JUDGMENT AND ORDER : 1. This appeal under Section 299 of the Indian Succession Act is directed against the judgment and order dated 16.08.2003 passed by the Addl. District Judge No. 3, Kamrup in PTS No. 1/1987 granting probate in favour of the principal respondent/plaintiff. 2. Brief facts of the case are that one Late Rukmini Devi executed a WILL in favour of the respondent, who is the grandson (son of the eldest son) of the testatrix Rukmini Devi, bequeathing the properties mentioned in the WILL. The respondent filed a petition for grant of probate in respect of the said WILL. One Chautmal Jalan (since deceased) predecessor of the appellants, raised objection against granting of probate, alleging that the WILL in question was not executed by Rukmini Devi and the same was also not duly attested as required by law and that the WILL was a fraudulent one as Rukmini Devi was seriously ill and was not physically and mentally fit to execute the WILL. Further contention of the objector was that the property bequeathed did not belong to the testatrix. Contention being raised, the probate case was registered as Title Suit and proceeded accordingly. On death of Chautmal Jalan, his legal heirs, the present appellants were brought on record. Learned Addl. District Judge on the basis of the pleadings of the parties, framed the following issues: (i) Whether the WILL was executed properly by testatrix? (ii) Whether the probate should be granted as prayed for by the appellant? and (iii) Reliefs if any. 3. The plaintiff/respondent examined four witnesses, including himself. The appellant/defendant also examined one witness. Upon hearing the parties and on appreciation of the evidence, learned Addl. District Judge granted probate of the WILL in favour of the respondent. 4. Aggrieved by the judgment and order of the learned Addl. District Judge, the appellant has preferred the instant appeal. 5. I have heard Mr. O.P. Bhati, learned counsel for the appellant and Mr. P.K. Roy Choudhury, learned counsel for the respondent. Also perused the records of the Probate (T) Suit. 6. 4. Aggrieved by the judgment and order of the learned Addl. District Judge, the appellant has preferred the instant appeal. 5. I have heard Mr. O.P. Bhati, learned counsel for the appellant and Mr. P.K. Roy Choudhury, learned counsel for the respondent. Also perused the records of the Probate (T) Suit. 6. In the first limb of his argument, Sri O.P. Bhati, learned counsel appearing for the appellant submitted, that the appellant filed a petition before the Trial Court, praying for leave to adduce documentary evidence being a certificate issued by the doctor, but the learned Trial Court rejected the petition and therefore, learned counsel pressed for remanding the suit in order to enable the appellant to adduce the documentary evidence, with regard to illness of the testatrix, as the appellant was prejudiced for denial of the opportunity to produce and prove the medical certificate. Secondly, arguing on merit of the case, learned counsel contended that Rukmini Devi was not physically and mentally fit to execute the WILL and that there were suspicious circumstances in making the WILL, which the respondent could not dispel. Besides, proving that the WILL was properly executed, the respondent was also under obligation to dispel the suspicious circumstances in execution of the WILL, submitted Mr. Bhati. According to the learned counsel, the beneficiary of the WILL took major initiative in execution of the WILL, which created a suspicious circumstances and the respondent failed to dispel such suspicion. Further contention of the learned counsel is that the testatrix did not have title over the property involved in the WILL, and on that count also, the learned Trial Court ought to have refused to grant the probate. Learned counsel for the appellant placed reliance on the following authorities: (i) Gulam Qadir vs. Special Tribunal and Others, (2002) 1 SCC 33 (ii) Mahesh Kumar (dead) by LRs vs. Vinod Kumar and Others, (2012) 4 SCC 387 7. Per-contra, learned counsel for the respondent, placing reliance on the decisions in Durlabh Chandra Bhattacharjee vs. Atul Barthakur, 2005 (4) GLT 306; Ghulam Qadir vs. Special Tribunal, (2002) 1 SCC 33 ; Keshab Prasad Shah vs. Ram Pujan Shah, 2001 (3) GLT 436; Daulat Ram and Others vs. Sodha and Others, (2005) 1 SCC 40 ; Meenakshiammal (Dead) Through LRs and Others vs. Chandrasekaran and Another, (2005) 1 SCC 280 ; Surendra Pal and Others vs. Dr. (Mrs.) Saraswati Arora and Another, (1974) 2 SCC 600 and Dilip Dutta Bhowmik vs. Mira Dutta Bhowmik, 2007 (1) GLT 345 submitted that the respondent has successfully discharged his burden to prove, that the WILL was duly and genuinely executed and attested by witnesses as per requirement of law and therefore, the impugned judgment and order, requires no interference by this Court. 8. Section 63 of the Indian Succession Act provides the requirement of a will, which reads as under: “Section 63: Execution of unprivileged Wills. — Every testator, not being a soldier employed in an expedition or engaged in actual warfare, [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules:— (a) 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. (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 sig n 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. 