The onus of proof of the Will is on the propounder. The proof of testamentary capacity and signature of the testator is sufficient to discharge the onus in absence of any suspicious circumstances. Onus to explain suspicious circumstances, if any, is also on the propounder but onus to establish allegations of undue influence, fraud or coercion is on the person making such allegations.

Judgment

Prakash Shrivastava, J.:-

This First Appeal under section 96 of the Civil Procedure Code is at the instance of the plaintiff challenging the judgment dated 23-12-1999 passed by the Court of 3rd Additional District Judge, Ratlam dismissing the C.S. No. 13-A/95 filed by the appellant.

2. The appellant had filed the suit for partition of his share and declaration of title pleading that the original respondent No. 1 Jagannath was his father and respondent No. 2 Shantilal was his brother. Their family was a joint Hindu family having suit properties consisting of a house in Dhaan Mandi Mohalla, Ratlam, a plot at village Rajgarh and agricultural land with Nohra house at village Banakia Kala, Tehsil Kapasan, District - Chittorgarh (Rajasthan). The respondent No. 2 was residing with the respondent No. 1 in house situated at Dhaan Mandi and was doing the business from the income earned from the joint property. Since the appellant was residing out of Ratlam, therefore, the respondent No. 2 was enjoying the property. The respondent No. 1 was suffering from the cancer and taking advantage of the illness of the respondent No. 1, respondent No. 2 got the Will of the suit property executed in his favour from respondent No. 1, whereas the respondent No. 1 was not in a position to execute the Will. Since the suit properties were ancestral property, therefore, respondent No. 1 otherwise had no right to execute the Will in respect of these properties. A further plea was raised that the house of Dhaan Mandi was purchased by the plaintiffs grand-father Kaluram in the name of his grandmother Sringar Bai. The appellant's father Jagannath was adopted son of Kaluram. Since the Dhaan Mandi house was purchased from the income of the joint family property, therefore, it was ancestral property and the appellant had half share in that house. Rajgarh plot was also claimed to be purchased from income from ancestral property. In this background, the appellant had sought declaration of title and claimed share in the suit property.

3. During the pendency of the suit, respondent No. 1 Jagannath had died and Kamla Bai w/o respondent No. 2 was impleaded as respondent No. 3.

4. Respondents No. 2 and 3 by filing the written statement had opposed the suit of the appellant raising the plea that the suit property is not the ancestral property and that respondent No. 1 Jagannath had executed the Will in favour of the respondents No. 2 and 3 in respect of part of suit property without any pressure or influence. The Rajgarh plot was the self acquired property of Jagannath. The respondent No. 2 was taking care of the respondent No. 1. There was no ancestral business or shop from which the suit property was purchased. It was the respondent No. 2 who was doing the independent business. The share of the appellant on the suit property was accordingly denied.

5. The trial Court by the judgment dated 23-12-1999 has found that only the agricultural land at Banakia Kala was the ancestral property and remaining properties were not the ancestral properties. The Will (Ex.D/3) executed by the respondent No. 1 in favour of the respondents No. 2 and 3 has been held to be proved, by which the respondent No. 1 had bequeathed other properties to the respondents No. 2 and 3. The appellant has been found entitled to half share only in respect of the agricultural land and Nohra at Banakia Kala.

6. Learned counsel appearing for the appellant has submitted that the trial Court has committed an error in holding that the house at Dhaan Mandi and Rajgarh plot are not the ancestral properties. He further submits that the trial Court has committed an error in not properly appreciating the evidence and in holding that Jagannath was not the adopted son of Kaluram. He has further submitted that Rajgarh plot was purchased by Jagannath from the income of the ancestral property, therefore, the appellant has share in that property. He has also submitted that the Will Ex.D/3 executed by respondent No. 1 in