1. This is an appeal from a decision of the District Judge of Ujjain rejecting a petition filed by the appellants for the probate of the last will and testament of one Dhondu Balaji Joshi who died at Ujjain on 25th February, 1950. The will that is set up is dated 25th February, 1950, and the appellants claim that they are the cousins of the deceased and that Under the will of which they have been appointed executors, property of the value of Rs. 10564-3-0 has been disposed of in their favour.
The respondent, who also says that he is the cousin of the deceased, opposed the petition for the grant of probate on the ground that the will propounded was invalid for lack of testamentary capacity on the part of the testator and that the petitioners had obtained the will from the deceased through fraud, and undue influence. The learned District Judge came to the conclusion that the petitioners had failed to satisfy him that the instrument set up by them was the last will of a free and capable testator.
2. Having heard Mr. Chaphekar, learned counsel for the appellants, we have reached the conclusion that this appeal must be dismissed. The settled rule with regard to the onus of proof in the case of wills is as stated by Lindley L. J. in Tyrrell v. Painton, 1894 P 151 (A), thus :
'These rules are two : The first, that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. The second, is, that if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the Court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favour of which it ought not to pronounce unless the suspicion is removed, and it as judicially satisfied that the paper propounded does express the true will of the deceased.'
3. In this case, the circumstances in which the alleged will came to be made are that the testator Dhondu, was ill for several days preceding 25th February, 1950, on which date he died; the will was said to be executed and registered on the night of 25th February, 1950, and Dhondu died within 45 Minutes or so of the registration of the will; at the time of the execution and registration of the will Dhondu was so very ill and feeble that he was not in a position to speak anything or even understand anything.
The deceased was a Patwari and could read and write. But ho did not sign the will; his thumb-impression was, however, affixed on the will. These circumstances are amply proved by the evidence of the appellants' own witnesses. Mr. Rasiklal, Pleader, stated that Dhondu suggested to him to prepare a will by a sign of his hand and that at that time his mental condition was such that he was not able to give any instructions with regard to the details of the will, and that he was not even able to speak.
Vamanrao, a witness of the appellants, who prepared the draft of the will gave the evidence that he took the draft to Dhondu two days before his death and suggested to him that he should make a will according to the draft but that the testator did not say anything. Vamanrao further added that at the time the will was registered Dhondu was not in a condition to understand any writing. He stated :
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