YUMNAM ONGBI TAMPHA IBEMMA DEVIversusYUMNAM JOYKUMAR SINGH & ORS.

                             [2009) 4 S.C.R. 157

.               YUMNAM ONGBI TAMPHA IBEMMA DEVI                        A
                                   V.
                 ·YUM NAM JOYKUMAR SINGH & ORS.
                     Civil Appeal No. 1600 of 2009
                              MARCH 6, 2009
                                                                       B
          (DR. ARIJIT PASAYAT, V.S. SIRPURKAR AND ASOK
                       KUMAR GANGULY, JJ.]
             Succession Act, 1925 - s. 63 - Evidence Act, 1872 - s. 68
    •   ~ Mode and manner of execution of Will - Essential
        ingredients- Discussed - On facts, one of the attesting witnessc
        deposed that the testator did not sign on the Will in his
        presence and that witness himself signed without knowing the
        nature of the document - His evidence did not support the
        due execution and attestation of Will - Genuineness of Will
        thus not proved.                                                D
            The question which arose for consideration in the
        present appeal were whether the Will in question was
        genuine and whether the requirements of section 63 of
        Succession Act, 1925 and section 68 of Evidence Act,
        1872 were complied with.                              E

             Dismissing the appeal, the Court
              HELD: 1. As per the provisions of Section 63 of the
        Succession Act, for the due execution of a Will (1) the
        testator should sign or affix his mark to the Will; (2) the F
        signature or the mark of the testator should be so placed
        that it should appear that it was intended thereby to give
        effect to the writing as a Will; (3) the Will should be attested
        by two or more witnesses, and (4) each of the said
        witnesses must have seen the testator signing or affixing G
        his mark to the Will and each of them should sign the Will
        in presence of the testator. The attestation of the Will in
        the manner stated is not an empty formality. It means

                                    157                                H
    158      SUPREME COURT REPORTS               [2009] 4 S.C.R.


A signing a document for the purpose of testifying of the
  signatures of the executant. The attested witness should
   put his signature on the Will animo attestandi. It is not
  necessary that more than one witness be present at the
  same time and no particular form of attestation is
8 necessary. Since a Will is required by law to be attested,
  execution has to be proved in the manner laid down in
  the Succession Act and the Evidence Act which requires
  that at least one attesting witness has to be examined for
  the purpose of proving the execution of such a document.
c Therefore, having regards to the provisions of Section 68
  of the Evidence Act and Section 63 of the Succession Act, a
  Will to be valid should be attested by two or more witnesses
  in the manner provided therein and the propounder thereof
  should examine one attesting witness to prove the will.
  The attesting witness should speak not only about the
0
  testator's signature or affixing his mark to the will but also
  that each of the witnesses had signed the will in the
  presence of the testator. (Paras 6, 7] (162-E-H; 163-A]
           Girja Datt Singh v Gangotri Datt Singh AIR 1955 SC
E   346; B. Venkatamuni v. C.J. Ayodhya Ram Singh 2006(13)
    SCC 449; Benga Behera v. Braja Kishora Nanda 2007(9) SCC
    728; Ani/ Kak V. Sharada Raje 2008(7) sec 695 - relied on.

       2. The trial court did not frame issue regarding the
  validity of the will. The evidence of PW2, one of the
F attesting witnesses did not in any way support the claim
  of due execution and attestation of the will. On the
  contrary, it clearly established that testator did not sign in
  his presence and PW2 did not know what was the nature
  of the document. There was no attesting witness who
G signed in his presence and, therefore, the requirements
  of Section 68 of the Evidence Act were not complied with
  in order. [Para 12] [171-E-G]
                      Case Law Reference
H         AIR 1955 SC 346        relied on        Para 8
                  YUMNAM ONGBI TAMPHA IBEMMA DEVI V.                 159
                    YUMNAM JOYKUMAR SINGH & ORS.

              2006(13) sec 449          relied on         Para 9            A
    f-
              2007(9) sec 728           relied on         Para 10
              2008(7) sec 695           relied on         Para 11
             CIVILAPPELLATE JURISDICTION: Civil Appeal No. 1600
         of2009                                                             B

              From the Judgement and Order dated 15.11.2006 of the
         Hon'ble High Court In F.A. (0) No. 7 of 2004.