9. Unlike other document, a WILL comes into force after the death of the testator/testatrix and therefore, when the WILL is produced before the Court, the testator having already left the world, cannot come to the Court to say, whether the WILL is genuine or not. Sanctity of a WILL is attached to the fact that it is the last wish of a dead person. Therefore, while proving the genuineness of a WILL, one must be vigilant that the last wish of dead man is honoured. Sanctity of a WILL is attached to the fact that it is the last wish of a dead person. Therefore, while proving the genuineness of a WILL, one must be vigilant that the last wish of dead man is honoured. Section 68 of the Indian Evidence Act provides as to how a document required by law to be attested has to be proved. If a document is required by law to be attested, at least one attesting witness is required to be called for proving such document, if there be an attesting witness alive. Though the proviso to Section 68 has given some relaxation to other documents which are required by law to be attested, WILL is not included in those exempted documents. 10. Before adverting to the factual matrix of the case, it would be beneficent to have a look at the authorities cited by the learned counsel for the parties, as all those decisions are basically relating to the principles surrounding valid execution of WILL as well as the nature of proof required for establishing proper execution of the WILL. The Apex Court in Mahesh Kumar (Death) by L.Rs. vs. Binod Kumar, (2012) 4 SCC 387 held as under: “19. The ratio of H. Venkatachala Iyengar's case was relied upon or referred to in Rani Purnima Devi vs. Kumar Khagendra Narayan Dev (supra), Shashi Kumar Banerjee vs. Subodh Kumar Banerjee, AIR 1964 SC 529 , Surendra Pal vs. Dr. (Mrs.) Saraswati Arora (supra), Seth Beni Chand (since dead) now by Lrs. vs. Kamla Kunwar (supra), Uma Devi Nambiar vs. T.C. Sidhan (supra), Sridevi vs. Jayaraja Shetty (supra), Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao (supra) and S.R. Srinivasa vs. S. Padmavathamma (supra). In Jaswant Kaur vs. Amrit Kaur, (1977) 1 SCC 369 the Court analysed the ratio in H. Venkatachala Iyengar's case and culled out the following propositions:- "1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter." 11. Apex Court in Daulat Ram and Others vs. Sodha (supra) on proof of will observed as under: “10. Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.” 12. In Surendra Pal and Others (supra), the Apex Court held that:- “(i) The propounder has to show that the will was signed by the testator : that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances, such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testator's free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. In cases where the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence.” 13. What therefore transpires from the principles laid down in the above authorities is that in a probate case, the primary burden on the propounder of a WILL is to prove that the WILL was genuinely and properly executed and in order to discharge such burden, he or she has to establish by adducing evidence that - (i) The WILL was signed by the testator/testatrix (ii) At the relevant time the testator/testatrix was in a sound disposing state of mind (iii) The testator/testatrix understood the nature and affect of the disposition. (iv) testator/testatrix put his/her signature or thumb impression to the testament of his/her own free will. (v) testator/testatrix signed in presence of the witnesses, who attest the WILL. (vi) Attested witnesses put signature in presence of the testator/testatrix. Once these requirements are satisfied, onus of the propounder is discharged. However, if it is found that execution of the WILL is shrouded by any suspicious circumstances, the burden of the plaintiff extends to dispelling or removing such suspicion, so that it can satisfy conscience of the Court that the WILL was genuinely or properly executed. If allegations of fraud, undue inference, coercion are brought, burden to prove those facts lies with the defendant, who brings such allegations. 14. In proof of the WILL, Ext.1, the plaintiff/respondent examined four witnesses including himself as PW-4, others being the Sub-registrar, PW-1, and the attesting witnesses PW-2 & PW-3. PW-1, the Sub-registrar, who registered the WILL, deposed that on 24.07.1985, he registered the WILL executed by late Rukmini Devi on commission in her own residence. According to him, the testatrix was identified by advocate Mr. M.L. Beswala. PW-1 further deposed that he explained the contents of the WILL to the testatrix before registering it and according to him, the testator was steady both mentally and physically and having understood the contents of the WILL put her thumb impression in the WILL and on being satisfied as regards the requirement, he registered the WILL. M.L. Beswala. PW-1 further deposed that he explained the contents of the WILL to the testatrix before registering it and according to him, the testator was steady both mentally and physically and having understood the contents of the WILL put her thumb impression in the WILL and on being satisfied as regards the requirement, he registered the WILL. It was also elicited in cross examination that on being asked by him, someone amongst the persons present there, told the name of the testatrix Rukmini Devi and the testatrix, who was sitting on a bed, endorsed by insiding her head. 15. PW-2 