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CASE NO.: Writ Petition (civil)  3467 of 2003

PETITIONER: Benga Behera & Anr

RESPONDENT: Braja Kishore Nanda & Ors

DATE OF JUDGMENT: 15/05/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: JUDGMENT

S.B. SINHA, J.:

1.      Interpretation and application of Section 63 of the Indian Succession Act,  1925 as well as Section 68 of the Indian Evidence Act, 1872  vis-‘-vis  the  requirements of proof  of execution of a document falls for consideration in this  appeal which arises out of  the judgment dated 21.11.2002 in First  Appeal.No.397/1990 of the High Court of Orissa  at Cuttack.  However, before we  embark upon the said question, we may notice the facts of the matter in brief. 2.      Admittedly, one Sarajumani Dasi was the owner of the property in question.  She was aged about 70 years when a Will was allegedly executed by her on or  about 15.1.1982.  She expired on 5.6.1983. The beneficiary of the Will was the  first respondent herein.  The testatrix was living in a math known as Bharati Math  at Puri. In the Will, she disclosed her profession to be "Singer of Bhajans and  Kirtans". It is not in dispute that the first respondent was a complete stranger to the  family. He is a businessman.  His father was one of the disciples of  late Taponidhi  Ramakrushna Bharati Goswamy, who had founded the Math wherein the testatrix  was living. 3.      A deed of sale was also executed by the said Sarajumani Dasi in favour of  advocate Surendra Panda of Puri on the same day. The Will is said to have been  scribed by one  Banabehari Upadhyaya (PW-9), an advocate’s clerk. He as well as  one Chandramani Das Mohapatra who are said to be the attesting witnesses thereto  also identified the testatrix before the Registering Officer.  Respondent No.1  obtained the original Will from the Office of the Registering Authority on  30.1.1982. 4.      As noticed hereinbefore, Sarajumani Dasi expired on 5.6.1983. In 1986, an  application was filed by the first respondent in the court of the learned District  Judge, Puri for grant of Letters of Administration  in respect of the alleged Will  with a copy of the Will annexed, in terms of Section 278 of the Indian Succession  Act. Respondent No.1 claimed that he had also been residing in the said Math. She  was assured of proper care by him and in consideration of the help and assistance  rendered to her by  respondent No.1, the said Will was executed in his favour. 5.      Appellants herein are the heirs and legal representatives of the testatrix.  They contested the said application, inter alia, questioning execution of the Will  alleging the same to be a forged and a sham document.   

6.      We may notice that the original Will was never produced by the appellant.

7.      Execution of the Will was sought to be proved by producing a certified copy  thereof.  A purported xeroxed copy of the said will was also filed.  The registration  of the said Will was sought to be proved by calling the document in question  wherein the contents of the document registered were noted. 8.      To prove execution and attestation of the Will, the respondent No.1, inter  alia, examined Banabehari Upadhyaya (P.W.9), Purnchandra Rath (P.W.4) and  Surendra Panda (P.W.7).  

9.      We will notice their statements before the learned District Judge for

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determining the question as to whether requirements of law had been complied  with. 10.     P.W.9- Banabehari Upadhyaya who, as noticed hereinbefore, not only  scribed the Will but also stated himself to be an attesting witness and identifier of  the testatrix, in his deposition stated as under:

       " \005. On 15.1.82, Sarajumani Dasi executed a Will in favour of  one Brajakishore Nanda and the same was scribed by me\005..   

I do not remember anything that happened on 15.1.82 except  what I have deposed with reference to the document.

