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PETITIONER: RANI PURNIMA DEVI AND ANOTHER

       Vs.

RESPONDENT: KUMAR KHAGENDRA NARAYAN DEV AND ANOTHER

DATE OF JUDGMENT: 22/08/1961

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GUPTA, K.C. DAS DAYAL, RAGHUBAR

CITATION:  1962 AIR  567            1962 SCR  Supl. (3) 195  CITATOR INFO :  F          1964 SC 529  (4)  F          1974 SC1999  (7)  R          1982 SC 133  (7,8)  F          1990 SC 396  (21)

ACT: Will-Proof-Suspicious  circumstances surrounding  execution- Registration of Mill, if dispels all suspicions.

HEADNOTE: One  K  filed  an application for the grant  of  letters  of administration  with the will attached.  This will gave  the entire  property to K, a distant relation of  the  testator, subject  to K maintaining the testator’s widow  and  sister; other  relations  including  the  testator’s  daughter  were completely   left   out.   There   were   other   suspicious circumstances surrounding the will viz., that the testator’s signatures were not his usual signatures and were not in the same ink as the rest of the will and that the testator  used to sign blank papers for use in his cases in court and  used to  send them to his lawyer through his servants.  The  will was  later registered without the testator appearing  before the  sub-registrar  and the sub-registrar only  sending  his clerk to the residence of the testator for the purpose.  Out of  16  persons who signed the will as  attesting  witnesses only  4  were produced to prove the will.  The  trial  court held  that  the  will was duly  executed  and  attested  and ordered the issue of letters of administration with the will annexed to K. ’On appeal the High Co t affirmed the order of the  trial court holding that the  suspicious  circumstances were dispelled by the registration of the will. Held,  that  the due execution and attestation of  the  will were not proved.  In view of the suspicious circumstances it was  the  duty of the propounder of the will  to  prove  due execution  and  attestation by satisfactory  evidence  which would  lead the court to the conclusion that the  suspicious circumstances had been dispelled.  This he had failed to do. The  four attesting witnesses produced were  interested  and unreliable; none of the independent witnesses who bad signed the  will  were produced.  The mere fact that the  will  was registered  was  not  by itself  sufficient  to  dispel  the

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suspicions without scrutiny of the evidence of registration. Registration would dispel the doubt as to the genuineness of the  will only if it was made in such a manner that  it  was brought  home to the testator that the document of which  he was admitting execution was a will disposing of his property and  the  testator  thereafter admitted  its  execution  and signed  in token thereof.  In the present case,  the  regis- tration  was done in a perfunctory manner and  the  evidence did  not establish that the testator knew that the  document the 196 execution  of which he admitted before  the  sub-registrar’s clerk  was  his  will.   The  witnesses  produced  to  prove registration,  even   if  they  are  treated  as   attesting witnesses, failed to prove due    execution and  attestation of the will. H.Venkatachala Iyengar v. B. N. Thimmajamma, (1959) Supp. 1 S. C. R.1426, applied.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 373/587  Appeal by special leave from the judgment and decree  dated February  2, 1954, of the Assam High Court in  First  Appeal No. 19 of 1950 (Probate). S.   P. Desai and Naunit Lal, for the  appellants. K.   R. Krishnaswami, for respondent No. 1. 1961.   August,22.  The judgment of the Court was  delivered by WANCHOO,  J.-This is an appeal by special leave against  the judgment of the Assam High Court in a probate matter.   The main appellant is Rani Purnima- Debi widow of Kumar  Chandra ’Narayan.   Deb (hereinafter called the testator), who  died in  June  1946.   The second  appellant  is  the  testator’s married  daughter.   And  application  was  made  by   Kumar Khagendra  Narayan  Deb  (hereinafter  referred  to  as  the respondent) before the District Delegate, Gauhati in  August 1946  for grant of letters of administration with  the  will annexed.   The case of the respondent was that the  testator had  executed,a.will on December 29, 1943, in favour of  the respondent by which the, testator gave his ,entire  property to  the respondent subject to the  respondent’s  maintaining the  testator’s widow and sister.  Objections were filed  on behalf  of  the  appellants  to  the  grant  of  letters  of administration  on the basis of the will propounded  by  the respondent  and  three  main  grounds  were  urged  in  that connection,  namely-(i)  that  the will  was  not  duly  and legally.executed and attested, (ii) that the testator had no sound  disposing mind at the time he executed the will,  and (iii) that the will was the ’,outcome of unite influence and coercion   exercised by  the  respondent.    While   ’the application of the 197 respondent  was pending, another application for probate  of another  will said to have been executed by the testator’  a few  months  before his death was made  by  Kumar  Dwijendra Narayan Deb.  The appellants- objected to that will also  on the  same grounds and further added that will was a  forgery ’Dwjendra  Narayan  did not dispute the  execution  ’of  the will.  in favour of the respondent but contended  that  will had  been  revoked  by the later will in  his  favour.   The respondent, however contended: that the ’.will in favour  of Kumar Dwijendra Narayan.Deb’ was a for The  two  suits  arising out of  the  two  applications  for

