The burden of proof is on the propounder of a will to prove its due and valid execution, and if there are any suspicious circumstances surrounding the execution of the will, the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence.

This is an appeal under Section 384 of the Indian Succession Act and is directed against the order dated 11-1-1972 passed by the District Judge, U. A. D. Jorhat in Title Suit (Probate) No. 26 of 1969, in which he held that the appellant was not entitled to any probate of the will.

2. The appellants case is that one Kolai executed a will in his favour. The will was written by Gobinda Chandra Mahanta, P. W. 2, and attested by two witnesses both of whom were dead. The appellant further stated that the property mentioned in the will was given to him and one Puhita, wife of the testator. The testator died on 8-11-1952 leaving the two legatees and one Dom Bora, a non-applicant. Puhita also died in 1963 leaving no heir. In such circumstances the appellant applied for probate of the will. Before the institution of the present probate case the appellant had filed another probate case (Misc. Case No. 39/60) in the Court of the Subordinate Judge, Jorhat, but that case was dismissed for not depositing the necessary court-fee.

3. Notice of the present probate case was issued to the heirs of Dom Bora and one Haren Sarma who had purchased from Smt. Puhita her share of the land. Haren Sarma only contested the appellants application for probate. His case is that the will in question was not validly executed by Kolai. He further pleaded that the present probate case was barred by res judicata. He further pleaded that he purchased a part of the land from Puhita filed a case against the applicant in respect of the suit land and got a decree which was affirmed by the High Court.

4. It may be mentioned that the appellant filed the first case for probate, namely, Misc. Case No. 39 of 1960 and it was dismissed on 25-11-1961. Thereafter Haren Sarma aforesaid filed the civil suit, namely, Title Suit No. 31/60 and got a decree on 3-5-1962. An appeal, namely, First Appeal No. 30 of 1962 having been taken to the High Court, the decree was affirmed by the High Court on 29-8-1966. The appellant has filed the present probate case on 3-11-1967.

5. The learned District Judge framed the following issues :

"1. Whether the alleged document is the Will executed by the testator and whether it is duly executed and attested ?

2. Whether the alleged Will is the last Will of the testator ?

3. Whether the suit is barred by res judicata for the dismissal of Misc. Probate Case No. 39/60 dismissed by the District Delegate, Jorhat ?

4. To what relief, the parties are entitled ?"

After trial the learned District Judge rejected the application. Hence this appeal.

6. Mr. N. C. Das, learned counsel appearing for the appellant, submits that the findings of the learned District Judge that the applicant failed to prove that the Will was duly executed by Kolai and that it was his last will and that the present probate case was barred by res judicata, are erroneous.

7. Before we proceed to examine the facts of the case let us consider the law on the nature of evidence and the standard of proof in a probate case. The law has been extensively dealt with and laid down by the Supreme Court in the case of H. Venkatachala Iyengar v. B. N. Thimmajamma, reported in AIR 1959 SC 443. Their Lordships have first posed the question:

"What is the true legal position in the matter of proof of wills ?"

Then their Lordships proceeded :

"The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the ex