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2017 DIGILAW 799 (CAL)

Bhanwari Devi Kulthia v. Sampat Devi Kulthia

2017-09-21

SAHIDULLAH MUNSHI

body2017
JUDGMENT : Sahidullah Munshi, J. P.L.A. 169 of 2010 was registered at the instance of Sampat Devi Kulthia, the sole executrix of the Will and Testament dated 31st January, 2008, executed by Bhanwari Devi Kulthia. Probate petition was filed on 13th July, 2010. By an order dated 16th May, 2012 the Hon'ble Justice I.P. Mukherjee, while disposing of an application being G.A. No.1229 of 2012, directed that - (a) The proceedings against Smt. Rajkumari Verma be treated as non-contentious cause; (b) Smt. Sudha Soni, to file the affidavit in support of the caveat. It was held that in default, the proceeding was to be treated as non-contentious as against her. 2. By a subsequent order dated 7th September, 2016, the Hon'ble Justice R. K. Bag allowed the prayer of Rajkumari Verma to treat the proceeding as contentious one against her and to allow her to file her affidavit within an extended date. Such prayer was allowed subject to payment of a cost of 2500 G.Ms. The said Rajkumari Verma was given liberty to file affidavit within a period of two weeks only and she was directed to pay the cost to the plaintiff within the time stipulated. By the said order His Lordship modified his earlier order dated 16th May, 2012. Since the cost as directed, was not paid by Rajkumari Verma, by a subsequent order dated 8th November, 2016, His Lordship the Hon'ble Justice R. K. Bag held that the order dated 7th September, 2016 by which Court gave opportunity to Rajkumari Verma to contest the probate proceeding, stood cancelled. It was observed that since the petitioner and the contesting defendant already adduced evidence the matter should be placed for argument on 5th December, 2016. The probate proceeding is being contested only by Sudha Soni, the defendant no.1, who affirmed her affidavit on 6th June, 2012 and filed the same in Court on 30th July, 2012. The petitioner, Sampat Devi Kulthia, in her probate application, has stated that one Smt. Bhanwari Devi Kulthia, since deceased, left a Will and Testament dated 31st January, 2008 wherein the petitioner has been appointed as the sole executrix to the said last Will and Testament dated 31st January, 2008 left by the said Smt. Bhanwari Devi Kulthia, since deceased. The petitioner is the sole beneficiary and legatee of the said Will. The petitioner is the sole beneficiary and legatee of the said Will. The Will has been marked as Exhibit A. According to the petitioner, the Will dated 31st January, 2008 has been proved by the declaration of Shri Sachin Soni, being the attesting witness to the Will and also by his affidavit affirmed on 28th June, 2010, pertaining to the said Will which is also filed with the petition. According to the application filed by Sampat Devi Kulthia, the deceased left behind surviving the below-named persons as her only legal heirs and representatives and no one else who could have inherited the assets and properties of the deceased had he died intestate as per Hindu Succession Act, 1956. The legal heirs and representatives are as follows : (i) Smt. Sampat Devi Kulthia, wife of Late Ashok Kumar Kulthia. She is the wife of pre-deceased son of Bhanwari Devi Kulthia, the testatrix and also the executrix in the aforesaid Will. (ii) Smt. Kiran Soni, wife of Shri Sachin Soni and daughter of Ashok Kumar Kulthia, the pre-deceased son of the testatrix. She is also the granddaughter of the testatrix. (iii) Smt. Rajkumari Bhama alias Verma alias Soni, wife of Ramesh Kumar Verma, a married daughter of the testatrix. (iv) Smt. Sudha Soni, wife of Shri Pawan Kumar Soni, a married daughter of the testatrix. 3. While filing the probate application, Rajkumari Verma and Smt. Sudha Soni, two married daughters and legal heirs of the deceased above-named have not given their consent to the grant of probate in favour of the propounder. The testatrix above-named died leaving assets and properties both within and outside the jurisdiction of this Hon'ble Court which according to the propounder, shall be administered by her as the executrix and sole beneficiary and legatee named in the said Will dated 31st January, 2008. Therefore, the propounder has come forward before this Court with the application for grant of probate. Particulars of the property of the deceased have been set out in the affidavit of assets of the petitioner affirmed on 20th June, 2010. 4. As indicated earlier, Sudha Soni has filed her affidavit and the matter has been considered to be a contentious cause. By an order dated 30th August, 2016 following issues were framed - (i) Is the Will dated January 31, 2008, executed by the testatrix and attested by the witnesses? 4. As indicated earlier, Sudha Soni has filed her affidavit and the matter has been considered to be a contentious cause. By an order dated 30th August, 2016 following issues were framed - (i) Is the Will dated January 31, 2008, executed by the testatrix and attested by the witnesses? (ii) Is the Will dated January 31, 2008 false, fabricated and manufactured or genuine? (iii) Is the citation duly served on all the legal heirs of the testatrix? (iv) Is the plaintiff entitled to grant of probate of the Will dated January 31, 2008? (v) Is the plaintiff entitled to get any other relief? 