Himachal Pradesh High Court
Gun Parkash And Anr. vs Bhola Nath on 21 November, 1996
Equivalent citations: AIR1997HP27
Author: Arun Kumar Goel
Bench: Arun Kumar Goel
JUDGMENT Arun Kumar Goel, J.
1. Parties in this appeal are being referred to as 'defendants' and 'plaintiff',1 The plaintiff filed a suit for declaration and injunction as a consequential relief against the defendants. In order to properly appreciate the background of this case, it is necessary to draw the pedegree table which is to the following effect :--
Dhari | ______________________|______________________ | | Kanha Jai Dev.
| Died issueless and left
Yadupati behind Smt. Shyama who
| died on 29/30-1-1985.
Bhola Nath
(Plaintiff)
2. This appeal is filed by the defendants against the decree passed by the lower appeallate Court, Facts regarding which the parties are not at variance are that Kanha and Jai Dev were real brothers and were the sons pf Dhari. So far Jai Dev is concerned, he had no issue and was survived by his widow Smt. Shyama. On the other hand, Kanha had only one son, named, Yadupati and Bhola Nath plaintiff is the son of Yadupati. In the present case, the estate of Smt. Shyama is the subject-matter of dispute. Parties are further not at variance regarding the fact that Kanha and Jai Dev had effected partition of their joint holdings during their lifetime and thus, the jointness of status was severed during their life-time. As a consequence of such partition, Smt, Shyama became absolute owner of the property after the death of Jai Dev. In this view of the matter, learned counsel for the respondent has very fairly stated at the Bar that so far the plea regarding the property being joint Hindu family coparcenery property is concerned, that does not survive and accordingly it is given up.
3. As per averments made in the amended plaint, the suit property is land measuring 1562.66 sq. metres and 514.23 sq. metres situated in Thanehra Mohalla, Mandi town, Himachal Pradesh as per jamabandi for the year 1979-80 as detailed in the plaint and it belonged to one Shri Dhari who had two sons, namely, Kanha and Jai Dev.
4. In view of the facts stated in the preceding paragraph, the fact of the property being Joint Hindu Family-Coparcenery property is not being noticed for the determination of this appeal. The case of the plaintiff further was that Jai Dev died about 19 years ago and he was survived by his widow Smt. Shyama who died on 30-1-1985 and alt her last rites were performed by the plaintiff. Further case of the plaintiff was that defendants started interfering in the peaceful possession of the plaintiff since 10-2-1985 over the suit property. Not only this, the defendants are further alleged to have been propagating that they are now owners of the suit property along with the plaintiff. According to the plaintiff Smt. Shyama was neither the owner of the suit property nor was she competent to make any Will. It was further pleaded by the plaintiff that in case Smt. Shyama was found to be competent to make the Will, then in such a case, she being ill for the last many years as also being not of disposing mind, was not competent to execute any Will. It was pleaded that Smt. Shyama was blind. Further plea of the plaintiff was to the effect that if the Will is duly proved to Have been executed while the executant was in sound disposing mind, then it was pleaded that the same is the result of undue influence and fraud and the same is void.
5. By means of an amendment, paragraph 7A was added to the plaint, wherein it was pleaded that the father of the defendants was a disciple of Shri Jai Dev, husband of Smt. Shyama and this disciple used to live generally in the house of Smt. Shyama. It is further case of the plaintiff that the defendants were also spending most of theirtime by remaining in the house of Smt. Shyama with their father and the defendants along with their father were looking after her. Defendants were further stated to be in a dominating position and impressing upon the executant of the Will Smt. Shyama that they are the only persons who are her well-wishers. At such time, defendants and their father are stated to have got certain papers signed from Smt. Shyama by telling her that those papers were relating to death of her husband and according to the plaintiff, those were the papers to which defendants were holding out that they had got the Will executed which according to the plaintiff, was the result of fraud and undue influence practised upon Smt. Shyama., Defendants were asked to admit the claim of the plaintiff which they declined on 14-2-1985, hence the suit.
