The court emphasized that the burden of proving the validity of a will lies with the propounder, who must dispel any suspicions surrounding its execution, in accordance with Section 68 of the Indian Evidence Act.

JUDGMENT :

M.W. CHANDWANI, J.

This appeal challenges the judgment and decree of the learned Additional District Judge, Akot passed in Regular Civil Appeal No.177 of 2005, whereby the first appellate Court overturned the decree of dismissal and allowed the appeal of the respondent declaring him as the owner of the suit property on the basis of will-deed dated 03.05.1996.

2. By the order dated 18.08.2006, the following substantial questions of law came to be framed :

“(A) That considering the various suspicious circumstances on record as regards execution of the will dated 30.05.1996 (Exh.86) such as :

a) Age of the testator being 80 years,

b) Physical condition of the testator not being good,

c) Signatures of the testator were differing from each other on Exh.86,

d) Exclusion of all other sons/relatives from the bequest especially when the testator had executed a will previously in the year 1993 and

f) Material discrepancies in the evidence of the attesting witnesses as regards execution and registration of the will, was the lower Appellate Court correct in holding that the will at Exh.86 had been duly proved by the plaintiff is the substantial question of law that arises in the present Second Appeal.

(B) That in absence of any specific pleadings by the plaintiff as regards execution of the will by the testator – Tulshiram as well as regarding cancellation of the earlier will, could the lower Appellate Court have relied upon the evidence of the attesting witnesses so as to hold that a will (Exh.86) had been duly proved is another substantial question of law that arises in the present Second Appeal,

(C) That whether it could be said that the will (Exh.86) had been proved as required by the provisions of Section 68 of the Indian EVIDENCE ACT is another substantial question of law that arises in the present Second Appeal.”

3. Mr. Ahmed, learned counsel appearing on behalf of the appellants vehemently submitted that the Will has been discarded by the trial Court on the ground that it is surrounded by suspicious circumstances which have not been explained by propounder of the Will i.e. the respondent. However, the first appellate Court without giving any reason, has set aside the finding of the trial Court by holding that the Will has been duly proved by the propounder by examining one of the attesting witnesses.

4. Learned counsel appearing on behalf of the appellants further submitted that the testator was 80 years old and there is nothing on record suggest that his physical and mental condition was good. No doctor has been examined to prove this fact and there are various discrepancies in the evidence of the attesting witness. It is also contended that there is no specific pleading with regard to execution of the Will by deceased Tulshiram, the testator and the Will has not been duly proved as per the provisions of Section 68 of the Indian EVIDENCE ACT .

5. Mr. Ahmed took me to the deposition of the attesting witnesses to show that there are two signatures on the will and there are discrepancies in both the signatures which also creates a doubt on the execution of the will by the testator. According to him, the trial Court has also recorded the difference of the signatures of testator on the will-deed and partition-deed. According to him, it is for the propounder of the Will to remove all suspicious circumstances. To buttress his submission, he seeks to rely upon the case of K. Laxmanan Vs. Thekkayil Padmini and others , 2009 (3) MhLJ 510 : 2009 (1) SCC 354 wherein the Supreme Court has held in para 20 which reads thus:

“20.Strong reliance was placed on this p