5. For the sake of convenience I will consider the probate application as per the issues settled hereinbefore. Issue No. 1 - "Is the Will dated 31st January, 2008 executed by the testatrix and attested by the witnesses?" 6. The alleged Will dated 31st January, 2008 is typed in English and the signature of the testatrix put thereon in Hindi. In order to prove execution of the Will, the plaintiff produced the attesting witness, Mr. Sachin Soni and examined him in the box on 30th August, 2016. In the examination-in-chief this witness deposed that he knew Bhanwari Devi Kulthia, testatrix and the testatrix is his grand mother-in-law. He stated in the box that Smt. Bhanwari Devi Kulthia signed on the Will and she knew the signature of the testatrix Bhanwari Devi Kulthia. She signed the Will in question in the presence of all the persons present at the time of execution of the Will. After the testatrix put signature in the Will the other persons signed. He identified the signature of Bhanwari Devi Kulthia and encircled it in red ink. He deposed that apart from Bhanwari Devi Kulthia, he also signed on the Will. Apart from him her Accountant, Mr. Ramesh Kumar Verma and also Dr. N. R. Banshale put their signature on the Will. The said witnesses encircled in red ink his signature and the signatures of other witnesses. He deposed that he knew signatures of others present and signed on the Will as he saw them signed in his presence. According to the witness, Bhanwari Devi Kulthia signed the Will first and Bhanwari Devi asked the witness to sign the Will thereafter. The said witnesses encircled in red ink his signature and the signatures of other witnesses. He deposed that he knew signatures of others present and signed on the Will as he saw them signed in his presence. According to the witness, Bhanwari Devi Kulthia signed the Will first and Bhanwari Devi asked the witness to sign the Will thereafter. Court posed a question to the witness whether Bhanwari Devi Kulthia was present when the other witnesses signed the Will -the witness said - 'yes'. Question was put to the witness whether he knew contents of the Will and in answer he said - 'yes'. Will was tendered and marked as Exhibit A. Signature of Bhanwari Devi Kulthia was tendered and marked as Exhibit A1 and the signature of the witness was tendered and marked as Exhibit A2. In answer to the question whether Bhanwari Devi Kulthia was mentally and physically fit, in answer the witness said "absolutely alright". From the trend of the cross-examination made by the learned Counsel for the defendant, it appears that the defendant sought to make out a case that the Will is doubtful manufactured and false or fabricated. In cross-examination, the witness said that his grandmother-in-law signed the Will first and that after signing the Will it remained with the custody of his grand mother-in-law. He further deposed that he had gone through the Will. The witness also deposed that Ramesh Kumar Verma signed after him and thereafter Dr. N.R. Bhansale. 7. The plaintiff Ms. Sampat Devi Kulthia also deposed before this court on 1st September, 2016. In her examination-in-chief, she said that the deceased was her mother-in-law, she deposed that she was married at the age of 12 years and that her husband expired sometime in September, 2002. While the document dated 31st January, 2008 was shown to the witness, she identified the same as the Will of her mother-in-law, since deceased, and she also identified the signature of her mother-in-law appearing on the last page of the Will. She identified the signature of her mother-in-law and encircled the signature with red ink. She said she was acquainted with the signature of her mother-in-law because she was married at the age of 12 years and since then she was residing with the deceased and, therefore, she is acquainted with her signature particularly when the deceased used to sign in her presence. She said she was acquainted with the signature of her mother-in-law because she was married at the age of 12 years and since then she was residing with the deceased and, therefore, she is acquainted with her signature particularly when the deceased used to sign in her presence. She also deposed that she is the only beneficiary under the Will executed by her mother-in-law. She deposed that at the time of execution of the Will she was not present. In cross examination of this witness by the defendant she deposed that the Will was handed over to her by her mother-in-law after about a month of execution of the Will. She has also deposed that her mother-in-law handed over to her another Will which was executed by her father-in-law in favour of her mother-in-law. In answer to the question that the Will was manufactured by her to grab the property of her father-in-law and mother-in-law depriving her sisters-in-law, she said - "I disagree". In answer to the suggestion that her mother-in-law never wished to deprive her daughters from the property, she said - "I disagree". In answer to the suggestion that the Will was handiwork of the witness and her son-in-law, she deposed - "I disagree". In response to the suggestion that after receiving summons of the partition suit she entered into conspiracy and have manufactured both the Will executed by her father-in-law