       I first saw Sarajumani Dasi when she executed the sale deed. I  did not know her before that.  \005\005  Surendranath Panda brought  Sarajumani Dasi to me with him.         Sarajumani Dasi was with  Surendranath Panda and I was called to scribe the Will to become an  identifying witness and also an attesting witness.   Surendra Panda  identified Sarajumani Dasi to me and that is how I know her.  \005. I did  not make a draft of the Will but scribed it as per dictation of  Surendranath Panda.  Sarajumani Dasi did not put her L.T.I. in my  presence on the Will at the time of execution of it.  \005.  I attested her  L.T.I. before she put her L.T.I. on the sale deed and the Will.   Sarajumani Dasi was not present when I scribed the sale deed and will  and made the endorsements attesting her L.T.I.   I do not know if any  other person attested the Will and the sale deed. \005

\005                                    \005                                    \005

       \005 I scribed whatever was dictated by Sri Panda without  understanding the meaning or purport. \005.  I did not disclose before  the Sub-Registrar or before any body that I identified Sarjumani Dasi  without knowing her or attested her L.T.I. even though her L.T.I. were  not affixed in my presence. \005\005\005."

11.     In his deposition, P.W.4-Purnachandra Rath (An Advocate) stated:

       "Thereafter on 15.1.82, Sarajumani again came to the Bar  Association and met me there. Brajakishore Nanda (P.W.1 - Plaintiff)  and his father Sanmajaya Nanda (not examined) accompanied the  Mata. She expressed before me that she would execute the Will and  also the sale deed.  On her instruction, I made a gist of the Will and  asked Banabehari Upadhyaya to scribe the same. \005..  The scribe read  over and explained the contents of the Will to Sarajumani and she  acknowledged the same to be true and correct. When Sarajumani  affixed her L.T.I. on the Will, myself, Banabehari Upadhyaya,  (P.W.9) advocate Sri Surendra Panda and  Chandramani Das  Mohapatra and Sanmajaya Nanda were present\005..

       I am attesting witness to the will. \005\005..  I endorsed a certificate  in the Will to the effect that the executant was my client and the Will  was written by my clerk in my office on my direction.  \005\005"

12.     In his deposition, P.W.7-Surendra Panda (An Advocate) stated thus:

       "On 15.1.82, Sarajumani Dashi came to the Bar Association,  Bhubaneswar. She was accompanied by Brajakishore Nanda and  Jammajjaya Nanda at that time.  That day i.e.15.1.82 Sarajumani  Dashi expressed her desire before her lawyer Purnchandra Rath  (P.W.4) to execute the Will in favour of Brajakishore Nanda.  \005   Then the lawyer made a rough draft of the Will. Mr. Rath called  Benabehari Upadhyaya to scribe the Will.  \005  The contents of the  document were read and explained to Sarajumani Dashi. \005..   Sarajumani Dashi  acknowledged  the  contents  of  the  document  to   be  true  and  correct   and gave her L.T.I.. thereon.  Attesting witness

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P.C. Rath, Chandramani and Banabehari Upadhaya were present  when Sarajumani Dashi affixed her L.T.I. on the Will.  \005."

13.     P.W.9- Banabehari Upadhyaya did not, thus, admittedly know the testatrix  from before. He had seen her for the first time on the day when the Will was  executed and because Surendra Panda had asked him to identify her, he did so.  It  was stated that the same was scribed by him as per dictation of Surendra Panda,  but in the Will, it was stated that he himself did it. 14.     If he had put his signature before the testatrix had put her thumb impression  on the sale deed and the Will, he does not answer the requirement of attesting  witness.  He was not aware of any other person attesting the Will and the sale deed.  P.W.9, therefore, failed to prove execution or attestation of the Will. Not only he  did not take any instruction from the testatrix before the Will was scribed, but the  same was done on the dictation of P.W.7. There is nothing on record to show that  the testatrix understood the meaning, purport and contents of the Will.  She had put  her thumb impression in his presence.  There is nothing on record to show that the  Will was read over and explained to the testatrix and she had put her thumb  impression upon understanding the contents and purport of the Will and put her  thumb impression as admission thereof.  A certificate to that effect was in ordinary  course required to be given by the scribe of the Will, particularly when the same  had been found to be given by him in the sale deed executed by her on the same  day which was marked as Ext.16. 15.     P.W.4-Purnachandra Rath, as noticed hereinbefore, gave a completely  different picture of the stay. According to him on 15.1.1982 the testatrix expressed  her desire to execute a Will as also a sale deed, whereupon he made a gist of the  contents of the Will and then asked P.W.9 to scribe it.   No draft of the Will was  prepared although drafts of the sale deeds were prepared.  Although in  his  deposition P.W.-4 contended that he had endorsed a certificate in the Will to the  effect that the Will was written by his clerk in his office on his direction, the  certified copy of the Will did not show the same.   A certificate to that effect  appeared in the Xeroxed copy of the Will which was brought on record and  marked at Ext.-13/a, but such a certificate did not find place in the certified copy of  the Will, and thus, no reliance can be placed thereupon.  

