JUDGMENT Anubha Rawat Choudhary, J. - Heard Mr. V. Shivnath, Senior counsel appearing on behalf of the appellants assisted by Mr. Kundan Kumar Ambastha, Advocate. 2. Heard Mr. Arbind Kumar Sinha, counsel appearing on behalf of the respondents assisted by Mr. Baban Prasad, Advocate. 3. This miscellaneous appeal has been filed challenging the order dated 24.11.2003 passed by the 3rd Additional District Judge, Palamau at Daltonganj dismissing the Title Suit No.1/2003. 4. Counsel for the appellants submits as under: i. The plaintiff no.1 had filed an application in the court of District judge, Palamau in the capacity of the executor for grant of probate under Section 276 of Indian Succession Act, 1925. Accordingly, Probate Case No.6 of 1994 was registered and upon general publication of notice, the defendant nos.1 and 2 filed their objection and hence probate case was converted into Title Suit No.1 of 2003 and the application for grant of probate was treated as plaint. The objection filed by defendant nos.1 and 2 was treated as written statement. Subsequently Sanjeev Kumar Sharma, the beneficiary of the Will was made co-plaintiff. ii. The undisputed facts of the case are that Rambilash Mistry, son of Aliyar Mistry was married with Rukmini Devi. Rambilash Mistry and Rukmini Devi had no issue. Aliyar Mistry had altogether 5 issues; 3 daughters and two sons, namely Rambilash Mistry and Nanku Mistry. Rambilash Mistry and his wife Rukmini Devi had no issue, but Nanku Mistry had 5 issues namely Basudeo Mistry @ Sharma, Kanhai Mistry, Shyambihari Mistry, Durga Devi and Saraswati Devi. So far as Basudeo Mistry is concerned, he had 4 issues namely Sanjeev Kumar Sharma, Smita Sharma, Rajeev Kumar Sharma and Puja Sharma. Sanjeev Kumar Sharma is the beneficiary of the Will involve in this case. iii. The specific case of the plaintiffs was that as Rambilash Mistry and Rukmini Devi had no issue, therefore they brought Basudeo Mistry and kept him as his son and got him married with Suman Sharma. iv. Aliyar Mistry, expired sometime in the year 1960 and his wife Etwariya Devi, expired sometime in the year 1980. As the daughters of Aliyar Mistry did not claim any share in the property, Rambilash Mistry inherited half of the interest of Aliyar Mistry and the remaining went to his brother namely Nanku Mistry. iv. Aliyar Mistry, expired sometime in the year 1960 and his wife Etwariya Devi, expired sometime in the year 1980. As the daughters of Aliyar Mistry did not claim any share in the property, Rambilash Mistry inherited half of the interest of Aliyar Mistry and the remaining went to his brother namely Nanku Mistry. Rambilash Mistry through registered Sale Deed No. 2644 dated 06.05.1959 purchased one Kita house in the name of his wife Rukmini Devi situated in town Daltonganj and he also owned and possessed movable and immovable property such as bank account and fixed deposits. v. The case of the plaintiffs was that Rambilash Mistry and his wife Rukmini Devi had great love and affection for Sanjeev Kumar Sharma, son of Basudeo Mistry from his very childhood and on account of great love and affection towards Sanjeev Kumar Sharma (Plaintiff No.2), in sound health of body and mind, executed a Will dated 26.01.1991 in favour of Sanjeev Kumar Sharma @ Chintu in respect of their all movable and immovable properties after duly understanding its implication and after consulting relations as well as wellwishers, without any coercion, misrepresentation and undue influence at Daltonganj. After the execution of the Will, Rambilash Mistry died on 24.08.1993 and Rukmini Devi died on 26.02.1991. Plaintiff no.1 i.e., Surendra Kumar Sharma, being the executor named in the Will, filed the probate case. vi. The specific case of the plaintiffs was that the Will dated 26.01.1991 was the first and the last Will and testament of Rambilash Mistry and Rukmini Devi, in which plaintiff no.1 was named as the executor and the beneficiary of the Will was the co-plaintiff i.e., plaintiff no.2. The Will was duly executed by both the executants and attested by two attesting witnesses in their presence and at their instance namely Surendra Sharma and Tej Narain Singh. 