and mother-in-law she deposed -"I disagree". On behalf of the defendant it has been strenuously argued that 8. In response to the suggestion that after receiving summons of the partition suit she entered into conspiracy and have manufactured both the Will executed by her father-in-law and mother-in-law she deposed -"I disagree". On behalf of the defendant it has been strenuously argued that 8. on the face of the Will it appears to be of great doubt whether the same has been executed by the testatrix or not and in order to raise such doubt it has been pointed out that - (i) the testatrix without knowing contents of the Will has signed in Hindi although the contents of the Will was drafted in English; (ii) she signed after the word testator, although, she was supposed to sign above the word testator; (iii) It is mentioned in the Will "in witness whereof I the said Bhanwari Devi Kulthia have put my signature on this Will in presence of two witnesses", but signatures of four attesting witnesses including the signature and seal of Kamal Kumar Paul, Notary, Government of India who has attested the signature of the testatrix appearing in the Will; (iv) It is typed in English a little below the alleged signature of testator in Hindi that "This Will have been read over and explained to me in Hindi", it is argued that below the aforesaid words, there is a blank space in the internal page 2 of the Exhibit A and there is no signature of the testatrix in the said blank space acknowledging that the said Will was read over explained her in Hindi. 9. It is argued that the above anomalies in the Will (Exhibit A) clearly prove that the contents of the Will were not read over and explained to the testatrix in Hindi language by any person. 10. It is further argued that explanation 4 to section 59 of the Indian Succession Act, 1925 says that no person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or for any other cause that he does not know what he is doing. It has been submitted that illustration (ii) to section 59 of Indian Succession Act, 1925 says "A executes an instrument purporting to be his Will, but he does not understand the nature of the instrument, nor the effect of its provisions. It has been submitted that illustration (ii) to section 59 of Indian Succession Act, 1925 says "A executes an instrument purporting to be his Will, but he does not understand the nature of the instrument, nor the effect of its provisions. This instrument is not a valid Will." By virtue of the aforesaid provision of law it is sought to be argued that the contents of the alleged Will dated 31st January, 2008 of the testatrix written in English was not explained in Hindi to her and she has not put her signature to that effect in the blank space in Exhibit 'A' and further that it clearly shows that she was not conversant with the English language. 11. My attention has been drawn to question no. 50 and 95 put to PW1 in cross-examination to the effect that it has been pointed out that, the attesting witness has not disclosed who read out the alleged Will to the testatrix. 12. Learned Advocate appearing for the defendant has referred to the provision of Section 57 in part VI of the Indian Succession Act, 1925, he referred to Section 57 in part VI of the Indian Succession Act Schedule III and argued that provisions of section 59 and 63 of the Indian Succession Act, 1925 were subject to restriction and submitted that since her source of properties in the Will is of her husband Budhmal Kulthia, without obtaining letter of administration of the said alleged Will of her husband, the propounder ought not to have filed the probate proceeding. However, it is made clear that TS No. 6 of 2013 has been filed by Sampat Devi Kulthia (the executrix herein) for obtaining grant of letter of administration to the said Will of the husband of the testatrix is pending before this Court. It is also categorically pointed out by the learned Counsel for the defendant that by referring to the aforesaid restriction in the Indian Succession Act, 1925 " the defendant is not disputing the right or authority of the testatrix to bequeath the property mentioned in her alleged Will." 13. In context of the above, a 3-Judges' Bench decision in the case of H. Venkatachala Iyengar vs. B. N. Thimmajamma & Ors., reported in AIR 1959 SC 443 has been referred to by the learned counsel for the defendant. In context of the above, a 3-Judges' Bench decision in the case of H. Venkatachala Iyengar vs. B. N. Thimmajamma & Ors., reported in AIR 1959 SC 443 has been referred to by the learned counsel for the defendant. In referring to paragraph 38 of the said judgment Court's attention has been drawn to the fact that it was the bounden duty of the propounder to satisfy the Court through cogent evidence that the Will was read out to the testatrix and she understood the nature and effect of its contents. Learned counsel has also drawn the attention of the Court to a decision in the case of Ramesh Verma (dead) through L.Rs. vs. Lajesh Saxena (dead) by L.Rs., reported in (2017) 1 SCC 257 . Summarizing the contents of paragraph 13 of the said decision it has been submitted that the propounder of the Will must be called upon to show by satisfactory evidence that the Will was signed by the testator and that the testator, at the relevant time, was in a sound and disposing state of mind and further that the testatrix understood the nature and effect of the disposition. 