Amitav Banerji, J. - (1.) THIS is a petition under Section 276 of the Indian Succession Act (although it has been headed as one under Section 278) for the grant of Letters of Administration of a will an nexed to the petition. The petitioner's case wag that one Km. Kanti Kumari Khare, who was staying at Varanasi in connection with service in the Women's College, Banaras Hindu University, had executed a Will on January 20, 1975. She had died at Varanasi on February 25, 1976. In the above Will, the petitioner was appointed the Managing Trus tee along with two other trustees to give effect to her Will, and the petitioner claimed that he was one of the executors of the aforesaid Will. The deceased had left behind her brother, Satish Chandra Khare and a sister, Smt. Madhuri Khare and one maternal uncle, Bihari Lal Khare. The petitioner gave an undertaking to administer the property of the deceased as directed in the Will and to file an inventory and accounts within the period allowed by law. An affi davit of valuation was also filed along with the petition to show that the property was valued at less than Rs.47,000/. Affidavit of the two attesting witnesses, G.P. Srivastava and Mrs. Regional Ukiah were also filed along with the petition. The original Will as well as a photo-stat copy of the Will were also filed. A caveat was filed on behalf of Smt. Madhuri Khare, a sister of the deceased. In her written statement, she denied the execution of the alleged will by the deceased and characterised the petition filed by the petitioner to contain false statements. Smt. Madhuri Khare and her brother, Satish Chandra Khare, were the only heirs of the deceased. The deceased had not formed any idea about the execu tion of any Will or the formation of any Trust for the management of her property. The alleged Will was a forged and fabricated docu ment and was brought about by the petitioner along with G.P. Sri vastava with the help of Mrs. Regina Kiln in order to usurp the property of the deceased and to deprive the legal heirs of their rights in the property. The said will had been contrived by the petitioner and G.P. Srivastava to father their mala fide intention. The said will had not been registered and its execution had also not been disclosed to the next-of-kin. Further the custody of the said Will was also not explained in the petition. Finally, it was stated that the petitioner had not impleaded the other two trustees mentioned "in the said Will nor their consent to the filing of the petition had been mentioned in the petition nor obtained by the petitioner. She stated that the petitioner was not entitled to the grant of Letters of Administration or probate of the aforesaid Will. The other respon dents, namely, Bihari Lal Khare and Satish Chandra Khare did not file any written statement, although time had been granted to them. Shri Satish Chandra Khare sought to file a written statement at the stage of argument in the case, which was rejected. The following issues were framed on April 26, 1977: 1. Whether the Will dated January 20, 1975 was duly executed and attested by the deceased testator while in a sound disposing mind?
(2.) WHETHER the suit is not maintainable because of non-joiner of the two trustees, namely, Sri Manik Lal Khare and Kumari Hiren Malani? Whether the plaintiff is entitled to any relief? ISSUE NO 1 The petitioner's case is that the deceased had executed a Will, and Annexure-A to the petition was the Will executed by her on January 20, 1975. It was further stated that the Will had been exe cuted by the deceased in the presence of G.P. Srivastava, P.W. 1, and Mrs. Regina Kiln. They were the attesting witnesses and all three of them had signed in presence of each other. The document of Will, after its execution, is said to have been kept by Km. Kanti Kumari Khare until November 19, 1975 when it is said it was handed over in a closed envelope to Kamta Pd. Sharma with a direction to hand over the envelope to Ram Bahadur Khare, the petitioner after her death. The case of the defendants on the other hand was that the Will, Ex. 1, was a forged and fabricated document, that there was no due execution of the said will and that in any event Km. Kanti Kumari Khare was not in a state of sound disposing mind to execute the said Will. Admittedly, the said Will was not registered. It remained as it is for nearly ten months after its alleged execution with Km Kanti Kumari Khare. It is further stated that the envelope was with Kamta Prasad Sharma until its delivery to the petitioner in the month of May 1976. Although Kamta Prasad Sharma does not state any where in his affidavit that he was aware during this period that the closed envelope that had been given to him contained a Will of Km. Kanti Kumari Khare. It is also significant to note that apart from G.P. Srivastava, P.W. 1, no one else had been produced to cor roborate the story of the due execution of the Will. The other at testing witness, Mrs. Regina Ukil, although alive, was not produced. Admittedly, Km. Kanti Kumari Khare was seriously ill on January 19, 1975, for