JUDGMENT : Shri K.R. Mohapatra, J. - The judgment dated 15th January, 2009 passed by the learned Civil Judge (Senior Division), 2nd Court, Cuttack in OS No.1 of 2006 granting an application under Section 276 of the Indian Succession Act, 1925 (for short, 'the Act') is under challenge in this appeal. 2. Originally, the respondents herein filed Probate Misc. Case No.5 of 1999 before the District Judge, Cuttack. The same was subsequently transferred to the Court of learned Civil Judge (S.D.), 2nd Court Cuttack vide order dated 24.01.2006 of learned District Judge, Cuttack and renumbered as Intest Case No.2 of 2006. On hearing learned counsel for the parties, learned Civil Judge converted the same to O.S. No.1 of 2006 vide his order dated 07.12.2006. 3. The pleadings of application under Section 276 of the Act (O.S. No.1 of 2006) in a nutshell discloses that one Laxmidhar Mishra was the common ancestor of the parties, who died leaving behind three sons, namely, Sitanath, Somanath and Srinibas. Somanath died in the year 1967 leaving behind his three sons, namely, Achuyananda (plaintiff/respondent No.1), Bichitrananda (defendant No.1/appellant) and Sachidananda (defendant No.2/respondent No.2) as well as three daughters, namely, Srimati, Hemalata and Charulata. Sitanath died issueless in the year 1972 leaving behind his widow-Saradamani. It is further contended that in the year, 1962, there was an amicable partition between the three sons of Laxmidhara Mishra in which each branch got ?rd share in the ancestral property. After the death of Sitanath, Saradamani being the sole survivor-in-interest was in possession over the share allotted to her husband in the family partition. The plaintiff/respondent No.1 was looking after said Saradamani after the death of Sitanath. Thus, out of love and affection, Saradamani executed registered Will on 18.07.1995 in favour of the plaintiff-respondent No.1. On 19.05.1997, Saradamani died. Thus, said Achyutananda filed an application for grant of probate of the Will. The defendant No.1 (appellant) filed his written statement refuting the contentions raised in the probate petition. The defendant No.1 categorically stated in his written statement that the plaintiff had never looked after Saradamani after the death of Sitanath. He further claimed that Saradamani had never executed any Will in favour of the plaintiff. The Will, if any, is the outcome of fraud and the same was never executed out of free will and volition. The defendant No.1 categorically stated in his written statement that the plaintiff had never looked after Saradamani after the death of Sitanath. He further claimed that Saradamani had never executed any Will in favour of the plaintiff. The Will, if any, is the outcome of fraud and the same was never executed out of free will and volition. By the time of execution of the alleged Will, Saradamani was not in a position of voluntary disposition. He further stated that he (the defendant No.1) was adopted by Sitanath and Saradamani and since the date of his adoption, he has been recognised as the son of Sitanath Mishra. After the death of Sitanath, he was looking after Saradamani till her death. Thus, there was no occasion on the part of the plaintiff to look after Saradamani, as alleged. The ancestral property of Achuyatananda was never partitioned between the brothers as alleged. It was also jointly recorded in the names of all the co-sharers in the consolidation proceeding. There was no severance of status between the parties. Thus, Saradamani could not have executed the alleged Will. The Will is shrouded by suspicion and there was no cause of action to file the petition for probate. Thus, he prayed for dismissal of the suit. Defendant No.2 (respondent No.2 herein) filed his separate written statement taking the plea akin to the written statement filed by defendant No.1. He also prayed for dismissal of the petition for probate. 4. Taking into consideration the rival contentions of parties, learned Civil Judge framed as many as five issues, which are as follows :- (i) Is the suit maintainable? (ii) If the plaintiff had any cause of action to file the petition? (iii) If the Will deed dated 18-7-95 executed by Saradamani in favour of the plaintiff is genuine or if the same is out-come of fraud? (iv) If the plaintiff is entitled to PROBATE CERTIFICATE in respect of the land described in the Schedule-A of the petition? (v) To what other relief, the parties are entitled?" 