Rajasthan High Court - Jaipur
Bahadur Singh vs Pooran Singh & Ors on 17 November, 2011
Bench: A.M.Sapre, Bela M. Trivedi
In the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur Judgment D.B.Civil Special Appeal No.23/1993 in S.B.Civil Misc.Appeal No.182/1989 Bahadur Singh-Appellant vs. Pooran Singh and ors-Respondents Date of Judgment : 17th November,2011 Hon'ble Mr.Justice A.M.Sapre Hon'ble Ms. Justice Bela M. Trivedi Mr. S.K.Gupta, for the appellant Mr. R.K. Agarwal, Sr. Advocate along with Mr. Alok Chaturvedi, for the respondents
(Per justice Bela Trivedi)
1.The present intra court appeal filed under section 18 of the Rajasthan High Court Ordinance arises out of the judgment and order dated 19.2.1992 passed by the learned Single Judge in S.B.Civil Misc. Appeal No. 182/89 filed by the present respondent No.1 Pooran Singh (original plaintiff) under section 384 of Indian Succession Act, 1925 (hereinafter referred to as the 'said Act'), whereby the learned Single Judge had allowed the said appeal and granted the probate of the will dated 15.10.1976, executed by Joothar Singh @ Mool Singh, in favour of Pooran Singh, and had set aside the judgment and order dated 24.1.89 passed by the learned District Judge, Alwar (hereinafter referred to as the 'trial court').
2.The short facts giving rise to the present intra court appeal are that the respondent No.1,Pooran Singh through his father and natural guardian Shishupal Singh had filed an application before the trial court, seeking probate of the will dated 15.10.1976 executed by Joothar Singh in favour of the said Pooran Singh. The said application having been contested by the present appellant and the respondent Nos 2 to 5 (original defendants) as the legal heirs of original defendant Bool Singh @ Phool Singh, the same was converted into the regular civil suit by the trial court. It was contended by the respondent No.1 Pooran Singh before the Trial court that Doonga Singh had three sons named Sunda Singh, Joothar Singh and Bool Singh @ Phool Singh and that the said Joothar Singh did not have any issue. The said Bool Singh @ Phool Singh had four sons named Peer Dhan, Birju, Bahadur Singh and Ram Singh and one daughter named Vimla.The said Sunda Singh had two sons named Shishupal and Bane Sing. The respondent No.1 Pooran Singh was the son of Shishupal Singh. According to the respondent No.1 (original plaintiff), since the said Joothar Singh @ Mool Singh did not have any issue, he was being looked after by and was staying with Sunda Singh, father of the Shishupal Singh. The said Joothar Singh therefore executed a will in favour of Pooran Singh son of Shishupal Singh on 15.10.1976, bequeathing his properties to the said Pooran Singh who was minor at that time. After the death of the said Joothar Singh,the said Pooran Singh(respondent No.1 herein) through his father and natural guardian Shishupal Singh filed the said application for obtaining the probate of the said will before the trial court. The notice of the said application having been published in the local daily by the trial court, the said Bool Singh @ Phool singh objected against granting of probate in favour of Pooran Singh. The said application therefore was converted into the suit. The said Bool Singh died during the pendency of the said suit and therefore his legal representatives i.e the present appellant and the respondent Nos. 2 to 5 (original defendants) were brought on record.
3.The trial court considering the evidence adduced by the parties dismissed the suit of the respondent no.1 Pooran Singh for obtaining probate of the will in question holding that the same was executed under suspicious circumstances, however, the trial court granted succession certificate in favour of the heirs of Bool Singh, as regards their one half share in the properties of the deceased Joothar Singh by passing the judgment and order dated 24.1.1989. Being aggrieved by the said judgment and order passed by the trial court, the respondent No.1 Pooran Singh preferred an appeal being S.B. Civil Misc. Appeal No. 182/1989 under section 384 of the said Act before the learned Single Judge. The learned Single Judge after hearing the learned counsel for the parties allowed the said appeal vide the judgment and order dated 19.2.1992. The aggrieved appellant, who is one of the heirs and legal representatives of the said Bool Singh @ Phool Singh has preferred the present intra court appeal invoking the provisions of section 18 of Rajasthan High Court Ordinance.
