IMPORTANT POINT
In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis and what is an adversary proceeding becomes in such cases a matter of Court s conscience.

JUDGMENT

Venkataswami, J.-Leave granted.

Heard counsel on both sides at length.

2. Even at the outset we would like to express our unhappiness over the disposal of the second appeal in two words No merit Dismissed by the Punjab and Haryana High Court especially when the controversy related to the genuineness of a will which is not a mere question of fact, but a mixed question of fact and law. The High Court should have gone into the matter in detail and its failure to do so made us to go through the entire records by ourselves.

3. The appellants are the plaintiffs in a suit for declaration that they are the joint owners in respect of 1/3rd share of the land measuring in all 429 kanal 7 marlas as entered in the jamabandi for the year 1983-84 situated in the area of village Kahneke. The plaintiffs also prayed for a further declaration that mutation No. 3030 dated 2.6.1986 sanctioned by the Assistant Collector 1st Grade, Barnala was illegal and ineffective against the rights of the plaintiffs and consequently, relief sought for was to restrain the first defendant in the suit (the first respondent herein) from alienating the suit land on the strength of mutation No. 3030.

4. The admitted facts are that the husband of the first appellant, namely, Atma Singh was entitled to 1/3rd share of the total suit lands. The balance 2/3 belongs to his two brothers, namely, respondents 3 and 4 herein. The second appellant is the daughter of first appellant through the said Atma Singh. It appears that the appellant s were living separately from Atma Singh. It is claimed by the first respondent who is the sister of Atma Singh that the said Atma Singh by a registered will dated June 14, 1979 bequeathed all his properties in her favour depriving the appellants in toto. Naturally, the appellants moved the trial court challenging the genuineness of the said will. It is specifically challenged that the said Atma Singh being an illiterate person, the will was made by impersonation and the alleged thumb impression was not that of said Atma Singh. The said Atma Singh died 7 years after the will. In resisting the suit, the first respondent claimed that the will was genuine one and the deceased Atma Singh out of love and affection and in view of services rendered by her has bequeathed his estate in preference to his wife and daughter. It is also brought on record that after the execution of the said will, the said Atma Singh has said to have executed two sale deeds in favour of the second respondent who is none other than the son of the first respondent when he was a minor. It is further claimed by the first respondent that her brother Atma Singh brought up the second respondent as his adopted son and the second respondent lived with Atma Singh from his childhood.

5. The first appellant as first plaintiff apart from examining herself as a witness also examined two other independent witnesses to support her case that the will was forged one. It is an admitted fact that one of the attesting witnesses was the fourth respondent herein (brother of the testator) and another attestor was from different village and cousin of the first respondent. It is also not clear when the genuineness of the will was seriously challenged why the original will was not produced, but only the certified copy was marked as D.W. 6-A. Likewise the sale deeds in favour of the second respondent also were not produced in original, but certified copies alone were marked on the side of defendants.

6. The learned trial Judge who had the benefit of observing the demeanour of the witnesses found that the propounder has not satisfactorily discharged the onus of proving the genuineness of the will especially when the will was attached with number of suspicious circumstances coupled with an unnatural bequest. The trial court found that one of the attesting witnesses, namely, the cousin of the first respondent was not from the same village in which the testator was living. This fact assumed im