14. It has been contended that the plaintiff has failed to prove that the testatrix put her signature on the alleged Will dated 31st January, 2008 (Exhibit A) after understanding the meaning of the contents of the same. Learned counsel for the defendant has argued that attestation as required under the law is grossly opposed in the present case. It has been alleged that, although, four persons, namely, Kamal Kumar Paul, Sudha Soni, Ramesh Kumar Verma, Dr. N. R. Bhanshale, subscribes their names and signatures as attesting witnesses being present at the same time, have not adduced any evidence. Abovementioned Kamal Kumar Paul is a Notary and according to the learned counsel, a Notary may verify, authenticate, certify or attest execution of any instrument. Learned counsel has sought to explain the word 'attestation' meaning thereby the signing by a witness to the signature of another of a statement that a document was signed in presence of these witnesses. According to the learned counsel, attesting witness means a person who has seen a party execute a Deed or sign a written document. He then subscribes his signature for the purpose of identification and proof at any future period. According to the learned counsel, attesting witness means a person who has seen a party execute a Deed or sign a written document. He then subscribes his signature for the purpose of identification and proof at any future period. He submits that under section 114 of the Indian Evidence Act, 1872 the Court may presume the existence of any fact which it thinks likely to have happened regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. According to him, illustration (e) to Section 114 of the Evidence Act, Court may presume that the testatrix put her alleged signature in Hindi in presence of Kamal Kumar Paul, Notary, Government of India and the said Kamal Kumar Paul, Notary, thereafter attested the alleged signature of the testatrix in her presence on 31st January, 2008 but Sachin Soni, in his examination, has not mentioned anything about the said Kamal Kumar Paul, Notary. Therefore, the situation gives rise to a suspicious circumstance particularly when Sachin Soni, PW 1, has deposed that the testatrix signed the Will in presence of all of the persons present at the time of execution. He submits that the oral evidence of Sachin Soni claiming himself to be one of the attesting witnesses of Exhibit A, should not be believed by this Court. According to the learned counsel, issue no.1 should be decided against the plaintiff. 15. In this case, only defendant no.1 has been contesting the probate proceeding by filing a written statement, however, she has not come in the box and led no evidence. Therefore, her written statement, without any evidence, needs no consideration. It is the settled law that if a party files a pleading but does not choose to lead any evidence, such pleadings in the eye of law, need not be considered. 16. Even if the pleadings offered by the defendant no.1 are taken into consideration, this Court finds that the objection is restricted to a very limited extent. The defendant no.1, in her written statement, has sought to plead in paragraph 5 that - "the purported Will is false, fabricated and manufactured document which has been brought into existence by the petitioner to obtain unlawful gain. The defendant no.1, in her written statement, has sought to plead in paragraph 5 that - "the purported Will is false, fabricated and manufactured document which has been brought into existence by the petitioner to obtain unlawful gain. I deny the legality of the said alleged Will enclosed to the petition being Annexure B to the petition." Reiteration of such statement has also been made in paragraph 8 where it has been stated - "I say that the alleged Will is false, fabricated, manufactured and brought into existence by the petitioner for her personal benefits with the conspiracy of her daughter Kiran Soni and son-in-law Sachin Soni." Therefore, in deciding issue no.1 as to whether the Will is genuine Will or not and the same has been executed by the testatrix and adduced by the witnesses, this Court is to restrict itself within the level of allegations made by the defendant no.1. 17. Before proceeding further it is necessary to take note of section 63 of the Indian Succession Act which relates to execution of unprivileged Wills. The said provision narrates the essential tests for valid execution of a Will - (a) According to the provisions of section 63 of Indian Succession Act, 1925, the Will must be signed by the testator or testatrix or he or she shall affix her or his mark to the Will or it shall be signed by some other persons in her or his presence and by his or her discretion. (b) The signature or mark of the testator/testatrix, 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 must be attested by at least two witnesses each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person signing the Will in his presence and by the discretion of the testator, or has received from the testator a personal acknowledgment by his or her signature or mark, or of the signature of such other persons and each of the witnesses shall sign the Will in the presence of the testator/testatrix but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation is necessary. 