The burden of proof is on the propounder to prove the genuineness of a will beyond reasonable doubt when its execution is shrouded in suspicion.

This is an appeal under Section 299 of the Indian Succession Act. It has been filed against the judgment dated 23-6-1997 passed by the learned Additional District Judge, Nagaon in Title Suit No. 19/1995.

2. It is alleged that a will was left by one Suryamal Hazarika and the beneficiary of that will was the present appellant Rabindra Nath Hazarika. He filed an application before the learned District Judge at Nagaon for grant of Letters of Administration and in that case he did not make the heirs of late Suryamal Hazarika, party and accordingly the Letters of Administration was issued ex parte. Thereafter, the daughter of late Suryamal Hazarika filed an application for revocation of Letters of Administration issued by the Court that has registered as Misc (J) case No. 92 of 1992, that was allowed and the Letters of Administration which was granted earlier was revoked. Thereafter the present application was proceeded before the learned District Judge at Nagaon for grant of Letters of Administration. In this application in Paragraph 2 a statement was made that no other class I legal heir of the testator is living now, though at that point of time the daughter was living. But in view of the earlier revocation of the Letters of Administration, the Court received objection from the daughter and the daughter appeared and contested this will and the matter was registered as a Suit i.e. T.S. 19/1995.

3. It is the case of the propounder that Suryamal Hazarika executed a will and that was registered before the Sub-Registrar, Hojai. The date of execution of the alleged will is 15-2-62. By that will all the properties of Suryamal Hazarika was given to the present Propounder. Sri Suryamal Hazarika died in April, 1971 and the application for Letters of Administration was filed in June, 1992 i.e. after 21 years of the death of the testator. In the objection filed by the daughter it is stated that the will is not genuine. It was not executed and attested and there is no reason as to why the only daughter should be disinherited. It was her further case that she along with her husband looked after her father, at the time of death she was present and she and her other relatives performed the Sradha ceremony. The Propounder was a Railway employee and he was never living with the deceased. In the year 1962 the Propounder was not at his village home at Kaki. On this background it was prayed that the application for Letters of Administration may be dismissed.

4. Before the trial Court the following witnesses were examined.

P.W. 1 Rabindra nath Hazarika the Propounder of the will P.W. 2 is Deb Kanta Sarma who is a Deed Writer at Hojai Sub-Registrars office since 1947. He identified the signatures of the scribe of the alleged will as the Scribe was dead in the meantime. P.W. 3 is Bangshidhar Saikia. He was examined on commission. He is one of the attesting witness of the will. D.W. 1 is Phulti Bania the daughter of the testator. D.W. 2 is Jiban Hazarika. He is the nephew of Suryama Hazarika and the brother of the Propounder of the will. The will was exhibited as Ext. 1. The learned Judge on consideration of the materials on record came to the following findings :-

i) There is only thumb impression of the testator in the will. There is no scope for verification as to the genuineness of this thumb impression as no other such impression of the testator is available for comparison. That step was to be taken by the propounder, because onus lies with him to show that the disputed thumb impression was that of the testator............... .............

So, due and proper execution of the Will cannot be said to be there.

ii) The execution of the will has not been properly proved.

iii) There is improbability factor as both the scribe and one of the attesting witness have already expired and nobody can examine them. The petitioner is to blame himself as there was delay caused by the petitioner. He came to the finding that due attestation was not proved.

On consi