6. The claim of the plaintiff was contested and resisted by the defendants, who stated that the suit property was exclusively owned and possessed by Smt. Shyama widow of Jai Dev in her own right to the exclusion of everyone including the plaintiff. According to defendants, Smt. Shyama died on 29-1-1985 and by virtue of a registered Will, the entire estate of the deceased has devolved upon the defendants and the claim of the plaintiff made in the plaint to the contrary was repudiated. (Pleas regarding the property being not Joint Hindu Property/Coparcernery property are not being noticed for the reasons stated hereinabove) Death of Jai Dev about 19 years ago was admitted. It was also pleatied alternatively by the defendants that Smt. Shyama being in exclusive, open and hostile possession of the suit property to the knowledge of the plaintiff had become owner thereof by adverse possession and thus, the right of the plaintiff, if any, was lost through her possession. Defendants claimed themselves to be in possession of the suit property. Thus, it was pleaded that the suit is barred by limitation. According to the defendants, there was no question of their interfering with the so-called possession of the plaintiff over the suit property w.e.f. 10-2-1985 as claimed by the plaintiff because the plaintiff had no right over the same. Execution of the Will by Smt. Shyama was pleaded which had been got registered with Sub-Registrar on 30-6-1977 at her house. According to the defendants, the registration of the Will in question is a notice of public at large. As such the plaintiff could not plead ignorance about the execution of the said document. Possession of the plaintiff was specifically denied. It was further pleaded that the deceased Smt. Shyama was in a sound disposing mind at the time of execution of the Will in question and the averments to the contrary made in the plaint were also repudiated. It was further pleaded that Smt. Shyama was hale and hearty except that she had pain in her knees and for that reason had trouble while walking long distances. As such the Sub-Registrar was requested to attest the Will in question at her residence. These averments made in the written statement by the defendants were denied by the plaintiff in his replication and the parties went to trial on the following issues :--
1. Whether the suit property is joint Hindu Family Co-parcenery property ?
..... OPP.
2. Whether the plaintiff and his son are exclusive owners in possession of the suit property ?
..... OPP.
3. Whether Smt. Shyama Upadhaya has executed a valid Will in favour of defendants in disposing mind ?
.....OPD.
4. Whether the Will is question is the outcome of fraud, undue influence as alleged ?
..... OPP.
5. Whether the suit has not been properly valued for the purpose of Court-fee and jurisdiction ?
.....OPD.
6. Whether Smt. Shyama Upadhaya had become owner of the suit property by way of adverse possession as alleged ?
.....OPD.
7. Whether the defendants are living in the said house and are in possession of suit property as alleged. If so, its effect?
.....OPD.
8. Whether the suit is within limitation ?
.....OPP.
9. Relief.
After conclusion of the trial, the suit of the plaintiff was dismissed. According to the trial Court, the Will Ex. DW-2/A propounded by the defendants stood duly proved. This matter was taken up in appeal by the plaintiff and by means of the judgment and decree under appeal, the learned Additional District Judge, Mandi has reversed the judgment and decree passed by the trial Court and consequently decreed the suit of the plaintiff. Hence, this second appeal at the instance of the defendants.
