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2025 DIGILAW 1437 (ALL)

Rakesh Srivastava v. Sudha Srivastava(Since Dead)

2025-12-16

SANDEEP JAIN

body2025
JUDGMENT : Sandeep Jain, J. 1. First Appeal no. 1274 of 2023 has been filed by the Rakesh Srivastava and others under Section 299 of the Indian Succession Act, 1925 against the impugned judgment and order dated 18.10.2023 passed by the court of Additional District and Sessions Judge Court No.1 Varanasi in Probate Case No. 26 of 2007 Rakesh Srivastava and others vs.Smt.Sudha Srivastava and others, whereby application seeking probate regarding alleged Will dated 25.5.2002 executed by Parmanand Lal Srivastava(testator) has been rejected. 2. First Appeal no. 1276 of 2023 has been filed by Rakesh Srivastava and others against impugned judgment and order dated 18.10.2023 passed by the court of Additional District Judge Court no.1 Varanasi in Probate Case No. 27 of 2007 Smt. Sudha Srivastava and others vs. Krishna Kumar Srivastava and others, whereby application seeking probate regarding registered Will executed by Parmanand Lal Srivastava(testator) on 20.9.1996 has been granted. 3. Probate case No. 26 of 2007 and 27 of 2007 were heard together by the lower court and decided by the common impugned judgment and order dated 18.10.2023. 4. Since First Appeal no.1274 of 2023 and 1276 of 2023 arise from the same judgment and order as such, both the appeals were heard together and are being decided by this common judgment. Facts of Probate Case No. 27 of 2007 5. This case was filed by the plaintiff Smt.Sudha Srivastava against the defendants Krishna Kumar Srivastava and others for seeking Probate regarding registered Will executed on 20.9.1996 by her father Parmanand Lal Srivastava(testator), who died on 22.11.2002. It was averred by the plaintiff that the testator had acquired the residential house no. B.26/116-A situated in Nawabganj, Bhelupura, Varanasi from his paternal aunt Smt. Gujarati Devi and the remaining immovable property was agricultural land acquired from the ancestors, which was in the sole name of the testator and the other properties were in joint ownership. It was further averred that the testator was having Savings bank account no.1893 in State Bank of India, Branch BHU, Varanasi which was the self acquired property of testator. It was further submitted that the testator had willingly executed his last Will in favour of the plaintiff through which half property has devolved on her. It was further averred that the testator has died on 22.11.2002 in his above residential house. It was further submitted that the testator had willingly executed his last Will in favour of the plaintiff through which half property has devolved on her. It was further averred that the testator has died on 22.11.2002 in his above residential house. It was prayed that the Probate be granted in her favour on the basis of the above registered Will executed by the testator. 6. The defendant Rakesh Srivastava opposed the Probate application on the ground that the testator had executed in his lifetime a Will on 25.5.2002 in presence of witnesses Vinod Kumar Singh and Lalji, in favour of Krishna Kumar, Awdesh Kumar, Madan Kumar, Manoj Kumar, Santosh Kumar and Rakesh Lal, in which it was made clear that after the death of testator his immovable property would devolve on Krishna Kumar and others whereas, the movable property would devolve on Sudha Srivastava and sons of Radha Srivastava. It was further averred that the testator died on 22.11.2002, as such, his Will dated 25.5.2002 has become effective, which was also the last Will of the testator, due to which the earlier Will of the testator dated 20.9.1996 has become ineffective and on the basis of the earlier Will of the testator, no probate can be granted. It was further submitted that the Probate application of Smt.Sudha Srivastava has become infructuous. It was further submitted that the Will deed dated 25.5.2002 has been executed by the testator correctly, which has been signed on each page by the testator, on which the photograph of testator is also affixed, which has been executed by the testator willingly. With these submissions it was prayed that the Probate application moved by Smt.Sudha Srivastava be rejected. 7. The registered Will dated 20.09.1996 of the Parmanand Lal Srivastava(testator) reads as under:- 8. On the basis of the pleadings of the parties the following issues were framed by the trial court:- (i) Whether Parmanand Lal Srivastava had executed on 20.9.1996 a registered Will in favour of plaintiff and defendant no.1 to 3? (ii) Whether after the death of Parmanand Lal Srivastava, the plaintiff and defendant no. 1 to 3 are in possession of the disputed property, on the basis of Will? If so,effect? (ii) Whether after the death of Parmanand Lal Srivastava, the plaintiff and defendant no. 1 to 3 are in possession of the disputed property, on the basis of Will? If so,effect? (iii) Whether Parmanand Lal Srivastava had executed a Will on 25.5.2002, by revoking his previous Will dated 20.9.1996, in favour of defendant No. 4 to 9, due to which his earlier Will dated 20.9.1996 has become infructuous? (iv) Whether the defendants No. 4 to 9 have fabricated Will dated 25.5.2002? (v) To what relief, if any, the plaintiff is entitled? Facts of Probate Case No. 26 of 2007 9. This case was filed by the plaintiff Rakesh Srivastava and others under Section 276 of the Indian Succession Act, 1925 seeking Probate of alleged Will executed by Parmanand Lal Srivastava (testator) on 25.5.2002, who died on 22.11.2002 in Varanasi. It was alleged by the plaintiffs that the testator acquired house No. B.26/116-A situated in Nawabganj,Bhelupura, Varanasi from his paternal aunt Smt. Gujarati Devi wife of late Kamla Prasad and the remaining immovable property, which was agricultural land and orchards, was ancestral property regarding which the testator had willingly executed his last Will in favour of the plaintiffs, who died testate on 22.11.2002 in his residential house No. 26/116-A, Nawabganj,Bhelupura, Varanasi. It was prayed that the plaintiffs be granted probate regarding the above Will executed by the testator on 25.5.2002. 10. The defendants opposed the plaintiffs Probate application by submitting their objections. The defendants averred that the testator had only 2 daughters namely Smt.Sudha Srivastava and Smt.Radha Srivastava, who had no male issue.Smt.Radha Srivastava died during the lifetime of the testator, leaving behind her husband and three sons, who are defendants No. 2 to 4 in the probate petition. It was further averred that the testator was in service as section officer in estate office at B.H.U., Varanasi, who was the sole recorded owner in possession of house no.B.26/116-A, Nawabganj, Bhelupura, Varanasi, which was acquired by him after the death of his issueless aunt Smt. Gujarati Devi through her registered Will deed executed during her lifetime in the sole name of the testator, wherein he lived as sole owner in possession till his death. 11. 11. It was further averred that the testator has already bequeathed his entire movable and immovable properties in sound state of mind without any coercion, pressure or undue influence, through his registered Will deed dated 20.9.1996 executed in favour of Smt.Sudha Srivastava and defendants No. 2 to 4 and accordingly, during his lifetime he also erected partition wall separating the house in two portions giving actual physical possession of the eastern portion to Smt. Sudha Srivastava and western portion to defendant No. 2 to 4. It was further averred that the testator never revoked his Will dated 20.9.1996 as such, no question arises of executing the alleged Will deed dated 25.5.2002. 