JUDGMENT Arun Kumar Goel, J.—Appellants-defendants have filed this appeal against the judgment and decree passed by Additional District Judge, Mandi in Civil Appeal No. 135 of 1985 dated 4 5-1987, whereby appeal of the plaintiff-respondent has been allowed and consequently his suit has been decreed for declaration and possession as a consequential relief, which was earlier dismissed by Senior Sub-Judge, Mandi vide his judgment in Civil Suit No. 17 of 1978 dated 29-6-1985. 2. Brief facts giving rise to this appeal are that the appellants (hereinafter referred to as the defendants), Dila Ram (hereinafter referred to as the plaintiff) and proforma respondents No, 2 to 6 are the sons, widow and daughters of deceased Shri Hira. According to the plaintiff, his father Hira son of Sadhu was owner in possession of the land as detailed in the plaint i. e. 2/3rd shares of the said land which measure 68-15-19 Bighas situate in Muhal Beri, Hadbast No. 178, Illaqa Bagra Tehsil Sadar District Mandi (hereinafter referred to as the suit land) which was ancestral. With a purpose to deprive the plaintiff of his right of inheritance from the suit land, a Will dated 10-12-1971 was stated to have been executed by Hira, whereby he willed away the suit land in favour of defendants No, 1 to 3 i. e. the appellants, this was the result of fraud, coercion, undue influence and mis-representation of facts made by defendants No. 1 to 3 solely with the object to completely oust and deprive the plaintiff of his right of inheritance and according to him, the deceased was not in sound disposing mind and, as such, the plaintiff is not bound by the said Will. Besides this, plaintiff further pleaded that the deceased could not have legally made the Will in question. Hira was stated to be 65 years of age and besides having no sound disposing mind was also old and infirm person. Case of the plaintiff further was that he alongwith the defendants was maintaining their deceased father. Shri Hira is stated to have died on 13-8-1977. 3. In the aforesaid background, plaintiff had prayed to declare the Will as null and void qua the rights of the plaintiff. Since the plaintiff had been ousted from joint possession, he has prayed for the same in the decree. Shri Hira is stated to have died on 13-8-1977. 3. In the aforesaid background, plaintiff had prayed to declare the Will as null and void qua the rights of the plaintiff. Since the plaintiff had been ousted from joint possession, he has prayed for the same in the decree. On the basis of the will in question mutation No. 181 was sanctioned on 19-1-1978 by Assistant Collector IInd Grade, The same was also sought to be declared as null and void 4. This suit was contested and resisted by the defendants who while disputing the claim of the plaintiff in its entirety further pleaded that the plaintiff had separated during life time of Hira, because he started purchasing land in the name of his minor sons The allegations of the property being ancestral was denied It was further stated by the defendants that the will in question has been executed by the deceased Hira who was in good health of his own and the plaintiff was fully aware of the circumstances. These pleas of the defendants were controverted in replication and finally the parties went to trial on the following issues : 1. Whether suit land is ancestral as alleged ? OPP 2. Whether valid will of the suit land has been executed by Hira in favour of defendants No. 1 to 3 ? OPD 3. Whether plaintiff and proforma defendants are entitled to succeed and inherit the suit land alongwith defendant No. 1 to in equal shares ? OPP 4. Relief. 5. Trial Court dismissed the suit of the plaintiff and in appeal preferred by the plaintiff before the lower appellate Court, the judgment and decree of the trial Court has been reversed and the suit of the plaintiff has been decreed, hence this appeal. 6. When the appeal was being argued before the lower appellate Court, during the course of arguments, learned Counsel for the plaintiff had given up the plea of the will Ex, D-l dated 10-12-1971 being the result of fraud, coercion, undue influence etc. and in fact he confined his case to the plea that when the said Will Ex. D-l was executed Hira was not in sound disposing mind. and in fact he confined his case to the plea that when the said Will Ex. D-l was executed Hira was not in sound disposing mind. During the course of the appeal also when this position was confronted to the learned Counsel appearing for respondent No. 1, he fairly stated that in the face of this concession the matter in appeal needs to be confined to the fact as to whether the deceased Hira was in sound disposing mind at the time of executing will Ex. D-l 7. In the aforesaid background, respective submissions made on behalf of the parties by the learned Counsel have to be examined as well determined in this appeal Shri Sharma appearing on behalf of the defendants has stated that there is no specific plea regarding the deceased being not of sound disposing mind to execute the will in question, according to him there is no evidence much less any circumstance brought on record by the plaintiff to sustain this plea on his parti. On the other hand, Shri Thakur appearing for the plaintiff has referred to para 3 of the plaint and according to him it constitutes sufficient pleadings to show that the deceased was not in sound disposing mind Shri Thakur has further pointed out that the will Ex. D-l is shrouded by suspicion, inasmuch as, that there is no mention