4.At the outset, it may be stated that though the application of the respondent No.1 was filed for obtaining the Probate of the Will, the trial court treated the same as the application under Sec. 372 of the said Act, which provision pertained to the application for succession certificate. Since the provisions pertaining to the grant or the revocation of Probates are contained in Chapter-IV of the said Act, both the learned counsel for the parties had fairly stated during the course of arguments that the appeal before the learned Single Judge against the order of the trial court was required to be treated as an appeal under sec. 299 only and not under sec.384 of the said Act. The issue of maintainability of the present appeal was also not pressed into service by the learned Sr. counsel Mr. R.K. Agrawal in view of the ratio of judgment laid down by the Hon'ble Supreme Court in the case of Subal Paul vs Malina Paul and another (AIR 2003 SC 1928). In the said decision, Hon'ble Supreme Court has held interalia that the order of learned Single Judge in appeal under section 299 of the Succession Act is not governed by section 104 of Code of Civil Procedure as Letters Patent Appeal against such appeal is maintainable. Even otherwise as per section 18 of the Rajasthan High Court Ordinance, an appeal could lie to High Court from the judgment of one judge of the High Court except in the cases enumerated therein. The appeal being not an appeal falling under such exception, the present appeal filed against the order passed by the learned Single Judge under section 299 of the Succession Act is maintainable.
5.Learned counsel Mr. S.K.Gupta for the appellant vehemently submitted that the plaintiff Pooran Singh was minor at the time of the alleged execution of the will by Joothar Singh, and his father Shishupal Singh got the said will executed in his favour, and that circumstance itself was a major circumstance creating suspicion. Narrating the suspicious circumstances, Mr. Gupta submitted that the plaintiff-Pooran Singh being minor at the relevant time, his father Shishupal Singh was required to be treated as the recipient of the properties under the will and the said Shishupal Singh being the propounder of the will had taken active part by taking the said Joothar Singh to the house of Tara Chand and also by calling the witnesses, who were either known to Shishupal Singh or were relatives of Shishupal Singh. According to Mr. Gupta, the will Ex.1 on the face of it created suspicion inasmuch as the last five lines therein did not have as much space as the earlier lines have and there also appeared interpolation in certain lines. Therefore, the possibility of Shishupal Singh having obtained thumb impression of Joothar Singh on the plain paper and thereafter going to the place of Tara Chand who was the writer of the alleged will, could not be denied. He further submitted that though the will was not required to be registered, it could have been registered as there was sufficient time in between the execution of the alleged will and the death of Joothar Singh. Mr. Gupta also pointed out certain discrepancies appearing in the evidence of the witnesses examined by the plaintiff Pooran Singh in the trial court, to buttress his submission that the will was executed under the suspicious circumstances and could not be held to be a genuine will executed by the deceased Joothar Singh. Learned counsel Mr. Gupta has also relied upon the decision in the case of Ramchandra Rambux v/s Champabai (AIR 1965 SC 354) to contend that when the propounder had taken active interest in the execution of the will which conferred substantial benefits on him, that itself was a suspicious circumstance attending the execution of the will. Relying upon the decision of Smt. Jaswant Kaur v/s Smt. Amrit Kaur and ors (AIR 1977 SC 74), Mr. Gupta had submitted that the respondent No.1 plaintiff had totally failed to discharge his burden to explain the circumstances surrounding execution shrouded with suspicion. According to Mr. Gupta, the plaintiff had also failed to prove the execution of the will as required under section 68 of the Evidence Act read with section 63 (c) of the Succession Act.