18. 18. In view of the said provision of section 63 of the Indian Succession Act, 1925 it can be held that the testator must have a dispensing mind free from all extraneous influences but has mental capacity to execute a Will. The testator is presumed to be seen having a mental capacity to make a valid Will until contrary is proved. The Will should be executed in accordance with the provisions of the Act as incorporated in Section 63 as mentioned hereinabove. The testator or testatrix should have signed or affixed his or her mark to the Will. At least two witnesses those who are required to see the testator signing or affixing his mark on the Will and each of the witnesses should sign the Will in presence of the testator. 19. There is no doubt that the onus of proof of a Will is on the propounder or beneficiary of the Will. However, existence of suspicious circumstances makes the onus of proof very heavy and such circumstances are required to be removed by the propounder before the document is accepted as the last Will of the testator. Now, it is necessary to take into consideration of the two things - (1) Whether the propounder has discharged his onus of proof of the Will satisfactorily and (2) Whether there is any suspicious circumstances for which the onus of proof becomes heavy upon the propounder. 20. On examination of Exhibit A it appears that on the first page on the right hand side it bears the signature of the testatrix. This signature has not been disputed. There is a signature (Exhibit A1) immediately after the last paragraph of the Will (paragraph 5) and below that signature (Exhibit A1) it is written - "in witness whereof I, the said Bhanwari Devi Kulthia, have put my signature on this Will in the presence of two witnesses. This Will have been read and explained to me in Hindi." Below that in block letters at the middle it is written - 'testator'. This Will have been read and explained to me in Hindi." Below that in block letters at the middle it is written - 'testator'. After the word 'testator' it is written - "signed by the above-named Bhanwari Devi Kulthia as her last Will and Testament in her presence at the same time thereafter at his request and in her request and in her presence we subscribe our respective names and signatures as attesting witness all being present at the same time." Below those writings, signatures of attesting witnesses Sachin Soni, whose signature is marked Exhibit A2. Below the signature of attesting witness Sachin Soni (Exhibit A2) there appears the signatures of Ramesh Kumar Verma and Dr. N.R. Bhanshale. Except the signature of attesting witness, Sachin Soni, signatures of other witnesses have not been marked as exhibits. There also appears a signature of Kamal Kumar Paul, Notary, Government of India, who attested the signature on identification of the Advocate present. The Advocate's signature with seal also appears on the left hand side of the word 'testator' but those signatures have not been marked as exhibits. 21. Dealing with the question as to whether the Will has been executed by the testatrix or not, the attesting witness Mr. Sachin Soni was called in the box. In his examination-inchief he deposed that he knew Bhanwari Devi Kulthia and he is her grandson-in-law. He has indentified the signature of the testatrix on the Will and he has also identified signatures of the other witnesses present at the the time of execution of the Will. He specifically deposed that the testatrix signed the Will in presence of all of the witnesses and after she put two signatures the other persons present there signed the Will. In question no.16 which is a question from the Court whether Bhanwari Devi Kulthia was present when the other witnesses signed the Will, he said - 'yes'. He also deposed that the mental and physical health of the testatrix Bhanwari Devi Kulthia at the time of the signature on the Will was absolutely alright. Therefore, the execution of the Will has been proved by the attesting witness through his evidence in the box. Question has been raised that the contents of the Will were not known to the testatrix inasmuch as the Will was written in English and the testatrix signed in Hindi. Therefore, the execution of the Will has been proved by the attesting witness through his evidence in the box. Question has been raised that the contents of the Will were not known to the testatrix inasmuch as the Will was written in English and the testatrix signed in Hindi. It is not clear from the evidence as to who read out the Will. In the evidence (question no.50) of PW 1, Sachin Soni, he deposed that "in the presence of everyone who was sitting there, the Will was read out. It was there I heard the Will." Therefore, taking into consideration the answer in the cross-examination of PW 1, Sachin Soni, it appears that the Will was read over where everybody was present including the testatrix. There is no reason to disbelieve such statement because the witness could not be shaken in the cross-examination that he was not present there, nor is the fact that he never heard about the Will. It is fact that it was not mentioned as to who read over the Will before the testatrix or before the other