Appeal No 1360 of 1975
From the Judgment and Order dated 12 3 1975 of the Punjab  Haryana High Court in Regular First Appeal No 31564
VM Tarkunde EC Agrawala and Miss N Tarkunde for the appellant
Bishan Narain and Mrs Urmila Sirur for respondent No 1
Hardev Singh and RS Sodhi for Respondent No 2
The Judgment of the Court was delivered by CHANDRACHUD J
Sardar Gobinder Singh Sibia who was possessed of a large estate died on December 15 1954 at the age of about 70 927 He had taken two wives Gulab Kaur and Dalip Kaur
The story of his life follows the familiar pattern the pretext of a disagreement with the unwanted wife special favours for the favourite and jealous rivalries between the children born of the two
The following pedigree will facilitate a better under standing of the issues involved in me case  Tara Singh Sibia  Ratan Singh   Gulab Kaur Gobinder Singh Dalip Kaur Plaintiff Died 15 12 1954 pre deceased her husband Died 1959      Jaswant Kaur     Appellant Guraprakash Kaur Gurbachan Sin gh pre deceased his fat her Joginder Kaur Died 1971    Arrit Kaur  Surjit Inder Singh Palvinder Kaur Respondent1 Defendant Respondent 5 Died 1968    Gobinder Singh Surinder Singh Gopal Inder Singh Respondent 2 Respondent 3 Respondent 4 After the birth of the appellant Jaswant Kaur Gulab Kaur started living or as the story goes was compelled to live with her parents
Dalip Kaur had given birth to a daughter Guraprakash Kaur and a son Gurbachana Singh
Gurbachan died during the life time of his father Gobinder Singh leaving behind his widow Joginder Kaur who died in 1971
Gurbachan Singh and Joginder Kaur gave birth to two children a son Surjit Inder Singh and a daughter Palvinder Kaur
Surjit Inder Singh died in 1968 leaving behind a widow Amrit Kaur and three sons
On May 22 1956 which was about a year and a half after the death of Sardar Gobinder Singh his widow Gulab Kaur filed a suit in forma pauperis claiming maintenance  Rs 1000 per month or in the alternative a one half share in the properties left by her husband
Her co wife s grandson Surjit Inder Singh was the defendant to the suit
He filed his written statement on January 5 1957 contending that the plaintiff had deserted her husband and that she was neither entitled to maintenance nor to any share in his estate
On these pleadings the trial court struck issues in the suit on February 1 1957
At the end of her evidence on August 17 1957 the plaintiff gave up her claim for maintenance and stated that she wanted a one half share in her husband s estate
The hearing of the suit was adjourned by the learned trial Judge to August 24 for recording defendant s evi dence
928 In the meanwhile on
August 20 the defendant filed an application asking for permission to produce a will stated to have been made by Sardar Gobinder Singh on November 26 1945
The learned District Judge Sangrur who was then seized of the suit rejected that application and refused to allow the defendant to amend his written statement
That order was however set aside in revision by the Punjab
High Court which directed the trial court to allow the defendant to amend Iris written statement and to produce his father s alleged will
On March 8 1958 the defendant amended his written statement contending that by the will his father had left almost the entire property to him and that the plaintiff Gulab Kaur was not entitled to any share in the property under the will
In June 1958 the plaintiff filed a formal application seeking leave to amend her plaint giving up her claim for maintenance and asking for a one half share in the properties of her deceased husband
Fresh issues were thereafter framed on the basis of the amended pleadings
On March 10 1959 the plaintiff died and her daughter Jaswant Kaur who is the appellant before us was brought on the record as her legal representative
The suit was tried eventually by the learned Senior Sub Judge Sangrur who by his judgment dated June 29 1964 decreed it
The learned Judge held that the defendant who set up the will had failed to prove that it was the last will and testament of his grand father Gobinder Singh and alternatively that even on the assumption that the will was proved it must be deemed to have been revoked on account of certain dispositions made by the testator after the making of the will
This alternative conclusion that the will stood revoked by implication is clearly unsupportable and the appellant who disputes the will did not urge that consideration before us
The revocation of an unpriviledged will is an act only a little less solemn than the making of the will itself and has to comply with statutory require ments contained in section 70 of the Succession Act
Holding that the defendant had failed to discharge his onus of proving the will the trial court granted to the plaintiff a decree for a one half share in the properties of her husband
In doing this the Court relied on overwhelm ing documentary evidence showing that according to the custom by which the parties were governed a sonless widow was entitled to a one half share in the estate of her hus band as an equal sharer with the male progeny born of a co wife
That the parties were governed in this matter by customary law was openly conceded in the trial court the point of dispute being restricted on this point to the question as to what in fact was the custom