             Hijam N.K. Singh, Ashok Kumar Sharma, Lenis S. Hijam,
         Rahul Joshi, for the Appellants.                                   C
              F.C. Agrawala Gourab Banerji, Gautam Jha, A. Mohendro
:        Singh, Amit Pawan, Sapam, Biswajit Meitei, Anil Kumar Pandey,
         Ashok Kumar Singh, for the Respondents.
              The Judgement of the Court was delivered by                   D
              DR. ARIJIT PASAYAT, J.
              1. Leave granted.
              2. Challenge in this appeal is to the judgment of a learned
         Single Judge of the Guwahati High Court in the First Appeal by     E
         the respondents. Before the High Court challenge was to the
         order passed by learned Additional District Judge (Fast Track
         Court) Manipur East, Imphal, in Original (Probate) Petition No.
         14/92/19 of 2003.
               3. Background facts as noted by the High Court are as        F
         follows:
               Shri Yumnam Joykumar Singh, Smt. Yumnam Ningol
         Khumanthem Ongbi Bijanbala and Smt. Yumnam Ningol
         Binodini Devi, who are the respondents, are the son and            G
         daughters of late Yumnam Gouramani Singh. Smt. Yumnam
         Ongbi Tampha lbema Devi, who is the appellant in this appeal,
         is the widow of late Yumnam Mani Singh, son of the said late
         Yumnam Gouramani Singh, Smt. Yumnam Ningol Harijabam
         Ongbi Binodkumari Devi, who is the respondent No.2 in this         H
    160       SUPREME COURT REPORTS                  [2009] 4 S.C.R


A appeal, is a daughter of late Gouramani respondent. Smt.
   Loitongbam Ningol Yumnam Ongbi lbeyaima Devi, Yumnam
  Raynold Singh and Kumari Yumnam Rina alias Riya Devi, are
  widow, son and daughter respectively of late Yumnam Birmani
  Singh, son of the said late Yumnam Gouramani Singh. Smt.
B Yumnam Ongbi Lalitabi Devi, is the widow of the said late
  Yumnam Gouramani Singh. Shri R.K. Barunisana Singh, who
  is the proforma respondent in the appeal, is the husband of
  Binodini. Appellant filed an application alleging that her father
  in-law Yumnam Gouramani Singh duly executed his last will on
c 13-8-86 in accordance with law in presence of two attesting
  witnesses bequeathing the plot of land under C.S. Dag No. 16/
  2720 measuring '053 acres of Patta No. 304 of UnitA-1, Imphal
  Municipality at Thangal Bazar along with building standing
  thereon in her favour. In this application, the appellant prayed
D for granting letters of administration with the Will annexed in her
  favour.
         The appellant before the High Court and respondent Nos.
  6, 7 and proforma respondent No.8 opposed the application by
  filing a written statement wherein they denied the alleged due
E execution of the will. It was submitted that there was no execution
  of a will much less in accordance with law. It was also stated
  that on the alleged date of execution of the will i.e. 13.8.1986,
  the said Yumnam Gouramani Singh was staying in U.P. and not
  in Imphal. It was also alleged that there were suspicious
F circumstances which ought to be considered before the will could
  be accepted as genuine. It is to be noted that in the proceedings
  before the learned Additional District Judge the following three
  issues were framed.
          "(1) Whether late Yumnam Gouramani Singh left behind a
G         Will dated 13.8.1986 bequeathing the plot of land under
          C.S. Dag No. 16/2720 measuring 53 acres of patta No.          •
          304-A of Unit A-1 Imphal Municipality to the petitioner
          Yumnam Tampha lbema Devi?
          (2) Is the Court fee paid properly?
H
          YUMNAM ONGBI TAMPHA IBEMMA DEVI V.         161
    YUMNAM JOYKUMAR SINGH & ORS. [DR. ARIJIT PASAYAT, J.]

