Judgment:
1. Unsuccessful applicant for a letter of administration is the appellant in this appeal under Section 299 of the Indian Succession Act.
2. Appellant filed an application for letter of administration of the Will Ext. 1 executed by deceased Magar Das on 7-6-1967 before his death. His case is that he is the adopted son of Magar and is possessing the properties after his death through his adoptive mother when he was minor and thereafter himself on attaining majority.
3. On issue of citation respondents appeared. While respondents Nos. 1 and 2 supported appellant two daughters of Magar contested the application. They denied execution of the Will by deceased Magar and claimed that he was not in a sound state of mind.
4. Appellant examined respondent No. 1 as a witness since he was one of the attesting witness. He also examined the scribe as a witness since he was the other attesting witness. The Will was admitted to evidence without objection,
5. Trial Court on consideration of the materials on record dismissed the application on the finding that the Will is not genuine and proper attestation has not been proved. This is grievance of the appellant.
6. In order that letter of administration shall be granted in favour of the appellant, he is to prove due execution of the Will. Due execution includes attestation as required under Section 73 of the Succession Act and removal of suspicion about execution.
7. Conscience of the Court is paramount in matters of testamentary succession. Where some of the legal representatives are deprived of intestate succession on account of execution of the Will, without any cogent explanation for such exclusion, court requires stronger and clear proof of due execution of a Will. It examines the document itself to find out whether it looks like a normal execution. Where the document does not look like a normal execution, propounder is to explain the circumstances under which the suspicious circumstances in the document itself found place. If there is no explanation or where the explanation is not cogent, court declines to grant letter of administration. Where a party himself conducts the proceeding, court assists him to bring the suspicious circumstance to his notice for explanation. Where, however, a party has engaged a lawyer to conduct the proceeding, the lawyer is required to advise the party to explain the circumstances and court need not bring the suspicious circumstance to notice of the party seeking explanation.
8. In the present case a bare look at the Will (Ext. 1) would create suspicion in mind. Top of the paper is vacant for about 2'. Writing starts thereafter. D.T.T. and signature of Magar is on the right hand margin and at the bottom. Thumb impression at the bottom is over the portion already written. This is not a natural feature of writing a document. P.W. 3 is the scribe. In his deposition he stated in cross-examination that thirty years before, he was writing deeds. Thus, he has experience as a deed writer. He stated that Magar gave a draft and the paper on which he copied the draft. He ought to have explained why he did not write on the next page if the space at the bottom was not sufficient. Comparison of both the thumb impressions show that the one on the right hand margin at the top in full whereas the one at the left hand botom is not full. Thumb impression has not been attested by anybody. Signature of Magar is over the thumb impression. There is no evidence that except P.W. 1 who is paternal uncle of appellant, P.W. 3 the scribe and deceased Magar the executant anybody else was present. Thus, interference of the Will being executed as a secret deal can legitimately be drawn on the facts of this case. Appellant was aged seven years only when Magar expired on 23-11-1947 in a village of Dhenkanal. After death his widow was managing the properties. There is no clear evidence as to when management was given to appellant. A document admitting adoption of appellant by Magar was executed by his widow which appears to have been cancelled. Thus, appellant is required to prove his adoption in a properly constituted suit. In these circumstances, when the Will itself appears to be suspicious, I am not inclined to direct grant of letter of administration in favour of the appellant.
9. In result, there is no merit in this appealwhich is accordingly, dismissed. There shallbe no order as to costs.