B.S. Yadav, J. - Chanan Singh was owner of 52 Kanals 5 Marlas of land situate in village Loharka Kalan, Tehsil Amritsar and 33 Kanals 10 Marlas of land and one house situated in village Kathanian, Tehsil Amritsar. He died issueless and without leaving a widow on October 4, 1966. Balkar Singh appellant filed this suit (which has given rise to this appeal) for possession of the aforesaid properties on the ground that the deceased had executed a will in his favour on June 13, 1966. The plaintiff claims himself to be sister's son of the deceased. His allegation is that the defendants have illegally taken possession of these properties after the death of Chanan Singh. 2. Defendant No. 1 Gurnam Singh (now respondent No. 1) contested the suit. He objected to the valuation of the suit for the purposes of Court-fee and jurisdiction and the locus standi of the plaintiff to file the suit. He further pleaded that the alleged will set up by the plaintiff was not the last will of Chanan Singh. In fact, on October 3, 1966 he had executed and got registered a will in his favour bequeathing all his properties to him and thus he is the rightful heir of the deceased. Upon the allegations of the parties the learned trial Court framed the following issues :- 1. Whether the suit is properly valued for the purposes of Court fee and jurisdiction ? 2. Whether the plaintiff is sister's son of Chanan Singh deceased ? 3. Whether Chanan Singh executed any valid will in favour of the plaintiff. If so, to what effect ? 4. Did Chanan Singh execute a last valid will dated 3rd October, 1966, in favour of Gurnam Singh defendant No. 1 ? If so, to what effect ? 5. If issue No. 3 and 4 are not proved, who is the next immediate heir of Chanan Singh deceased ? Relief. Issue No. 1 was not pressed and, therefore, the learned trial Court decided that issue in favour of the plaintiff. Under issue No. 2 it was held that Chanan Singh had executed a registered will Exhibit P.A. in favour of Balkar Singh plaintiff and the plaintiff was also sister's son of the deceased and, therefore, he had locus standi to file the suit. Under issue No. 3 it was held that the will Exhibit P.A. duly executed by Chanan Singh and is valid. Under issue No. 4 it was held that Chanan Singh deceased had executed later on another will Exhibit D.1 on October 3, 1966 in favour of Gurnam Singh, which was also a valid will and this the previous will stood revoked. Under issue No. 5 it was held that in case both the wills are held not to have been proved then Balkar Singh plaintiff was admittedly the next heir of Chanan Singh. As a result of finding under issue No. 4, the plaintiff's suit was dismissed. 3. Feeling aggrieved Balkar Singh plaintiff filed appeal which was heard by the Additional District Judge, Amritsar. Before him only issue No. 4 was argued. He confirmed the finding of the learned trial Court under that issue. Consequently, he dismissed the appeal. Still being not satisfied, Balkar Singh has come to this Court in second appeal. In this Court also only issue No. 4 was argued. Therefore, I will discuss that issue only. 4. Learned counsel for the plaintiff-appellant has argued that though a will has to be proved like any other document except as to the special requirement of attestation prescribed by Section 63 of the Indian Succession Act, yet there is an important feature which distinguishes will from other documents. It is that if any suspicious circumstances is attached to such will, the propounder of the will has to satisfy the Court about the validity of the will. He has cited H. Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 Supreme Court 443, wherein it was held :-
"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 signature to the document of his own free will. Ordinary when the evidence adduced 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. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken substantial part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decision of English Courts often mention the test of the satisfaction of judicial conscience"
