The onus of proving a will is on the propounder, and in the presence of suspicious circumstances, the propounder must explain them to the satisfaction of the court.

K. Raviraja Pandian, J.

1. O.P. No.226 of 1985 filed for issuance of letters of administration of the Will of the testatrix - Kakkammal has been converted into Testamentary Original Suit and numbered as TOS No.11 of 1987, as the husband of the testatrix questioned the genuineness, execution and attestation of the will. The will has been marked as Ex.P.1. The plaintiff Boopathy Ammal since deceased, who was the daughter of the testatrix, was the sole legatee under the will. Plaintiffs 2 to 5 are daughters of the deceased Boopathy Ammal, the legatee under the will. The 5th plaintiff Mallika – one of the daughters of the legattee got married to Balram Reddy, one of the two brothers of Boopathy Ammal, but issueless. The other brother was Booloka Reddy. Both the brothers predeceased Boopathy Ammal. Defendants 2 to 4 are the legal representatives of Boologa Reddy. The first defendant was the husband of the testatrix, who died pending suit. In the suit, Boopathy Ammal was examined on commission as P.W.1.

P.W.2 is one of the five attestors of the Will. P.W.3 is the scribe. One Jagannathan, the Village Nattamai was examined as D.W.1 on the side of the defendants. The learned single Judge, after taking into consideration the evidence made available – both oral and documentary, dismissed the testamentary suit on the premise that the testatrix Kakkammal has not affixed her thumb impression on Ex.P.1 in a sound and disposing state of mind; execution and attestation of the will have not been satisfactorily proved; and the sole beneficiary of the will had taken a prominent role in the preparation, execution and attestation of the will; and there were so many suspicious circumstances surrounding the execution and attestation of the document. The correctness of the same is canvassed in this appeal.

2. The judgment of the learned single Judge is questioned on the ground that none of the defendants entered into the box and gave evidence. The mere fact that the testatrix died after four days after the execution of the will, per se, cannot be a reason to conclude that she lost her consciousness and she was mentally imbalanced during the relevant time. The very purpose of execution of the will is to change the line of succession, which has been magnified unduly without considering the cogent evidence given for bringing in such a change in the line of succession. The natural evidence of the parties, who deposed on behalf of the plaintiffs clearly exhibit the intention of the testatrix. Merely because the witnesses were brought from outside the village, it cannot be a reason to eschew or find fault with the evidence of the witnesses. One of the attesting witnesses has been examined and that is enough in law to prove the execution of the will. In support of the contention, several judgment were relied on.

3. The above said contention was countered by the respondent by contending that the witnesses and the scribe are all from other villages. The evidence of P.Ws.1 and 2 are contradictory with each other as to the execution and attestation of the will. There is absolutely no evidence whatsoever to show that on the date of execution of the will, the testatrix was in a sound and disposing state of mind. It is an admitted fact that the testatrix and her husband were living cordially under the same roof. When that being the position, it is highly impossible for an illiterate and rustic village woman to dictate the contents of the Will to bequeath the property in favour of her daughter with sound disposing state of mind. The propounder and her husband have taken an active part in the execution and attestation of the will, which per se exhibited that the will was not written with free will and volition of the testatrix. In support of his contention, the counsel relied on number of judgments.

4. We heard the argument and perused the materials on record.

5. In the case of present nature, the line of judgments of the Apex Court say in one voice tha