The burden of proof for the validity of a Will lies with the propounder, who must dispel any doubts regarding its execution, especially in the presence of suspicious circumstances.

JUDGMENT :

Rajnish Kumar, J.

1. Heard, Sri Jai Prakash Yadav,learned counsel for the plaintiff-appellants and Sri Vyas Narayan Shukla, learned counsel for the defendant-respondents.

2. The instant second appeal under Section 100 of the Civil Procedure Code 1908 (hereinafter referred as CPC) has been filed against the judgment and decree dated 05.10.2023 passed in Civil Appeal No.38/2009 (Shyam Bihari and Others versus Sharda Prasad (deceased) substituted by his legal heirs Ambika Prasad and Others) by the Additional District Judge/F.T.C.-I^st,Sultanpur, whereby the lower appellate court allowed the defendant-respondents first appeal. Consequently, the judgment and decree dated 26.05.2009 passed in suit for cancellation of Will i.e. Regular Suit No.225/2004(Sharda Prasad and others versus Balkrishna and others) filed by the plaintiff-appellants has been set aside and the suit has been dismissed.

3. Learned counsel for the appellant submitted that the property in dispute belongs to Late Ram Chandra Pandey, who was father of the parties. He was survived by his five sons. The dispute arose in view of an alleged registered Will Deed said to have been executed by Late Ram Chandra Pandey on 02.11.1998 whereby it excluded the plaintiff Shitla Prasad i.e. predecessor-in-interest of plaintiff-appellants and the property was bequeathed to the remaining four sons, out of which three sons have been given 1/5th share each, whereas the youngest son 2/5th share,. Being aggrieved the plaintiff-appellants instituted a suit bearing Regular Suit No.225 of 2004, which after contest came to be decreed on 26.05.2009.

4. It is further submitted that the trial court, after dealing with the evidence available on record, clearly returned a finding that the attesting witness of the Will, namely, Ram Sagar Mishra could not prove the due attestation and execution of the Will coupled with the fact that the age of the testator at that point of time was 84 years and was suffering from various ailment. It is also submitted that the sole ground for excluding the plaintiff-appellants as stated in the Will, was that the plaintiff-appellants had their own house in the village of his in-laws and he never resided with the father and the other brothers. Upon evidence, this fact came to be disproved and it was found that the plaintiff-appellants never had any property or in the village of his in-laws. Thus it has been submitted that taking an over all view, the trial court decreed the suit, which has been upset by the lower appellate court without meeting with the reasons recorded by the trial court while dealing with the evidence of the attesting witness and thus without proving the Will in accordance with law, the lower appellate court has committed an error in allowing the defendant-respondents appeal and dismissing the suit, therefore, the impugned judgment and decree passed by the first appellate court is liable to be set aside and this appeal is liable to be allowed.

5. Shri Vyas Narayan Shukla, learned counsel for the defendant- respondents submitted that the learned trial court, without considering the pleadings, evidence and material on record appropriately, had decreed the suit but the first appellate court apart from the evidence of the attesting witness has taken note of evidence led on behalf of defendant-respondents which included the mutual and common family relatives, who all deposed against the plaintiff-appellants and in view thereof the first appellate court has passed the impugned judgment and decree in accordance with law after considering the pleadings, evidence and material on record, which does not suffer from any illegality or error, which may call for any interference by this Court. This appeal has been filed on misconceived and baseless grounds. The substantial questions of law formulated in this appeal does not arise in this appeal. This appeal is liable to be dismissed.

6. The following substantial questions of law have been formulated in this app