In cases where the execution of a Will is surrounded by suspicious circumstances, the propounder has the initial onus of proving the genuineness and due execution of the Will. The propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.

R. N. MISRA, J.

( 1 ) DEFENDANTS 1 and 2 have challenged the decision of the learned District judge of Cuttack granting Letters of Administration with a copy of the Will annexed in favour of the plaintiff. During the pendency of the appeal, defendant no. 1 appellant died and her name has been deleted without any substitution by order No. 14 dated 28-11-1974. The sole plaintiff-respondent having died, his legal representatives have been brought on record as respondents.

( 2 ) ONE Panu Khuntia had two sons Damei and Nidhi. Damei's grandson is madhusudan (defendant No. 2 ). Nidhi had a daughter Malli (defendant No. 1)and two sons Radhashyam and Balakrishna. Radhashyam's widow Kamala was the testatrix. Balakrishna pre-deceased Radhashyam leaving behind a daughter shakuntala. Radhashyam died in 1964 while living separate from his brother. Malli had married away. Kamala was in her late thirties when she became a widow. Birakishore (P. W. 1) and Natabar (plaintiff) are first cousins. The testatrix got involved in certain litigations and the two cousins looked after the same. Natabar became a God-brother of Kamala and started looking after the properties of Kamala. Natabar applied for Letters of Administration claiming that Kamala had left behind an unregistered Will dated 9-8-1966 in his favour in respect of her entire properties to the exclusion of her husband's sister Malli and Madhusudan.

( 3 ) IN the application for grant of Letters of Administration, defendants 1 and 2 were shown as distant relations of the testatrix. They appeared and entered caveat contending that the Will had not been duly executed nor was genuine. On a blank paper with the left-hand thumb impressions and signatures of kamala, the Will had been subsequently written out. Kamala is alleged to have died an unnatural death on 26-8-1967. Though she lived for more than a year from the time of alleged execution, steps were not taken to register the document.

( 4 ) AT the trial, five witnesses were examined in support of the application by the plaintiff : he himself as P. W. 5; the scribe Chintamani as P. W. 2; two attesting witnesses Gopal and Haladhar as P. Ws. 3 and 4 respectively and Birakishore, the first cousin of the plaintiff as P. W. 1. The alleged unregistered Will was marked as Ext. 1. The second defendant was examined as D. W. 1 and a neighbour was examined as D. W. 2. Some documents were also exhibited on the side of the defendants.

( 5 ) THE learned District Judge ruled out the defence plea, held that the Will was genuine and duly executed and granted Letters of Administration annexed with the Will. In this appeal, the grant of Letters of Administration has been assailed.

( 6 ) THE' onus of proof of a Will is admittedly on the propounder. The weighty observations of Gajendragadkar, J. as the learned Judge then was, in the case of H. Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC 443, may usefully be quoted before we enter into the facts of the present case. The learned Judge observed:-

"what is the true legal position in the matter of proof of Wills? It is well known that the proof of Wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. 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 Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the persons concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides t