Partition – Will – Burden of Proof – Suspicious Circumstances – Failure to Prove In a suit for partition, where a party sets up a Will to claim exclusive title over certain properties, the burden lies on the propounder to prove due execution of the Will, testamentary capacity of the testator, and absence of suspicious circumstances. In the present case, the appellant relied upon a Will dated 05.06.2009, but failed to examine all attesting witnesses and failed to dispel suspicious circumstances arising from inconsistent evidence of the attestor regarding execution and condition of the testator. Consequently, the Will was rightly disbelieved by both the Courts below. (Paras 11, 12, 21)

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Partition – Will – Burden of Proof – Suspicious Circumstances – Failure to Prove

In a suit for partition, where a party sets up a Will to claim exclusive title over certain properties, the burden lies on the propounder to prove due execution of the Will, testamentary capacity of the testator, and absence of suspicious circumstances. In the present case, the appellant relied upon a Will dated 05.06.2009, but failed to examine all attesting witnesses and failed to dispel suspicious circumstances arising from inconsistent evidence of the attestor regarding execution and condition of the testator. Consequently, the Will was rightly disbelieved by both the Courts below. (Paras 11, 12, 21)

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Proof of Will – Legal Principles – Onus on Propounder

The settled principle of law is that the burden of proving a Will lies on the propounder, who must establish that the testator executed the Will in a sound and disposing state of mind and out of free will, and must remove all suspicious circumstances by cogent evidence. Mere proof of signature or examination of scribe or attesting witness is not sufficient unless the conscience of the Court is satisfied as to genuineness and validity of the Will. (Paras 14, 15, 16, 20)

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Non-production of Original Will – Adverse Effect

The alleged earlier Will dated 15.12.1960 was disbelieved by the trial Court on the ground that the original Will was not produced. Failure to produce primary evidence of the Will adversely affects the case of the propounder. (Para 13)

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Scribe – Not an Attesting Witness per se

A scribe cannot be treated as an attesting witness unless it is clearly established that he signed the document with the intention of attesting it. Mere presence of the scribe or his signature on the document is not sufficient to prove due attestation. (Para 19)

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Disinheritance – Suspicious Circumstance

Where a Will excludes other heirs of equal degree without any explanation, such exclusion constitutes a suspicious circumstance which must be explained by the propounder. In the present case, no explanation was offered for exclusion of other heirs, thereby strengthening the suspicion surrounding the Will. (Para 21)

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Concurrent Findings – No Interference in Second Appeal

Both the trial Court and the first appellate Court, on appreciation of evidence, disbelieved the Will and decreed the suit for partition. No substantial question of law arises and no ground is made out to interfere with the concurrent findings. (Paras 21, 22)

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Result

Second Appeal dismissed. No order as to costs. Pending interlocutory applications, if any, stand closed. (Para 23)