JUDGMENT : 1. Heard the parties. 2. This appeal has been preferred by the appellant against the judgment dated 27.09.1997 passed by the 6th Additional District & Sessions Judge, Palamau in P. S. No.2 of 1993 whereby and where under the learned court below has dismissed the suit on contest with costs. The said suit arose out of an application for grant of letter of Administration in favour of the plaintiff in respect of the last Will of Shiv Prasad Sao which was initially registered as Administration Case No.2 of 1993. The defendants appeared and filed their written statement and thereafter the administration case was converted into Title Suit No. 1 of 1996. 3. The case of the plaintiff in brief is that Shiv Prasad Sao executed his last Will on 09.11.1992 which is the Exhibit 1 of the suit. By virtue of the said Will, the plaintiff after the death of the testator Shiv Prasad Sao became entitled for the amount deposited in the name of the testator Shiv Prasad Sao in fixed deposit and savings deposit in Palamau Kshetriya Gramin Bank, branch office Narsinghpur Patra, details of which have been mentioned in Schedule ‘A’ of the application for letter of administration. The family members of the testator and their descendants have been mentioned in Schedule ‘B’ of the said application for letter of administration. It is the case of the plaintiff that the testator executed the will in sound mind and sound body without undue influence and misrepresentation. It is also the case of the plaintiff that he has met the expenses incurred in funeral (sic cremation) Shradh and other last rites ceremony as mentioned in Schedule ‘C’ of the letter of administration. 4. The plaintiff further pleaded that the testator was the permanent resident of village Narsinghpur Patra and he has been residing in the jurisdiction of the trial court. No part of the property or assets for which the plaintiff will be entitled by virtue of the said will is situated in any other province (State). The testator had love and affection for the plaintiff and the plaintiff has also rendered all possible services in his old age and always remained obedient to the testator. No part of the property or assets for which the plaintiff will be entitled by virtue of the said will is situated in any other province (State). The testator had love and affection for the plaintiff and the plaintiff has also rendered all possible services in his old age and always remained obedient to the testator. Since, the plaintiff has spent all the money for the cremation and other last rites of the testator; hence the plaintiff is entitled to deduct the expenditure for the last rites and rituals. 5. On the other hand, the case of the defendants in brief is that the Will which has been marked as Exhibit 1 in the suit, is a false and forged one. The said Will has been manufactured by the plaintiff and his father with P.W. 2 Parasnath Taid with a dishonest and ulterior motive for grabbing the debts and deposits made by the said Shiv Prasad Sao in the bank. It is also the case of the defendants that the will was not executed in accordance with law and the signature of Shiv Prasad Sao appearing in Exhibit 1 is not genuine. The signature of Shiv Prasad Sao is so placed in the said Will that it would appear that he never intended to effect any Will. It is further submitted that there is no endorsement in the Will that both the witnesses were present at the time of preparation of the Will and have seen the deceased signing the Will. It is also the case of the defendants that at the time of preparation of the said alleged Will, the testator Shiv Prasad Sao was aged about 80 years and was suffering from heart diseases for the last ten years and living with his widowed daughter Most. Malti Kuer and she had been looking after and nursing him. At the alleged date of preparation of the Will, Shiv Prasad Sao was practically a disabled person and his physical condition was such that he cannot do any physical work without the help of his said daughter and at that time he was not in a sound disposing state of mind and body hence he was not in a right frame of mind to execute a Will. They also denied the fact that Shiv Prasad Sao had love and affection for plaintiff and the plaintiff rendered all the possible services to Shiv Prasad Sao in his old age. 6. The defendants also pleaded that Shiv Prasad Sao used to love all his sons and daughters equally and had affection for them and under such circumstances; he had no occasion to execute the alleged Will in favour of the plaintiff only. The defendants also denied that the plaintiff spent Rs.25,000/- in connection with the last rites of the deceased. It is the specific case of the defendants that all the sons of the deceased jointly contributed the money in equal proportion for the last rites of the deceased. 7. On the basis of the pleadings of the parties, the learned court below framed the following issues:- (1) Is the application for grant of letter of administration maintainable? (2) Has the plaintiff right of file application under Section 276 of the Indian Succession Act? (3) Is the will genuine and executed by Shiv Prasad Sao? (4) Are there surroundings suspicious circumstances around the execution of the will? (5) Is the plaintiff entitled for the relief prayed for? 8. In support of his case, the plaintiff examined seven witnesses and proved the Will which has been marked as Exhibit 1, the certified copy of the order sheet which has been marked as Exhibit 2, the certified copy of the charge sheet in G.R. Case No.1119 of 1983 which has been marked as 3, the passbook of the bank which has been marked as Exhibit 4 and the certificate of Fixed Deposit which has been marked Exhibit 5. 