Salil Kumar Datta, J.:-

(1) This is an appeal by the propounder against the judgment and decree dismissing a contentious application for grant of the probate or letters of administration.

(2) The propounder gurudas chattapadhaya is the grandson of the testator late harendra chandra chattapadhaya. His case is that the testator duly executed a will on february 7, 1933, which was also duly attested by the witnesses. The will was registered on june 2, 1933, and the testator died on june 12, 1933. By the said will the testator provided that the income from rs. 7,000/ - which he inherited from his second wife as also the income from all his immovable properties should be spent for the performance of sri sri iswar durga puja and sri sri iswar shyama puja every year. Other movable properties were given to the propounder and he was directed to perform therewith the daily and periodical pujas of the ancestral deity iswar gopal jew. The testator, who had no son, made his elder brother's son kiriti, the father of the propounder, the executor to his will. The said executor as trustee was charged with the performance of the puja and on his death the propounder was to succeed as trustee charged with the same duties and a trustee was also authorised to appoint his succeeding trustee being a lineal descendent of the testator. The will further recited. That the testator had a daughter named durgeshnandini, by his first wife who was dead, and the said daughter was then a widow, and the condition of her family was good there being no apprehension of her being in want of food or clothing. Accordingly no provision was made for the daughter or her sons in the will. The propounder was also made liable to maintain the daughter in event of her disagreement with her sons and if she so desired she could reside in a portion of the house of the testator with a maintenance of rs. 5/ - per month. These are the broad features of the will.

(3) It is the further case of the propounder that since the death of the testator, his father kiriti had been performing the pujas as directed by the will kiriti had in his possession the will executed by the testator but he never obtained the probate of the will. Kiriti died on 2nd chaitra 1354 b. S. Corresponding to march 15, 1948. After death of kiriti, the propounder had been carrying on the pujas as required by the will. The propounder is the only son of the first wife of kiriti who had seven sons and one daughter through his second wife. Since about 3/4 years, there was ill - feeling between the propounder and the step brothers and such ill - feeling was continuing. It then became necessary to have the trust properties demarcated for the purpose of proper management and supervision of the testator's properties. Accordingly, it was urgently necessary to have a grant of the probate of the will or of the letters of administration with the copy of the will annexed. The original will was with kiriti when he died at the native village of khudrun and all the documents on his death fell into the hands of the propounder's brother bagala and since then they had been in his custody. The propounder, however, failed to get the original will from bagala in spite of attempts and had to take out a certified copy of the will which he filed along with his application for the grant. The application for the grant was filed on october 11, 1955, and in the affidavit of assets, the properties declared as belonging to the testator are the undivided half share of the lands described in the schedule thereto.

(4) The application was opposed by the step - brothers of the propounder who contended that the testator had no interest in the immovable properties bequeathed by the will and the properties belonged to kiriti. Further it was contended that the will was not duly executed or attested as required by law. The other objectors were the sons of the daughters of the testator who are the respondents before us. They contended that the will was not executed by the testator nor was legally attested. The testator had no testamentary capacity to execute a will at the time of its alleged execution after knowing the contents or import thereof. Further the bequests are unnatural, inefficious and unrighteous and are also false and fictitious as the testator had great affection for his daughter and her sons. It was further contended that the will was revoked during the life time of harendra, if harendra had really executed the will.

(5) The application, converted as a suit, was tried on evidence before the learned additional district judge, burdwan. The learned judge upon a consideration of submissions of the parties and the materials on record inter alia held that the bequest under the will whereby the daughter of the testator and her sons have been completely deprived of the properties of the testator, are highly unnatural and unrighteous in view of the cordial relation between the daughter and her sons with the testator. The will was registered at katwa registration office though the original registration office is at mangalkote at a distance of 6 miles from the residence, while one has to walk two and a half miles before catching the train for katwa. The above circumstances along with the non - production of the original will by the propounder as also the unusual delay in filing the application for probate or letters of administration lead to suspicions relating the will. The learned judge also found that the evidence of the execution of the will at kiriti's baithakkhana and the absence of a draft alleged to have been prepared under the instructions of the testator also shake the genuineness of the will. There are other discrepancies in the evidence of the two attesting witnesses who were produced and mere registration without evidence of execution of the document after knowing the nature and contents of the document does not dispel the suspicions regarding the will. Further, it was held that the attesting witnesses have not proved to the satisfaction of the court the due execution of the will by the testator and its attestation by the witnesses. Again the non - production of the will raises the presumption that the will was revoked and there is no evidence to show that anybody saw the will after the death of the testator. In the circumstances the application for grant of the probate or the letters of administration with the copy of the will annexed was dismissed. Against the said decision the propounder has preferred this appeal.

