The main legal point established is the need for the propounder to prove a Will, the onus of proof in cases of suspicious circumstances, and the test of satisfaction of the judicial conscience in determining the validity of a Will.

Tarlok Singh Chauhan, J.

1. The dispute in this Regular Second Appeal is about the succession to 8 bigha 13 biswas land belonging to Budhu Ram, who was a bachelor and obviously died issueless. According to the plaintiffs/respondents, he died intestate and claimed to have proportionately inherited the suit land along with defendants/appellants in accordance with the provisions of Hindu Succession Act, 1956 (for short ‘Act’).

2. On the other hand, the appellants/defendants claimed to have succeeded to the suit land exclusively on the basis of a Will executed by Budhu Ram.

3. Looking at the order I propose to pass, it is not relevant to refer to the pleadings in detail. Suffice it to say that out of the pleadings to the parties, the learned trial Court framed the following issues on 19.6.1992:

1. Whether the plaintiffs and defendants are joint owner in possession of the suit land as alleged? OPP

2. Whether Sh. Budhu Ram executed a valid Will in favour of defendant No.1? OPP

3. Whether the suit is time barred? OPD

4. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD

5. Whether the suit is not properly verified? OPD

6. Relief.

4. After recording the evidence and evaluating the same, the suit of the plaintiffs was decreed by the learned trial Court.

5. The appeal preferred against the judgment and decree, also came to be dismissed by the learned first Appellate Court giving rise to the instant appeal.

6. On 26.9.2006, this Court admitted the appeal on the following substantial question of law:

Whether the two courts below have failed to appreciate the evidence pertaining to the execution of Will in the right perspective and as a result of that failure, there has been miscarriage of justice.

I have heard learned counsel for the parties and gone through the records of the case carefully.

7. The reason why I have intentionally not referred to the facts of the case in detail or to the statements recorded of the witnesses is that the learned first Appellate Court has completely failed to take into consideration that it was the plaintiffs who had alleged fraud, undue influence, coercion etc. in regard to the execution of the Will and, therefore, such pleas had to be proved by them. As such, the onus even as per issue No.2 had been rightly placed upon them. But the learned lower Appellate Court proceeded to decide the case as if it was dealing with a case where the issue framed was with regard to the suspicious circumstance surrounding in the Will and thereby placed the onus upon the defendants to prove the Will.

8. The learned lower Appellate Court has failed to take into consideration the correct legal position in matters of Will as laid down by the three Hon’ble Judges of the Hon’ble Supreme Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, AIR 1959 SC 443 and thereafter approved by the Hon’ble Constitution Bench of the Hon’ble Supreme Court in Shashi Kumar Banerjee and others vs. Subodh Kumar Banerjee and others, AIR 1964 SC 529 and thereafter reiterated in a number of cases including three Judges of the Hon’ble Supreme Court in Smt. Jaswant Kaur vs. Smt. Amrit Kaur and others, (1977) 1 SCC 369, wherein the legal position was succinctly summed up in the following manner:

“10. “There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in H. Venkatachala Iyengar v. B.N. Thirnmajamma & Others, AIR 1959 SC 443. The Court, speaking through Gajendragadkar J., laid down in that case the following propositions :

1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

2. Since section 63 of the Succession Act requires a will to be a