JUDGMENT 1. - This first appeal arises out of judgment & decree of the Additional District Judge No. 6, Jaipur City decreeing the plaintiff-respondent's suit. 2. The plaintiff respondent filed a civil suit for possession & mesne profits in respect of the property situated at Mohallah Kassaban, outside Chandpole Gate, Khetari House Road, Jaipur, (as described in para 1 of the plaint). It has been admitted in the plaint that the suit property belonged to one, Haji Wafati, who was son of Karim Bux, that Karim Bux & Immam Bux were brothers; Immam Bux's son was Peer Bux whose son is Abdul Latif alias Bundu. Bundu is the defendant. Thus, admittedly, the defendant & Haji Bafati are descendants of common ancestors. The suit property had come in share of Haji Bafati by virtue of a partition of ancestral property, and subsequently, it was transferred by him executing a will in favour of his wife, Smt. Noor Jahan alias Gendi, on January 2, 1971, before his departure to Pakistan - as stated in the plaint. And, thereafter, the suit property was transferred by Smt. Noor Jahan by way of sale on August 1, 1972 in favour of the plaintiff-respondent on a consideration of Rs. 10,000/- and as stated in the plaintiff's plaint, he (plaintiff) took possession of the sold property. 3. The plaintiff's case is that after taking over possession of the suit property from Smt. Noor Jahan by virtue of the sale, the defendant-appellant wrongfully dispossessed him from the property in question on August 2, 1972. So, the plaintiff sought relief of possession in addition to mense profits to the tune of Rs. 5100/- for the period from his disposession till the institution of the suit, and thereafter Rs. 100/- per month till the possession is restored by a decree. 4. The averments made in the plaint as to the possession were denied by the defendant and conversely, the defendant claimed his title over the suit property on the basis of adverse possession. The defendant pleaded in his written statement that the suit was not maintainable due to non-joinder of necessary parties. 4. The averments made in the plaint as to the possession were denied by the defendant and conversely, the defendant claimed his title over the suit property on the basis of adverse possession. The defendant pleaded in his written statement that the suit was not maintainable due to non-joinder of necessary parties. It had also been stated in the written statement that Smt. Noor Jahan was not wife of Haji Bafati, nor she married to Haji Bafati, nor Haji Bafati executed a Will on January 2, 1971 in favour of Smt. Noor Jahan, nor he had any right to execute such will and even if such a Will was not valid rather contrary to the provisions of the Mohammedan Law and thereby the Will was null & void in addition to nonest. 5. On the basis of the pleadings of the parties, the learned trial Court framed as many as 11 issues as under : 1- vk;k okn i= ds en ua0 1 esa of.kZr lEiRrh dk o.kZu lgh gS\ 2- vk;k oknh }kjk n'kkZbZ xbZ oa'kkoyh lgh gS\ 3- vk;k gkth oQkrh us fnukad 2-1-1971 dks viuh csxe uwjtgkWa mQZ xSanh ds gd esa fooknxzLr tk;nkn dh olh;r dh\ 4- vk;k fooknxzLr uksgjk dk rdklek en ua0 3 okn i= ds vuqlkj gqvk o dekj iwoZ Hkkx es oQkrh us cuk;k\ 5- vk;k oknh ds firk us eqlEerk uwjtgkWa ls fooknxzLr lEifRr 1972 eas 10]000@& [kjhnh ,oa mldk dCtk izkIr dj fy;k\ 6- vk;k izfroknh us fnukad 2-8-1972 dks okni= ds en ua0 7 esa of.kZr rF;ksa ds vuqlkj fooknxzLr lEifRr ls oknh dks csn[ky dj fn;k o Lo;a dCtk dj fy;k\ 7- vk;k oknh izfroknh ls :0 100@& ekfld ds fglkc ls :0 5100@& izkIr djus dk vf/kdkjh gS\ 8- vk;k okn dk ewY;kadu de fd;k x;k gS o U;k;&'kqYd de viZ;kIr gS\ 9- vk;k okn esa vehj o xQwj iq= cQkrh] equCcj dh csVk o iqf=;kWa Hkh vko';d i{kdkj gS\ 10- vk;k izfroknh dk iq[kkyQkuk dCtk }kjk fooknxzLr lEifRr dk ekfyd gS\ 11- nknjlh\ 6. The plaintiff produced as many as seven witnesses, namely, himself, PW1, Bhanwarlal, PW2, Abdul Gani PW3, Phool Mohd. PW4, Mohd. Ali PW5, H.C. Swami (PW6) & Hemant Kumar (PW7), in support of his case, whereas the defendant produced 11 witnesses, namely, himself, Bhura (DW2), Damodar (DW3), Habib (DW4), Umar-U-din (DW5), Khalil (DW6), Abdul Hamid (DW7), Mohd. The plaintiff produced as many as seven witnesses, namely, himself, PW1, Bhanwarlal, PW2, Abdul Gani PW3, Phool Mohd. PW4, Mohd. Ali PW5, H.C. Swami (PW6) & Hemant Kumar (PW7), in support of his case, whereas the defendant produced 11 witnesses, namely, himself, Bhura (DW2), Damodar (DW3), Habib (DW4), Umar-U-din (DW5), Khalil (DW6), Abdul Hamid (DW7), Mohd. Hussain (DW8), Ikramuddin (DW9) Vazir Bux (DW10) and Hanuman Bux (DW11) and then the plaintiff also produced three more witnesses Yamin (PW1), Kayam Khan (PW2) & Pabudan Singh (PW3). 7. After hearing both the parties, the learned trial Court decreed the suit of the plaintiff. Hence this appeal. 