12. It was further averred that two years before his death, the testator sustained fracture of his iliac bone resulting in his confinement to bed and since thereafter, he was under care of the defendants who since long back were living with him and were looking after him and managing his treatment but unfortunately he could not recover till his last breath. It was further submitted that after the death of testator, his registered Will deed dated 20.9.1996 was acted upon and Smt.Sudha Srivastava became the absolute owner of eastern portion and the defendants No. 2 to 4 became joint owners of the western portion of the house no.B.26/116-A mentioned above and they also acquired equal shares in his movable as well as other immovable properties and agricultural lands. It was further submitted that on the basis of Will dated 20.9.1996 Smt.Sudha Srivastava applied for mutation in revenue records and the names of defendants were mutated vide order dated 9.4.2003 passed in mutation Case No. 540 of 2003. It was further submitted that after information of mutation of defendants in revenue records, the plaintiffs managed to set aside the above referred mutation order dated 9.4.2003 and presently Case No. 540 of 2003 Sudha vs. Krishna Kumar and No. 332 of 2002 Krishna Kumar vs. State are pending before the Naib-Tehsildar, Kaswar Raja, Varanasi between the parties. 13. It was further averred that neither the plaintiff Rakesh Srivastava nor so-called attesting witnesses ever came to the residence of the testator or the defendants and the testator never executed and signed the alleged Will deed dated 25.5.2002 revoking his previous registered Will deed. 13. It was further averred that neither the plaintiff Rakesh Srivastava nor so-called attesting witnesses ever came to the residence of the testator or the defendants and the testator never executed and signed the alleged Will deed dated 25.5.2002 revoking his previous registered Will deed. It was specifically averred that the alleged Will deed dated 25.5.2002 is a forged document which has been fabricated after the death of testator and after knowledge of the mutation of the defendants in the revenue records in order to grab the properties of the defendants by hook or crook. It was submitted that the probate petition was not maintainable and was liable to be dismissed. 14. The unregistered Will dated 25.05.2002 allegedly executed by Parmanand Lal Srivastava(testator) reads as under:- 15. On the basis of the pleadings of the parties, the trial court framed the following issues:- (i) Whether Parmanand Lal Srivastava had executed a Will on 25.5.2002 in favour of the plaintiffs? (ii)Whether the plaintiffs had fabricated the Will dated 25.5.2002? (iii)To what relief the plaintiffs are entitled, if any? 16. By order dated 2.9.2005, passed by the lower court, both the above Probate cases were consolidated and Probate Case No. 27 of 2007 was made leading case for evidence purposes, in which entire evidence was recorded. 17. In documentary evidence, both the parties filed the original Will's, certified copies of the documents submitted by them for mutation before the revenue court, the certified copies of the orders passed on mutation applications by the revenue courts, certified copies of oral evidence of the parties in mutation proceedings, the reports of the handwriting experts, etc. 18. On behalf of the plaintiffs in Probate Case No. 27 of 2007, the following witnesses were examined:- (1) Smt.Sudha Srivastava, as PW-1(Plaintiff, propounder of Will dated 20.9.1996) (2)Sukhu Prasad, as PW-2(attesting witness of Will dated 20.9.1996) (3)Mithilesh Kunwar Khare, as PW-3(Advocate preparing the Will dated 20.9.1996) (4)Sayed Irteja Hussain, as PW-4(handwriting expert on behalf of the plaintiff) 19. On behalf of the defendants in Probate Case No. 27 of 2007, the following witnesses were examined: (1)Rakesh Srivastava, as DW-1(defendant, propounder of Will dated 25.05.2002) (2)Lalji, as DW-2(attesting witness of Will dated 25.5.2002) (3)Ramnarayan, as DW-3 (4)Vikas Srivastava, as DW-4(handwriting expert on behalf of defendant) 20. On behalf of the defendants in Probate Case No. 27 of 2007, the following witnesses were examined: (1)Rakesh Srivastava, as DW-1(defendant, propounder of Will dated 25.05.2002) (2)Lalji, as DW-2(attesting witness of Will dated 25.5.2002) (3)Ramnarayan, as DW-3 (4)Vikas Srivastava, as DW-4(handwriting expert on behalf of defendant) 20. The trial court after perusing the documentary and oral evidence adduced by the parties and the relevant case law, has concluded that there were suspicious circumstances surrounding the execution of the subsequent Will dated 25.5.2002 of the testator, which makes the subsequent Will doubtful, particularly since the earlier Will of the testator was registered. The trial court concluded that the subsequent Will dated 25.5.2002 was doubtful and a fabricated document, regarding which no Probate can be granted. Accordingly, the trial court has rejected the Probate Case no.26 of 2007 seeking Probate of Will dated 25.5.2002 and has allowed the Probate Case no.27 of 2007 seeking Probate of registered Will dated 20.9.1996, by impugned judgment and order dated 18.10.2023, aggrieved against which, the instant appeals have been filed by the propounder of subsequent Will dated 25.5.2002. 21. In this judgment, the parties are being addressed according to their status in Probate Case No.27 of 2007, which was the leading case, in which Smt.Sudha Srivastava was the plaintiff and Rakesh Lal Srivastava and others were defendants. 22. Learned counsel for the defendant appellants submitted that the testator had earlier executed a registered Will on 20.9.1996 in favour of her two daughters, which was later on revoked by executing subsequent Will dated 25.5.2002 in favour of the defendant appellants, which was duly proved by examining attesting witness of the Will, as such, there was no occasion for the lower court to doubt its execution. It was further submitted that since the testator was bedridden and disabled, he was not in a position to go to the subregistrar office for getting the Will registered, as such, the subsequent Will was not registered, but only on the ground that the subsequent Will was not registered, it cannot be held to be a fabricated document. Learned counsel submitted that a Will is required to be proved in accordance with law, whether it is registered or not and merely on the ground that it is registered, it's genunity cannot be presumed. Learned counsel submitted that a Will is required to be proved in accordance with law, whether it is registered or not and merely on the ground that it is registered, it's genunity cannot be presumed. It was further submitted that the testator after second thought, had revoked the earlier Will, which was executed in favour of the plaintiff, and the reason for revoking it, was also mentioned in the subsequent Will, as such, there was no suspicious circumstance surrounding the execution of the subsequent Will.Learned Counsel in support of his submissions relied upon the case law of Testamentary Suit no.6 of 2012 decided by this Court on 15.10.2020,Pramila Tiwari vs.Anil Kumar Mishra and others Neutral Citation 2024AHC 85067-DB and Kavita Kanwar vs.Mrs.Pamela Mehta and others AIR 2020 SC 2614 . 