It was common ground before us that if the will goes the plaintiff will be entitled to a half share in the estate of her husband Gobinder Singh
Aggrieved by the judgment of the trial court the de fendant Surjit Inder Singh filed First Appeal No 315 of 1964 in the High Court of Punjab and Haryana
During the pendency of the appeal the defendant died on October 22 1968 and his widow Amrit Kaur her three sons and his sister Palvinder Kaur were brought on the record as his legal representatives
They are respondents 1 to 5 to this appeal
By its judgment dated March 12 1975 the High Court set aside the judgment 929 the trial court allowed the appeal and dismissed the plaintiff s suit
The High Court has held or appears to have held that the will was duly established
Since the will excludes the plaintiff as a sharer in the testator s estate the suit had to fail custom or no custom
This appeal by special leave is directed against the judgment of the High Court
The defendant who is the principal legatee and for all practical purposes the sole legatee under the will is also the propounder of the will
It is he who set up the will in answer to the plaintiff s claim in the suit for a one half share in her husband s estate
Leaving aside the rules as to the burden of proof which are peculiar to the proof of testamentary instruments the normal rule which governs any legal proceeding is that the burden of proving a fact in issue lies on him who asserts it not on him who denies it
In other words the burden lies on the party which would fail in the suit if no evidence were led on the fact alleged by him
Accordingly the defendant ought to have led satis factory evidence to prove the due execution of the will by his grand father Sardar Gobinder Singh
In cases where the execution of a will is shouded in suspicion its proof ceases to be a simple lis between the plaintiff and the defendant
What generally is an adver sary proceeding becomes in such cases a matter of the court s conscience and then the true question which arises for consideration is whether the evidence led by the pro pounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator
It is impossible to reach such satisfication unless the party which sets up the will offers a cogent and convinc ing explanation of the suspicious circumstances surrounding the making of the will
There is a long line of decisions bearing on the nature and standard of evidence required to prove a will
Those decisions have been reviewed in an elaborate judgment of this Court in R Venkatachala Iyengar vs
BN Thirnmajamma  Others
1 The Court speaking through Gajendragadkar J laid down in that case the following positions  1
Stated generally a will has to be proved like any other document the test to be applied being the usual test of the satisfaction of the prudent mind in such matters
As in the ease of proof of other documents so in the case of proof of wills one cannot insist on proof with mathematical certainty
Since section 63 of the Succession Act requires a will to be attested it cannot be used as evidence until as required by section 63 of the Evidence Act one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive and subject to the process of the court and capable of giving evidence
Unlike other documents the will speaks from the death o the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed
1 1959 Supp
I SCR 426
930 This aspect introduces an element of solemnity in the deci sion of the question whether the document propounded is proved to be the last will and testament of the testator
Normally the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will
Cases in which the execution of the will is surround ed by suspicious circumstances stand on a different footing
A shaky signature a feeble mind an unfair and unjust disposition of property the propounder himself taking a leading part in the making of the will under which he re ceives a substantial benefit and such other circumstances raise suspicion about the execution of the will
That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made or that those like the wife and children of the testator who would normally receive their due share in his estate were disin herited because the testator might have had his own reasons for excluding them
The presence of suspicious circumstances makes the initial onus heavier and therefore in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator
It is in connection with wills the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved
That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator
If a caveator alleges fraud undue influence coer cion etc
in regard to the execution of the will such pleas have to be proved by him but even in the absence of such pleas the very circumstances surrounding the execu tion  of the will may raise a doubt as to whether the testa tor was acting of his own free will
And then it is a part of the initial onus of the propounder to remove all reasona ble doubts in the matter
We will now set out briefly the provisions of the will which is dated November 261945
The will consists of 9 paragraphs by the first of which the testator appointed Sardar Kesho Ram a Judge of the High Court of Patiala and Sardar Bahadur Ranjit Singh a contractor of Delhi as execu tors
By paragraph 2 the testator bequeathed the whole of his property movable and immovable to his grandson Surjit Inder Singh who is the defendant in the present suit
