The duty to remove all suspicions regarding the Will and the requirement to prove that the illiterate testator understood the contents of the Will and agreed to its execution.

A.K. Shrivastava, J.

1. This second appeal has been filed by the plaintiff against the judgment and decree dated 14-8-2001 passed in Civil Suit No. 46-A/1991 by the trial Court dismissing his suit for declaration and injunction which has been affirmed by the learned first appellate Court by dismissing his appeal No. 34-A/2001 by the impugned judgment and decree dated 10-12-2003.

2. In brief the case of plaintiff is that he is son of one Karuji who was having ancestral property as well as self-acquired property. According to the plaintiff, ancestral property is in village Bamhni and where the self-acquired property is situated in Pandhurna. The property of Pandhurna is in dispute. The description of the disputed property has also been mentioned in the plaint. According to the plaintiff, Karuji bequeathed the suit property in favour of plaintiff by executing a will on 3-2-1984. Later on he died on 24-11-1985. The defendants are trying to interfere in the possession of the suit property which has been bequeathed by his father in his favour. It has further been pleaded by the plaintiff that defendants by joining their hands against the plaintiff got the suit property mutated in their names and this fact came into his knowledge when the defendants submitted application for partition before the Tahsil Court where on 5-2-1990 the plaintiff objected. Hence the present suit has been filed.

3. Defendant No. 1-Natthu denied the plaint averments by filing separate written statement while defendants 3 and 4 namely Smt. Dhonda Bai and Mst. Chandrakala Bai who are daughters of Karuji filed their separate written statement and denied the plaint averments as well as execution of Will.

4. Learned trial Court framed necessary issues and recorded the evidence of the parties and thereafter found that the plaintiff has failed to remove the suspicion in respect of the execution of the Will. Learned trial Court further came to hold that the suit property is the joint Hindu Family property and was not self-acquired property of Karuji and, therefore, he was not having any right to execute the Will, eventually, dismissed the suit.

5. The first appeal which was filed by the plaintiff has also been dismissed by the impugned judgment and decree. In this manner the second appeal has been filed by the plaintiff.

6. On 18-3-2005 this Court admitted this appeal on the following substantial question of law :

Whether the impugned judgment can be sustained in view of the finding regarding the execution of the Will by the testator having been surrounded by suspicious circumstances rendered by both the Courts below which has resulted due to misreading of the evidence on the record.

Regarding substantial question of law:

7. The contention of learned counsel for the appellant is that the main emphasis which has been put forth by learned two Courts below in dismissing the suit is Ex.D/1 which is a photocopy of the affidavit of the attesting witness to the Will Mohan (PW-2) filed in the Revenue Court, Pandhurna wherein he had stated that he did not put his signature on the Will of Karuji and further stating in it that plaintiff called him at his (plaintiffs) house under the pretext that he (Mohan) had to sign on the partition deed. The document was also not read over to him. Learned counsel submits that this document (Ex.D/1) is a photocopy and is inadmissible in evidence and, therefore, learned two Courts below erred in substantial error of law in placing reliance on this document and holding the Will to be suspicious. Hence, it has been contended by learned counsel that on account of taking account on the inadmissible evidence, the learned two Courts below have come to the conclusion that the Will is suspicious and, therefore, the said finding is having no sanctity in the eye of law.

8. On the other hand, Shri Sirpurkar, learned counsel for the defendants, argued in support of the impugned judgment and submitted that learned two Courts below have arrived at a finding t