23. Per contra, learned counsel for the plaintiff respondent submitted that the defendants, who were the propounder of the subsequent Will dated 25.5.2002 had actively participated in it's preparation and execution, who were also in it's possession, but while applying for mutation before the revenue court, the subsequent Will was never disclosed. Learned counsel submitted that there was serious contradiction in the testimony of the witnesses regarding the place and the manner, where/in which the subsequent Will was prepared, who participated in it's preparation, which makes the surrounding circumstances, suspicious. Learned counsel submitted that the Advocate preparing the subsequent Will also moved the mutation application on behalf of the appellants before the revenue court but in that application it was not mentioned that the testator had executed the alleged Will dated 25.5.2002 and on the basis of this Will, they are claiming ownership of the disputed property. In that mutation application, ownership was claimed through inheritance. Learned counsel submitted that only after the plaintiff respondent moved the mutation application by claiming ownership of the disputed property on the basis of earlier Will dated 20.9.1996, of the testator bequeathing his property in favour of the respondent, only then the Will dated 25.5.2002 was subsequently,fraudulently fabricated by the appellants. Learned counsel submitted that the appellants could not dispel the cloud of suspicion surrounding the subsequent Will dated 25.5.2002 as such, the lower court has rightly disbelieved the subsequent Will and has rightly allowed the plaintiffs Probate application.Learned Counsel in support of his submissions relied upon the case law Sunita Upadhyay vs.State of U.P. 2023(159)RD 712(All) 24. Learned counsel submitted that the appellants could not dispel the cloud of suspicion surrounding the subsequent Will dated 25.5.2002 as such, the lower court has rightly disbelieved the subsequent Will and has rightly allowed the plaintiffs Probate application.Learned Counsel in support of his submissions relied upon the case law Sunita Upadhyay vs.State of U.P. 2023(159)RD 712(All) 24. I have heard the learned counsel of both the sides, perused the record of the lower court and the case law submitted by them. 25. On the basis of the pleadings, evidence on record and the submissions of the learned counsel of the parties the following issue arises for determination in this appeal:- Whether Parmanand Lal Srivastava (testator) had executed subsequent Will on 25.5.2002 in favour of the defendant appellants, by which earlier executed and registered Will dated 20.9.1996 in favour of the plaintiff respondents, was revoked ? Oral evidence of plaintiffs before the lower court (Propounder of Will dated 20.9.1996) 26. Sudha Srivastava PW-1, the propounder of first Will of testator dated 20.9.1996, deposed in her examination in chief that her father Parmanand Lal Srivastava(testator) retired from the post of office superintendent in the Estate Department of BHU, Varanasi, was the owner of the residential house No. B.26/116-A situated in Nawabganj,Bhelupura, Varanasi, who became the owner of it on the basis of registered Will, who resided in it. She and Smt. Radha Srivastava were the only daughters /children of her father.Her sister Smt. Radha Srivastava and her mother had died in the lifetime of her father. After retirement, her father had decided to distribute his property in favour of her daughter's children and her, as such he divided the above house by partition wall, of which the eastern portion was given to her and the western portion was given to deceased daughter's children. She deposed that her father willingly, without any coercion, in the presence of Sukhu Prasad and Mithilesh Kunwar Khare, Advocate, had executed a registered Will on 20.9.1996, by which his property in equal shares, was bequeathed to her and her deceased sisters children. This witness has filed the original Will of the testator dated 20.9.1996. 27. She deposed that her father willingly, without any coercion, in the presence of Sukhu Prasad and Mithilesh Kunwar Khare, Advocate, had executed a registered Will on 20.9.1996, by which his property in equal shares, was bequeathed to her and her deceased sisters children. This witness has filed the original Will of the testator dated 20.9.1996. 27. She further deposed that two years prior to the death of her father, her father had become disabled due to fracture in the hip bone, who was unable to move and perform his routine work,who was looked after and cared by defendant no.1 to 3. She further deposed that her father died on 22.11.2002 in her above residential house. She further deposed that she and defendant no.1 to 3 have become the owner in possession of the above residential house and they have also applied for mutation in the records of the Nagar Nigam, Varanasi, which was pending. She further deposed that her father never executed any other Will, subsequent to the Will dated 20.9.1996. She further deposed that Rakesh Kumar Srivastava, Vinod Kumar Singh and Lalji neither came to the above house of her father nor her father had executed any Will dated 25.5.2002 in their favour. She further deposed that the alleged Will dated 25.5.2002 is a fraudulent and fabricated document, which has not been executed by her father, which has been prepared only to illegally deprive her from the properties bequeathed by her father. 28. PW-1 in cross-examination accepted that Rakesh, Krishna Kumar,Awdesh Kumar,Madan Kumar, Manoj Kumar and Santosh Kumar are the sons of her father's real brother. Her father had got property in village Gangapur. After perusing the alleged Will dated 25.5.2002, she accepted that it bears the photo of her father. She denied the signatures of her father on the above Will. She deposed that signatures of her father has been duplicated on it. She deposed that the partition between her father and her father's brother had taken place. She deposed that agricultural land was partitioned but orchards were not partitioned. She further deposed that in the consolidation proceeding her father got one third share. She further deposed that her sister has died whose 6 children are living separately from her. The house situated in Nawabganj was partitioned by her father, she has got eastern half share in it and the western half share belongs to her sister. She further deposed that in the consolidation proceeding her father got one third share. She further deposed that her sister has died whose 6 children are living separately from her. The house situated in Nawabganj was partitioned by her father, she has got eastern half share in it and the western half share belongs to her sister. She accepted that Lakshmi Prasad and her father are real brothers, the agricultural property situated in the village was looked after by Lakshmi Prasad, the residential house situated in Nawabganj was 2 storeyed, Rakesh is the son of Lakshmi Prasad. 29. She further deposed that at the time of execution of the first Will, she was not present, her husband and sisters son were present, the same sons were present who were the beneficiary of the Will, she has no knowledge of the subsequent Will, she only became aware of the subsequent Will after the death of her father, through her husband, she has not filed any case for the cancellation of the subsequent Will, the Will dated 20.9.1996 was attested by Sukhu Prasad and Mithilesh Kumar, Advocate. Mithilesh Kumar, Advocate is her relative, who is her brother-in-law(devar). She denied the suggestion that her father had executed a Will in favour of Rakesh. 30. Sukhu Prasad PW-2 deposed in his examination in chief that Parmanand Lal was an accountant in BHU, who resided with his paternal aunt Smt. Gujarati Devi, in a house situated in Nawabganj, which was bequeathed to Parmanand Lal by Smt. Gujarati Devi. Parmanand Lal had two daughters Radha and Sudha, he had no sons,Radha has died, Krishna Kumar, Yogesh Kumar alias Goli and Somesh Kumar alias Rishi are the sons of Radha Devi. He deposed that he had good acquaintance and cordial relations with Parmanand Lal. He deposed that in the month of September 1996, Parmanand Lal told him that he intends to bequeath his entire movable and immovable property in favour of his daughter Sudha and daughter Radha's son Krishna Kumar, Yogesh Kumar and Somesh, requested him to witness the Will and took him to the Kutchery. 