(6) Mr. Syama charan mitter, the learned advocate for the respondents, contended, in support of the judgment under the appeal, that the learned judge was correct in holding that non - production of the will raised the presumption that it was revoked by rthe testator, even if it be held that the testator had executed the will. In support. Mr. Mitter relied on the decision in (1) brojabala dhar v. Netyamoyee, 57 clj 447 in which case it was held that where it could not be established by evidence either that the will was found at the death of the testator or that the will could be traced after his death, the ordinary presumption of the will would be that it must have been revoked by the testator. Mr. Banerjee appearing for the propounder contended that the proposition that a will not found at the death of the testator and not traced after his death must be deemed to be a rebuttable presumption. In the instant case according to mr. Banerjee, there was evidence to indicate that the will was in existence after the death of the testator and was secreted by his step brother bagala for obvious purpose.

(7) In (2) welch v. Phillips (1836 - 37) 1 moo. Pc 299, it was held following a course of decisions in the ecclesiastical court "that if a will, traced to the possession of the deceased, and last seen there, is not forthcoming on his death, it is presumed to have been destroyed by himself; and that the presumption must have effect, unless there is sufficient evidence to repel it. It is a presumption founded on good sense; for it is highly reasonable to suppose that an instrument of such importance would be carefully preserved, by person of ordinary caution, in some place of safety, and would not be either lost or stolen; and if, on the death of the maker, it is not found in his usual repositories or elsewhere he resides, it is in a high degree probable that the deceased himself has purposely destroyed it. But this presumption, like all others of fact, may be rebutted by others which raise a higher degree of probability to the contrary. The onus of proof in such circumstances, is undoubtedly on the party propounding the will". In the case of (1) brojabala. V. Netyamoyee (supra) following observation in (3) allan v. Moorison, (1900) ac 604, was quoted with approval. "it is not denied that there is a presumption that if a will traced to the possession of the deceased and last seen there is not forthcoming on his death, it is presumed to have been destroyed by himself; and that presumption must have effect unless there is sufficient evidence to rebut it.

(8) Mr. Banerjee has drawn our attention to the evidence of the propounder where he stated that the will fell into the hands of bagala when kiriti died at khudrun, the propounder being away then at his place of business at katwa. The will was lost when in bagala's custody and could not be traced out, and accordingly the certified copy of the will was filed. The propounder also stated that kiriti obtained delivery of the deed from the registration office which also appears to be probable, as the document could not have been received back from the registration office by the testator within ten days following, the period he was alive. Thereafter kiriti kept the will in his box, and had the same in his custody after the testator's death and was seen by the propounder on several occasions. The will with other documents of kiriti fell into the hands of bagala on kiriti's death. Bagala also stated in his evidence that the will was in the custody of kiriti after the testator's death and kept in a box but was found missing after kiriti's death. In view of adverse claims that were being raised in their objection by bagala and other step - brothers of the propounder against the testator's having any share or interest in the properties and denial of the existence of the will, it seems probable that bagala would be reluctant to produce the will which would be against their claims as stated in the objection. In any event, evidence discloses that the will was in existence after the death of the testator. Further, this will was registered by the testator at katwa while in the case of (1) brojabala v. Netyamoyee (supra) , parol evidence was given as to the terms of the will which was not acceptable to the court. Mr. Banerjee also referred to the decision in (4) padman v. Hariwanta and others, air 1915 pc 111, in which case the privy council observed that in view of the habits and conditions of the people in india, this rule of law laid down in (2) welch v. Phillips (supra) must be applied with caution. We are therefore of opinion that the propounders proved the existence of the will after the death of the testator and thereby have rebutted the presumption of revocation of the will by the testator caused by its non - production.

