Mohan Sarup Singh (Deceased) v. Rajeshwar Sarup

N.K Kapoor, J.:— Plaintiffs feeling dissatisfied with the judgment and decree of the lower appellate Court have filed this regular second appeal.

2. Plaintiff filed a suit for separate possession by partition of the property as detailed in the head note of the plaint. According to the plaintiffs their father Anand Sarup Singh was had two wives, namely Smt. Bhagwanti and Smt. Kamla Devi. From Bhagwanti he was blessed with Rajeshwar Sarup Singh and Smt. Amrit Kaur, son and daughter respectively-defendant 1 and 2. From his wife Kamla Devi he was blessed with the plaintiffs, namely, Mohan Sarup Singh, Bibi Harbans Kaur and Surjit Kaur. Present controversy revolves around as to whether the properties left by the deceased are to be distributed as per his last will or that the parties succeed as per provisions of Hindu Succession Act.

3. It is the case of the plaintiffs that Shri Anand Sarup Singh possessed sufficient movable and immovable property, jewellery etc., which infact he inherited from the grandfather of the plaintiffs and defendants 1 and 2. According to the plaintiffs there was sufficient nucleus left behind by Shri Ram Singh (grandfather of the plaintiffs and the contesting defendants) including the land and the house yielding sufficient income and it is from the ancestral property that Shri Anand Sarup Singh was able to purchase some more agricultural land as well as other immovable property during his life span.

4. Defendants 1 and 2 filed a joint written statement. Various averments made in the plaint have been replied/controverted. According to the answering defendants their father held very senior posts in the executive and performed judicial functions as well. Finally he retired as Deputy Commissioner in the erstwhile Patiala State. Dealing with the various properties as enumerated in the plaint it has been stated that houses described as B and C are ancestral properties of the parties but the property described as D having an open Verandah with two rooms was built by Anand Sarup Singh and so was his self-acquired property and according to the answering respondent, property described as C also known as Ram Kuti was the main residential house of the ancestors of the parties which in fact was duly partitioned during the life-time of Anand Sarup Singh. Since long the plaintiff-Mohan Singh has been living in the eastern portion of the building while the replying defendant No. 1 has been in occupation of the western portion of Ram Kuti and the court yard that separates the two portions of Ram Kuti has been used by Mohan Sarup Singh and replying defendant No. 1 jointly because the main gate of Ram Kuti opens in the courtyard. Defendants specifically denied that the house or the land left by Shri Ram Singh yielded any income. In fact, it is. Shri Anand Sarup Singh who on account of his high offices purchased agricultural land in village Pishore Bhai Ke described as A in the plaint. He also constructed properties described as F and E, from his savings. Replying to the averments made by the plaintiffs in para 8 of the plaint, it has been stated that land measuring about 300 bighas in village Pishore Bhai Ke was transferred by a regular gift deed executed by Anand Sarup Singh in the year 1952–1953. Anand Sarup Singh made three transfers of the said land in favour of replying defendant No. 1 (Rajeshwar Sarup Singh) - 103 bighas and some biswas, Smt. Bhagwanti, mother of the plaintiff - 97 bighas and some biswas and Shri Anand Sarup Singh retained no portion of the said land himself. On the other hand agricultural land measuring 109 bighas 18 biswas purchased by him stood in his name. Since the property was transferred by way of gift some time in the year 1954, the plaintiffs have no right to challenge the same now. However, the defendants stated that deceased made a will on 16.12.1977 in the presence of two attesting witnesses, which was later on presented before the Sub Registrar and was registered by the Sub Registrar on 15.3.1978 So, the right of the parties flow from the last testament of the deceased.

5. On the pleadings of the parties, the Court framed the following issues:—

(1) Whether Bhai Ram Singh died when Shri Anand Sarup Singh was getting education, if so, its effect? OPD.

(2) Whether Bhai Ram Singh owned 109 Bighas 18 Biswas of land in village Pishore Bhaike, Teh. Sunam, and property mentioned at D in the heading of the plaint, if so, its effect? OPP.

