The propounder of a will has the onus of proving that the will was executed by the testator voluntarily with his free will and mind and that the testator had testamentary capacity.

Judgement

JUDGMENT :- The respondent filed an application under Sections 266 and 276 of the Indian Succession Act, 1925 for grant of probate of the registered will dated 2-8-1968 of one Kinu Bal who died on 17-11-1968. This was registered as O. S. No. 1 of 1971 in the court of the District Judge, Cuttack. By decision dated 11-5-1972 the District Judge directed issuance of letters of administration with a copy of the will annexed in favour of the applicant Niranjan Bal on his furnishing security to the extent of Rs. 15,000/-. The appellants who had appeared in response to citations issued by the District Judge claiming an interest in the estate of the deceased being aggrieved with the aforesaid decision have filed the present appeal.

2. The appellant No. 1 lodged caveat against the grant of probate of the will with the District Judge. In his written statement the appellant No. 1 challenged the genuineness of the will and the testamental capacity of the testator on various grounds set out in paras 3, 4, 5 and 6 thereof. In para 3 the will was alleged to be a forged document and the averments therein were said to be false, fabricated and outcome of fraud on the testator. In paras 4, 5 and 6 the allegations were that the testator due to long illness had become completely imbecile, had lost his power of understanding and never understood the contents of the alleged will, and, therefore, had not the testamental capacity. Further it has been said that the will has not been validly attested according to law.

3. The sole question for determination in this appeal is whether the will is genuine or not and whether the testator had testamental capacity in executing the same.

4. Appellant No. 1 filed Title Suit No. 4/29 of 1966/63 on 18-3-1963 for partition of joint family properties against the testator claiming to be his adopted son. Three days later, on 21-3-1963, the testator also filed Title Suit No. 5/44 of 1966/63 for a declaration that the appellant No. 1 was not his adopted son. These two suits were disposed of by judgment dated 14-3-1967 in which it was found that the appellant had in fact been adopted by the testator, but the adoption was invalid in law being in contravention of the provisions of Section 9 (2) of the Hindu Adoptions and Maintenance Act. In those suits two other questions were agitated, viz., whether the testator had made an earlier adoption of one Prahallad and on the latter s death, adopted the appellant for the second time and whether Buli Bewa was the married wife of the said Prahallad and, as such, the daughter-in-law of the testator. The finding was that Prahallad had not been adopted by the testator but Buli was his wife. Two First appeals were carried to this court from the decision in those two suits which were numbered as 153 of 1967 and 125 of 1970. These two first appeals have been disposed of today in which it has been held that the appellant is the adopted son of the testator, that Prahallad had been earlier adopted, and that Buli Bewa is his widow. It may also be noted here that the propounder of the will has admitted in his application for grant of probate that Buli Bewa is the daughter-in-law of the testator.

5. The propounder s case, as appears from the evidence led by him, is that the testator was quite hale and hearty when he executed and registered the will on 2-8-1968. In fact, he went from his village to Chandol a distance of two miles on foot and therefrom to Kendrapara by bus and from bus stand he went to the Sub-Registrar s office, half a mile away, by walking and executed the will. The will was scribed by P. W. 1 on instruction of the testator. The contents of the will were then read over and explained to the testator who thereafter signed the same. The tesator was not suffering from any kind of illness as suggested by the caveators.

6. The relevant recitals in the will are: His adopted son Prahallad having died issueless in 1958 leaving behind his widow Buli Bewa, the testator lived in great