D.K. Jain, J.

1. This is a Letters Patent Appeal from the order of the learned Single Judge dated 24 February, 1987.

2. Khazan Singh, the appellant herein, is the husband of Smt. Kunti Devi, the deceased. Smt. Kunti Devi died on 7 May, 1957 leaving behind four sons, namely Dinesh Kumar, Mohinder Kumar, Yoginder Kumar and Salinder Kumar and two daughters, namely Pushpa and Sushma besides the husband, Khazan Singh.

3. On 6 October, 1972 the appellant filed an application under Section 276 of Indian Succession Act, 1925 for grant of a probate in respect of the alleged Will of Kunti Devi. The appellant had propounded a paper-writing Ex. P 1, dated 26 August 1965 as a last Will and testament of the deceased, The only property left behind by the deceased was a house property. As per the said Will the deceased had made a bequest of the immoveable property in favour of the appellant.

4. One of the sons of the deceased, namely Dinesh Kumar filed objections to the said petition. According to him the Will was not genuine both in terms of execution and attestation. On these pleadings, issues were framed and the parties went to trial. Reliance was placed by both the sides on oral and documentary evidence. On a consideration thereof, the District Judge vide his judgment dated 22 August 1975 came to the conclusion that Ex. P I was the last Will and testament of Kunti Devi. He, however, noted that since the testatrix had not appointed any one as executor in the Will, the appellant was not entitled to grant of probate in respect the said Will. Nevertheless, the District Judge was of the opinion that the appellant being a universal legatee was entitled to Letters of Administration with the Will annexed in respect of the estate of the deceased. He, accordingly, partly allowed the application and directed that Letters of Administration to the estate of the deceased with the Will annexed shall be granted in favour of the appellant subject to his filing valuation of the property in the form prescribed by law.

5. Aggrieved by the said judgment of the District Judge, Dinesh Kumar the contesting respondent herein filed an appeal to this Court. The learned Single Judge, while allowing the appeal, enumerated the following suspicious circumstances; (i) except for Khazan Singh, all other close relatives and Class-1 heirs of the testatrix have been completely excluded in the Will; (ii) Khazan Singh played an active and concious role in both the execution and attestation of the Will; (iii) application for grant of probate was filed by Khazan Singh after a lapse of more than three years after the death of testatrix; (iv) no explanation was furnished as to why second witness, who was alive, was not produced; (v) draft of the Will was not produced; (vi) the Will having been drafted by an Advocate, he was not examined to prove that contents of the draft were dictated or approved by the testatrix at the stage of draft; and (vii) the averment in the Will that the testatrix had already given all the gold ornaments at the time of marriage of elder son, the contesting respondent herein, has not been proved by Khazan Singh. The learned Single Judge, thus, held that Khazan Singh had failed to prove that the Will is genuine. He accordingly, set aside the judgment of the District Judge, granting Letters of Administration to the appellant.

6. The appellant has now preferred a second appeal under Clause 10 of the Letters Patent as applicable to this Court.

7. Mr. Bharat Inder Singh, learned Counsel for the appellant, has contended that the learned Single Judge has not only erred in applying the correct principles of law as enunciated by the Honble Supreme Court on the subject, but has also based his judgment on certain facts which are not borne out of the record. For instance, he points out that there is no material on record to suggest that Will was prepared by an Advocate, He submits that the Will was admittedly drafted by a Scribe in Urdu script and the words WHEREAS and NON THEREFORE referred to by the learned Judge, no where appear in the original Will which has been placed on record.

8. It is submitted by the learned Counsel that the evidence led by the appellant not only explains all the circumstances which have been treated as suspicious circumstances surrounding the Will, but also proves that the Will is genuine. He contends that the testamentary capacity of the executrix or the genuineness of the Will cannot be doubted merely because the appellant is alleged to have taken active part in the execution of Will.

9. In this behalf he has placed reliance on a decision of the Supreme Court in the case of Smt. Malkani v. Jamadar, AIR 1987 SC 767 [LQ/SC/1987/124] . In that case, the testatrix having dis-inherited her daughter, it was sought to be pleaded on behalf of the daughter that the alleged Will was not natural and had been obtained by her paternal cousin by fraud. It was contended that the propounders had taken a prominent part in the execution of the Will and that by itself is generally treated as a suspicious circumstances surrounding the execution of the Will and, therefore, the propounders were required to remove such suspicion by clear and unimpeachable evidence. The Court observed that there was little doubt on the general proposition that the propounders active participation in the execution of the Will is generally treated as suspicious circumstance surrounding the Will but such a circumstance by itself is not sufficient to create any doubt on the testamentary capacity or the genuineness of the Will. The said principle had to be applied on the facts and circumstances of each case.