she was unconscious on that day and her kidneys were riot functioning properly. It is also necessary to state here that the Will shows that the entire property of the deceased was to vest in a body of three trustees, two of whom had not even been made parties in there petition, nor was there anything to show that their consent had been obtained or they were aware of their having been made trustees under the Will. These facts and circumstances naturally raise could of doubts as to the due execution of the Will. It is well settled that where the execution of the Will is sur rounded by suspicious circumstances, the burden lies on the pro-pounder of the Will to remove all legitimate suspicions before the document can be accepted as the last Will of the tes tator. In the case of H. Venkatachala Jyengar v. B. N. Thimma- Jamma A.I.R. 1959 S.C. 443., their Lordships of the Supreme Court have laid down certain principles of law which have to be taken into consideration on the question of the nature and standard of evidence required to prove a Will. It is not necessary to reiterate all that has been stated in the above case. The Supreme Court in the recent decision of Beni Chand v. Smt. Kamla Kunwar and others A.I.R. 1977 S.C. 63, referred to the aforesaid decision of the Supreme Court and observed: "But where, as in the instant case, the circumstances surrounding the execution of the Will are shrouded in suspicion, it is the duty and the function of the profounder to remove that suspicion by leading satisfactory evidence." Their Lordships further observed: "It is well-settled that the onus profanities in every case upon the party propounding a Will, and he must satisfy the con science of the Court that the instrument so propounded is the last Will of a free and capable testator." Explaining the term 'free and capable testator' their Lordships said; that by the above term 'generally meant that the testator at the time when he made the Will had a sound and disposing state of mind; and memory'. In the latest decision of the Supreme Court, Smt. Jaswant Kaur v. Amrit Kaur and others A.I.R. 1977 S.C. 74 Justice Chandrachud summarised the six points enunciated by the Supreme Court in the case of H. Venkata Chalet Iyengar v. B. K. Thimmajamma (supra). Apart from the requirement to prove the due execution of the Will as required by Section 63 of the Succession Act and Section 6f: of the Evidence Act, he is further required to prove that the document propounded is the last Will of the testator. It will be relevant in the present case to quote the fourth and fifth points in regard to suspicious circum stances as laid down iii the above decision of Smt. Jaswant Kaur v. Smt. Amrit Kaur and others (supra): - "4. Cases in which the execution of the Will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of pro perty, the propounded himself taking a leading part in the mak ing of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the Will. That suspicion cannot be re moved by the mere assertion of the profounder that the Will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the Will was made, or that those like the wife' and child ren of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The present of suspicious circumstances make the initial onus heavier and there fore, in cases where the circumstances attendant upon the exe cution of the Will excite the suspicion of the Court, the profounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with Wills, the execution of which is surrounded by suspicious circumstances that the test of satisfac tion of the Judicial conscience has been evolved. That test em phasises that in determining the question as to whether an ins trument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by rea son of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator." Applying the above test, it has to be seen whether the suspicious cir cumstances have been removed by the profounder of the Will. The suspicious circumstances are as follows; Firstly, there is no corroboration of the version of G.P. Srivastava, P.E., 1, to prove the due execution of the Will, or the conver sation that took place on January 20, 1975, or about the state of health of the testarix that day. The law requires that at least one attesting witness should be examined to prove the Will. The petitioner has examined only one attesting witness, G.P. Srivastava. P.W. 1. He has stated about the execution of the Will, Ex. 1, by Km. Kanti Khare, and the conversation that took place on that occasion. According to him, Km. Kanti Khare had asked him to take down on her dictation some matter on the document and then to append his signature thereon. There is no corroborative evidence on this point. He has further stated that Mrs. Regina Ukil had also signed the document and the writing above her signature was of Mrs. Regina Ukil. There is, how ever, no mention that this writing above her signature was made at the dictation of Km. Kanti Khare The witness had also stated that Km. Kanti Khare had told him at the time of the execution of the Will that