JUDGMENT : ( 1. ) THIS is an appeal against the judgment passed by the Additional district Judge, Neemuch decreeing the plaintiff-respondents suit for possession. ( 2. ) THE facts giving rise to this appeal are that one Suganchand and nandlal, the adoptive father of the appellant, were real brothers. The respondents Nos. 2 to 5 are the daughters of Suganchand. Nandlal, the adoptive father of the appellant, and Suganchand were living separately. Nandlal was living in Neemuch and Suganchand, being in Railway service was at Udaipur. The house in suit, situated in Neemuch, is the ancestral house, and as Nandlal, the father of the appellant, was residing in Neemuch, he was in possession of this house during his lifetime, and after his death it has been in possession of the appellant. ( 3. ) THE respondents filed the present suit on the allegations that in 1907 nandlal was in need of money, and for that reason Nandlal and his brother suganchand both mortgaged the suit house with possession with Lala Fulchand for a loan of Rs. 5000. The amount was obtained for Nandlal and it was used by him. It was alleged that as Nandlal was unable to repay the amount he executed a deed of surrender of his share in the house in favour of Suganchand on 26th September 1911. This document was registered on 24th October 1911 and from that date Suganchand became the absolute owner of the suit house. According to the plaintiffs, the two brothers were already living separately and they had no other ancestral property, and that after this deed of surrender executed by Nandlal, Suganchand became the absolute owner of the house in dispute, on 31st October 1923 Suganchands name was entered in the municipal records, and the house continued to remain in his name till 28th January 1958 In september 1914 the mortgage amount was paid by Suganchand and the house was redeemed. But out of affection and sympathy for his brother Nandlal, suganchand allowed him to live in the house. It is alleged that taking advantage of the fact that he was in possession of the house and that Suganchand was away at Udaipur, the defendant-appellant made an application to the municipal Committee, Neemuch, on 28th January 1958. In that application he made false representations and got his name mutated in the municipal record. It is alleged that taking advantage of the fact that he was in possession of the house and that Suganchand was away at Udaipur, the defendant-appellant made an application to the municipal Committee, Neemuch, on 28th January 1958. In that application he made false representations and got his name mutated in the municipal record. It was alleged that after the death of Suganchand the plaintiff respondents nos. 2 to 5 being the daughters of the deceased inherited the suit house along with Naginibai, the widow of Suganchand. On 25th February 1961 Naginibai made a gift of her interest in the property in favour of the plaintiff-respondent no. 1 Ghhaganlal and thus he also became a co owner of the house in suit. On 23rd July 1961 the plaintiff respondents gave a notice to the defendant and then filed the present suit. The plaintiff-respondents also claimed mesne profits at the rate of Rs. 150/- per month. ( 4. ) IN his written statement, the defendant-appellant contended that the suit house belonged to his adoptive father alone and not to Suganchand and the house always remained in possession of Nandlal. The deed of surrender alleged to have been executed by Nandlal in favour of Suganchand was also denied. It was contended that if at all any such document was executed, it was bogus and there was no intention to act on that document. It was also contended that after its mortgage with Lala Fulchand the house was in fact redeemed by Nandlal himself with his own money. The defendant-appellant further contended that as his possession was for more than twelve years from 26th September 1911, the plaintiff respondents suit was barred by time. It was also contended that the deceased Suganchand has made a will of the property and therefore, the plaintiffs could not file a suit. ( 5. ) AFTER the written statement, the plaintiff-respondents filed a rejoinder, and as regards the will left by the deceased Suganchand it was contended in the rejoinder that Suganchand had once executed a will on 25th November 1934 but later that was cancelled and subsequently he had executed another will but that as it was not attested in accordance with law, it is not effective. ( 6. ) IT was also contended in the written statement that Naginibai, the widow of the deceased Suganchand, was a necessary party to the suit. ( 7. ( 6. ) IT was also contended in the written statement that Naginibai, the widow of the deceased Suganchand, was a necessary party to the suit. ( 7. ) ON these pleadings, various issues were framed and after trial the suit was decreed. It is against this judgment and decree of the trial Court that this appeal has been filed. ( 8. ) SHRI S. D. Sanghi, learned counsel for the appellant, contended that the plaintiff respondents claimed to be the heirs of the deceased Suganchand under the Hindu Succession Act, 1956, and filed the present suit on that basis although a will executed by the deceased Suganchand is in existence