9. From the side of the defendants also, five witnesses were examined and defendants also proved a letter written by the Branch Manager of Palamau Kshetriya Gramin Bank addressed to the District Judge 6th Palamau, Daltonganj by which he produced the deposit certificates on the direction of the court which has been marked as Exhibit A series, the fixed deposit receipt has been marked as Exhibit B and the sale deed which has been filed for the purpose of admitted signature of the deceased Shiv Prasad Sao being executed by him, has been marked as Exhibit C. 10. Learned court below took up issue Nos.3 and 4 together and after taking into consideration both the oral and documentary evidence in record put forth by the rival parties and also taking into consideration the submission on point of facts and law made on behalf of the rival parties, came to the conclusion that the Will is not genuine and not executed by Shiv Prasad Sao and there are surrounding suspicious circumstances along with the execution of the will and accordingly answered the issue Nos.3 and 4 and in view of his finding in respect of issue Nos.3 and 4 held that the application for grant of letter of administration is not maintainable, hence, the plaintiff has no right to file application under Section 276 of Indian Succession Act and answered the issue Nos.1 and 2 accordingly and finally held that the plaintiff is not entitled to any relief whatsoever and answered the issue No.5 accordingly. 11. Mr. Arbind Kr. Sinha, the learned counsel for the appellant submitted that the learned court below erred by not properly appreciating the evidence in the record and also erred by giving undue stress to the fact that there is a discrepancy regarding the time of scribing of the said Will because as the P.W. 2 stated that the same was scribed as 9:30 a.m. while other witnesses have stated that the same was executed at 9:00 a.m. and the learned court below also erred in taking into consideration the fact that the presence of the plaintiff at the time of scribing of the Will is a suspicious circumstance. It was also submitted that the learned court below has erred in coming to a conclusion that there is discrepancy in the signature of Exhibit 3 which has been filed by the defendant as an admitted signature of the alleged testator of the Will and the signature appearing in the Exhibit 1. It is then submitted by the learned counsel for the appellant that the impugned judgment has been passed without proper appreciation of evidence, hence, the same be set aside and the suit of the plaintiff be decreed and the letter of administration as prayed for by the plaintiff be granted to the plaintiff. 12. Mr. It is then submitted by the learned counsel for the appellant that the impugned judgment has been passed without proper appreciation of evidence, hence, the same be set aside and the suit of the plaintiff be decreed and the letter of administration as prayed for by the plaintiff be granted to the plaintiff. 12. Mr. Shashank Shekhar, the learned counsel for the respondents, on the other hand defended the impugned judgment and submitted that the learned court below has rightly appreciated the evidence appearing in the record. He further submitted that the alleged Will which has been marked as Exhibit 1; has not been executed as per law. It is further submitted that even the attestation of the Will has not been made as per law and the Will having not been executed as per law, the learned court below has rightly not accepted the Will to be a valid and legal Will executed by the testator, hence it is submitted that the impugned judgment and decree being in accordance with law and this appeal being without any merit be dismissed. 13. On the submissions made by the rival parties at the bar, the only point for determination in this appeal is that whether the learned court below has properly appreciated the evidences available in the record? 14. Having heard the learned counsel for the rival parties and after perusal of the record, it is found that out of the seven witnesses examined on behalf of the plaintiff, P.W.1- Md. Hussain and P.W.3- Jugal Kishor are the two attesting witnesses of the Will which has been marked as Exhibit 1, with objection. Both these witnesses have stated that the testator has executed the Will in favour of the plaintiff. The P.W.1 also stated that Premchand performed the Shradh of the deceased. Both of them have stated that Shiv Prasad Sao was in a sound state of mind and health at the time of execution of the Will. 15. P.W.2 Parasnath is the scribe of the Will and he has also stated that the deceased testator was in a sound state of health at the time of execution of the Will. P.W.2 has further stated that there was no space in the middle so the testator made execution on the margin of the Will. 15. P.W.2 Parasnath is the scribe of the Will and he has also stated that the deceased testator was in a sound state of health at the time of execution of the Will. P.W.2 has further stated that there was no space in the middle so the testator made execution on the margin of the Will. P.W.2 denied that the Will is forged, fabricated and a collusive one at the instance of the plaintiff. 