. The evidence in the present case has to be examined in the light of the observations of their Lordships of the Supreme Court. 5. Exhibit P.A. is the will which was executed by Chanan Singh on June 13, 1966 in favour of Balkar Singh plaintiff. It was got registered on the same date. Both the Courts below have this will to be a valid one and this fact was not disputed before me. It was also not disputed before me that Balkar Singh plaintiff was the son of the sister of Chanan Singh deceased. Learned counsel for the appellant argued that it had come in the evidence of the plaintiff that he was out of India when the will was executed by Chanan Singh of his own free will and, therefore, it was not understood why only after less than four months Chanan Singh felt the necessity of executing another will in favour of Gurnam Singh defendant-respondent No. 1 who was a total stranger. DW2 Jinder Singh has also admitted that Balkar Singh was not present at the time of the execution of will Exhibit P.A. It may be mentioned here that this witness is also an attesting witness of that earlier will. This argument appears to have force. Though in the will Exhibit D.1 executed by Chanan Singh in favour of Gurnam Singh defendant on October 3, 1966, the latter has been described as his real nephew but defendant No. 1 in his evidence has not been able to show that he and the deceased were descendants from a common ancestor. Therefore, this false recital in the will prima facie shows that Chanan singh was not of a disposing mind at the time he executed this will. 6. Defendant No. 1 can succeed only if he can show that Chanan Singh deceased was of a disposing mind at the time he executed this will. He has also to show that the will was executed by Chanan Singh of his own free will. To prove the disposing mind of Chanan Singh the defendant had examined D.W.1 Abnash Chander, who had typed out this will Exhibits D.1 and D.2 Jinder Singh who is its attesting witness. They have stated that Chanan Singh was of disposing mind at the time he executed this will. D.W.1 Abnash Chander does not appear to be an intendment witness. D.W.2 Jinder Singh gets his documents written by that witness as admitted by him D.W.1 Abnash Chander goes to the extent of saying that Gurnam Singh defendant was not present at the time of the execution of the will. 7. Jinder Singh D.W.2 also does not appear to be a reliable witness. As is Lambardar of the village. He is expected to know when Chanan Singh died. He has stated that Chanan Singh died on the 5th of the Month in which the will Exhibit D.1 was executed. However, the plaintiff has placed on record the death entry Exhibit P.E. which shows that Chanan Singh died on October 4, 1966. It is in the statement of the defendant that Chanan Singh died at 4.00 A.M. though he also gives the date of his death's as October 5, 1966. It is in the defendant's evidence that the will was registered after 4.00 P.M. on October 3, 1966. Jinder Singh (D.W.2) and Gurnam Singh defendant have purposely given the date of death of Chanan Singh as October 5, 1966, to show that he did not die within about 12 hours of the execution of the will Exhibit D.1. Therefore, the onus was very heavy upon defendant No. 1 to show that Chanan Singh was of disposing mind at the time he executed the will Exhibit D.1 and considering the above circumstances, it appears that he was near his death when he executed the will and, therefore, could not have been of disposing mind. 8. It has come in evidence the Tej Kaur, mother of the plaintiff and sister Chanan Singh, was also residing in village Kathanian. The defendant has led evidence to show that Tej Kaur had left the father of the plaintiff and started living with one Mehar Singh of village Kathanian as his wife. That story appears probable because it has come in the plaintiff's evidence that Inder Singh, husband of Tej Kaur and father of the plaintiff, is living in Hong Kong for the last more than 50 years and has not come to India during this period. Chanan Singh deceased was original resident of village Loharka. It appears that when his sister began residing in village Kathanian, Chanan Singh, who was issueless and perhaps unmarried also, shifted to that village some time later and began residing with her. D.W.2 Jinder Singh and D.W.3 Gurnam Singh defendant have admitted about this residence of Chanan Singh with Tej Kaur and Mehar Singh. It is in the evidence of the defendant that Tej Kaur died about two or three years before the institution of the suit. Mehar Singh had predeceased her. D.W. 2 Jinder Singh and Gurnam Singh defendant have stated that the latter used to look after Chanan Singh. Gurnam Singh has also stated that since his childhood he is living with Chanan Singh. This story does not appeal to me. Tej Kaur must be looking after her brother. That appears to be the reason why Chanan Singh executed a will voluntarily in favour of the plaintiff even in the latter's