witnesses including Sachin Soni, but that does not make the Will vitiated or suspicious. It does not also appear from the cross-examination that any question was put to Sachin Soni as to who read out the Will. If that question is not put to the witness and no answer has come from the mouth of the witness, can it be said that the witness has suppressed the name of the person who read out the Will? The answer is obviously 'no'. It also does not indicate of a situation that the Will was not read over before the testatrix. When the testatrix signed the Will in presence of the witnesses and that has been proved in the box, onus lies upon the defendant to prove that the signature is not of the testatrix. The question which has been raised that even if she signed on the Will she did not realize what she signed. This doubt is removed when we consider the question in cross-examination (question no.64) when the witness was asked - "When you reached in your in laws place, were these papers were already there?" The witness deposed - "I was sitting there when Bhanwari Devi Kulthia told me to sign a paper. This doubt is removed when we consider the question in cross-examination (question no.64) when the witness was asked - "When you reached in your in laws place, were these papers were already there?" The witness deposed - "I was sitting there when Bhanwari Devi Kulthia told me to sign a paper. I made my signature." This clarifies the position that, although, the signature was in Hindi the testatrix, having full knowledge of the contents of the document, herself signed the Will and thereafter requested the attesting witness to sign the document. Nothing suspicious can be found out from such deposition of the attesting witness and more so, the signature has never been disputed by the defendant. Therefore, it can be held that the Will has been duly executed by the testatrix in presence of the witnesses within the meaning of section 63 of the Indian Succession Act. It has been pointed out by Mr. Ghosh that since the witness has deposed in question no.50 that he heard the Will and in question no.95 he said that at the time of signing he had gone through the Will, it makes contradictory but in my view, this contradiction does not affect so much so that it could be perceived of any suspicious circumstance, nor does it affect the merits of the case. There is no bar to go through the contents of the Will before signing by the attesting witness even if he was present and heard the contents of the Will read out by someone else. That does not create any suspicious circumstances so that Court can presume that the Will has been made under any coercion or that the Will was signed by the testatrix without knowing the contents. When the witness says that Will was read over in presence of all, it presupposes that the testatrix also heard the contents of the Will. Had there been anything in her mind she would have asked and since the Will had been signed by the testatrix in presence of the witnesses and the witnesses had come forward to depose that there is no reason to disbelieve that the testatrix did not understand the contents of the Will and signed it without knowing the contents of the Will and this satisfies the principles relied upon by Mr. Ghosh in view of paragraph 38 of the decision in the case of H. Venkatachala Iyengar vs. B. N. Thimmajamma & Ors., reported in 1959 SC 443. The present case is distinguishable on fact. In the said cited decision paragraph 38 demonstrates that the witness stated that he could not state definitely whether the whole of the document was read over to the testatrix before he put the signature but in the present case, the attesting witness has said that the Will was read over in presence of all the witnesses present at the time of execution. When somebody says that he has heard the Will there is no reason to believe that he has heard part of the Will. It will be presumed that he has heard the contents of the Will. 22. With regard to paragraph 13 of the decision in the case of Ramesh Verma (dead) through L.Rs. vs. Lajesh Saxena (dead) by L.Rs., reported in (2017) 1 SCC 257 to the effect that the propounder of the Will is called upon to show by his satisfactory evidence that the Will was signed by the testatrix does not raise any doubt that the Will has been proved as required under law. Section 68 of the Evidence Act says that anyone of the two attesting witnesses may be called to prove the Will and that having not been done it will be presumed that the execution of the Will has not been proved. Therefore, this Court holds that there is no doubt that the Will has been executed by the testatrix having full knowledge of the contents of the Will and she has executed the Will in good health. 23. Issue no.1 is decided in favour of the plaintiff. 