The burden of proof that a Will was validly executed and genuine rests on the propounder, who must remove all legitimate suspicions before the document can be accepted as the last Will of the testator.

JUDGMENT

Anubha Rawat Choudhary, J. - Heard Mr. V. Shivnath, Senior counsel appearing on behalf of the appellants assisted by Mr. Kundan Kumar Ambastha, Advocate.

2. Heard Mr. Arbind Kumar Sinha, counsel appearing on behalf of the respondents assisted by Mr. Baban Prasad, Advocate.

3. This miscellaneous appeal has been filed challenging the order dated 24.11.2003 passed by the 3rd Additional District Judge, Palamau at Daltonganj dismissing the Title Suit No.1/2003.

4. Counsel for the appellants submits as under:

i. The plaintiff no.1 had filed an application in the court of District judge, Palamau in the capacity of the executor for grant of probate under Section 276 of Indian Succession Act, 1925. Accordingly, Probate Case No.6 of 1994 was registered and upon general publication of notice, the defendant nos.1 and 2 filed their objection and hence probate case was converted into Title Suit No.1 of 2003 and the application for grant of probate was treated as plaint. The objection filed by defendant nos.1 and 2 was treated as written statement. Subsequently Sanjeev Kumar Sharma, the beneficiary of the Will was made co-plaintiff.

ii. The undisputed facts of the case are that Rambilash Mistry, son of Aliyar Mistry was married with Rukmini Devi. Rambilash Mistry and Rukmini Devi had no issue. Aliyar Mistry had altogether 5 issues; 3 daughters and two sons, namely Rambilash Mistry and Nanku Mistry. Rambilash Mistry and his wife Rukmini Devi had no issue, but Nanku Mistry had 5 issues namely Basudeo Mistry @ Sharma, Kanhai Mistry, Shyambihari Mistry, Durga Devi and Saraswati Devi. So far as Basudeo Mistry is concerned, he had 4 issues namely Sanjeev Kumar Sharma, Smita Sharma, Rajeev Kumar Sharma and Puja Sharma. Sanjeev Kumar Sharma is the beneficiary of the Will involve in this case.

iii. The specific case of the plaintiffs was that as Rambilash Mistry and Rukmini Devi had no issue, therefore they brought Basudeo Mistry and kept him as his son and got him married with Suman Sharma.

iv. Aliyar Mistry, expired sometime in the year 1960 and his wife Etwariya Devi, expired sometime in the year 1980. As the daughters of Aliyar Mistry did not claim any share in the property, Rambilash Mistry inherited half of the interest of Aliyar Mistry and the remaining went to his brother namely Nanku Mistry. Rambilash Mistry through registered Sale Deed No. 2644 dated 06.05.1959 purchased one Kita house in the name of his wife Rukmini Devi situated in town Daltonganj and he also owned and possessed movable and immovable property such as bank account and fixed deposits.

v. The case of the plaintiffs was that Rambilash Mistry and his wife Rukmini Devi had great love and affection for Sanjeev Kumar Sharma, son of Basudeo Mistry from his very childhood and on account of great love and affection towards Sanjeev Kumar Sharma (Plaintiff No.2), in sound health of body and mind, executed a Will dated 26.01.1991 in favour of Sanjeev Kumar Sharma @ Chintu in respect of their all movable and immovable properties after duly understanding its implication and after consulting relations as well as wellwishers, without any coercion, misrepresentation and undue influence at Daltonganj. After the execution of the Will, Rambilash Mistry died on 24.08.1993 and Rukmini Devi died on 26.02.1991. Plaintiff no.1 i.e., Surendra Kumar Sharma, being the executor named in the Will, filed the probate case.

vi. The specific case of the plaintiffs was that the Will dated 26.01.1991 was the first and the last Will and testament of Rambilash Mistry and Rukmini Devi, in which plaintiff no.1 was named as the executor and the beneficiary of the Will was the co-plaintiff i.e., plaintiff no.2. The Will was duly executed by both the executants and attested by two attesting witnesses in their presence and at their instance namely Surendra Sharma and Tej Narain Singh.

5. Counsel for the appellants further submits that upon publication of notice, the defendants filed objection. The case of the