JUDGMENT : 1. This is an application for probate filed by the executor to the will and testament dated 4th February, 1997 purportedly executed by Paramesh Chandra Sen, who died on 23rd September, 1985. Admittedly, the executor is residing in United Kingdom and filed the said application for probate in 2005. The facts stated in the said application are that the said Paramesh Sen, since deceased was a Hindu governed by Daybhanga school of Hindu Law and was a permanent resident of premises no. 29, Ballygung Place, Kolkata – 700 019. The testator died on 23rd September, 1985 at his residence within the jurisdiction of the State of West Bengal. The said testator executed his last will and testament on 4th February, 1979 bequeathing his half share in the said residential property to his wife Kalindi Sen for her life and on her death the same would devolve upon the executor absolutely and the other half share to the executor. The testator appointed the wife as sole executrix to obtain the probate of the said will without furnishing any security and to administer the estate in terms of the said will. The will further provides that in the event the said executrix predeceases the testator or is not willing to act as an executor, the present executor, the only son, is appointed as such and be entitled to take the probate of the will without furnishing any security. 2. The will was duly attested by three witnesses who also died before filing the application for probate. The learned Advocate who drafted the will is also no longer surviving. It is stated in the said petition that the mother namely Kalindi Sen died intested on 13th November, 2004 and after getting such information the executor came to Kolkata and performed the rituals. The executor could detect the purported will dated 4th February, 1979 from the almirah of the mother which was opened after her death and came to know of the fact that the father bequeathed the residential property to the executor to the exclusion of the other heirs. 3. Admittedly, the testator left behind him surviving at the time of his death, the widow namely Kalindi Sen, the only son, the executor herein and two daughters namely Debjani Sen and Sanjukta Mukherjee, the objectors. 3. Admittedly, the testator left behind him surviving at the time of his death, the widow namely Kalindi Sen, the only son, the executor herein and two daughters namely Debjani Sen and Sanjukta Mukherjee, the objectors. It is stated in the said petition that the signature of the testator is known to him and the signatures appearing in each page of the said will bear the signature of his father. The Affidavit of Assets annexed to the application for probate basically includes the said residential house with the meagre cash and other household goods, books, furniture and jewellery valuing at Rs. 15,000/-. 4. Both the objectors being the daughters of the said testator lodged a caveat with an intent to oppose the grant of probate of the purported will and also filed their respective affidavits in support thereof. The quintessence of the said objectors are that their father namely Paramesh Chandra Sen, the testator died intested on 23rd September, 1985 leaving behind him surviving the widow, two daughters and a son and therefore his estate devolve upon them by virtue of intested succession. 5. According to them, they inherited undivided 1/4th share in respect of the immovable and movable assets left by the testator and upon the death of their mother, who died intested, they became entitled to undivided 1/3rd share therein. It is further stated that the residential house is a two storied building and the ground floor therein was occupied by the tenant. The testator with his family all along resided on the first floor of the said premises and one of them namely Smt. Debjani Sen resided with them since 1966 until the later part of 2004. Even after the death of the testator, the mother and the said sister resided on the first floor and the executor used to occasionally visit them and resided therein. In order to avoid any dispute that may arise in the future it was settled in presence of the mother that the rent from the tenants of the ground floor would be relised by the mother during her lifetime and the first floor would continue to remain in common for the residential use of the mother and the said daughter and her family. 6. It was further agreed that the executor as and when would come to Kolkata would also stay therein. 6. It was further agreed that the executor as and when would come to Kolkata would also stay therein. So far as the movable assets are concerned it has been divided between the three children. The said property was duly mutated in the joint names of the mother and the aforesaid three children in the month of August, 1999 and the municipal rates and taxes are shared by them. In the later part of 2001 it was further mutually decided and settled amongst the heirs of the said testator that the ground floor of the premises shall exclusively belong to Sanjukta Mukherjee whereas the first floor would remain in use and enjoyment of the mother during her lifetime and thereafter shall be possessed and enjoyed by the executor exclusively. 7. So far as the second floor of the said property is concerned the other sister namely Debjani Sen shall complete the construction so as to make it habitable and useable and the maintenance of the entire building shall be borne proportionately by the three children including the municipal rates and taxes. 8. According to Sanjukta Mukherjee, she settled with the tenant and obtained the physical possession thereof and started using the same by obtaining the electric meter in her name. The other sister namely Debjani Sen was not financially well off and could not complete the construction of the second floor. The executor being the brother helped in paying the cost of the construction of the second floor and allowed the said sister to live therein with her family members. The aforesaid arrangement and/or settlement continued during the life time of the mother, who died intested on 13th November, 2004. It is stated in the said affidavits that after the demise of the mother the executor wanted to promote the said property by engaging the developer so as to exploit it economically which was not agreed upon by the said objectors, which led the executor to fabricate and manufacture the purported will alleged to have been made by the father. 