5. Counsel for the appellants further submits that upon publication of notice, the defendants filed objection. The case of the defendants as per their objection was as follows: - a) The specific case of the defendants was that the Will is a forged and fabricated document, which was never executed by Rambilash Mistry and Rukmini Devi nor they gave any instruction to anybody to draft any Will. The case of the defendants as per their objection was as follows: - a) The specific case of the defendants was that the Will is a forged and fabricated document, which was never executed by Rambilash Mistry and Rukmini Devi nor they gave any instruction to anybody to draft any Will. They also said that one attesting witness Harilal Sharma is related with the beneficiary and another attesting witness is a person, who is very close to the beneficiary. It was also contended that the attesting witnesses never signed the alleged Will in presence of the testators nor the alleged testators had signed the Will in presence of the witnesses. b) It was further the case of the objectors that Harilal Sharma was not a resident of Daltonganj and the other attesting witness Tej Narain Singh was a resident of Gaya. The recitals of the alleged Will was also said to be false and concocted. Their specific case was that the property was a joint family property and the objectors are persons belonging to the same family. They also contended that Basudeo Mistry was living separately, having his separate house and mess and had no cordial relation with Rambilash Mistry and Rukmini Devi. The other two sons of Nanku Mistry and their wives were looking after all the affairs of Rambilash Mistry and Rukmini Devi. c) The further case of the defendants was that Rambilash Mistry and Rukmini Devi had no intention to execute the alleged Will dated 26.01.1991 in favour of Sanjeev Kumar Sharma (Plaintiff No.2). They also alleged that the said Will was neither signed by them nor was written on their direction nor the same was ever approved by them. Further, the contents of the Will was not read over and explained to and approved by the testators. d) The defendants also alleged that executors and attesting witnesses of the alleged Will conspired together in collusion with Basudeo Mistry and got a forged Will prepared and claimed to have been executed by the Rambilash Mistry and Rukmini Devi in order to grab the property with a view to debar their other legal heirs and successors from inheriting the property. e) The specific case of the defendants was that after the death of Rambilash Mistry and his wife Rukmini Devi, all the nephews namely Basudeo Mistry, Kanhai Sharma and Shyambihari Sharma inherited their properties and have equal right over the same and accordingly, a prayer was made to dismiss the suit. 6. On the basis of the pleadings of the parties the following issues were framed: a) "Is the probate case maintainable? b) Has the plaintiff cause of action for the case? c) Is the probate case properly valued and court fee paid thereof is sufficient? d) Is the will dated 26.01.1991 legal and valid one? e) Is the plaintiff entitled for probate as prayed for?" 7. Counsel for the appellants while referring to the issues framed by the learned court below submits that the central issue and the point for determination by this Court would be as to whether the Will dated 26.01.1991 is illegal or valid and as to whether the plaintiffs have been able to prove the execution of the Will in the light of the provisions of Section 63 of Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act 1872. 8. By referring to the records of the learned court below, the counsel for the appellants submits that although altogether 14 witnesses have been examined on behalf of the plaintiffs, but for the purposes of appeal, the evidence of P.W. 7 (Harilal Sharma); P.W. 8 (Surendra Kumar Sharma) and P.W. 14 (Shivendra Nath Mishra, the hand writing and finger print expert) are relevant. He submits that while deciding the case, the learned trial court has erred in appreciating the evidence of P.W. 7 and P.W. 8. So far as P.W. 14 is concerned, he submits that the evidence of P.W. 14 i.e., hand writing expert has been duly considered and the learned trial court has returned a finding that the signature of the Rambilash Mistry and Rukmini Devi on the Will tallied with their admitted signature and accordingly, this finding is in favour of plaintiffs. 9. He further submits that the Will was written in the hand writing of one Dost Mohammad and there were two attesting witnesses namely Harilal Sharma and Tej Narain Singh, but out of these persons only Harilal Sharma, who is one of the attesting witnesses, has been examined before the learned court below. 10. 9. He further submits that the Will was written in the hand writing of one Dost Mohammad and there were two attesting witnesses namely Harilal Sharma and Tej Narain Singh, but out of these persons only Harilal Sharma, who is one of the attesting witnesses, has been examined before the learned court below. 