By paragraph 3 the testator gave to his wife Dalip Kaur a life interest in a house at Simla called Kenilworth
The testator provided by paragraph 4 that if the house was later acquired by the Government or was sold by himself Dalip Kaur would be entitled to receive from his estate a sum equal to the compensation fixed in the acquisition proceedings or equal 931 to the sale price
The amount was to be deposited in ap proved securities Dalip Kaur being entitled only to the interest thereon
On her demise the house or the amount in deposit was to vest absolutely in the defendant
Para graph 5gave to Dalip Kaur the right of residence in a part of the house
at Sangrur paragraph 6 gave to her the right to use during her life time the jewellery and orna ments and paragraph 7 states expressly that she will have no right to alienate any of the properties in which she was given a life interest
Paragraph 8 provides that Dalip Kaur had the right to live jointly with the defendant but in case there were differences between them she would be entitled to receive from him an annual sum
of Rs 5000 for her maintenance
This amount was to constitute a charge on a land at Karmsar District Lyallpur
Paragraph 9 of the will recites that the plaintiff Gulab Kaur had given birth to a daughter Jaswant Kaur in 1898 that Jaswant Kaur was married happily in 1913 to Sardar Gurbax Singh Mansahia that after Jaswant Kaur s marriage Gulab Kaur started misbehaving and left for her parents  house taking jewellery worth about Rs 50000 with her
It is further stated in paragraph 9 that Gulab Kaur was leading her life in a way which would not bear mention here and that therefore she did not de serve to get any allowance at all from the testator s property
The defendant was however directed to pay to her a monthly sum of Rs 50 for her maintenance provided that she lived in a part of the house at Sangrur and her conduct remained worthy of the Sibia family
Paragraph 9 expressly mentions that Gulab Kaur would have no right to any share in the testator s property
The testator Sardar Gobinder Singh was a man of property and occupied a high position in society
By a modest estimate the property which he disposed of by his will was of the value of rupees ten to fifteen lakhs
A registered power of attorney EX D2 which he had executed seven months before the will on April 6
1945 shows that he owned extensive movable and immovable properties had a bank account in several banks and that various legal pro ceedings to which he was a party were pending in all the States of British India
Gobinder Singh describes himself in the power of attorney as a big biswedar and says that he had a large business to attend to
The evi dence of Kartar Singh Gurcharan Singh and Teja Singh PWs 4 5 and 6 shows that Sardar Gobinder Singh owned over 15000 bighas of land several houses and several cars in cluding a Rolls Royce
sardar Ratan Singh the father of Gobinder Singh was the President of the Council of Regency in the erstwhile State of Jind while Gobinder Singh himself held distinguished and responsible posts in Jind such as the Nazim the Private Secretary to the Mahara ja and a Minister in his government
It is the will of a man of such affluence and social status which has to be judged in this case
It is not as if the burden of proof varies with the riches and social pres tige of the testator but habits of life arc prone to vary with the means of the man and the privileged few who happen to occupy a high place in the social hierarchy have easy access to competent legal advice
Normally therefore a genuine will of a propertied man
well positioned in society too
does not suffer from 932 the loopholes and infirmities which may understandably beset an humbler testamentary instrument
Circumstances are too numerous to mention which throw a cloud of suspicion on the making of the will by Gobinder Singh
The will is alleged to have been made on November 26 1945 but it did not see the light of day till August 20 1957
Being an ambulatory document it may be granted that there may be no occasion for anyone to know of its existence until the death of the testator on December 15 1954
But it is ununderstandable that a document by which property worth lakhs of rupees was disposed of should have remained a closely guarded secret from the whole world of intimate friends and relatives nay from the sole legatee himself for over 212 years after the testator s death
The testa tor had left behind him a large property and along with it a large amount of litigation which makes it impossible to believe that upon his death in December 1954 no one both ered to go through his papers which would reflect the state and extent of his property
The explanation of the defend ant that he hit upon the will by chance while going through some papers of his grand father is therefore patently lame and unacceptable
There is an ominous significance in the date on which the defendant applied for production of the will in the present suit
By her suit which was filed on May 22 1956 the plaintiff Gulab Kaur had originally asked for mainte nance  and in the alternative for a one half share in the estate of her husband
Under the Punjab customary law by which the parties were governed the plaintiff being a sonless widow
was entitled to an equal share in the proper ty of her husband
along with the male progeny born from a co wife