(3) Whether property of Bhai Ram Singh yielded any income? OPP

(4) Whether Bhai Ram Singh purchased agricultural land measuring 428 Bighas 18 Biswas in the name of Anand Sarup Singh? OPP

(5) Whether the land at village Pishore Bhaike measuring 109-18 was purchased by Shri Anand Sarup Singh, with the income from inherited property and put into hotch potch of joint family property; if so, its effect? OPP

(6) Whether properties mentioned at ‘E’ and ‘F’ of heading of the plaint were constructed by Anand Sarup Singh, with joint family funds? OPP

(7) Whether the plaintiffs and defendants No. 1 and 2 are Brahmans and formed joint Hindu family and the properties are coparcenary properties? OPP

(8) Whether the properties were partitioned in the life-time of Shri Anand Sarup Singh? If so, its effect? OPD

(9) Whether Anand Sarup Singh executed a valid will on 16.12.1977? If so, its effect? OPD

(10) Whether the property mentioned on G in the heading of the plaint is mortgaged with Shri K.S Puri? If so, for what amount? If so, its effect? OPD.

(11) Whether property mentioned at F is mortgaged with possession for Rs. 9400 in dispute with defendant No. 6, if so, its effect? OPD

(12) Relief.

6. Primarily the contest revolved around issue No. 9, as to whether Anand Sarup Singh executed a valid will on 16.12.1977, if so, its effect? On the basis of evidence adduced by the parties in respect of the pleas raised, the trial Court on evaluating the same formed a view that the will set up by the defendant is liable to be ignored for a number of grounds. Broadly put, the trial Court held that the evidence of the attesting witnesses of the will as well as of the scribe to be not worthy of credence. Similarly, the Court by placing implicit reliance upon the report of the expert formed a view that even the signatures as appended on the will do not tally with the standard signatures of the deceased. Resultantly, the Court decreed the suit as prayed for.

7. The lower appellate Court once again examined the matter in all its details and chose to reverse the findings recorded by the trial Court. In fact the trial Court as well as the lower appellate Court have indeed taken pains to examine the evidence led by the parties very minutely.

8. The learned counsel for the appellants has assailed the judgment and decree or the lower appellate Court on the ground that the same is illegal, unjust, having proceeded on wrong assumption and a case of mis-reading of evidence and mis-construing the record which, thus, calls for interference by this Court. According to the counsel, despite the numerous infirmities highlighted by the trial Court while ignoring the will allegedly executed by Anand Sarup Singh, for no valid reason have been brushed aside. According to the counsel, trial Court while discarding the will set up by the defendant noticed few infirmities:—

(i) That the deceased was admittedly bed-ridden with severe paralysis for over three years before his death;

(ii) That according to the evidence of the doctors examined in this case deceased was mentally weak, had poor memory, heart palpitation and had been talking non-sense as per medical record as proved by Dr. K.N Misra PW-4 and Dr. S.L Jmdal;

(iii) That whereas will was got scribed at Patiala on 16.12.1977 the same, however was got registered on 15.3.1978 at a far off place at Sunam - a distance of about 80 kilometres from Patiala;

(iv) Though, the scribe shri Sham Lal Gupta had known the deceased for a pretty long time but when confronted was unable to give the names of the family members;

(v) Will was attested by persons who are almost their family members;

(vi) Reason for getting the will registered at Sunam i.e the deceased having faith in Shri K.C Vashisht, Advocate of Sunam but surprisingly Shri Vashisht despite having been summoned was not examined by the defendant;

(vii) Brij Lal Verma, a witness of the will also has not been examined by the defendants;

(viii) The Court has noticed that thumb impression is super-imposed;

(ix) Both the brothers, namely, Thaman brothers took a prominent and leading part in hatching a conspiracy with the propounder to do this nefarious task;

(x) Will is a vague and uncertain;

(xi) Distribution of property is wholly illogical. Defendant No. 2, who is settled in United State long back and otherwise was well off has been given share in the property left by the deceased; and

(xii) Despite having come on record that executant had a friend Shri Lajpat Rai Palli, Advocate at Patiala yet for reasons unknown, the deceased went all the way to Sunam (though physically handicapped) and allegedly got the will registered.