8. I may say at the very outset that the plaintiff in view of his pleadings in the plaint, claimed his title on the basis of the sale deed executed by Smt. Noor Jahan on August 1, 1972 and Smt. Noor Jahan sold the suit property claiming herself as owner thereof on the basis of a Will executed on January 2, 1971. Therefore, it was imperative on the part of the plaintiff to have proved execution of the Will made in favour of Smt. Noor Jahan who was vendor of the suit property after sale to the plaintiff who was vendee thereof. That being so, proof of execution of Will is of a paramount importance, and, therefore, let me atonce dwell on the principle of law on the instant context before dealing with merits of the case. 9. In Ramchandra Rambux v. Champa Bai, AIR 1965 SC 354 wherein the decisions in H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 & Shashi Kumar Banerjee v. Subodh Kumar Banerjee, AIR 1964 SC 529 were followed, it has been laid down that in all cases in which a will is prepared under circumstances which arouse the suspicion of the Court that it does not express the mind of the testator, or that it was prepared under highly suspicious circumstances, it is for the propounder of the will to remove that suspicion; and that, where it appears that the propounder has taken a prominent part in the execution of the will which confers substantial benefits on him, that itself is generally treated as a suspicious circumstance attending the execution of the will. Their Lordships further observed that the mode of proving a will does not ordinarily differ form that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Succession Act. According to their Lordships, where there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction the court before the court accepts the will as genuine, and in such a case the court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. 10. In order to judge the credibility of the witnesses, their Lordships held, the Court is not confined only to the way in which the witnesses have deposed or to the demeanour of witnesses, but it is open to it to look into the surrounding circumstances as well as the probabilities, so that it may be able to form a correct idea of the trustworthiness of the witnesses. The issue, whether the testator did execute a will and if he did, then whether it was duly attested by the witnesses, as held by their Lordships of the Apex Court, cannot be determined by considering the evidence adduced in the court separately from the surrounding circumstances which have also been brought out in the evidence, or which appear from the nature & contents of the document, itself. 11. In the instant case, the lerarned counsel for the appellant-defendant during the course of the arguments, referred to the following circumstances by describing them as highly suspicious attending to the execution of the will. that, Amir s/o Bafati had come to fetch his father but he was not called besides his other relatives including the defendant, at the time of execution of the will. that, the beneficiaries took active part in execution of the will. Babu s/o Noor Jahan from the earlier husband, procured witnesses. Even Noor Jahan was also present at the time of execution. that, the entire property was bequeathed to Smt. Noor Jahan and nothing was given to Amir & Gafoor ss/o Bafati, from his earlier wife. that, the wordings of the will are unnatural inasmuch as the age of Bafati was shown as 95 years whereas according to the plaintiffs witneaees he was 65 or 70 years of age. that, the entire property was bequeathed to Smt. Noor Jahan and nothing was given to Amir & Gafoor ss/o Bafati, from his earlier wife. that, the wordings of the will are unnatural inasmuch as the age of Bafati was shown as 95 years whereas according to the plaintiffs witneaees he was 65 or 70 years of age. that, the will is allegedly executed on January 2, 1971 but the seal of the deed writer on the will bears the date of execution as January 2, 1972 - as admitted by PW7 of which also there is no explanation. 12. Looking to the provisions of Mahomedan Law there cannot be any dispute that a person having faith in Islam, has been given limited rights of transfer of property by way of a will and if any will is executed against the provisions contemplated in the Mahomedan Law then certainly such a will would become invalid. According to the Mahomedan Law, a bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Smt. Noor Jahan being wife of Bafati (testator) claimed herself as an heir, but the respondents have miserably failed to prove that Amir & Gafoor who were admittedly sons of Bafati, had ever consented to bequest after the death of Bafati. The conclusion recorded by the trial court while deciding issue No. 4 that Section 190 of the Mahomedan Law (sic) applied to the case, appears to be wrong because, Section 190 applies only when a bequest is made in favour of a person who is not an heir. That apart, a bequest to a person who is an heir can be made to the extent of one third share and if it is more than that (⅓rd share) it can be done only when there is a custom or when there are no heirs or where the existing heirs consent to such a bequest after the death of the testator or where the only heir is husband and wife. In the instant case, the bequest has been made by the testator not only of the entire property by also in excess of more than his one third share in the property even otherwise. Thus, the impugned will (Ex.1) is invalid in its entirety. 