(9) The next question that comes in for consideration is about the delay in filing the application for probate. It. Appears that although the testator died on june 12, 1933, no application was made by kiriti, the executor named in. The will, during his life time and by the propounder till october 11, 1955, the propounder alleges in his petition and as also in his affidavit of assets that his father kiriti during his life time being in possession of the properties of the testator, duly performed the pujas as directed by the will. After his death on march 15, 1948, the propounder came in possession of the properties under the will and had been carrying on the pujas as directed by the will. There is no specific denial by the respondents of these allegations made by the propounder about his being in possession of the properties and about the pujas being performed by kiriti and, after his death, by the propounder nor is there any contrary evidence to indicate that the caveators at any tame took any step to assert their alleged title or right to the properties comprised in the will. It has been submitted by mr. Banerjee that there was no necessity to apply for the probate or letters of administration in support of the will of the testator and only when the step - brothers of the propounder raised, about 3/4 years prior to the filing of the application, claims in respect of the properties under the will against the title of the testator, and further claiming that kiriti was the sole owner of such properties, the propounder felt the necessity of moving the court for demarcation of the properties of the testator on the basis of a grant from the court. In our opinion these are ample reasons for kiriti as also the propounder for not moving the court for obtaining a grant earlier and though there has been unusual delay in making the application for probate, the same has been satisfactorily explained by the propounder. The doubts about the genuineness of the will caused by the delay in applying for the grant are thus dispelled from our mind and we are not prepared to refuse the grant prayed for only on the ground of delay.

(10) We now come to the question of execution and attestation of the will. The law relating to proof of the will is well settled by a long course of judicial decisions lastly in (5) purnima debi v. Khagendra, air 1962 sc 567 referred to by the learned judge and in (6) gorantla thataiah v. Thotora venkata subbaiah and others, (1968) 3 scr 473. As was held in (7) barry v. Butlin, (1838) 2 moo. Pc 480,

"the onus probandi lies in every case upon the party propounding the will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. There may be suspicious circumstances which excite the suspicion of the court: and whenever such circumstances exist, and whatever their nature may be, it is for those who propound the will to remove such suspicion and prove affirmatively that the testator knew and approved of the contents of the document. What are suspicious circumstances must be judged in the facts and circumstances of each particular case."

(11) In the light of the above principles, the evidence adduced in this case will have to be examined. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the requirement of attestation in the case of a will as provided in section 63 of the indian succession act, 1925. Any one witness, therefore, may be competent to prove due execution of the will by the testator as also its attestation. When however the execution of the will and its attestation are challenged, it may be desirable to remove the suspicions attending execution and attestation of the will, by producing in court all attesting witnesses to the will. In this case, there are as many as eight attesting witnesses to the will including the writer and we have it from evidence that of them, five including the writer are dead; out of the remaining three witnesses, nalinakshya and damodar have been examined while the other witness nibaran could not be examined as he was stated to have gone to see his ailing daughter at monghyr. There is no evidence or suggesiton that the said witness was being intentionally kept out of the witness box by the propounder. In (8) bankim behari v. Matangini 24 cwn 626 (pc) the judicial committee did not consider the non - examination of all the attesting witnesses not intentionally kept out by the propounder as destroying the case of the propounder of the will and following the principle, we also, in the instant case do not consider it so.

(12) About the execution of the will, court will have to be satisfied that

"the testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but he must also have the capacity to comprehend the extent of his property and the nature of the claims of others, whom by his will, he is excluding from all participation in that property"

as laid down in (9) harwood v. Baker, (1840) 3 moo. Pc 282 (290). The two attesting witnesses have stated in evidence that after the will was written by nani gopal sarkar the scribe, he read over the same to the testator, who himself also read the will, and then he signed the will in the presence of the attesting witnesses and the attesting witnesses signed in his presence. On these material facts, there is no discrepancy and by his overt acts of reading the will and signing the same after reading it indicate that the testator had the full testamentary capacity with complete comprehension of what he was doing, the nature of his properties, claims of others thereon, whom he was depriving by the said will. It is also the evidence of one of the respondents, bejoy, who only appeared to depose, that the testator was a religious minded person in his old age and this is also borne out by the nature of bequests in the will, whereby the testator provided that all incomes and usufructs of his properties should be spent in performing the pujas annually. There is no reason as to why we should disbelieve the evidence of the attesting witnesses who deposed and nor is there any suggestion as to why they, who are quite respectable persons, should perjure themselves. The fact that the testator was in possession of his physical as also mental faculties is proved by the fact that a few days thereafter the testator himself went to katwa and personally presented the document for registration at the katwa sub - registration office and had the same duly registered.