9. These and other infirmities as duly noticed by the trial court have not been properly dealt with by the lower Appellate Court. Even the statement of the two doctors has not been properly read. According to the counsel since the will is not to be compulsorily registered, mere registration of the same cannot clothe it with the stamp of authenticity. Thus, despite registration it is for the defendants to remove all such doubts and suspicious circumstances surrounding its execution and attestation before such a document can be made basis to deprive the claim of a person on the basis of Rule of Succession. In support of the above contentions counsel placed reliance upon the following decisions of this Court as well as of the Apex Court;

(i) H. Venkatachala Iyengar v. B.N Thimmajamma, AIR 1959 SC 443;

(ii) Kalyan Singh v. Smt. Chhoti, (1990) 1 SCC 266 : AIR 1990 SC 396;

(iii) Ram Piari v. Bhagwanti, (1990) 3 SCC 364 : AIR 1990 SC 1742;

(iv) Smt. Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC 20 : AIR 1982 SC 133;

(v) Rani Purnima Debi v. Kumar Khagendra Narayan Deb, AIR 1962 SC 567;

(vi) Madan Lal v. Mst. Gopi, (1980) 4 SCC 255 : AIR 1980 SC 1754;

(vii) Smt. Guro v. Atma Singh, JT 1992 (2) SC 125;

(viii) Balkar Singh v. Gurnam Singh, 1982 CLJ (C&Cr) 251;

(ix) Kidar Nath v. Ram Chand deceased represented by LRs., 1971 PLJ 787;

(x) Ramesh Chand v. Mohinder Singh, 1982 LLR 64;

(xi) Dasarathi Chamar v. Balmukunda Das, AIR 1959 Orissa 38;

10. Counsel for the respondent on the other hand argued that the lower Appellate Court after carefully examining the various infirmities though superficially noticed by the trial Court and appropriately dealing with each one of these and also after weighing the evidence led by the parties in the light of the judicial pronouncements of the apex Court has come to the conclusion that the will set up by the defendant was the last will of Anand Sarup Singh, deceased, who executed the same in his full consciousness and without any pressure. This being essentially a finding of fact based on appreciation of evidence cannot be a matter of fresh appraisal by this Court in second appeal. Most of the so-called infirmities as highlighted by the trial Court have in fact no material bearing upon the salient fact i.e will having been executed by the deceased in his full consciousness and without any pressure cannot be ignored on account of some infirmities in the deposition of the witnesses since their evidence has been recorded alter a time gap. It is even not the case of the plaintiffs that will is a forged and fabricated document and infact an imposter was produced before the Registerar at the time of registration of this document. Thus, the Court rightly declined to place reliance upon the handwriting expert as such like witnesses invariably toe the line of the persons who had requisitioned their services especially when the evidence of such like witnesses is examined in the light of un-impeachable deposition of the scribe, the attesting witnesses as well as the witness who identified Shri Anand Sarup Singh before Sub-Register. Respondents placed reliance upon the following decisions:—

(i) Gurdial Singh… v. Rattan Kaur…., (1996-2) 113 PLR 503;

(ii) Rabindra Nath Mukherjee v. Panchanan Banerjee/Dead by LRs., (1995-3) 111 PLR 594;

(iii) Bhagya Watt v. General Public, (1994-2) 107 PLR 649;

(iv) Dayal Singh v. Atma Singh, 1996 (2) SLJ 875; and

(v) Brij Mohan Lal Arora etc. v. Girdhari Lal Manucha, (1978) 3 SCC 135 : AIR 1978 SC 1202,

11. Family disputes unless resolved with the intervention of near relations and friends invariably are contested bitterly in the Court with no holds barred. Such is the present case. Anand Sarup Singh had two wives, namely, Smt. Bhagwanti and Smt. Kamla Devi. From Bhagwanti he was blessed with the plaintiffs and from Kamla Devi defendant No. 1 and 2. Anand Sarup Singh had fairly large agricultural holding as well as owned few immovable properties. Long before his death in the year 1978 he chose to divide the ancestral property amongst plaintiff No. 1, defendant No. 1 and Smt. Bhagwanti, mother of the plaintiffs. Three separate gift deeds were executed in favour of the aforesaid persons some time in the year 1954 and the possession too was transferred to them. Anand Sarup Singh retained with him his self-acquired property in village Pishore Bhaike measuring about 109 bighas and some biswas. Deceased retired as a Deputy Commissioner in the erstwhile State of Patiala. During long span of his service during which he performed the duties of revenue officer as well as that of a magistrate and Sub Judge he was able to purchase the properties from his savings. During the later part of his life he suffered a paralytic attack and so his movements were quite restricted. Both the parties contest as to his mental faculty during the last years of his life especially after the paralytic attack. According to the plaintiffs he became not only infirm but even had lost reasoning faculty and it is during these days that the defendants were able to procure his signatures on some un-written document and so fabricated a will divesting the plaintiffs of their right to succeed in terms of the provisions of Hindu Succession Act. However, according to the defendants the deceased retained his mental faculty to the last and his physical incapacity in no manner affected his faculties of reasoning and understanding. Thus, despite having become physically incapacitated he had the faculties of reasoning and understanding and so the will which was executed by him cannot be ignored as now projected by the plaintiffs.