6.Per contra, the learned Sr. counsel Mr. R.K. Agarwal for the respondents taking the court to the evidence recorded by the trial court submitted that the execution of the will by Joother Singh was not denied by the defendants, and that in absence of any evidence to show that Joother Singh was not in sound state of mind, the will in question is required to be held as genuine will. According to Mr. Agarwal, it was not disputed by the defendants that Joothar Singh was issueless and was staying with his nephew Shishupal Singh, who happened to be the father of the plaintiff Pooran Singh. Mr. Agarwal also submitted that the plaintiff had examined all the concerned witnesses as per the requirement of section 68 of Evidence Act and the will was duly proved as per section 63 (c) of the Succession Act. He also submitted that since the will was executed in the year 1976 and the evidence was recorded in 1984-85, there were bound to be minor contradictions appearing in the evidence of the witnesses and that mere conjectures or unfounded suspicion should not be permitted to be raised by the appellant who is only one of the defendants and when other defendants have not challenged the order of learned Single Judge. He further submitted that neither nonregistration of the will nor the participation of Shishupal Singh should be taken as the circumstances adverse to the plaintiff, inasmuch as no law requires registration of the will, and since Pooran Singh was minor at the relevant time and since Joothar Singh was being looked after by Shishupal Singh, it was very natural conduct of Shishupal Singh to take Joother Singh to the scribe Tarachand. To buttress his legal submissions, Mr. Agarwal has relied upon the decision of the Apex court in the case Meenakshiammal (dead) through LRS and others vs Chandrasekaran and another (2005(1) SCC 280), in the case of Ishwardeo Narain Singh vs Smt. Kamla Devi and ors AIR 1954 SC 280, Beni Chand (since dead) now by L.Rs. Vs Smt. Kamla Kunwar and others ( AIR 1977 SC 63), in the case of Smt. Indu Bala Bose and ors vs Manindra Chandra Bose and another AIR 1982 SC 13.
7.Before adverting to the rival contentions raised by the learned counsel for the parties, it may be stated that we are not happy either with the judgment and order passed by the trial court or with the reasonings given by the learned Single Judge in the appeal. As transpiring from the record of the case, the trial court had ex-facie passed an illegal order in granting the succession certificate to the defendants determining their one half share in the properties of the deceased Joothar Singh, while refusing to grant probate of will of the deceased Joothar Singh to the plaintiff, on the ground that the said will was shrouded by the suspicious circumstances.When the application of the respondent No.1 (plaintiff) was for obtaining the probate of the will in question, there was no question of issuing succession certificate to the defendants, muchless deciding their shares in the properties of the deceased Joothar Singh. The learned Single Judge also while reversing the said order passed by the trial court did not give any reason muchless cogent reason for upsetting of the findings of the trial court, nor dealt with the legal as well as factual aspects involved in the matter in the manner they should have been. This has constrained us to re-appreciate the evidence adduced by the parties in the trial court, in order to elicit the truth in the present intra court appeal. It cannot be gainsaid that though this court hearing the intra court appeal is the second appellate court, the scope of intra court appeal which is in the nature of Letters Patent Appeal is wider than the scope of second appeal filed under section 100 of Code of Civil Procedure. In this regard beneficial reference of the decision in the case of Smt. Asha Devi vs Dukhi Sao and Another (1974) 2 SCC 492 is required to be made. While distinguishing the powers of court hearing Letters Patent Appeal, and the court hearing Second Appeal, the Apex Court has observed as under:
A Letters Patent appeal from the judgment of a learned Single Judge in a first appeal to the High Court is not exactly equivalent to a second appeal under s. 100 of the Code of Civil Procedure, and therefore it cannot be held that a Letters Patent appeal of this kind can only lie on a question of law and not otherwise. The matter would have been different if the Letters Patent appeal was from a decision of a learned Single Judge in a second appeal to the High Court. In these circumstances it will be open to the High Court to review even findings of fact in a Letters Patent appeal from a first appeal heard by a learned Single Judge, though generally speaking the Letters Patent Bench would be slow to disturb concurrent findings of fact of the two courts below. But there is no doubt that in an appropriate case a Letters Patent Bench hearing an appeal from a learned Single Judge of the High Court in a first appeal heard by him is entitled to review even findings of fact.