13. In the instant case, the bequest has been made by the testator not only of the entire property by also in excess of more than his one third share in the property even otherwise. Thus, the impugned will (Ex.1) is invalid in its entirety. 13. There is no dispute that Bafati had died before the death of Smt. Noor Jahan. The plaintiff (PW. l) in his evidence admitted that Bafati had died in Pakistan after two or three years of his going to Pakistan meaning thereby that he died in the year 1973 or 1974. That apart, the defendant by producing death certificate of Bafati & Smt. Noor Jahan duly supported by affidavits of Bafati' son, alongwith an application under O. 41 R. 27, CPC, which have not been controverted by the plaintiff, and it being public documents its certified copy is admissible in evidence, has proved that Bafati died on 28.3.1973 in Pakistan while Smt. Noor Jahan died in 1972 in Jaipur, and that Bafati was alive when Smt. Noor Jahan died. In this state of evidence, Smt. Noor Jahan had no legal right, title or interest as it had not passed to her because the testator was alive. Thus, since the testator namely, Bafati was alive, Smt. Noor Jahan before his death (testator's) had no authority to sell the property bequeathed in her favour, during the life time of the testator (Bafati) to anybody else or even to the plaintiff, and moreover, after the death of Smt. Noor Jahan which is proved to have taken place before the death of Bafati (testator) who had made the bequest in her favour, as stated above, the said will (Ex.1) had become nonest and on the basis of the said nonest will (Ex.1), Smt. Noor Jahan had no right, title or interest over the suit property and thereby the sale made by her itself was full and void. 14. A look at the pedigree given by the plaintiff in pars 2 of the plaint shows that names of Amir & Gafoor who are admittedly sons of Bafati and have been living in Pakistan, as is evident from the evidence of PW. 1. 14. A look at the pedigree given by the plaintiff in pars 2 of the plaint shows that names of Amir & Gafoor who are admittedly sons of Bafati and have been living in Pakistan, as is evident from the evidence of PW. 1. Thus, when PWl himself admitted that Bafati had gone to Pakistan one or two days after execution of the impugned will; he died in Pakistan & has two sons-both of them had gene to Pakistan during the partition; he (Haji Bafati) died two or three years after he went from India & his son had come and went with him, then Haji Bafati's sons were and were necessary party to the suit as they had also share in their father's property including one bequeathed under will (Ex-1) but, since Ex.1 having been made by Bafati in favour Smt. Noor Jahan without consent of his other heirs, sons, Amir & Gafoor as proved on record, the will (Ex.1) was not valid. The reasons assigned by the trial Judge that since sons of Bafati Amir & Gafoor had gone to Pakistan ad have changed their nationality, they are and were not heirs of Bafati, are absolutely wrong and not sustainable. Neither any law has been cited by the learned trial Judge to sustain his reasons, ibid, nor in the Mahomedan Law there is any such law that if a person opts nationality of other country then he will be deprived from claiming any right in the property situated in a country from where he has migrated. Nothing has been shown during the course of arguments by the learned counsel for the plaintiff on the context. In view of the afore-narrated admission wrung out from the plaintiff's evidence, itself, Amir & Gafoor were alive at the time of Bafati's death and they were important persons whose consent for the purposes of the will in question executed in favour of Smt. Noor Jahan was required. But, neither the plaintiff-respondent nor Smt. Noor Jahan has ever claimed that such a consent was taken of Amir & Gafoor as is required under the Mahomedan Law, in a case where the will was executed of more than one third share of the testator in the bequeathed property. Thus, the suit was bad on account of non-joinder of necessary party. 15. The will has also been assailed questioning the evidence of the attesting witnesses. Thus, the suit was bad on account of non-joinder of necessary party. 