Auguai 2 v. KUMAR KHAGENDRA NARAYAN DEV

· Appeal by special leave from tpe judgment and decree dated February 2, 1954, of the Assam High Court in First Appeal No. 19.of 1950 (Probate) .. · . s: T. Desai and. Naunit Lal, for the appellants . . K. R .. Krishnaswami, foi: respondent No. I. .· . . 196L August 22 .. The judgment of the Court was delivered by · · IVnnch<>o J. . W ANCIIOO, J.-· This ·is an appeal 'by special leave against the judgment of tlie Assam High Court in a probate matter. The· main: appellant is Rani Purnima · Debi widow of Kumi1r Chandra ·· .Narayan Deb (hereinafter called the testator), .who 'died in June 1946. The second appe!lant is the ' .. testator's married daughter. An application ·was made by Kumar Khagendra Narayan Deb (here inafter 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 thetestator ·had executed a will on December 29, 1943, in favour .. -·of the respondent by which. the testator gave his . entire property. to tlie . respondent subject to the. ·respondent's maintaining testator's widow and 'sister. Objections were filed on behalf of the .· .. appellants to the grant o.f letters of administration . on the basis of the . will propounded l;y tlie res pondei; it and three main grounds were urged in . that connection, namely-(ij'that the wiJI was not duly nucl legally executed nnd attested; (ii) that the testator had no sound disposing mind at tho time he executed the will, and (iii) that the will was the · . outcome of undue influence. and · coercion exercised ·by the respondent. While the application· of the ---------' .. 3 S.C.R. · · SUPRE.11E COURT REPORTS i97 .N· · · 1961 •irnar · · w1ien~ ra ·1 K; . D ·'. I respondent. was pending, another application for probat.0 of another will said to" ha,·e been executed· R.,;iPurnima'Dw hv th"· testator a few months before his ·death was.. 'D b Th •. d e e . . ma e. iy-_. · appellants ·objected to.that 'will· also' on the same grounds · ahd . further added ·that that Will was a t'org<ery. Dwijel).dra,'Nar!1.Yari ;Deb did not dispute the exee1ition of the will in· favour of the respon- dent-but contended that that will had been.revoked by• the. later -.'will. in: his favour. The respondent, however, contended' t)J.aLthe will in favow of Kumar Dwijendra Naray~n;Deb was_ a 'forgery. , . v .. '· Kumttr Khag<ndra · NaravanD.-. · ·· : Wanchco J. arayan: The two suits arising out of the two 'appliCa . tions for probate were eventually _tried together by · the Subordinate Judge at Gauhati. He held that.the . will propounded by Kumar . Dwijendra . Narayan Deb \Vas not genuine and therefore dismissed his application. As to the · \vill 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 niind · and that it was not made under any undue influ ence and coercion. Consequently· the application· letters' ·of of the. respondent was· allowed and administration wit_h the copy~ of the will annexed 'were ordered to be issued to him; · · ·· · This was follo·wed· 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 respondent ; 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 conse- quence, the two appeals filed by him were dismissed. This order of the High Court has become final and > 1961 -- Rtmi Ptlrnima Dt'fJ1 • · . 0 .V •. · , Kumar. /(hlJgmdra N aratJin Dt?J . . . ; . --=---- ·, H~anchao·J. . • 198 l'UPRE~IE C01JRT REPORTS [1962] r we are not · concerned in ·the present appeal with the will· propounded by Dwijeudra Narayan. In ·the appeal by the appellants, the High Court upheld the findinl!S 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. · Tlie 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 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 deli vered the main · judgment was not we much impressed by the alleged suspicious circumstances .·and held that whatever suspicion there might he 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 impressed by Ram Labhaya J. was more existence of suspicious circumstances relating · · 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 agi-~ed in dismis sing 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 < _)vell to set out.)hc priuci11lcs which govern•- .the 3 S.C.R. SUPREME COURT REPORTS 199 . ._1 _1161_. :::- ·•. coercion, NM.afT.aif.U..., Wanchoo J. onus would be on . proving of a will. This was considered by this Court ,:._ in H. Venkataohala Iyengar v. B. N. Thimmajamma(• ). Rani P,u_•ni1JJa.!!.~~·, It was observed in that case that the. mode ·of· K;,.,.,.:}fuii;;;d;~· proving a will did not ordinarily differ from that· of proving any other document except as to the special requirement of attestation prescribed in the case of a will by s.63 of the Indian Succession Act. The onus of proving the will was on the propounder and in the absence of suspicious circum· stances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law was sufficient to dis- charge 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 caveator alleged undue influence, fraud or him to prove the same. Even where there were no such pleas but the circumstances gave rise to doubts, it was for the propounder to satisfy the conscience of the Court. Further, what are suspicious circum- stances was also considered in this case. The alleged signature of the testator might be very sha.ky and doubtful and evidence in support of the propounder's case that the signature in question was the signature of the testator might J!Ot 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 addu- ced 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 rele- vant . circumstances ; or 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 aooopted ail . .the la1t will of• (l f(I~S9j SUpp. I S.C.R. •26. . 