K.P Mohapatra, J.:— This appeal is against the judgment passed by learned single Judge of this Court dismissing an appeal arising out of a petition under section 276 of the Indian Succession Act (hereinafter referred to as ‘the Act’).

2. The relationship of the parties will appear from the following genealogy:—

3. The appellants filed a petition praying for grant of letters of administration with a copy of the will annexed to it in the ground that the testator Balakrishna who died on 3-12-1959 executed an unregistered will (Ext. 1) in their favour on 18-12-1959. Objection was filed by the respondents being the widow and daughter of Jayakrushna, brother of Balakrishna stating therein that the will was a forged and fabricated document. It was only duly executed by Balakrishna who could not dispose of the coparcenary property by will. Besides, Balakrishna was not in a sound and disposing state of mind on account of bis serious illness on the alleged date of execution of the will. The learned District Judge rejected the petition holding that the will was not a genuine document and its legal execution by Balakrushna was not proved. The appellants preferred the first appeal to this Court and the learned Judge who heard the appeal made a thorough analysis of the oral, as well as documentary evidence, adduced by the parties and found as under:—

(1) The will was dated 18-12-1959. The application under section 276 of the Act was made on 26-6-1973 - about 13½ years after. No specific reason was assigned as to why the will had not seen the light of the day earlier and application for grant of letters of administration had not been made.

(2) In the year 1969 Title Suit No. 28 of 1969 for partition was instituted by Jayakrushna in the Court of the Subordinate Judge, Cuttack. The appellants filed written statement on 28-10-1970 (Ext. B) in the said suit, but did not disclose the date of execution of the will in the said statement.

(3) In the petition under section 276 of the Act itself the date of execution of the will was not mentioned.

(4) The will was not produced in the Title Suit No. 28 of 1969.

(5) The signature of the testator was not available at the space at the foot the document.

(6) The scribe of the will did not make an endorsement that the recitals thereof were read over and explained to the testator; and

(7) Balakrishna could not be said to be physically and mentally fit to execute the will on account of his serious illness and more so he died just five days after the alleged execution thereof. Accordingly, the learned Judge held that the genuineness of the will and its legal execution was not proved by the appellants and so the appeal was dismissed.

4. Mr. S. Misra (1), learned counsel appearing for the appellants, referred to the oral, as well as documentary evidence, in extenso and urged that the appellants were able to prove that the will was a genuine document and was executed by Balakrusbna in their favour in the presence of the attesting witnesses. At the time of execution of the will, he was in a fit state of mind and was able to understand the purport of the document which he executed. Mr. R.K Mohanty learned counsel for the respondents, on the other hand supported the impugned judgment and contended that the will was not a genuine document and it was not executed by Balakrishna according to law.

5. Relying upon a decision of the Supreme Court in the cas of Alapati Kasi Viswanatham v. A. Sivarama Krishnayya . Civ. Apl. No. 232/61—D/11-1-1963., this Court in two cases reported in Jagabandhu Senapati v. Bhagi Senapati . A.I.R 1976 Ori. 52. and Krushna Chandra v. Comnr. of Endowments . A.I.R 1974 Ori. 120., came to hold that the jurisdiction of the Letters Patent Bench is in no way restricted. It is entitled to review even the findings of fact and law arising out of the judgment of a Single Judge in a first appeal. Therefore, in this appeal both questions of fact and law raised before me have to be examined.

6. The learned Single Judge made reference to a catena of decisions, such as, H. Venkatachala Iyengar v. B.N Thimmajagma . A.I.R 1959 S.C 443., Rama Chandra Rambux v. Champabai . A.I.R 1965 S.C 354., Pushpavati v. Chandraja Kadamba . 1973 3 SCC 291 and Smt. Jaswant Kaur v. Smt. Amirt Kaur . 1977 1 SCC 369, laying down the nature and mode of proof of a will, as well as the onus that lies on the propounder, to discharge so as to take advantage under it. I will add only one decision reported in Smt. Indu Bala Bose v. Hanindra Chandra Bose . 1982 1 SCC 20, which has summarised the principles laid down in the earlier and many more other decisions including those of the Privy Council. It was held as follows:—

“This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the 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. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural, improbable or unfair in the light or relevant circumstances, or there might be other indications in the will to show that the testator's mind Was not free. In such a case the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations.

7. Needless to say that any and every circumstances is not a ‘suspicious’ circumstance. A circumstance would be ‘suspicious’ when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.”