Prabhu Dayal Jalan, who was an attesting witness of the WILL, stated that he was present at the time of registration of the WILL and corroborated the statements of PW-1, that the Sub-registrar explained the contents of the WILL to the testatrix Rukmini Devi. He also stated that the testatrix put her thumb impression in the WILL in his presence and the thumb impression was obtained by Radha Krishna Jalan. According to him, the testatrix was both physically and mentally fit. He deposed to have put his signature in the WILL in presence of the testatrix after she had put her thumb impression. According to him, the WILL was prepared by advocate M.L. Besawala, as per the version of Rukmini Devi. The witness is found to have withstood the cross examination, as nothing significant capable of creating any dent in his testimony could be elicited during the cross examination. 16. PW-3, Kashi Prasad Jalan, another attesting witness, deposed corroborating the PW-1 & PW-2 that the Sub-register explained the contents of the WILL to Rukmini Devi. According to him, he put his signature in the WILL in presence of Rukmini Devi and other witnesses. He further deposed that Rukmini Devi put her thumb impression in the WILL and her thumb impression was obtained by Radha Krishna Jalan. He also stated categorically, that Rukimini Devi was physically and mentally fit at the time of execution of the WILL. During cross examination, PW-3 stated that Rukmini Devi was not suffering from any serious illness and pleaded ignorance about any specific illness, out of which, Rukmini Devi, died. He also stated that he was not aware of Rukmini Devi suffering from cancer. During cross examination, PW-3 stated that Rukmini Devi was not suffering from any serious illness and pleaded ignorance about any specific illness, out of which, Rukmini Devi, died. He also stated that he was not aware of Rukmini Devi suffering from cancer. It has been elicited during cross examination, that when he came to the house of the testatrix, he found there, the Sub-register, Radha Krsihna Jalan, Prabhu Dayal and Dina Dayal (respondent) as well as Rukmini Devi. This witness also stated that the thumb impression of the testatrix was obtained by Radha Krsihan Jalan. 17. The respondent, PW-4, stated that he was not present when the WILL was executed by his grandmother and he came to know about the WILL later on. In cross examination also he has stated that after one or two days of making the WILL, his grandmother informed him about the WILL. This part of the evidence of the PW-4, the propounder of the WILL, seems to have stood contradicted with PW-3, who stated that Dina Dayal was also present at the time of registering the WILL. Even if it is accepted that the PW-4 was present at the time of registration of the WILL, that does not anyway affect the veracity of the oral testimony of the vital witnesses, i.e. PW-1, PW-2 and PW-3, which remained unshaken during cross examination, as nothing material capable of creating dent in the testimony of the prime witness i.e. PW-1, PW-2 and PW-3 could be elicited in cross examination. 18. What therefore transpires from the evidence of all the witnesses is that the testatrix put her thumb impression in the WILL in presence of the witnesses and the witnesses also signed the WILL in presence of the testatrix. The testimony of the Sub-registrar, PW-1 supported by PW-2 & PW-3 clearly established that before registration, Sub-registrar explained the WILL to the testatrix. The testimony of the PW-1, PW-2 and PW-3 also demonstrated that the testatrix was sitting with others at the time of execution and registration of the WILL. No material could be brought on record to show that the testatrix was not physically or mentally fit. The testimony of the PW-1, PW-2 and PW-3 also demonstrated that the testatrix was sitting with others at the time of execution and registration of the WILL. No material could be brought on record to show that the testatrix was not physically or mentally fit. The unshaken evidence of PW-1, PW-2 and PW-3 that the testatrix was sitting with others and approved by insiding head, when her name was stated by one of the person present there, on being asked by PW-1, leaves no room for doubt that the testatrix was in a sound disposing mind 19. Learned counsel for the appellant contended that the testatrix was suffering from cancer and she was not mentally and physically fit to execute the WILL, but the learned Trial Court did not allow the defendant/appellant to adduce evidence to that effect. Evidently, PW-1, PW-2 and PW-3 have categorically deposed that Rukmini Devi was in a sound disposing state of mind at the time of execution and registration of the WILL (Ext.1) and such evidence could not be shaken in cross examination. 