7. Shri Mandhotra, learned counsel for the defendants, has submitted that the Will propounded by his clients, which is Ex. DW-2/A stands duly proved in accordance with the provisions of Indian Succession Act and is also established to have been executed by Smt. Shyama Upadhaya, exclusive owner of the suit property while she was in good health and sound disposing mind. According to him, the so-called suspicious circumstances culled out by the lower appellate Court, to which a reference is made in paras 13 and 14, are in fact, not made out from the materials on record. It was further urged that in view of the findings of the trial Court recorded under issue No. 7 and those having not been disturbed the decree of injunction passed by the lower appeallate Court is illegal besides being contrary to law. By referring to amended plaint with special reference to para 7-A, it was pointed out by the learned counsel for the appellants that it was the case of plaintiff that the father of the defendants was a disciple of the husband of Smt. Shyama Devi (deceased) and after the death of Jai Dev husband of Shyama Devi, he used to live jointly in the house of Shyama Devi and further case pleaded by the plaintiff was that defendants were spending most of their time by remaining in the house of Shyama Devi (deceased) with their father and the defendants along with their father were looking after her. According to him, in the face of this admission of the plaintiff in plaint and the findings recorded by the trial Court under issue No. 7, the case of the plaintiff was not maintainable and thus, it was urged that decree and judgment of the trial Court was liable to be restored. A reference was made to the statement of PW 1 Bhola Nath. According to the learned counsel, in this statement there is mention of maintenance of deceased Shyama Devi by Bhola Nath plaintiff but there was no pleading, according to him, in the plaint. So far the statement of Moti Ram PW 2 is concerned, the same was also not worthy of any credence. A reference was also made to the statements of PW 3 and PW 4 examined in rebuttal on behalf of the plaintiff. While referring to the evidence of the defendants, Shri Mandhotra, pointed out that there is no suggestion given to defendant Shiv Nandan, who appeared as DW 1 regarding the sound disposing capacity of mind of the deceased Shyama Devi. Similarly, no suggestion in this behalf was made in cross-examination to DW 2 Dina Nath scribe of the Will (Ex. DW 2A) and DW 3 Bhagat Ram, Advocate, who had identified the deceased before the Sub-Registrar at the time of registeration. DW 5 was also referred to show that it is the defendants who were looking after the deceased Shyma Devi and had got her checked up from this witness, who is a doctor by profession. DW 6 is Dinesh Kashyap, a marginal witness of the Will (Ex. DW 2/A). According to Shri Mandhotra, the sound disposing capacity of Shayama Devi testatrix stood established on the statements of D Ws 1, 2, 3, 5 and 6 and when this evidence is considered vis-a-vis the statements of PWs 1 to 4, then according to him, the Will in question had been wrongly discarded by the lower appellate Court. Overall thrust of submission of Shri Mandhotra was that the statements of DWs 2, 4, and 6 on one hand and that of PW 4 stand completely misread. On the other hand reference was made to case law which will be discussed hereinafter.
8. Shri Ashwani Sharma, learned counsel for the plaintiff, has controverted all the contentions raised by the learned counsel for the defendants and has further tried to demonstrate that the Will (Ex. DW 2/A) was the result of deceased Shyama Devi not being in sound disposing mind keeping in view her ill-health and almost lost eyesight and thus, she was incapacitated from executing the Will Ex. DW-2/A. Further as per Shri Sharma, the propounders being beneficiaries have taken active part in execution of the Will in their favour, makes the Will itself suspicious to throw-out the present appeal. Similarly, the statements of DWs 2 to 4 and 6 were attacked to be not worthy of credence. In this behalf it was also urged that for ascertaining the credibility of the marginal witnesses, the Court is not precluded from looking into all attending circumstances. The marginal witnesses were not from locality and who called these marginal witnesses as well as the identifier when the- Will was got registered after execution, has been purposely kept vague as well as denied by DWs 1, 2 and 6 and it makes the Will further suspicious. It was also urged on behalf of the plaintiff that the Will in question is the result of undue influence and fraud, practiced by the defendants upon late Smt. Shyama Devi. Even on the question of proof of Will, it was urged with vehemence by Shri Sharma that PW4 and DW6, marginal witnesses of the Will (Ex. DW 2/A), have not been able to indentify the signatures of Smt. Shyama De,vi, executant thereof. In support of his aforesaid submissions, reliance was placed on a case law which will also be considered hereinafter.
9. From the evidence on record, it is clear that husband of Smt. Shyama Devi (deceased) had died about 2 decades ago and she was issueless. It is also clear from the evidence on record that the father of defendants was disciple of the husband of deceased Shyama Devi and used to reside there and defendants along with their families also came to reside there. From the statement of DW I Shiv Nandan-defendant, it is further clear that he used to come and reside from 1970 in the house of deceased Shyama Devi and started permanently living there in the year 1973. From the evidence on record, it is established that the Will in question was scribed on 15th June, 1977 by the scribe D W 2 Dina Nath and its marginal witnesses are PW 4 Pawan Kumar and DW 6 Dinesh Kashyap. It appears from the Will Ex. DW 2/ A that after it had been executed by deceased Shyama Devi in presence of the said marginal witnesses namely DW 4 and PW 6, they had also put their signatures in presence of each other after the same had been signed by her.
10. The sole question that has to be examined in the present case is that what was the state of mind and health of deceased Shyama Devi on 15-5-1976 when the Will (Ex. DW 2/A) was executed as well as on 30-7-1977 when the same was registered by the Sub-Registrar, Mandi at her residence in presence of DW 3, Bhagat Ram Sharma, Advocate.
11. Primarily the Court is to respect and ensure that the last Will of the testator who had made the same in a sound disposing mind and while determining this question the Court will not bring its own views as to what is or is not a moral or fair disposition. Once the factum of the Will having been validly and properly executed is established, it is no part of duty of the Court to see whether it is natural or causes any hardship or deprives the near relations of the testator and in all such cases, the Court has to give effect to such wish of the testator as detailed in the Will and further in order to ascertain such a wish of the testator, the Court is not in a position to enquire from the deceased-testator regarding the genuineness of the Will and further except for looking to the evidence produced by the parties, there is no other way for the Court to examine the genuineness and due execution of a Will under law. Now reference may be made to the case law cited at the bar on behalf of the parties and firstly, the authorities cited on behalf of the appellant are being noticed.
12. In AIR 1964 SC 529, Shashi Kumar Banerjee v. Subodh Kumar Banerjee, it has been held that even in case of there being slight discrepancy as to time of execution of the Will in the evidence of attesting witnesses, the Will is not to be thrown out on that ground alone and merely because the witness happens to be chance witnesses, it is no ground for disbelieving their evidence. In 1971 Sim LJ 70, Bishakhu v. Jaishi, a learned single Judge of this Court, Hon'ble Shri M. H. Beg, Chief Justice (as His Lordship then was) has observed that simply because the witnesses not knowing the testator before and their being related to the father of the beneficiary under the Will will not destroy their credibility if it is otherwise made out that the same had been duly executed. In !975 Sim LJ 201 (Him Pra), Smt. Uttami v. Ram Dass, a Division Bench of this Court has observed that once it is established in the case of an unnatural and officious Will that the testator was free and had a sound disposing mind, the Court cannot inject its own ethics of what is or is not a moral or a fair disposition. That being so, the Court is not concerned with whether the Will is unnatural and causes hardship and cuts off wholly or in part the near relations of the testator. The Court has to give effect to the Will. In (1996) 113 Pun LR 503 : (AIR 1996 Punj & Har 265), Gurdial Singh v. Smt. Rattan Kaur, a learned single Judge of Punjab and Haryana High Court has observed as under (at p. 270 of AIR) :--
"It was then submitted on behalf of the appellant that the thumb impression of the deceased was obtained by the official of Sub-Registrar in a separate room and that the registration has been done in a perfunctory manner. This contention is not borne out from the statement of DW 2 Ajit Singh, who categorically denied that the thumb impression of the testator was obtained by the official sitting in some other room. The appellant has not examined any official of the Registration Department. The registration of the Will is a prima facie evidence to prove that the legal formalities for the due registration were duly completed by the Sub-Registrar. Also it was argued that the deceased was an old man of 90 years and he could not execute the Will while in a sound disposing mind. The argument is again devoid of any merit. When the Will in favour of the plaintiff was executed by the deceased at that time the deceased was of 88 years. Not an iota of evidence has come on the record that within a span of two years, the deceased was so incapacitated that he could not execute any Will. Also it was argued that no intervening circumstances have been proved on the record by the propounder that the relations between the deceased and the plaintiff became hostile and by which actions of the plaintiff, the deceased was annoyed. The argument is again is devoid of any merit. The recitals in the Wilt (Ex. D1) clearly suggest that on account of the vices of the plaintiff the deceased was not happy with him."
In (1995) 4 SCC 459 : (AIR 1995 SC 1684), Rabindra Nath Mukherjee v. Panchanan Banerjee, it has been held by the Hon'ble Apex Court as under (Paras 4 to 8 of AIR) :--
"As to the first circumstance, we would observe that this 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. As in the present case, the two executors are sons of a balf-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the Will. As to the identification by a lawyer of Calcutta, it may be stated that this could have been regarded as a suspicious circumstance if a wrong person would have been identified as Saroj Bala. That, however, is not the case of the objectors. So, there is no bane in this circumstance. Insofar as the third circumstance is concerned, we may first observe that witnesses in such documents verify whether the same had been executed voluntarily by the peron concerned knowing its contents. In case where a will is registered and the Sub-Registrar certifies that the same had been read over to the executor who, on doing so, admitted the contents, the fact that the witnesses to the document are interested loses significance. The documents at hand were registered and it is on record that the Sub Registrar had explained the contents to the old lady. So, we do not find the third circumstance as suspicious on the facts of the present case. As to 'ubiquitous' Subodh, it may be said that somebody has to take necessary steps in such matters; but if he happens to be one close to the executor, some eyebrow is bound to rise. Even so, if there be other circumstances on record to show the voluntary character of the document, the eyebrows sould get dropped down. And such circumstances were present in the case, which somehow missed the two Courts below. These are :
(1) Making of two codicils by Saroj Bala, last of which was about three years after the execution of will. The need for these arose because the testatrix had made use of some of the properties listed in the will. So, the testatrix knew what was the will for and why it needed change.
(2) The testatrix executed an FDR of Rs. 15,000/- on 2-8-1967, which shows that she was not so immobile or senile as sought to be made out by the respondents. The fact that her signature in the FDR was shaky has no cutting edge, because nearing 90 at the relevant time, the signature could have well been shaky because of old age.
(3) Testatrix sold some property in February 1967 and received the sale price, which shows her consciousness as to how to deal with her properties.
If a total view is taken of the aforesaid circumstances, which has to be the approach, we are of the opinion that the Courts below overplayed some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders."
13. In (1995) 5 SCC 215 : (1995 AIR SCW 3226), Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar, it has been held that (para 14 of AIR) :--
"As far back as in 1894 the Privy Council in the case of Choteynarain Singh v. Mussamat Ratan Koer observed that in the case of execution of a Will, an improbability must be clear and cogent. It must approach very nearly to, if it does not altogether constitute, an impossibility. This was reiterated by the Calcutta High Court in the case of Kristo Gopal Nath v. Baidya Nath Khan. It said that when a Court is dealing with a testamentary case where there is a large and consistent body of testimony evidencing the signing and attestation of the Will, but where it is suggested that there are circumstances which raise a suspicion and make it impossible that the Will could have been executed, the correct line of approach is to see that the improbability in order to prevail against such evidence must be clear and cogent and must approach very nearly to. if it does not altogether constitute, an impossibility. There is no such improbability about the Will in the present case."
On the other hand, reference has been made on behalf of the plaintiff to AIR 1965 SC 354, Ramchandra Rambux v. Champabai wherein it has been held that it is for the propounder to not only establish the Will in question but he has a!so to remove the suspicion while leading reliable evidence as well as by proving sound disposing capacity of the testator at the time of execution of the Will, besids this, the credibility of the marginal witnesses has also to be seen by the Court. In 1993(1) Simla Law Cases 118, Milkhi Ram v. Smt. Surmoo Devi, , it has been held by a learned single Judge of this Court that the testator disinherited the daughter and there is no mention of her in the Will, such a conduct on the part of testator is unnatural which makes the Will suspicious and no effect is to be given to such a Will. While passing this judgment reliance was placed on AIR 1990 SC 396, Kalyan Singh v. Smt. Chhoti, wherein it was held by the Hon'ble Apex Court that on the failure of the propounder to remove suspicious circumstances by placing satisfactory material on record, the Will could be said not to be genuine and further in order to judge the credibility of witnesses and disengage the truth from falsehood, the Court is not confined only to their testimony and demeanour but it would be open to the Court to consider circumstances brought out in the evidence or which appear from the nature or contents of the document itself it would also be open to the Court to look into the surrounding circumstances as well as inherit improbability of the case to reach at proper conclusion on the nature of evidence adduced by the party. In AIR 1961 J and K 42, Wazir Shah v. Sant Shah, it has been held that an evidence of a chance witness cannot be considered to be worthy of credence. Reliance was also placed by Shri Sharma on the observations of the Hon'ble Apex Court in 1996 (I) Simla Law Journal 315 : (1995 AIR SCW 4631), Kashibai v. Parwatibai, in support of his submission that even if findings of the lower appellate Court are erroneous in the present case, this Court is precluded from discarding such findings of fact unless a substantial question of law is made out. The present case has now to be examined in the light of the evidence produced by the parties and the principle of law enunciated by the Hon'ble Apex Court as well as this Court and other High Courts.
14. On examination of evidence, it is evident that during the lifetime of husband of Shayama Devi, the father of the defendants and after his death, defendants along with their father were looking after the deceased Shayama Devi while their father was residing with her. From the evidence of the defendants, it is also established that the deceased, though was aged, was unable to walk for long because of ailment in her legs. The evidence regarding the sound disposing mind led by the parties is in the shape of DW-1 Shiv Nandan, DW-2, scribe of the Will Ex. DW-2/A and DW-3 Bhagat Ram Sharma, Advocate, who identified her before the Sub-Registrar at the time of Registration of the Will and DW-6 Dinesh Kashyap, one of the two marginal witnesses of the Will in question. When the statements of these witnesses are read together with the statement of DW-5 Dr. Manju Sharma, it is established that the testator Shayama Devi could not walk because of ailment in her legs. So far her state of disposing rnind is concerned it stands established beyond, any shadow of doubt. It has come in the statement of DW-3 that he had identified the testator before Sub-Registrar at the time of registration of Ex. DW-2/A at her residence. One of the marginal witness DW-6 had supported the case of the defendants throughout. On the other hand, Shri Sharma had pointed out that the other marginal witness PW-4 Pawan Kumar has not supported the case of the defendants and according to him, his statement completely demolishes the Will Ex. DW-2/A propounded by the defendants. Further ground of attack on the evidence of defendants was that DW-6 and PW-4 were chance witnesses and further who had summoned them along with scribe and Bhagat Ram Sharma, Advocate on 30-6-77 has not been specified by them and all the witnesses were evasive in this behalf. The fact remains that even PW-4 and DW-6. have stated that the Will was scribed by DW-2 Dina Nath. However, PW-4 has said in one breath that he is not aware as to what was written but he signed the same. At the same time, this PW-4 has further stated that Dinesh . Kumar was also present when it was signed by him as also by Shayama Devi. Statement of DW-6 Dinesh was questioned on behalf of the plaintiff by saying that he has not been able to identify the signatures of the deceased on the Will Ex. DW-2/A and thus, it was argued that no reliance needs to be placed on his statement. This plea was controverted by the learned counsel for the defendants by saying that the witness had identified the signatures of deceased Shayama Devi, which were put to him in cross-examination and which are exhibited as DW-2/A/4. In fact, these are the signatures of the testator when the Will was presented for registration before the Sub-Registrar. According to the learned counsel for the defendants, had the signatures at Ex. DW-2/A/1 been confronted to DW-6, he would have identified those as well. On this basis it is, held that when the signatures of the testator put up by her at the time of presentation of the Will for registration were shown to the witness he had rightly identified those.