8. In the light of the principles it is necessary to go into the facts and evidence of this case. The will was dated 18-12-1959, but it saw the light of the day for the first time when a reference to it was made in the written statement of the appellants on 28-10-1970 in Title Suit No. 28 of 1969 of the Court of the Subordinate Judge, Cuttack. Even in the written statement, the date of execution of the will was not furnished although a mention was made that it had been executed by Balakrishna in favour of the appellants. Moreover, in the petition under section 276 of the Act itself the date of execution was not mentioned. The will was not produced in Title Suit No. 28 of 1969. No specific and satisfactory reasons have been assigned why the appellants omitted to do so. If Balakrishna had in fact executed the will in their favour on 18-12-1959 in the presence of attesting witnesses and to the knowledge of the other relations, particularly Jayakrushna, there was no reason why they should have kept quiet for a long time and even when there was occasion to reveal the details of the will they did not do so. Mr. Misra stated that because the appellants were in possession of the lands left by Balakrishna they did not feel any necessity of disclosing the will, but when the dispute arose with regard to the property in the partition suit there was necessity for them to disclose the same in the written statement. This is not a satisfactory explanation for silence of the appellants as referred to above. Even if they came into possession of the property of Balakrishna, according to law, they ought to have made the application under section 276 long prior to the institution of the partition suit and further there was no impediment for them to disclose the date and other particulars of the will in the written statement, as well as in their petition under section 276 of the Act which they filed subsequently. Such unusual conduct on the part of the appellants does not absolve them of the suspicion relating to the execution of the document.

9. Indisputably, Balakrishna was ill for a long time. He was living with the appellants and was under their complete control. Due to prolonged illness he must have lost all strength of body and mind and had become weak prior to his death. At such a point of, time, it was highly improbable that he was in a fit state of mind to give full details of the property and other facts so as to enable the scribe (P.W 1) to write the will for the purpose of execution. Moreover, Balakrishna died just five days after the alleged execution of the will. He did not die all on a sudden on account of failure of heart or some such disease so as to believe that he was fully conscious when he executed the document. When after a prolonged illness he died a few days after the alleged execution of the will, it would be reasonable to believe that he had completely lost his mental faculty and had no control over his mind and actions. Therefore, execution of an important document such as a will disposing of valuable immovable property on death creates strong suspicion about the legal execution.

10. The very appearance of the will (Ext. 1) is suspicious. It was very closely written leaving little space on the sides, as well as at the bottom, which would give the impression that the will was meant to be scribed only on two sheets of papers containing the thumb impressions of Balakrishna. Details of the property have been stated in the schedule of the will. If Balakrishna had intended to execute the will voluntarily when he had full control over his mind and body, stamp papers could have been purchased and at least more number of sheets of papers could have been used in scribing the document instead of clumsily scribing the same only on two pieces of papers. Although the signature of Balakrishna could have been taken at the foot of both the pages of the will it was not done. The scribe (P.W I) did not make any endorsement anywhere in the document that he read over and explained the contents of the will to Balakrishna and after understanding the nature and purport of the document be executed the same. All these facts appear to be suspicious. P.W 2 was an attesting witness to the will. As required by section 63(c) of the Act, each attesting witness shall sign the will in the presence of the testator. But the evidence of P.W 2, one of the attesting witnesses examined in the case, will show that he did not state that the attesting witnesses signed the will as a mark of attestation in the presence of Balakrishna. Therefore, the requirement of valid attestation of will was not established by the appellants.

11. Mr. Misra placed reliance on two letters (Exts. 2 and 3) said to have been written by Jayakrushna to appellant Gopal Charan Mobanty admitting that the will had been executed by Balakrishna. But on going through both the letters I could not find any specific indication that Jayakrushna had admitted that Balakrishna had legally executed the will in favour of the appellants. He only made reference that the appellants should attend the Sradh ceremony after the death of Balakrishna and perform the same. Therefore, Exts. 2 and 3 cannot be treated as evidence in support of legal and valid execution of the will by Balakrishna in favour of the appellants.

12. After going through the evidence adduced by the parties and on consideration of the judgment of the learned Single Judge, I am of the view that there are absolutely no reason to take a different view. On the other hand, execution of the will by Balakishna is surrounded by suspicious circumstances which have not been explained by the appellants by acceptable evidence. Therefore, there is no warrant for displacing the earlier judgment of this Court. In the result, the appeal is dismissed with costs. Hearing fee is assessed at Rs. 250/- (Rupees two hundred fifty).

H.L Agrawal, C.J:— I agree.

13. Appeal dismissed.