12. The fact that Anand Sarup Singh suffered a paralytic in fact is not in dispute. There is ample evidence on record that he become incapacitated and so needed a constant helper to carry out the necessary daily chores for his up keep. The deposition of the witnesses and especially of the scribe, the attesting witnesses of the will as the witness identifying the deceased before the Sub-registerar clearly point out that whereas he was somewhat incapacitated in his physical movements, his mental faulty remained intact. Though, it his come on record that he was admitted in a Hospital-Central Research Institute of Ayurveda and was attended to by doctors but no material has been placed on record on the basis of which one can infer that he did not possess a sound mind. It has not come in evidence that the deceased did not possess the faculty to formulate a rational judgment. The lower appellate Court has dilated upon this aspect of the matter and has returned a finding that there is no basis to hold that the deceased had lost the faculty of rationalising or understanding.

13. With the assistance of learned counsel for the appellants, I have gone through the admission slips, exhibits PW-4.A and PW-4.B. It records the brief history of the patient and the ailments from which he had been suffering i.e paralysis, loss of sleep, heart problem, diabetes etc. On 11.10.1976 it has been recorded that the patient unnecessarily talks of his mental weakness and complains of sleeplessness. On 16.10.1976 the patient left the hospital. It is on the basis of the aforesaid symptoms that the plaintiffs have tried to set up a case that the deceased lacked faculty of thinking. It has not come in the deposition of PW-4 that the deceased used to talk incoherently or could not answer the questions/queries put by the doctor. On the contrary if one examines in detail the deposition of the scribe, the attesting witnesses as well as the witness who happened to identify him before the Sub Register leaves no manner of doubt the deceased had mental faculty to comprehend and answer. Otherwise too, it is well known that a paralytic attack affecting some body part does not invariably affect a person's mental faculty. It is not the case of the plaintiffs that one of the sides of the brain too had been affected by this paralytic attack. Thus, I find substance in the view taken by the lower Appellate Court and hold that the deceased possessed the requisite mental faculty at the time of execution of the will as well as at the time when the same was registered.

14. The second serious objection taken by the appellants is that the will having been executed at Patiala; there appears to be no cogent reason for getting the same registered at a place far off at Sunam and especially so when the deceased was incapacitated on account of the paralytic attack. Superficially the argument appears to be attractive; however when tested in the light of the deposition of witnesses of the will and the explanation given by them, the same appears to be more consonant with usual approach of a person who has become old. In the instant case, despite having got the will executed at Patiala, the deceased desired to get the same registered at Sunam as he intended to apprise a trusted Advocate then practising at Sunam about this document. Besides it, the will pertains to the property which was situated at Sunam as well as the agricultural holding. What exactly prompts a person to a particular course is indeed difficult to judge. So many factors come to one's mind while finally taking recourse to one of these. May be the deceased wanted the will to be a closely guarded secret or as noticed above, to apprise his counsel at Sunam or still may be he wanted to visit the place before his final departure from this world. Thus, I also find no substance in this plea of the appellants.