16.     The High Court in its judgment proceeded on the basis that P.W.-4 was also  a witness to the execution of the Will by the testatrix and thus would come within   purview of the definition of the term ’attesting witness’.

17.     So far as the deposition of P.W.7-Surendra Panda is concerned, he  contradicts P.W.-9 as according to him he was not present when the testatrix had  put her thumb impression and he had attested her thumb impression before she  gave her thumb impression. His evidence to the effect that the Will was read over  and explained to the testatrix does not find mention in the Will and even a  statement that three attesting witnesses signed the Will does not appear to be  correct as only the name of P.W.-7  and P.W.-9 appeared as attesting witnesses in  the Will. 18.     Learned counsel appearing on behalf of the respondents, however, would  submit that as the attesting witnesses were not willing to depose, it was not  necessary to prove attestation in terms of Section 71 of the Indian Evidence Act.  Summons were issued to the attesting witnesses by the Court.  One of the attesting  witnesses did not appear, P.W.9 appeared but he was declared hostile. Our  attention in this connection has also been drawn to a part of his statement in the  cross-examination where he has deposed as under:

       "\005 My Moharir licence might have been cancelled due to my  misconduct and illegal activities."

19.     It is not for this Court, as submitted by the learned counsel, to consider the  integrity and honesty of the said witness. According to the learned counsel, not  only P.W.4 should be treated to be an attesting witness, but must also be held to   have  proved  due execution of the Will.  20.     We may deal with the contention of the learned counsel in respect of  application of Section 71 of the Indian Evidence Act a little later. But, in our  opinion, P.W.-4 cannot be considered to be a witness to execution of the will as he  had nothing to do therewith.  He comes into the picture only because an

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endorsement was found on the Xerox copy of the Will which, in our opinion, is of  doubtful origin, keeping in view the fact that the same did not find a mention in the  certified copy thereof.  His evidence, in our opinion, would, thus, not be of much  significance. This aspect of the matter was not considered by the High Court at all.   We are, therefore, unable to agree with the following finding of the High Court:  "The attesting witnesses Purna Chandra Rath(P.W.4) Chandramani Das Mohapatra  and Banahihari Upadhay (P.W.9) were present when she affixed her LTI on the  Will. All the three attesting witnesses signed the Will in presence of Sarajumani  inasmuch as no reliance, whatsoever, can be placed on the testimony of  P.W.-4,  PW-4 is an advocate.  He is supposed to know the importance of attestation.  If he  intended to be an attesting witness, he could have done so.

21.     It was also not necessary for the appellants to confront him with his  signature in the Xeroxed copy of the Will, inasmuch as the same had not appeared  in the certified copy. Execution of a Will is required to be proved in terms of  Section 63 of the Succession Act, in terms whereof a Will must be attested by two  or more witnesses. Execution of a Will, therefore, can only be proved in terms of  clause (c) of Section 63 when at least one of the two witnesses proves the  attestation. A Will  is required to be attested by two or more witnesses, each of  whom has seen the testator sign or affix his mark to the Will. Section 68 of the  Evidence Act provides for the requirements for proof of execution of the Will.   In  terms of said provision, at least one attesting witness has to be examined to prove  execution of a Will. 22.     P.W.-9, as noticed hereinbefore in his deposition, stated that Sarajumani  Dasi did not put her thumb impression in his presence on the Will at the time of its  execution.  Whether the same would amount to denial of the execution of a Will  even within the meaning of Section 71 of the Indian Evidence Act is the question.   