         (3) Is the petitioner Yumnam Tampha lbema Devi entitled            A
         to the relief claimed?"
         It appears that by judgment and order dated 9.4.2004 the
         learned Additional District Judge accepted the prayer and
         directed as follows :
                                                                            8
          "Heard Learned counsel for the parties. And also for the
    discussion, observations and reasons aforesaid, I am of the
    view that (L) Y. Gouramani Singh had executed the will Ext.N1
    in favour of the petitioner. In the result, it is ordered and decreed
•   that a letter of administration be issued in favour of petitioner       c
    on her deposit of the requisite stamp as required by the Indian
    Succession Act, 1925, minus the plot of land given in Exts. 8/
    1,8/2,8/3 and 8/4. Case is accordingly disposed of."
           The primary stand before the High Court was that no issue
   was framed regarding the genuineness of the Will, and the D
, requirements of Section 63 of the Indian Succession Act, 1925
   (in short the 'Succession Act') and Section 68 of the Indian
   Evidence Act, 1872 (in short the 'Evidence Act') were not kept
   in view. The High Court accepted the prayer particularly with
   reference to the evidence of PW 2 who claimed to be one of the E
   attesting witnesses. The High Court allowed the appeal inter
   alia holding that the evidence of PW2 is vague and it cannot be
   said that there was due execution of the will in question. PW 2
, was not even having knowledge about the death of the alleged
   executor more than 14 years prior to the date of his giving F
   evidence. Though he claimed that he had reached the house of
   said Gouramani Singh on being summoned, there was nobody
   present when he had gone there. He stated that he had put the
   signature without understanding as to why he was putting his
   signature and he did not know the nature of the document on G
 • which he had put his signature. He also did not state that said
   Yumnam Gouramani Singh put his signature on the document
   or if the said Gouramani Singh said anything about his signature
   or mark having been put on the document. He did not say
   anything about presence of any another person as an attesting H
    162      SUPREME COURT REPORTS                  [2009] 4 S.C.R.




A   witness in respect of any document by the said Yumnam
    Gouramani Singh. The High Court concluded that PW2 failed
    to testify anything regarding alleged due execution and
    attestation of the will. Accordingly, the appeal was allowed.
        4. Learned counsel for the appellant submitted that the High
B Court has lost sight of the fact that PW2 deposed in court after
  a long lapse of time. Merely because he omitted to say certain
  things that cannot be a ground to discard the evidentiary value
  of his evidence and the High Court should not have interfered
  with the order of the trial court.
c
         5. Learned counsel for the respondents supported the
    judgment.
         6. As per provisions of Section 63 of the Succession Act,
  for the due execution of a Will (1) the testator should sign or
D affix his mark to the Will; (2) the signature or the mark of the
  testator should be so placed that it should appear that it was
  intended thereby to give effect to the writing as a Will; (3) the
  Will should be attested by two or more witnesses, and (4) each
  of the said witnesses must have seen the testator signing or
E affixing his mark to the Will and each of them should sign the
  Will in presence of the testator.
        7. The attestation of the Will in the manner stated above is
  not an empty formality. It means signing a document for the
  purpose of testifying of the signatures of the executant. The '
F attested witness should put his signature on the Will animo
  attestandi. It is not necessary that more than one witness be
  present at the same time and no particular form of attestation is
  necessary. Since a Will is required by law to be attested,
  execution has to be proved in the manner laid down in section
G and the Evidence Act which requires that at least one attesting
  witness has to be examined for the purpose of proving the •
  execution of such a document. Therefore, having regards to the
  provisions of Section 68 of the Evidence Act and Section 63 of
  the Succession Act, a Will to be valid should be attested by two
H or more witnesses in the manner provided therein and the
                 YUMNAM ONGBI TAMPHA IBEMMA DEVI V.         163
           YUMNAM JOYKUMAR SINGH & ORS. [DR. ARIJIT PASAYAT, J.]

           propounder thereof should examine one attesting witness to A
      ,.   prove the will. The attesting witness should speak not only about
           the testator's signature or affixing his mark to the will but also
           that each of the witnesses had signed the will in the presence of
           the testator.
               8. In Girja Datt Singh v. Gangotri Datt Singh [AIR 1955     8
           SC 346] this court observed as follows:

                "15. When this position was realised the learned counsel
                for Gangotri fell back on an alternative argument and it
                was that the deceased admitted execution and completion    c
                of the will Ex. A-36 and acknowledged his signature thereto
                before the Sub-Registrar at Tarabganj and this
                acknowledgment of his signature was in the presence of
                the two persons who identified him before the Sub-
                Registrar viz. Mahadeo Pershad and Nageshur who had
                                                                            D
                in their turn appended their signatures at the foot of the
       .        endorsement by the Sub-Registrar. These signatures it
                was contended were enough to prove the due attestation
                of the will Ex. A-36. This argument would have availed
                Gangotri if Mahadeo Pershad and Nageshur had
                appended their signatures at the foot of the endorsement E
                of registration animo attestandi. But even apart from this
                circumstance it is significant that neither Mahadeo Pershad
                nor Nageshur was called as a witness to depose to the
      J
                fact of such attestation if any. One could not presume from
                the mere signatures of Mahadeo Pershad and Nageshur F
                appearing at the foot of the endorsement of registration
                that they had appended their signatures to the document
                as attesting witnesses or can be construed to have done
                so in their capacity as attesting witnesses. Section 68 of
                the Indian Evidence Act requires an attesting witness to G
..{             be called as a witness to prove the due execution and
                attestation of the will. This provision should have been
                complied with in order that Mahadeo Pershad and
                Nageshur be treated as attesting witnesses. This line of
                argument therefore cannot help Gangotri."                   H
    164        SUPREME COURT REPORTS                      (2009] 4 S.C.R.


A        9. In B. Venkatamuni v. C.J. Ayodhya Ram Singh
    [2006(13) sec 449], it was observed as follows:
          "15. It is, however, well settled that compliance with
          statutory requirements itself is not sufficient as would
          appear from the discussions hereinafter made.
B
          16. The approach of the Division Bench of the High Court
          did not address itself the right question. It took an
          erroneous approach to the issue as would appear from
          the decision of this Court in Surendra Pal v. Dr. Saraswati
c         Arora [197 4(2) SCC 600] whereupon again Mr V.
          Balachandran himself placed reliance, wherein the law
          was stated in the following terms: (SCC p. 605, para 7)
          "7. The propounder has to show that the will was signed
          by the testator; that he was at the relevant time in a sound
D         disposing state of mind, that he understood the nature
          and effect of the dispositions, that he put his signature to        ..
          the testament of his own free will and that he has signed
          it in the presence of the two witnesses who attested it in
          his presence and in the presence of each other. Once
E         these elements are established, the onus which rests on
          the propounder is discharged. But there may be cases in
          which the execution of the will itself is surrounded by
          suspicious circumstances, such as, where the signature
          is doubtful, the testator is of feeble mind or is overawed
F         by powerful minds interested in getting his property, or
          where in the light of the relevant circumstances the
          dispositions appear to be unnatural, improbable and
          unfair, or where there are other reasons for doubting that
          the dispositions of the will are not the result of the testator's
          free will and mind. In all such cases where there may be
G
          legitimate suspicious circumstances those must be
          reviewed and satisfactorily explained before the will is                 J.
          accepted. Again in cases where the propounder has
          himself taken a prominent part in the execution of the will
          which confers on him substantial benefit that is itself one
H
                YUMNAM ONGBI TAMPHA IBEMMA DEVI V.         165
          YUMNAM JOYKUMAR SINGH & ORS. [DR. ARIJIT PASAYAT, J.]