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probate  were. eventually tried together by the  Subordinate Judge  at  Gauhati.  He held that the,  will  propounded  by Kumar  Dwijendra Narayan Deb was not genuine  and  therefore dismissed  his  application.  As ’to the win  propounded  by the,  respondent it was held that it was duly  executed  and attested and was made by the testator at a time when he  had sound  disposing   state of mind and that  it  was  not made under  any undue influence and coercion.   Consequently  the application  of  the respondent was allowed and  letters  of administration  With  the  copy of the  will  annexed  were ordered to be issued to him. This  was followed by three appeals to the High Court.   One of  the  appeals  was by the  present  appellants  and  they contested  the issue of letters of administration in  favour of  the  resp ondent  the other two appeals  were  by  Kumar Dwijendra Narayan Deb.  By one appeal he contested the issue of  letters of administration to the respondent and  by  the other  he  contested the finding of’ the  Subordinate  Judge that the will propounded-by him was not genuine.  The  three appeals were heard by the High Court together and it  upheld the  finding of the trial court that the will in favour  of Dwijendra  Narayan was not genuine ; in  consequence,  the,. two appears filed by him were dismissed.  This order of  the High Court has become final and 198 we  are not concerned in the present appeal with   the  will propounded  by  Dwijendre, Narayan.  In the appeal.  by  the appellants, the High Court upheld the findings of the  trial court  and  dismissed  the  appeal.   The  High  Court   was conscious  of  the fact that there were  certain  suspicious circumstances  attending  the  execution of the  ,  will  in favour of the respondent, but it held that as the will  pro- pounded  by the respondent was later registered  in  January 1944 ’the suspicion attending the execution of the will  was dispelled  by  the  fact of registration.   The  High  Court therefore  held that due, execution and attestation of   the will  had  been  proved  and it was  also  proved  that  the testator was of sound disposing state of mind at the time of the  execution  and that there was no  undue  influence,  or coercion  exercised  on the testator by  the  respondent  in connection with the execution of the will. The  appeal  before the High Court was heard by  a  Division Bench  and separate but concurring judgments were  delivered by  the learned Judges composing the Bench.  Ram Labhaya  J. who delivered the main judgment was not we much impressed by the alleged suspicious circumstances and held that  whatever suspicion  there might be was dispelled by the fact  of  the registration of the will later.  The learned Chief  Justice, who  was the other Judge, and who substantially agreed  with Ram  Labhaya  J.  was more impressed  by  the  existence  of suspicious  circumstances  relating  to  the  execution  and attestation   of  the  will  even  so  he  held   that   the registration  of  the  will was a  complete  answer  to  the suspicious circumstances which undoubtedly existed in  this. case.   In  the  event both the  learned  Judges  agreed  in dismissing  the appeal.  Eventually the appellants  came  to this  Court by way of special leave which was granted ;  and that is how the matter has come up before us. Before we consider the facts of this case it is well to  set out the principles which govern the, 199 proving  of a will.  This was considered b this Court in  H. Venkatachala  Iyengar  v.  B.  N.  Thimmajamma(1).   It  was observed  in that case that the mode of proving a  will  did not  ordinarily  differ  from  that  of  proving  any  other