10. He further submits that Surendra Kumar Sharma, the executor of the Will, who was throughout present at the time of execution of the Will, has also deposed and the necessary ingredients of the Will has been proved by him. 11. The counsel submits that in view of the judgment passed by Hon''ble Patna High Court reported in ( Sushila Devi Vs. Kamala Kant Singh, 2019 1 PLJR 15 ), it is not necessary that both the attesting witnesses should depose for the purposes of proving the attestation of the will and accordingly, the deposition of one of the attesting witnesses in the instant case was more than sufficient to prove the execution of the Will by the deceased Rambilash Mistry and his wife Rukmini Devi. 12. He submits that the learned court below, while deciding the case, was misdirected by the fact that the attesting witness had indicated the date of execution of Will as 26.08.1991 instead of its execution on 26.01.1991, although the date of execution of the will is apparent from the dates mentioned in the Will itself. He further submits that as the specific date was mentioned on the Will, no contrary date could have been taken into consideration in spite of such deposition on the part of attesting the witness P.W. 7. For this, the appellants have referred to Section 92 of the Indian Evidence Act, 1872 to submit that when a specific date has been mentioned on a document then any oral evidence in contradiction to the same cannot be accepted. 13. He further submits that the learned court below while further examining the evidence of P.W. 7, has misdirected itself by referring to para 15 of his evidence, wherein, he has stated that the executants intended to execute the Will in favour of Basudeo Mistry i.e., father of the plaintiff no.2 and not in favour of the plaintiff no.2. 13. He further submits that the learned court below while further examining the evidence of P.W. 7, has misdirected itself by referring to para 15 of his evidence, wherein, he has stated that the executants intended to execute the Will in favour of Basudeo Mistry i.e., father of the plaintiff no.2 and not in favour of the plaintiff no.2. He submits that the attesting witness has no other role to play apart from identifying the signature of the executors of the Will and has got no role in connection with the contents of the Will. Accordingly, the evidence of attesting witness which contradicted the contents of the Will was of no use and the same could not have been referred to by the learned court below for rejecting the claim of due execution of the Will. For this purpose, the counsel has referred to Section 63 (C) of Indian Succession Act, 1925 as well as Section 68 of Indian Evidence Act, 1872 and submits that the attesting witness is only required to prove the signature of the testator and nothing more. 14. He also submits that the other relevant witness is P.W. 8 Surendra Kumar Sharma, who was throughout present, has clearly deposed that he was called by the testators and the Will was written by Dost Mohammad under the instructions of Rambilash Mistry and Rukmini Devi which was subsequently read over by the writer of the Will i.e., Dost Mohammad to them in presence of all including P.W. 7 i.e., the attesting witness and after fully understanding the contents of the Will the testators had put their signature on the Will and their signatures were duly attested. 15. He submits that the evidence of P.W. 8 read with the evidence of P.W. - 7 were sufficient in the instant case for establishing due execution of Will as per the provisions of Section 63 of Indian Succession Act, 1925 read with Section 68 of Indian Evidence Act, 1872 and accordingly, he submits that the learned court below ought to have allowed the case in favour of the plaintiffs. 16. Counsel for the appellants has also relied upon a judgement passed by Hon''ble Supreme Court reported in ( Seth Beni Chand Vs. Smt. Kamla Kunwar and Ors., (1976) 4 SCC 554 ) to explain the role of attesting witness. 16. Counsel for the appellants has also relied upon a judgement passed by Hon''ble Supreme Court reported in ( Seth Beni Chand Vs. Smt. Kamla Kunwar and Ors., (1976) 4 SCC 554 ) to explain the role of attesting witness. He has also referred to another judgment passed by Hon''ble Supreme Court reported in ( H. Venkatachala Iyengar v. B.N. Thimmajamma, (1959) AIR SC 443 ) to submit that the Hon''ble Supreme Court has clearly elaborated the legal position in the matter of the proof of the Will and he submits that in the instant case, the evidence were in line with the requirements which has been mentioned in para - 18 of the judgment. 