Civil Appeal No 1872 of 1970
From the judgment and decree dated the 24th December 1969 of the Calcutta High Court in appeal from Original Decree No 843 of 1966 Probate SS Ray and section Ghosh for the Appellant
VS Desai DN Mukherjee and NR Choudhary for the Respondents
1190 The Judgment of the Court was delivered by BAHARUL ISLAM J
This appeal by certificate granted by the Calcutta High Court under Article 1331 b of the Constitution is from a decree dated December 24 1969 and arises out of a probate suit
The material facts may be briefly stated as follows
One Manindra Chandra Bose original respondent No 1 since deceased and Jogendra Nath Mitra respondent No 2 before us filed an application before the Subordinate Judge Alipore for probate of a will alleged to have been executed by one Ranendra Chandra Bose on November 8 1952 Jitendra Chandra bose a brother of the testator entered caveat and filed a written statement and contested the application for probate
The plaintiffs  case was that Renendra died unmarried on November 16 1952 leaving the alleged will Exhibit 1 executed on November 8 1952
Ranendra left behind him three brothers Jitendra aforesaid Gopendra and plaintiff No 1
Manindra
Manindra and Jogendra plaintiff No 2 had been appointed executors of the will
By the will Ranendra bequeathed one half of his properties to his nephew Bhabesh who was the son of his younger brother Phanindra who had pre deceased him and the remaining half to his younger brother Manindra for life and after his Manindra s death to Bhabesh absolutely
During the pendency of the suit Jitendra died and his heirs who were substituted contested the suit
The contentions of the defendants were that Ranendra on November 8 1952 was not in a physical or mental condition to execute a will he was in a semiconscious state of mind and had not the testamentary capacity to execute the alleged will
They alleged that the will was brought into existence at the instance and under the influence of the propounder Manindra that the signatures of Ranendra on the will were not genuine and that must have been obtained on blank papers by Manindra who was looking after the properties of Ranendra as well as all litigations in which Ranendra was involved
The trial court found that the signatures of the testator and the attesting witnesses on the will were genuine and that the provisions of the will was neither unfair nor unnatural
But he dismissed the suit and refused to grant probate of the will on the ground that there were certain doubts and suspicions about the condition of the testator s mind on 8111952
1191 5
The plaintiffs filed an appeal before the high Court
The High Court held that there was no suspicious circumstance relating to the will and whatever little suspicion there was has been satisfactorily explained by the plaintiff with the result that the High Court set aside the decree of the trial court and granted probate of the will
The judgment and decree of the High Court has been challenged by the appellants before us
Mr SS Ray learned counsel appearing for the appellants has not challenged the trial court s findings that the signatures of the testator and the signatures of the attesting witnesses on the will were genuine
In other words the execution and the attestation of the will have not been challenged before us
The only submission of learned counsel is that the suspicious circumstances surrounding the execution of the will have not been satisfactorily explained by the propounders
This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Successions 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
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
Even where 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 signatures of the testator the condition of the testator s mind the disposition made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indications 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 suspicions should be completely removed before the document is accepted as the last will of the testator
If the propounder himself takes a prominent 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 1192 cut off wholly or in part near relations
See AIR 1964 SC 529 1959 Suppl
1 SCR 426  19623 SCR 195
Needless to say that any and every circumstance is not a suspicious  circumstance
A circumstance would be suspicious  when it is not normal or is not normally expected in a normal situation or is not expected of a normal person
Learned counsel relied on the decision of this Court in the case of Rani Purnima Devi and Another vs Kumar Khagendra Narayan Dev and Another
In this case the will in question gave the entire property by the testator to a distant relation of his to the exclusion of the testator s widow sister and his other relations and even his daughter who would be his natural heirs but subject of course to the condition that the legatee would maintain the widow and the sister of the testator
The testator s signatures were not his usual signatures nor in the same ink as the rest of the will the testator used to sign blank papers for use in his cases in court and he used to send them to his lawyer through his servants the testator did not appear before the Sub Registrar for the purpose of registration of the will but the Sub Registrar sent only his clerk to the residence of the testator for the purpose of registration there were 16 attesting witnesses who attested the will but of them only 4 interested witnesses were examined to the execution of disinterested witnesses
The above are undoubtedly suspicious circumstances circumstances creating doubt in the mind of the Court
In spite of these circumstances it was held by the Trial Court that the will was duly executed and attested
On appeal the High Court affirmed the order of the Trial Court