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document except as to the special requirement of attestation prescribed  in  the  case of a will by s.63  of  the  Indian Succession  Act.   The onus of proving the will was  on  the propounder  and in the absence of  suspicious  circumstances surrounding the execution of the will proof of  testamentary capacity  and signature of the. testator as required by  law was sufficient to discharge the onus.  Where, however, there were’  suspicious  circumstances, the onus would be  on  the propounder to explain them to the satisfaction of the  Court before  the  will  could be accepted  as  genuine.   If  the caveats alleged undue influence, fraud or coercion, the onus would be on him to prove the same.  Even where there were no such  plea,% but the circumstances gave rise to  doubts,  it was  for  the propounder to satisfy the  conscience  of  the Court.  Further, what are suspicious circumstances was  also considered  in  this  case.  The alleged  signature  of  the testator  might be very shaky and doubtful and  evidence  in support  of  the  propounder’s case that  the  signature  in question was the signature of the testator might not  remove the  doubt created by the appearance of the signature.,  The condition  of  the testator’s mind might appear to  be  very feeble  and  debilitated  and  evidence  adduced  might  not succeed  in removing the legitimate doubt as to  the  mental capacity of the testator ; the dispositions made in the will might  appear to be unnatural, improbable or unfair  in  the light  of  relevant  circumstances ; or  I  the  will  might otherwise  indicate that the said dispositions might 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 was accepted as the  last will of (1)  [1959] supp. 1 S.C.R.426. 200 the testator.,, Farther, a propounder himself might take  a prominent part in the execution of the will which, conferred on  him  substantial  benefits.   If  this  was  so  it  was generally treated as a suspicious circumstance attending the execution  of  the will and the propounder was  required  to remove  the doubts by clear and satisfactory evidence.   But even  where’  there were suspicious  circumstances  and  the propounder succeeded in removing them, the Court would grant probate though the will might be unnatural and might cut off wholly or in part near relations. It  was urged before us that in view of concurrent  findings of  the courts below we should be slow to disturb them.   In view, however, of the suspicious circumstances noted by  the High Court and some differences in ’the approach of the  two learned,Judges  composing  the Bench, we  permitted  learned counsel  for parties to go into the entire evidence so  that we may be able to judge whether the High Court was right in its  conclusion that the fact of registration had  dispelled all suspicions. Let  as now turn to the, facts relating to the execution  of this  will.   We’ have already pointed out  that  the  High Court   was  of  the  view  that  there.,  were   suspicious circumstances  attending the execution of the will and  that it was an unnatural will.  The testator left behind him  his widow  and his married daughter (who are  appellants  before us)  and  an unmarried sister who was  dependent  upon  him. Besides these, the testator had a number of other  relations who were much nearer to him than the respondent.  Even if we leave  out  of account the married daughter  and  the  other nearer   relations,  the  widow-,’and,  the,   sister   were certainly expected to be properlyprovided   for   by   the testator.  It is not in dispute thatthe        relations