9. It is specifically denied therein that the executor found the purported will from the almirah of the mother after her death. 9. It is specifically denied therein that the executor found the purported will from the almirah of the mother after her death. It is further stated that had there been a will, the mother would have disclosed the same after the death of the father and could have applied for probate as she was appointed as an executrix to the said will. It is further stated that one of the attesting witness being the husband of the Sanjukta Mukherjee would have disclosed the execution of the said will during his life time and having not done so raises a strong presumption and suspicion over the genuineity of the said will. The challenge is therefore founded not only on a fabrication of the purported will by the executors but is also shrouded by suspicious circumstances. 10. Since the objection was lodged, the application for probate was converted into a contentious cause and was relegated as testamentary suit. 11. On the conspectus of the aforesaid facts, an application was filed for appointment of hand writing expert to compare the signature of the testator appearing in the purported will with the other documents. The said application was allowed and Mr. H.C. Ganguly, an expert was appointed to compare the signature appearing in the purported will with the signature appearing in the original Deed of Settlement entered into between the testator and his brother on 7th September, 1960. The said expert filed the report on 23rd August, 2007 opining that the signature appearing in the purported will and the signature appearing in the said settlement are all in one hand and are definitely written by the writer of the signatures therein. The parties thereafter adduced evidence and tendered various documents including the original Deed of Settlement dated 07.09.1960, which was marked as Exhibit ‘A’. 12. There is another report obtained by the executor from the document examiner namely Purushottam Chatterjee on 14th March, 2005 (Exhibit D) who compared the signatures appearing in the said terms of settlement dated 07.09.1960 (Exhibit C) with the signatures appearing in the purported will and opined that both the signatures are of same person. 13. Subsequently, an application was taken out to compare the signatures appearing in the purported will with the signatures appearing in the original affidavit dated 20.08.1980 allegedly containing the signature of the testator which was disposed of on 17.03.2009 appointing Mr. 13. Subsequently, an application was taken out to compare the signatures appearing in the purported will with the signatures appearing in the original affidavit dated 20.08.1980 allegedly containing the signature of the testator which was disposed of on 17.03.2009 appointing Mr. Purushottam Chatterjee who earlier opined that the signature appearing in the purported will and the terms of settlement are of the same author. The said expert submitted the report on 7th April, 2009 and arrived at the conclusion that the purported will was never written and prepared on 4th February, 1979 and was prepared long after the said date. The said report is marked as Exhibit 7. 14. A further application was taken out in course of the recording of the evidence adduced by the witnesses for appointment of handwriting expert to compare the signature of one of the attesting witnesses to the will namely Partho Mukherjee, since deceased with the signature appearing in case no. 399 of 1986 filed before the District Delegate, Alipore. The said application was eventually allowed on 19th June, 2013 and Mr. Rajanikanta Das, an expert was appointed to give his opinion in the form of report. The said expert submitted his report and opined that the signature appearing in the purported will is of the same person which is appearing in the other admitted documents. The said report is marked as Exhibit E. 15. On the conspectus of the aforesaid facts, Mr. Moloy Ghosh, learned Senior Advocate appearing for the executor submits that the report submitted by the experts is merely an expert opinion and cannot be a sole factor for determining the genuinity and authenticity of the will. He further submits that if the testator has a justiciable right and executed the will signifying his last wish the Court must uphold the will and only exception to it is when the same is found to be not genuine, forged and shrouded by suspicious circumstances. He further submits that the onus lies on the executor to dispel the suspicious circumstances and once such onus is discharged, it shifts upon the objectors to prove otherwise. According to Mr. Ghosh, the will can be proved by one attesting witness and if all the witnesses are unavailable or dead, it can be proved by other evidence under Section 69 of the Evidence Act. 16. According to Mr. Ghosh, the will can be proved by one attesting witness and if all the witnesses are unavailable or dead, it can be proved by other evidence under Section 69 of the Evidence Act. 16. He succinctly submits that admittedly all the three attesting witnesses are dead and the signature of one of the attesting witnesses has been proved as the handwriting expert have opined in favour of the genuinity of his signature appended to the will and therefore the executor has satisfied the criterion required under Section 69 of the Evidence Act. Mr. Ghosh would further submit that there are well known parameters for raising a suspicious circumstances namely the deprivation of the natural heir by the testator, the role of a lawyer in identification and execution of the testator who happened to be all along the lawyer of the executor, the attesting witnesses appeared to be interested in the right of the executor and active participation of the executor in getting the will executed. 