5. In order to substantiate their respective cases, the plaintiff examined as many as five witnesses including himself as PW-1, the Scribe of the Will as PW-2 and the attesting witnesses as PWs-3 and 5. He also filed the Will, which is marked as Ext.1 and some other documents in support of his case. In order to substantiate their respective cases, the plaintiff examined as many as five witnesses including himself as PW-1, the Scribe of the Will as PW-2 and the attesting witnesses as PWs-3 and 5. He also filed the Will, which is marked as Ext.1 and some other documents in support of his case. The defendants examined none, but exhibited several documents including the sale deed dated 31.05.1975 executed by the plaintiff as Ext.A. Relevant portion of the written statement filed by Achyutananda (plaintiff) and Sukalyani Mishra in T.S. No.55 of 1993 as Ext.B, certified copy of the voter list of 1993 as Ext.C, certified copy of the order dated 22.07.2008 of JMFC, Salipur in G.R.Case No.309 of 2006 as Ext.F and FIR lodged against Achyutananda (plaintiff) as Ext.G and several other documents, which were admitted into evidence. Learned Civil Judge answered all the issues in favour of the plaintiff holding that the Will (Ext.1) executed by Saradamani is genuine and is not an outcome of fraud. Thus, learned Civil Judge allowed the Probate Case granting probate of Ext.1 in favour of the plaintiff. Hence, this appeal. 6. Mr. P.K. Sahoo, learned counsel for the appellant mainly argued that execution of the Will is shrouded by suspicion and the plaintiff/respondent No.1 has failed to discharge the burden of proof by establishing that the Will was executed out of free will and volition. Mr. Sahoo relying upon a decision of the Hon'ble Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, reported in AIR 1959 SC 443 submitted that the principles laid down for proof of a Will should be strictly adhered to before granting or refusing to grant the probate of a Will by the learned Judge. Referring to the deposition of PW-1, Mr. Sahoo submitted that the plaintiff/respondent No.1 had taken active part in execution of the Will. He was present although out during execution of the Will and read over and explained the same to the testatrix, namely, Saradamani. He further referred to Ext.A to D in which Bichitrananda (present appellant) has been described as the son of Sitanath Mishra. He also referred to several other suspicious circumstances and contended that the plaintiff/respondent No.1 could not remove any of the suspicions attached to execution of the Will. Thus, he prayed for setting aside of the impugned judgment. 7. Mr. He further referred to Ext.A to D in which Bichitrananda (present appellant) has been described as the son of Sitanath Mishra. He also referred to several other suspicious circumstances and contended that the plaintiff/respondent No.1 could not remove any of the suspicions attached to execution of the Will. Thus, he prayed for setting aside of the impugned judgment. 7. Mr. Mohanty, learned counsel for the respondent No.2 as well as Mr. Debata, learned counsel for respondent No.1 supported the case of the appellant. Mr. Mohanty, while supporting the impugned judgment stated that the Will was executed and proved in strict compliance of Sections 67 and 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925. He further submitted that the Will was scribed by PW-2 as per the instruction of the testatrix, i.e., Saradamani and the same was read over and explained to her. She signed the Will in presence of the attesting witnesses, namely, PWs 3 and 5. Thus, there is no reason to disbelieve the execution of the Will. Further, even for the sake of argument, it is assumed though conceded that there was no amicable partition among the family members, but the Will cannot be said to be invalid for the same, as the execution of the Will does not passes title from the testatrix to the beneficiary. It is only the transfer of interest of the testatrix over the land in question to the beneficiary. The Will takes effect only after the death of the testator/testatrix Thus, the same cannot be viewed with suspicion. He further contended that the appellant has tried to take advantage of some minor discrepancies in the statement of witnesses, which is bound to occur in the case of such nature. Learned Civil Judge has taken into consideration all material aspects referring to the pleadings and materials on record, which needs no interference. Thus, the appeal is liable to be dismissed. 