23.     Section 71 of the Evidence Act reads as under:

       "71.   Proof when attesting witness denies the execution.-  If  the attesting witness denies or does not recollect the execution of the  document, its execution may be proved by other evidence."

24.     He neither denies the execution nor has failed to recollect the execution of  the Will.  According to him, the testatrix had put her LTI only after he had put his  signature. 25.     Section 71 of the Act provides for one of the exceptions where it is not  possible to strictly comply with the requirements of Section 68.  Sections 69, 70  and Section 71 are exceptions to Section 68. Section 69 provides for proof of a  document where no attesting witness is found. Section 70 provides for admission  of execution by party to attested document. Section 71 deals with a situation where  the attesting witness denies or does not recollect the execution of the document and  only in that eventuality, the document’s execution may be proved by other  evidence.

26.     As indicated hereinbefore, P.W.-9 does not deny the execution. His  statement, thus, does not satisfy the requirements of Section 63(c) of the  Succession Act.  While appreciating evidence of a witness, we cannot go beyond  the same and while doing so, we cannot raise a legal fiction that he must have done  so only because the first respondent had cross-examined him on certain issues.  By  cross-examining one’s own witness, the effect of his statement in examination-in- chief in a case of this nature cannot be ignored.  Whether Section 71 of the  Evidence Act was applicable in the facts of the present case must be found out  upon reading his evidence in its entirety.   

27.     Strong reliance has been placed by learned counsel on  Ittoop Varghese v.  Poulose and Others,  AIR 1975 Kerala 141.    The High Court in that case  proceeded on the basis that Section 71 of the Act would be attracted when a  witness deliberately and falsely denies that he had attested the Will and in a  situation of that nature, the Court would be entitled to look into the totality of the  circumstances so as to enable it to arrive at a conclusion on the question of  attestation.      In Ittoop Varghese case (supra),  the witnesses categorically stated  that they had not seen the testator signing and did not gather any personal  acknowledgement from the testator on his signature in the Will and further that

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they did not sign in the presence of the testator. It was a case where the statement  of the witnesses was found to be wholly false. It was found having regard to the  fact situation obtaining therein and in particular having been found that the testator  knew about the formalities for the due execution of a valid  Will which was also  corroborated by the endorsement made therein. The Kerala High Court,  furthermore, reassured itself from the other evidence that the testator had expressed  his desire to execute the Will and in fact wanted to assure himself  that no quarrel  should arise between his sons after his death regarding the Will or his signature  and only for that purpose he got it registered. It was furthermore noticed that the  Sub-Registrar who had registered the document, on his examination, affirmed that  the document was read over to the testator and the testator acknowledged his  signature in the Will and also signed in token of presenting the Will before the  Sub-Registrar. The Sub-Registrar had also signed it as one of the witnesses. When  a Sub-Registrar had signed the document as a witness and after that D.W. -5  had  signed as an attesting witness upon  execution of the document by the testator,  according to the High Court the circumstances of the case were sufficient to come  to the conclusion that there was proof of the due compliance of the formalities  required by Section 63 of the Succession Act in that case . 28.     We may notice that this Court in Janki Narayan Bhoir v. Narayan Namdeo  Kadam, [(2003) 2 SCC 91] laid down the law on interpretation and application of  Section 71 of the Act in the following terms:   "11. Section 71 of the Evidence Act is in the nature of a  safeguard to the mandatory provisions of Section 68 of the  Evidence Act, to meet a situation where it is not possible to  prove the execution of the will by calling the attesting  witnesses, though alive. This section provides that if an  attesting witness denies or does not recollect the execution of  the will, its execution may be proved by other evidence. Aid of  Section 71 can be taken only when the attesting witnesses, who  have been called, deny or fail to recollect the execution of the  document to prove it by other evidence. Section 71 has no  application to a case where one attesting witness, who alone  had been summoned, has failed to prove the execution of the  will and other attesting witnesses though are available to prove  the execution of the same, for reasons best known, have not  been summoned before the court. It is clear from the language  of Section 71 that if an attesting witness denies or does not  recollect execution of the document, its execution may be  proved by other evidence. However, in a case where an  attesting witness examined fails to prove the due execution of  will as required under clause ( c ) of Section 63 of the  Succession Act, it cannot be said that the will is proved as per  Section 68 of the Evidence Act. It cannot be said that if one  attesting witness denies or does not recollect the execution of  the document, the execution of will can be proved by other  evidence dispensing with the evidence of other attesting  witnesses though available to be examined to prove the  execution of the will\005"                                                                 (Emphasis supplied)