20. The document, which the appellant sought to produce and the learned Trial Court declined leave, was a certificate issued by a doctor in the year 1997, where it was mentioned that Rukmini Devi Jalan suffered from cancer of her right cheek and as per records of Late Dr. N.K. Agarwal, biopsy was done in August 1984. The application for granting probate was filed in the year 1985 and the impugned judgment was pronounced in the year 2004. Evidence of the parties were completed on 10.09.1993 as appears from the trial court record and the certificate, which sought to be produced by the appellant was obtained in 1997 in respect of an investigation having been done in 1984. The certificate sought to be produced was issued by a doctor from the record of another doctor, who was already dead and therefore, the doctor, who issued such certificate, apparently did not have any personal knowledge about the contents of such document. Had the testatrix been suffering from physical ailment of such magnitude rendering her mentally indisposed, why the appellant could not come forward with any evidence regarding mental or physical indisposition of the testatrix is incomprehendible. Had the testatrix been suffering from physical ailment of such magnitude rendering her mentally indisposed, why the appellant could not come forward with any evidence regarding mental or physical indisposition of the testatrix is incomprehendible. The appellants being near relatives (grand children) of the testatrix, it would be absurd to comprehend that they could know about the ailment of the testatrix only after obtaining the medical certificate in 1997. Interestingly, DW1 deposed that he knew about the cancer suffered by Rukmini Devi in 1984. 21. In the above facts and circumstances, even if it is assumed for the sake of argument, on the basis of the certificate issued in 1997, production of which was denied by the trial court, that the testatrix was suffering from cancer, and her biopsy was done, in absence of any other cogent evidence indicating that such ailment rendered the testatrix physically and mentally unfit to execute the WILL, the medical certificate, as indicated, even if allowed to be adduced as evidence could, be of no effect on the face of the overwhelming evidence brought on record clearly establishing that the testatrix was mentally and physically fit at the time of execution of the WILL. 22. Learned counsel for the appellant has submitted that the plaintiff being beneficiary, took a prominent role in execution of the WILL, which itself was a suspicious circumstance shrouding the genuineness of the WILL. The PW-3 deposed that Dina Dayal Jalan, PW-4, was present at the time of registration of the WILL. Except the testimony of PW-3, that Dina Daya Jalan, propounder of the WILL was present at the time of registration of the WILL, there is no other evidence or material to show that besides, remaining present at the time of registration of the WILL, Dina Dayal took any active part. Evidently, one Radha Krishna Jalan obtained the thumb impression of the testatrix. Execution and registration of the will (Ext.1) having taken place in the house of the testatrix, mere presence of PW-4, being the grandson of the testatrix and a member of the family, along with other witnesses and Sub-registrar, in absence of any further evidence, indicating his active participation in the execution of WILL, can by no stretch of imagination, be held to be active participation or prominent role in execution of the WILL. 23. 23. Suspicious circumstances in respect of a WILL does not necessarily mean any suspicion that may arise because of some contradiction or discrepancy in the evidence. Suspicious circumstances must be one, which was inherent in the transaction. Apex Court in Meenakhsiammal and Others vs. Chandra Shekharan and Another, (2005) 1 SCC 280 held as under: “20. In the case of Ryali Kameswara Rao vs. Bendapudi Suryaprakasarao and Others, AIR 1962 AP 178 this Court while discussing the provisions of section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on an investigation of the transaction.........” 24. Another question raised by the learned counsel is that the testatrix did not have title over the property of the WILL and relying on a decision of the Apex Court in Ghulam Qadir (supra) submitted that the probate court before granting the probate, ought to have considered the fact that the testator did not have title over the properly bequeathed by WILL in question. It is now settled position of law that a probate court cannot enter into the question of title. The enquiry of the probate court is limited to ascertain, whether the WILL was genuine and it was properly executed or not. In the above decision, the Apex Court was dealing with the title in respect of the property involved in the WILL in a different perspective. The Apex Court in Ghulam Quadir (supra) held as under: “Learned counsel appearing for the appellant referred to the judgments of this Court reported in Smt. Rukmani Devi and Others vs. Narendra Lal Gupta, 1985 (1) SCC 144 and Chiranjilal Shrilal Goenka vs. Jasjit Singh and Others, 1993 (2) SCC 507 to urge that the probate granted in favour of the appellant by a competent court of jurisdiction is conclusive of the validity of the Will unless it is revoked and no evidence can be admitted to impeach it except in proceedings taken for revoking the probate. There cannot be any dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of the executor and the valid execution of the Will. There cannot be any dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of the executor and the valid execution of the Will. However, it does not establish more than the factum of the Will as probate court does not decide question of title or of the existence of the property mentioned therein. If despite admitting the execution of the Will and issuance of the probate, a question arises as to its effect on the property of another person which is likely to be affected, nothing prevents the authorities under the Act to examine the Will or the probate to that extent.” 