15. Now coming to the question of DW-6 and PW-5 being chance witnesses which was made a ground for discarding their presence at the time of execution of the Will Ex. DW-2/A by deceased Shayama Devi. Reliance was placed on AIR 1961 J and K 42 supra for this purpose. Firstly with respect no absolute proposition can be held that evidence of a chance witness can never be considered to be worthy of credence and further looking to the facts of said case, the same is wholly inapplicable to the facts of the present case. In the present case, it has come on record that both the marginal witnesses were known to the son of defendant No. 1, Gun Parkash and they happened to have gone to see the said son. In this view of the matter, their presence at the house was not improbable on 15th June, 1977 when the Will was scribed by DW-2 and thereafter it was read over and explained to the testator Shayama Devi by the scribe when she signed it in presence of two witnesses, who had also signed in presence of each other. It was also urged on behalf of the plaintiff that no witness from the locality was called to witness the Will in question. Suffice it to say that firstly it is not the requirement of law and secondly, when the witnesses were available, then it was not necessary to have summoned witnesses from the vicinity, therefore, this contention raised on behalf of the plaintiff is hereby rejected- Similarly, the plea that DW-2/A disinherits without any justification makes the same suspicious, has been raised simply to be rejected. There is no question of disinheriting anyone and none has been disinherited if a reference is made to the Will in question.
16. No doubt, presence of the family members of the defendants has been stated to be there by the plaintiff's witnesses, but that by itself will not make the Will suspicious unless something more than that is established. The Will in question in the instanl case is registered and the deceased was identified by an Advocate before the Sub-Registrar. Simply because the testator was an old lady and natural heirs have been deprived by her is not by itself suspicious circumstance to discard the same. It is not the case of the plaintiff that a wrong person has been identified as testator at the time of registration of the Will Ex. DW-2/A. Besides this, merely because of beneficiaries were present by the side of executant will also be not itself a ground to jump to the conclusion that the Will has been surrounded with suspicious circumstances. Registration of Will is a prima facie evidence to prove the legal formalities for due registration were duly completed by the Sub-Registrar. This is otherwise the statutory duty of the Sub-Registrar under the provisions of Indian Registration Act. In case the executant does not admit either the execution or the contents of a document presented for registration, the Sub-Registrar will not register the same and it will only be registered after the execution and the contents of the documents are admitted. The requirements of registration having been complied with stand established from the endorsement made by the Sub-Registrar while registering the Will on 30th June, 1977. In addition to the above facts, record of the case shows that the Will in question was executed on 15th June, 1977 and thereafter on 30th June, 1977 it was registered in the office of Sub-Registrar, Mandi. Smt. Shayama Devi-testator died on 30-I-I985, according to the plaintiff, and on 29-1-1985, according to the defendants. It was almost after more than 7 1/2 years after the execution and registration of the Will that the testator died, and the marginal witnesses were examined about 10 years after the execution of the Will. So, even if there are slight discrepancies in their statements, those would not make the Will suspicious or can be taken to be a ground for discarding their statements.
17. Now coming to the submission that there is no substantial question of law in the present appeal, No doubt, findings of fact recorded by the First appellate Court are not to be lightly interfered with under Section 100 of the Civil Procedure Code but that would not mean that in a given case this Court is precluded from examining the evidence for testing whether the same has been properly appreciated and considered or not. In a given situation, as in the present case, power of this Court to examine the evidence and after considering the same to reverse the findings of the first appellate Court is not barred under Section 100 of the Civil Procedure Code. For taking this view, I am guided by the judgment of the Hon'ble Apex Court reported as 1995 Supp (1) SCC 418, Mohd. Yunus v. Gurubux Singh. Further, the so called suspicious circumstances recorded by the lower appellate Court for holding the Will to be fictitious are not sustainable either on reading of evidence or by applying principles of law laid down by the Hon'ble Apex Court, this Court and other Courts. As such the contention raised in this behalf is hereby negatived.
18. No other point has been urged on behalf of the learned counsel for the parties.
19. As a result of the aforesaid discussion, the present appeal succeeds and accordingly the judgment and decree passed by the lower appellate Court is set aside and that of the trial Court is restored. However, in the facts and circumstances of the case, the parties are left to bear their own costs.