But the customary law gave to the sonless widow only a limited and not an absolute interest in the estate of her husband
The  30 of 1956came into force on June 17 1956 which explains why the plaintiff at the end of her evidence on August 17 1957 expressly gave up her claim for maintenance and restricted her demand in the suit to a one half share in her husband s estate
So long as the plaintiff was entitled only to maintenance or to a limited interest in her husband s property the defend ant was content to meet that claim by raising pleas like desertion and misconduct The passing of the Hindu Succes sion Act changed the entire complexion of the suit raising at least a reasonable apprehension  that on account of the provisions of that Act the plaintiff would become an abso lute owner of a part of her husband s estate
By section 8 of the Act the widow becomes an heir to the husband s estate on intestate succession along with other heirs mentioned in Class I of the Schedule
And by section 141 any property possessed by a female Hindu whether acquired before or after the Act becomes her absolute property subject to the provisions of sub section 2 which would have no application in the instant case
By reason of section 14 the provisions of the Act have generally an overriding effect on custom and usage
On August 17 1957 the plaintiff s evidence was over and the suit was ad journed to August 24 for defendant s evidence
In the meanwhile on August 20 the defendant filed an application stating 933 that he had accidentally discovered a will made by the plaintiffs husband Gobinder Singh and asking for permission to produce that will
The defendant has not stated why he suddenly thought of examining his grand father s papers in between the conclusion of the plaintiff s evidence on the 17th and the 20th of August
His case is one of a purely providential discovery and neither in the application for production of the will nor in his evidence did he give the haziest details of the discovery
We are surprised that the High Court should have so readily accepted the story that the defendant stumbled across the will
The will has been typed out on both sides of a single foolscap paper and is obviously drafted by a lawyer
No evidence at all has been led as to who drafted the will and who typed it out
The will uses some trite legal jargon but it does not show where it was executed and contains no description whatsoever of any of the extensive properties bequeathed to the defendant
The will has been attested by two persons called Dinshaw HM Framjee and Pali Ram
It is intriguing that a person in the position of Sardar Gobinder Singh should choose these two strangers as attesting witnesses to a very solemn and important document
Dinshaw Framjee was a trader in Simla and Pali Ram was his servant
Framjee has stated in his evidence that he did not remember where Gobinder Singh used to stay in Simla that he did not know for how long he was staying in Simla before the attestation of the will that he was unable to state whether he had met Gobinder Singh after the attestation of the will and that he was unable to give the approximate time of the day when the will was attested forenoon afternoon or evening
Framjee was sure about one thing only that he had not attested the will at night
He attempted to say that he was on friendly terms with the testator s family but he was unable to give even the approximate ages of the testator s son and daughter
Under the stress of cross examination he had to admit eventually that he knew nothing about the testators family or family affairs
Pali Ram the other attesting witness did  not remember the date or the year of the execution of the will but said that it was probably executed in 1945
He did not know the testator and was a total stranger to him
Whereas Framjee stated that the will was attested in his business premises which were on the ground floor Pali Ram says that Framjee sent for him from the business premises to his residence which was on the upper floor
The utter improbability of the testator accosting these two strangers for getting his will attested and the funda mental contradictions in their evidence render it impossible to hold that they attested the will at the instance of the testator as alleged
A man of importance that the testator was he could not ever have left the validity of his will to depend on the unpredictable attitude of unknown elements like Framjee and Pali Ram
Pali Ram claims to have read the will before attesting it
It iS not known why
if he knew that the property 934 was bequeathed to the defendent he did not at least after the testator s death inform the defendant of the existence of the will
By the will the testator appointed Sardar Kesho Ram a Judge of the High Court of Patiala and one Sardar Bahadur Ranjit Singh as executors
Both of these persons were fortunately available for giving evidence but neither of them was examined in the case
Normally executors are not appointed without their consent or at least without a prior consultation with them
Respondent 1 the defendant s widow is the daughter of the executor Ranjit Singh
The marriage was performed during the testator s life time and we find it hard to believe that he would not disclose even to Ranjit Singh that he had made a will appointing him as one of the executors and that Ranjit Singh s son in law that is to say the testator s grandson was the sole legatee under that will
