The propounder of a will must satisfactorily explain suspicious circumstances to establish the genuineness of the will.

Mungeshwar Sahoo, J.

1. The Plaintiff has filed this First Appeal against the judgment and decree dated 16.02.2005 passed by Sri Brahma Nand Prasad, the learned Addl. District Judge, Fast Track Court, Munger in Probate Case No. 5 of 1992 which was subsequently numbered as Title Suit No. 5 of 2001 whereby the learned Court below dismissed the suit with cost.

2. The Plaintiff-Appellant filed the application for grant of probate or letters of administration which was registered as probate Case No. 5 of 1992. The Defendant-Respondent contested the matter and, therefore, in view of Section 295 of the Indian Succession Act, the said application was renumbered as Title Suit No. 5 of 2001.

3. The Plaintiffs case in short is that the writing annexed with the application is the last will and testament of Sukhdeyi Devi wife of late Shyam Sunder Narayan. The will is dated 02.11.1988. Sukhdeyi Devi died on 22.11.1988. The said will was duly executed in favour of the Plaintiff by Sukhdeyi Devi at her residence which was duly attested. The Plaintiff was serving Sukhdeyi Devi as his mother and out of love and affection, she executed the will in presence of the witnesses. Sukhdeyi Devi was the wife of Plaintiffs fathers brother. Chit Sundar Narayan, the father of the Plaintiff is brother of Shyam Sunder Narayan. She died leaving behind Chit Sundar Narayan who would have inherited the property if there was no will. Therefore, the Plaintiff prays for grant of probate or in alternative prayed for grant of letters of administration.

4. The Defendant-Respondent who is own brother of the Plaintiff filed written statement contesting the case. According to him, his case in short is that the alleged Will is forged, fabricated and the same was never executed by Mostt. Sukhdeyi Devi. The property described in Will is part and parcel of joint family dwelling house of the parties which was left behind by common ancestor, late Rajendra Narayan. Rajendra Narayan died in jointness with his 3 sons, namely, Shyam Sundar Nayaran, Chit Sundar Narayan and Shivsundar Narayan along with several grand children who came in joint possession of the house. Shyam Sundar Narayan died issueless in the year 1969 leaving behind Mostt. Sukhdeyi Devi. Shivsundar Nayaran also died leaving behind his wife, Sudha Rani and two sons Manoj Kumar and Sanjeev Kumar and four daughters who also jointly succeeded and came in joint possession of the dwelling house. Smt. Sudha Rani filed Title Suit No. 82 of 1984 in the Sub Judge 1st Munger for partition of the ancestral dwelling house against said Mostt. Sukhdeyi Devi, Chit Sundar Narayan and his sons and grand sons. In the said suit, Mostt. Sukhdeyi Devi appeared and filed written statement on 23.07.1985 admitting jointness and joint possession of the parties. Chit Sundar Narayan filed a written statement contending that he was not pulling well with Mostt. Sukhdeyi Devi and that there had already been partition of the said dwelling house left by Rajendra Narayan. However, the said suit was dismissed as withdrawn on 02.09.1987. Subsequently, Sanjeev Kumar, s/o late Shiv Sundar Naryan filed Title Suit No. 190 of 1987 in the said Court for partition of the ancestral dwelling house wherein all the heirs of Rajendra Narayan were made party. The alleged purchasers Dharam Veer Prasad Singh from Sukhdeyi Devi were also made party-Defendants alleging that she sold suit property. In the said partition suit, Mostt. Sukhdeyi Devi filed written statement on 20th July, 1988 asserting that the parties are in joint possession over the said ancestral dwelling house and she specifically denied to have executed the said alleged sale deeds. She also alleged that the said sale deeds were the creation of Chit Sundar Narayan who was Defendant No. 1 in the said suit.

5. The further defence is that Sukhdeyi Devi was in joint possession and she also took the same stand in the aforesaid two suits and, therefore, there was no occasion for her to have descri