8. Now so far as appreciation of evidence with regard to the proof of will is concerned, the legal position is quite well settled since 1959. The Apex Court in the case of H.Venkatachala Iyengar vs B.N. Thimmajamma and ors (AIR 1959 SC 443) has dealt with in detail as to how the evidence should be appreciated by the courts as regards the proof of will in the light of section 67 and 68 of the Evidence Act and section 59 and 63 of Indian Succession Act. It has been held by the Apex Court in the said case as under:
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, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 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 person 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 that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, ss. 59 and 63 of the Indian Succession Act are also relevant. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s. 63 of the Indian Succession Act. As in 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.
9.It is also well settled proposition of law that in all cases in which will is prepared under circumstances, which arouse suspicion that it did not express the mind of testator or that it was prepared under highly suspicious circumstances it is for the propounder of the will to remove that suspicion. However, the law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. In the case of Madhukar D. Shende v/s Tarabai Aba Shedage, (2002) 2 SCC 85, the Apex Court has held as under:
8.The requirement of proof of a will is the same as any other document excepting that the evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872. If after considering the matters before it, that is, the facts and circumstances as emanating from the material available on record of a given case, the court either believes that the will was duly executed by the testator or considers the existence of such fact so probable that any prudent person ought, under the circumstances of that particular case, to act upon the supposition that the will was duly executed by the testator, then the factum of execution of will shall be said to have been proved. The delicate structure of proof framed by a judicially trained mind cannot stand on weak foundation nor survive any inherent defects therein but at the same time ought not to be permitted to be demolished by wayward pelting of stones of suspicion and supposition by wayfarers and waylayers. What was told by Baron Alderson to the Jury in R.v. Hodge (1838), 2 Lewis CC 227 may be apposite to some extent "The mind is apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected hole, and the more ingenuous the mind of the individual, the more likely was it, considering such matters, to overreach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
The conscience of the court has to be satisfied by the propounder of will adducing evidence so as to dispel any suspicions or unnatural circumstances attaching to a will provided that there is something unnatural or suspicious about the will. The law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish a fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict- positive or negative.
9.It is well-settled that one who propounds a will must establish the competence of the testator to make the will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the will in the manner contemplated by law. The contestant opposing the will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the court affirmatively that the testator did know well the contents of the will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance.
10.So far as the requirements of Sec. 63 of the Indian Succession Act and Sec.68 of the Evidence Act are concerned, they read as under:
Section 63 of Indian Succession Act- Execution of unprivileged wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:--
(a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
Section 68 of the Evidence Act-Proof of execution of document required by law to be attested-
If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution,if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
11.In the light of above stated legal position, if the evidence adduced by the parties is examined, it transpires that the alleged will was executed by Joothar Singh @ Mool Singh on 15.10.1976, he died on 4.4.1978, and the application for probate was made by the respondent No.1 (original plaintiff) on 4.5.1978. There were five witnesses examined by the respondent No.1 (original plaintiff) to prove the execution and genuineness of the will and four witnesses examined by the appellant and respondent Nos 2 to 5 (original defendants) challenging the said will. The will in question was produced on record as Exhibit-1. Out of the witnesses examined by the plaintiff, the A.W.1 Tarachand was the scribe in whose handwritings the will was written as per the directions of the