The will is unnatural and unfair in more than one re spect
At the time that the will is alleged to have been made the testator had a daughter Guraprakash Kaur who was born of Dalip Kaur and a daughter in law Joginder Kaur being the widow of the testator s predeceased son Gurbachan Singh who was also born of Dalip Kaur
Gurbachan Singh and Joginder Kaur gave birth to the defendant Surjit Inder Singh and to a daughter Palvinder Kaur
The will contains not even a fleeting reference either to the testator s daughter or the widowed daughter in law or to the grand daughter Palvinder Kaur
It is urged that all of these persons were happily placed in life and it was therefore needless for the testator to provide for them
If that be so it was usually unnecessary to refer to the appellant Jaswant Kaur who also it is common ground has been married happily
The plaintiff Gulab Kaur has been wholly excluded as an heir of the testator for the supposed reason that She had brought disgrace to the Sibia family and that her behaviour was such as would not even bear mention in the will
Not only that no evidence was led to show any misconduct on the part of Gulab Kaur but the evidence of Jaswant Kaur PW2 shows that for about 7 or 8 years prior to 1956 Gulab Kaur had lost her eyesight
One of the issues in the suit namely issue No 2 arising from the original pleadings was whether the plaintiff was disentitled to maintenance for the reason that she had deserted her husband
The judgment of the trial court shows that the defendant led no evidence in support of that issue and that during the course of arguments the defendant s counsel did not press the partic ular issue
The plaintiff on the other hand led evidence in rebuttal and accepting that evidence the trial court rejected the contention that she had deserted her husband
it seems to us difficult to believe that a person in the position of section Gobinder Singh who was possessed of a large estate would disinherit so many of his near rela tives including his wife Gulab Kaur and shower his bounty on the grandson to the exclusion of everyone else
935 Quite a few other circumstances can be mentioned which raise a grave suspicion as regards the making of the will but the circumstances enumerated above are tin our opinion sufficient to discard the will
The defendant in his evidence has offered no explanation of any of these
cir cumstances
He has totally failed to discharge the heavy onus which lay on him of explaining the suspicious circum stance surrounding the execution of the will and of estab lishing that the document which he propounded was the last will and testament of his grand father Gobiner Singh
Learned counsel for  the respondents contends that the defendant did not offer any explanation of these suspi cious circumstances because the will was not challenged in the trial court on the ground that its execution was shroud ed in suspicion
It is impossible to accept this conten tion because even the learned District Judge who had reject ed the defendant s application for production of the will and the consequent amendment of the written statement had observed in his order dated September 13 1957 that it was inconceivable that the defendant did not know about the will and that the possibility of its being forged cannot be excluded
This itself was sufficient notice to the defendant as to the nature of the burden which he had to discharge
Counsel for the defendant also contended that the testator must have kept the will a closely guarded secret because if the will was published Gulab Kaur and her daughter would have created some trouble
This argument in the context of the various facts adverted to above has to be rejected
The testator might have wished to keep the will a secret from Gulab Kaur and her daughter but it is impossible to appreciate that he would frustrate the very object of making the will by suppressing it from the defend ant and from the executors one of whom was highly placed and the other of whom is the defendant s father in law
Frankly though with respect it surprises us that the High Court should have accepted the will as genuine
It observes It is evident from the above evidence that there are no suspicious circumstances about the execution or the contents of the will
 We could have understood if the High Court were to say that the defendant had given a valid explanation of the suspicious circumstances surrounding the execution of the will
But to say that there is nothing in the case to excite the court s suspicion and to accept the will as genuine on that premise is wholly ununderstandable
The High Court does not refer to a single circumstance out of the many that we have discussed and the operative part of the judgment just recites a few facts mechanically as if there could possibly be no answer to the validity of the will
The High Court has not referred in its judgment even in passing to the rule as to the burden of proof which applies to testamentary proceedings
If only it had taken the trouble of looking at the decision of this Court in Iyengar s case which is copiously extracted in the judg ment of the Trial Court it would have realized what its true duty was in the case
936 For these reasons we allow the appeal set aside the judgment of the High Court and restore that of the trial court