absence. Thus, the defendant Gurnam Singh has not been able to show that there was some special circumstance which prevailed with Chanan Singh when he executed the a will Exhibit D.1 in his favour a few months after the execution of the will Exhibit P.A. 9. There is another circumstance to show that Chanan Singh was not of disposing mind at the time when he executed the later will. In the will Exhibit D.1 there is mention of the previous will executed in favour of Balkar Singh plaintiff. Gurnam Singh defendant says that he does not know about any such earlier will. If Chanan Singh was in his senses then he would have definitely told him about the will Exhibit P.a. Gurnam Singh goes to the extent of saying that he does not even know Balkar Singh and that Smt. Tej Kaur had no issue Balkar Singh's name appears in will Exhibit D.1. If Chanan Singh was in his senses Gurnam Singh would have asked him who that Balkar Singh was. D.W.2 Jinder Singh has admitted that Chanan Singh used to say that Balkar Singh was his Bhanja. Gurnam Singh must be knowing these facts and that is why he is feigning ignorance about them. In this will it has been specifically got inserted that Balkar Singh or anybody else will have no right of inheritence in the testator's property. 10. It appears that Chanan Singh was not even in a condition to walk properly. From the defendants evidence it is clear that for going from the village to Amritsar and for return journey a tonga was hired for whole day. The tonga, on reaching Amritsar stopped just near the seat of the typist (i.e. Abnash Chander D.W.1). It is not clear how far the office of the sub Registrar was situated. It is possible, the tonga might have been kept there for going to the office of the Sub Registrar. 11. It is in the evidence of D.W. 2 Jinder Singh and Gurnam Singh defendant that the latter had accompanied Chanan Singh when they had gone to Amritsar where Chanan Singh had executed the will Exhibit D.1 Gurnam Singh defendant remained with Chanan Singh till the will was registered. Though the witnesses have tried to show that Chanan Singh himself had incurred all the expenses and of course there is no evidence to rebut the above contention of Gurnam Singh but the fact remains that he had accompanied Chanan Singh at the time of the execution of the will. As mentioned in the above cited case, when the propounder takes a part in the execution of the will, that circumstance goes very much against him. 12. Learned counsel for the defendant No. 1 argued that the will Exhibit D.1 was got registered by Chanan Singh and the registration of a will does a long way in proving its validity. As far as the legal principle is concerned, there is no dispute but in the present case the will registered by the Sub Registrar in a perfunctory manner. DW3 Gurnam Singh has admitted that when they had appeared before the Sub-Registrar the said Officer merely enquired from Jinder Singh (DW2) if he identified the executant and the said witness replied in affirmative and thereupon the said will was registered. Though DW2 Jinder Singh has stated that the will was read over by the Sub Registrar to Chanan Singh after admitting it correct, he (Chanan Singh) had thumb-marked the endorsement, yet in view of the statement of Gurnam Singh defendant, the statement of Jinder Singh cannot be believed. Therefore, when the will was not read over to Chanan Singh by the registering authority, it cannot be said that he understood the contents of the will and after admitting those contents he thunb-marked it. The whole affair appears to be doubtful. DW2 Jinder Singh has stated that at the time the will was scribed Chanan Singh had brought the khasra numbers of the land (i.e. farad). However, no Khasra Numbers is mentioned in the will D.1. 13. Hence, it is held that defendant No. 1 has not been able to remove the suspicious circumstances attached to the execution of the will Exhibit D.1 and, therefore, the will Exhibit D.1 cannot be accepted as a valid will executed by Chanan Singh. I, therefore, upset the finding of the learned Courts below under issue No. 4 and find the issue against the defendants. In view of the above findings, I accept the present appeal and set aside the appeal and the judgments and decrees passed by the Courts below and grant a decree for possession of the properties in snit in favour of the plaintiff and against the defendants. The plaintiff will also be entitled to the costs of the suit throughout from defendants No. 1. Appeal accepted.