17. To buttress the aforesaid submission he placed reliance upon the judgment of the Supreme Court in case of Rabaindra Nath Mukherjee & Anr. Vs. Panchanan Banerjee (Dead) by LRs & Ors. reported in (1995) 4 SCC 459 . Mr. Ghosh ardently submits that the word “science” appearing in Section 45 of the Evidence Act means the skill and technique of the study of peculiar features of a typewriter and the comparison of the disputed typewriting with the admitted typewriting and placed reliance upon a judgment of the Apex Court in case of State (Through CBI/New Delhi) Vs. S.J. Choudhary reported in AIR 1996 SC 1491 . Mr. Ghosh further submits that the report being Exhibit 7 cannot be relied upon in view of illustration ‘C’ to Section 45 of the Evidence Act. He thus submits that the same expert submitted contradictory reports and therefore it would not be safe to simply rely upon the same. 18. According to Mr. Ghosh, another expert namely H.C. Ganguly, who compared the signatures appearing in the purported will with the signatures appended to the terms of settlement was of definite opinion that both the signatures appearing in the disputed document and the admitted documents are of the same author and/or writer and therefore can be safely relied upon. Mr. 18. According to Mr. Ghosh, another expert namely H.C. Ganguly, who compared the signatures appearing in the purported will with the signatures appended to the terms of settlement was of definite opinion that both the signatures appearing in the disputed document and the admitted documents are of the same author and/or writer and therefore can be safely relied upon. Mr. Ghosh impinged the report of another expert i.e. Purushottam Chatterjee on the ground that the comparison was made by him with the affidavit purportedly executed by the testator in 1980 when the later document was not marked as an exhibit and was kept simply as mark for identification. As per Mr. Ghosh the said affidavit cannot be simply marked exhibit taking shelter under Section 90 of the Evidence Act as the same is more than 30 years old document unless the explanation appended thereto is proved by evidence. On the facts of the case, Mr. Ghosh submits that though the will was executed on 4th February, 1979 but was never disclosed by the mother during her lifetime and the executor came to know of the same when he opened the almirah of the mother after her death and immediately an application for probate was filed. It is, thus submitted that there was no occasion on the part of the executor to apply for probate promptly. According to Mr. Ghosh, there is no period of limitation provided under the Limitation Act for applying the probate of the will. He thus submits that there is no suspicious circumstances which can be attributed to the genuinity of the will nor the will has been proved to be in genuine, forged and fabricated as alleged by the objectors. 19. On the other hand, the learned Advocate appearing for the objectors submits that the executor has failed to prove the signature of the testator and have further failed to dispel the suspicious circumstances. It is further submitted that the affidavit executed by the testator in the year 1980 ought to have been marked as Exhibit being more than 30 years old document and have been wrongly put as mark for identification. It is succinctly submitted that the comparison of the disputed signatures appearing in the purported will with the said affidavit would be more relevant as both the documents were executed at a contemporaneous period of time. It is succinctly submitted that the comparison of the disputed signatures appearing in the purported will with the said affidavit would be more relevant as both the documents were executed at a contemporaneous period of time. It is further submitted that the report of the handwriting expert comparing the aforesaid documents is more reliable than the reports, which compared the disputed signatures in the purported will with the document executed nearly 19 years prior thereto. It is ardently submitted that the executor himself admitted that there was a cordial relation between the objectors and him all through out until the application for probate is filed and it is also stated in the evidence that one of the objectors namely Debjani Sen was all along with the testator till he last breathed and therefore deprivation of the daughters is not a normal phenomenon and therefore the will is shrouded by a suspicious circumstances. 20. It is vehemently submitted that the mother was appointed as an executrix by the testator under the said will who neither applied for probate during her lifetime nor disclosed the existence thereof which would aptly prove that there was no existence of will at any point of time. It is further submitted that the executor was all along living in United Kingdom and used to occasionally visit Kolkata and resided with her parents and sisters and therefore there is least probabilities and possibilities of excluding the daughters and bequeathing the entire property to the executor. It is ardently submitted that the report of Purushottam Chatterjee, the expert which was obtained privately should not be considered as the comparison of signatures were made with the photostat copy of the documents and relied upon a decision of the Andhra Pradesh High Court in case of Bheri Nageswara Rao Vs. Mavuri Veerabhadra Rao & Ors. reported in AIR 2006 AP 314 . 21. It is submitted that Section 69 cannot come to the aid of the executor as the evidence is lacking whether one of the attesting witnesses is dead or alive. The said provision can only be activated if all the attesting witnesses are either not available or dead and if any one of the them appears to be not dead, an attempt must be made to bring such witness to prove the will. The said provision can only be activated if all the attesting witnesses are either not available or dead and if any one of the them appears to be not dead, an attempt must be made to bring such witness to prove the will. In support of the aforesaid contention the reliance is placed upon a judgment of the Apex Court in case of Babu Singh & Ors. Vs. Ram Sahai Alias Ram Singh reported in (2008) 14 SCC 754 . On the question of suspicious circumstances, the reliance is placed upon the judgments of the Supreme Court in case of Gorantla Thataiah Vs. Thotakura Venkata Subbaiah & Ors. reported in AIR 1968 SC 1332 and Kalyan Singh, London Trained Cutter, Johri Bazar, Jaipur Vs. Smt. Chhoti & Ors. reported in AIR 1990 SC 396 . On the plea of the presumption under Section 90 of the Evidence Act the reliance is placed upon a judgment of this Court in case of Kotiswar Mukherjee & Ors. Vs. Paresh Nath Mukherjee & Ors. reported in AIR 1956 CALCUTTA 205. 22. It is submitted on merit that the story made out by the executor that he could find the Will while opening the almirah of the mother after her death, cannot be believed as the said almirah was emptied at the instruction of the executor by one of the objectors and the keys thereof was also handed over by her to the executor. According to the learned Advocate the almirah was emptied as the executor wanted to get it polished and therefore there is no probability and possibility of the purported will being kept and found therein. It is further submitted that during the lifetime of the mother, a settlement was arrived between the parties that the ground floor of the premises shall be occupied by Sanjukta Mukherjee, the first floor shall be enjoyed by the executor and the mother was permitted to live therein and the second floor shall go to Debjani Sen. It further came from the evidence of the executor that he supported Debjani by investing money to construct the rooms on the second floor of the said premises and the aforesaid facts would galore that the parties were aware all along that there is no will executed by the testator. It further came from the evidence of the executor that he supported Debjani by investing money to construct the rooms on the second floor of the said premises and the aforesaid facts would galore that the parties were aware all along that there is no will executed by the testator. In this regard, it is submitted that the mutation was done in respect of the said property during the lifetime of the mother recording the name of all the heirs of the testator which is well within the knowledge of the executor. 23. Lastly, it is submitted that the sequel of events surfaced in the evidence of the respective parties are explicit and clear that the testator never executed the will during his lifetime. 24. From the above noted emerging facts the points which this Court feels to have arisen in the instant matter are:- (i) Whether the testator during his lifetime executed the will by putting his signatures therein? (ii) Whether the will is shrouded by suspicious circumstances and the executor is able to dispel the same? (iii) Whether the purported will has been proved by the executor and Section 69 has any manner of application in the instant case? And (iv) Whether the affidavit executed in 1980 should have been marked as an Exhibit under Section 90 of the Evidence Act? 25. Section 63 of the Indian Succession Act, 1925 relates to the execution of the execution of the unprivileged wills. The said Section is reproduced as under:- “Section 63--Execution of unprivileged Wills. —Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [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 mark 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 acknowledgement of his signature or mark, or 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.” 26. From the aforesaid Section it is imperative on the testator to sign and affix his mark to the will and such will must be attested by two or more witnesses, who must have seen the testator signing and should sign the will in presence of the testator, however, an exception is carved out that it is not necessary for all the witnesses to be present at the same time. 27. Section 68 of the Indian Evidence Act, 1872 requires at least one attesting witness to be called for the purpose of proving the execution provided he is alive. Section 69 of the Evidence Act is an exception to Section 68 of the Act providing the proof of due execution of the will if none of the attesting witnesses can be found or dead, if it is otherwise proved that attestation of one attesting witness is in his handwriting. I will deal with the applicability of Section 69 of the Evidence Act later on as the first and foremost thing to be decided is whether requirement under Section 68 of the Evidence Act has been fulfilled by the executor. The purported will dated 4th February, 1979 contains the signature of the testator on each pages and also the signatures of three attesting witnesses apart from the signature of the Advocate, who drafted and prepared the will. The purported will dated 4th February, 1979 contains the signature of the testator on each pages and also the signatures of three attesting witnesses apart from the signature of the Advocate, who drafted and prepared the will. In case of the other documents than the will the task is easier when the author remains alive and is the best person to prove his signature appended on the said document. Since the will operates after the death and the author is no longer available, Section 68 of the Evidence Act is incorporated when the due execution of the will can be proved by one attesting witness if he is otherwise alive or found. The task becomes tougher when none of the attesting witnesses are found or proved to be dead and therefore the shelter under Section 69 of the Act is required to be taken to prove the execution. 28. On the point when the recourse under Section 69 of the Evidence Act can be taken, the Apex Court in case of Babu Singh (Supra) succinctly held:- “17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the will may be proved in the manner indicated in Section 69 i.e. by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others. 18. Whereas, however, a will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved. ******************************************************************** 24. In Doraiswami v. Rathnammal [ AIR 1978 Mad 78 ] the same principle was reiterated, stating: (AIR p. 81, para 11) “11. DW 2 merely identifies the signature of Palani Navithan found in Ext. B-1 as that of his father. The mere fact that the signature of Palani Navithan is proved, in our opinion, is not sufficient to prove the due execution of the will. DW 2 merely identifies the signature of Palani Navithan found in Ext. B-1 as that of his father. The mere fact that the signature of Palani Navithan is proved, in our opinion, is not sufficient to prove the due execution of the will. The evidence of this witness is relied on for proving the signature of one of the attesting witnesses and thus enable the third defendant to adduce secondary evidence regarding the due execution of the will. The evidence of DW 2 will be relevant only for purposes of Section 69 of the Evidence Act. Section 69 will come into play only when no attesting witness can be found. In this case, as already stated, an attesting witness DW 4 has been examined and he has denied his attestation of the document. Therefore Section 69 can have no application. The evidence of DW 2, therefore, even if accepted, will not help the third defendant.” ********************************************************************* 26. This Court therein noticed, inter alia, the decision of B. Venkatamuni v. C.J. Ayodhya Ram Singh [(2006) 13 SCC 449] wherein the law has been laid down in the following terms: (SCC pp. 459-60, para 24) “24. The Division Bench of the High Court was, with respect, thus, entirely wrong in proceeding on the premise that compliance with legal formalities as regards proof of the will would sub-serve the purpose and the suspicious circumstances surrounding the execution thereof is not of much significance.” 