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between the testator and his wife and sister were good.   In these circumstances we should have expected something better than  what is provided in the will for those two.  All  that the will says is that the wife and the 201 sister would be suitably maintained by the respondent during their  life-time.   No amount is specified which  should  be given  to these two ladies as maintenance and no  charge  is created  on the properties left by the testator  which  were considerable.   In effect, the two ladies were left  to  the tender  mercies  of the respondent in the  matter  of  their maintenance.   Further the result of this will is  that  the daughter  would be completely disinherited.  The testate  or had a number of children but all have died many years before and  only one daughter was alive at the time of  his  death. She was married and on behalf of the propounder it is   Raid that the relations between the testator and her husband were not  very happy.  The evidence, however, does not show  that the  relations between the testator and his son-in-law  were particularly  strained at the time of the execution  of  the will.  In any case there is no satisfactory evidence to show that  relations between the testator and his  daughter  were bad  even  if the relations between him and  his  son-in-law were  not of the best.  In the circumstances we should  have expected  the  testator  to  make  some  provision  for  the daughter,  particularly  when it is said that  she  was  not well-off.  There is no doubt therefore that the will is most unnatural  and that is a suspicious circumstance which  must be  satisfactorily explained before the respondent  can  get letters of administration. Another suspicious circumstance is that the respondent  gets the  sole benefit under the will subject to the  maintenance of the wife and the sister and he was certainly taking  part in  the execution of the will on the date it  was  executed. In such ,circumstances the respondent was required to remove the  said  suspicion  by clear  and  satisfactory  evidence. Whether  he  has  done so or not will be  considered  by  us later. Another suspicious circumstance is that the signature of the testator does not appear to be his usual signature.  That is why a lot of questions                             202 were put to the witnesses whether the testator    signed the will with his left hand or right hand and evidence was  also given  that the right hand of the testator had been  injured sometime before. Another  suspicious circumstance is that it has been  proved in this case that the testator used to sign blank papers for use  in  his  cases in court and used to send  them  to  his lawyer through his servants and these papers could be in the possession  of Rameswar Sarma, the lawyer of  the  testator, who has appeared as a witness to prove the will and who was, according to his evidence, consulted by the testator in this matter.   Such papers could also be found in the  possession of  the testator’s mukhtars.  Therefore it was  possible  to manufacture a will on papers already signed by the  testator ; and that is certainly a suspicious circumstance which  had to be overcome in this case. Lastly, the High Court has noticed that the signature of the testator is not in the same ink and may not be with the same pen  with  which  the  body of the  will  is  written.   The difference in ink may not ordinarily be a matter for various suspicion;  even so it has to be explained in  the  peculiar circumstances of this case when blank papers containing  the testator’s signature were available.

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Let  us  now turn to the proof of execution  that  has  been given  in  this case to see if the suspicions  raised  above have been dispelled.  The will was alleged to be executed at Na-hawli.   It  bears the signatures of as many  as  sixteen persons  as  attesting witnesses ; but of these  only  three were  examined on behalf of the respondent.  The  respondent also  appeared  in the witness box.  These  three  attesting witnesses  are Biswanath Bhattacharya, Rameswar  Sarma,  and Kulendra   Narayan   Deb.   None  of  these   witnesses   is independent and it was certainly possible for the respondent to produce other witnesses out of the sixteen who                             203 would  not  be so interested in him.   Bhattacharya  is  the Purohit  of  the respondent and that obviously makes  him  a person  interested in the respondent.  Ku  Kulendra  Narayan Deb  is the first cousin of the respondent and  therefore  a near  relation  who would be interested  in  him.   Rameswar Sarma is a lawyer.  He was admittedly working for the  test- ator  as  such  during his  life-time.   He  was  questioned whether  after the death of the testator he had  become  the lawyer  of the respondent.  He denied that.  Obviously  this must  have been done by him with the idea of posing that  he was  an  independent witness; but  his  son-in-law  Dayanand Goswami,  who  had  already  appeared  for  the  respondent, admitted   that  Sarma  was  the  present  pleader  of   the respondent.   It  is obvious therefore that Sarma  tried  to pose as an independent witness by. denying what his  son-in- law  had  already  stated  about  his  connection  with  the respondent.  In the circumstances he cannot also be held  to be a disinterested witness, which he tried to be.   Besides, none of these three witnesses belong to Na-hawli, where  the execution  of the will took place.  The evidence also  shows that  among the sixteen persons who attested the will  there were persons who were both independent and respectable  like Banshidhar Goswami, a doctor, Jammi-ud-din, an elder of  the village  and Baneswar Deka, a retired Sarishtedar ;  but  no attempt  was made to produce these witnesses to  dispel  the suspicion  arising  from  the circumstances  which  we  have already mentioned. Apart  from  the  witnesses  being  interested,  the  actual evidence  given by them also does not in our opinion  dispel the  suspicion  aroused  in this  case.   Bhattacharya,  for example,  said that he had been invited by the  testator  to attend the adoption of respondent as his son and he went  on that  date  to Na-hawli for that purpose.  He  further  said that  he had gone on a cycle straight to Na-hawali  and  did not meet anyone on the way.  It seems strange 204 that this witness should have been invited to be present  at an  adoption when what the testator was intending to do  was to  execute  a will.  Probably it was felt  that  a  Purohit would  be  more  likely to be invited  to  an  adoption  and therefore  this  story  was  put  in  his  mouth.    Further Bhattacharya is contradicted by the respondent and  Kulendra Narayan  who  say  that Bhattacharya  had  been  staying  at Kulendra  Narayan’s place for two days before and  had  gone from  there to Na-hawli with the respondent and  his  father and Kulendra Narayan.  The story therefore that Bhattacharya was invited by the testator is obviously false and if he did go  to  Na-hawli  it must have been in the  company  of  the respondent and his father whose Purohit he was. As to the execution itself the witnesses differ on one  very important  matter.  Bhattacharya said that the wife  of  the testator  was also present at the execution of the will  and raised  no  objection.   He  was  asked  if  any  one  there

