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10. Second will in controversy is alleged to have been executed on 23-10-1977 by Smt. Prabhavati. It is Ex.D/1 on record. The contention is that this will has been produced by Rajeev and Rajat consequent upon the death of Prabhavati during the pendency of the case. As far as the proof of this document is concerned, the learned Counsel argued that there is clinching evidence in the shape of statement of attesting witnesses and the Notary before whom the will was authenticated. The learned Counsel contended that provisions of Section 63 have been fully complied with. My attention has been drawn to the statement of attesting witness Shivaji Rao Tambat (DW 3) who according to the learned Counsel deposed that Prabhavati had signed on the will before him and he had also signed. He further stated that Gyanchand was also present and he also signed the will. He knew Prabhavati and she was fit mentally for the purpose of will. Learned Counsel also urged that Bhagwati Prasad Singhal deposed inpara I that Prabhavati and witnesses had signed the will and Prabhavati was mentally and physically sound. Now if we peruse the statements of both these witnesses we find that DW 3 Shivajirao Tambat in his statement stated that he knew Jagan Verma and his family from childhood as they were neighbours. Prabhavati was living with Ramesh Verma. She had executed a will before him which is Ex.D/1. Prabhavati had signed before him over Ex.D/1. At that time he and Gyanchand were present. Gyanchand was the tenant of Prabhavati. Besides the fact that Prabhavati had signed before him there is nothing in his statement to show that the attesting witness had also signed before Prabhavati. There is also nothing to show that the will was executed on the instructions of Prabhavati. At the time of execution of the will Lajesh was at her Sasural. He also stated "Singhal Vakil Saheb ke yahan Ravinagar main Basiyat hona bataya tha". In cross examination he deposed that he did not know as to who had brought the will after typing. Prabhavati had reached the house of Bhagwati Singhal at about 7 P.M. When he reached Prabhavati. Singhal Saheb and Gyanchand were present and there was no one-else. He was called by Ramesh Verma who was the son of Prabhavati. Thus, it shows that when he had reached there the contents of the will had already been typed. It, therefore, goes to suggest that he could not say that under whose Instructions the will was executed. No doubt, he deposed that mentally and physically Prabhavati was well but he further staled that 3 or 4 months prior to her death he did not see any effect of paralysis on any part of her body. He further stated that Ramesh Verma had taken Prabhavati and Shrivastava witness to the house of Singhal. He categorically stated that he had no talks about the contents of the will of Prabhavati. He, Shrivastava or anybody else did not read the will. It was not read loudly before him. It was also not read over to Prabhavati: Ramesh Verma had said that this is a Will, hence witnesses and Prabhavati should sign over it. This statement goes to show convincingly that it was Ramesh who manoeuvered the will. The contents were not read over to the witnesses or Prabhavati. It has also not been stated that it was written on the instructions of Prabhavati. Consequently this statement cannot be said to be sufficient by any stretch of imagination to prove the execution of the will.

