The execution of a Will must be proved by satisfactory evidence, and unequal distribution of assets amongst children, by itself, cannot be taken as suspicious circumstances surrounding the execution of the Will.

( 1 ) THIS is defendants appeal. Having lost from both the Courts below the present appeal has been preferred at the instance defendant of original suit No. 69 of 1972 filed for cancellation of a Will dated 9th June, 1970 executed by Shri thakur Singh son of Beni Singh. To appreciate the facts of the case it is necessary to give a small pedigree as follows: @@@ beni Singh / thakur Singh ___________/ / Rajni (wife) Chandrawati (wife) / (Def. 2-Appellant) / / / Jangi Singh (Def. 1-Appellant) lal Singh (deceased) / = Tikam Kaur (P. 2) Raghuveer Singh /_________________ (P. 1)_______ / / kanchan Singh Ratan Singh (P. 3) @@@ (P. 4)

( 2 ) FROM the above pedigree it is clear that Thakur Singh the father of the present appellant No. 1 had two wives one Smt. Rajni and second Smt. Chandrawati. Two sons Lal singh and Raghubeer Singh were born from the wedlock of Thakur Singh with Rajni. Lal singh predeceased son of Thakur Singh had left his widow Tikam Kaur and two sons kanchan Singh and Ratan Singh. The sons and grandsons from the first wife of Thakur singh are the plaintiffs and they filed suit for cancellation of Will dated 9-6-1917 executed by Thakur Singh. The said suit is against the stepbrother Jangi Singh and stepmother Smt. Chandrawati. The Will in question is a registered document and suit was filed for its cancellation on the grounds mentioned in para 12 of the plaint. Briefly stating the ground for cancellation of the Willare that Shri Thakur Singh was aged about 85 years at the time of the execution of the will and was residing with the defendants. Thakur Singh was lying ill for the last two years and he was not in a fit mental condition to understand the things properly at the time of the execution of the Will. The plaintiff No. 1 was residing at Etah and the defendant No. 1 was in a position to dominate Shri Thakur Singh. By the said Will certain properties which did not belong to thakur Singh were also bequeathed this shows that Will was not an intelligent act of thakur Singh. The suit was filed for its 169 cellation.

( 3 ) THE defendants contested the suit on the allegation that Thakur Singh was hale and hearty and was capable to understand things, at the time of execution of the Will he was aged about 80 years and executed it after full understanding the implications of the Will. It was further pleaded that the house in village Abhaypura which was given to the plaintiff Nos. 3 and 4 through the disputed Will was constructed by Thakur Singh and the plaintiff No. 1 had gone in adoption to Gajadhar Singh.

( 4 ) THE trial Court framed the following five issues:"1. Whether Will dated 9-6-1970 executed by Thakur Singh in favour of defendants is illegal and void as alleged in para 12 of the plaint? 2. Whether plaintiff No. 1 is son of Thakur singh and has right to sue? 3. Whether suit is undervalued and court-fee paid is insufficient? 4. Whether Gajadhar Singh has adopted plaintiff No. 1 alleged? 5. Relief?"

( 5 ) IT came to the conclusion that the defendants have failed to establish that the plain tiff No. 1 Raghuveer Singh was adopted by Gajadhar Singh. On issue No. 1 the trial court has held that the Will has been provided by attesting witness Bhikam Singh dw/2. It has further recorded finding that thakur Singh was in fit mental condition at the time of the execution of the Will and the plaintiffs allegation that he was ailing for the last two years is incorrect. However, the suit was decreed on the ground that the defendants have not been able to explain the suspicious circumstances surrounding the execution of the Will. This judgment of the trial Court has been confirmed in civil appeal No. 212 of 1977. Both these judgments are under challenge in this appeal. At the time of the admission of the appeal the following to substantial questions of law were framed: (1) "whether the suit for cancellation of will is maintainable? and (2) Whether the findings of the two Courts below are vitiated by error of law?"

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