Due execution and attestation of a Will must be strictly proved, and any suspicious circumstances may lead to the presumption of due execution being rebutted.

( 1 ) THIS appeal arises out of an order passed by the learned District Judge of Birbhum refusing to grant letters of administration with a copy of the Will annexed in respect of a Will which purports to have been executed by one Nafar Chandra Das as early as on 12th Falgun, 1334 B. S. corresponding to 25-2-1928, Nafar died in February, 1929. The application for letters of administration was at first filed in the Court of the District Delegate on 22-12-1952 by the present appellant Tapesh Kumar Majhi. The respondent entered caveat and the proceeding having become contentious the application was subsequently refiled in the Court of the learned District Judge on 23-4-1953.

( 2 ) THE respondent challenged the genuineness and validity of the Will on several grounds. It was urged by him in the first place that the alleged Will was never executed by Nafar Chandra Das and it was not also attested by attesting witnesses in accordance with the provisions of Section 63 (c) of the Indian Succession Act. It was further the case of the respondent opposite party that the alleged testator had no lequisite testamentary capacity at the date of the Will.

( 3 ) BOTH parties adduced evidence before the learned District Judge in support of their respective cases and upon a consideration of the evidence adduced by the parties and also on a consideration of the circumstances of the case the learned District Judge held that the execution of the Will by Nafar is highly suspicious and he had no testamentary capacity at the date of the alleged Will because he was suffering from ulcerous leprosy of a virulent type at the date of the alleged Will and it is not likely that he could have given such thumb impressions as appear on the Will. The learned District Judge further held that the Will was not attested in accordance with law. In view of these findings the application for ant of letters of administration was dismissed by the learned District Judge. So this appeal has been preferred by the propounder of the Will.

( 4 ) MR. Laik appearing on behalf of the propounder appellant submitted three principal questions for our consideration. He urged in the first place that the learned District Judge should have held upon the evidence adduced on behalf of the propounder that the Will in question had been duly executed by Nafar Chandra Das. He urged in the next place that the District Judge should have held upon the evidence adduced before him that the Will was attested according to law by more than two witnesses. His third contention was that the conclusion of the learned District Judge that the testator had no requisite mental capacity for execution of the Will at the material time is wrong and is not supported by evidence. We shall take up all these three questions one after another.

( 5 ) THE first and the primary point which arises for our consideration in this appeal is whether the propounder appellant has been able to satisfy the conscience of the probate Court that the Will in question was really executed by Nafar Chandra Das when he was in full possession of testamentary powers. The alleged Will purports to have been written by one Manohar Das. On the face of the document the Will purports to bear the names of six attesting witnesses out of whom witness Golak Behari Das appears to have subscribed his own name himself. The names of the remaining five witnesses appear to have been signed in the Will by other persons, namely, Golak Behari Das, Gobinda Lal Mahara and Manohar Das. It transpires from evidence that excepting two of the so-called attesting witnesses, namely, Lagan Mahara and Rasik Mahara all the other attesting witnesses and also the scribe were dead before the matter came up for hearing before the learned District Judge. Lagan Mahara and Rasik Mahara were examined in the Court below on behalf of the propounder. Lagan is witness No. 2 for the petitioner appellant and Rasik is witness No. 3 for him. The learned Distric