27. We generally agree with the aforementioned view of the Calcutta High Court. Assuming, however, that even taking the course of Order 16 of the Code of Civil Procedure might not be necessary, what was imperative was a statement on oath made by the plaintiff. A deposition of the plaintiff is (sic is as) a witness before the court and not the statement through a counsel across the Bar. Such a statement across the Bar cannot be a substitute for evidence warranting invocation of Section 69 of the Evidence Act.” 29. Admittedly, in the instant case, two of the attesting witnesses are proved to be dead at the time of filing an application for probate. The learned Advocate who drafted the purported Will is also dead, which can be discerned from the specific stands of the parties. Admittedly, in the instant case, two of the attesting witnesses are proved to be dead at the time of filing an application for probate. The learned Advocate who drafted the purported Will is also dead, which can be discerned from the specific stands of the parties. Dispute is relatable to the second attesting witness in the purported will, which according to the objectors have not been proved by the executor either to be alive or dead. The executor has all along taken the stand that he does not know the said gentleman nor has seen his signatures at any point of time. The said witness namely Nitish has been said to be the friend of the mother and occasionally used to visit the house. The executor categorically states that he did not make any attempt to find out the said attesting witness and in the cross examination says that presumably he is dead in the year 1983. The aforesaid observation is recorded for the reason that neither the objectors have specifically said that the Nitish is alive and not dead nor any attempt on their part is shown to bring the said witness. However, from the cross examination of the executor it would appear that he categorically stated that the said attesting witness died in the year 1983 and is no longer alive. 30. The aforesaid aspect comes on the back-foot when the specific objection is raised by the objectors that the signatures appearing in the purported will is forged and fabricated. One of the foremost thing, which is required for due execution is that the executants has put his signature on the purported document and the same has been proved to be his. In the instant case the executor first relied upon a private report submitted by Purushottam Chatterjee, the expert who alleged to have compared the signatures appearing in the purported will with the signatures appearing in the terms of the settlement executed in the year 1960 (Exhibit C). It is opined by the said expert that the signatures appearing in the aforesaid document leave no manner of doubt that they are of the same person. The said report is marked as Exhibit ‘D’ and this Court, therefore, feels to narrate the observations recorded therein for the simple reason that the said expert subsequently opined just opposite to the earlier report. 31. The said report is marked as Exhibit ‘D’ and this Court, therefore, feels to narrate the observations recorded therein for the simple reason that the said expert subsequently opined just opposite to the earlier report. 31. Exhibit ‘D’ would reveal that the expert compared the signatures appearing in each pages of the purported will and observed that if any forgery is to be committed there would be only one signature on the last page and not on each pages of the document. It is further observed that there is a tremor in all the signatures appended on the purported will from start to end but such tremor is not a determinant factor for the reason that in case of forgery of the signature one may find good and bad line quality (effect of tremor) side by side as it is not possible for any writer to maintain bad line quality all through. It is further opined that there may be a natural variation by passage of time which cannot be said to be a sole factor. The said expert was subsequently appointed on the basis of an application taken out in the instant case and his subsequent report which is marked as Exhibit 7 speaks otherwise. It is opined by the said expert that the signature written by fountain pen ink is found feathering of the ink lines which is not normal. According to the said expert the feathering of ink lines can be found if written on an old paper or wet paper. But the said expert further found inconsistency in respect of marginal heads of type writings as the space at the bottom of page 2 of the purported will is less than the other pages. He conclusively opined that the will was never written and prepared on 4th February, 1979 and the four old papers might have been used for preparing the will at a later period of time. It would be pertinent to record in this regard that the second report of the said expert was made while comparing the signatures appearing in the purported will with the signatures appearing in the original affidavit dated 20th August, 1980. The said affidavit is not marked as exhibit but has been kept marked for identification. 32. It would be pertinent to record in this regard that the second report of the said expert was made while comparing the signatures appearing in the purported will with the signatures appearing in the original affidavit dated 20th August, 1980. The said affidavit is not marked as exhibit but has been kept marked for identification. 32. The copy of the affidavit was given to the Advocate on Record of the propounder on 18th August, 2011 and it does not appear from the record that any objection was raised either over its existence or on its authenticity. Even the application appointing the handwriting expert was allowed directing the comparison of the signature to be made with the said affidavit. Series of questions were put to the said expert by the executor during the cross examination as to why the said affidavit was not taken in original to compare the signatures appearing in the purported will and in the said affidavit. The said affidavit is contemporaneous document and executed within the close proximity of the period when the purported will is alleged to have been executed by the testator. The other two reports submitted by the handwriting experts are based upon the comparison of the signatures appearing in the purported will and the terms of settlement executed in the year 1960. 