31. He further deposed that in his presence Parmanand Lal directed Mithilesh Kunwar Khare,Advocate to prepare the Will deed, got typed the Will deed and after it was typed, after reading and understanding it, Parmanand Lal signed it in his presence and also obtained his signature on it. 31. He further deposed that in his presence Parmanand Lal directed Mithilesh Kunwar Khare,Advocate to prepare the Will deed, got typed the Will deed and after it was typed, after reading and understanding it, Parmanand Lal signed it in his presence and also obtained his signature on it. He further deposed that in the Will deed Parmanand Lal bequeathed his entire movable and immovable property namely house, agricultural land, cash and bank balance, the 1/2 share of it was bequeathed to Sudha and 1/2 share to Krishna Kumar. He further deposed that after executing the Will, Parmanand Lal got it registered on the same day and at the time of registration, Parmanand Lal affixed his signature and thumb impression on it. He further deposed that after the execution of the above Will, Parmanand Lal frequently visited his daughter Sudha in Senpura, he also met him, he also visited Parmanand Lal along with Madan Mohan at his Nawabganj residence and for the last time, after Parmanand Lal became ill in the year 2002, he went to his Nawabganj residence and had talks with him. He further deposed that Parmanand Lal never told him that he has revoked his Will executed in favour of his daughter Sudha and sons of his daughter. He further deposed that if any person alleges that Parmanand Lal has executed any other Will, then that Will is forged and fabricated, which has not been signed by Parmanand Lal, which bears the forged signatures of Parmanand Lal. 32. PW-2 deposed in cross-examination that he knew the testator from 5 – 7 years prior to his death. He never went to his house in Gangapur. He deposed that Rakesh Lal had requested him to get the matter compromised to which he had declined. Parmanand Lal never disclosed to him that he wanted to execute the Will in favour of Rakesh. This witness has identified the photo and signature of Parmanand Lal on Will dated 20.9.1996. 33. Mithilesh Kunwar Khare PW-3, Advocate deposed in examination-in-chief that he practices in District Court Varanasi on the civil side. Parmanand Lal never disclosed to him that he wanted to execute the Will in favour of Rakesh. This witness has identified the photo and signature of Parmanand Lal on Will dated 20.9.1996. 33. Mithilesh Kunwar Khare PW-3, Advocate deposed in examination-in-chief that he practices in District Court Varanasi on the civil side. He prepared the draft Will on 20.9.1996 on the direction of Parmanand Lal, got it typed, which was read by Parmanand Lal, was read over to Sukhu Prasad and after being satisfied with its contents, was signed by Parmanand Lal in his presence, which was also signed by Sukhu Prasad and he had also signed it as a witness. He further deposed that on the same day Parmanand Lal had got it registered by presenting it in the office of the registrar. The registrar had asked Parmanand Lal about the execution of the Will, which was accepted by Parmanand Lal and thereafter, Parmanand Lal and Sukhu Prasad had also signed it and affixed their fingerprints on the back page of the Will as well as on register no.8. This witness has proved the Will dated 20.9.1996 of Parmanand Lal, in accordance with law. 34. PW-3 in cross-examination deposed that the Will deed dated 20.9.1996 was prepared by him and he is also its attesting witness. Except this Will, Parmanand Lal has not executed any other document. He is not related to Parmanand Lal. 35. Sayed Irteja Hussain PW-4, the hand writing expert, has deposed in his examination-in-chief that the Will dated 20.9.1996 and 25.5.2002 have been signed by different persons and the Will dated 25.5.2002 has not been signed by Parmanand Lal. Oral evidence of defendants before the lower court (Propounder of Will dated 25.5.2002) 36. Rakesh Srivastava DW-1 deposed in his examination-in-chief that Parmanand Lal was his uncle, who was very affectionate towards him and his (DW-1) brothers. When Parmanand Lal was residing in Mauja Sui Chuck, then he was looked after and cared by the deponent and his brothers. He and his brothers used to visit house no. B.26/116 A, Nawabganj, Varanasi. Parmanand Lal was very satisfied with him and his brothers. Parmanand Lal had no son, had only 2 daughters namely Radha and Sudha, Radha died during the lifetime of Parmanand Lal, Sudha was alive, there are 3 sons of Radha namely Krishna Kumar, Yogesh Kumar and Somesh Kumar. 37. B.26/116 A, Nawabganj, Varanasi. Parmanand Lal was very satisfied with him and his brothers. Parmanand Lal had no son, had only 2 daughters namely Radha and Sudha, Radha died during the lifetime of Parmanand Lal, Sudha was alive, there are 3 sons of Radha namely Krishna Kumar, Yogesh Kumar and Somesh Kumar. 37. He further deposed that Parmanand Lal intended to bequeath his above house to his nephews and intended to bequeath the movable property to his daughter's son and daughter Sudha, but Radha's sons and Sudha, managed to get wrong Will dated 20.9.1996 executed from Parmanand Lal, and when this was realised by Parmanand Lal, then on 25.5.2002 Parmanand Lal again executed a Will in which the above house and other immovable property was bequeathed to his nephews and the movable property was bequeathed to his daughter and sons of the daughter. He also deposed that Parmanand Lal revoked his earlier Will dated 20.9.1996. He further deposed that the Will dated 25.5.2002 was the last Will of Parmanand Lal, which became effective on his death. 38. He further deposed that the Will dated 25.5.2002 bears the photograph and signature in English of Parmanand Lal, which was signed by Parmanand Lal in the presence of witnesses Vinod Kumar Singh and Lalji, the witnesses had also signed in presence of Parmanand Lal, the Will dated 25.5.2002 was executed by Parmanand Lal willingly, on the basis of which he and his brothers are the owners of the disputed property. 39. DW-1 in cross-examination accepted that his father and Parmanand Lal were real brothers. Gujarati Devi had executed a Will on 18.5.1987, on the basis of which, house no.B.26/116-A situated in Nawabganj was bequeathed to Parmanand Lal and the agricultural land of the village was bequeathed to Lakshmi Lal and after the death of Lakshmi Lal, he and his brothers have got their name mutated in the revenue record. He also accepted that name of Parmanand Lal was mutated as owner of the above house. 40. He also accepted that name of Parmanand Lal was mutated as owner of the above house. 40. He further deposed that Parmanand Lal was ill at the time of his death, who was ill from about one year prior to his death, his one leg was fractured, he denied that about two years prior to his death his hip bone was fractured, the treatment of fracture of Parmanand Lal was undertaken by him and his family members, his treatment was going at the time of his death. He denied the suggestion that since the hip bone of Parmanand Lal was fractured, he was disabled and was unable to walk. He used to frequently visit Nawabganj. He denied the suggestion that he and his brothers never resided in the Nawabganj house. He failed to disclose the boundaries of the Nawabganj house. He denied the possession of the Nawabganj house with Sudha and Krishna Kumar and others. He admitted that he cannot file any documentary evidence to prove that he and his brothers are in possession of the Nawabganj house. 