CHITTATOSH MOOKERJEE, J.

( 1 ) UPENDRA Nath Das was a resident of Paharpore Road, Garden Reach, 24 Parganas, On 11th Jan. , 1970 Upendra died. He had married twice. His first wife had predeceased Upendra. Three sons and one daughter begotten by his first wife and also his second wife, Sarala Bala, four sons and two daughters, who were issues of his second marriage were alive at the time of the death of Upendra, Sarala Bala Dasi, the widow of Upendra, had filed an application in the court of the learned District Judge, 12th Court, 24 Parganas for granting probate to the last will and testament of Upendra dt. 3rd Jan. , 1970. The testator by the said alleged will had purportedly provided that after his death his second wife, Sarala Bala, Panchugopal, Rabindra and Sibnath, his three sons by his second wife, would get his property at Z-143, Paharpore Road, Garden Reach in equal shares and in absolute right. Sarala Bala was enjoined to perform the marriages of the two minor daughters out of the income of the property and, if necessary, by selling some properties. His surviving sons and daughters by his first wife were not given any legacy under the will of Upendra. Sarala Bala was appointed as the executrix of the will of Upendra.

( 2 ) THE present appellants who were sons of Upendra by his first wife, had entered caveat, inter alia, contending that the will in question was a forged one and that at the material time Upendra had no testamentary capacity and that the will was not duly executed and attested. Thereupon, the court below followed the procedure of contentious cases.

( 3 ) THE learned Additional District Judge, 11th Court, Alipore upon consideration of the evidence has decreed the suit in favour of the plaintiff and has directed that Sarala Bala be granted probate to the last will of Upendra Nath Das. Being aggrieved thereby, the appellants have filed the present appeal.

( 4 ) IN our view, the learned Additional District Judge has erred in law in approaching from a wrong legal standpoint the question whether the propounder had satisfactorily proved that the disputed will was duly executed by Upendra and was attested according to law. The learned Additional District Judge also wrongly placed the burden of proof upon the defendants to establish that Upendra had no testamentary capacity or that he did not execute the will. It has been the consistent view of the courts that as the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters, But there is one important feature which distinguishes will from other documents, Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of a solemnity in the decision of the question as to whether the document propounded is proved to be last will and testament of the departed testator. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts, There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy and unless it is satisfactorily discharged, the courts would be reluctant to treat the document as the last will of the testator. A propounder of the will has to prove the due and valid execution of the will and if there are any suspicious circ

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