The propounder of a Will must prove its execution and validity, and the presence of suspicious circumstances must be specifically pleaded by the opposing party to shift the burden of proof.

JUDGMENT :

C.T. RAVIKUMAR, J.

1. This appeal is filed against the judgment and order dated 21.11.2008 passed by the High Court of Karnataka at Bangalore in M.F.A. No. 3077 of 2001 reversing the judgment and decree dated 20.02.2001 passed by the III Additional District Judge, Dakshina Kannada at Mangalore in O.S. No. 21 of 1997.

2. The suit in question was originally filed as a petition for probate of the Will dated 10.11.1992, executed by deceased Cecelia Lobo, by her sons Dr. Derek AC Lobo and Cedric P.A. Lobo who are the joint executors named therein. In the said proceedings the original defendants 1 and 6, who are the daughters of deceased Cecelia Lobo, put in caveat and disputed its execution and genuineness. Subsequently, it was converted as an original suit under Section 295 of the Indian Succession Act and was numbered as O.S. No. 21/1997. Evidently, the 5th defendant who was another brother of the appellants resisted the suit by filing a written statement and the sisters of the appellants herein who are respondent Nos. 3 and 7 herein (defendant Nos. 1 and 6 in the suit), jointly filed a written statement. On the side of the plaintiffs, the first plaintiff got himself examined as PW-1, defendant No. 7 was examined as PW-2 and one of the attesting witnesses was examined as PW-3. On the side of the defendants, defendant No. 5 was examined as DW-1, one Jathin C. Patna was examined as DW-2 and a finger print and hand writing expert by name C.V. Jayadevi was examined as DW-3. After appreciating the oral and documentary evidence, the trial Court decreed the suit and held that the plaintiffs are entitled to the grant of probate of the last Will and testament dated 10.11.1992 of their deceased mother Cecilia Gertrude Lobo. Further consequential directions were also issued as per the judgment dated 20.02.2001.

3. Aggrieved by the judgment and decree of the trial Court, defendant No. 5 preferred appeal viz., M.F.A. No. 3077 of 2021, which ultimately culminated in the impugned judgment. None of the other defendants filed any appeal against it. After re-appreciation of the evidence the High Court held that the Will dated 10.11.1992 is shrouded with suspicious circumstances and reversed the judgment and decree of the trial Court. As a necessary sequel the suit was dismissed.

4. As per the order dated 09.07.2009, this Court ordered the parties to maintain the status quo, as it existed on that date, until further orders.

5. Heard Mr. Nikhil Nayyar, the learned senior counsel for the appellants and Mr. Devashish Bharuka, the learned counsel for respondent Nos. 2 and 3 who were defendant Nos. 1 and 6. None of the other respondents including the legal representatives of deceased defendant Nos. 3 and 5 have chosen to contest the matter despite the receipt of notice.

6. A bare perusal of the judgment and decree of the trial Court as well as the impugned order would reveal that with respect to the issue of execution of the Will dated 10.11.1992 by deceased Cecelia Gertrude Lobo the courts are ad idem, in the sense that it was she who had signed the same as testatrix. The trial Court held that the plaintiffs had succeeded in proving the execution of the Will in terms of the provisions under Section 63 of the Indian Succession Act, 1925 (for brevity, ‘the Succession Act’) and Section 68 of the Indian Evidence Act, 1872 (for short ‘the Evidence Act’). However, even after finding that the Will was executed by Mrs. Cecilia Gertrude Lobo the High Court reversed the judgment of the trial Court holding that in view of the suspicious circumstances it could not have been held that the plaintiffs had succeeded in proving due and valid execution of the Will. In troth, High Court did not specifically enter into any specific finding regarding the mental condition of the testatrix for executing the Will in question. The impugned order would reveal that after elaborately considering the physical state of the testatrix that she was suffering from arthritis and was