41. He further deposed that Parmanand Lal never disclosed to him about the Will deed executed in favour of Sudha and others. The Will dated 25.5.2002 was prepared at the house of Parmanand Lal, which was typed by Parmanand Lal himself. He arrived at Nawabganj house, on being called, at about 2–3 PM, two witnesses, he, Sudha, Krishna Kumar and some other well-wishers were present, who belonged to the maternal side of Gujarati Devi, the names of whom he was not aware. Parmanand Lal phoned him, on which he arrived along with two witnesses. He specifically deposed that on 25.5.2002 the Will deed was not prepared in the Kutchery. He admitted that mutation case regarding agricultural land of Parmanand Lal between him and Sudha and others was pending in tehsil. He admitted that his name was earlier mutated in PaKa–11 on the basis of possession in the month of December,2002. He denied the suggestion that after the death of Parmanand Lal, Sudha and others had moved a mutation application on the basis of Will which was allowed and subsequently, he moved a restoration application. He also admitted that his statement was recorded and he was also cross-examined in the mutation case. He further deposed that the Will dated 25.5.2002 was not written in his presence. He also admitted that his statement was recorded and he was also cross-examined in the mutation case. He further deposed that the Will dated 25.5.2002 was not written in his presence. After the Will was handed to him between 2–3 PM, he left without witnesses. He went to his village. When he reached house no. B.26/116-A, Nawabganj, Varanasi, then Will had already been prepared. 42. He denied the suggestion that the last rites of Parmanand Lal were performed by Krishan Kumar and others. He admitted that after the tehrahvi of Parmanand Lal, he had moved mutation application in the tehsil. He also moved the mutation application on the basis of Will and on that basis, the Lekhpal had mutated his name and the name of others, in PaKa-11. He denied the suggestion that the first application was moved on 17.12.2002 in which there was no mention of Will and in collusion with Lekhpal his name was mutated. He also denied the suggestion that after the name of Sudha and others was mutated on the basis of registered Will, then he and others had moved subsequent application of mutation. 43. He further deposed that in the alleged Will deed executed by Parmanand Lal in their favour, attesting witnesses are Lalji and Vinod Kumar. He was not aware of the name of Lalji's wife. He feigned ignorance that the name of Lalji's wife was Dulari Devi, but admitted that he has executed the sale deed of his four decimal land in favour of Dulari Devi, and Lalji was the witness of the Will. He denied the suggestion that land of Parmanand Lal was cultivated by Lalji. He denied the suggestion that he threatened Lalji that he will take the land from him and compelled him to become a witness of his fraudulent Will. He feigned ignorance that he had admitted in his statement in the mutation proceedings in the tehsil, that the Will dated 25.5.2002 was prepared and executed in Kutchery. He denied the suggestion that the Will dated 25.5.2002 was a forged and fabricated document, which was not executed by Parmanand Lal. 44. Lalji DW-2 deposed in his examination-in-chief that in his presence, Parmanand Lal prepared his Will on 25.5.2002 in favour of his nephews Krishna Kumar, Awdesh Kumar, Madan Kumar, Manoj Kumar, Santosh Kumar and Rakesh Lal. He denied the suggestion that the Will dated 25.5.2002 was a forged and fabricated document, which was not executed by Parmanand Lal. 44. Lalji DW-2 deposed in his examination-in-chief that in his presence, Parmanand Lal prepared his Will on 25.5.2002 in favour of his nephews Krishna Kumar, Awdesh Kumar, Madan Kumar, Manoj Kumar, Santosh Kumar and Rakesh Lal. The typed Will was read in his presence by Parmanand Lal and then signed on each page in English by him(Parmanand Lal). Thereafter, in the presence of Parmanand Lal, he and Vinod Kumar Singh signed the Will. The photograph of Parmanand Lal was also pasted on the first page of the Will in his presence. On that date, Parmanand Lal's body and mind was alright. 45. DW-2 deposed in cross-examination that he has neither prepared nor read his affidavit in examination-in-chief, it was prepared by Rakesh Lal, he was not aware what was written in it, he had only signed the affidavit, he has not read it. He has not submitted any affidavit after perusing the Will of Parmanand Lal. Rakesh Lal had taken him to the tehsil, where he gave his written statement. On the day when Will of Parmanand was written, Rakesh Lal came and took him for witnessing it. He was accompanied by Vinod Kumar Yadav, Rakesh Lal and his relatives, the names of whom he was not aware, he was taken to the Durgakund residence of Parmanand Lal, he departed from his village at 12-12.30 PM and reached at 2.30 PM. He remained for an hour at Durgakund residence, the paper was in the hands of Parmanand Lal , which was read by Parmanand Lal , who also disclosed that he was bequeathing his immovable property and house to six brothers and cash to his daughter and sons of daughter. He saw the Will, but has not read it. He was not aware of the place where the Will was written. At the Durgakund residence the brothers of Rakesh, he,Vinod, Parmanand Lal, younger sister of Rakesh were present. The Will was first of all signed by Parmanand Lal, then by Vinod Kumar witness, then by him. Parmanand was saying that he had executed a Will earlier which he wanted to revoke, and he was making Will in favour of his six nephews. The Will which was signed by him, was prepared earlier. The Will was first of all signed by Parmanand Lal, then by Vinod Kumar witness, then by him. Parmanand was saying that he had executed a Will earlier which he wanted to revoke, and he was making Will in favour of his six nephews. The Will which was signed by him, was prepared earlier. Parmanand has died, he was not aware when he died. He was not aware about his(Parmanand Lal) last rites. When the Will was prepared Parmanand was not ill, but he was incapable of walking. 46. He accepted that Dulari Devi was his wife, who resides with him, Rakesh Lal has executed sale deed of his 4 decimal land to Dulari Devi after the death of Parmanand Lal. He denied that he cultivated the land of Parmanand Lal. Rakesh Lal are six brothers. He denied the suggestion that Parmanand Lal had not executed any Will on 25.5.2002. 47. Ramnarayan DW-3 deposed in his examination-in-chief that after the death of Parmanand Lal his nephews Krishna Kumar, Awdesh Kumar, Madan Kumar, Manoj Kumar, Santosh Kumar and Rakesh Lal were in possession of the property, being the owners. Parmanand Lal was looked after by his nephews. In cross-examination he deposed that Parmanand Lal resided in Banaras at Durgaji. Parmanand Lal died in Banaras. He denied the suggestion that Parmanand Lal resided at Durgakund with the family of his daughter. He further deposed that the whole village knew that a Will was executed by Parmanand Lal in favour of his nephews. He was not aware whether Parmanand Lal had executed in his lifetime Will in favour of Smt.Sudha Srivastava and children of Smt.Radha. 48. Vikas Srivastava DW-4, the handwriting expert, deposed in his examination chief that the Will dated 20.9.1996 and 25.5.2002 have been executed by one and the same person Parmanand Lal . Case law applicable 49. The Apex Court in the case of H.Venkatachala Iyengar vs. B.N.Thimmajamma & Others, 1958 SCC OnLine SC 31 (By 3 Judges), while examining the issues related with execution and proof of Will has enunciated a few fundamental guiding principles that have consistently been followed and applied in almost all the cases involving such issues. The exposition of law made by the Apex Court is as under:- 18. What is the true legal position in the matter of proof of wills? The exposition of law made by the Apex Court is as under:- 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. 19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. 20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. 