The court clarified the standards for proving a will, stating that mere suspicion cannot invalidate a duly executed will supported by sufficient evidence.

JUDGMENT:

R.C. Lahoti, J.

The plaintiff, who has lost in a suit for declaration of title and issuance of preventive injunction, in the alternative for recovery of possession, from the courts below as also the High Court, has filed this petition seeking special leave to file appeal.

Leave granted.

The suit property is situated at Shaniwar Peth, Satara in the State of Maharashtra. It bears C.T.S. No.876 and admeasures 218 sq. meters. It is not disputed between the parties that the suit property was initially owned by late Bhagubai who expired on 24th September, 1963. According to the plaintiff, late Bhagubai executed a registered deed of will on 22nd September, 1963 in favour of Chingubai, who is none else than her own sister’s daughter. Having inherited the property under the will of Bhagubai, Chingubai transferred her title and possession to the plaintiff under a registered deed of sale dated 24th September, 1976 for a consideration of Rs.5,000/-. The suit was filed some time in the year 1976 itself alleging that defendant was threatening to dispossess the plaintiff and was claiming title in herself. The defendant, in her written statement, submitted that the property had come to vest in one Babu Kanha Mali who had orally gifted the same to the defendant 35 or 40 years prior to the institution of the suit and therefore the title in the suit property vested in her. A plea of plaintiff’s title having been extinguished and the same having vested in the defendant by adverse possession was also raised in the written statement. The trial court found the will dated 22nd September 1963 not proved, and so the plaintiff having not acquired any title under the sale deed executed by Chingubai in his favour, and therefore, directed the suit to be dismissed.

The plaintiff preferred an appeal. He also sought for an amendment of the plaint so as to seek relief of recovery of possession in alternative to the relief of preventive injunction, in the event of the defendant being found in possession of the suit property. The amendment was allowed. However, on merits the appellate court affirmed the finding of the trial court that the will dated 22nd September 1963 was not proved. This finding has been maintained by the High Court while dismissing the second appeal preferred by the plaintiff. It is pertinent to note that before the High Court, the learned counsel for the defendant did not dispute that the defendant’s title in the suit property was not proved. The learned counsel for the defendant also gave up the plea of acquisition of title by adverse possession by the defendant. It was conceded before the High Court that the title in the suit property undisputedly vested in Bhagubai to begin with and the sale deed dated 24th September, 1976 by Chingubai in favour of the plaintiff was also proved. The only question surviving for consideration was whether the approach of the courts below while recording a finding of non-proof of the will dated 22nd September, 1963 allegedly executed by Bhagubai in favour of Chingubai was vitiated by error of law and in substance that was the substantial question of law on which the second appeal was admitted for hearing by the High Court. The same question arises for consideration before this Court.

Having heard the learned counsel for the parties, we are of the opinion that the findings of the trial court and the first appellate court as also of the High Court are vitiated for adopting an approach not permitted by law and because of overlooking the material and relevant legal considerations.

The High Court has in its judgment summed up the so- called suspicious circumstances centering around the execution of the will, and found by the courts below, as under:-

1. At the time of execution of the will, late Bhagubai was about 80 years of age and there is complete absence of any medical evidence to show sound and disposing state of mind of the executant;

2. The will was executed on 22nd September, 1963 and within two days ther