said Joothar Singh. The A.W.2 Hari Singh, A.W.3 Brij Singh and A.W.4 Raghunath Singh examined by the plaintiff were the attesting witnesses to the will and A.W.5 Shishupal Singh was the attesting witness as well as the father of the plaintiff-Pooran Singh. All these witnesses, during the course of their evidence had identified their respective signatures and thumb marks, and stated as to how the said will was executed by the said Joothar Singh. Form their evidence, it clearly emerges that the said Joothar Singh had no issue and was being looked after by his brother Sunda Singh and his nephew Shishupal Singh and that the respondent No.1 Pooran Singh who happened to be the son of Shishupal Singh was minor when the will in question was executed. It further emerges that on the date of execution of the said will the said Joothar Singh along with Shishupal Singh had gone to the house of Tarachand and other witnesses were also called there. Thereafter the said Tarachand had written the will as dictated by Joothar Singh and all had put their respective signatures and thumb marks on the said writing of the will. As such no suggestions were put in their cross-examinations which would constrain the court to hold that the said persons had not gone to the house of Tarachand or that Joothar Singh was not in sound state of mind. Under the circumstances, it is required to be held that the will in question was executed by Joothar Singh by dictating the contents thereof to the scribe Tarachand and thereafter putting his thumb mark thereon and that the said will was also attested by more than two witnesses. The said attesting witnesses had stated in their respective depositions interalia that the scribe Tarachand had scribed the will at the instance of Joothar Singh and thereafter had put his thumb mark and the witnesses had also put their thumb marks and the signatures thereon. From such evidence on record, it transpires that the plaintiff had discharged his initial burden of proving the execution of will in question as per the requirements of Section 63 of Succession Act and Section 68 of the Evidence Act.
12.So far as genuineness of will is concerned, it was sought to be submitted by learned counsel Mr.Gupta that the said will in question at Exhibit-1 created suspicion as the spacing of last few lines of the said writing was less than the earlier lines and that some of the impressions of thumb marks were light, whereas some were dark. Learned counsel Mr.Gupta had submitted that since most of the witnesses were illiterate they did not know the contents of the will and that they being either relatives or acquaintance of the said Shishupal Singh, the possibility could not be denied that they had put their thumb marks below the said writing at the instance of Shishupal Singh. As regards the said submissions of learned Gupta for the appellant, it may stated that merely because the spacing of last two-three lines is less than the earlier lines of the said writing at Exhibit-1, it could not be said that the said writing was not genuine. As rightly submitted by Mr. Agrawal, in order to accommodate the writing in one page, sometimes last lines are written closely, and therefore such circumstance should not be considered as adverse circumstance. The concerned witness Shri Tarachand in whose handwritings the said will was written had specifically stated in his evidence that he had written as per the direction of Joothar Singh and in presence of the witnesses Hari Singh, Raghunath Singh, Shishupal Singh and others. He had also stated that after the writing was over, he had read over the same to Joothar Singh and thereafter Joothar Singh and the witnesses had put their thumb marks. Apart from the fact that other witnesses Hari Singh, Brij Singh, Raghunath Singh and Shishupal Singh have corroborated the said version, no such suggestion was put to them in their respective cross-examination that the thumb mark of Joothar Singh was obtained an plain paper and the writing thereon was made subsequently by Tarachand or Shishupal Singh and thumb marks of other witnesses were also put subsequently as sought to be argued in this appeal by Mr. Gupta. There is no requirement of law that the attesting witness should be knowing the contents of the will. The only requirement is that the testator of the will should put his signature or thumb mark as the case may be in presence of two or more witnesses and that the said witnesses also should put their signatures in presence of the testator. In the instant case, the said witness had stated that Joothar Singh had put his thumb mark below the said writing of the will and they had also put their respective thumb marks and signatures on the said will. Therefore, in absence of any substantial defence put up in the evidence by the defendants, the suspicion raised by Mr.Gupta in the present appeal could not be said to be well founded.