he was not to speak about it to any one. There is no cor roborative evidence about this statement either. What is more sig nificant is that this witness has stated that at the time when the do cument was executed, Km. Kanti Khare was in a reasonably good state of health and she was able to move about. There is no corro borative evidence about the state of health of Km. Kanti Khare as stated by this witness. On his own showing when the Will was exe cuted apart from Km. Kanti Khare only the witness and Mrs. Regina Ukil were present in the room. The best witness under the circum stances would have been Mrs. Regina Ukil, but she had not been pro duced for reasons best known to the petitioner. It is, therefore, ap parent from the above that there is no corroboration to the material part of the statement of this witness. The next circumstance is that according to the petitioner and G.P. Srivastava, P.W. 1, Km. Kanti Khare was lying ill in the hos pital in the Banaras Hindu University on January 20, 1975, when she is said to have executed the Will. It was, therefore, incumbent upon the petitioner to prove by reliable and cogent evidence that she was physically and mentally capable of executing the Will. In his cross-examination G.P. Srivastava, P.W. 1, stated that she was taken un conscious on January 19, 1975 and had later regained consciousness, but her kidneys were not functioning. Admittedly, she was ill and lying in the hospital. This evidence shows that she was seriously ill. The statement of the witness in the examination-in-chief that she was in a reasonably good state of health and was able to move about is wholly belived by his statement in the cross-examination. Further, it is very difficult to believe that a person, who was lying unconscious a day earlier and whose kidneys were not functioning, would be able to move about. The petitioner could certainly have summoned some doctor or nurse, who were attending her in the hos pital to depose about her physically and mental condition on January 20, 1975. The wife of G.P. Srivastava was in constant attendance Avith Km. Kanti Khare in the hospital for about a month, but she has also not been examined in this case. She could have been sum moned to state about her (Km Kant Khare's) health and mental condition on January 20, 1975. There is thus no evidence to hold that she was in a reasonably good state of health on January 20, 1975. There is no evidence about the State of mind of Km. Kanti Khare on January 20, 1975. G.P. Srivastava, P.W. 1, has not spoken a word about the state of mind of Km. Kanti Khare. He has only stated that Km. Kanti Khare was in a reasonably good state of health and she was able to move about, but considering what was stated in the cross-examination about her state of health on a day previous, it was essential to establish of her having a sound disposing mind on that day. It was argued that if she was able to read out the Will, dictate the writing made above the signature of the witness and speak about her brother and sister and caution the witness from speaking about the Will to any one, it showed her state of mind. All this is stated in the uncorroborated version of the witness, G.P. Srivastava. There is no other evidence on this point. The question is whether the witness is to be believed when there is no corrobora-tion of any kind in regard to these matters. I am not inclined to place reliance on his uncorroborated evidence. There is no satisfac tory explanation in regard to this matter and the circumstance is definitely against the petitioner. There is no evidence to show the time of the execution of the Will. There is no evidence on this point whether the Will was exe cuted in the morning or in the evening, nor does it show as to what time G.P. Srivastava had met her in the hospital. It would be ma terial for if the will was executed in the morning, it would mean lesser time had passed since her loss of consciousness. This is also a material circumstance which has not been explained by the peti tioner. The Will, Ex. 1, is a typed document, but there is nothing on, the record to show as to who had typed the document or as to when " and where the document was typed or prepared. Further, there is no evidence to show as to who had prepared the Will and whether the assistance of any counsel or any one else had been taken to pre pare the Will. G.P. Srivastava in his cross-examination has shown his ignorance as to who had taken down the dictation or typed the contents of the Will and added that Km. Kanti Khare had said nothing about it. As seen above, the Will Ext. 1, is a typed docu ment. Except for the writing at the bottom of the Will, which is said to be in the hands of G.P. Srivastavaa and the other attesting witness, Mrs. Regina Ukil, there is no explanation as to how did the typed matter come in the possession of Km. Kanti Khare in the hospital. Several questions arises: Whom did she give instructions for drawing up the Will, when did she give her instructions and who had typed it and when. There is no answer to and of these questions. There