15. It has been next argued that the deposition of the scribe as well as the attesting witnesses of the will is quite discrepant. A number of infirmities were noticed by the trial Court, thus creating a doubt as to the genuineness of the will which for no valid reason have been brushed aside by the lower appellate, Court. Shri Sham Lal Gupta, the scribe of the document has appeared as a witness and deposed that he knew the deceased for a pretty long time and at his instance came to his house and reduced this document into writing as per his direction. He further deposed that Anand Sarup Singh signed as well as put his thumb impression on each page of this document which was signed by Sarvshri Bhim Sen PW-5 and Brij Lal Verma, witnesses to this document in the presence of the testator. According to this witness the deceased was of sound and disposing mind. The trial Court while evaluating the statement of the scribe has somehow chosen to highlight some of the infirmities in his statement like that he knew the executant for a number of years yet was unable to give the names of the family members. Similarly, certain additions in the document exhibit D-1 at point X1 and X2 have not been properly explained by him. Besides it, some portions of the document are left blank and even the ink at some places is in a darker shade. The lower appellate Court found these observations to be quite superficial in the context of the precise question which required its evaluation. On going through the deposition of its witnesses, I find the infirmities highlighted by the trial Court as wholly inconsequential

16. Trial Court appears to have gone a stray while evaluating the statement of the scribe merely for the reason that a person who was otherwise known to the deceased is unable to give names of his other family members. This can hardly be a ground to discard his testimony. It has often been found that despite a person being closely associated in his day to day inter-action he may not be having any knowledge of his family or any such related subjects. Except for few occasions like marriage or bereavement in the family even once colleagues and other associates who often may be meeting him in the officer or else where may not be on visiting terms. One of the attesting witnesses of the will Shri Bhim Sen has appeared as a witness and deposed to the due execution of the will by the deceased and his putting signatures/thumb mark in the presence of the testator. The other attesting witness of the will is Shri Brij Lal Verma. The will was executed in the presence of Sarrvshri Bhim Sen and Brij Lal Verma on 16.12.1977 but the same was registered on 15.3.1978 at Sunam. According to the appellants, the registration of will at a far off place is clear pointer that the same is a fabricated document; else the same would have been registered at Patiala where the same was executed especially when the deceased was physically incapacitated. The decision to get the will registered at Sunam is somewhat queer. Whether this factor alone is sufficient to discard a document needs to be examined a bit closely?

17. As per the deposition of the witnesses examined by the defendants, the deceased desired the will to be registered at Sunam as he intended to apprise an Advocate, in whom he had confidence, was practising at Sunam. This led to the deceased going all the way to Sunam. As noticed earlier too, one cannot un-fathom the mind of a person. In the context of the present case at best one can say the mind of the deceased to be queer. All the same one cannot lose sight of the fact that the presentation of the will before the Sub-registrar and its attestation by Ramesh Chand Thaman DW-4 is proved. Non-examination of Sub Registrar by itself is no ground to discard a document which otherwise has been proved according to law. In fact to meet this objection an application for adducing additional evidence was filed to examine the Sub-registrar also which the lower Appellate Court, however, declined as the same did not clearly fall within the Order 41 Rule 27 CPC. In any case, non-examination of Sub Registrar cannot take away the binding effect of a document if otherwise proved according to law. Thus, even non-examination of Shri K.C Vashisht Advocate, perhaps for whom he went to Sunam, does not cast any doubt upon the document. Each page bears the signatures as well as right thumb impression of the deceased. Expert examined by the plaintiffs has, however, opined that the signatures do not tally with the standard signatures of the deceased. More often than not, a hand-wiring expert toes the line of the party who has summoned. Science of hand-writing is not an exact science. Moreover, over the years also there is a perceptible change in one's hand-writing/signatures and it is precisely for this reason the lower appellate Court after noticing that there was a considerable time period between the standard signatures and the signatures of the executant upon the will and so declined to place reliance upon the hand-writing expert in the light of deposition of Sarvshri Bhim Sen, Ramesh Chand Thaman and Sham Lal Gupta. In replication too, the plaintiffs do not state that the will is a forged and fabricated document and the same does not bear the signatures of Shri Anand Sarup Singh. All that it has been stated is that he was not in a fit condition to understand the nature and extent of his property; he was not of a sound and disposing mind. Again in the replication it is said that it is wrong that will is executed by his own sweet will and he had a disposing mind. The lower appellate court with a view to evaluate the statement of the witnesses of the well as well as of the document expert Shri H.K Jain, PW-6, also examined the original will exhibit D-1 and held as under:—

“I have also minutely seen the signatures of Shri Anand Sarup Singh on will exhibit D-1 with the signatures on the earlier will, which was written by the deceased himself and I am of the view that the styless of the signatures on the part of the deceased did not change. It is improbable that the alleged forger will sign on different papers of Shri Anand Sarup Singh. Moreover, it is not the case of anybody that somebody else was produced before the Sub-Registrar at the time of the registration of the will. Rather the signatures obtained at the back of the will, fully tally with the signatures, which appear on the face of the will exhibit D-1.”