21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word “conscience” in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive. 22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. 22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] “where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth”. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect. 50. The Constitution bench of the Apex Court in the case of Shashi Kumar Banerjee and others vs. Subodh Kumar Banerjee and others, 1963 SCC OnLine SC 114 , while examining the law relating to the manner and onus of proof and also the duty cast upon the court while dealing with the case based upon a Will, has held as follows:- ''The mode of proving a Will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a Will by Section 63 of the Indian Succession Act. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. The onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the Will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even when there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indicators in the Will to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes part in the execution of the Will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence.If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the Will might be unnatural and might cut off wholly or in part near relations.'' 51. The Apex Court in the case of Shivakumar and others vs. Sharanabasappa and others (2021)11 SCC 277 , after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a Will as follows:- 12. For what has been noticed hereinabove, the relevant principles governing the adjudicatory process concerning proof of a will could be broadly summarised as follows: 12.1. Ordinarily, 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. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon. 12.2. Ordinarily, 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. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon. 12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. 12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will. 12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera 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 give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 12.6. A circumstance is “suspicious” when it is not normal or is “not normally expected in a normal situation or is not expected of a normal person”. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 12.6. A circumstance is “suspicious” when it is not normal or is “not normally expected in a normal situation or is not expected of a normal person”. As put by this Court, the suspicious features must be “real, germane and valid” and not merely the “fantasy of the doubting mind”. 12.7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the will. On the other hand, any of the circumstances qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 12.8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the will of the testator is surrounded by suspicious circumstance(s). While applying such test, the court would address itself to the solemn questions as to whether the testator had signed the will while being aware of its contents and after understanding the nature and effect of the dispositions in the will? 12.9. In the ultimate analysis, where the execution of a will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the court and the party which sets up the will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the will. 52. The Apex Court in the case of A. Kamala Bai(D) Through LRS vs. B. Kanna Rao(D) Through LRS, Civil Appeal No. 136 of 2013, held as under:- 11. 52. The Apex Court in the case of A. Kamala Bai(D) Through LRS vs. B. Kanna Rao(D) Through LRS, Civil Appeal No. 136 of 2013, held as under:- 11. Admittedly, PW-5 is the only witness examined by the Appellant to prove the execution of the Will in terms of the statutory mandate under Section 63 (c) of the Succession Act and 68 of the Indian Evidence Act. Apart from PW-5, the other attesting witness or the scribe has not been examined before the Senior Civil Judge in course of inquiry to submit the report called for by the High Court. Thus, the statement of PW-5 is of great significance for the reason that it is his statement around which the execution of the Will have to be proved. When such is the situation, we have to consider the evidence of this witness with utmost attention. The statement of PW-5 in his cross-examination is reproduced herein for exactitude: “I have not given instruction for preparing the chief affidavit belongs to me. I cannot say who have instructions for preparing my chief affidavit. I do not know the contents of my chief affidavit.” 12. In addition to the above statement, in the subsequent part of his cross examination he also states that “I do not know the contents of the will.” 13. Thus, firstly, this witness categorically admits that the chief affidavit was not prepared on his instructions and secondly, he does not know the contents of his chief affidavit. Ms. Jaikriti S. Jadeja, learned counsel for the appellant may be right to some extent in submitting that the entire statement of the witness cannot be ignored. However, the second limb of her submission that in his cross examination this witness has proved the execution of the will is difficult to accept because in subsequent part of his cross examination this witness admits that he does not know the contents of the will. The evidence of a witness has to be read as a whole and not in isolation. On such reading the evidence of PW-5 does not inspire confidence. 14. The evidence of a witness has to be read as a whole and not in isolation. On such reading the evidence of PW-5 does not inspire confidence. 14. To prove the execution of will, one of the attesting witnesses is to be examined mandatorily, however, when the sole attesting witness examined before the Court admits that his chief affidavit i.e. the examination in chief was not recorded under his instructions nor does he know the contents of his examination in chief, the evidentiary value of his statement in cross-examination is seriously dented. Even if it is not necessary for a attesting witness to know the contents of the will, the question remains that he has to depose in Court, in no uncertain terms, that he has prepared the chief affidavit under his own instructions so that the credibility of the witness is assessed in the Court as a true attestor as required under Section 63 (c) of the Succession Act and Section 68 of the Indian Evidence Act. If there is slightest doubt about the credibility of the sole attesting witness, holding the will to be a genuine one would be extremely difficult for the Court. 15. In the above view of the matter we are unable to accept the contention of learned counsel for the appellant that the will dated 11.03.1999 ought to have been found as genuine and the appellant should have been allowed to prosecute the Appeal Suit before the High Court on merits. (emphasis supplied) 53. It is apparent from the above law laid down by the Apex Court in the case of H.Venkatachala Iyengar (supra), Shashi Kumar Banerjee (supra) and Shivakumar (supra) that where the execution of the Will is surrounded by suspicious circumstances then the onus lies on the propounder to remove all legitimate suspicions before the document can be accepted as the last Will of the testator. It is also apparent that such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. It is also apparent that where the execution of Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will. 54. It is also apparent that where the execution of Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will. 54. It is evident from the pleadings of the parties and the evidence on record that the first Will of Parmanand Lal, which was registered Will executed on 20.9.1996 is not disputed by the parties. It is the case of the defendant-appellants that the above registered Will was revoked by Parmanand Lal on 25.5.2002 and in its place, another unregistered Will was executed by him in favour of the defendants. It is apparent that the execution and the authenticity of the first Will of Parmanand Lal dated 20.9.1996 is not in doubt as such, there is no need to examine its authenticity and validity for deciding the instant appeals. 