15. The will has also been assailed questioning the evidence of the attesting witnesses. No doubt, the attesting witnesses must prove that the testator put his signatures before them and they attested the will before the testator, and the witnesses should also sign before each other. In this regard the learned counsel for the appellant drew my attention to the evidence of Phool Mohd. (PW 4) and Mohd. All (PW5). Phool Mohd. on the one hand admitted during cross-examination that he was not related to Haji Sahib; that his son Babu had taken him from Collectorate saying that his father was making a will in favour of his mother; that the boy was son of lady (Noon Jahan) but his father was different, but on the next breathe, he (PW4) stated that since Babu asked him to give evidence so he came. He (PW 4) also stated that one more witness was there who was a coolie whom they called Bundu. But, upon the will in question the same does not bear signature of Bundu as a second attesting witness. In view of the aforesaid circumstances, PW4 was an interested & false witness. Mohd. All (PW 5) did not say that he signed before the testator or that he put his signature A to B in the presence of PW4 or PW4 had signed before him. 16. Similarly, from the record it appears that at the time when the will was executed, Amir s/o Bafati was very much present in Jaipur and other relatives of Bafati were also alive and present in Jaipur but none from these persons was called by Bafati. It shows that Bafati desired to make a bequest in favour of Smt. Noor Jahan making it a secret one. This casts a serious doubt. 17. Further, Babu was son of Smt. Noor Jahan from her previous husband but was not son of Bafati as is proved on record inasmuch as it is also proved that Babu took active part in getting the will (Ex.1) executed in favour of his mother, and procured the witnesses, and further Smt. Noor Jahan was also very much present when the will was being executed in the Collectorate, as has been admitted by the plaintiff's witnesses. That apart, there is variation of date stated in Ex.1 and the signature of the deed writer. The will (Ex. 1) was executed allegedly on 2.1.1971 but the seal of the deed writer on the will shows the date of execution as 2.1.1972. There is no explanation as to such a significant fact and omission. Moreover, PW7 admitted that the will was executed on 2.1.1972 and not on 2.1.1971 as is claimed by the plaintiff. Therefore, in view of the suspicious circumstances stated above which surrounded the execution of the will, the will is also otherwise invalied, and has lost its sanctity and is null and void. 18. As regards giving of possession of the suit property by virute of the sale, there is conficting evidence on record. According to the sale-deed (Ex-3) dated 1.8.1972, while receiving the full sale price from the guardian of the purchaser the possession of the property had been given on the spot and the lock was put at 8 or 9 O'clock, but there is no cogent evidence as to the taking of possession of the house after its alleged purchases. There is only evidence that the lock was put but there is no evidence as to who put the lock. There are material contradictions on material particulars. As against this, from the documents namely, Ex. A.1 to A.9, Ex.A. & Ex.B in addition to oral evidence of the defendant, the possession of the defendant throughout is proved. 19. PW 1 deposed that the defendant changed the lock and put another lock and of which a report was also lodged on the same day when the way was closed but no action was taken. Curiously enough no such report (had it been made to police) has been produced. He further claimed in his evidence that the possession was given before the Registrar by handing over key, but there is no such endorsement of the Registrar on the said sale deed. The plaintiff has come with the case that he had been dispossessed from the suit property on 2.8.1972 but his such claim is falsified by his own evidence when he himself admitted that he came to know that the lock has been changed after 8, 9, 10 days when the Magistrate was taken to the site after putting the lock and he did not see the defendant changing the lock. That apart, a reasonable inference can also be drawn from his keeping silence over more than four years from his alleged dispossession on 2.8.72 till the filing of the suit on 24.11.1976. His silence casts the doubt on the theory of dispossession allegedly on 2.8.1972 and makes it clear that the theory of dispossession has been propounded in whole hos and anxiety to support the claim in the suit. Thus, the plaintiff has failed to prove that he took possession on 1.8.1972 and was dispossessed on 2.8.1972 or that Haji Bafati or his alleged wife Noor Jahan was ever in possession of the suit property. Conversely, the defendant and his witnesses proved that Haji Bafati or Smt. Noor Jahan never lived in the suit property and were living in another house of Bafati which was near the Masjid. From the evidence of appellant, it is proved that he had been living in the suit property since his childhood. Thus, once the respondent plaintiff failed to prove that he was in possessio of the house within 12 years then issue No. 10 ought to have been decided in favour of the appellant. 20. In view of the aforesaid discussion, the findings recorded by the trial court against the appellant are not sustainable in the eye of law. The impugned judgment decreeing the suit of the plaintiff is hereby quashed and set aside and the plaintiff's suit is dismissed with no order as to costs. The appeal shall stand allowed in favour of the appellant as indicated above. The plaintiff should comply with the directions stated in the stay order granted while admitting this appeal. 21. There will be no order as to costs of this appeal.Appeal allowed. *******