and has been filed at the trial and marked as Ex. G-5. He contended that in the original plaint the plaintiffs did not mention anything about the will but when the question was raised in the written statement the plaintiffs contended by way of rejoinder that the will was not properly attested and could not, therefore, be said to be effective. According to the learned counsel, it was necessary for the plaintiffs to establish that the will is not effective and it was only then that they could claim any interest in the property of the deceased Suganchand under the provisions of the Hindu Succession Act. Learned counsel contended that according to the will the plaintiffs have no interest in the property left behind by the deceased Suganchand and consequently the plaintiffs have no locus standi to file the present suit. He further contended that the burden of establishing that the will is not properly attested was on the plaintiffs. In support of his contentions, learned counsel relied on Mahabati Kuer v. Raghunandan Prasad ( AIR 1958 Pat. 249 .), Hemchandra v. Matilal (AIR 1934 Cal. 68) and Satipada v. Annakali Debya ( AIR 1953 Cal. 462 . ). He also contended that the plaintiff respondents did not lead any evidence to prove that the will is not properly attested and the only evidence on the side of the plaintiffs is that of one Khemchand who in his deposition admitted that he had talked to the attesting witnesses but did not examine them, according to the learned counsel, Khemchand happened to be the chief person prosecuting the litigation on behalf of the plaintiffs. Khemchand also admitted that he knew that if the will is not found to be properly attested, then alone the plaintiffs suit could continue. Learned counsel contended that admittedly the will was executed by Suganchand and there is evidence on record to indicate that, and in the absence of any proof that the will was not properly attested the burden of which lay on the plaintiffs, the presumption would be that the will was properly executed, and consequently the plaintiffs had no locus standi to file the suit and on this ground alone the suit deserved to be dismissed. He also contended that Naginibai, the widow of the deceased Suganchand, was a necessary party to the suit and without joining her the suit could not proceed. ( 9. ) AS regards merits, learned counsel contended that the evidence in the case indicates that Nandlal, the father of the appellant, was indebted and the release deed was executed in order to save the property, but the parties had no intention to act upon it. According to the learned counsel, this is borne out by the fact that although the document was executed in 1911, still no steps were taken for getting the house mutated in the name of Suganchand till 1923, when, as the evidence discloses, certain decrees were passed against nandlal- Learned counsel contended that it was only to save the property from being sold in execution of those decrees that twelve years after the deed of surrender the house was mutated in 1923 in the name of Suganchand. He also contended that apart from the appellant and before him his father being in possession, it is also clear from the evidence that the appellant and before him his father used to receive rent from the tenants of the house, which goes to show that the appellant, and before him his predecessor in title that is his adoptive father, continued to be in possession of the house even after the execution of the deed of release and, therefore, the plaintiffs suit was clearly barred by limitation. As regards the release of the house from mortgage, by reference to a number of documents the learned counsel contended that those documents clearly go to show that it was Nandlal himself who made the payments and got the house redeemed from the mortgage. As regards the release of the house from mortgage, by reference to a number of documents the learned counsel contended that those documents clearly go to show that it was Nandlal himself who made the payments and got the house redeemed from the mortgage. According to the learned counsel, the plaintiff-respondents have filed certain stray statements of account and have chosen not to file the accounts which apparently Suganchand was expected to be keeping and that on the basis of those stray accounts it could not be concluded that it was Suganchand who paid the mortgage money and got the house redeemed. He also contended that the application for mutation made by the appellant in 1956 could not be said to have been made on any false representation, as in fact even 1923 an application was made on the same ground as in 1958. Learned counsel contended that this gave no cause of action to the plaintiff-respondents. ( 10. ) SHRI S. L. Garg, learned counsel for the respondents Nos. 2 to 5, contended that Naginibai, the widow of Suganchand, having executed a gift of her share in the property in favour of the plaintiff-respondent No. 1, she ceased to have any interest in the property and consequently she was not a necessary party to the suit. He, however, also made an application for her being joined and he contended that even by joining her the trial of the suit need not be reopened. ( 11. ) AS regards the will, it