JUDGMENT P. K. Palli, J.—This second appeal has been filed by the defendant against the judgment of reversal, passed by the learned first Appellate Court whereby the judgment and decree passed by the learned trial Court, dismissing the suit of the plaintiffs was set aside and instead a decree in their favour was passed granting the declaration to them that they are rightful Legal Representatives of their deceased brother, Prithi Singh and were consequently entitled to get the possession of the land held by him. The plaintiffs filed a suit seeking declaration to the effect that they are legal heirs of Prithi Singh, deceased, who was their brother. It is they who succeed to the property left by him and that the defendant had nothing to do with it A decree of possession was also claimed against the defendant, who is said to have come to occupy the land left by the deceased Prithi Singh. It is said, that the deceased was unmarried and died issue-less on 1-12-1982 and that the defendant on the strength of a forged and fictitious will, took forcible and illegal possession of the landed property. According to the plaintiffs no will was ever executed in favour of the defendant by the deceased Prithi Singh and the said will has been manipulated in collusion with the scribe and attesting witnesses. 2 The case set up by the defendant is that Prithi Singh executed a valid will in his favour as he had served the deceased in his life time and it was out of love and affection and for the services rendered, that the will was executed by the deceased in his favour. It is further said that he came to occupy the land and was in his possession even in the life time of the deceased, Prithi Singh. 3. The learned trial Court, after trial of the suit, dismissed the same and having dis-satisfied from the judgment and decree passed by the learned trial Court, plaintiffs filed first appeal that came to be heard and decided by the learned Additional District Judge, that is first appellate Court and vide impugned judgment, the learned first appellate Court has held that the will was shrouded with suspicious circumstances and the suit of (he plaintiffs had been wrongly dismissed.
Consequently, the appeal was allowed and the plaintiffs granted a declaration that they are owners of the land in question as heirs of their deceased brother Prithi Singh and further the plaintiffs have been granted a decree for possession of the suit land. 4. The learned Counsel appearing for the defendant/appellant, while assailing the impugned judgment, contends that the will is a valid document, executed out of the free will of testator and that the same was neither forged nor fictitious document. It is contended that the defendant is the nephew of the testator and is not a stranger and that the deceased Prithi Singh after having served the army, came back and lived with him and died a couple of years thereafter and during this period, it is the defendant who was serving the deceased and it was out of simple love and affection that the property came to be willed in his favour. The learned Counsel further submits that all basic requirements for the proof of the will, as provided under section 63 of the Indian Succession Act, have been fully proved and that the learned first appellate Court has gone wrong in setting aside the judgment and decree passed by the learned trial Court. 5. In reply, the learned Counsel appearing for the respondents/ plaintiffs, submits that the learned first appellate Court has pointed out as many as 12 reasons to discard the will in question and there were serious and conflicting versions given by the witnesses that have been produced on behalf of the defendant and thus the cumulative effect of the attending circumstances leads to a conclusion that the will was not genuine and trustworthy. 6. After hearing learned Counsel for the parties and after going through the record, I am of the opinion that there is no merit in this appeal. 7. The will in question is dated 15th November, 1982 and is Ex, D-l on record. Admittedly, the testator died on J-12-1982 and there are lot of discrepancies in his age which is differently given in the will by the witnesses and in Ex A-l, that is death certificate. Somewhere it is said to be 68 years and then 55 years and 58 years Be that as it may. The fact remains, that there is no evidence that the deceased ever lived with the defendant.
Somewhere it is said to be 68 years and then 55 years and 58 years Be that as it may. The fact remains, that there is no evidence that the deceased ever lived with the defendant. The case set up by him in evidence is that the deceased was a child when his mother died and his father entered second marriage and two plaintiffs, who are brothers, were born out of the second wife. It is set up by the defendant that he and his parents brought up the deceased and after serving the army, he came and lived with them. In case that was the position, then there should have been documentary evidence to prove this assertion, in the shape of voter list, ration card, address in the bank account etc. Further, I have carefully gone through the statement of defendant recorded as DW 1, who has said that the will was given to him 2 or 3 days before his death by Prithi Singh and he does not know how much is the land, how the will was written and on what date and who was present there. This version stands belied by DW 4, Chagar Singh, who is the marginal witness of the will and happens to be the brother of the defendant (real sisters son). I further find that both the attesting witnesses to the will are not from the village and no one from the village Chari was associated when the will was scribed. In my view these witnesses are only chance witnesses and the possibility of the defendant in procuring their presence is not ruled out Further, I find in the statements of the witnesses examined by the defendant that they have given different dates in respect of the execution of the will. 8. The learned Counsel for the defendant laid great stress on the statement of the bank official, wherein it has been stated that the mother of the defendant used to get the pension of the deceased. That does not advance the case of the defendant. He might had thought to give it to the mother of the defendant for the reasons best known to him. 9. Om Prakash, scribe has said that the witnesses were brought by the testator, whereas DW 4 has contradicted this witness and stated otherwise.
That does not advance the case of the defendant. He might had thought to give it to the mother of the defendant for the reasons best known to him. 9. Om Prakash, scribe has said that the witnesses were brought by the testator, whereas DW 4 has contradicted this witness and stated otherwise. Om Prakash, while appearing as DW 2, states that he did not know the marginal witnesses, whereas DW 3 states that he knows him for the last several years and that he was called by his son to his house. One thing more cannot be lost sight of is that the will was got registered from the Sub-Registrar after the death of testator, I just cannot understand as what was the necessity for getting the will registered. The defendant might have felt its necessity so as to add genuineness to the said document. The defendant in his statement also faltered when he said that the will was given to him by the deceased Prithi Singh on 15-12-1982. Admittedly, Prithi Singh is said to have died on 1-124982. The statements of these witnesses when read carefully, creates a doubt about the genuineness of the will or that the same was not scribed out of the free will of the deceased. There is evidence to the effect that the deceased was not keeping good health and was so weak that he could not go to Pharamshala for getting the will scribed or registered as he was unable to walk. The effect of all these circumstance puts one to think that the will is shrouded in suspicion. I It was for the defendant to remove all these doubts, which he failed to remove. The case set up by the defendant is that he has been in possession of the land in question since the life time of the deceased. If that be so, the revenue record should have been placed before the Court to substantiate this plea In its absence an adverse inference has to be drawn and the case set up by the plaintiffs has to be accepted that the defendant came to occupy the land in question forcibly after the death of Prithi Singh, I cannot refrain observing that the learned trial Court has given no reasons nor discussed any evidence in its judgment while dismissing the suit.
The statements of the witnesses produced on behalf of the defendant should have been scrutinised properly before the conclusion was arrived at, I do not know from where the trial Court held that the defendant is in possession of land since the life time of Prithi Singh, whereas there no document in support thereof. The learned trial Courts are cautioned that in such matters a detailed examination of the evidence placed on record is desired. 10. Consequently, I do not find that the judgment rendered by the first appellate Court suffers from any illegality or infirmity. The same is based on sound reasonings arrived at on appreciation of entire evidence. No interference is called for. The appeal has no merit and is consequently ordered to be dismissed. No order as to costs. Appeal dismissed.