17. Counsel appearing on behalf of the respondents submits as under: i. Although, no cross appeal has been filed in the instant case, but the respondents are disputing the finding recorded by the learned court below to the extent it holds that the Will i.e., exhibit 4 bears the signature of both the executants. He submits that in order to assail this finding there is no requirement of filing a separate cross appeal and for that purpose he has referred to a judgement passed by Hon''ble Supreme Court reported in ( Ravinder Kumar Sharma Vs. State of Assam and Others, (1999) AIR SC 3571 ) and refers to para - 22 of the said judgement. He submits that there has been a substantial change in the matter of requirement to file a cross objection after the amendment in the Code of Civil Procedure in the year 1976 and this aspect of the matter has been considered by the Hon''ble Supreme Court in this judgement and it has been held that filing of cross objection after the 1976 amendment is purely optional and not mandatory and accordingly, he submits that in view of this judgment, it is open to the respondents to assail a finding in the impugned order without filing any cross objection. ii. ii. On the merits of the case, counsel for the respondents by referring to the report of the hand writing expert, has submitted that as per the report itself, the hand writing expert had examined the photographs and the admitted signatures and there is nothing in the report to indicate that the hand writing expert ever had the occasion to see the original signatures either by coming to the court or through any other permissible methods. iii. He also submits that in absence of personal examination of the original signature, the report of the hand writing expert is just an eye wash in as much as the various ingredients of the report indicating the pressure applied for the writing, could not have been examined. iv. The counsel submits that in view of this, the report of the hand writing expert has not been properly considered by the learned court below and accordingly, the plaintiffs could not be said to have proved the signature of the executants of the Will in Exhibit 4. v. He submits that there is no explanation on behalf of the plaintiffs as to why the writer of the Will and the other attesting witness of the Will namely Tej Narain Singh have not been examined. He submits that Surendra Kumar Sharma (plaintiff no.1) has been examined and he is a close relative of the beneficiary of the Will. vi. He further submits that although Surendra Kumar Sharma, has supported the execution of the Will but at the same time he has also mentioned that the Will was prepared under the instructions of the testators i.e., Rambilash Mistry and Rukmini Devi and was written by Dost Mohammad and after writing the Will, the same was also read over and explained to the testators namely Rambilash Mistry and Rukmini Devi in presence of the witness including P.W. 7 i.e., Harilal Sharma. Accordingly, he submits that Harilal Sharma is not only an attesting witness of the Will but is also a witness to the contents of the Will also and therefore role of Harilal Sharma (P.W.-7) cannot be confined only to attesting the signature of the testators. vii. Accordingly, he submits that Harilal Sharma is not only an attesting witness of the Will but is also a witness to the contents of the Will also and therefore role of Harilal Sharma (P.W.-7) cannot be confined only to attesting the signature of the testators. vii. The counsel submits that Harilal Sharma in his evidence has given the date of execution of the Will as 26.08.1991 and even if this date is taken as an error, then also in para 15, he has specifically stated that Rukmini Devi and Rambilash Mistry had expressed their desire to execute the Will in favour of Basudeo Sharma, father of plaintiff no.2 (Sanjeev Kumar Sharma) and not in favour of the plaintiff no.2 and accordingly, it cannot be said that the Will was prepared as per their wishes. viii. He further submits that this contradiction in the evidence of the P.W. 7 and 8 created a suspicion in the mind of the learned court below and it was for the plaintiffs to clear this suspicion by examining the other witness to the Will as well as the writer of the Will who were not produced as witness. He submits that in the aforesaid facts and circumstances of the case, the plaintiffs could not discharge the onus of proving the execution of the Will to the satisfaction of the learned court below which resulted in dismissal of the case. 18. After hearing the counsel for the parties and after considering the materials on record, this Court finds that the point for determination by this Court would be as to whether the plaintiffs have been able to prove the execution of the Will dated 26.01.1991 in the light of the provisions of Section 63 of Indian Succession Act, 1925 read with Section 68 of the Indian Evidence Act 1872 . 