On further appeal this Court held that the circumstances were suspicious and were not satisfactorily explained and hence held that the due execution and attestation of the will were not proved
As in the instant appeal the judgment of the High Court is one of reversal of the judgment of the Trial Court we should also examine the law under which the order of the appellate court can be or should be interfered with inasmuch as learned counsel has cited the two following decisions before us and urged that the High Court ought not to have interfered with the judgment of the Trial Court
The first case cited is The Bank of India Ltd and others vs Jamsetji 1193 AH Chinoy and Messrs Chinory and Co
In that case the Privy Council has held The appellate Court would be reluctant to differ from the conclusion of the trial Judge if his conclusion is based on the impression made by a person in the witness box
If however the trial Judge based his finding and his opinion of the person on a theory derived from documents and a series of inferences and assumptions founded on a variety of facts and circumstances which in themselves offer no direct or positive support for the conclusion reached the right of the appellate Court to review this inferential process cannot be denied
 The other case cited is Madholal Sindhu of Bombay vs Official Assignee of Bombay and others in which the Federal Court held It is true that a Judge of first instance can never be treated as infallible in determining on which side the truth lies and like other tribunals he may go wrong on question of fact but on such matters if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the appeal Court should not lightly interfere with the judgment
Keeping the above principles of law in view let us now turn to the facts of the present case
Learned counsel for the appellant has enumerated the following 11 suspicious  circumstances i Attempt on the part of the propounder to conceal the real nature of testator s illness
ii The propounder failed to tell the date when the testator went to his lawyer PW 3s  house or when the draft was given by the lawyer to the testator
iiiThe draft has not been produced and no explanation has come forth as to what happened to the draft
1194 iv No date has been mentioned when the testator sent for his lawyer trough Banqshidhar for corrections in the draft
v The diary of PW 3 has not been produced
vi The senior lawyer Sudhangshu Babu has not been examined
The lawyer examined namely PW3 is a partisan witness
viiBanqshidhar has not been examined as a witness although he was attending court during the trial of the suit
viiiThe statement of the propounder Manindra that he knew about the will only three or four days after its execution cannot be accepted as true when one of the attesting witnesses namely PW 5 had been told of it a month earlier
ix No body knows what alterations were made in the draft
x The scribe and one of the attesting witnesses are employees another witness PW4 is a friend and the other attesting witness PW5 is a relation
xi The evidence of the propounder Manindra is partly false he disavows all knowledge of the will
A careful perusal of the above circumstances shows that they are by no means suspicious circumstances and stand self explained
Circumstances Nos
ii and iv are really test of memory
It may be remembered that the witnesses were deposing thirteen years after the execution of the will
It will be difficult for any witness after such a long lapse of time to give the dates when the testator went to the house of his lawyer or when the draft was given by the lawyer to the testator or when the testator sent for the lawyer through Banqshidhar for correction of the draft
With regard to circumstance No iii there is no evidence to show that there was any invariable practice that the draft of a will had to be preserved
No question was put in cross examination to the scribe PW 1 who perhaps might have been able to say what he had done with it
Similar is the position with regard to the diary of PW 3
PW 3 1195 who deposed that his diary would show that he had drafted the will was not asked in cross examination as to whether he at all preserved in 1965 the diary of 1952 or whether he could produce it
With regard to grievances Nos
vi and vii we do not see any necessity of calling the testator s employee Banqshidhar as witnesses in the case
So far as Sudhangshu Babu was concerned Manindra was not asked as to why he had not been called as a witness possibly he had died as PW 3 spoke of him as my late senior
With regard to circumstance No ix it may be said that there was no necessity of knowing what alterations had been made in the draft
With regard to the circumstance that the scribe and the attesting witnesses were either employees or friend or relation of the propounders  group the answer is simple
No body would normally invite a stranger or a foe to be a scribe or a witness of a document executed by or in his favour normally a known and reliable person a friend or a relation is called for the purpose
The same argument applies to PW3 who is said to be a partisan witness for the reason that he was the testator s advocate
But there is nothing to show that he was not telling the truth in his deposition
With regard to the circumstances Nos
viii and x that Narendra was not telling the whole truth when he said that he had come to know of the will three or four days after its execution the complaint may be correct although it was not impossible that he had not been taken into confidence in the matter of the will in his favour although PW 5 had been
Another possibility is that Manindra deposed so in order to avoid cross examination
In any case this does not appear to be a suspicious circumstance surrounding the execution of the will
With regard to circumstance No i the submission is that the testator according to the medical evidence was at the time of the execution of the will suffering from high blood pressure diabetes acidosis kidney trouble and that he had no food for two days before 8111952