              of the suspicious circumstances which he must remove              A
              by clear and satisfactory evidence. After all, ultimately it is
              the conscience of the court that has to be satisfied, as
              such the nature and quality of proof must be commensurate
              with the need to satisfy that conscience and remove any
              suspicion which a reasonable man may, in the relevant             B
              circumstances of the case, entertain."
              17. In H. Venkatachala Iyengar v. B.N. Thimmajamma
              [AIR 1959 SC 443] it was opined: (SCR pp. 443-45)
              "However, there is one important feature which                    c
              distinguishes wills from other documents. Unlike other
              documents the will speaks from the death of the testator,
              and so, when it is propounded or produced before a court,
              the testator who has already departed the world cannot
              say whether it is his will or not; and this aspect naturally
                                                                              D
              introduces an element of solemnity in the decision of the
              question as to whether the document propounded is
              proved to be the last will and testament of the departed
              testator. Even so, in dealing with the proof of wills the court
              will start on the same enquiry as in the case of the proof
              of documents. The propounder would be called upon to E
              show by satisfactory evidence that the will was signed by
              the testator, that the testator at the relevant time was in a
              sound and disposing state of mind, that he understood
              the nature and effect of the dispositions and put his
              signature to the document of his own free will. Ordinarily F
              when the evidence adduced in support of the will is
              disinterested, satisfactory and sufficient to prove the sound
              and disposing state of the testator's mind and his signature
              as required by law, courts would be justified in making a
    -IC
              finding in favour of the propounder. In other words, the G
              onus on the propounder can be taken to be discharged on
               proof of the essential facts just indicated.
'
              There may, however, be cases in which the execution of
              the will may be surrounded by suspicious circumstances.
                                                                                H
    166        SUPREME COURT REPORTS                     [2009] 4 S.C.R.


A          The alleged signature of the testator may be very shaky
           and doubtful and evidence in support of the propounder's
           case that the signature in question is the signature of the
           testator may not remove the doubt created by the
           appearance of the signature; the condition of the testator's
B          mind may appear to be very feeble and debilitated; and
           evidence adduced may not succeed in removing the
           legitimate doubt as to the mental capacity of the testator;
           the dispositions made in the will may appear to be
           unnatural, improbable or unfair in the light of relevant
c          circumstances; or, the will may otherwise indicate that the
           said dispositions may not be the result of the testator's
          free will and mind. In such cases the court would naturally
          expect that all legitimate suspicions should be completely
          removed before the document is accepted as the last will
          of the testator. The presence of such suspicious
D
          circumstances naturally tends to make the initial onus very
          heavy; and, unless it is satisfactorily discharged, courts
          would be reluctant to treat the document as the last will of
          the testator. It is true that, if a caveat is filed alleging the
          exercise of undue influence, fraud or coercion in respect
E         of the execution of the will propounded, such pleas may
          have to be proved by the caveators; but, even without
          such pleas circumstances may raise a doubt as to whether
          the testator was acting of his own free will in executing the
          will, and in such circumstances, it would be a part of the
F         initial onus to remove any such legitimate doubts in the
          matter."
           In Guro v. Atma Singh [1992(2) SCC 507)this Court has
          opined: (SCC p. 511, para 3)
G         "3. With regard to proof of a will the law is well settled that
          the mode of proving a will does not ordinarily differ from
          that of proving any other document except as to the special
          requirement prescribed in the case of a will by Section 63
          of the Succession Act, 1925. The onus of proving the will
H         is on the propounder and in the absence of suspicious
                  YUMNAM ONGBI TAMPHA IBEMMA DEVI V.         167
            YUMNAM JOYKUMAR SINGH & ORS. [DR. ARIJIT PASAYAT, J.]

                 circumstances surrounding the execution of the will, proof A
                 of testamentary capacity and signature of the testator as
                 required by law is 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 B
                 as genuine. Such suspicious circumstances may be a shaky
                 signature, a feeble mind and unfair and unjust disposal of
                 property or the propounder himself taking a leading part
                 in the making of the will under which he receives a sub-
••   i.

                 stantial benefit. The presence of suspicious circumstances
                 makes the initial onus heavier and the propounder must
                                                                              c
                 remove all legitimate suspicion before the document can
                 be accepted as the last will of the testator."