The appellant will be entitled to recover from the respondents the costs of this Court and of the High Court
PHP Appeal allowed


Summary:
section Gobinder Singh Sibia was possessed of a large estate valued at about Rs15 lacs at the time of his death in the year 1954
He had two wives Gulab Kaur and Dalip Kaur
Dalip Kaur predeceased him leaving a son and a grandson named Surjit
After the death of section Gobinder Singh Gulab Kaur filed a suit for maintenance claiming alternatively a one half share in the estate left by her husband
Surjit contested the said suit
After the institu tion of the suit the  came into force on June 17 1956 upon the plaintiff giving up her claim for maintenance and restricting her suit to a half share in her husband s estate the defendant made an appli cation for amending his written statement and pleaded that section Gobinder Singh had executed a will in the year 1945 bequeathing practically the entire estate in his favour and leaving a small life interest in favour of the plaintiff
The amendment application was flied in March 1958 after the plaintiff s evidence was over
The Trial Court decreed the plaintiffs suit and held that the plaintiff was enti tled to a half share in the estate left by Gobinder Singh and that the defendant had failed to prove the will
In an appeal flied by the defendant the High Court set aside the Judgment of the Trial Court and dismissed the plaintiff s suit
The High Court held that will was duly established
Allowing the appeal Held a In cases where the executionof a will is shrouded in
suspicion its proof ceases to be a simple lis between the plain tiff and the defendant
What generally is an adversary proceeding becomes in such cases a matter of the court s conscience
The presence of suspicious circumstances makes the initial onus heavier and therefore in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court the propounder must remove all legitimate suspicions before the document can he accepted as the last will of the testator
929 C F 930 C D b A will has to be proved like any other document by applying the usual test of the satisfaction of the prudent mind
929 F c Since section 63 of the Succession Act requires a will to be attested it cannot be used as an evidence until at least one of the attesting witnesses is examined if available
929 G d Unlike other documents the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will was executed
That circumstance intro duces a certain amount of solemnity in proof of testamentany instruments
929 H 930 A R Venkatachala lyengar vs
BN Thimrnajamma  Others 1959 Supp 1 SCR 426 followed
The testator was a man of property and occupied a high position in society
A genuine will of such a person is not likely to suffer from the loop holes and infirmities which may beset an humbler testamentany instrument
931 D H932 A 3
The following circumstances throw a cloud of suspi cion on the making of the will by Gobinder Singh 926 i The will is alleged to have been made in 1945 but it did not see the light of the day till 1957
It is unacceptable that a document by which property worth lacs of rupees was disposed of could have remained a closely guarded secret from intimate friends and relatives and from the sole legatee him self for over 212 years after the testator s death
932 A B ii The testator had left behind him a large property and along with it large amount of litigation which makes it impossible to believe that upon his death no one bothered to go through his papers
The explanation of the defendant that he stumbled upon the will by chance while going through some papers of his grandfather is patently lame and unacceptable
932 B D iii The defendant came out with the theory of will after the of 1956 came into force as a result of which the plaintiff would become an absolute owner of the property that would fall to her share as the heir of her husband932 G H 933 A B iv The will was typed Out on both sides of a single foolscappaper and was obviously drafted by a lawyer
No evidence was led as to who drafted the will and who typed it out
933 B C v The will was attested by two persons both of whom were strangers to the testator s family and neither of whom could give a proper account of the execution of the will
In fact they contradicted each other
933 C H vi The two persons who are alleged to have been appointed executors were not exam ined though available
Normally the execu tors are not appointed without their consent or consultation
934 A C vii The will is unnatural and unfair
934 C viii The will does not make mention of many of the near relations and descendants of the testator
934 D F ix The plaintiff was excluded as an heir of the testator for the supposed reasons that she had brought disgrace to the Sibia family and that her behaviour was such as would not even bear a mention in the will
No evidence was led on the misconduct of the plaintiff
934 F G x The defendant in his evidence did not offer any explanation any of the suspicious circumstances
934 G 4
The High Court merely recited a few facts mechanical ly and without going into the suspicious circumstance accepted the will as genuine
The High Court did not apply the rule as to the burden of proof which governs the testa mentary proceedings as set out in the decision of this Court in lyengar s case to which reference was made in the Trial Court s Judgment
838 F H