8. Will is a document of succession. Such testamentary succession is a departure from the ordinary line of succession. No new title is created in favour of the propounder of the Will. It is only mere a transfer of interest in favour of the beneficiary by the testator/testatrix which he or she has over the property in question. 8. Will is a document of succession. Such testamentary succession is a departure from the ordinary line of succession. No new title is created in favour of the propounder of the Will. It is only mere a transfer of interest in favour of the beneficiary by the testator/testatrix which he or she has over the property in question. The Court only examines the genuineness of the Will and grants probate or letter of administration, as the case may be accordingly. The aforesaid case has to be examined keeping in view these principles. Issue No. (iii) is the vital issue for determination in this appeal. As has been succinctly elucidated by the Hon'ble Supreme Court in the case of H. Venkatachala Iyengar (supra) the prop under of the Will could 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 such disposition and put his signature to the document of his own free will and volition and above all, it is free from suspicion. When these things are satisfactorily proved by the propounder by adducing cogent and convincing evidence he would be entitled for grant of probate of the Will. The same view has also been reiterated in the decision of this Court in the case of Rajkishore Panda and another v. Banitia Madhya Engrajee Bidyapitha and others, reported in AIR 1987 Ori 55 and Malli Bewa v. Natabara Naik and others, reported in AIR 1980 Ori 34 . Thus, this Court being the Court of fact has to see whether all these aforesaid requirements have been satisfactorily proved by the propounder (plaintiff/respondent No.1), which would entitle him for probate of the Will. Mr. Sahoo, learned counsel for the appellant strenuously urged that PW-1, the beneficiary of the Will, has taken active part in execution of the same, which is apparent from his evidence. On the other hand, Mr. Moanty, learned counsel for respondent No.1 submitted that mere presence of PW-1 at the time of execution of the Will cannot be said to be a suspicious circumstance attending execution of the Will. Reliance was placed on relevant portion of paragraph 9 of the examination-in-chief of PW-1 (the plaintiff), which reads as follows:- "?. On the other hand, Mr. Moanty, learned counsel for respondent No.1 submitted that mere presence of PW-1 at the time of execution of the Will cannot be said to be a suspicious circumstance attending execution of the Will. Reliance was placed on relevant portion of paragraph 9 of the examination-in-chief of PW-1 (the plaintiff), which reads as follows:- "?. I was present at the time of execution of deed. Khireswar Das @ Khirod was another witness to Ext.1. The deed was scribed by Sanatan Sahu as per direction of Saradamani. Thereafter the Scribe readover and explained the contents of Ext.1 & then Saradamani put her LTI in presence of said witnesses & the said witnesses also signed in presence of Saradamani. I was also present when Saradamani put her LTI & the witnesses put their respective signature??" (underlined for emphasis) Further, in paragraph-15 of his cross-examination, PW-1 deposed as follows:- "15. I have read the Ext.1 after it was scribed. I have also explained the contents of Ext.1 to Sarada. Sarada was illiterate. Except Ext.1, she never executed any other document. I have not seen any other document where she put her LTI. I do not remember who signed first in Ext.1." (underlined for emphasis) In view of the above, it is crystal clear that PW-1, the beneficiary of the Will, was not only present at the time of execution of the Will, but had also actively participated in execution of the same. It is a strong suspicion attending execution of the Will. Though from the evidence of the witnesses it can be said that the Will was executed in compliance of the requirements of Sections 67 and 68 of the Indian Evidence Act, 1872 and Section 63 of the Indian Succession Act, 1925, still suspicion attending to the execution of the Will was not removed at all by the propounder, namely, respondent No.1 by adducing cogent and convincing evidence, which is essential as held in the case of H. Venkatachala Iyengar (supra). 