(13) Mr. Mitter has drawn our attention to the discrepancy in the evidence of the attesting witnesses in that surendra santra and sasadar mukherjee are also stated by the said witnesses to be present at the execution of the will and as signing as attesting witnesses though they are not attesting witnesses to the will. We do not think it unnatural that at the distance of time, there may be such discrepancies which are of not much significance. Mr. Mitter has also spoken of the draft of the will from which the will was prepared but the draft has not been produced. After such long time and when even the original will is not forthcoming, nothing much can be said about the draft which according to the propounder was with the will. Further, the contents of the will being approved by the testator, the non - production of the draft loses its importance and it does not cause any suspicion in our mind about the genuineness of the will. We also find nothing improbable in the will being executed at the baithakkhana of kiriti, who, it must be remembered, was then the eldest male member of the family after the testator. Mr. Mitter has commented that the propounder stated in evidence even the daughter and the grand children were present at the execution of the will which is even not stated by any of the witnesses. It was observed in (8) bankim v. Matangini (supra) that there is a tendency amongst litigants to back up a good case by false or exaggerated evidence. Even then it will not be safe to assume that a case must be false if some of the evidence in support of it is doubtful or is clearly untrue. We, therefore, do not attach any importance to the said evidence and our conclusion on the materials on record is that the testator had full testamentary capacity at the time the will was executed, that on complete comprehension of the provisions of the will he duly executed the will and the will was duly attested as required by law.

(14) Mr. Mitter drew our attention to the registration of the will at katwa. According to him the registration office was mangalkote 6 miles away from the village while for katwa one has to walk a distance of 2 miles and then board the train. The explanation given by the propounder is that the testator went to katwa also to have a dip in the ganges. When we remember that the testator was religious minded as stated by bijoy o. P. W. I. , we do not find anything improbable for the testator to seize the opportunity for proceeding to katwa to have the dip in the ganges in addition. While mangalkote was six miles away and there is no evidence of the availability of any conveyance for the said place, far katwa one has to walk only 21/2 miles to catch the train. According to the learned judge, there is no explanation for the delay in registering the document, as it was registered on june 2, 1933, though executed on february 7, 1933. It may not have been convenient for the testator to go to katwa earlier and in our opinion, there has not been such delay as to shake the genuineness of the will, and no explanation appears to us to be necessary.

(15) Mr. Banerjee contended that registration of the will, in any event, dispels the doubt as the genuineness of the will. In support he relied on the decision in (10) gangamoyi v. Troilukhya nath, (1906) ilr 33 calcutta 537 (pc) in which case it was held that:

"the registration is a solemn act to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during registration and see that the proper persons are present, are competent to act, and are identified to his satisfaction and all things done before him in his official capacity and verified by his signature will be presumed to be done duly and in order. Of course it may be shown that a deliberate fraud upon him has been successfully committed."

mr. Mitter opposing the said contentions submitted that mere registration of the will not by itself be sufficient to dispel the suspicion regarding it where suspicion exists without submitting the evidence of registration to close examination as was held in (5) purnima debi v. Khagendra (supra).