55. The only dispute that arises is whether Parmanand Lal revoked his first registered Will dated 20.9.1996 and in its place, executed another unregistered Will on 25.5.2002? This Court has to examine the reasons for revoking the first Will, the place of alleged execution of the second Will, the persons present who took active part in the preparation and execution of the second Will, when and in which manner the second Will came to be disclosed by the propounder and the suspicious circumstances surrounding the second Will? 56. It is proved from the evidence on record that Parmanand Lal had no sons, had only two married daughters namely Smt.Sudha and Radha, elder daughter Smt. Radha had died during the lifetime of Parmanand Lal, as such, by first Will dated 20.9.1996 Parmanand Lal bequeathed his entire movable and immovable property to his surviving daughter Smt.Sudha(half share) and sons of deceased daughter Radha namely Krishan Kumar Srivastava, Yogesh Kumar alias Goli and Somesh Kumar alias Rishi(half share).By this Will, Parmanand Lal(testator) bequeathed his residential house no.B.26/116-A, situated in Nawabganj, Bhelupura, Varanasi in equal half shares to his daughter Smt. Sudha and sons of deceased daughter Smt. Radha. It is apparent that there is nothing suspicious in this Will, since the testator has equally bequeathed his movable and immovable property to his heirs, who would have also otherwise inherited the property of the testator being class I heirs as per The Hindu Succession Act,1956, in the absence of the Will. As discussed earlier, the execution of this Will is not disputed by the parties. Suspicious circumstances surrounding the Will dated 25.5.2002 (i) Ill Health of testator Parmanand Lal:- 57. Sudha Srivastava PW-1 has deposed that her father Parmanand Lal(testator) had become bedridden two years prior to his death because his hip bone was fractured, who was unable to move and do his routine work and till his death, he was looked after and cared by the plaintiffs. She has further deposed that her father died on 22.11.2002 in his residential house no.B.26/116-A, situated in Nawabganj, Bhelupura, Varanasi. From the evidence of PW-1 it is evident that she was not aware of the alleged Will dated 25.5.2002 executed by her father. 58. From the evidence of Rakesh Lal Srivastava DW-1 it is evident that he has accepted that at the time of his death, the testator was above 80 years old, who was ill since about one year prior to his death, his leg was fractured. He denied that about two years prior to his death, the hip bone of the testator was fractured. He admitted that the testator was undergoing treatment at the time of his death. Attesting witness Lalji DW-2 has also admitted in cross-examination that the testator at the time of execution of alleged Will, was unable to walk. From the above evidence it is proved that the testator was about 80 years old at the time of the alleged execution of the Will dated 25.5.2002 and was ill. 59. Propounder of the Will DW-1 has deposed that the Will was typed by the testator himself at his Nawabganj house, but in his previous statement during mutation proceedings, he has deposed that the Will was typed in Civil Court, Varanasi at the office of Rajendra Prasad, Advocate. Since Parmanand Lal was ill, bedridden and was about 80 years old at that time, it was virtually impossible for the testator to himself type the Will at his Nawabganj residence. (ii) Place of execution of the alleged Will:- 60. Since Parmanand Lal was ill, bedridden and was about 80 years old at that time, it was virtually impossible for the testator to himself type the Will at his Nawabganj residence. (ii) Place of execution of the alleged Will:- 60. From the evidence of DW-1 it is proved that the alleged Will dated 25.5.2002 was executed at the house of the testator. This witness has stated that the alleged Will was typed himself by Parmanand Lal at his house situated in Nawabganj,Varanasi and thereafter, handed to them. He has further stated that he was called by the testator at his Nawabganj house and had reached there at 2 – 3 PM and at that time he, Sudha, Krishan Kumar and some well- wishers were also present. This witness has further stated that on the asking of the testator on phone, he arrived with the two witnesses. This witness has specifically deposed that the above Will was not prepared in Kutchery. According to this witness the Will was not prepared in his presence but when he reached the Nawabganj house of the testator, it was ready and after the Will was handed to him, he left for his village, leaving the two witnesses behind. This witness during mutation proceedings had earlier deposed that the above Will was prepared in Civil Court,Varanasi, at the office of Rajendra Prasad, Advocate and when he was confronted with his previous statement, then he feigned ignorance about it. It is apparent that the propounder of alleged Will dated 25.5.2002 DW-1 has made two contradictory statements regarding the place where the alleged Will was prepared. 61. The attesting witness of alleged Will dated 25.5.2002 Lalji DW-2 to the contrary, has deposed that the Will was prepared at the Durgakund residence of Parmanand Lal. It is evident that there is a serious contradiction between the above witnesses regarding the place where the alleged Will was prepared by the testator, which makes it highly suspicious. (iii) Preparation of Will:- 62. From the evidence of propounder DW-1 and attesting witness Lalji DW-2 it is proved that the witnesses were brought by the propounder to the testator's house. DW-1 has also admitted that on being asked by the testator, he arrived at the testator's house with two witnesses.It is proved that the propounder had taken an active part in the preparation of the alleged Will. DW-1 has also admitted that on being asked by the testator, he arrived at the testator's house with two witnesses.It is proved that the propounder had taken an active part in the preparation of the alleged Will. (iv) Non disclosure of the alleged Will by the propounder in mutation proceedings:- 63. It is evident from the documents submitted by the plaintiff that the propounder Rakesh Lal and his brothers had moved a mutation application on 12.12.2002 under Section 34 of the U.P. Land Revenue Act before the Court of Tehsildar, Varanasi for getting their name mutated on the basis of inheritance, being the legal heirs of deceased Parmanand Lal, who died on 22.11.2002. This application was prepared by Mansha Ram, Advocate. An affidavit by Rakesh Lal Srivastava was also filed in support of the above application. 64. It is apparent that in the above mutation application it has not been disclosed that Rakesh Lal Srivastava and his brothers inherited the agricultural land on the basis of Will allegedly executed by Parmanand Lal on 25.5.2002 in their favour. It is apparent from the perusal of the alleged Will dated 25.5.2002 that it has been prepared by Mansa Ram Mishra, Advocate. It is very surprising that in the mutation application moved by Rakesh Lal Srivastava there was no mention of the alleged Will executed in his favour by Parmanand Lal on 25.5.2002. It is also very surprising that the mutation application was prepared by the same Advocate Mansha Ram, who had earlier allegedly prepared the Will dated 25.5.2002. 