1981 __ ._ ...... _ Rani' P'Uf'n.fma Devi . ·v.-· Kumar Khayendra N Ortiyan Dtt1 -- - ~- ~-- Wanc1"'1o J. 200 SUPRE:\IE COURT REPORTS [l9G:!] the testator .. Fur_!:her, a pro.pounder himself might _take a "prominent ·part in -the execution of the will ·-which conferred on him substantial bem'fits. If this was so it was generally treated as a suspicioue circum stance attending the execution of the will .'1ml the propounder was required to remove the doubts by - clear and satisfactory- evidence. But even where· there were ~uspicious circumstances ancl the propou- · - nder 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 concur rent findings of the· courts· below we should be · · slow to disturb them. · Jn _view, however, of the suspicious circumstances ·noted by th" liigh Court. and some differences· in the approach of the two learned Judges composing the Bcnch, we· permitted·. learned counsel for parties to go into the entire .. evidence so that we may be able to judge whether· the High Cuurt was right in its . conclusion that the fact of registration. had dispelled all suspicions .. ' Let as · u'ow turn to. the f~ct~ relati~g· to the execution of this will. We have already ·pointed out that the High. Court was of the view that . there.· were SUSpiciOUS circumstances attendii; ig the !JX_eCU· .. tion of the will ar.rl that it \Yas an unnatura.l .will.· · The testator left hehind him his. widow. and his married daqghter (who are appellants before·l}s) an~· · an unmarried.sistPI' \\-ho was .dependent u·pon .him. Besides _these, the. te_stator h~q,a:!mmber of other . relll; tions who · w.ere ·rrn~ch. I)~arer t() P.im th:intl:1-e:. respondent. . Eve.n jLwe leave.out',of aceount the·· .. married d'!ughter 'aucl' ihe oth~r nearer -relations,. the" wido_w' aI)d. the sister were certa, inly .• expected ,. to .he properly.'pro,~ided fOr.b}· tlwtcstatqr. It ·is : not in dispute that the relations. between the t.esta tor·-.md his \\·ife ·and 'sister' wers gooc]; In these , circumstances :we shoulcl ]iav~ expe~tedsnmething ' better ,than· Yfhat 'is proYi<lecj in.the .will fo_r these · two, · All that the will says is that.the .w.i_fe a_nd the . . . - . . . ' 1961 Rani Purnima Devi v. Kumar Khagendra Narayan. Dev Wanek.. J. - • 3 s.c.R. SUPREME COURT REPORTS 201 respondent sis~er would be suitably maintained by the respon dent during their life.time. No amount is specified which should be given to these two ladies as main tenance and no charge is created on the proper ties left bv the testator which were considerable. ladies were In effect, • the timder mercies of matter of their maintenance. Further the result of this will is that the daughter would be completely disinherited. The testator 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 ~aid that the relations between the testator and her husband were not very happy. The evidence, how ever, does not show that the relations between the testator and his son-in-law were partieularly 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 daup:hter 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 suspici ous 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 sub ject 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 rem ove 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 te8t<itor does not appear to be his usual signature. That is why a lot of questions ' 1961 Rani Pumima Devi v. !lumar Kltatrndra Narayan /)et: Wanchoo J. 202 SUPREME COURT REPORTS (1962] were put to the witnesses whether the testator signed the will with his left hand or right hand and e'\"idonce 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 c,1urt snd used to send them to his lawyer through }1is servants and those papers could be in the posses sion of Rameswar Sarma, 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 tho testator's mukhtars. Therefore it was possiblo to manufoioture a will on papers already signed by tho testator ; and that is certainly a suspicious circumstance which had to be o\·ercomo 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 samo pen with which tho body of the >l'ill is wri~ten. The difference in ink may not ordinarily bo a matter for various suspicion; cl'fm so it has to bo oxplainocl in the peculiar circumstances of this ca.so whon blank papers con taining the testator's signaturo wcro a'\"ailable. .... - • 1' Let us now turn to the proof of execution that has beon given in this caso to sec if the SlB· piciona raised above h~vc been dispelled. The will was alleged to be oxecuted at Na-hawli. It bears the signatures of as many as sixteen persons as attestin~ witnesses ; but of these only throe wore examined on behalf of the respondent. Tho res pondent also appeared in tho witness box. These three att(lsting witnesses a.re Biswanath Bhatta charya, H,ameswar Sarma, and Kulcndra Narayan Deb. Nono of these witnesses and it was certainly possible for tho respondent to prod11ce other witnesses out of the sixteen who is independent ~-"' , 1961 Rani Purnimo Ddvi v. Kumar Khagendra Narayan Dev !Vamhoo J. 3S.C.R. SUPREME COURT REPORTS 203 , 7 , 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. 