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4. The learned single judge rejected the appellant's application for substitution in place of Sita Kashyap as her heir. The reasons that led to the learned single judge to conclude that the appellant failed to prove the Will as genuine and executed in accordance with law was FAO(OS) No.279/2013 Page 2 five fold. The first reason concerned, the manner in which it was produced i.e. its knowledge vis-à-vis the appellant. Second, the learned single judge felt that the materials on record disclosed that the testatrix was aged and more importantly infirm since she had developed cataract and was unable to see. Consequently he concluded that the Will was not the result of exercise of free choice and volition and rather was the outcome of undue influence and mental coercion on her mind influenced by the beneficiary i.e. the appellant. The third important reason was a discrepancy in the dates. Whereas one of the dates on the document showed that it was executed on 14th of June 2004, the other date on the Will was 15th of June 2004. There were two sets of attesting witnesses and according to the learned single judge, those deposed that the Will was duly proved on 15th of June 2004 did not inspire confidence. The fourth circumstance was that the testatrix was inaccurate about her own age, which lent a high degree of improbability as to its due execution and further, that the testatrix was unaware about the extent of her estate, particularly what her movable possessions were. The fifth and last circumstance which led to the learned single judge to suspect the due execution of the Will , was the suspicion that the propounder, i.e. the appellant in all likelihood had played an important role in its execution. All these constituted suspicious circumstances, which led the court to disbelieve that the Will was not free from suspicion. 

FAO(OS) No.279/2013                                                Page 3
 Contentions of the parties

5. Learned Counsel for the appellant submitted that the single judge fell into error in concluding that the testatrix was unaware as to the extent of her estate and made dispositions of properties of which she was not an owner or did not exist. It was contended that the fact that the testatrix was of sound discretion and mental disposition - in no way was undermined by the fact that she suffered from cataract. It was submitted that PW-3 Shri Jaggi, who drafted the Will, clearly stated that the testatrix was carrying a magnifying glass to read the document and her signatures were rather expanded on account of the vision defect. At the same time the witness stated that the contents (of the Will) were known to her and she gave all particulars to him which were correct at that point of time. The changes indicated by the testatrix were duly carried out. It was submitted next that the fact that some properties particularly the movable assets such as the contents of the locker not being available at the time of the testatrix's death, was not an important circumstance. Learned Counsel highlighted that whereas the Will was made and executed on 15-06-2004, the testatrix herself passed away on 06.08.2009 i.e. more than 5 years later. As a consequence the learned single judge did not appreciate the state of flux which movable assets were inherently capable of. He was of the opinion that the bank locker contents were not available at that time.

15. The next issue, which raised the suspicions of the learned Single Judge, was the mention of the testatrix's age. The Will stated that the testatrix was 76 years. PW-3 had deposed that the testatrix "In the year 2004, she claimed herself to be around 83/84 Years old". PW-1 stated in cross- examination that she was unable to say whether the testatrix was 82 years of age in 2004; she volunteered to say that she appeared to be younger. She was not aware of her mother's year of birth either. In the opinion of this Court, in these circumstances, as to whether the testatrix's age was 76 or 82 or indeed 84 as of the date when the Will was executed is of no consequence. All that can be stated is that either the testatrix did not specifically or accurately mention her date of birth, or that the person recording it did not do so efficiently. It is a matter of fact that the testatrix did have a look at the Will as deposed to by PW-2. The objectors had urged that the testatrix was stricken with vision defect as she had suffered from cataract and was in fact unable to see for almost two years. Aside from the fact that this version is based upon oral testimony of Harbans Kashyap, and no other material on record or testimony, there is nothing to show that the cataract that the testatrix had developed had rendered her sight impossible. In fact, the testimony of PW-2 is that the testatrix used a FAO(OS) No.279/2013 Page 15 magnifying glass to see the Will. Consequently, the submission that the cataract so visually impaired the testatrix as to render it impossible for her to sign is hard to believe. Furthermore, the version of Harbans Kashyap that the testatrix was confined to the bed, is not believable, because both PW-2 and PW-3 in their unshaken testimony deposed that she had gone to her lawyer's office, where the Will was attested and then got it registered. In the opinion of this Court, the learned Single Judge was unduly swayed by the submissions by the objectors in this regard. The objector's contention therefore, that the Will could not have been executed or that it was not executed with due exercise of volition, is therefore rejected.