18. The lower appellate Court further noticed that despite the plaint having been amended twice and the replication filed, it was nowhere stated that Shri Anand Sarup Singh was mentally deranged and was not of souna and disposing mind. When such a plea is missing from the plaint and the replication the evidence now led by the plaintiffs cannot be looked into as the same with is inconsistent pleadings of the plaintiffs.

19. The decision in H. Venkatachala Iyengar's case (supra) remains the testing ground for evaluating a will. According to the aforesaid judgment, “unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills, the Court will start on the same enquiry as in the case of the proof of document. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signatures to the document of his own free will. Ordinarily when the evidence added in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder”. As regards the suspicious circumstances, if found, surrounding the will, it is for the propounder to remove all such suspicious circumstances and satisfy the conscience of the Court.

20. In Smt. Jaswant Kaur v. Smt. Amrit Kaur, 1977 PLJ 54, Shri Y.V Chandruchud after critically appraising the decision in H. Venkatachala Iyengar's case (supra), culled the following propositions:—

(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 case of proof of wills, one cannot insist on proof with mathematical certainty.

(2) Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 68 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.

(3) 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 came to be executed. This aspect introduces an element of solemnity in the decision 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.

(4) Cases in which the execution of the will is surrounded 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 receives 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 could normally receive their due share in his estate were disinherited 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 suspicious circumstances before the document can be accepted as the last will of the testator.

(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances 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 in full that the will has been validly executed by the testator.

(6) If a caveator alleges fraud, undue influence, coercion 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 execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”

21. Thus, whereas each case has peculiar facts but all the same each of these has to satisfy the test as laid down in the decision of the Apex Court in H. Venkatachala Iyengar's case (supra). The other judgments of the apex Court as well as of this Court and other Courts whereas invariably keep in mind the exposition of law with regard to evaluating of a will as per the celebrated judgment in H. Venkatachala Iyengar's case (supra), the peculiar facts of the case are also noticed and evidence evaluated thus, accepting or rejecting the contentions raised. Each case has its peculiar facts and so no useful purpose would be served in making reference to each one of the various judgments referred by the respective counsel and the conclusion arrived at by the Courts. However, some of the judgments are being noticed.

22. In Rani Purnima Debi's case (supra) the Court held that in case a will is registered, it is a circumstance which may having regard to the circumstances prove its genuineness. But the mere fact that a will is registered will not by itself be sufficient to dispel all suspicion regarding it, where suspicion exists, without submitting the evidence of registration to a close examination.

23. There is no dispute to the proposition laid down in the aforesaid judgment of the Apex Court. As observed earlier also, each case has to be evaluated in the light of evidence on record. In the instance case the will has been proved by examining the scribe, the attesting witness as well as the witness who identified the testator before Sub Registrar at the time of registration of will. So, registration of such a document further lends support to the case set up by the defendants that a genuine document came into existence which the testator executed free of any pressure whatsoever. The Apex Court even permitted the parties to go into the evidence to find out as to whether High Court was right in its conclusion that the fact of registration of will had dispelled all suspicions. Precisely for this reason, I too had permitted the counsel to refer in extenso the statement of the witnesses to the will as well as its registration and it is therefore, that I have come to the conclusion that in fact Shri Anand Sarup Singh appeared before the Sub Registrar at the time of registration of this document.

24. In Kalyan Singh's case (supra) the Apex Court again held that trustworthy and unimpeachable evidence should be produced before the Court to establish the genuineness and authenticity of the will. It further held that it is always open to the Court to consider circumstances brought out in the evidence or which appear from the nature and contents of the document itself. The Court can also look into the surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party. In the instant case, the Court noticed that the claim of the wife to inherit does not totally eclipsed thereby creating a serious doubt on the genuineness of the will. Moreover, will had not been produced for many years. Since the plaintiff failed to remove the suspicious circumstances by placing satisfactory material on record, onus was not discharged and so it was held that the will is not a genuine document. Such is not the present case. Valid reasons have been assigned for dispossessing of the property. Document has also been proved by examining the scribe as well as the witnesses. This case too does not help the appellants in any manner.