29.     Another vital aspect of the matter cannot also be ignored. Respondent No.1  in his evidence accepted that he had obtained the registered Will from the office of  the Sub-Registrar upon presenting ’the ticket’ on 30.1.1982.  After receipt of the  Will, he had shown it to Sarajumani Dasi. He did not say how the Will was lost,  particularly when he had not only shown the original Will to the testatrix  but also  had consulted a lawyer in relation thereto. No information was lodged about the  missing of the document before any authority. Even approximate point of time the  Will was lost, was not stated. In his cross-examination, he stated: "I cannot say  where and how the original will was lost."  

30.     Loss of the original Will was, thus, not satisfactorily proved.

31.     A document upon which a title is based is required to be proved by primary  evidence, and secondary evidence may be given under Section 65(c) of the

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Evidence Act.  The said clause of Section 65 provides as under:

"When the original has been destroyed or lost, or when the party  offering evidence of its contents cannot, for any other reason not  arising from his own default or neglect, produce it in reasonable  time."   

       Loss of the original, therefore, was required to be proved.

32.     In a case of this nature, it was obligatory on the part of the first respondent to  establish the loss of  the original Will,  beyond all reasonable doubt.  His testimony   in that behalf remained uncorroborated. 33.     Furthermore, secondary evidence, inter alia, could be led by production of  a  certified copy given in terms of the provisions of the Indian Registration Act.  In  support of the proof of the Will, purported Xerox copy and a certified copy thereof  have been produced. In the Xerox copy, an endorsement has been made by an  advocate that the executant was his client and it was written by his clerk in his  office on his dictation, whereas in the certified copy there is no such endorsement  of the advocate. 34.     A question has also been raised as to whether a certificate by Sub-Registrar  at the time of registration proves attestation. A Sub-Registrar in the matter of  registration of a document acts under the provisions of the Registration Act, 1908  (1908 Act).  Section 52 of the 1908 Act prescribes the duty of Registering Officer  when document is presented in terms thereof. The signature of every person  presenting a document for registration is required to be endorsed on every such  document at the time of presentation.  Section 58 prescribes the particulars to be  endorsed on documents admitted to registration, such as :

       "(a) Signature of the person admitting the execution of the  document;

       (b) Any money or delivery of goods made in presence of  Registering Officer in reference to the execution of the document shall  be endorsed by the Registering Officer in the document presented for  Registration.  

Therefore this is the only duty cast on the Registering authority  to endorse on the will, i.e. to endorse only the admission or execution  by the person who presented the document for registration. The  compliance of this provision leads to the legal presumption that the  document was registered and nothing else.."

35.     If  an authority in performance of a statutory duty signs a document, he does  not become an attesting witness within the meaning of Section 3 of the Transfer of  Property Act and Section 63 of the  Succession Act.  The term ‘attestation’ means:

       "to ‘attest’ is to bear witness to a fact. The essential conditions  of valid attestation are (i) two or more witnesses have seen the  executant sign the instrument (ii) each of them has signed the  instrument in presence of the executant.

