JUDGMENT

R.M. SAHAI, J. :- Disinherited daughter, under a Will alleged to have been executed by her father one day before his death bequeathing all his property in favour of sons of her only sister, has assailed validity of orders of three courts below for failure to apply the rule that presumption of due execution of a pious and solemn document like Will stood rebutted due to existence of suspicious circumstances which the propounder could not rule out specially when he had taken active part in its execution.

2. Soft corner for grandchildren or like ability for a son or daughter or their issues is not uncommon to our society. Rather at times it becomes necessary either to provide for the lesser fortunate or to avoid the property from passing out of the family. But when dispute arises between heirs of same degree, and the beneficiary even chooses to deny the blood ties, and that too unsuccessfully, then Courts responsibility of performing its duties carefully and painstakingly multiplies. Unfortunately it was not properly comprehended by any of the Courts, including the High Court which was swayed more by happy marriage of appellant, a consideration which may have been relevant for testator but wholly irrelevant for Courts as their function is to judge not to speculate. Although freedom to bequeath ones own property amongst Hindus is absolute both in extent and person, including rank stranger, yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at time of disposition knew and understood the property he was disposing and persons who were to be beneficiaries of his disposition.Prudence, however, requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a will but it shrouds the disposition with suspicion as it does not give any inkling to the mind of testator to enable the Court to judge if the disposition was voluntary act. Taking active interest by propounder in execution of Will raises another strong suspicion. In H. Venkatachala v. B. N. Thimmajamma AIR1959 SC 443, it was held to render the Will infirm unless the propounder cleared the suspicion with clear and satisfactory evidence. Mere execution of Will, thus, by producing scribe or attesting witness or proving genuineness of testators thumb impressions by themselves was not sufficient to establish validity of Will unless suspicious circumstances, usual or special, are ruled out and the Courts conscience is satisfied not only on execution but about its authenticity. See Kalyan Singh v.,Smt. Chhoti, (1989) 4 JT 439.

3. Coming now to facts it has been found by all the three Courts below that testator was a migrant from West Pakistan who after migration resided in village Rupena, was ill for sometime and lived with his daughter and her sons who are the beneficiaries six months prior to his death. It was further found that appellant was also one of the daughters. No findings was recorded that she or her sons a any sore or sour relations with testator. But the most important finding was that even though the testator could sign yet he put his thumb mark on it. It was found to be genuine. The execution was thus held beyond doubt. But it was sufficient to put the Courts on alert specially when the professional scribe fetched by beneficiarys father admitted that when he reached beneficiarys residence where the Will was executed, he found testator covered with a quilt in the afternoon of August with whom he did not talk nor enquire about his health. Unfortunately none of the Courts paid any attention to these probably because they were swayed with due execution even when this Court in Venkatachalas case, (AIR 1959 SC 443) (supra), had held that proof of signature raises a presumption about knowledge but the existence of suspicious circumstances rebuts it. Importance of these aspects would have. become apparent if-they had