33. There is no doubt to the proposition that Section 45 of the Evidence Act enables the Court to obtain the opinion of an expert on various aspects including the one relating to the comparison of the disputed signatures and its opinion involving the analysis of the slant which a person uses in the matter of putting signature would be of some importance (see Bheri Nageswara Rao Vs. Mavuri Veerabhadra Rao & Ors. reported in AIR 2006 AP 314 ). 34. Section 90 of the Evidence Act provides that where any document purporting to be 30 years old and is produced from a custody, which Court in any particular case considers proper, then the Court may presume that the signature or every other part of such document is in that person’s handwriting and duly executed by him. 35. On a question of admissibility of the document under Section 90 of the Evidence Act, the Division Bench of this Court in case of Kotiswar Mukherjee (Supra) held:- “10. 35. On a question of admissibility of the document under Section 90 of the Evidence Act, the Division Bench of this Court in case of Kotiswar Mukherjee (Supra) held:- “10. It has also been settled that only in such documents as bear the signature of the writer or of witnesses to the document that the presumption can arise. Account papers, though more than thirty years old, which do not bear on their face the signature of the writer, are not admissible in evidence on the presumption available under section 90 of the Indian Evidence Act. Vide Province of Bengal v. Ramlal Oswal, (3) (A.I.R. 1947 Cal. 308), and Kashi Nath Pal v. Jagat Kishore Acharyya Chowdhury, (4) (20 C.W.N. 643). 11. Further the section makes it clear that the presumption which is to be raised relates only to the signature, execution or attestation of a document. It does not involve any presumption that the contents of the document are true or that it had been acted upon. Such allegation has to be proved on adducing proper and relevant evidence. See Province of Bengal v. Ramlal, (3) (supra). 12. The question, however, assumes a more difficult position when a copy of a document is produced. In one of the early decisions of this Court in Khetter Chunder Mookerjee v. Khetter Paul Sreeterutno, (5) (I.L.R. 5 Cal. 886), reasons had been given for drawing the presumption of the correctness of the entries made in the original on production of a copy of the same. In a long series of decisions this view had been accepted, though there had been murmurs of dissent in some of the Courts. This has, however, been settled by the Judicial Committee, and in all the later decisions the point has been set at rest. See Seethayya v. Subramanya (6) (L.R. 56 I.A. 146), and Kunwar Basant Singh v. Kunwar Brij Raj Saran Singh (7) (L.R. 62 I.A. 180). In the latter case, the Judicial Committee expressed themselves in the following clear and decisive terms: “In face of the clear language of section 90, their Lordships are unable to accept these decisions (I.L.R. 5 Cal. 886, etc.) as sound. The section clearly requires the production in the Court of the particular document, in regard to which the Court may make the statutory presumption. 886, etc.) as sound. The section clearly requires the production in the Court of the particular document, in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under section 65 as secondary evidence, and it is produced from proper custody and is over thirty years old, then the signatures authenticating the copy may be presumed to be genuine as was done in Seethayya v. Subramanya Somayajulu (6) (L.R. 56 I.A. 146); in that case the dispute was as to the terms of a grant which had admittedly been made. Their Lordships approve of the decision in Shripuja v. Kanhyalal, (15 Nag. L.R. 192), in which the Judicial Commissioner held that production of a copy was not sufficient to justify the presumption of due execution of the original under section 90, and they are unable to agree with the subsequent overruling of that decision in Shri Gopinath Maharaj Sanathan v. Moti, (30 Nag. L.R. 155)”. 13. The question as to the scope of section 90 of the Indian Evidence Act came up for consideration before the Supreme Court last year. In Sitaldas v. Santaram, (8) (A.I.R. 1954 S.C. 606), it has been laid down that the language of section 90 of the Evidence Act requires the production of the particular document in regard to which the Court is invited to make the statutory presumption. If the document produced is a copy, admissible as secondary evidence under section 65 of the Act and is produced from proper custody and is over 30 years old, then only the signatures authenticating the copy may be presumed to be genuine; but production of a copy is not sufficient to raise the presumption of the due execution of the original (vide Kunwar Basant v. Kunwar Brij, (7) (supra). In this case no foundation was laid for reception of secondary evidence under section 65 of the Act, nor can the copy produced be regarded as secondary evidence within the meaning of section 63.” 36. It has been argued on behalf of the propounder that the presumption under Section 90 of the Evidence Act cannot be raised as at the time of filing the instant proceeding the period of 30 years did not expired. What can be seen from the aforesaid provision as to when the document was produced and not when the proceeding was initiated before the Court. What can be seen from the aforesaid provision as to when the document was produced and not when the proceeding was initiated before the Court. The copy of the document was handed over to the Advocate on Record of the propounder on 18.08.2011 and naturally by this time the period of 30 years expired. This Court does not find any fetter on the part of the Court to apply the provisions contained under Section 90 of the Evidence Act and the said document ought to have been marked as exhibit. Even otherwise this Court does not find any difficulty in considering the report being Exhibit 7 and the opinion expressed therein that the signature was put on old papers much after the date of its purported execution on the basis of the feathering of the