The evidence of PW2 Naresh C Das Gupta who is a medical practitioner is that Ranen Babu was not taking his meals and usual food which means he was taking sick diet with hydro protien  prescribed by him
But PW 2 deposes in cross examination that the patient was not in coma 
The patient had talks with me on the last day which was eight days after the execution of the will when the testator suddenly died of coronary thrombosis in the lap of his employee Banqshidhar
There is no evidence that Ranendra did not have the mental capacity to execute the will
Even DW 2 Sailendra Bose who visited Ranendra during his illness and 1196 DW 1 Dr Amal Chakravorty who deposed by perusing the prescriptions did not depose that Ranendra was in coma or had lost his mental faculty
On the contrary the following circumstances lend strong support to the plaintiff s case of genuineness and valid execution of the will
1 Gopendra one of the brothers who has not been given anything under the will had filed a written statement stating that he has no objection to the grant of probate inasmuch as the will is executed and attested according to law
 2 The disposition under the will is quite fair and there are no suspicious circumstances in it at all
3 As there were litigations between the two groups of the brothers the will was the natural outcome to avoid further future litigation
We do not find any suspicious circumstance surrounding the execution of the will
The circumstances pointed out by learned counsel are not only not suspicious but normal as pointed out above
The rule as observed by the Privy Council is that where a will is charged with suspicion the rules enjoin a reasonable septicism not as 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
 See 14
The trial court was wrong in holding that the circumstances in question were suspicious and the High Court was fully justified in setting aside the judgment of the trial court
We are in entire agreement with the judgment of the High Court
In the result this appeal fails and is dismissed with costs
SR Appeal dismissed


Summary:
One Ranendra died unmarried on November 16 1952 leaving the alleged will Exhibit 1 executed on November 8 1952
Ranendra left behind him three brothers Jitendra Chandra Bose Gopendra and Manindra plaintiff No 1
Manindra and Jogendra Plaintiff No 2 had been appointed executors of the will
By the will Ranendra bequeathed one half of his properties to his nephew Bhabesh who was the son of his younger brother Phanindra who had predeceased him and the remaining half to his younger brother Manindra for life and after Manindra s death to Bhabesh absolutely
The executors of the will as aforesaid filed an application before the Subordinate Judge
Alipore for probate of a will executed by Ranendra
Jitendra entered caveat and filed a written statement and contested application for probate
During the pendency of the suit Jitendra died and his heirs who were substituted contested the suit
The contentions were that Ranendra was not in a physical or mental condition to execute a will he was in a semi conscious state of mind and had not the testamentary capacity to execute the alleged will and that the alleged will was brought into existence at the instance and under the influence of the propounder Manindra that the signatures of Ranendra on the will were not genuine
The trial court found that the signatures of the testator and the attesting witnesses were genuine and that the provisions of the will was neither unfair nor unnatural
But the trial court dismissed the suit and refused to grant probate of the will on the ground that there were certain doubts and suspicions about the condition of the testator s mind on 8 11 1952
In appeal before the High Court the decree of the trial court was set aside and the propounder was granted probate of the will
Dismissing the appeal by certificate granted by the Calcutta High Court under Article 1331b of the Constitution the Court  HELD 11
The mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by section 63 of the Successions Act
1191 D 12
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 test a 1189 mentary 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
Even where 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 signatures 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 indications 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 suspicions should be completely removed before the document is accepted as the last will of the testator
If the propounder himself takes the prominent 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
1191 D H 1192 A Shashi Kumar Banerjee  Orsv
Subodh Kumar Banerjee  Ors AIR 1964 SC 529 H Venkatachala Iyengar vs BN Thimmajamma  Ors 1959 Supp 1 SCR 426 Rani Purnima Devi and Another vs Kumar Khagendra Narayan Dev and Another followed
A circumstance would be suspicious when it is not normal or is not normally expected in a normal situation or is not expected of a normal person
1192 A B 14
A careful perusal of the eleven circumstance shows that they are by no means suspicious circumstances and stand self explained
On the contrary the following circumstances lend strong support to the plaintiffs  case of genuineness and valid execution of the will i Gopendra one of the brothers who has not been given anything under the will had filed a written statement stating that the has no objection to the grant of probate inasmuch as the will is executed and attested according to law ii the disposition under the will is quite fair and there are no suspicious circumstances in it at all iii as there were litigations between the two groups of the brothers the will was the natural outcome to avoid further future litigation
B C Harmes and Anr vs Hinkson  referred to