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suggested that she should also sign and he said that he  did not  remember.  Kulendra Narayan also said that the wife  of the testator was present when the will was executed and  did not  object.  He even went to the length of saying that  she said  that what her husband wanted to do had been  done  and the  respondent  was her son also.  The  respondent  on  the other hand says that the wife of the testator along with the other  women was sitting in the doorway of a room  adjoining the  portico.   He  does not suggest that the  wife  of  the testator   was   present  while  the  will   was   executed. Similarly,  Rameswara Sarma stated that the  appellant  Rani was  in the adjoining house about 20 yards away and did  not come  near her husband when the will was executed.  Now  the fact whether the appellant Rani was present or not when  the will  was executed was of great importance and of  the  four witnesses  who have deposed about the execution of the  will including  the respondent, two say one thing and  the  other two say something                             205 quite  contradictory.  In these circumstances the  inference would be that the story about the execution has been made up and  that  is  why  there  are  contradictions  on  such  an important  mater.  In any case there  contradictions  hardly help  to dispel the suspicion aroused by  the  circumstances already mentioned above, A good deal of reliance has been placed on the statement  of Rameswar  Sarma who has been practicing as a  pleader  since 1929 and became an advocate sometimes in 1948/1949.  He  was counsel  for the testator for the last few years before  his death.    Ordinarily,  therefore,  his  evidence  would   be entitled to great weight because of his connection with  the testator and his standing is a lawyer, and if it is accepted much  of the suspicion might be dispelled, for he has  given explanations as to why the testator made such a will and has also referred to the advice tendered by him to the  testator in this connection to provide something more beneficial  for the  daughter,  the wife and the sister and  the  testator’s refusal  to  do  so.  But we should  have  expected  from  a witness of this kind strict regard for truth and if ’we were sure  that the witness had strict regard for truth we  might have  believed  his statement.  As we have  already  pointed out,  however  this  witness does not appear  to  have  much regard for truth and tried to pose as an independent witness by  denying  that  he  was  working  as  a  lawyer  for  the respondent, when his son-in-law had already admitted that he was  the  present  pleader  of  the  respondent.   In  these circumstances we can place no reliance on his evidence,  for if  he  was  capable  of denying  his  connection  with  the respondent  he-  can  be  capable  of  colluding  with   the respondent in manufacturing the will on signed blank  papers which were admittedly available to him and others.   Looking at  the  evidence of the three attesting witnesses  and  the respondent  broadly,  we  must say that  evidence  does  not dispel the suspicion as to the due execution and attestation of this will. 206 The  High  Court  was also conscious of  the  fact  hat  the evidence as to the execution and attestation of the will was not  very adequate, for the learned chief  Justice  observed that the evidence on the point of actual execution might not be  very adequate; but the view taken by the High Court  was that  more  evidence  was  not  necessary  in  view  of  the pleadings of the parties.  In this connection the High Court relied on Dwijendra Narayan Deb’s acceptance of the will  in favour  of  the  respondent.  This in our  opinion  was  not