10. On the other hand Mr. Vijay Kishan, the learned Counsel for the contesting respondent supports the judgment of the learned Single Judge. He submits that in view of the suspicious circumstances, as noticed by the learned Judge, the initial onus to explain satisfactorily these circumstances was very heavy on the appellant, which he has failed to discharge and, therefore, the alleged Will could not be accepted as the last Will of the testatrix, Smt. Kunti Devi.

11. He has placed reliance on a decision of the Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 SC 443 [LQ/SC/1958/142] . In this case it was observed as follows:

There may, however, be cases in which the execution of the Will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounders 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 testators 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 depositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances, or, the Will may otherwise indicate that the said dispositions may not be the result of the testators free will and mind. In such cases the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious 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 was further observed:

apart from the suspicious circumstances above referred to in some cases the Wills propounded disclose another infirmity. Propounders themselves take prominent part in the execution of the Wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the Will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the Will and the propounder is required to remove the said suspicion by clear and satisfactory evidence.

12. At this stage it may also be noticed that in the same judgment the Supreme Court has also observed:

for deciding material questions of fact which arise in applications for probate or in actions on Wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence and it would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. The Court also observed that it is not doubt true that on the proof of the signatures of the deceased or his acknowledgement that he has signed the Will be presumed to have known the provisions of the instrument he has signed: but the said presumption is liable to be rebutted by proof of suspicious circumstances. What circumstances would be regarded as suspicious cannot be precisely defined or exhaustively enumerated. That inevitably would be a question of fact in each case.

13. It is the submission of the learned Counsel for the contesting respondent that Khazan Singh having taken active interest in the execution of the Will, a strong suspicion as to the genuineness of the Will has been raised and no satisfactory evidence has been brought on record to clear that suspicion. In this behalf, reliance is placed on the judgment of the Supreme Court in the case of Ram Pyari v. Bhagwant and others, JT 1990(1) SC 420 [LQ/SC/1990/145 ;] ">JT 1990(1) SC 420 [LQ/SC/1990/145 ;] [LQ/SC/1990/145 ;] . In that case, the disinherited daughter had challenged the validity of Will alleged to have been executed by her father one day before his death, bequeathing all his property in favour of sons of her only sister, on the ground that propounders having taken active interest in execution of Will it was surrounded by suspicious circumstance. The trial Court and appellate Courts, on being satisfied with the execution of Will, upheld the validity thereof. On appeal, while declaring the alleged Will to be invalid, the Supreme Court held as follows:

Although freedom to bequeath ones own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he has disposing and persons who were to be beneficiaries of his disposition. Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest to propounder in execution of Will raises another strong suspicion. In H. Venkatachalliah v. N. Themmajamma, AIR 1959 SC 443 [LQ/SC/1958/142] it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, thus by producing scribe or attesting witness or proving genuineness pf testators thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Courts conscience is satisfied not only on execution but about its authenticity.

14. Mr. Vijay Kishan has also placed reliance on another judgment of the Supreme Court in the case of Kalyan Singh v. Chhoti, JT 1989(4) SC 439 [LQ/SC/1989/608] . This judgment had also been referred to in the case of Ram Pyari (supra), In this case the Supreme Court observed as under:

It must be stated that the factum of execution and validity of the Will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the Court is not confined only to their testimony and demeanour. It would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the Covert to look into surrounding circumstances as well as inherent improbabilities of the cases to reach a proper conclusion on the nature of the evidence adduced by the party.

15. We have considered the respective contentions of the parties and the principles applicable for proof of genuiness of a Will enunciated in the authorities cited, referred to above.

