JUDGMENT

K. Venkataswami, J.-The legal representatives of the first defendant and the second defendant in Probate Suit No. 26/73 on the file of the Second Additional District Judge Varanasi, are the appellants in this appeal. The respondents herein had filed the said suit on the basis of a Will dated 3.10.72 alleged to have been executed by one Smt. Bhullan Devi in their favour. The property in dispute is a house property.

2. Indisputably, the appellants herein are the close agnates of the deceased Bhullan Devi s husband Ram Lal. Likewise the respondents herein belong to a different caste. That appears to be the sheet anchor of the appellants case for attacking the genuineness of the Will in dispute.

3. Broadly put the objections raised by the appellants before the Trial Court for granting Probate were: (a) that the beneficiaries (respondents herein) belong to a different caste and that the recital in the Will that thebeneficiaries were looking after the needs of the testatrix were absolutely false and were without any foundation; (b) that the testatrix at the time of her death namely 3.10.1972 was very old, weak and hard of hearing and was not at all in a disposing state of mind; (c) that there were no good reasons for ignoring the appellants and selecting the respondents to bequeath the suit house; (d) that the appellants and the family members were looking after the needs of the testatrix and the respondents taking advantage of their absence from the village at the time of death of testatrix, removed some blank papers and other deeds from the testatrix s house and using the same forged the Will in question and (e) that the testatrix was a literate person and she used to sign papers but the Will in question bears thumb marks which were not the thumb marks of the testatrix.

4. In support of their application for Probate, the respondents (applicants before the Trial Court) inter alia examined one attesting witness (P.W.1) and the scribe (P.W.2). The evidence let in on the side of the respondents through P.Ws. 1 and 2 and their own to support the pleadings for grant of Probate was to the effect that the father-in-law of the respondents by name Mahabir was a close friend and co-worker of Bhullan Devi s husband in Railway. The said Mahabir has given to him free of cost the land on which the suit house was constructed be the husband of Bhullan Devi. The husband of Bhullan Devi died in the year 1950. Thereafter, the relationship between Bhullan Devi and that the families of appellants was anything cordial. Bhullan Devi was not looked after by her relations and the respondents being their neighbours and old family friends looked after Bhullan Devi s comforts as if she was their mother-in-law. It is also brought on record by evidence that on the death of Ram Lal, Bhullan Devi s husband, the father of the defendants (grandfather of appellants 1,2 and 3 and father of appellant 4) moved the Court for obtaining Succession Certificate claiming to be the sole heir to succeed to the estate of Ram Lal but on objection he withdrew the case. It is also on record that Bhullan Devi issued a Public Notice claiming to be the sole heir to her deceased husband. In that capacity she has executed a waqf deed in respect of some property and also alienated another property. Those alienations were not questioned by the appellants herein. The attesting witness and the scribe as P.Ws 1 and 2 have also clearly spoken about the true the valid execution of the Will as well as to the sound and disposing state of mind of the testatrix at the time of the execution of the Will. It was also brought on record by evidence that Bhullan Devi testatrix while executing the waqf deed had not signed but put her thumb impression.

5. The appellants in support of the objections as set out above have also let in oral evidence. The Trial Court framed three issues on the basis of the pleading and considered the merits in the light of the pleading oral and documentary evidenc