared on the next day. 31. From the evidence of PW 2 it appears that, after the will was drafted on the previous night, it was finally prepared on the next day. Therefore, the typing i.e., final preparation of the will was made on the second day. According to PW 1 the will was written at about 9.00 a.m. i.e. on the second day, but according to PW 2 the will was prepared in the afternoon. It is not the case of the petitioner that the will was executed in the afternoon. The said contradictions, besides raising suspicion about the genuine execution of the will, belies the claim that both PW 1 and PW 2 were present when the will was prepared. As the will was drafted and prepared by an advocate, in his chamber, his examination was necessary to clear the doubt. In view of the allegation of forgery, the propounder, who is also a beneficiary, was required to examine the advocate. His failure to take any steps in this regard implies that the propounder failed to remove the suspicion. 32. As held in the case of H. Venkatachala Iyengar (Supra) unless the suspicious circumstance is removed, the document can’t be accepted as the last Will of the testator. The deprivation of natural heir from due share is also a factor to be taken into consideration by the court. (See Lalitaben Jayantilal Popat). 33. It is a matter of fact that the propounder i.e.( PW 1), who is also one of the beneficiaries, played prominent role by his presence from the time of drafting the will till its final execution. This act on his part, coupled with the fact that the only attesting witness (PW-2), examined in this case, is a close relative (brother-in-law) of the PW 1, fortifies the suspicion regarding the genuineness of the will. From the evidence of DW 1 i.e. the wife of the deceased, it is found that though the said couple had separated by an agreement, there was no dissolution of their marriage. From the evidence of DW 1 i.e. the wife of the deceased, it is found that though the said couple had separated by an agreement, there was no dissolution of their marriage. She in her evidence, given as DW No.1, clearly stated that, in her maintenance case, her husband, on 21.01.2002, filed an application being petition No. 40 of 2002, stating therein that he seriously loved his wife and their son and that he approached the court for conciliation, inasmuch as he could not live without his wife and son. According to DW 1 the said application was posted 29.1.2002 for conciliation, but due to absence of the learned District Judge, the conciliation could not take place on the said date and that he had left for Jhunjhunu on 30.01.2002, assuring to take her after his return from Jhunjhunu in the month of April 2002. She further stated that her husband after his return on 07.04.2002, had sent a Cassio to their son and that his dead body was found in a drain, near his house, on 10.04.2002. 34. According to DW 1 her husband was killed. She further stated that the petitioner was not in good term with the deceased and that the petitioner did not accept her, in their family, on the ground that she was a Christian. She stated that the will was prepared to grab the property of her husband by depriving her from her right to inherit the same. She has exhibited, as Ext. C, the application, dated 21.01.2002, filed by her husband for conciliation, the post-mortem report as Ext. D, the letter dated 17.04.2012, written by the petitioner to the LICI, as Ext. E and such after relevant documents. Her evidence that her deceased husband expressed his desire for conciliation, by filing an application, on 21.01.2002, that he wanted to live with his wife and son, that due to absence of the Presiding Officer, on 29.01.2002, the conciliation could not take place, that he left for his place of his work on 30.01.2002, that he returned on 07.04.2014 remained un-contradicted. No suggestion was made, on behalf of the petitioner, suggesting her that her husband did not return on 07.04.2002 after his departure on 30.01.2002. What the petitioner side has suggested was, that, on 01.02.2002, her husband was at Digboi and that he executed the will. She denied this suggestion. No suggestion was made, on behalf of the petitioner, suggesting her that her husband did not return on 07.04.2002 after his departure on 30.01.2002. What the petitioner side has suggested was, that, on 01.02.2002, her husband was at Digboi and that he executed the will. She denied this suggestion. Hence, her evidence that the deceased met her, on 29.01.2002, in the court, that he left on 30.01.2002 and that he returned on 07.01.2002 remained unchallenged. 35. The Post mortem report (Ext. D) indicates that the deceased died due to drowning i.e. unnatural death. He also sustained injury caused by blunt force impact. The existence of injury mark and drowning does not rule out existence of suspicious circumstances with the death of the deceased. 36. From the Ext.B, i.e. certified copy of the orders, passed by the learned District Judge in Misc (Maintenance) Case No. 128 of 2001, it is found that the deceased, on 21.01.2002, filed an application for conciliation, indicating that he wanted to live with his wife and the child. The matter was fixed on 29.01.2002. On 29.1.2002 the court granted further time for conciliation and fixed the case on 06.03.2002. On 06.03.2002 the case could not be taken up due to transfer of the Presiding Officer and the matter was again fixed on 03.04.2002 and on this date also the matter was posted for 24.04.2002 for reconciliation, but, the dead body of said petitioner, i.e. the husband of the appellant was found on 10.04.2002. In his said petition (Ext. C), the deceased clearly indicated that he had condoned all the misunderstandings that existed with his wife and wanted to live together with her and their son. From the record, i.e. the order sheets aforementioned, it is found that the said petition was pending for disposal. The pendency of the said petition and the contention made, therein, support the appellant’s contention that the deceased wanted to join family life with his wife and their child. The statement made in the said petition (Ext C), clearly indicates that the husband had no ill feeling against the appellant- wife and their child. 37. In view of the above, I find no difficulty in believing the appellant’s (DW 1) version that her said husband wanted to take her to his life, after completing the legal formalities, after his return form Jhunjhunu (Rajasthan), in the month of April. 37. In view of the above, I find no difficulty in believing the appellant’s (DW 1) version that her said husband wanted to take her to his life, after completing the legal formalities, after his return form Jhunjhunu (Rajasthan), in the month of April. There is nothing, on record, to find that any unwanted incident or occurrence had taken place between the couple after 21.01.2002 i.e., the date of filing the said conciliation petition, requiring the deceased to review his decision regarding reunion and to prompt him to execute the will, thereby depriving his wife from his property and his son, from the entire share in the property, in such a short period, that too, during the pendency of the conciliation petition, filed by the deceased. 