24. Issue No.2 - "Is the Will dated 31st January, 2008 is false, fabricated and manufactured. It has been pointed out that the witness Sachin Soni, in response to question no.68, deposed - "only two pages of the concerned Will being pages 13 and 14 were shown to me and asked to sign on the second page of the Will." It has been argued that the entire Will has not been shown to the witness and, therefore, without knowing the contents of the entire Will the attesting witness allegedly signed the Will or put his signature on the same. On perusal of the Will, Exhibit A, it appears that the Will contains two pages being page 13 and 14 of the probate application. On top of the Will there is a page which is nothing but the notarial certificate signed by Kamal Kumar Paul. It hardly matters whether the witness has signed the notarial certificate or not. Such notarial certificate is not part of the Will. Will was executed first and then it was notarized and accordingly, Notary issued a certificate. Therefore, if the witness had not gone through the notarial certificate that does not mean that the said witness did not witness the Will and put his signature not reading the Will. Thus, this argument cannot be accepted. There is no reason to believe that the Will is a false, fabricated or manufactured. No amount of evidence is on record to prove such circumstances. However, there is no sincere effort on the part of the defendant to prove that the Will is fabricated or manufactured. 25. A party alleging undue influence must discharge the onus by clear evidence that influence was, in fact, exercised. Burden of proof that Will was forged or that it was obtained under undue influence or coercion or by playing fraud is on the person who alleges it to be so. 26. Ordinarily when the evidence adduced in respect of the Will is disinterested and sufficient to prove the consent and dispensing state of the testatrix and her signature is required by law, Court would be justified in making a finding in favour of the propounder unless of course the execution is shrouded by suspicious circumstances and the propounder fails to remove such suspicious circumstances. 27. Nothing exceptional appears from the evidence of the witnesses deposed in the box that the Will is shrouded by suspicious circumstances, nor is there any independent witness produced by the defendant to prove that the Will has been executed under undue influence or coercion or by playing any fraud. Fraud has been defined in section 17 of the Indian Contract Act, 1872, to be - 28. Fraud has been defined in section 17 of the Indian Contract Act, 1872, to be - 28. 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:- (1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true; (2) the active concealment of a fact by one having knowledge or belief of the fact; (3) a promise made without any intention of performing it; (4) any other act fitted to deceive; (5) any such act or omission as the law specially declares to be fraudulent." 29. Fraud is to be pleaded as a defence in a probate proceeding alleging that the execution of the Will was obtained by fraud and burden of proving such fraud lies entirely upon the person who alleges the same. Therefore, if the defence cannot substantiate that the Will was manufactured and/or any fraud was committed, he cannot succeed to prove that the Will is not a genuine one. From the above discussion it is amply clear that no case has been made out that the Will is not a genuine one. Thus, issue No.2 is decided against the defendant. 30. Issue No.3 - "Is the citation duly served on legal heirs of the testatrix?" Record reveals that granddaughter of the testatrix has given her consent to the grant of probate. Smt. Sampat Devi Kulthia is the propounder in the present proceeding and she is the beneficiary under the Will left by the deceased. The two other married daughters of the testatrix have also been served by general citation and special citation. By an order dated 24th November, 2011 this Court directed for publication. 31. By virtue of order dated 10th January, 2012, publication was made. Raj Kumari Verma and Sudha Soni, both married daughters of the deceased appeared to oppose the grant of probate. As it has already been pointed out earlier that Sudha Soni lodged her caveat and filed affidavit in support of such caveat. Plaintiff's witnesses have been subjected to cross-examination at her instance through her lawyer. Smt. Sudha Soni has chosen not to lead any evidence herself or on her behalf. As it has already been pointed out earlier that Sudha Soni lodged her caveat and filed affidavit in support of such caveat. Plaintiff's witnesses have been subjected to cross-examination at her instance through her lawyer. Smt. Sudha Soni has chosen not to lead any evidence herself or on her behalf. So far Raj Kumari Verma, the other married daughter of the deceased is concerned, the proceedings against her were made non-contentious and the same is recorded by this Court by an order dated 16th May, 2012. It has already been pointed out earlier by and order dated 7th September, 2016, she was given an opportunity to contest the proceeding subject to payment of costs awarded by this Court but she failed to pay such costs in spite of opportunity given to her. Ultimately, by an order dated 8th November, 2016, it was recorded that the proceeding remained non-contentious against Raj Kumari Verma. These are all about the citations and based on record, therefore, this question cannot help the defendant. This issue is decided against the defendant. 32. Issue No.4 - "Is the plaintiff entitled to grant of probate of the Will dated 31st January, 2010?" 