is no indication from the material on the record whether the assistance of a counsel or any one had been taken to prepare the Will. The petitioner professed complete ignorance about the Will, until the sealed envelope was handed over to him by Kamta Prasad Sharma. Kamta Prasad Sharma has professed complete ignorance about the Will. It is a matter of conjecture therefore as to how this Will was prepared. This is a circumstance which is very material in this case and the failure of the profounder of the Will to explain and thing about it is very relevant. Km. Kanti Khare lived for a year after the alleged execution of this Will, but during this period she did nothing about it. This silence is also material. The next material circumstance is the absence of any mention in the Will about her illness or any apprehension of death in near future. There does not appear any apparent reason for the execu tion of the Will. Nothing has been mentioned in the Will in this regard. There is no material of the record to show her age at the time when the Will was executed. It is natural for any person executing a Will to state the reason for making the Will. Shri G.P. Srivastava says nothing on this point. He would have been the best witness to speak about it. Absence of any such matter in the Will is also material circumstance. The next circumstance is that the Will does not mention any where the reason for excluding her brother and sister from being beneficiaries under the Will. If she did not want to give her pro perties to any her near relation, she could have very well stated so in the Will. Shri G. P. Srivastava has sought to make out a case that the relationship between the deceased and her brother and sister were strain ed. That there was some difference between them, admits of no doubt, but then instead of this point being developed in the evidence, the natu ral thing would have been to mention it in the Will itself. If she wanted all her moneys to go to the trustees in preference to her brother and sister, there would have been some mention in the Will. However, this is a circumstance on which much emphasis cannot be laid against the petitioner. The next circumstance is that the deceased purported to create a trust by the will and named three trustees, two of whom admittedly were no relations of her and in a sense were strangers. Nothing has been mentioned in the Will as to why these three persons were appointed trustees. No affinity with any one of them has been mentioned. There is no indication of any reason whatsoever. In the Will for the appoint ment of Ram Bahadur Khare as the Managing trustee. He is not even a relative of the deceased. These are relevant circumstances for which there is no explanation whatsoever either in the Will or in the evidence. The next circumstance is that there is no material on the record to show that any information was ever given to the other two trustees, namely, Manik Lal Khare, D. I. G. of Police and Km. Hiran Malani, Women's College, B.H.U. about the creation of the trust under the Will and about their being appointed as trustees. There is no indication that these persons ever consented to act as trustees. It is significant that these two persons were not even made parties in this proceeding. No reason has been ascribed as to why these two persons were given no information about their being appointed trustees under the above Will. This is a material circumstance which weighs against the petitioner. It is also significant that nortason has been given in the Will for the appointment of Km. Hiran Malani or Shri Manik Lal Khare as trustees. No evidence has been led to show that there was any affinity or any particular reason for their appointment as trustees. There was some relationship with Manik Lal Khare, but nothing has been stated for appointing Km. Hiran Malani as one of the trustees. She may have been a colleague of Km. Kanti Khare, but no direct evidence has been led on the point. The envelope in which the will is said to have been kept and con veyed to Ram Bahadur Khare through Kamta Prasad Sharma was not even produced. Nothing has been stated about this envelope. G. P. Srivastava says nothing about the envelope. Kamta Prasad Sharma bays that he was handed over an envelope by Km. Kanti Khare which he duly handed over to Ram Bahadur Khare in November, 1975. Therefore, that envelope remained in the possession of the petitioner. He has stated nothing about this envelope. The envelope if produced, would have been a very important link evidence in this case. Kamta Prasad Sharma knew nothing about the will. He only kept an envelope. It is stated that the will was contained in the envelope. It was, there fore, material that the envelope was produced. Nothing has been stated as to whether there was any writing on the envelope. No one has stated anything about any covering letter along with the will. The petitioner has not spoken about the intention of the deceased to make the Will or to create a trust under the said Will. Under the circumstances, the sending of a Will to the petitioner without any previous reference or letter is a suspicious circumstance. It is significant to notice that neither Kamta Prasad Sharma nor the petitioner had spoken anything as to what happened to that envelope. There is no explanation to allay this suspicious circumstance. The next circumstance is that there is an apparent conflict or con tradiction between the contents of paragraphs 3 and 5 of the Will. Para graph 3 states that "the trustees are empowered to obtain probate or letter of administration with the Will attached. After deducting the expenses of the probate or letter of administration, the trustees shall deposit the cash amount so as to yield sufficient interest". Paragraph 5. states that "Shri Ram Bahadur Khare is appointed Managing trustee of the Trust and is authorised to collect and deposit all the income owned receivable and recoverable on my account and on behalf. Where-from at least two monthly scholarship for higher/technical education may be awarded to two deserving students of my community, one in the name of my father and the other in the name of my mother." A perusal of these paragraphs would show that trustees were directed after obtaining probate or letter of administration and meeting the expenses for the same to deposit cash amount so as to yield sufficient interest for awarding two scholarships. Paragraph 5 empowers Shri Ram Bahadur Khare alone to collect and deposit all the income owned, receivable and recoverable on her behalf. Under paragraph 3 all the trustees are em powered to deposit the cash amount and in paragraph 5 Shri Ram Baha dur Khare is authorised to collect and deposit all the income etc It, therefore, appears that these two paragraphs were drawn up without sufficient understanding of the matter. This indicates the non-application of mind or absence of a sound disposing mind. What is more telling is that the name of the father is mentioned at the top line of the Will, but the name of the mother has not even been mentioned. If Km. Kanti Khare was making a will and desired that there should be scholarship in the name of her mother, she would not have forgotten the name of her mother. The very fact that the name of the mother is omitted leads to two possible inferences. One either it was not drawn up by her or in the alternative she did not have full mental capacity at the time when the Will was executed. Whichever way it is, it is a circumstance which has not been explained away by the profounder of the Will. It is also significant to notice that there is no guideline given in paragraph 3 of the Will about two monthly scholar ships for higher/technical education except that they were to be awarded to two deserving students of her community. Neither the name of the institution nor the particular course of study has been mentioned. Every thing has been left vague. She had left behind nearly Rs.47,000/-. It would yield an income of nearly Rs.4,700/-a year or roughly Rs.400/-a month. If she wanted to give this amount to two deserving students of her community she could have very well made a Will and given all her assets to the University itself for the purpose with the condition indica ted by her in the Will, but no such thing was done. Paragraph 6 of the Will is also significant. It permitted the remaining trustee or trustees to appoint trustees on the death of remain ing or withdrawal of any trustee. This gave power to the trustee or trustees, as the case may be, to appoint any number of trustees, but there was no limitation to the number of trustees that they could appoint. The tenor of the will shows that the work of the initial three trustees would come to an end on the obtaining of the probate or letter of administration and depositing the cash amount for yielding sufficient income for two scholarships. Even if the terms are widened, the scope of the work of the trustees would be to select two deserving students of her community for the award of the scholarship, and nothing more. Nothing was indicated as to where the money would be deposited and who would account for it. Nothing is mentioned as to when and where the meeting of the trustees would be held. These significant circumstances lead two inferences. One, either the will was not drawn up by Km. Kanti Khare or she had no understanding at the time when the Will was executed. She does not recount anywhere in the Will as to how the entire assets of her after being converted into liquid assets would be protected or preser ved. If she wanted to secure the continuity of the payment of the scholarship, one would have expected her to act prudently and intelli gently. Under the Will, she purports to allow all her assets to be converted into liquid assets and she gives directions for their deposit to yield income, but beyond that there is no provision to safeguard the payment of scholarship annually. The Will, Ex. 1, does not disclose that any adequate direction had been given for the safety and security of the liquid assets. A persual of the Will shows that everything had been left to the Managing trustee. Would a person in full