9. First of all, it has to be seen as to whether the Will was properly executed and such execution has been proved by adducing cogent and convincing evidence. As quoted above, PW-1 at paragraph 9 of his examination-in-chief, has categorically deposed that he was present at the time of execution of the Will. 9. First of all, it has to be seen as to whether the Will was properly executed and such execution has been proved by adducing cogent and convincing evidence. As quoted above, PW-1 at paragraph 9 of his examination-in-chief, has categorically deposed that he was present at the time of execution of the Will. Further, the deed was scribed by Sanatana Sahoo (PW-2) as per the direction of Saradamani, the testatrix. Thereafter, the scribe read over and explained the contents of Ext.1. Then Saradamani put her LTI on the Will in presence the witnesses, namely, Narendra Rath, Khireswar Das @ Khirod, PWs 3 and 5 respectively. He further proved the signature of Sanatan Sahoo as Ext.1/a and that of PW-5 as Ext.1/b. The signature of Sanatana Sahoo, the Scribe was proved as Ext.1/c. During course of cross-examination, though it was extracted from the mouth of PW-1 that Saradamani was suffering from chronic Asthama (para 13 of cross-examination), but there is nothing in his deposition to conclude that she was not in a sound state of mind and was not in a position to execute the Will. PW-2, the Scribe stated in his evidence that he has scribed Ext.1 on 18.07.1995 on the instruction of Saradamani. He read over and explained the Will to Saradamani in presence of witnesses. Though at paragraph 9 of his cross-examination, he deposed that he was not present before the Sub-Registrar while Ext.1 was presented for registration, but that cannot be fatal to the case of the plaintiff/respondent No.1 so far as execution and registration of the Will is concerned. He also proved his endorsement on the Will as Ext.1/d. PW-3 also supported the statement made by PWs 1 and 2. He also stated in his evidence that he was present all through starting from execution till registration of the Will before the Sub-Registrar. PW-4 is an independent witness, who happens to be brother of Saradamani and used to visit her frequently. He stated in his evidence that Saradamani had disclosed her desire of executing a Will in favour of PW-1 before one year of execution of the Will. Khireswar Das (PW-5) is an attesting witness to the execution of the Will. He supported the case of the plaintiff/respondent No.1 in its letter and spirit. He stated in his evidence that Saradamani had disclosed her desire of executing a Will in favour of PW-1 before one year of execution of the Will. Khireswar Das (PW-5) is an attesting witness to the execution of the Will. He supported the case of the plaintiff/respondent No.1 in its letter and spirit. PWs 3 and 5 categorically stated in their evidence that Saradamani had been to the office of the Sub-Registrar for registration of the Will. They also stated in their evidence that Saradamani put her LTI before the Sub-Registrar on the Will in their presence. Though Mr. Sahoo, learned counsel for the appellant contended that there was discrepancy in the LTI of Saradamani on the Will to that of her admitted LTI, but no evidence to that effect has been adduced nor any of the witnesses were confronted with the same. Thus, no importance can be given to the contentions raised by Mr. Sahoo in that regard. Thus, execution of the Will cannot be doubted. 10. The next question that arises for consideration is whether the Will is shrouded with suspicious circumstances and whether it is executed out of free will and volition. It is the admission of PW-1, the profounder of the Will, that Saradamani was staying with him after death of Sitanath. As Sitanath died issueless and there was none to look after his widow (Saradamani), the plaintiff/respondent No.1 took up her care and out of love and affection and being satisfied with the services rendered by the plaintiff, Saradamani executed the Will in his favour. As quoted above, it is seen that the plaintiff (PW-1) was all throughout present during execution and registration of the Will. PW-2, the Scribe also at paragraph-9 of his cross-examination, stated that Achuytananda Mishra was present all throughout during execution of Ext.1. During cross-examination, PW-1 has categorically admitted at paragraph-15 that he had read over and explained the Ext.1 after the same was scribed. He also explained the contents of Ext.1 to