16. At this stage it will be useful to refer to the judgment of the Supreme Court in the case of Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 [LQ/SC/1963/217] , wherein, the principles laid down on the issue involved in the earlier pronouncements in H. Venkatachala lyanger v. B. N. Thimmajamma (supra) and Rani Purnima Devi v. Khagendra Narayan Dev, AIR 1962 SC 567 [LQ/SC/1961/289] , have be reiterated. This judgment has been noticed in almost all the subsequent judgments which have been cited at the Bar. It was so Held:

The mode of proving a Will does 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 Section 63 of the Indian Succession 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. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances given 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 signature of the testator, the condition of the testators 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 testators mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last Will of the testator. If the propounder himself takes 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.

17. It is no doubt true that if the Will is not natural in that its terms disturb the normal succession or inheritance, and the propounder of a Will has taken active part in its creation, there is necessity of circumspection and the Court has to satisfy itself that the Will embodies the intention of the testator and the factum and validity of Will cannot be determined on mere proof of execution of Will. What matters is the intention of the testator, to be deduced from evidence on record and ascertain if the testator really intended to do what it is reflected to have done. If there are any serious and material suspicious circumstances, it is for the propounder to explain them to the satisfaction of the Court.

18. Having noticed the principles which are to be borne in mind in deciding the question whether a Will is genuine or not, we turn to the facts in hand.

19. In relation to the Will allegedly executed by Smt Kunti Devi on 26 August, 1965, there is a testimony of the Scribe, namely Jamuna Das (P.W. 2), one of the attesting witnesses, namely Jagdish Chand (P.W. 1) and the appellant himself. Both Jamuna Dass and Jagdish Chand stated that the Will Ex. P. 1 was executed by Smt. Kunti Devi, testatrix; it was scribed by P.W. 2 Jamuna Das; it was read over and explained to the testatrix; who admitted it to be correct, signed and put her thumb impression thereon in the presence of two attesting witnesses, Jagdish Chand (P.W. 1) and Kulwant Rai. Appellant Khazan Singh (P.W. 3) corroborated them. Nothing material was brought out in cross-examination. The suggestion in cross-examination that Will does not bear signatures or thumb impression of the testatrix was denied by them. Scribe (P.W. 2) is a professional Deed Writer and deposed about the existence of entry of Will, duly signed by both she attesting witnesses and the testatrix in his professional register. The requirements of law for proof of a Will were squarely complied with and the learned trial Court held so.

20. As mentioned above, the learned Single Judge however has enumerated 7 suspicious circumstances. It is well settled that any and every circumstance is not suspicious circumstance. A circumstance would be suspicious when it is not normal and is not normally expected in a normal situation or is not expected of a normal person. The said circumstances in the light of the evidence adduced by the appellant, it is urged, would show that most of the stated circumstances are by no means suspicious. We have considered the matter thoughtfully and feel inclined to agree with.

21. In so far as the exclusion of close relatives and Class-I heirs of the testatrix is concerned, a Will in favour of husband or vice-versa to the exclusion of others, stands on a different footing as compared to a Will in favour of other heirs or strangers. The concept of Will itself envisages preference to one over the other. In our society it is not unnatural or unusual for husband or wife to bequeath his/her whole property to each other to the exclusion of their progeny. It is often resorted to keep up amity in the family and sometimes to ensure proper care, status and respect to the living spouse after the demise of the other. Furthermore, in the instant case, although contesting respondent has set up a case that the Will is not genuine, he has not produced any evidence in support thereof. In our opinion, therefore, the stated circumstance is not suspicious. In our view, facts in the instant case are clearly distinguishable from the facts prevailing in Kalyan Singh v. Chhoti and others (supra) and Ram Pyari v. Bhagwant (supra) relied upon by the learned counsel for the respondent.

22. As regards the alleged active involvement of the appellant in the execution and attestation, (circumstance ii) it has not been possible for us to lay our hands on any piece of evidence from where it could reasonably be inferred that the appellant, Khazan Singh, had played some abnormal part in the process of execution of the Will or had any undue influence over the testatrix in executing the Will in question. His getting the scribe or calling the attesting witnesses, in our view, does not cast any doubt on the authenticity of the Will. It has come in evidence that the Will executed by Smt. Kunti Devi had been scribed by P.W. 2 who has testified in the Court that he had read over and explained the contents of the Will to her whereafter she signed and pot thumb impressions thereon and on his register P.W.1, the attesting witness, has duly proved the execution of the Will. The evidence of these two witnesses undoubtedly shows that voluntarily and after fully knowing and understanding the nature of the document the testatrix had executed the Will. In the light of the law laid down in the aforesaid cases and on scrutiny of evidence, we are satisfied that there is no merit in this objection.