16. P.W.4 is the plaintiff himself. He has stated that the Will was executed in his favour by his grandfather. He further stated that he spent Rs.25,000/- towards the last rites of the deceased. He performed the Shradh and his father lit the cremation pyre. He has stated that he produced the Will from the box of his grandfather after his death. At first he was shown the Will at the time of its execution. 17. P.W. 5- Muneshwar Ram has stated that the deceased gave assets to his sons and daughters and also to the plaintiff. 18. P.W.6- Jagtarni Pandey has stated that the plaintiff performed the Shradh of the deceased and all the connected expenses were borne by the plaintiff. But he admits that when the son is alive, the grandson does not perform the Shradh. 19. P.W.7- Vijay Kishore Pandey is the priest (Purohit) who got performed the last rites of the deceased. He has also stated that the expenses of the last rites were borne by the plaintiff. 20. D.W.1- Malti Devi has stated that she used to look after her father who is the deceased testator for the last ten years of his life. She has stated that her father did not execute any Will on 09.11.1992. She denied the signature of the alleged testator on Exhibit 1. She has further stated that the alleged testator was not in a proper mental condition to execute a Will at that time. The last rites of the testator were performed by all his sons out of the money of their father. She denied that the testator used to live with the plaintiff or his family or that the plaintiff’s family looked after him. However, she admitted that the deceased used to sleep in the house of the father of the plaintiff and his registered documents were kept in the almirah of the plaintiff. Money was taken out from the almirah of her father. However, she admitted that the deceased used to sleep in the house of the father of the plaintiff and his registered documents were kept in the almirah of the plaintiff. Money was taken out from the almirah of her father. Shradh and last rites and rituals of her father were performed by Krishna and Bishu Sah. 21. D.W.2- Reshmi Kuer is the defendant No.1 herself. She has stated that she is the daughter-in-law of the alleged deceased testator. She has also stated that D.W.1 used to take care of the alleged testator and the three sons of the testator performed his Shradh. D.W.2 has also stated that the said Shiv Prasad Sao has not executed any Will in favour of Premchand the plaintiff. 22. D.W.3- Pramod Kumar Sinha is the Branch Manager of the bank who has proved the letter marked as Exhibit A and the term deposit receipt which has been marked as Exhibit B. 23. D.W.4- Rajesh Kumar Gupta is the son of defendant No.4. He has deposed that his father was not in a position to come to the court for deposition. He has further stated that the signature of Shiv Prasad Sao is not appearing in the Exhibit 1. He has also stated that Shradh ceremony of Shiv Prasad Sao was performed jointly and the expenses were met out of the money of Shiv Prasad Sao which was kept in the chest whose key was retained by him but he cannot say who took the key after the death of Shiv Prasad Sao. 24. D.W.5- Purushottam Prasad Soni has stated that Shiv Prasad Sao was looked after by his daughter. Shiv Prasad Sao was suffering from heart diseases and was not able to move. Expenses for the Shradh of Shiv Prasad Shao were met from the fund of the joint family. D.W.5 cannot say whether Shiv Prasad Sao has executed any Will as he has no connection with the business of Shiv Prasad Sao. 25. D.W.6- Bishundev Prasad Gupta has produced the sale deed from the possession of Kedarnath Sah, dated 03.04.1958. The sale deed being a thirty years old document; was marked Exhibit C. 26. Section 63 of the Indian Succession Act, 1925 lays down the process and procedure to be flowed for execution of a Will, which reads as under:- 63. 25. D.W.6- Bishundev Prasad Gupta has produced the sale deed from the possession of Kedarnath Sah, dated 03.04.1958. The sale deed being a thirty years old document; was marked Exhibit C. 26. Section 63 of the Indian Succession Act, 1925 lays down the process and procedure to be flowed for execution of a Will, which reads as under:- 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 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 of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.(Emphasis Supplied) 27. It is a settled principle of law 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 of the Court. If, however, the person who propounds the Will 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, as has been held in paragraph -6 by the Hon’ble Supreme Court of India in the case of Gorantla Thataiah v. Thotakura Venkata Subbaiah and others ( AIR 1968 SC 1332 ) which is 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 he 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 Williams on Executors and Administrators", Vol. I, 13th Ed., p. 92 : "Although the rule of Roman Law that 'Quise 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." According to the decision in Fulton v. Andrew, (1875) 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 at p. 482. 