C.K. PRASAD, J. (1.) Second Appeal 571/ 89 arises in the following circumstances. Plaintiff-respondent (since dead) filed suit for declaration of title as also perpetual injunction. Second Civil Judge, Class II, Balaghat by his judgment and decree dated 29.11.1986 passed in Civil Suit No, 398A/86 decreed the suit. Defendants aggrieved by the same, preferred appeal which led to registration of Civil Appeal No. 8A/88. By judgment and decree dated 29th June, 1989, 1st Additional District Judge, Balaghat dismissed the appeal. Defendants, aggrieved by the same have preferred this appeal. By order dated 17.9.1990, appeal has been admitted on the following substantial question of law :
"Whether the Will (Ex.D1) was rightly disbelieved as being suspicious.?"
(2.) Second Appeal 572/89 has arisen in the following circumstances. Plaintiff No. 1 Tejlal filed the suit against the defendant Birenbai for perpetual injunction restraining the defendant from alienating the property in any manner. IInd Civil Judge, Class II, Balaghat by his judgment and decree dated 29th November, 1988 passed in Civil Suit No. 109A/84 dismissed the suit. Plaintiff, aggrieved by the same preferred appeal which led to registration of Civil Appeal No. 7A/88 and the IInd Addl District Judge, Balaghat by his judgment and decree dated 29th June, 1989 dismissed the appeal. Plaintiffs aggrieved by the same has preferred this appeal. By order, dated 17.9.1990, appeal has been admitted en the following substantial question of law : "Whether the Will (Ex. D1) was rightly disbelieved as being suspicious?"
(3.) From the facts narrated above, it is evident that the suit as also the appeal was disposed of by the Trial Court by a common judgment. In fact, in the present appeal, common question of law arises and as such, both the appeals are being disposed of by this common judgment.
(4.) Facts necessary for the decision of the present appeal are that the disputed property belonged to Anantram. Birenbai is the wife of Anantram whereas Gendabai is his daughter and the name of her husband is Tejlal. According to Birenbai, Tajlal had taken a second lady and has thrown out his wife i.e. Gendabai from the matrimonial home as such dispute arose between them. It is her assertion that Tejlal forcibly wanted to take possession of the land which she inherited after the death of her husband Anantram. Tejlal set up a plea of Will purportedly executed by Anantram on 16.4.1978. Said Will has been marked as Exhibit D1 in the suit. Trial Court as well as the lower Appellate Court on analysis of the evidence have found that the Will purportedly executed in favour of Tejlal is invalid as he has not been able to remove the suspicious circumstances attending the Will.
(5.) Ms. Sudha Pandit, appears on behalf of the appellants whereas, Mr. N.S. Ruprah appears on behalf of the respondent.
(6.) Ms. Pandit submits that the finding recorded by the Courts below that the Will is invalid is erroneous and according to her submission the Courts below ought to have believed the Will. Mr. Ruprah, however, appearing on behalf of the respondent submits that both the Courts below on consideration of relevant materials have recorded the finding and disbelieved the Will as the suspicious circumstances attending to the Will have not been removed by the propounder.
(7.) It is well settled that this Court in Second Appeal does not appraise evidence and interferes with the finding of fact only when it is shown that the finding recorded by the Courts below is perverse. Here in the present case, both the Courts below have found that the testator of the Will was old, suffering from paralysis and was bed-ridden . Both the Courts below have further taken into consideration that after the death of the testator, name of his wife Birenbai was mutated and the pro- pounder did not challenge the same before superior Court. Both the Courts below have further found that propounder has taken active role in the execution of the Will.
(8.) Courts below have further taken into consideration that the testator having only daughter, who was married to the propounder, there was no occasion for execution of Will in favour of the propounder. Lower Appellate Court has further taken into consideration that the scribe of the Will, Chhatar Singh has ear lier stated in evidence that the contents of the Will were written by him but later on he tried to wriggle out with the same and stated that it was written at the dictates of the testator. Lower Appellate Court has further taken into consideration that while replying to the interlocutory application filed by Birenbai and for grant of temporary injunction, the propounder did not state anything about the execution of the Will in his favour.
(9.) Ms. Pandit submits that merely the fact that the testator was ofd, suffering from paralysis and bed-ridden cannot lead to the conclusion that he was a person who could not understand things. In the evidence it has come that testator was old, suffering from paralysis and was bed-ridden and this fact may not in isolation make the Will suspicious, unless it is proved that he did not have capacity to receive out things, but the Courts below have found other suspicious circumstances enumerated above.
(10.) It is trite law that it is for the pro- pounder of the Will to prove and remove all suspicious circumstances. Cumulative effect of the suspicious circumstances found by the Courts below clearly cast a doubt upon the execution of the' Will. Suspicious circumstances, which have not been removed by the pro- pounder on whom onus lies renders the Will invalid, I concur to the findings of the Courts below. They are right in disbelieving the Will as suspicious. Findings of fact arrived at by Courts below being on consideration of relevant materials and the same being not perverse, does not call for interference by this Court in Second Appeal.
(11.) Substantial question of law framed is thus answered against the propounder. In the result, I do not find any merit in both the appeals and are dismissed accordingly. However in the facts and circumstances of the case, there shall be no order as to costs. Appeal dismissed.
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