was contended that if the defendant-appellant wanted to rely on the will, it was for him to prove that the will was properly attested. He relied on Harmes v. Hinkson (AIR 1946 PC 156.), Bhansilal v. Bhuridevi ( AIR 1964 Raj. 39 .), and Balappa Tippanna v. A. Malappa (AIR 1960 Mysore 234.) ( 12. ) REGARDING merits, learned counsel contended that from the statements of accounts filed by the plaintiffs it was clear that mortgage amount was paid by Suganchand and it was he who got the house redeemed from mortgage. By reference to a number of such statements, he contended that these items talley. He further contended that after payment of the mortgage amount the deed of surrender executed by the deceased Nandlal goes to show that he relinquished all his rights in the house in dispute. By reference to a number of such statements, he contended that these items talley. He further contended that after payment of the mortgage amount the deed of surrender executed by the deceased Nandlal goes to show that he relinquished all his rights in the house in dispute. According to the learned counsel, this being a registered document it could not be doubted and the execution of the document is abundantly proved by the evidence on record, and that the argument that the document was not intended to be acted upon was without any substance. He referred to the evidence to show that in fact the evidence about Nandlal being indebted or that the property was in danger because of that indebtedness for the first time appeared to be somewhere in 1920, and contended that in these circumstances the execution of the document in 1911 could not be said to be for the purpose of protecting the property from being sold in execution of the decrees. According to the learned counsel, after the execution of the deed of surrender the possession of Nandlal and after him that of the appellant was purely permissive as the deceased Nandlal being the brother of suganchand he was permitted to occupy the house as Suganchand was at that time residing in Udaipur. The only act, according to the learned counsel, which challenged the status was an application made for mutation in 1958 and the suit filed thereafter was within limitation and that, therefore, neither could it be contended that the suit was barred by limitation nor could it be said that the appellant defendant had acquired any title by adverse possession. Learned counsel contended that certain pages of statements of accounts, which were found by the plaintiff respondents, have been filed by them as after Suganchands death they came into possession of some papers only left by the deceased; but the account books of Nandlal have also not been filed although there is no reason why those account books could not be filed. According to the learned counsel, the evidence about payment to the mortgagee, which is relied on by the appellant, only goes to show that money was sent from Udaipur by suganchand although it might have been deposited by Nandlal, and that in any event there is nothing in the evidence to indicate as to how and from where Nandlal paid the mortgage amount when he, according to the appellant himself, was indebted during the period from 1911 onwards. Learned counsel contended that the evidence clearly indicates that as and when necessary, monies were being sent from Udaipur by Suganchand. As regards the receipt of rent from the tenants in the house, learned counsel contended that the evidence indicates that certain rents were received by Suganchand from the tenants of the house. He also contended that in any event Suganchand and nandlal being brothers having good relations, which is further borne out from the fact that even after the deed of surrender Suganchand permitted Nandlal to occupy the house, the collection of rents sometimes by Nandlal could only be said to be for and on behalf of Suganchand. He, therefore, contended that the suit was rightly decreed by the Court below. ( 13. ) P. W. 3 Girdharilal in his deposition admitted that the will (Ex. C/4 and C/5) has been executed by the deceased Suganchand. About ex. C. 5. the witness admitted that the signatures on this will are that of suganchand. He stated that Ex. C. 5 indicates that there were two attesting witnesses one Khandelwal and the other being Gopal Sharma. But he denied to have any knowledge about them. He admitted that he knows about the will executed in 1959, which is Ex. C/5. He also stated that Suganchand himself told him that he had executed a will and had appointed him also as one of the trustees. The witness further states that the deceased Suganchand had shown him the will Ex. C/5 and told him that he had executed that will and had made all the three sons-in-law as trustees and the witness as the convenor of the trustees. This evidence of the witness goes a long way to establish the execution of the will Ex. C. 5 by deceased Suganchand and that even much after its execution Suganchand himself told this witness that he executed the will making all his sons-in-law as trustees. ( 14. This evidence of the witness goes a long way to establish the execution of the will Ex. C. 5 by deceased Suganchand and that even much after its execution Suganchand himself told this witness