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justified  so far as the appellants were concerned,  for  an admission of Diwijendra Narayan Deb who must now be held  to have  put  forward  a  forged will could  not  be  an  added circumstance  to support the inadequate evidence led by  the respondent.   We  are further of the opinion that  the  High Court  was not justified in executing the inadequacy of  the evidence  to prove the due execution and attestation of  the will  on the basis of the pleadings of the parties.   It  is true  that the appellants did not say in so many words  that the will propounded by the respondent was a forgery as  they did about the will propounded by Dwijendra Narayan Deb; even so the appellants had put the respondent to strict proof  of due  and  legal execution and attestation of  the  will  and there  was  an issue to that effect.  This was  not  a  case where  the  due and legal execution and attestation  of  the will  was  admitted  and the only  disputes  were  that  the testator  had  not a sound disposing state of  mind  or  had acted  under  undue  influence  or  coercion.   Though   the appellants  did not go to the length of  characterising  the will  as  a  forgery as they did in the  case  of  the  will propounded  by  Dwijendra Narayan, they  certainly  put  the respondent  to strict proof of legal and due  execution  and attestation  of the will.  In such circumstances it was  the duty  of  the respondent, particularly in  the  presence  of auspicious  circumstances which have been noted by the  High Court,  to  prove the due execution and attestation  of  the will by 207 satisfactory   evidence  which  would  lead  Court  to   the conclusion  that  the  suspicious  circumstances  had   been dispelled.   We do not see how the evidence which  has  been characterised by the High Court as inadequate would  suffice to dispel the suspicious circumstances which undoubtedly are present  in this case.  We have no hesitation in  coming  to the conclusion, apart from the question of registration with which  we shall deal presently, that it the  evidence  which has  been  produced  in  this case  were  all  the  evidence available to prove the due execution and attestation of  the will, there could be no doubt that the respondent had failed to satisfy the Court and dispel the suspicious circumstances which were undoubtedly present in this case. Let  us now turn to the registration of the will, for it  is on the registration that the High Court has relied  strongly to  dispel  whatever it also considered suspicious  in  this case.   The  contention  of  Mr.  Desai  on  behalf  of  the appellants in this connection is that registration may be an added circumstance in favour of the genuineness of the  will and  may  be  taken  into  account  in  considering  whether suspicious  circumstances had been dispelled, but  the  High Court  was  not right on the facts of this case  in  relying mainly  on  the  registration to hold  that  all  suspicions relating  to this unnatural will had been dispelled.   There is  no  doubt that this will was registered on  January  27, 1944, and there is an endorsement on the will to the  effect that the testator had admitted the execution of it.  It will therefore  be  necessary to examine the  circumstances  more closely than the High Court seems to have done in this case. It appears that an application was made by the  mukhtar-i-am of the testator (and not by the testator himself) on January 16,  1944, before the Sub-Registrar for registration of  the will on commission.  The Sub-Registrar himself did not go to execute  the  commission  but  sent a  clerk  of  his  named Arabali, though the reason given in the application for  the issue of 208