25. In Keshab Prasad Shah (supra), this High Court while answering the question – “can the probate court decide the question of title or the existence of the property allegedly bequeathed by will” held as under: “10. In view of the settled law by the Apex Court, for giving answer to the question posed in the opening paragraph of the judgment, it need not detain us any further. The answer is that a probate court can only go into the genuineness and the due execution of the will and nothing beyond that. It has no power to decide any question of title or the existence of the property itself or to the extent of property sought to be bequeathed. In other words, it cannot go into the question as to whether the will stood wholly or partially revoked.” 26. The ratio of this decision was that in case of the property of third party being affected or likely to be affected by a WILL, court is empowered to examine that aspect. For example, even if a WILL is properly and genuinely executed by the testator and probate is granted and a question subsequently arises as to whether the title to the property involved in the WILL is really conveyed to the beneficiary, because of deficiency in the title of the testator, in that case, the probate will not be considered as conclusive proof with regard to the title to the property in respect of which WILL is made. If it is found that at the time of making the WILL, the testator had no title, even if the WILL is genuinely executed, that would not convey any title to the beneficiary and this aspect can be examined by any Court in any proceeding. There is no scope for the probate court to enquire about the title of the testator for the purpose of deciding whether the WILL was genuinely executed or not. 27. In Durlabh Chandra Bhattacharjee (supra) in paragraph-28 and 34, this Court held as under: “28. The Apex Court in Ishwardeo Narain Singh (supra) has held that the Court of probate is only concerned with the question as to whether the document put forward as the last will and testament of a deceased person was duly executed and attested in accordance with law and whether at the time of such execution the testator had sound disposing mind. The question whether a particular bequest is good or bad is not within the purview of the probate court. It has further been held that there is nothing in law which requires the registration of a will and to draw any interference against the genuineness of the will on the ground of its non registration was wholly unwarranted.” “34. In Chiranjilal Shrilal Goenka, the Apex Court has held that the probate court is not to decide the question of title or existence of property involved in the will but it has to seen whether the will was duly executed and attested as required under the law. It has further been held that in case of probate of will the Civil Court has no jurisdiction and the jurisdiction lies only on the probate court judgment by probate court is in rem and binds not only the parties but also the whole world. The Apex Court has further held that the decree passed by the court without jurisdiction is a nullity and non est. In Ghulam Qadir (supra), it has been held by the Apex Court that there can be no dispute to the legal proposition that the grant of probate establishes conclusively as to the appointment of executor and the valid execution of the will. It does not decide more than the factum of will as the probate court does not decide the title or the existence of property mentioned therein. It does not decide more than the factum of will as the probate court does not decide the title or the existence of property mentioned therein. A Division Bench of this Court in the case of Keshab Prasad Shah, replying on the judgment of the Apex Court in Ishwardeo Narain Singh, as well as Chiranjilal Goenka case has also reiterated the said position of law.” 28. The overwhelming evidence brought on record demonstrates that the propounder of the WILL has proved, that the WILL was signed by the testatrix Rukmini Devi in presence of the attesting witnesses PW-1 and PW-2 and the attesting witnesses also signed the WILL as witnesses, in presence of the testatrix, and at the time of registration of the WILL, the Sub-Registrar, PW-1 explained the contents of the WILL to the testatrix. The evidence also shows that the testatrix had sound disposing mind at the time of execution of the WILL and she put her thumb impression out of her free will. The evidence also demonstrates that there is nothing material, which could be considered as suspicious circumstances shrouding the genuineness of the WILL. Although the defendant/appellant alleged in their written objection that the WILL was fraudulent one, no evidence has been adduced by the defendant/appellant to prove the allegation of fraud. It is settled position of law, that burden to prove any allegation of fraud, coercion, undue inference etc. lies with the person, who alleges the same. No iota of evidence has been brought on record in support of the plea of fraud. 29. In view of what have been discussed hereinabove, I am of the view that the propounder of the WILL has successfully discharged his burden of proving the WILL being executed by late Rukmini Devi out of her free will as her last wish and therefore, the appeal is found devoid of merit. 30. The appeal is accordingly dismissed. No cost. 31. Send down the LCR.