that he executed the will making all his sons-in-law as trustees. ( 14. ) ANOTHER witness P. W. 10. Khemchand in this deposition stated that the will Ex. C/5 cannot be given effect to. He stated that the signatures of the deceased Suganchand and those of the attesting witnesses are not of the same date although the witnesses had put an endorsement that Suganchand had put his signature before them. In his cross-examination the witness stated it was not necessary for him to lead any evidence about the will Ex. G. 5. He admits that if the will is found to be properly executed, the plaintiffs suit could not proceed as in that case it were the trustees under the will Ex. C/5 who alone could file the suit. He also admitted that he knew both the attesting witnesses Khandelwal and Gopal Sharma and knows where they reside and had also talked to them. The witness stated that he wanted to produce these witnesses, but later he did not think it fit to produce them on behalf of the plaintiffs. The witness admitted that one of the attesting witnesses Gyarsilal khandelwal used to write letters on behalf of Suganchand. This evidence leaves no doubt that the will was executed by Suganchand and in that will he made his three sons-in-law as trustees to execute the will and also made one girdhari as a trustee and convenor. This will purports to have been attested by two witnesses who have signed after a typed endorsement stating that "babu Suganchand has signed before us. " The first attesting witness has put his signature on 25th May 1959 whereas the other attesting witness, namely, gopal Sharma, has signed on 20th July 1959, and the deceased Suganchand has put no date beneath his signature. For attestation, what is contemplated is that the executant should either sign before the attesting witnesses or that the attesting witnesses, before attesting the document, should obtain a personal acknowledgement from the executant that he has executed the document. In any event, none of these attesting witnesses has been examined. For attestation, what is contemplated is that the executant should either sign before the attesting witnesses or that the attesting witnesses, before attesting the document, should obtain a personal acknowledgement from the executant that he has executed the document. In any event, none of these attesting witnesses has been examined. The only material about the will appearing in the evidence is the evidence of Girdhari and Khemchand, which clearly goes to show that the will is executed by the deceased Suganchand. Not only that, much after the execution of the said will Suganchand had told Girdhari that he had executed the will and made his sons-in-law as trustees. After its execution, Suganchand had also shown the will to Girdhari. These circumstances appearing in evidence rule out all suspicion about the execution of the will. ( 15. ) IT cannot also be disputed that in the will the plaintiffs have not been given any share in the property. In accordance with the will, therefore, they have no right or locus standi to file the present suit. The plaintiff respondents have filed this suit on the basis of their right to inherit under section 8 of the Hindu Succession Act. Section 8 reads thus- "8. The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter:- (a) Firstly, upon the heirs, being the relatives specified in Class I of the Schedule; (b) Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule; (c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased. " Therefore in order that the heirs as specified in the above provision have any right to inherit any property of a deceased male Hindu, it is necessary to establish that he died intestate. ( 16. ) IN the present case, admittedly Suganchand died leaving behind a will. The only allegation made by Khemchand in the plaint is that the will was ineffective as it was not properly attested. ( 16. ) IN the present case, admittedly Suganchand died leaving behind a will. The only allegation made by Khemchand in the plaint is that the will was ineffective as it was not properly attested. But it cannot be doubted that the burden of proving that the will is ineffective lay primarily on the plaintiffs because it is only then that they can claim to have any interest in the property of Suganchand as his heirs. In Satipada v. Annakali Debya, a division bench of the Calcutta High Court held that- "the argument put forward by Mr. Sen Gupta loses right of the presumption which attaches in cases of wills ex facie regular. The presumption in such cases is based on the maxim omnia Praesumuntur rite esse acta, that is, the presumption of the regularity of note which have been done. " The following passage from Wright v. Sanderson was in the Calcutta case quoted with approval :- "the decisions cited in argument, and referred to by the Lord Chancellor, show that the Judges who have presided in the Court of probate have long been accustomed to give great weight to the presumption of due execution arising from the regularity ex facie of the testamentary papers produced where, no suspicion of fraud had occurred. In so doing they have, in my opinion, acted rightly and wisely. " ( 17. ) AS the evidence of two witnesses referred to above