65. It is very surprising that the alleged Will was in possession of the propounder and if the alleged Will was indeed executed by the testator on 25.5.2002 and on the basis of that Will, Rakesh Lal Srivastava DW-1 and his brothers had become the owners of the agricultural land, then why it's existence was not disclosed in the mutation application, which was moved on 12.12.2002, after the death of Parmanand Lal on 22.11.2002. It is all the more surprising that the mutation application and the alleged Will, both were drafted by the same Advocate Mansha Ram, but he failed to disclose about the existence of the Will in the mutation application, which is beyond comprehension. The propounder of Will DW-1 has admitted in his cross-examination that the above mutation proceedings were initiated by him. The propounder of Will DW-1 has admitted in his cross-examination that the above mutation proceedings were initiated by him. The above evidence leads to the irresistible conclusion that the alleged Will of the testator was not in existence till 12.12.2002 and it was prepared subsequently, to counter the mutation application moved by the plaintiff Sudha Srivastava PW-1 on the basis of registered Will of testator dated 20.9.1996. (v)Evidence of Lalji DW-2, the attesting witness of the alleged Will:- 66. From the cross-examination of Lalji DW-2 it is evident that his affidavit in examination-in-chief, was prepared by Rakesh Lal Srivastava, and he has merely signed it without reading it, he was not aware of its contents. In similar circumstances, the Apex Court in the case of A. Kamala Bai (supra) has held that such attesting witness does not inspire confidence and on the basis of the above statement, the execution of the Will is not proved. 67. DW-2 admitted that previously he had also given his testimony in tehsil. He also admitted that Dulari Devi is his wife, in whose favour Rakesh Lal has executed a sale deed of land of 4 decimal. 68. It is apparent that Rakesh Lal, has executed a sale deed of four decimal land in favour of the wife of DW-2, and due to this reason, DW-2 Lalji has been planted as an attesting witness of the alleged Will. (vi)Reason for revoking earlier Will dated 20.9.1996:- 69. The alleged Will dated 25.5.2002 discloses that previously, due to fraud committed on him, the testator had executed Will dated 20.9.1996 bequeathing his ancestral property in favour of his daughter and sons of deceased daughter, regarding which he was not aware and when he became aware of the above fact, he decided to revoke his earlier Will dated 20.9.1996. By the subsequent Will dated 25.5.2002, the residential house no.B.26/116-A,situated in Nawabganj, Bhelupura, Varanasi and other immovable properties of the testator were bequeathed to the sons of his deceased elder brother Lakshmilal namely Krishna Kumar, Awdesh Kumar,Madan Kumar, Manoj Kumar, Santosh Kumar and Rakesh Lal whereas, the movable property including cash and jewellery was bequeathed to his daughter Sudha Devi and sons of deceased daughter Radha Devi. 70. It is apparent that the reason assigned by the testator for revoking his earlier Will dated 20.9.1996 is not very convincing. 70. It is apparent that the reason assigned by the testator for revoking his earlier Will dated 20.9.1996 is not very convincing. The alleged Will dated 25.5.2002 discloses that a fraud was committed upon the testator. From the testimony of plaintiff Sudha Srivastava PW-1 it is evident that she was looking after her father/testator Parmanand Lal , who was bedridden, since the last two years prior to his death, as such, the reason assigned by the testator that a fraud was played upon him by his daughter and the sons of the deceased daughter, is not at all reliable. Conclusion of the Court 71. From the above evidence on record, it is proved that Parmanand Lal(testator) was bedridden, was in ill health and was unable to go to the civil court for executing the alleged Will dated 25.5.2002. It is also apparent that there is considerable doubt regarding the place where the alleged Will was prepared. In the mutation proceedings, the propounder of the alleged Will Rakesh Lal Srivastava deposed that the alleged Will was prepared in the Civil Court Varanasi, but subsequently, he deposed that it was typed by the testator at his house situated in Nawabganj, Bhelupura Varanasi. Further, the attesting witness Lalji deposed that it was prepared at the Durgakund house of the testator, which is contradictory to the place deposed by the propounder. It is also evident that the propounder has taken active part in the preparation of the alleged Will. It is also evident that in the mutation application filed by the propounder before the court of tehsildar Varanasi, the propounder and his brothers claimed ownership of the agricultural land on the basis of inheritance, being the legal heirs of the deceased testator. No plea of ownership on the basis of alleged Will was taken in the above mutation proceedings. It is very surprising that if the propounder was in possession of the alleged Will and on the basis of that Will, he became the owner of the agricultural land after the death of the testator, then why it was not mentioned in the mutation application. It is very surprising that if the propounder was in possession of the alleged Will and on the basis of that Will, he became the owner of the agricultural land after the death of the testator, then why it was not mentioned in the mutation application. It is all the more surprising that the mutation application and the alleged Will was drafted by the same Advocate Mansha Ram, who was very well aware about the existence of the alleged Will at the time of moving the mutation application before the revenue court, but the fact of the existence of the alleged Will and acquisition of ownership on the basis of that Will, was never mentioned by the Advocate while moving the mutation application. This fact itself proves that at the time of moving the mutation application on 12.12.2002, the alleged Will was not in existence and it was subsequently, put up to counter the mutation application moved by the plaintiff Smt. Sudha Srivastava, who had alleged ownership of the disputed agricultural land on the basis of earlier registered Will dated 20.9.1996 of the testator. It is also apparent that the attesting witness Lalji being the beneficiary of land, allegedly sold to him by the propounder, was an interested witness whose evidence does not inspire confidence. It is further evident that the reason assigned by the testator for revoking his earlier Will are not at all convincing. 72. From the above circumstances proved by cogent evidence, the propounder of the alleged Will has not been able to dispel the suspicious circumstances surrounding the execution of the alleged Will. It is well settled that in such cases, judicial conscience must be satisfied that the alleged Will was indeed executed by the testator and it was the last Will of the testator, but in the present case, the judicial conscience has not been satisfied. The execution of the alleged Will is shrouded in grave suspicion, which has not been dispelled by the propounder to the satisfaction of this Court. 73. In view of the above analysis, the trial court has not erred in rejecting the Probate application of the propounder of the alleged Will dated 25.5.2002 and allowing the Probate application of the propounder of earlier Will dated 20.9.1996. Accordingly, the instant appeals have no merit and are liable to be dismissed. 74. 73. In view of the above analysis, the trial court has not erred in rejecting the Probate application of the propounder of the alleged Will dated 25.5.2002 and allowing the Probate application of the propounder of earlier Will dated 20.9.1996. Accordingly, the instant appeals have no merit and are liable to be dismissed. 74. Accordingly, First Appeal No. 1276 of 2023 and 1274 of 2023, are dismissed. Costs easy. 75. The impugned judgement and order of the trial court dated 18.10.2023 is affirmed.