19. The findings of this Court are as under: - i. So far as the genealogy and the relationship amongst various persons are concerned, the same is not disputed. ii. The plaintiff no. 2 as well as the defendants belong to the same family. iii. Further, admittedly Rambilash Mistry and Rukmini Devi were husband and wife, who had no issue. The Will is said to have been executed on 26.01.1991. Rukmini Devi expired on 26.02.1991 and Rambilash Mistry expired on 24.08.1993. ii. The plaintiff no. 2 as well as the defendants belong to the same family. iii. Further, admittedly Rambilash Mistry and Rukmini Devi were husband and wife, who had no issue. The Will is said to have been executed on 26.01.1991. Rukmini Devi expired on 26.02.1991 and Rambilash Mistry expired on 24.08.1993. As per the case of the plaintiffs, the Will was written by Dost Mohammad under the instructions of Rambilash Mistry and Rukmini Devi and at that time both were physically and mentally sound and Surendra Kumar Sharma (plaintiff No.1) was appointed as the executor of the Will. The beneficiary of the will was the plaintiff no. 2. As per the Will, there were two witnesses namely Harilal Sharma and Tej Narain Singh. iv. This Court finds that altogether 14 witnesses were examined on behalf of the plaintiffs and the material witness for the purposes of execution of the Will are P.W. 7, 8 and 14. The counsels for the parties have also referred to the evidences of these three witnesses during the course of arguments in support of their respective cases. During evidence it has come to light that P.W-7 is the brother of maternal grandfather of the beneficiary of the Will and P.W-8 is the uncle of the wife of Basudeo Mistry (father of the beneficiary of the Will). v. This Court finds that the learned court below has arrived at a specific finding in favour of the plaintiffs regarding the genuineness of the signature of Rukmini Devi and Rambilash Mistry on their Will dated 26th January, 1991 (Exhibit 4). vi. In order to resolve the dispute regarding the signature of the testators of the Will, the learned Court below had referred the matter for the purposes of examination by the hand writing expert. The hand writing expert''s report has been marked as Exhibit 14 and 14 /A. The hand writing expert has been examined as P.W. 14. From perusal of the evidence of the hand writing expert, it appears that the hand writing expert has not only referred to his report but has also deposed at para 10 that he has seen the original photograph and has supported his report by stating that the disputed signature contained in the Will are the same as that of the admitted signature of the executors of the Will namely Rukmini Devi and Rambilash Mistry. vii. vii. Although, during the course of argument, the respondents has raised specific objection regarding sending of the photographs of the disputed and admitted signatures to the hand writing expert for examination, but during the cross examination of the hand writing expert, the defendants have not cross examined him on this point as to how the photographs of the signatures could have been verified by him. viii. This Court also finds that hand writing expert has fully supported the case of the plaintiffs and the learned court below by appreciating the evidence of the hand writing expert and considering the report of the hand writing expert came to a finding that Exhibit 4 bears signatures of both the testators of the Will. ix. This Court is of the considered view that in the aforesaid facts and circumstances, the finding of the learned court in connection with signature of both the executants of the Will is a well-reasoned order and accordingly, this Court does not find any reason to differ with the finding of the learned court below on the point regarding signature of both the executants of the Will. x. The next point would be regarding due execution of the Will by the testators, namely Rambilash Mistry and Rukmini Devi. This Court finds that as per the case of the plaintiffs, the writer of the Will was one Dost Mohammad, who has not been examined. There were two attesting witness of the Will and one of the attesting witness, namely, Tej Narain Singh has also not been examined. xi. The two material witnesses in connection with the Will who have deposed are P.W. 7 and P.W. 8. So far as P.W. 8 is concerned, this Court finds that P.W. 8 has specifically stated in his deposition that the Will was prepared under the instructions of Rambilash Mistry and Rukmini Devi by Dost Mohammad and Dost Mohammad had read over the Will in presence of everybody and thereafter he had put his signature. xii. He has also deposed that one of the attesting witness, Harilal Sharma i.e., P.W.-7 was also present who attested the signature of the testators of the Will. He has also deposed that Tej Narain Singh had also put the signature in his presence and this all happened on 26.01.1991. xii. He has also deposed that one of the attesting witness, Harilal Sharma i.e., P.W.