13.It was also sought to be submitted by Mr.Gupta that though there was sufficient time in between the alleged execution of the will and the death of Joothar Singh, the said will was not got registered. There is also no substance in the said arguments of Mr. Gupta inasmuch as there is no requirement of law that the will should be registered for being admissible in evidence or for being considered it to be a genuine will. Since this court had found some substance in the arguments of Mr. Gupta that said Shishupal Singh, father of the propounder of the will i.e Pooran Singh, had taken active part in taking Joothar Singh at the place of Tarachand and in calling the witnesses, the court had minutely examined the record of the case and the evidence adduced by both the parties, and had found that there was nothing unnatural if the said Shishupal Singh had taken Joothar Singh to the scribe Tarachand, when the said Joothar Singh was staying with and was being looked after by Shishupal Singh at the relevant time. It is also pertinent to note that the defendants had examined three witnesses and they had also in their respective deposition admitted to an extent that the said Joothar Singh was staying with Shishupal Singh. It is also interesting to note that NAW-1 Peer Dan Singh son of Bool Singh @ Phool Singh had stated in his evidence that Mool Singh @ Joothar Singh was not keeping good health since last two-three years of his death and had not executed any will. However, in the cross-examination he had admitted that he was serving in the Army since October 1976 and had come home only in 1979. Since Joothar Singh executed the will in October, 1976 and had expired in April, 1978, the said witness could not have any personal knowledge of the health of Joothar Singh or as to whether Joother Singh had executed any will or not. Another witness examined by the defendants was Sriram Jagannath, who was the Sarpanch at the relevant time. He had tried to state that Mool Singh was not keeping good health since last two three years of his death. He had admitted in his cross-examination that he did not know as to what Mool Singh was doing or where Mool Singh was going for his work. Nothing material turns out from the evidence of NAW-3 Bahadur Singh except that he had stated interalia that Mool Singh had not executed any will and that he was not staying with Pooran Singh. On the contrary, the NAW-4 Keshar Singh examined by the defendants had stated in his evidence that Mool Singh was stying with Shishupal Singh.The witnesses examined by the defendants had not stated anywhere in their respective evidence that the said Joothar Singh was not in sound state of mind during the period of the execution of the will in question. Even if their version that Joothar Singh was not keeping good health was believed, then also no inference could be drawn that the said Joothar Singh was not in sound state of mind at the time of execution of the said will. Apart from the fact that the witness Tarachand had specifically stated in his evidence that Joothar Singh was absolutely in sound state of his mind when he came along with Shishupal Singh and other persons at his place for scribing the will, there is nothing on record to suggest that the said Joothar Singh was not in sound state of his mind two three years prior to his death. The court has also found substance in the submission of Mr. Agrawal for the respondent No.1 that the said will having been executed in the year 1976 and the evidence having been recorded in the year 1984-85 they were bound to be certain minor discrepancies in their evidence, which should not be given undue weightage in view of the cogent evidence adduced by the plaintiff regarding the execution and genuineness of the will. As held by the Hon'ble Apex Court in the case of Madhukar D. Shende v/s Tarabai Aba Shedage (supra), the law of evidence does not permit conjecture or suspicion having the place of legal proof nor permit them to demolish of fact otherwise proved by legal and convincing evidence. Well founded suspicion may be a ground for closer scrutiny of evidence but suspicion alone cannot form the foundation of a judicial verdict.
14.In view of the above, it is held that the will in question executed by the said Joothar Singh in favour of Pooan Singh was a genuine will, and that the propounders of the said will i.e. Pooran Singh and Shishupal Singh had duly discharged their burden of removing the circumstances shrouded with suspicion, by leading cogent evidence before the trial court. As stated earlier, we are not happy with the reasoning part given by the learned Single Judge, however we agree with the conclusion arrived at by the learned Single Judge that the respondent No.1 was entitled to get the probate of the will dated 15.10.1976 executed by Joothar Singh @ Mool Singh in his favour.
15.For the reasons stated above, we do not find any substance in the appeal and the same deserves to be dismissed and is accordingly dismissed.
(Bela M.Trivedi),J. (A.M.Sapre),J. o