The propounder of a Will must dispel any raised suspicions and prove its validity, or it may be declared invalid.

JUDGMENT :

Amarinder Singh Grewal, J.

The defendant is the appellant before this Court challenging the impugned judgment and decree dated 30.03.1989 whereby the appeal preferred by the plaintiff-Lado against the judgment and decree passed by the learned trial Court dated 29.10.1988 dismissing her suit, was allowed and the suit was decreed by the learned 1st Appellate Court while declaring the adoption deed dated 08.03.1985 Ex.D1 and Will dated 08.03.1985 Ex.D2 as illegal, void and not binding upon her.

2. For the sake of convenience, the parties shall be referred to in terms of their status before the learned trial Court.

3. In brief, the facts are that husband of the plaintiff namely Ram Pat son of Ram Nath was owner in possession of the properties as detailed in para No.1 of the plaint. He died issueless on 01.04.1985. Before his death, he remained ill for about four months and was not having sound disposing mind during the aforesaid period. The defendant on the basis of false and fictitious adoption deed Ex.D1 and Will Ex.D2 alleged to have been executed by husband of the plaintiff succeeded in getting the mutation bearing Nos.4094, 495 and 1073 with respect to some of the land in his name and thus, suit was filed to declare the adoption deed and the Will as null and void and so the mutations entered in the name of the defendant in pursuance to aforesaid adoption deed and the Will.

4. Upon notice of the suit, defendant filed the written statement stating therein that Ram Pat, husband of the plaintiff, was healthy and was in a sound disposing mind at the time of execution of the adoption deed as well as the Will. He claimed himself to be adopted son of Ram Pat and thus, the adoption deed and the Will being valid documents, mutations entered in the name of defendant on the basis of aforesaid documents, are legal and binding.

5. On the basis of rival pleadings, the learned trial Court framed as many as nine issues including the issue of relief and on the said issues, both parties led their respective evidence.

6. Upon appreciation of the pleadings, oral and documentary evidence, the learned Trial Court vide judgment and decree dated 29.10.1988 though declared the adoption deed Ex.D1 as illegal and not binding upon the plaintiff but upheld the Will, thus, her suit qua declaration of the Will Ex.D2 as illegal and void was dismissed. The appeal preferred by the plaintiff against the aforesaid judgment and decree passed by the learned trial Court was allowed by the learned 1st Appellate Court vide judgment and decree dated 30.03.1989 declaring the Will Ex.D2 as null and void as well as the mutations entered in favour of the defendant on the basis of aforesaid document. Aggrieved by the aforesaid judgment and decree of the learned 1st Appellate Court, the defendant is before this Court by way of instant regular second appeal.

7. Mr. Amit Jain, Senior Advocate assisted by Mr. Aryaman Thakur, Advocate submitted that execution of adoption deed as well as the Will on the same day cannot infer that the Will was fictitious. The adoption deed was held invalid as there were procedural defects but that does not mean that Ram Pat had not any intention to execute the adoption deed and the Will in favour of the defendant. Ram Pat equally took care of his wife while granting half share of the property to her and it is not that he excluded her totally. Had there been an ulterior motive behind the execution of the Will Ex.D2, the defendant ought to have grabbed the whole property and not just the half share. The defendant served the testator during his life time and therefore, out of love and affection, he executed the Will in his favour. It was further submitted that the learned 1st Appellate Court has gravely erred in discarding the Will dated 08.03.1985 Ex.D2 as not genuine, which is a registered document and has been duly proved in terms of Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as the Act of 1925) and Section 68 of th