ink. I am quite conscious of the proposition of law that the Court should not merely go by the ‘ipse dixit’ of the report of the handwriting expert to form its conclusive opinion. The facts revealed in the said report may be relevant facts but cannot be a sole determinant fact either to impinge the document or to uphold the same. 37. So far as the existence of the will is considered, it is a categorical statement of all the parties that it did not see the light of the day till the death of the mother. The conduct of the parties in dealing with the property after the death of the father is also to be seen. Admittedly, the father died in 23rd September, 1985 and the mother who alleged to have been appointed as executrix to the said will neither disclosed the same nor took any steps for obtaining the probate thereof. On the other hand, steps were taken to mutate the names of all the heirs of the father in the records maintained by Kolkata Municipal Corporation for the purpose of collection of the land revenue. 38. According to executor he used to contribute the municipal rates and taxes levied on the said property along with the objectors. On the other hand, steps were taken to mutate the names of all the heirs of the father in the records maintained by Kolkata Municipal Corporation for the purpose of collection of the land revenue. 38. According to executor he used to contribute the municipal rates and taxes levied on the said property along with the objectors. It is the specific case of the objectors that the settlement was arrived amongst the heirs and it was decided that the ground floor shall be exclusively possessed and enjoyed by Sanjukta and the first floor shall be enjoyed by the mother till her lifetime and thereafter will go to the executor and the second floor shall be possessed and enjoyed by Debjani. Though the executor denied the aforesaid settlement having arrived as there is no written document in this regard, yet one startling fact, which this Court finds, is that the propounder himself contributed the cost for construction of the second floor for the residence of Debjani and even during the cross examination said that he would allow Debjani to live therein. Had it been the intention of the testator not to bequeath the property to the daughters, there was no occasion to allow Debjani to live on the second floor of the said premises. It has been a constant stand of the executor that he contributed his share towards the corporation rates and taxes with the sisters and therefore his denial on the alleged settlement does not appear to be truthful. 39. A plausible explanation is offered in this regard that till the time the will was discovered the executor was of the view that the objectors being the Class-1 heirs inherited the estate of the father by intested succession. The story of the discovery of will for the first time from the almirah of the mother does not appear to be sound. 40. It is a specific case of the propounder that the keys of those almirah were handed over by Debjani which presupposes that Debjani was in control of those almirah at the time of the death of the mother or even thereafter. According to the objectors, the executor instructed Debjani to empty the said almirah to get it polished and the belongings kept in the said almirah has been uniformly accepted by all the witnesses except the purported will. 41. According to the objectors, the executor instructed Debjani to empty the said almirah to get it polished and the belongings kept in the said almirah has been uniformly accepted by all the witnesses except the purported will. 41. This Court is unable to accept such story for the reason that the mother who was an educated lady and was employed in Life Insurance Corporation of India would suppress the existence of a purported will during her lifetime and did not take any steps to get the probate of the said will. It is the constant stand of the parties that the father had a good relation with the children through out his life and allowed Debjani to live at the said property since 1966. 42. In case of Gorantla Thataiah (Supra) the Apex Court held that it is imperative on the part of the executor to dispel the suspicious circumstances leading to the execution of the purported will to be judged in the facts and circumstances of a particular case. In other words, the onus probandi lies in every case upon the propounder and must satisfy the conscience of the Court that the will was executed with free mind and the testator was capable to make it. The relevant observations made by the Supreme Court in paragraph 6 of the said report is reproduced as under:- “6. It is well-established that in a case in which a will is prepared under circumstances which raise the suspicion of the court that it does not express the mind of the testator it is for those who propound the will to remove that suspicion. What are suspicious circumstances must be judged in the facts and circumstances of each particular case. If, however, the propounder takes a prominent part in the execution of the will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the will and in appreciating the evidence in such a case, the court should proceed in a vigilant and cautious manner. It is observed in Willians on Executors and Administrators, Vol. It is observed in Willians on Executors and Administrators, Vol. I, 13th Edn., p. 92: “Although the rule of Roman Law that ‘Qui se scripsit haeredem’ could take no benefit under a will does not prevail in the law of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased.” 43. According to the decision in Fulton v. Andrew [(1875) LR 7 HL 448], “those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction”. “There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out”. In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well known observations of Baron Parke in the case of Barry v. Butlin [(1838) 2 Moo PC 480, 482]. The two rules of law set out by Baron Parke are: “first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator”; “the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased”. In Sarat Kumari Bibi v. Sakhi Chand [56 IA 62] the Judicial Committee made it clear that “the principle which requires the propounder to remove suspicions from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator”. This view is supported by the following observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton [(1894) P 151, 157, 159] : “The rule