JUDGMENT : Ram Surat Ram (Maurya), J. Heard Sri Prakash Chandra Tripathi, for the petitioners 2. This writ petition has been filed against the orders of Consolidation Officer dated 25.11.1994 and Deputy Director of Consolidation dated 08.10.1998, passed in the proceeding under Section 12 of U.P. Consolidation of Holdings Act, 1953 (hereinafter referred to as the Act). Stamp Reporter has reported delay of 16 years 107 days in filing the writ petition. Delay has not been satisfactorily explained. 3. Dispute is in respect of inheritance of chak 44 of village Bargadawa Ramsahai, tahsil Farenda, district Mahrajganj, which was recorded in the name of Chandrabali son of Autar, who died on 06.09.1992. Smt. Ramdei (respondent-4) filed an objection for mutation of her name as an heir of Chandrabali, being his widow and as his heir under Section 171 of U.P. Act No. 1 of 1951, over the land in dispute. Chaitu and Ram Lakhan (now represented by the petitioners) filed another objection for mutating their names over the land in dispute on the basis of unregistered will dated 05.09.1992, allegedly executed by Chandrabali in their favour. The case was tried by Consolidation Officer. Respondent-4, apart from documentary evidence, examined Ramdei, herself and Ram Laut son of Ori as withness. The petitioners examined Ram Lakhan, Tulsi and Ram Das as witnesses, out of which Tulsi and Ram Das were attesting witnesses of the will dated 05.09.1992 and also filed original unregistered will dated 05.09.1992. 4. Consolidation Officer, after hearing the parties, by order dated 25.11.1994 held that it was proved that Ramdei was widow of Chandrabali. Tulsi in his statement has stated that Chandrabali died after 4-5 days of execution of the will. At some place he has stated that will was executed in the month of ashadh and at some place in the month of quar. Ram Das in his statement has stated that Chandrabali died after 5-6 days of execution of the will. He has stated that will was executed in the month of quar. He has stated that Chandrabali was ill at the time of execution of the will. Ram Lakhan, in his statement has stated that chak of Chandrabali was separated in previous consolidation. Chandrabali died after 4-5 days of execution of the will. He has stated that will was executed in the month of quar. He has stated that Chandrabali was ill at the time of execution of the will. Ram Lakhan, in his statement has stated that chak of Chandrabali was separated in previous consolidation. Chandrabali died after 4-5 days of execution of the will. There are contradictions in the statement of the witnesses in respect of month of execution of will and the persons present at the time of will. Tulsi and Ram Lakhan have stated that Chandrabali died after 4-5 days of execution of the will, Ram Das has stated that Chandrabali died after 5-6 days of execution of the will while from Pariwar Register, it was proved that Chandrabali died on 06.09.1992. For Chandrabali, other members of the family namely Dulare, Parashuram, Govind and Briksh were equal as of Chaitu and Ram Lakhan but no reason has been assigned for depriving them from the property in the will. As such the will was surrounded with suspicious circumstances and not liable to be accepted. It was proved that Ramdei was widow of Chandrabali as such she was his heir under Section 171 of the U.P. Act No. 1 of 1951. On these findings, objection of the petitioners was dismissed and the name of Smt. Ramdei was directed to be recorded over the land in dispute. 5. The petitioners filed an appeal (registered as Appeal No. 294/243) from the aforesaid order. Assistant Settlement Officer Consolidation, after hearing the parties by order dated 08.03.1997 held that Consolidation Officer has not framed proper issues as such the petitioners were not given opportunity of evidence due to which they could not adduce their evidence. On these findings the appeal was allowed and order of Consolidation Officer was set aside and the matter was remanded to Consolidation Officer for framing proper issues and after giving opportunity of evidence to the parties decide the objections afresh. Smt. Ramdei filed a revision (registered as Revision No. 3105/1981) from the aforesaid order. Deputy Director of Consolidation by order dated 08.10.1998, held that findings of Assistant Settlement Officer Consolidation that proper issues were not framed, was incorrect. Findings of Consolidation Officer, in respect of due execution of the will were perfectly legal. On these findings the revision was allowed and order of appellate court was set aside and order of Consolidation Officer was affirmed. Findings of Consolidation Officer, in respect of due execution of the will were perfectly legal. On these findings the revision was allowed and order of appellate court was set aside and order of Consolidation Officer was affirmed. Hence this writ petition has been filed. 6. The counsel for the petitioner submitted that Section 68 of the Evidence Act, 1872 requires examination of at least one attesting witness to prove due execution of the will. The petitioners examined two attesting witnesses namely Tulsi and Ram Das, who had proved due execution and attestation of the will dated 05.09.1992 by Chandrabali. Chandrabali, in his will dated 05.09.1992 has taken care of his wife and who was given ? share in the land in dispute. The will was not a suspicious document. The Courts below have illegally ignored the will. The orders of Consolidation Officer and Deputy Director of Consolidation are illegal and liable to be set aside. 7. I have considered the arguments of the counsels for the parties and examined the record. Mode of execution of the will has been prescribed under Section 63 of Indian Succession Act, 1925, which is quoted below:- 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) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or 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. 