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 h'1ve been done by him with tbe idea of posing that he was an indepen son-in-law Dayanand dent witness ; but his 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 In the about his connection with the respondent. circumstances he cannot also be held to be a dis interested 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 Sarishte- dar ; but no attempt was made to produce these 1 ' 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 ,.... ,. _ resondent 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 di_d not meet anyone on the way. It seems strange 1961 ~ani Pl4rni11w f)tt:i v. ~-umar J.."lv1yt11dr'1 /'o' arayan Dtt' Jruncho1> J. 204 SUPRE:IIE COU!tT REPORT;:; [IU62] tlw execution itself that this witness shouhl have been in,·ited to be present at an adoption when what tlw tcHtator was i11w11ding to do was to oxucute a will. Probably it was felt that a Purohit would Ul' more likelv 1.0 be im·itcc! to an adoption 11.nd therefore this story was put in his mouth. Further Bhattachary11 is c:ontmdictcd uy resvundcnt and Kulendr'.I Xarayan who say that Bhattacharya had been staying at Kulendra :N"araya11's place for two days before awl h'ld gone from there to Xa.Jurn·li wit.h the respondC'nt and his father and Kulcnclra Xarayan. The story therefore that l3hattachary11 was invikcl uy the testator is ob\•iously fobe and if he did go to Na-hawli it must ha\·~ !Jcen in the company of the respondent and his father whose Purohit he was. As to the witnesso;s difft•r on one vory important matter. Bhatt.'lcharya said that the wife of the testator w:is also preEcnt at the execution of the will and raised no objection. He was asked if any one thero suggcst-0d that she t.hat he did not should also sign and he said remember. Kulendra Narayan also said that the wife of the testator was prosent when the will was executed and did not object. Ho even went to tho length of saying that she said that what hor husband wanted to do had been done and tho reepondcnt 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 tho portico. He does not suggest that the wife of the testator was present while the will was executed. Similarly, Rameswara Sarma stated that tho appellant Rani was in the adjoining house about :!O yarcls away and did not come near her husband when the will was executed. Now the fact whother the appellant Rani was present or not when tho will was oxecuted was of great importance and of tho four witnesses who have deposed about the execution of the will including the respondent, two say onething and the other two say something •• ' . • . ~ . 1961 Rani Purninia. Devi v. J(utnar Khagendra Narayan Dev 1Vanchoo J, 3S.C.R. SUPREME COURT REPORTS 205 In these circumstances the quite contradictory. inference would be that the story about the execu tion has been made up and that is why there are contradictions on such an important matrer. In any case these 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 practising 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 :1s 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 aw 11 and has also referred to the advice tendered by him to the testator in this connection to provide something more benefi cial 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, how ever 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 res pondent. 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 wit nesses and the respondent broadly, we must say that that evidenca does not dispel the suspicion as to the due execution and attestation of this will. ' y 1 1961 Rani Put'nimo De"i v. Kwnar KIUJgtndrn Narayan Dtv ll'anchoc J. 206 SUPRE~IE COURT REPORTS (1962] The High Comt was also conscious of the fact that the evidence as to the execution and attestation of the will was not \'cry adequate, for the learned Chief Justice obscn·cd that the evidence on the point of actual execution might not be very ade quat-0; but the view taken by the High Court was that more c\·iclcnce was not nceessarv in 'l'iPw of the In this connection tho pleadings of tho parties. High Court relied 011 Dwijendra Karayan Deb's acceptance of the will in fa\·our of tho respondent. This in our opinion wn.s not justified so far as the appellants were concerned, for an admission of Diwijendrn Narayan Deb who mu8t now be held to to have put forward a forgod will could not be an to support the inadequate added circumstance evidence led by tho respondent. We are further of the opinion that, the High Court was not ju8tified in executing tho inadequacy of the evidence to prove the due execution and attestation of tho 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 Dwijcndra 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 whero the due and legal execution and attestation of the will was admittt'd and the only disputes were thi<t tho testator had not a souud disposing state of influence or coer mind or had act{)d under undue cion. Though the appellants did not go length of characterising the will as a forgery aR they did in tho case of the will propounded by Dwijendra Narayan, they certainly put tho respondent strict proof of legal and due execution and attes· tatiou of the will. In such circumstances it was the duty of the rcepondent, particularly in the presence circumstances which have been of suspicious to prove tho due noted by the will execution and the High Court, attestation of t-0 • • 1 3 SC.R. SUPREME COURT REPORTS 207 1961 Rani Purnima Devi v. Kumar Khagendra Narayan Dev Wanehoo J. 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 in adequate would suffice to dispel the suspicious circum- · stances 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 ii the evidence which has been produced in this case were all the evidence nvailable to prove the due execution and attestation of the will, there could be no doubt that the respon dent 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 haa relied strongly to dispel whatever it also consi dered suspicious in this case. The contention of Mr. Desai on behalf of the appellants in this connec tion is that registration may be an added circum stance 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 ?.7, 1944, and there is an endorsement on the will to the effect that the tes. tator had admitted the execution of ii;, It will therefore be necessary to examine the circum stances 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 himstilf) 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 commis sion but sent a clerk of his named Arabali, though the reason given in the application for the issue of SUPREME C0'\7RT REPORTS 208 commission viz., respectability was not justified in law c (1962] /9CJ u·an, hoo J. "· f, ru11tir A"haqM1,frt1 s,,,.,,,,n·JJ,,. R,,,, /'urn.ma 1i,,; and no commission should have been issued at all. This clerk wn,s apparentl.v. a resident of the same area in whirh the testator was 1.iving and know him from It is a matter worthv of note in the before. circumstances of this case tho person who went to inquire from the testator whether he had executed the will was not the Sub-RC'gistrnr himself who would be a more responsible officer than his clerk. Any how, 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 tho execution of the will. Thereafter the testator signed at the bottom of the will in token of his ha,·ing admitted the genuineness of the will and Dehiram Bora identified the testator. Thcn•aftf'r Aralmli took the document to the office of the Snb-R<'gistrar and it was registered. It is on this registration th~t tlw High Court has rdicd very strongly for dis1wlling thl) suspicion arising in this case. ( • Before we consider tho evidence on this asprct to a of the matter further, we should like to refer point which serms t.o have weighed with the High < Court in judging the value of registration. The High Court thought that four witnesses siimed the will at the time of itK registration. It is not quite ckar what the High Court meant by this, namely, whNher the High Court thou1<ht that these fou; witnl'S8cs alRo atteRtcd the will : hut a perusal of the will transeribr,<J in the record (Ex. 3) shows that this is not correct, for the only person who siizned at the bottom of tho will at. the time of the visit of ~ Ara.hali besidns Arabali himself a.nd the testator, was Dehiram Bora. Learned coun~d for the ros pomlcnl wa" unable to satisfy us how tho High Court got tho imprcqsion that four witnesses h11.d signed at thn bottom of the will presumably as a . matter of attestation when the registration clerk -"· - came on commission. the footing \Ve must therefore proceed the High Court was not 3 S.C.R. SUPREME COURT REPORTS 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 jud~ment was influenced by this circumstance, it suffers from an infirmity. Rani Purnima Detrt. v. Kumar Khagendra Narayan Dev Wanchoo J, let us However, look at what actually ha"'.)pened 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 bas 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 liy him in this connection and the exact reply of the testator are also absent from the evidence. It is true tha.t 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 Debiram 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 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 ar\) referring to this aspect of the matter, for it has been urged that even if t~ecu- tion and ·"1ttestation of December 29, 1943; is 1>pen .. _t· -.J - ·~·· ... -, ' r • ,..,_ l \ : . , ~:J t·~. ;·f,,.J .,..