33. The burden of proof that the Will has been validly executed and is a genuine document, is on the propounder. The propounder is also required to prove that the testatrix has signed the Will and that she had put her signature out of her own free will and having a sound and disposing state of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But the onus would be on the applicant to remove the suspicion while leading sufficient and cogent evidence, if there exists any. In the case of proof of Will, a signature by a testator or testatrix alone would not prove the execution thereof but the Will has to be proved by calling the attesting witness. In the present case, the propounder and the attesting witness have come in the box and proved the Will. According to section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least is called for the purpose of proving the execution of such a document. According to section 68 of the Indian Evidence Act, if a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least is called for the purpose of proving the execution of such a document. section 68 of the Indian Evidence Act is set out 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." 34. In the present case, execution of the Will has been witnessed by the attesting witness Sachin Soni. While dealing with the earlier issue, it has already been discussed as to how the attesting witness has proved the execution of the Will. Therefore, proving of the Will by one attesting witness is sufficient and the requirement under Section 68 is complied with so also the requirements under section 63 of the Indian Succession Act. Therefore, it cannot be said that the plaintiff cannot get the grant of probate of the Will in question. The onus of proving the Will is definitely on the propounder. Therefore, it cannot be said that the plaintiff cannot get the grant of probate of the Will in question. The onus of proving the Will is definitely on the propounder. In this case, testamentary capacity of the propounder has been established; execution of the Will by the testatrix has been proved; requirement of at least one attesting witness is required to be examined for the purpose of proving the execution of the Will as required under section 68 of the Indian Evidence Act has duly been complied with in this case; the Will has been signed by the testatrix with her free will and that at the relevant time she was in sound disposing state of mind and understood well the nature and effect of the disposition; it has been established that testatrix has signed the Will in presence of two witnesses who attested her signature in her presence or in the presence of each other; attending circumstances as evident from the evidence on record could not reveal that the Will was executed by any circumstances shrouded by suspicion. Therefore, there is no reason to deny the grant of probate in favour of the propounder. 35. So far the question raised by Mr. Ghosh that before grant of letter of administration on the Will by the husband of the testatrix the propounder ought not to have initiated the proceeding for grant of probate on the Will of the testatrix whose source of the Will is dependent upon the Will of her husband, it is required to be stated that such question is not very much important in dealing with the question of grant of probate to the Will of the testatrix inasmuch as it is the undisputed case that a suit being Title Suit No.6 of 2013 is pending before this Court on the issue of letter of administration at the instance of the present propounder, Smt. Sampat Devi Kulthia on the alleged last Will and Testament dated 26th October, 2002 executed by Budhmal Kulthia the deceased husband of the deceased testatrix in this case. Therefore, there is no logic to hold that no probate can be granted to the Will of the testatrix Bhanwari Devi Kulthia until and unless letter of administration is granted to the Will of Budhmal Kulthia, her husband. Therefore, there is no logic to hold that no probate can be granted to the Will of the testatrix Bhanwari Devi Kulthia until and unless letter of administration is granted to the Will of Budhmal Kulthia, her husband. It goes without saying that the fate of the grant is not absolute and for that the defendants are not remediless if subsequently it is found that the property bequeathed in favour of the present propounder is without any authority, the same will follow its natural consequences. 36. In view of the answers given by this Court to the above issues framed earlier and the discussion made thereon, this Court is of the firm view that the Will executed by Smt. Bhanwari Devi Kulthia on 31st January, 2008, is the last Will and Testament genuinely executed by the testatrix having full knowledge of the contents therein and the propounder has been able to prove the execution of the will within the parameters prescribed under section 63 of the Indian Succession Act, 1925 read with section 68 of the Indian Evidence Act. 37. Accordingly, this Court allows the instant suit and order that probate of the original last Will (Exhibit A) executed by the deceased testatrix, Smt. Bhanwari Devi Kulthia on 31st January, 2008, shall be granted to the propounder with effect throughout the Union of India and costs and incidental to the probate application shall be paid out of the funds from estate of the deceased. 38. The suit is, accordingly, decreed in terms of prayer (c) of the plaint. The decree be drawn up expeditiously.