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commission  viz.,  respectability was not justified  in  law and no commission should have been issued at all. This clerk was  apparently  a resident of the same area  in  which  the testator  was  living  and knew him from before.   It  is  a matter worthy of note in the circumstances of this case  the person who went to inquire from the testator whether he  had executed  the  will was not the  Sub-Registrar  himself  who would be a more responsible officer than his clerk.  Anyhow, the  evidence  of the clerk is that he  found  the  testator quite hale and hearty.  The testator came out from the inner apartment  to  the verandah of the house  and  admitted  the execution of the will. Thereafter the testator signed at the bottom  of  the  will in token of his  having  admitted  the genuineness  of  the will and Dehiram  Bora  identified  the testator. Thereafter Arabali took the document to the office of  the Sub-Registrar and it was registered.  It is on  this registration  that the High Court has relied  very  strongly for dispelling the suspicion arising in this case. Before we consider the evidence on this aspect of the matter further,  we should like to refer to a point which seems  to have  weighed  with the High Court in judging the  value  of registration.   The High Court thought that  four  witnesses signed the will at the time of its registration.  It is  not quite  clear  what  the High Court  meant  by  this,  namely whether  the  High Court thought that these  four  witnesses also  attested  the  will  ;  but  a  perusal  of  the  will transcribed  in  the record (Ex. 3) shows that this  is  not correct, for the only person who signed at the bottom of the will  at  the time of the visit of Arabali  besides  Arabali himself and the testator, was Dehiram Bora.  Learned counsel for  the  respondent was unable to satisfy us how  the  High Court  got the impression that four witnesses had signed  at the bottom of the will presumably as a matter of attestation when  the  registration clerk came on commission.   We  must therefore proceed on the footing that the High Court was not                             209 right  in  the view that four persons had signed  the  will, whatever that may mean, when Arabali came for registration ; and  insofar  as the High Court judgment was  influenced  by this circumstance, it suffers from an infirmity. However, let us look at what actually happened when  Arabali came  for  the  registration of  the  will.   Arabali’s  own statement on this point is that he examined Chandra  Narayan Deb  (i.e.  the  testator) at  Majikuchi  who  admitted  the execution of the will.  This is all that Arabali has said in this  connection.  There is nothing in the evidence to  show that  the will was read over to the testator or was read  by him before he admitted execution of it.  What exactly passed between  Arabali and the testator at this time has also  not been  given  by Arabali and the exact words used by  him  in this connection and the exact reply of the testator are also absent  from  the evidence.  It is true that it  is  broadly stated by Arabali that he examined the testator who admitted the  execution of the will.  That in our opinion  is  hardly sufficient  in  a case of this kind to  dispel  the  serious suspicion   which   attaches  to  the  due   execution   and attestation  of this will.  Further the evidence of  Arabali is  that Dehiram Bora identified the testator.  That is  all the  part assigned by Arabali to Dehiram Bora,  besides  the fact  that  Dehiram Bora signed at the bottom  of  the  will thereafter.   Arabali  does not say that  Dehiram  Bora  was present when the testator had admitted the execution of  the will  or that the testator signed at the bottom of the  will in  the presence of Dehiram Bora and Dehiram Bora signed  it in  the presence of the testator.  of course,  Arabali  does

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say  that the testator signed at the bottom of the  will  in his  presence, though he does not say that he signed  it  in the  presence  of the testator.  We are  referring  to  this aspect  of the matter, for it. has been urged that  even  if the execution and attestation of December 29, 1943, is, open 210 to  doubt  the  will must be held to be  duly  executed  and attested before Arabali and Dehiram Bora. Coming  now  to the evidence of Dehiram Bora,  he  began  by saying  that he was present when the will in favour  of  the respondent  was executed by the testator.  Exactly  what  he meant  by this is not clear because he was  undoubtedly  pot present  when  the will was executed on December  29,  1943. However,  he  went  on  to say that  it  was  registered  in Majikuchi.    He   identified  the   testator   before   the registration clerk, Arabli, there.  After identification  be signed at the bottom of the document as identifier.  Thus in his examination-in-chief Dehiram Bora merely stated that  he signed  at the bottom of the will as an identifier  and  did not  say that Arabali had put any questions to the  testator about  the  execution  of the will, and  that  the  testator admitted  the execution.  In cross-examination he said  that the  testator  signed in his presence at the bottom  of  the will.   He, however, never said that the will was read  over to  the  testator or was read by him and that  the  testator admitted the execution of the will to him and thereafter  he signed  the will at the bottom.  Thus all that one finds  is that he signed as a person who identified the testater. If  therefore  these  two  witnesses,  namely,  Arabali  and Dehiram  Bora are to be treated as attesting  witnesses  for the  purpose of s.63 of the Indian Succession Act, 1925  (39 of 1925), it is clear that they completely fail to prove due execution  and attestation of the Will as required  by  that section.   So  all that we come to is that there is  a  bald statement  of  Arabali to the effect that’ he  examined  the testator who admitted the execution of the will and there is the  statement  of  Dehiram  Bora  that  at  that  time   he identified the testator before Arabali.  It is on this  that the will was later registered by the Sub-Registrar. We  may refer to one more circumstance that has  been  urged before us.  It is said that the will 211 undoubtedly  existed  in January 1944 as  evidenced  by  its registration.  Therefore, if this was not a genuine will  of the testator he would have taken steps to revoke it, for  he died  almost  21 years after the registration of  the  will. This,  however,  assumes  that  the  testator  knew  of  the existence of this will.  If he did not know of the existence of this will there would be no question of his revoking  it, however  long  afterwards  he  might  have  died.   Now  the evidence  that  the testator knew of the existence  of  this will consists only of what happened on December 29, 1943 and on the date when Arabali went to Majikuchi on commission  in connection  with  the  registration of the  will.   We  have already  dealt with the evidence with respect to  these  two dates  and  if that evidence is insufficient  to  prove  due execution and attestation of the will, as we hold it is,  it would  also be insufficient to show that the  testator  knew after the end of January 1944, that such a will existed.  In the  absence, therefore, of the knowledge of  the  testator, about  the existence of this will, this  circumstance  loses all its force. There is no doubt that ’if a will has been registered,  that is   a  circumstance  which  may,  having  regard   to   the circumstances,  prove  its genuineness.  But the  mere  fact