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 at p. 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 Ind App 62 = ( AIR 1929 PC 45 ) the Judicial Committee made it clear that "the principle which requires the propounder to remove suspicious 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 at pp. 157, 159. This view is supported by the following observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton, 1894 P 151 at pp. 157, 159. "The rule in (1838) 2 Moo PC 480 1875) 7 HL 948; 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 the case made for proving the will." "It must not be supposed the principle in (1838) 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.)”.(Emphasis Supplied) 28. It is in the light of these principles that the evidence adduced in this case will have to be considered. Perusal of the Exhibit 1, the alleged Will executed by Shiv Prasad Sao reveals that there is no endorsement of attestation by the witnesses thereon. It just bears three signatures in the right hand margin. First from the bottom is the signature of P.W.1, then in the middle is the signature of P.W.3. There is no date under the signature and the address. The alleged signature of the testator Shiv Prasad Sao is at the top right hand margin. In the recital of the Will the testator has mentioned that after the testator put his signature thereon, the witnesses have put their signature. There is no date under the signature and the address. The alleged signature of the testator Shiv Prasad Sao is at the top right hand margin. In the recital of the Will the testator has mentioned that after the testator put his signature thereon, the witnesses have put their signature. So, the question arises whether before the contents of the Will were scribed, the signatures were already put first by the testator and thereafter the witnesses or else there is no way how the testator could have known the sequence of putting signature by him and the witnesses. If that is the case, then the execution of the will is not in accordance with law. As rightly observed by the learned court below there is no space beneath the recital which has been score cut by drawing a slanting line where the signatures could have been put by the testator and the attesting witnesses. Over and above that, as already mentioned above the evidence in the record suggests that the plaintiff who propounds the Will took a prominent part in execution of the Will, which confers substantial benefit on him that itself is a suspicious circumstances attending the execution of the Will and in appreciation of such case, the courts should proceed in a vigilant and cautious manner {vide. Gorantla Thataiah v. Thotakura Venkata Subbaiah and others(supra)} 29. In this case, as already mentioned above the presence of plaintiff at the time of execution of the alleged will is admitted. The plaintiff’s pleadings that he performed the Shradh are contradicted by P.W.6 as the P.W.6 has admitted that when the son is alive, the grandson does not perform the Shradh of his grandfather. So, the plea of plaintiff that he performed the Shradh of his grandfather when his father was alive and other sons of Shiv Prasad Sao were also alive is certainly not trustworthy. 30. So, the plea of plaintiff that he performed the Shradh of his grandfather when his father was alive and other sons of Shiv Prasad Sao were also alive is certainly not trustworthy. 30. It is a settled principle of law that clause (c) of Section 63 of the Indian Succession Act, 1925 mandates that in order to prove the due attestation of the will it has to be proved that the attesting witnesses saw the deceased testator sign the Will and they themselves signed the same in the presence of the deceased as has been held by the Hon’ble Supreme Court of India in paragraph – 14 of its decision in the case of Girja Datt Singh v. Gangotri Datt Singh ( AIR 1955 SC 346 ) which is as under:- “ … … … In order to prove the due attestation of the will Ex. A-36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A-23 and Ex. A-36 from Gonda to Tarabganj for reasons best known to themselves. … … …” (Emphasis Supplied) As already discussed above there is no evidence in the record to show that the two witnesses saw the testator sign the Will and they themselves signed the same in the presence of the testator as is mandatorily required. 31. Keeping in view the aforesaid facts and circumstances of this case, I have no hesitation in holding that the plaintiff has failed to prove that the Will in question has genuinely executed by Shiv Prasad Sao and the learned court below has rightly come to the conclusion that the Will is not genuinely executed by Shiv Prasad Sao. Hence the point of determination is answered in affirmative. Hence the point of determination is answered in affirmative. Therefore, the impugned judgment and decree passed by the learned court below dated 27.09.1997 in P.S. No.2 of 1993 is affirmed and this appeal being without any merit is dismissed but in the circumstances without any costs.