                19. Yet again Section 68 of the Evidence Act postulates
                the mode and manner of proof of execution of document         D
                which is required by law to be attested stating that the
                execution must be proved by at least one attesting witness,
                if an attesting witness is alive and subject to the process
                of the court and capable of giving evidence.
                20. This Court in Dau/at Ram v. Sodha [2005(1) SCC 40]        E
                stated the law thus: (SCC p. 43, para 10)

                "10. Will being a document has to be proved by primary
     4
                evidence except where the court permits a document to
                be proved by leading secondary evidence. Since it is F
                required to be attested, as provided in Section 68 of the
                Evidence Act, 1872, it cannot be used as evidence until
                one of the attesting witnesses at leasthas been called for
                the purpose of proving its execution, if there be an attesting
                witness alive, and subject to the process of the court and
                                                                               G
      \..       capable of giving evidence. In addition, it has to satisfy
                the requirements of Section 63 of the Succession Act,
                1925. In order to assess as to whether the will has been
                validly executed and is a genuine document, the
                propounder has to show that the will was signed by the·
                                                                               H
    168        SUPREME COURT REPORTS                  [2009] 4 S.C.R.


A         testator and that he had put his signatures to the testament
          of his own free will; that he was at the relevant time in a
          sound disposing state of mind and understood the nature
          and effect of the dispositions and that the testator had
          signed it in the presence of two witnesses who attested it
B         in his presence and in the presence of each other. Once
          these elements are established, the onus which rests on
          the propounder is discharged. But where there are
          suspicious circumstances, the onus is on the propounder
          to remove the suspicion by leading appropriate evidence.
c         The burden to prove that the will was forged or that it was
          obtained under undue influence or coercion or by playing
          a fraud is on the person who alleges it to be so."             L
          (emphasis supplied)

          21. Yet again in Meenakshiammal v. Chandrasekaran
D         [2005(1) SCC 280] it was stated: (SCC p. 287, para 19)
          "19. In Chinmoyee Saha v. Debendra Lal Saha [AIR 1985
          Cal 349] it has been held that if the propounder takes a
          prominent part in the execution of the will, which confers
          a substantial benefit on him, the propounder is required to
E         remove the doubts by clear and satisfactory evidence.
          Once the propounder proves that the will was signed by
          the testator, that he was at the relevant time in a sound
          disposing state of mind, that he understood the nature
          and effect of the disposition and put his signature out of
F         his own free will, and that he signed it in presence of the
          witnesses who attested it in his presence, the onus, which
          rests on the propounder, is discharged and when allegation
          of undue influence, fraud or coercion is made by the
          caveator, the onus is on the caveator to prove the same."
G
          (See also Sridevi V. Jayaraja Shetty [2005 (2) sec 784].
          22. The principle was reiterated in Pentakota
          Satyanarayana v. Pentakota Seetharatnam [2005 (8)
          SCC 67]-wherein it was stated: (SCC pp. 81-82, para 24)
H
      YUMNAM ONGBI TAMPHA IBEMMA DEVI V.         169
YUMNAM JOYKUMAR SINGH & ORS. [DR. ARIJIT PASAYAT, J.]

      "24. In the instant case, the propounders were called upon A
      to show by satisfactory evidence that the will was signed
      by the testator, that the testator at the relevant time was in
      a sound and disposing state of mind, that he understood
      the nature and effect of the dispositions and put his
      signature to the document of his own free will. In other B
      words, the onus on the propounder can be taken to be
      discharged on proof of the essential facts indicated
      above."

      However, having regard to the fact that the will was a
      registered one and the propounder had discharged the C
      onus, it was held that in such circumstances, the onus
      shifts to the contestant opposing the will to bring material
      on record meeting such prima facie case in which event
      the onus shifts back on the propounder to satisfy the court
      affirmatively that the testator did not (sic) know well the D
      contents of the will and in sound disposing capacity
      executed the same.
      23. Each case, however, must be determined in the fact
      situation obtaining therein.
                                                                     E
      24. The Division Bench of the High Court was, with respect,
      thus, entirely wrong in proceeding on the premise that
      compliance with legal formalities as regard proof of the
      will would subserve the purpose and the suspicious
      circumstances surrounding the execution thereof is not of      F
      much significance."
     10. In Benga Behera v. Braja Kishora Nanda (2007(9)
sec  728] in paragraphs 40 and 41 to 46 it was inter alia
observed as follows:
                                                                     G
      "40. It is now well settled that requirement of the proof of
      execution of a will is the same as in case of certain other
      documents, for example gift or mortgage. The law requires
      that the proof of execution of a will has to be attested at
      least by two witnesses. At least one attesting witness has     H
    170        SUPREME COURT REPORTS                     [2009] 4 S.C.R.