8. Execution of the will is required to be proved by at least by one attesting witness under Section 68 of the Evidence Act, 1872, which is quoted below:- 68. Proof of execution of document required by law to be attested.--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: Provided 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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied. 9. 9. The word "attestation" has been defined under Section 3 of Transfer of Property Act, 1882 as follows:- "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;" 10. A three Hon'ble Judges Bench of Supreme Court in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 , after reviewing earlier judgments held that as per provisions of Section 63 of the Succession Act, for the due execution of a will: (1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will; (3) the will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator. The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested (sic attesting) witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. 11. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. 11. Supreme Court in M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, AIR 1969 SC 1147 , Niranjan Umeshchandra Joshi v. Mridula Jyoti Rao, AIR 2007 SC 614, K. Laxmanan v. Thekkayil Padmini, AIR 2009 SC 951 , Lalitaben Jayantilal Popat v. Prgnaben Jamnadas Kataria, AIR 2009 SC 1389 and S.R. Srinivasa v. S. Padmavathamma, (2010) 5 SCC 274 , has held that in every case the Court must be satisfied that the names were written animo attestandi". Evidence is admissible to show whether the witness had the intention to attest. "The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not,the Court held that the two persons who had identified the testator at the time of the 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". 12. Supreme Court in Bhagat Ram v. Suresh, (2003) 12 SCC 35 , held that according to Section 68 of the Evidence Act, 1872, a document required by law to be attested, which a Will is, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if available to depose and amenable to the process of the court. The proviso inserted in Section 68 by Act 31 of 1926 dispenses with the mandatory requirement of calling an attesting witness in proof of the execution of any document to which Section 68 applies if it 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. However, a Will is excepted from the operation of the proviso. A Will has to be proved as required by the main part of Section 68. However, a Will is excepted from the operation of the proviso. A Will has to be proved as required by the main part of Section 68. It is true that Section 63 of the Succession Act does not specifically speak of codicils and that omission has prompted the learned counsel for the appellants to urge that the applicability of Section 63 abovesaid should be treated as confined to the execution of Wills only. 13. Apart from proving due execution of the will, if a will is surrounded with suspicious circumstances, the propounder is required to remove suspicious circumstance. Supreme Court in H. Venkatachala v. B.N. Thimbajamma, AIR 1959 SC 443 held that 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 decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. 14. Supreme Court in Sridevi v. Jayaraja Shetty, AIR 2005 SC 780 in which death of testator occurred within 15 days of execution of the will and in Niranjan Umesh Chandra Joshi v. Mrudula Jyoti Rao, AIR 2007 SC 614, in which death occurred within a week, held that it was a suspicions circumstance. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433, held that there are several circumstances which would have been held to be described by this Court as suspicious circumstances: (i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will; (ii) when the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit. 15. In the light of aforementioned proposition of law, the case of the petitioners has to be examined. From the extract of Family Register, it was proved that Chandrabali died on 06.09.1992, i.e. next day of execution of the will dated 05.09.1992. Tulsi in his statement has admitted that Chandrabali was ill at the time of execution of the will. In the will it has been mentioned that the testator had become very old. From evidence of record, it was proved that Chandrabali was living separately in another house along with his wife and daughter while the petitioners were living separately. From last consolidation, his chak was also separate. In the family, there were several other persons and Chandrabali had equal attachment to them also. There was no reason for giving entire property to two members of the family only. From last consolidation, his chak was also separate. In the family, there were several other persons and Chandrabali had equal attachment to them also. There was no reason for giving entire property to two members of the family only. In such circumstance, heavy burden was upon the propunders to prove that testator was in fit condition of mind on 05.09.1992 and executed will in free and sound state of mind but no evidence was adduced in this respect. The disposition appears to be unnatural or wholly unfair in as such as there was no reason to deprive other members of the family from the property. Thus suspicious circumstances have not been explained. 16. There is delay in filing writ petition of more than 16 years. There is no proper explanation for this in ordinate delay. 17. In view of the aforesaid discussion, there is no illegality in orders of Consolidation Officer and Deputy Director of Consolidation. The writ petition has no merit, it is dismissed. Petition Dismissed.