-7 was also present who attested the signature of the testators of the Will. He has also deposed that Tej Narain Singh had also put the signature in his presence and this all happened on 26.01.1991. P.W. 8 had further deposed that both the testators were physically and mentally fit and the Will was executed in favour of the plaintiff no.2, who is son of Basudeo Mistry. In para 18 of the deposition, he has mentioned that after execution of the Will, the same was with him and in the same paragraph, he has deposed that he received the Will in the year 1993 and Rambilash Mistry had handed over the Will to him. He had deposed that in the year 1991 Rukmini Devi had expired. xiii. So far as deposition of P.W. 7 is concerned, who is one of the attesting witnesses, he has deposed that Surendra Kumar Sharma i.e., PW. 8 was present at the time of execution of the Will and in para 4 he has stated that the execution of the Will has been done on 26.08.1991. In para 15, P.W. 7 has deposed that for the purpose of execution of Will almost one hour was taken and Rambilash Mistry and his wife Rukmini Devi had said that they have brought up Basudeo Mistry since his childhood and accordingly, the Will be executed in the name of Basudeo Mistry and thereafter, the Will was executed. xiv. This Court finds that the witness namely Harilal Sharma is not only an attesting witness but was apparently a witness to the contents of the Will also. This is so in view of the fact that P.W.-7 as well as P.W.-8, both have deposed that they were all present at the time of writing as well as the execution of the Will. xv. In the judgement passed by Hon''ble Supreme Court reported in ( Anil Kak Vs. Sharada Raje, (2008) 7 SCC 695 ), it has been held that the execution of the Will does not only mean proving of the signatures of the executors and the attesting witnesses, it means something more. xv. In the judgement passed by Hon''ble Supreme Court reported in ( Anil Kak Vs. Sharada Raje, (2008) 7 SCC 695 ), it has been held that the execution of the Will does not only mean proving of the signatures of the executors and the attesting witnesses, it means something more. A Will is not ordinary document although it is required to be proved like any other documents, but the statutory conditions imposed by reasons of Section 63 (c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872 cannot be ignored. It has also been held in the said judgment that an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation. The aforesaid has been held in para nos.49, 53 and 55 of the said judgment reported in ( ) which are quoted herein below for ready reference: "49. The (sic proving of) execution of a will does not only mean proving of the signatures of the executors and the attesting witnesses. It means something more. A will is not an ordinary document. It although requires to be proved like any other document but the statutory conditions imposed by reason of Section 63(c) of the Act and Section 68 of the Evidence Act cannot be ignored. 53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order. 55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation." xvi. In the judgment passed by Hon''ble Supreme Court reported in ( H. Venkatachala Iyengar Vs. B.N. Thimmajamma and Ors., (1959) AIR SC 443 ), the Hon''ble Supreme Court at para 18 of the said judgment has dealt with the issue regarding the true legal position in the matter of proof of Wills. Para - 18 of the said judgment is quoted herein below for ready reference: "18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. Para - 18 of the said judgment is quoted herein below for ready reference: "18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters." xvii. Counsel for the appellants has relied upon a judgment passed by Hon''ble Patna High Court reported in ( Sushila Devi Vs. Sri Kamala Kant Singh & Ors., 2019 1 PLJR 15 ) to submit that in order to prove a Will only one attesting witness is sufficient to prove its attestation and in the instant case only one of the attesting witness has deposed before the learned court below and no adverse inference could have been drawn by the learned court below on account of non-examination of the other attesting witnesses. xviii. This Court finds that in the judgment passed by Hon''ble Supreme Court ( Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 ) at para 32 it has been held that execution of the Will must be proved at least by one attesting witness and the attesting witness must prove that there was animus attestandi on the part of attesting witness meaning thereby he must intend to attest and extrinsic evidence on this point is receivable. Para 32 of the said judgment reported in ( Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 ) is quoted herein below for ready reference: "32. Para 32 of the said judgment reported in ( Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 ) is quoted herein below for ready reference: "32. Section 63 of the Succession Act lays down the mode and manner of execution of an unprivileged will. Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested. It in unequivocal terms states that execution of will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable." xix. This Court is also of the considered view that for the purpose of proof of execution of the Will, one attesting witness is sufficient and non-examination of other attesting witnesses is not fatal to the case provided the attesting witness, who has deposed before the court, has given his evidence in consonance with the aforesaid ratio of the judgment passed by Hon''ble Supreme Court reported in ( Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 ). xx. This Court further finds that in the same judgment which is reported in ( Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 it has been held in para 33 that 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 testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. The Hon''ble Supreme Court has further held in the said paragraph that if sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to be dis-charged, but the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution of the Will if his mind may appear to be very feeble. In the facts and circumstances of this case, this Court finds that mere signature of the testators of the Will was not sufficient to prove the Will, unless it appears to the Court that the testators intended to give effect to what was written in the Will. Para 33 of the aforesaid judgment reported in ( Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433 ) is quoted herein below for ready reference: "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 testator has signed the will and that he had put his signature out of his own free will having a sound disposition 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 by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage and Sridevi v. Jayaraja Shetty2.) Subject to above, proof of a will does not ordinarily differ from that of proving any other document." xxi. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. (See Madhukar D. Shende v. Tarabai Aba Shedage and Sridevi v. Jayaraja Shetty2.) Subject to above, proof of a will does not ordinarily differ from that of proving any other document." xxi. It has been held by the Hon''ble Supreme Court in the judgment reported in ( B. Venkatamuni V. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449 ), at para 22, wherein the principle in this regard has been reiterated, that the onus of the propounder can be said to be discharged on the proof of the essential facts in connection with the Will. Those are, (a) the Will was signed by the testator, (b) the testator at the relevant time was in sound and disposing state of mind, (c) he understood the nature and effect of the depositions and (d) put his signature to the documents of his own free will. Unless all these ingredients are established by the propounder, the onus cannot be said to have been dis-charged. In the instant case, one of the witnesses i.e., Harilal Sharma, who is the attesting witness has specifically stated in para 2 of his deposition that at the time when the Will was being written, Rukmini Devi as well as Rambilash Mistry and Surendra Kumar Sharma, Tej Narain Singh, he himself, and Dost Mohammad were present. He has stated that all these happened on 26th August, 1991 and he exhibited the Will dated 26th January, 1991, which was marked as Exhibit 4. This contradiction in evidence regarding date of execution of the Will, is a material contradiction in as much as in the chief examination, as a witness, he has stated that the date of execution of the Will was 26th August, 1991, although as per the Will, the date of execution is 26th January, 1991 and on 26th August, 1991, admittedly, Rukmini Devi had already expired. He has further deposed in para 15 of his cross-examination that there was discussion in connection with the execution of the Will and he had enquired about the intention of Rambilash Mistry as well as his wife, who had told him that they have brought up Basudeo Mistry since his childhood and accordingly all their movable and immovable property be given to Basudeo Mistry by way of Will. Admittedly, in the instant case, the Will is not in favour of Basudeo Mistry, but the same is in favour of one of his sons namely Sanjeev Kumar Sharma, who is plaintiff no.2. The aforesaid submissions which has been made by the attesting witness creates serious suspicion regarding the genuineness of the Will. The learned court below has interalia taken these contradictions in the evidence of this witness to hold that the plaintiffs have not been able to prove the Will. xxii. It has been held by Hon''ble Supreme Court reported in ( Jaswant Kaur Vs. Amrit Kaur, (1977) 1 SCC 369 ) at para 9 that in cases where the execution of Will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant and in such cases it becomes the matter of court''s conscience and the true question which arises for consideration is, whether the evidence laid by the propounder of the Will is such as to satisfy the conscience of the court that the Will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the Will offers the cogent and convincing explanation of the suspicious circumstances surrounding making of the Will. Para 9 and 10 of the aforesaid judgment reported in (1977) 1 SCC 369 are quoted herein below for ready reference: "9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court''s conscience and then the true question which arises for consideration is whether the evidence led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will. 10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma1. The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions: "1. 10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma1. The Court, speaking through Gajendragadkar, J., laid down in that case 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. 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. 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." xxiii. In the judgment passed by Hon''ble Supreme Court reported in ( Seth Beni Chand Vs. Kamla Kunwar, (1976) 4 SCC 554 ), it has been held that the burden in testamentary cases is of a different order than in other cases in the sense that the attesting witness must be called, wherever possible, to prove execution. In the judgment passed by Hon''ble Supreme Court reported in ( Seth Beni Chand Vs. Kamla Kunwar, (1976) 4 SCC 554 ), it has been held that the burden in testamentary cases is of a different order than in other cases in the sense that the attesting witness must be called, wherever possible, to prove execution. The propounder must remove the suspicion, if any, attached to the execution of Will and if there be any doubt regarding the due execution, he must satisfy the conscience of the court that the testator had sound and disposing state of mind and memory when he made the Will and it has been observed in the said judgement that in discovering truth even in such cases the judicial, mind must always be open, though vigilant, cautious and circumspect. xxiv. This Court finds that one of the attesting witnesses in the Will involve in this case, creates serious suspicion on the genuineness of the Will and it was for the propounder to lead further evidence to dispel the suspicion which arose due to evidence of the attesting witness. xxv. This Court finds that the attesting witness has himself stated that the testators had discussed with him in connection with their last Will and accordingly it cannot be said that the attesting witness in the instant case was witness solely for the purpose of attesting the signatures of the testators, but he himself was a witness to the actual desire of the testators at the time of execution of the will. In such circumstances, the argument of the appellants that other statements of the attesting witness regarding true intent of the deceased should be discarded and his role should be confined only to the extent of attesting of the signatures of the testators of the Will, is hereby rejected. xxvi. This Court also finds that the propounder of the will could have dispelled the suspicion circumstances, which came to light by virtue of the evidence of the attesting witness, by producing Dost Mohammad, who is said to have written the Will, as well as, the other attesting witness. There is no explanation on the part of the plaintiffs for not producing them as witnesses. There is no explanation on the part of the plaintiffs for not producing them as witnesses. In such circumstances, this Court finds that the suspicion circumstances, which came to light during the course of evidence before the learned trial court was required to be dispelled by cogent evidence by the propounder of the Will, but having not done so, he cannot be said to have discharged his onus for the purposes of proving genuineness of the Will. Accordingly, this Court finds that the genuineness of the Will could not be proved by the plaintiffs so as to shift the onus to the defendants. xxvii. This Court finds that these aspects of the matter have been rightly considered by the learned court below and after considering the evidences on record, the learned trial court was right in coming to the finding that the genuineness of the Will has not been proved beyond suspicion and accordingly rightly dismissed the case. xxviii. In view of the aforesaid facts and circumstances, this Court finds that the reasons assigned by the learned court below are sound reasons to hold that the Will was not proved beyond suspicion. 20. As a cumulative effect of the aforesaid findings, the instant appeal is hereby dismissed.