36.     "Animus attestandi" is a necessary ingredient for proving the attestation.  If  a person puts his signature in a document only in discharge of his statutory duty, he  may not be treated to be an attesting witness. 37.     The Registering Officer Rabindranath Mohanty was examined as P.W.8. He,  in his deposition, stated: " \005. I asked the executant her name, the name of the person in whose  favour the Will was executed and the nature of the document. \005.. She  admitted before me that she has executed the Will after understanding  the full import of the admission of execution of the Will."

While registering the Will, the Registering Officer has endorsed:  "Execution is  admitted by the above Sarajumani Dasi who is identified by Sri Banabihari  Upadhyay S/o Harihar Upadhyaya, Advocate’s clerk of Bhubaneswar".

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38.    In Dharam Singh v. Aso and Another [1990 (Supp) SCC 684], this Court  held: "2. The two attesting witnesses did not support the execution of the  will. The trial court relied upon the statement of the registering  authority and on the basis of decisions of the Lahore and Punjab and  Haryana High Courts found that the will had been proved. The lower  appellate court reversed the decision by relying upon two decisions of  this Court in M.L. Abdul Jabhar Sahib v. H.V. Venkata Sastri & Sons   and Seth Beni Chand v. Kamla Kunwar.    3. We have examined the record and are satisfied that the appellate  court and the High Court were right in their conclusion that the  Registrar could not be a statutory attesting witness. Therefore, the  conclusion that the will had not been duly proved cannot be  disturbed."

39.     The said witness did not know the testatrix personally. Even her parentage  was not asked for and inquired into.  He was examined eight years after the  registration.  It is difficult for any ordinary person after a period of eight years,  inter alia, on the basis of a certified copy to depose in regard to evidence of such  nature, particularly, in a case where a Will has been executed on the day on which  she had executed a deed of sale in favour of a complete stranger.  His evidence,  therefore, does not inspire confidence. In any event he cannot be said to have  proved  due execution or attestation of the Will. 40.     It is now well settled that requirement of the proof of execution of a Will is  the same as in case of certain other documents, for example Gift or Mortgage.  The  law requires that the proof of  execution of a Will has to be attested at least by two  witnesses.  At least one attesting witness has to be examined to prove execution  and attestation of the Will.   Further, it is to be proved that the executant had signed  and/or given his thumb impression in presence of at least two attesting witnesses  and the attesting witnesses had put their signatures in presence of the executant.  (See Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85; Janki  Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 and Bhagatram v.  Suresh and Others, (2003) 12 SCC 35). 41.     The Court granting Letters of Administration with a copy of the Will  annexed, or probate must satisfy itself not only about the genuineness of the  Will  but also  satisfy itself that it is not fraught with any suspicious circumstances. 42.     No independent witness has been examined to show how the testatrix came  close to the respondent No.1. Why valuable agricultural land measuring Ac 4.187  and homestead land along with a house standing thereon had been gifted in favour  of the first respondent, has not been explained. The original Will has not been  produced. Why both the Will and the sale deed should have been executed on the  same day, has not been explained. 43.     The burden on the first respondent was heavy, he being a stranger to the  family. He failed to discharge the said burden. Variance, inconsistencies and  contradictions have been brought on record, particularly in the statements of P.W.- 4 and P.W.-9 and other witnesses vis-‘-vis the contents of the document, which we  have noticed hereinbefore. 44.     Learned trial Judge as also the High Court did not take into consideration the  effect of such contradictions and inconsistencies, particularly the  interpolation/variance in the Xerox copy of the Will vis-‘-vis certified copy  thereof.  Serious consideration was required to be bestowed on the contention of  the appellants that thumb impressions of the testatrix on different pages of the  Xerox copy did not tally.  No effort was made to compare the thumb impression  appearing on the Xerox Copy with the thumb impression appearing on other  admitted documents.  Non-production of the original Will  stating that the Will got  lost,  gives rise to an inference that it might have been that the Will did not contain  the thumb impression of the testatrix.  The testatrix was an old and ill lady. She  had no independent adviser in the matter of the execution of the Will. On the other  hand, the plaintiff/respondent No.1 and his father being disciple of her Guru were  in a position to dominate her mental process. 45.     Respondent No.1 was a student at the relevant time. His father had taken an  active part in the entire process in registering and culmination of the Will in   favour of his son. There are materials on record to show that although sufficient

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time had been granted for examination of the other attesting witnesses,  Chandramani Das Mohapatra was not summoned.   No summon could be issued  only because his correct address had  not been furnished.  46.    Existence of suspicious circumstances itself may be held to be sufficient to  arrive at a conclusion that execution of the Will has not duly been proved.