25. Similarly, the decision in Ram Piari's case (supra) does not advance the case of the appellants in any manner. The Court in the instant case noticed that whereas the alleged will is stated to have been executed by the testator bequeathing all his property in favour of sons of one daughter, the other daughter who had no sore or sour relations with the testator has been totally deprived to claim her share in the property of the deceased. The Court further noticed that though the testator could sign, yet he put his thumb impression upon the will. It further noticed that even the scribe admitted that when he reached beneficiary's residence where the will was executed the testator's face was eclipsed as it was covered with quilt and despite such a state of affairs he did not talk or enquire about his health. Thus, after noticing these glaring facts, the Court came to the conclusion that the will is not a genuine document. In the instant case, except for the physical ailment of the testator nothing has come on record persuading me to hold that the document is a forged and fabricated one. Will bears the signatures as well as the thumb impression of the testator which have been duly certified by the witness examined by the defendants. Will invariably disentitles a person from his rightful claim as per law and so this document is examined minutely. Precisely for this reason perhaps at each stage the evidence of the witnesses is scrutinized (even in regular second appeal). Facts in the instant case are entirely different and so the appellants cannot derive any benefit from the aforesaid decision of the apex Court either.

26. In Smt. Guro's case (supra) whereas the courts below have held the will to be a document surrounded by suspicious circumstances and so held the same to be not a genuine document, High Court in second appeal reversed the findings recorded by the appellate Court which led to the filing of the appeal before the apex Court. The Court, thus, held that the High Court was not justified in reversing the findings of fact recorded by the Appellate Court which were based on a proper appreciation of the evidence on record. In fact, the High Court failed to attach sufficient importance to the various suspicious features relating to execution of the will that were pointed out by the appellate Court. In addition thereto, the Court noticed that whereas the testator died within 8 days of the execution of the will, there was no recital in the will that he had been ailing for a long time and was seriously ill at the time of execution of the will. Under these circumstances, the Court held that the view taken by the lower appellate Court that the suspicious circumstances have not been dispelled by the parties setting up the will and so reversed the decision of the High Court thereby dismissing the suit filed by the plaintiff. Facts of the instant case have no similarity to one in the present appeal. Moreover, in the instant case the lower appellate Court after carefully perusing the evidence, as well as the documents has returned a finding as to the genuinenes of the will and before this Court also the counsel for the appellants has been unable to substantiate the contentions raised. Thus, the aforesaid decision too also as per the facts of the case and has no applicability to the present case. The other decisions cited by counsel for the appellants almost refer to one or the other aspect which have already been noticed in some of the aforesaid judgments. Thus, I feel no necessity of examining each one of these cases or dilating upon the same.

27. In Bhagya Wati's case (supra), the Court while examining the will set up, held that a testator suffering from a cancer of throat and food pipe may be in a state of confusion but all the same cannot be held to be not having a disposing mind and, thus, held the will to be a genuine document. The aforesaid decision of the Division Bench lends support to the pleas raised by the defendants, namely, that despite the testator being a victim of paralysis retained his mental faculty and desired to part with his property in a particular manner and so executed a will without any pressure. He had a disposing mind free from all extraneous influences as has been stated by the witnesses to this document.

28. The Apex Court in Rabindra Nath Mukharjee's case (supra) held that the deprivation of natural heirs by the testarix should not raise any suspicion because the whole idea behind execution of will is to interfere with the normal line of succession. So, natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. Similarly, the Court held that the certification by the Sub Registrar that the will has been read over to the executor, who on doing so admitted the contents by itself is a circumstances in favour of due execution of the document, especially when the witnesses of a document have already deposed to its due execution, other decision relied upon by the respondents counsel are invariably based upon the various judgments of the Apex Court, notably H. Venkatachala Iyengar's case (supra) and the Courts have examined the cases in the light of those judgments. Thus no useful purpose would be served in debating upon the peculiar facts of those cases.

29. Resultantly, I am of the view that the conclusion of the lower appellate Court that will exhibit D-1 had been validly executed by the testator and the same is not surrounded by suspicious circumstances and is thus worthy of credence. This was the only issue which was pressed before me at the time of arguments. No other point was pressed. Thus, finding no merit in the appeal the same is dismissed.

30. No order to as to costs.

Appeal dismissed.