12. Now there remains the third will i.e. the will alleged to have been executed on 22-5-84. It is Ex.D/1 on record. It is important to mention here that in the statement it has been mentioned that original will is Ex.D/1 and copy is Ex.D/1/C, the original is not on record. I had occasion to observe in a large number of cases that the original document is, not brought on record and in spite of it it is marked as Exhibit and its copy brought on record which is marked as C. This procedure does not appear to be correct. Unless the document is placed ,on record, it cannot be exhibited. Of course, if original is summoned from some authority or is in possession of third party and it could not be filed. In that case, when the document is summoned and is sought to be proved by a witness the record, must mention that the document is summoned from such and such authority and it has been proved by the witness in accordance with law as provided in the Indian Evidence Act and its copy is being placed on record which must be certified as true copy of the original which has to be proved. In this case also the original is not on record though the learned Court has mentioned it Ex.D/.l. The record further shows that a photo copy has been placed which is Ex.D/1 under which the date is given 25-.11-87. First of all I must mention that photo copy is not admissible under any provision. Now let us see as to how far the document alleged to be the will executed by Prabhavati on 22-5-84 has been proved. DW 2 Kailash Narayan Shrivastava produced on behalf Of defendant No. 5 Sanjeev, stated that Smt. Prabhavati Verma had executed Ex.D/1, the will in favour of Sanjeev Saxena. Ex.D/1 bore his signatures copy of which has been marked as Ex.D/1. There is nothing in his statement to show that the original was before the Court at the time when witness was being examined. He further stated that at the time when the will was executed Prabhavati had told that she was executing a will to his grandson to Sanjeev Saxena. Vakil Darbari had read it over before him to Prabhavati which she accepted. She had put her thumb impression before him on the will. At that time V.K. Saxena and he signed over the will as witness. Arora Notary had also come and he had verified before him. Darbari signed before him. V.K. Saxena and Darbari had signed before him. At the time when will was being written Prabhavati was in fit state. She had paralysis in right hand and right leg. In cross-examination he deposed that the will was executed in the house of J.C. Saxena who was the father of Sanjeev Saxena. It was executed a day before the death of Prabhavati. He used to go for giving injection to her. At that time when he went Sanjeev Saxena and Arora had reached earlier. The will was brought by Arora after getting it typed. He read it over and he was present. Prabhavati was suffering from paralysis. Ex. D/1 was read by Prabhavati herself. It was also read over to her. She was literate but there was paralysis in her hand and hence she could not write. He did not know about the hand of which thumb impression was put by Prabhavati. His statement too does not show the requirements of law. There is nothing to show that Prabhavali had put her thumb impression before the witnesses and the witnesses had put their signatures before Prabhavati. It is significant that according to the statement of this witness Prabhavati had paralysis in her right hand as such she could not write and had put thumb impression. Now if we see the entire evidence we find that it is admitted that by Dr. J.C. Saxena himself in para 6 of his statement that paralysis was in left hand and this fact has also been admitted by DW 1 Ramesh Verma in para 13. Thus, admittedly Prabhavati had paralysis in her left portion of her body. Consequently the statement of witnesses Kailash as well as Sanjeev in whose favour the will was claimed to have been executed that she had paralysis in her right hand cannot be believed. It appears to me that this statement has been made in order to bring the statement in conformity with the endorsement over the will. The statement of Kailash Narayan that the will was executed a day prior to the death of Prabhavati is also incorrect as it purports to have been executed on 22-5-84 bill the death of Prabhavati had taken place after about a week. The other witness who has been examined on behalf of Sanjeev is DW 3 Vijay Kumar Saxena who slated that Prabhavati had executeda will before him and at that time Kailash. Darbari and Notary Arora were present. Darbari had read over the will to Prabhavati and she had accepted it and she had put her thumb impression before him. He too had signed over Ex. D/1. After him Balwapuri, Darbari and Notary Arora too had signed over it. At the time when will was executed Prabhavali had paralysis in right hand and right leg and her mental condition was sound and she was speaking. Dr. J.C. Saxena was his real uncle. On the dale when the will was executed he had gone to see Prabhavati as usual. She was ill. Dr. Jagdish was at Dalia and Sanjeev was also out. Prabhavali was literate and used In sign in Hindi. On the date of the execution of the will she was very old but she was sick. She had paralysis in her right hand and leg. I have already said above that it is admitted by Dr. J.C. Saxena as well as Ramesh Verma that she had paralysis in her left part. Thus, to say that she had paralysis in her right side is wholly incorrect. No medical prescription nor the Doctor who had treated Prabhavati has been produced to show that she had suffered paralysis in her right portion of the body.

13. There is yet another statement in connection with this will. DW 4 Rakesh Kumar Darbari stated that he had prepared the will which was accepted by Prabhavati. He prepared the draft according to the instructions of Prabhavati. Whatever was told by Prabhavati was written by him and he did not add anything. He had read it over and she had accepted. It was read over before Notary and witnesses. She was mentally sound. She had put two thumb impressions on the last page and one impression on all the pages because she had paralysis on the right side. The witnesses Vijay Kumar and Kailash Balwapuri had put signatures before him. I may reiterate that it is not the requirement of the law that the witnesses or the executant should put their signatures before the scribe. The law is, as said above, that the witnesses must sign before the executant and the executant must sign before the witnesses. He also stated that the draft was prepared a day earlier. Prabhavati had given instructions at the time when none was present. He deposed that he had received a sum of Rs. 50/- for scribing the will but the other witness Kailash has slated that nothing was paid. A very significant statement has been given by him in para 9 when he stated that at the lime Prabhavati gave instructions for writing the will she had no paper or any file. All the instructions were given orally. He also stated that Prabhavati did not tell him as to what litigation was going with respect to the property or there was any dispute about the property or not. A perusal of the alleged will Ex. D/l shows that it gives the details of the litigation in respect of property. If according to the statement of witness the details were not given by Prabhavati is taken to be correct, it goes to show that the details with respect to the property must have been furnished to him by some external person. It cannot, therefore, be said that the will was executed in accordance with the instructions of Prabhavati. Rather it goes to suggest that there was some other person behind the execution of this will. Thus, a careful perusal of the statement of this witness goes to show that the will has not been proved in accordance with law.

14. Apart from what has been said above I may also mention that the persons relying upon the will must remove all the suspicious circumstances. I have already mentioned above one of the circumstances relating to the instructions given by Prabhavati and mention of the litigation details given which I need not repeat. The other circumstance is that admittedly Prabhavati had paralysis in her left part of the body and she was literate. Consequently there was ho occasion for her to put thumb impression over the document. An effort has been made to show that She had paralysis over the right part of the body which has not been believed by me above as it is against the admitted facts as shown above. It has been pointed out by the learned counsel for the contesting defendants that the will appears to have been executed at Lashkar High Court whereas the witnesses have said that it was executed at the residence. It is again a very important circumstance. Thus, taking into consideration all these facts I conclude that this will too has not been proved in accordance with law and is also surrounded by suspicious circumstances. No reliance can, therefore, be placed upon this will as well.