· . t 1c·l . .. ·' 1961 Rani Purnima D;vi v. Kumaf' Khagendra Narayan De'V Wanchoo J.' i / i. 210 SUPREl\IE COURT REPORTS (1962] ~: 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 not pmsent when ' the will was executed on December 29, 1943. However, he went on to say tbat it was registered in l\Iajikuchi. He identified the testator before the registration clerk, Arabli, there. After identifica tion he 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 tl>e execution of the \till 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. I ! 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 fail to prove due clear that they completely _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 effrct 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 1961 Rani Purnima Devi v. Kumar Khagendra Narayan Dev TVanchoo J. 3 S.C.R. SUPREME COURT REPORTS 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 2! 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 Majikuehi 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, In the absence, therefore, that such a will existed. 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 h'1s been that is a circumstance which may, rogistered, the circumstances, prove its regard to having that a will is the mere fact genuineness. But itself be sufficient to dispel registered will not by regarding it where suspicion exists, all suspicion 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 th'1t 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 it was done in a perfunctory manner, that the officer registering the will did not read it over to the testator or did not 1'Jl1 Rani Purnima D1vi v. Ku- Khaflndra 1-.'arayan Dt'{) Wandk>o J. ... . ' . - J, 212 SUPREME COURT REPORTS [1962) reading registration may bring home to him that he waR admitting tho execution of a will or did not satisfy himself in some other way (as, for example, by seeing the the will) that the testator knew testator 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 take placo without tho cxecutant really knowing what he was registering. Law reports are full of cases in which registered wills have not been acted upon (seo, for example, Sii:11raman Sermi, (') Vellasaw11y Surwdra NC1th Lahiri v. Jnanendm Nath f,ahiri(')ancl Girji Datt Singh v. Gangotri Dlltt Singh)('). There fore, tht> mero fact of registration may not by itself be enough to di.spol :i.11 suspicion thnt m'1y attach to the execution and nttestation of a will; though the fact that there hns been registration would be an important circumstance in favour of tho will bein!J genuine if the evidence a.s to registration estab· lishes that tho testator admitted the execution of t-hc will after knowing that it was a will the execution of which he was admitting. Sarmi v. L The question therefore is whether in tho circumstances of the present case the evidence as to registration discloses that the testator knew that ho was admitting the execution of a will when ho is said to have put down his signnture at the bottom of the will in the presence of Arabali. 'Ve have scrutinized that evidence c'Lrefully and we must say that the evidence falls short of satisfying us in the this case that the testator knew circumstances of that tho document tho execution of which he was admitting before Arabali and at the bottom of which he signed was his will. Therefore we are left fact of registration which in onr opinion is insufficient in the circumst,'1.nces of this ease to dispel the suspicious circumstances which the bnkl (I) (1930) 1.L.R. 8 Ran. 179. (3) A.J.R. 1955 S.C. 346. (2) A.l.R. 1932 Cal. 574. -~ 3 S.C.R. SUPREME COURT REPORTS 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 propoun· der has been unable to dispel the suspicious circum stances 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. 1961 Rani Purnima Devi v. Kumar Khagendra Narayan Dev Wanehoo J. ' r .. 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 respondent, Kumar Khagendra Narayan Deb. their costs throughout Appeal allowed. STATE OF UTTAR PRADESH v. KUNW AR SRI TRIVITIBAM NARAIN SINGH (P. B. GAJENDRAGADKAR, K. SuBBA RAO, M. HIDAYATULLAH, J. C. SHAH and RAGHUBAR DAYAL, JJ.) 1961 .A.ugull 22. Zamindari Abolition-Pension paid in lieu of compen· sation for loss of Tehsildari rights and proprietary rights-If interest in land-U.P. Land Revenue Act, 1901(U.P. 3 of 1901), s.32, els. (a) to (d)-U.P. Zamindari Abolition & Land .Reforms Act, 1950 (U.P. 1 of 1951), ss.3(8), 4, 63(b). By the order of the then Government the right of S, the entire parganas an anccster of the respondent, "S¥udpore Bhettree''. was resumed. S challenged in a c1V1l court the authority of the Government to resume his interest in the jagir. During the pendency of the dispute, settlement proceedings were commenced and in 1832 the to 166 mahals of the Settlement Officer "Syudpore Bhettree" pargana, the village zamindars had established their proprietory rights and only on 12 mahals the proprietory right of S had been established. The dispute pending in t_he Civil Court was compromised, and t~e t~rms were fin~hsed in 1838 with H, son of S (who had died m the meantime). The terms, inter alia, were that for reported