of his client, as well as widow of the deceased Hira and according to him reading of the will further leads to irresistible conclusion that they do not exist in the world. According to him the suspicion cannot be removed by mere assertions on the part of the defendants that the will bears the thumb-impression of their father Hira and/or he was in sound disposing state of mind when he was stated to have executed the same. He further goes on to say that deceased Hira had certain reasons of his own to dis-inherift the plaintiff as well as his widow does not by itself remove the suspicion which makes the onus heavier. According to him, law is well settled that the propounder must remove all legitimate suspicious circumstances before such document propounded by him being the last will of the testator, is accepted. According to him, law is well settled that the propounder must remove all legitimate suspicious circumstances before such document propounded by him being the last will of the testator, is accepted. Shri Thakur further states that requirement of section 63 of the Succession Act read with section 68 of the Indian Evidence Act has not been established in this case. According tq him the will in question Ex D-l does-not meet the aforesaid test and therefore the judgment and decree passed by the court below deserves to be upheld and he has prayed accordingly, Hira predecessor in-interest of the parties to this appeal died on 13-84977, will Ex. D-l is dated 10-12-1971 and is scribed by DW 4 Sbri Badri Dass, Petition Writer and was witnessed by SShri Devinder Kumar and Sadhu Ram who both are marginal witnesses and both of them are now dead. 8. Dila Ram plaintiff appeared as his own witness and has made a general statement that his father used to remain ill and was weak, used to speak very slowly, his mind was not proper In these circumstances, his brothers got the property bequathed in their favour He does not state anything about the state of health of his father to sustain his plea regarding his not being of sound disposing mind and/or about the date of executing of the will Ex D-l i e. 10-12-1971. In order to show that the testator Shri Hira was not of sound disposing mind unless his mental faculty, health or otherwise of the deceased were not specifically proved by pointing evidence as well as by other materials on record, a general statement as made in the present case by PW 1 may not advance his case further. Plaintiff has further examined PW 2 Jiwa, who was brother of deceased Hira and he states that Hira sold his land at village Basaun for Rs. 700 and he purchased the suit land Rs 1,200 and balance of Rs 500 was paid by the plaintiff to Hira, this fact was disclosed to this witness by the plaintiff himself. He also makes a general statement that Hira was older to him and usually remained ill. 700 and he purchased the suit land Rs 1,200 and balance of Rs 500 was paid by the plaintiff to Hira, this fact was disclosed to this witness by the plaintiff himself. He also makes a general statement that Hira was older to him and usually remained ill. PW 3 is Bali Ram, he only states that for the purchase of land by Hira for Rs 1,200 which was purchased by him from Hukmia and Uttam, Rs, 500 was paid by the plaintiff PW 4 Khub Ram is a nephew of Hira testator and he also states that after the sale of land for Rs 700 to Jiwa PW, gave his land and was informed by Hira he has finalised a deal, for which Rs, 500 have been given by him to Dila Ram plaintiff at such time Hira was ill and according to him the testator used to walk a little and was suffering from T. B. This is the entire evidence led on behalf of the plaintiff. Dila Ram plaintiff respondent appeared on 30 12-1983 in rebuttal that his father never came to Mandi for execution of Will and according to him on the Will thumb-impression and signatures are forged and he never executed any Will. Against this evidence of the plaintiff, Ludar Mani defendant No. 2 appeared as DW 1 and he stated that his father remained ill for 3-4 years before his death but was physically and mentaly perfect and even during the ailment, according to him his father was suffering from Asthma and the Will in question had been executed by him out of his free accord and no fraud etc, was exercised upon him at the time of execution of the will in question He in his cross-examination has admitted that the plaintiff is his elder brother and Narainu was his mother, whereas other four defendants No. 5 to 8 are his sisters. DW 2 is Lalman, who knows the parties to this case and he knew deceased Hira also, DW 3 is Devi Rup. DW 4 is Badri Dass, Petition Writer who states that the will in question Ex, D-l was scribed by him and is entered in his Register at Sr. No 2250 dated 10-12-1971 According to him this Will was got scribed by Hira son of Sadhu. Deceased Hira firstly deposed his subject-matter to the witness and then he wrote Ex. DW 4 is Badri Dass, Petition Writer who states that the will in question Ex, D-l was scribed by him and is entered in his Register at Sr. No 2250 dated 10-12-1971 According to him this Will was got scribed by Hira son of Sadhu. Deceased Hira firstly deposed his subject-matter to the witness and then he wrote Ex. D-i and after its contents having read over and admitted by deceased Hira, he put his thumb-impression which was identified by him as Ex D 1/1. According to this witness, the marginal witnesses of Ex D-l were Devinder Kumar and Sadhu Ram Both of whom are now dead This DW 4 has further gone on record to say that the deceased was of sound disposing mind and possessed good health when he executed the Will in question In his cross examination, he states that Devinder Kumar was apprentice petition writer, whereas Sadhu Ram was working as a clerk with a lawyer He has further denied the suggestion of the plaintiff that Sadhu Ram was a person who was doing the job of identification on receipt of money and at the same time he has also denied the suggestion of the plaintiff that Hira did not fix thumb-impression on the Will in question DW 5 is Chander Shekhar son of one of the marginal witnesses Devinder Kumar, who has identified his fathers signatures on Ex D-l marked as Ex. D-l/3. 