Probate Court is a Court of conscience and not a Court of suspicion.

(Appeal filed under Order 36 Rule 1 read with Clause 15 of the Letters Patent against the judgment of the learned single Judge dated 30.1.2001 in T.O.S.No.28 of 1999.)

P.K. Misra, J.

For convenience, the parties are referred to as they are described in this Appeal.

The present appeal has been filed against the judgment of the learned single Judge in T.O.S.No.28 of 1999, rejecting the application of the present appellant for issuance of probate in respect of the Will dated 8.4.1993, purportedly executed by one P.G. Arunachalam.

2. Admittedly, late Arunachalam through the first wife had one son late A. Srinivasan and one daughter, Respondent No.4. Two sons and widow of late A. Srinivasan are the Respondents 5 to 7. After the death of the first wife, the aforesaid Arunachalam had married Respondent No.1. Through Respondent No.1, there are three sons, the present Appellant and Respondent Nos.2 and 3.

3. The appellant claims that Arunchalam executed a Will dated 8.4.1993 whereunder the disputed property and movables and cash deposits, etc., were bequeathed in favour of the appellant, Respondents 1 and 2 and the present appellant was appointed as the Executor of the Will. After the death of Arunachalam on 26.11.1998, the present appellant filed O.P.No.351 of 1999 corresponding to T.O.S.No.28 of 1999 for grant of probate.

4. In the said proceedings, a written statement was filed by the Respondent No.4, who had been arrayed as Defendant No.4, opposing the grant of probate. No objection had been filed on behalf of the legal heirs of pre-deceased son, namely, the Respondents 5, 6 and 7 as well as the second wife of the testator, namely, Respondent No.1. In the written statement filed by Respondent No.4 it was indicated that the alleged Will had been created by using some signatures of the testator on a piece of blank paper and the testator would not have written such a Will leaving his only daughter out of the Will. It was further indicated that the testator had constructed the disputed house property by utilising the gold jewels belonging to the mother of the Respondent No.4 and therefore she has a share in the property. It was further indicated that the testator had told her that all the properties would be equally divided among the legal heirs including the objector. It was further stated that during the year 1993 she had visited her father on many occasions, but her father had not uttered a single word about the alleged Will. It was further stated that in the Will reference had been made to several promissory notes, National Savings Certificates, Shares, Fixed Deposits, etc., but in the affidavit of assets, the petitioner (present Appellant) had disclosed only about the house property and had not disclosed about the movable properties which “... shows that the petitioner and the respondents 1 to 3 appeared to have hand in glove and secreted all those movable properties by fraudulently obtaining signature from her father. This defendant and defendant 5 and 6 were left out of those property alsoâ€. It was further stated that the Will was not executed in sound and disposing state of mind by the testator and it was fraudulently brought about by the appellant to defeat the lawful share of Respondent No.4 and the Respondents 5 to 7.

5. In the proceedings, the appellant was examined as P.W.1 and one of the attesting witnesses was examined as P.W.2 and one Doctor was examined as P.W.3. On behalf of the contesting defendant, she herself was examined as D.W.1 and the sister of the testator was examined as D.W.2.

6. The trial court framed the following issues:-

“1. Whether the Will dated 8.4.1993 was executed by the testator while in a sound and disposing state of mind?

2. Whether the petitioner is entitled to get probate of the Will?

3. To what relief?â€

7. The trial court while discussing all the issues together, came to the conclusion that the Will cannot be held to be valid, true and a genuine document. The present appeal is agains