23. As for the circumstance of three years delay in setting up a Will, reliance was placed on Kalyan Singh v. Chhotis case (supra) in which the Will was produced in long drawn litigation, 43 years after its execution, although the propounder had opportunities to produce it in litigation earlier to support his title and the attesting witness of Will was only 9 years old. It was held that it was a strong and serious suspicious circumstance affecting the existence and validity of the Will. Three years time taken in filing the probate proceedings in the instant case, looked from that standard, we consider, is not of much significance. As already noticed, due execution of the Will including attestation by two witnesses, has been fully proved by one attesting witness Jagdish Chand, who saw the testatrix and other witness Kulwant Rai putting the signatures on the Will. He himself signed the same in the presence of other witness and the scribe. In these circumstances, it is difficult to draw any adverse inference against the genuineness of the Will on the ground of delay in taking up the probate proceedings.

24. The objection about non-production of the second attesting witness fades into insignificance when considered in the light of the testimony of the other witness, Jagdish Chand and the Scribe, who swear about the attestation of the Will and also that the testatrix was in sound disposing mind at the relevant time. No suggestion was put in cross-examination to the propounder that the second witness, Kulwant Rai, was with held as he would not have supported the authenticity of the Will. If really so, the contestant would have produced the said witness. Indeed no grievance was made that he wanted to produce him but was not afforded an opportunity for it. The circumstance of non-production of the said witness cannot be taken against the propounder. The evidence placed on record fulfils the requirements of Section 63(c) of the Indian Succession Act read with Section 68 of the Evidence Act Keeping in view the testimony of the Scribe and one of the attesting witnesses, in our view, much weight cannot be attached to the non-examination of the other attesting witness. The testimony of Jagdish Chand, we feel, is sufficient to prove the due attestation of execution of the Will in question.

25. There is no evidence (on circumstance V) to show that there was any practice that a draft of a Will had to be preserved. No question was put in the cross-examination either to the Scribe who had scribed the Will and perhaps might have been able to say what he had done with it.

26. Similarly as regards grievance (vi), it was fairly conceded by the learned Counsel for the contesting respondent that the Will was not drafted by an Advocate. In this view of the matter, there was no question of calling an Advocate as a witness. In any event, the Scribe Jamuna Das has very clearly stated that he had scribed the Will. He has deposed that the contents were read over and explained to the testatrix in the presence of the attesting witnesses and she had put her signatures and thumb impression in his presence. He also obtained her signatures and thumb impressions as also signatures of attesting witnesses on the register where the entry about the Will was made. There is nothing in the cross-examination to suggest that he was not telling the truth or that the register was not maintained properly or was irregular or could not be relied upon.

27. The last circumstance relied is that the averment in the Will about ornaments given to contesting respondents wife at the time of marriage is not proved. It was not necessary to do so. Due execution of Will having been adequately proved, averments in a Will do not need to be proved independently. Indeed no cross-examination was directed on it.

28. It is well settled that in these matters the Court has to Judge the cumulative effect of direct evidence placed on record alongside with the surrounding circumstances which may be relevant to ascertain whether the Will in dispute is proved to be genuine transaction. On a careful scrutiny of the evidence on record, we have no doubt that it has been proved so. The stated circumstances, individually or collectively, in our view are not sufficient to detract the direct testimony of the attesting witness and of the Scribe about due execution of Will by the testatrix. We are fully satisfied that there are no suspicious circumstances from which it could be inferred that the Will Ex. P. 1 was not executed by the testatrix out of her free Will and she was not in sound disposing mind or that undue influence was exercised by the appellant, Khazan Singh.

29. All the requirements, as laid down by the Supreme Court in the judgments, referred to above, having been fulfilled by the appellant by producing documentary and oral evidence, we are satisfied that the testamentary document, Ex. P. 1, is the last Will of Smt. Kunti Devi and it was validiy executed by her and duly attested by two witnesses.

30. In view of the above discussion, we are constrained to allow the appeal. Accordingly the judgment of the learned Single Judge is set aside and the judgment of the District Judge, granting Letters of Administration, is restored. In the circumstances of the case there shall, however, be no order as to costs.