9. Simply because in the will Ex. D-I, which is admittedly a registered document, there is no mention of respondent No 1 as well as of the widow of Shri Hira by itself is no ground. Similarly identification of the deceased Hira testator having been made by Sadhu Ram agent of Shri Naresh Chand Seghal, Advocate is also not a ground to say that it is a suspicious circumstance, it is no bodys case that the agent who identified the deceased before the Sub Registrar at the time of presentation of the Will Ex. Similarly identification of the deceased Hira testator having been made by Sadhu Ram agent of Shri Naresh Chand Seghal, Advocate is also not a ground to say that it is a suspicious circumstance, it is no bodys case that the agent who identified the deceased before the Sub Registrar at the time of presentation of the Will Ex. D-l for registration, a wrong person has been identified, A perusal of the Will Ex D-l shows that there is an endorsement of the Sub-Registrar made while registering the Will that the contents of the document were read over and explained to Hira, who is identified by Sadh Ram agent of Shri Naresh Chand Sebgal, Advocate who in the enjoyment of his full senses has admitted the execution and his thumb-impression on the document to be correct Taking total view of the circumstances, it is Hot possible to sustain the judgment of the lower appellate Court. In fact it has over played some circumstances which it has regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounder i e, appellants In taking this view, I am supported by the judgment of apex Court in Rdaindra Nath Mukherjee and another, Appellants v. Panchanan Banerjee (dead) by L Rs. and others, Respondents, AIR 1995 SC 1684 In this behalf it may not be out of place to specify here that firstly there is no specific pleading and secondly after the examination of defendants evidence, no evidence worth the name has been brought on record by the plaintiff to the effect that what was the state of mind of the deceased Hira on or about 10 12-1991 the date when the Will in question Ex D-l had been brought on record When Shri Vijay Thakur was confronted with this situation, after referring to the statements of PWs 1 to 4, he pointed out thata general statement has been made regarding the health of the deceased which indicates that he was suffering from Asthma which fact is even admitted by DWs 1 and 3. In these circumstances, the lower appellate Court was not justified in allowing the appeal of the plaintiff and consequently decreeing the suit holding the will Ex. D-l to be inoperative and further passing a decree for possession Mr. In these circumstances, the lower appellate Court was not justified in allowing the appeal of the plaintiff and consequently decreeing the suit holding the will Ex. D-l to be inoperative and further passing a decree for possession Mr. Vijay Thakur has further drawn my attention to the judgment of the apex Court in Jaswant Kaur, Appellant v Amrit Kaur and others. Respondents SLJ Himachal Pradesh 1978-2, on which reliance has also been made by the lower appellate Court. Suffice to say that following the latest judgment, the appeal of the appel lants must succeed. 10. After having given up the plea of fraud etc. in the lower appellate Court, and in the absence of there being any pleadings followed by proper evidence, the decree passed by the trial Court dismissing the suit of respondent No. 1 calls for no interference. 11. On the other hand the Will Ex D-l stands proved by the statements of DW 1 and DW 4 scribe of the Will and DW 5 son of one of the deceased marginal witness. Besides this, the deceased testator Hira appeared to have a valid reason for executing the Will in question in favour of his three sons to the exclusion of the plaintiff as well as not mentioning him as also his wife and daughters, because there is evidence on record to show that the plaintiff during the life time of his father had started purchasing landed property in favour of his sons and the deceased appeared to have resented to the same Not only this, it is further the case of the plaintiff as well as defendants 1 to 3 that deceased Hira had separated the plaintiff "during his life time for the aforesaid reasons. 12. In the aforesaid circumstances, there is hardly any ground to dispute the genuiness of the Will in question Ex, D-l so on this ground also the plaintiff must fail. 13. No other point has been urged by the learned Counsel for the parties in this appeal. 14. As a result of the aforesaid discussion, present appeal succeeds and accordingly the same is allowed consequently setting aside the judgment and decree passed by the lower appellate Court and restoring the judgment and decree passed by the trial Court and thereby dismissing the suit of the plaintiff Dila Ram with no order as to costs. Appeal allowed.