38. The above facts and circumstances, coupled with the death (unnatural death) of the deceased create serious suspicion regarding the genuineness of the will. Because the attending facts and circumstances make it hard to believe that the deceased would have normally executed the Will in the said manner after filing the said application (Ext. C).. 39. The said suspicion is fortified by the letters dated 17.04.2002 (Ext. A and Ext. E), written by the petitioner i.e. the propounder of the Will to the LIC authority, requesting them not to release the dues to the appellant, who was the nominee of her husband, on the ground that there was judicial separation between the couple since 1999. 40. Admittedly, the Will (Ext. 2) was executed on 01.02.202 and PW 1 was present right from the drafting of the will till its final execution. He was also one of the beneficiaries. Hence, there is room to believe that the petitioner played active role in executing the will. By the said Will the appellant wife, who is a natural heir, has been deprived from the property of her husband. PW 2, who deposed as an attesting witness, being the brother –in-law of the PW 1, appears to be an interested witness. In the attending circumstances, examination of the brother-in-law of the propounder/ beneficiary (PW-1) as the attesting witness raises doubt about the genuineness of the will. 41. PW 2, who deposed as an attesting witness, being the brother –in-law of the PW 1, appears to be an interested witness. In the attending circumstances, examination of the brother-in-law of the propounder/ beneficiary (PW-1) as the attesting witness raises doubt about the genuineness of the will. 41. That apart, if the Will was executed, on the said date, despite its existence, it is not known as to why the petitioner i.e. PW 1 failed to mention about the Will in his said letter, dated 17.04.2002, written to the LICI’. As the existence of the will, if any, was the best ground to resist the appellant’s claim for LIC Policy amount, the failure of PW 1 to mention about the Will in his said letter reasonably raises doubt about the execution of the will by the deceased, on the said date. It has already been noticed that PW 1 played prominent role in execution of the will. 42. The existence of the Will has been disclosed for the first time, on 22.08.2002, that too, after the filing of the succession certificate case (Misc. Succession Case No. 88/2002) by the wife-appellant. The probate case (Misc. Probate Case No. 114/2002) has been filed on 22.08.2002 i.e. after filing of the said succession certificate case on 31.07.2002. This fact also lends support in favour of the allegation that the will was subsequently prepared to deprive the appellant, who was a natural heir. 43. To sum up, from the above discussion, on material facts, it is found that (i) prior to the execution of the will the testator filed an application on 21.01.2002 for conciliation and reunion with his wife, i.e. the appellant and the same was pending at the time of execution of the alleged will. (ii) Before, the conciliation could take place the deceased met with an unnatural death i.e. drowning with injury. (iii) The propounder of the will, who is also one of the beneficiaries, played active role in the execution of the will. (iv) The natural heirs i.e. the wife, with whom the deceased wanted to live together has been deprived from the entire property and the son also has been deprived from the full share in the property. (iii) The propounder of the will, who is also one of the beneficiaries, played active role in the execution of the will. (iv) The natural heirs i.e. the wife, with whom the deceased wanted to live together has been deprived from the entire property and the son also has been deprived from the full share in the property. (v) The existence of the will was kept secret and the same was disclosed, for the first time only after the wife of the deceased had filed an application for succession certificate. (vi) Prior to filing of the case for succession certificate, the deceased approached the LIC authority and the employer of the deceased, for release of monetary benefits in her favour, but, on 17.04.2002, PW 1 i.e. propounder (i.e. the petitioner in the probate case) filed an objection asking the LICI not to release the policy amount in favour of the appellant, on the ground that there was judicial separation between the couple. In this application, the petitioner (objector) failed to disclose about the existence of the will executed, on 01.02.2002. The normal presumption would be that, if the will was in existence, on 17.4.2002, the said objector, i.e. petitioner would have certainly disclose such a vital fact in support of his objection. (vii) There is major contradiction in the evidence of the PW 1 and PW 2 regarding the time of (morning or afternoon) of execution of the will. All the said material facts raises serious doubt about the execution of the will. The petitioner failed to remove the said suspicious circumstances. Therefore, the execution of the will is found to be surrounded by the said suspicious circumstances. 44. In view of what has been discussed above and the attending facts and circumstances as indicated above, I find no difficulty in holding that the execution of the Will is not free from suspicion. The propounder of the Will having failed to remove the above suspicions, it is not safe to act upon the Will and deprive the natural heirs of the deceased, on the basis of the said will. The attending facts and circumstances and the evidence on records clearly lead to hold that the appellant and her son are entitled to get the succession certificate, as prayed for in the said case. 45. In the light of the above discussion, I find sufficient merit in these appeals. The attending facts and circumstances and the evidence on records clearly lead to hold that the appellant and her son are entitled to get the succession certificate, as prayed for in the said case. 45. In the light of the above discussion, I find sufficient merit in these appeals. Accordingly the appeals are allowed with cost and the impugned judgment and orders aforesaid are set aside. Consequently it is ordered that the succession certificate, as prayed for in Misc. Succession Case No. 88/2002 be granted in favour of the petitioner, therein, i.e. Smti Siba Gogoi, wife of late Mojoj Gogoi and their minor son, subject to payment of necessary Court fee etc., in respect of the properties, as mentioned in the schedule of the said petition filed under Section 372 of the Indian Succession Act, 1925. 46. Return the LCRs.