Saradamani. In addition to the above, he also deposed that Saradamani was an illiterate lady. The statements of the witnesses suggest that Achuyatanda, the plaintiff was not only present during execution and registration of the Will, but also took active part in such execution. He also explained the contents of Ext.1 to Saradamani. In addition to the above, he also deposed that Saradamani was an illiterate lady. The statements of the witnesses suggest that Achuyatanda, the plaintiff was not only present during execution and registration of the Will, but also took active part in such execution. Thus, the effect of such statement has to be analysed taking into consideration the ratio decided in H. Venkatachala Iyengar (supra) at paragraph-21 in which it is held as under:- "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 circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive." In view of the ratio decided, it has to be seen as to whether the presence of the propounder (PW-1) during execution of the Will is shrouded by suspicion. Saradamani died under a mysterious circumstance. Thus, an UD case was registered on the report of PW-1. On completion of investigation, charge sheet was submitted under Section 302 IPC against PW-1 in GR Case No.309/06 in the Court of J.M.F.C., Salipur. However, it was brought to the notice of the Court by Mr. Saradamani died under a mysterious circumstance. Thus, an UD case was registered on the report of PW-1. On completion of investigation, charge sheet was submitted under Section 302 IPC against PW-1 in GR Case No.309/06 in the Court of J.M.F.C., Salipur. However, it was brought to the notice of the Court by Mr. Mohanty, learned counsel for the plaintiff-respondent No.1, that vide judgment dated 07.03.2011 learned First Additional District and Sessions Judge, FTC-III, Cuttack acquitted the plaintiff/respondent No.1 and other co-accused persons in ST Case No.401/08 and the same was not seriously objected to by Mr. Sahoo, learned counsel for the appellant. However, no cogent, convincing and satisfactory evidence was adduced on behalf of the plaintiff to remove the said suspicion. Thus, it can be safely concluded that execution of Ext.1 (the Will), is not free from suspicion. 11. Next contention of Mr. Sahoo was that the plaintiff/respondent No.1 had not come to the Court with clean hand. Sitanath was not issueless. Sitanath has adopted the present appellant during his life time and he was taking care of Saradamani after death of Sitanath. In support of his case, he relied upon Ext.A, i.e., the Sale Deed dated 31.05.1975 executed by the plaintiff/respondent No.1 in favour the appellant. In the said sale deed, the appellant has been described as the son of Sitanath. The said contention was strongly refuted by Mr. Mohanty, learned counsel for respondent No.1, who submitted that disclosure of status of the appellant in a sale deed cannot be a conclusive proof of adoption. In order to establish his case, the appellant ought to have proved the giving and taking ceremony and other essential ingredients which are conspicuously absent in this case. Hence, he contended that Bichitrananda even if in some of the documents including the Ext.B, i.e., page 8 of the written statement filed by Saradamani in TS No.55/93 has been described as son of Sitanath, the same cannot be treated as such in absence of proof of giving and taking ceremony. Question with regard to validity of adoption of the appellant by Sitanath has a little relevance to determine the validity of the Will (Ext.1). 12. Question with regard to validity of adoption of the appellant by Sitanath has a little relevance to determine the validity of the Will (Ext.1). 12. Taking into consideration the discussions made above, it can be held unhesitatingly that the execution of the Will has been proved by the propounder, namely, the plaintiff/respondent No.1, but the suspicious circumstances attached to such execution could not be removed successfully by the propounder, which does not entitle him for the relief of grant of probate. Learned Civil Judge did not at all take into consideration these material aspects while answering Issue No.(iii). Rather, he was swayed away by reading paragraph-9 of the deposition of PW-1 only. Thus, the impugned judgment is not sustainable in the eye of law and the same is accordingly set aside. 13. The appeal is allowed, but in the circumstances there shall be no order as to costs. Final Result : Allowed