possession of her mind really give all her savings and assets for a cause in such a manner. These provisions in the Will, Ex. 1, show that there was no application of the mind-in any event it does not show that the testatrix was in a sound disposing mind. These circumstances coupled with the fact that the Will, Ext. 1, was not registered is a very serious circumstance to be taken note of. Accor ding to the evidence on the record, the will, Ext. 1, remained with Km. Kanti Khare from 20th January until 19th November, 1975. She had ample time during this period to get the will registered, but it was not done. Where was the difficulty in getting the Will registered or even deposited with the Sub-Registrar? She had come home even from hospital. If she continued to be ill, she could have sent for Sub-Regis trar to get the Will registered or even deposited with him under Sec. 31 of the Registration Act. Why did she want to keep the execution of the Will a secret? Had the will been registered, it would have conclusively proved the existence of the Will during her life time. Apart from the statement of G. P. Srivastava, there is no other oral evidence on the record to show that the Will had been executed by Km. Kanti Khare. I am aware of the fact that there exists on the record an affidavit of Mrs. Regina Ukil, but since she has not appeared as a witness and made herself available for being cross-examined. I do not place any reliance on her affidavit. As indicated earlier, there is but the solitary statement of G. P. Srivastava. He too gives no reason as to why the Will was not registered. The non-registration of the will is a significant circumstance in the present case. If the existence of the Will was known and established beyond doubt during the lifetime of Km. Kanti Khare, the effect of non-registration might have been lessened. But, in the circumstances of the case, the non- registration of the Will is a very significant suspicious circumstance, which has not been explained away. Having considered the material on the record and the circumstances indicated above, I have no hesitation in holding that the execution of the Will, Ex.1, remains shrouded in suspicion, which has not been allayed. The burden was on the profounder of the will to remove those suspicions. The petitioner failed to do so. Under the circumstances, I am unable to give a finding to the effect that the Will Ext. 1, was duly executed by Km. Kanti Khare. I am further of the opinion that the petitioner has failed to prove that the deceased testatrix was in a sound disposing mind at the time of the execution of the aforesaid Will. The Issue no. 1 is answered in the negative and against the petitioner. ISSUE NO. 2 The question under this issue is whether the petition is maintain able as the other two persons mentioned in the will as trustees executors have not been made parties in this petition. Admittedly, the suit was filed on behalf of only one of the three trustees. The other two trustees, Manik Lal Khare and Smt. Hiran Malani were not even made parties to this proceeding. An analysis of the evidence on the record showed that these two trustees were not even informed of the Will or about the creation of the trust, although the Will empowered all the three trustees to obtain probate or letter of administration with the will annexed. It is true that they could apply jointly and it is also permissible under the law for any one of them or more to apply for the letter of adminis tration with the will annexed. In paragraph 3 of the Will, Ext. 1 all the three trustees were empowered to obtain probate or letter of adminis tration. It was, therefore, incumbent on the petitioner either to join the other two trustees as co-petitioner or give reason as to why they were not being impaled as parties. He should have atleast indicated as to why these two other trustees were not coming forward to join the petition as petitioners. There is no material on the record to show that these two trustees were not prepared to act as petitioners. If they had been made parties in the petition, they could have indicated whether they wanted to join as co- petitioher or decline to act as such. They did not renounce the rights that had been given to them under the above Will. However, in view of the provisions of Order 1, Rule 9 C.P.C. that no suit shall fail for the non-jointer of a party, I am not inclined to answer this issue in the affirmative. The proviso to the above rule makes it clear that the above rule does not apply in the case of a neces sary party. In my opinion, the other two trustees were proper parties but not necessary parties. Consequently, the above proviso has no application. Therefore, the petition cannot be held to be non-maintain able on the ground of non-impleadment of these two trustees. The issue is answered in the negative and against the defendants. ISSUE NO. 3 In view of my finding on Issue No. 1, the plaintiff (petitioner) is not entitled to any relief. In the result, therefore, the plaintiff's (Petitioner's) suit fails and is hereby dismissed with costs.;