A         to be examined to prove execution and attestation of the
          will. Further, it is to be proved that the executant had signed
          and/or given his thumb impression in presence of at least
          two attesting witnesses and the attesting witnesses had
          put their signatures in presence of the executant. (See
B         Madhukar D. Shende v. Tarabai Aba Shedage [2002(2)
          SCC 85] Janki Narayan Bhoir v. Narayan Namdeo
          Kadam [2003(2) SCC 91] and Bhagat Ram v. Suresh
          2003(12)    sec
                       35.)
          41. The Court granting letters of administration with a copy
c         of the will annexed or probate must satisfy itself not only
          about the genuineness of the will but also satisfy itself that
          it is not fraught with any suspicious circumstances.
          42. No independent witness has been examined to show
          how the testatrix came close to Respondent 1. Why
D         valuable agricultural land measuring ac. 4.187 and
          homestead land along with a house standing thereon had
          been gifted in favour of the first respondent, has not been
          explained. The original will has not been produced. Why
          both the will and the sale deed should have been executed
E         on the same day, has not been explained.
          43. The burden on the first respondent was heavy, he being
          a stranger to the family. He failed to discharge the said
          burden. Variance, inconsistencies and contradictions have
          been brought on record, particularly in the statements of
F         PW 4 and PW 9 and other witnesses vis-a-vis the contents
          of the document, which we have noticed hereinbefore.
          44. Leamad trial Judge as also the High Court did not
          take into consideration the effect of such contradictions
          and inconsistencies, particularly the interpolation/variance
G         in the xerox copy of the will vis-a-vis certified copy thereof.
          Serious consideration was required to be bestowed on
          the contention of the appellants that thumb impressions of
          the testatrix on different pages of the xerox copy did not
          tally. No effort was made to compare the thumb impression
H         appearing on the xerox copy with the thumb impression
          YUMNAM ONGBI TAMPHA IBEMMA DEVI V.         171
    YUMNAM JOYKUMAR SINGH & ORS. [DR. ARIJIT PASAYAT, J.]

          appearing on other admitted documents. Non-production                A
          of the original will stating that the will got lost, gives rise to
          an inference that it might have been that the will did not
          contain the thumb impression of the testatrix. The testatrix
          was an old and ill lady. She had no independent adviser
        · in the matter of the execution of the will. On the other hand,       8
          the plaintiff-Respondent 1 and his father being disciple of
          her guru were in a position to dominate her mental process.

           45. Respondent 1 was a student at the relevant time. His
           father had taken an activ~ part in the entire process in
           registering and culmination of the will in favour of his son.       c
           There are materials on record to show that although
           sufficient time had been granted for examination of the
           other attesting witnesses, Chandramani Das Mahapatra
           was not summoned. No summon could be issued only
           because his correct address had not been furnished.
                                                                               D
•          46. Existence of suspicious circumstances itself may be
           held to be sufficient to arrive at a conclusion that execution
           of the will has not been duly proved."
         11. The position was reiterated in Ani/ Kak v. Sharada
    Raje [2008(7) sec 695].                                                    E
           12. It is to be noted that the trial court did not even record
    any reason for coming to the conclusions as done. No issue
•   was framed regarding the validity of the will. The evidence of
    PW2 does not in any way support the claim of due execution
    and attestation of the will. On the contrary, it clearly establishes       F
    that he did not sign in his presence, he did not know what was
    the nature of the document. There was no attesting witness who
    has signed in his presence and, therefore, the requirements of
    Section 68 of the Evidence Act have to be complied with in
    order to show that the two persons who claimed to have signed              G
    as attesting witness can be really treated as attesting witnesses.
    Above being the position, we find no merit in this appeal which
    is accordingly dismissed.

    D.G.                                             Appeal dismissed.