BISHWANATH SINGH Vs. UMA NATH SINGH

JUDGEMENT

(1.) This is a second appeal by the defendant. The plaintiff-respondent is his younger brother. The parties have been litigating over an item of property which admittedly in a partition went to another brother of theirs, Dharam Nath Singh. The plaintiff-respondent claimed half share in the above property. The defendant appellant contended that the deceased Dharam Nath Singh had executed a Will, Ex. A-3, on the 23rd Sept., 1969 and bequeathed all his properties including the property in dispute in his favour. The execution of any will by the deceased was denied by the plaintiff-respondent. The defendant examined one of the attesting witnesses, the scribe and himself to prove the due execution of the Will. The plaintiff also examined himself and relied on an application, Ex. 1, made to the Nagar Mahapalika, Varanasi, by the deceased brother, wherein he indicated that there was enmity between him and the defendant.

(2.) The trial court on an appreciation of the evidence on record came to the conclusion that the execution of the will was duly proved and the suspicious circumstances had been explained away. Consequently, the plea of the defendant regarding the execution of the Will in respect of the suit property was believed and the plaintiff's suit was dismissed.

(3.) On appeal the Court held that the due execution of the Will was not proved and the suspicious circumstances had not been explained away. Consequently, the lower appellate court set aside the decree of the trial court and decreed the suit of the plaintiff. Aggrieved, the defendant has come up in second appeal in this Court.