clearly goes to show that there is no suspicion of fraud about the execution of the will and nothing of the kind has been suggested, there appears to be no doubt that a presumption arises that the will has been properly attested. The plaintiff-respondents, on whom the burden lay to prove that the will was not properly attested, have failed to lead any evidence. As regards the burden of proof, in Hemchandra v. Matilal a division Bench of the Calcutta High Court held :-"in some cases this allegation, negative in form, is made by the plaintiff, in others by way of defence; the rule applicable to all such cases is that, where a claim or defence rest upon a negative allegation, the one asserting such claim or defence is not relieved of the onus probanil by reason of the form of the allegation or the inconvenience of proving a negative. " Similar is the view about burden of proof taken in Mahabati Kuer v. Bashunandan Prasad. ( 18. ) LEARNED counsel for the respondents relied on Harms v. Hinkson to contend that the burden of proof lay on the person who propounded the will. The principal inundated in this case indicates that the party propounding a will must satisfy the conscience of the Court that the instrument so propounded is the last will of a free and capable testator. This proposition is enunciated because a party, who seeks to propound a will in his interest, must establish that the will was executed by the testator. As a matter of fact, as discussed earlier, it is not the case of a party interested propounding the will. All the more, there are no suspicious circumstances or any doubt about the execution of the will by the testator. Consequently, the decision of the Privy council in no way helps the case of the plaintiff-respondents. ( 19. ) LEARNED counsel for the respondent also relied on Ghansilal v. Bhuridevi. In that case, the plaintiff claimed title to the property in question on the basis of a registered gift, and it was laid down that the plaintiff must prove that the gift was executed and it was valid gift. In the facts of that case, that view appears to be consistent because the plaintiff, who derives his title from a gift, has to establish the gift not only in fact but in law as well. But that decision does not in any way help the respondents. ( 20. ) ANOTHER case relied on by the learned counsel is Bappalla Tapanna v. A. Mallanna. This case pertain to a deed of gift, and it was observed that if the execution of a document is challenged, it must be proved at least by examining one of the attesting witnesses. It has also been observed that if the execution is not challenged, then it may not be necessary to examine the attesting witnesses. In any event, this decision also does not render any support to the contention raised by the learned counsel for the respondents. As already discussed above, the execution of the will is admitted and it cannot be doubted. In any event, this decision also does not render any support to the contention raised by the learned counsel for the respondents. As already discussed above, the execution of the will is admitted and it cannot be doubted. The only thing that the plaintiff respondents want to allege is that the will not having been attested in accordance with law, it could not be given effect to. This was a specific question raised by the plaintiff-respondents, and, therefore, in view of the language of section 8 of the Hindu succession Act, without establishing that the will is not effective the plaintiffs cannot succeed. Consequently, it cannot be doubted that the burden lay on the plaintiff respondents to establish that the will although executed is not properly attested and, therefore, cannot be given effect to. The plaintiffs have chosen not to lead any evidence. Consequently, we are left only with the fact that the will was executed by the deceased Suganchand. There are no circumstances to indicate that it was not executed by free will. The evidence of Girdharilal, as discussed above, repeals all possibilities of any doubt or suspicion about the execution of the will, and it is also not the allegation of the plaintiff-respondents. Consequently, the will Ex. C. 5 having been held to have been executed by the deceased Suganchand with his own free will, the presumption about its due execution naturally follows in the absence of any other evidence to the contrary. Consequently, the will executed by the deceased Suganchand is found to have been executed and presumed to be attested in accordance with law. ( 21. ) IN the face of the finding about the will, it cannot be doubted that the respondents had no locus standi to file the present suit. This position, in the facts and circumstances of the case, is not in dispute. Consequently, the plaintiff-respondents suit cannot be decreed. In view of this finding, it is not necessary for us to go into other questions raised in this appeal. ( 22. ) CONSEQUENTLY, the appeal is allowed, the decree and judgment passed by the Additional District Judge, Neemuch are set aside and the suit filed by the plaintiff respondents is dismissed. The appellant shall be entitled to costs of this appeal as well as in the Court below. Counsels fees is per schedule if certified. Appeal allowed.