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that  a will is registered will not by itself be  sufficient to dispel all suspicion regarding it where suspicion exists, without  submitting the evidence of registration to a  close examination.  If the evidence as to registration on a  close examination reveals that the registration was made in such a manner  that  it was brought home to the testator  that  the document  of  which he was admitting execution  was  a  will disposing  of  his property and thereafter he  admitted  its execution  and signed it in token thereof, the  registration will  dispel  the doubt as to the genuineness of  the  will. But  if  the evidence as to registration shows that  it  was done  in a perfunctory manner, that the officer  registering the will did not read it over to the testator or did not 212 bring  home to him that he was admitting the execution of  a will  or did not satisfy himself in some other way (as,  for example,  by seeing the testator reading the will) that  the testator  knew that it was a will the execution of which  he was  admitting, the fact that the will Was registered  would not  be of much value.  It is not unknown that  registration may take place without the executant really knowing what  he was  registering.   Law reports are full of cases  in  which registered wills have not been acted upon (see’ for example, Vellasaway Sarvai v. L. Sivaraman Servai, (1) Surendra  Nath Lahiri v. Jnanendra Nath Lahiri ( 2 )and Girji Datt Singh v. Gangotri  Datt  Singh)(3).   Therefore,  the  mere  fact  of registration  may  not  by itself be enough  to  dispel  all suspicion  that may attach to the execution and  attestation of a will; though the fact that there has been  registration would  be  an important circumstance in favour of  the  will being genuine if the evidence as to registration establishes that  the testator admitted the execution of the will  after knowing  that  it was a will the execution of which  he  was admitting. The  question therefore is whether in the  circumstances  of the  present case the evidence as to registration  discloses that  the testator knew that he was admitting the  execution of a will when he is said to have put down his signature  at the bottom of the will in the presence of Arabali.  We  have scrutinized that evidence carefully and we must say that the evidence  falls short of satisfying us in the  circumstances of  this case that the testator knew that the  document  the execution  of which he was admitting before Arabali  and  at the  bottom of which he signed was his will.   Therefore  we are  left  with the bald fact of registration which  in  our opinion is insufficient in the circumstances of this case to dispel the suspicious circumstances which (1)  (1930) I.L.R. 8 Ran. 179. (2)  A.I.R. 1932 Cal. 574. (3)  A.I.R. 1955 S.C. 346. 213 we  have enumerated above.  We are therefore  not  satisfied about the due execution and attestation of this will by  the testator  and  hold that the propounder has been  unable  to dispel  the  suspicious  circumstances  which  surround  the execution   and   attestation   of  this   will.    In   the circumstances, no letters of administration in favour of the respondent can ’be granted on the basis of it. We therefore allow the appeal, set aside. the .judgments  of the  High  Court and the trial court and  dismiss  the  suit arising  out  of  the application for probate  made  by  the respondent.  The appellants will get their cost,% throughout from the respondent, Kumar Khagendra Narayan Deb. Appeal allowed.

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