in Barry v. Butline [2 Moo PC 480], Fulton v. Andrew [(1875) LR 7 HL 448] and Brown v. Fisher [(1890) 63 LT 465] is not, in my opinion, confined to the single case in which a will is prepared by or on the instructions of the person taking large benefits under it, but extends to all cases in which circumstances exist which excite the suspicion of the Court; and wherever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and to prove affirmatively that the testator knew and approved of the contents of the document, and it is only where this is done that the onus is thrown on those who oppose the will to prove fraud or undue influence, or whatever else they rely on to displace the case made for proving the will.” (Lindley, L.J.). “It must not be supposed the principle in Barry v. Butlin [2 Moo PC 480] is confined to cases where the person who prepares the will is the person who takes the benefit under it — that is one state of things which raises a suspicion; but the principle is that wherever a will is prepared under circumstances which raise a well-grounded suspicion that it does not express the mind of the testator the Court ought not to pronounce in favour of it unless that suspicion is removed.” (Davey, L.J.).” 44. However, in case of Rabindra Nath Mukherjee (Supra) the Apex Court succinctly held that mere deprivation of the natural heir ordinarily does not raise any suspicion as the entire idea behind the execution of the will is to interfere with the normal line of succession. However, in the said case the Apex Court found that the testatrix during her lifetime sold, transferred and conveyed some of her properties and received the consideration price, which shows her consciousness in dealing with the properties and therefore the will was not found to be shrouded by suspicious circumstances. 45. Though the deprivation of the natural heir may not always raise the suspicious circumstances but the person propounding the will must lead unimpeachable evidence not only on the genuineness thereof but also on the circumstances leading to the execution thereof. The Apex Court in case of Kalyan Singh (Supra) emphasised that once the will is not produced for many years, it is a duty of the executor to remove those circumstances by placing satisfactory materials on record in these words :- “22. The Privy Council in Mt. Biro v. Atma Ram [ AIR 1937 PC 101 : 64 IA 92 : (1937) 1 MLJ 646] had an occasion to consider an analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the widow of the testator and three other women, namely, his mother, his step-mother and his paternal aunt. These women though entitled under the Hindu law only to maintenance, were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was however, provided that the lady, who survived the other three devisees, would become the absolute owner of the estate. The widow of the testator would not get her husband's estate, if she predeceased any of her co-devisees. The will was not produced until after 22 years its execution though there were occasions to produce it, had it been in existence. The widow of the testator would not get her husband's estate, if she predeceased any of her co-devisees. The will was not produced until after 22 years its execution though there were occasions to produce it, had it been in existence. Considering these circumstances, the Privy Council observed (at 104): “It is most unlikely that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them. That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But this is not the only circumstance which tells against its genuineness. The will purports to have been executed on August 24, 1900, and the testator died within a month of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so.” The will in the present case, constituting the plaintiff as a sole legatee with no right whatever to the testator's wife seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff's title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We therefore, concur with the conclusion of the High Court and reject the will as not genuine.” 46. Admittedly the executor was living in United Kingdom and used to occasionally visit the parents initially after a gap of 4 to 5 years, which was later on reduced to one or two years. It is not in dispute that the ground floor was in occupation and possession of a tenant at the time of the alleged execution of the purported will and it raises a strong suspicion when the testator wanted one of his daughters namely Sanjukta to live on the ground floor till her lifetime. It is not in dispute that the ground floor was in occupation and possession of a tenant at the time of the alleged execution of the purported will and it raises a strong suspicion when the testator wanted one of his daughters namely Sanjukta to live on the ground floor till her lifetime. It is unnatural that the testator, who knew very well that the ground floor is fully occupied by the tenant yet he would give a right of residence to Sanjukta therein till her life unless at the time of alleged execution of the purported will attempt had been taken to get the tenant evicted therefrom. 47. Though the other two experts have opined that the signatures appearing in the purported will and the terms of settlement are of the same author, yet, this Court cannot overlook that the third opinion based on the old document being used subsequently by putting the signature and the feathering of the ink is well noticed. 48. From the conduct of the parties and facts disclosed in the third report of the expert, this Court does not find that the purported will is genuine. 49. This Court does not find any support from the observations made in case of S.J. Chowdhary (Supra) as in the said case the question which was involved was whether the contents typed in the disputed document are genuine or not having typed through a typewriter frequently used at the relevant point of time of its execution or the typewriter of a recent origin was used. None of the parties have raised any disputes on the same and therefore this Court does not find that the observations may therein can be of any relevance in the instant matter. 50. Once this Court finds that the will is not genuine, the other points relating to a suspicious circumstances or deprivation of the natural heir becomes academic and need not be gone into. 51. The application for probate is thus dismissed. 52. However, there shall be no order as to costs.