47.     In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) By  LRs. And Others [(1995) 4 SCC 459], this Court opined: "8. If a total view is taken of the aforesaid circumstances,  which has to be the approach, we are of the opinion that  the courts below overplayed some circumstances which  they regarded as suspicious and somehow missed some  circumstances which bolstered the case of the  propounders."   48.     We may, however, notice that in B. Venkatamuni v. C.J. Ayodhya Ram  Singh & Ors. [2006 (11) SCALE 148], this Court upon considering a large number  of decisions opined that proof of execution of Will must strictly satisfy the terms of  Section 63 of the Indian Succession Act.  It was furthermore held:

       "It is, however, well settled that compliance of  statutory requirements itself is not sufficient as would  appear from the discussions hereinafter made."

       It was observed:

"Yet again Section 68 of the Indian Evidence Act  postulates the mode and manner in which proof of  execution of document required by law to be attested  stating that the execution must be proved by at least one  attesting witness, if an attesting witness is alive and  subject to the process of the Court and capable of giving  evidence."

       It was emphasised that where there are suspicious circumstances, the onus  would be on the propounder to remove the suspicion by leading appropriate  evidence stating: "However, having regard to the fact that the Will was  registered one and the propounder had discharged the  onus, it was held that in such circumstances, the onus  shifts to the contestant opposing the Will to bring  material on record meeting such prima facie case in  which event the onus shifts back on the propounder to  satisfy the court affirmatively that the testator did not  know well the contents of the Will and in sound  disposing capacity executed the same.

       Each case, however, must be determined in the fact  situation obtaining therein.   

       The Division Bench of the High Court was, with  respect, thus, entirely wrong in proceeding on the  premise that compliance of legal formalities as regards  proof of the Will would sub-serve the purpose and the  suspicious circumstances surrounding the execution  thereof is not of much significance.

       The suspicious circumstances pointed out by the  learned District Judge and the learned Single Judge of the  High Court, were glaring on the face of the records.   They could not have been ignored by the Division Bench  and in any event, the Division Bench should have been  slow in interfering with the findings of fact arrived at by  the said court.  It applied a wrong legal test and thus,

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came to an erroneous decision."

49.     Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors.  [2006 (14) SCALE 186], this Court held: "Section 63 of the Indian Evidence Act lays down  the mode and manner in which the execution of an  unprivileged Will is to be proved.  Section 68 postulates  the mode and manner in which proof of execution of  document 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 Indian 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.   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  Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja  Shetty & Ors. (2005) 8 SCC 784]. Subject to above,  proof of a Will does not ordinarily differ from that of  proving any other document."

       Noticing B. Venkatamuni (supra), it was observed:         "The proof a Will is required not as a ground of  reading the document but to afford the judge reasonable  assurance of it as being what it purports to be.

       We may, however, hasten to add that there exists a  distinction where suspicions are well founded and the  cases where there are only suspicions alone.  Existence of  suspicious circumstances alone may not be sufficient.   The court may not start with a suspicion and it should not  close its mind to find the truth.  A resolute and  impenetrable incredulity is demanded from the judge  even there exist circumstances of grave suspicion.  [See  Venkatachala Iyengar (supra)]"         [See also Joseph Antony Lazarus (Dead) By LRs. V. A.J. Francis, (2006) 9  SCC 515] 50.     For the reasons aforementioned, the impugned judgment cannot be sustained  which is set aside.  Accordingly, the appeal is allowed with costs. Counsel’s fee  assessed at Rs.5,000/-.