(16) In the decision in (11) ishwardeo narayan v. Kamta devi, air 1954 sc 280, it was held that there is nothing in law which requires the registration of a will and to draw any inference against the genuineness of the will on ground of its non - registration is wholly unwarranted. It is clear also that mere registration by itself, with out more, does not give an unimpeachable sanctity to the will. In (5) purnima debi's case, it was also laid down that if a will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness, but mere registration by itself will not be sufficient to dispel all suspicions where suspicion exists without submitting the evidence of registration to close examination. If the evidence as to registration on a close examination reveals that the registration was made in a perfunctory manner, the officer registering the will did not read over to the testator or did not being home to him that he was admitting the execution of a will or did not satisfy himself in some other way (as for example by seeing the testator reading the will) that the testator knew that it was a will the execution of which he was admitting, the fact that the will was registered would not be of much value. In the said case it was found that the will was registered on commission not by the registrar himself but by his clerk deputed by him to the residence of alleged testator who is alleged to have admitted execution before him. This with other attending circumstances was considered insufficient in, that case to dispel the suspicion about the execution and attestation of the will.

(17) In the instant case, there is no evidence to show that the registration was done in a perfunctory manner nor it was shown by the caveators that any fraud was committed upon the registering authority. Even in the written objection filed by the appellants their is no allegation about any irregularity or fraud relating to registration or registration being done in a perfunctory manner. If the caveator alleged any fraud in registration, the onus lay on them to prove the same. Of course, even where there was no such plea, but the circumstances give rise to doubts it is for the propounder to satisfy the conscience of the court that the will was genuine. There is no suspicion in our mind about due execution and attestation of the will and where no suspicion exists, registration of the will, presented by the testator personally at the registration office, and registered in accordance with law undoubtedly proves its genuineness, on the principles laid down in the above decisions.

(18) The last point urged is about the bequests being unnatural, unfair and unrighteous. In (5) purnima debi's case, it was stated that if the dispositions are unnatural, improbable or unfair in the light of the relevant circumstances or the will might otherwise indicate that the said disposition might not be the result of the testator's free will and mind, the propounder must remove the legitimate suspicions completely before a grant can be made. According to mr. Mitter the dispositions are obviously unfair, and unnatural as the testator's daughter and her sons were completely deprived of the properties of the testator even though there was cordial relation between them and this indicated that the testator did not have a free hand in making the disposition nor the dispositions were of the testator. Mr. Banerjee appearing for the propounder has contended that if the will is found to be duly executed and attested and if the testator is found to have acted with full comprehension of what he was doing, the court cannot interfere with the exercise of his volition as was held in (12) motibai homusjee kanga v. Jamsetjee hormusjee kanga, 29 cwn 45 pc or to inject its own ethics of a moral or a fair disposition according to its standard as was held in (13) ajit v. Akhil, air 1960 calcutta 551.

(19) In the decision in (14) bullikunwar v. Bhagirathi (1905) 9 cwn 649 (pc) it was held that the court of probate should first consider the question of execution of the will. If the court is satisfied about the factum of execution that in itself will amount to a finding that the testator with full knowledge of the claims of the relations upon his bounty, with the full knowledge of the state of his properties and with full knowledge of every material circumstance had executed the will. But it will be permissible to a court of probate to consider aliunde the terms of the will, to consider whether the terms are generous or not, to consider whether relations who had natural and legitimate claims on the testator's bounty have been cut off altogether or not and then to consider due execution of the will with such preconceived ideas and to hold that the onus probandi had not been fully discharged by the propounder and to refuse to grant the probate of the will. In purnima debi's case also it was held that even where there were suspicious circumstances and the propounder succeeded in removing them the court will grant probate though the will might be unnatural and might cut off wholly or in part near relations. It is obvious that the unnaturalness of a bequest is suspicious circumstance indicating that it may not be the result of a testator's free will, we have however seen that the testator executed the will with full testamentary capacity and being a religious minded person there is nothing unnatural in his bequeathing the entire properties for the puja of these deities out of their income and usufructs while no property was given to kiriti or to the propounder. We have no suspicion as already indicated that the testator was executing the will as free person with full testamentary capacity and it was duly attested. Further in view of the solvent condition of the daughter and her sons as stated in the will which was not disputed by the caveators, it must be held that there is nothing unnatural, unrighteous or unfair in the bequest made by the testator.

(20) In the view we have taken the judgment and decree under appeal cannot be sustained and must be set aside. The appeal is accordingly allowed and the suit is decreed. In the circumstances of the case there will be no order as to the costs.

(21) Let the records go down as early as possible for enabling the trial court to issue the letters of administration with the copy of the will annexed.