JUDGMENT Arun Kumar Goel, J.—This is a defendants appeal filed against the judgment and decree passed by Additional District Judge (I), Kangra at Dharamshala in Civil Appeal No 254 of 1985 dated 4-34989, By means of impugned decree, the suit of the plaintiffs has been decreed for possession of the suit land measuring 3250 kanals 16 marlas, hut at the-same time the claim of the plaintiffs for recovery of Rs 1500/- has been disallowed. Parties in this judgment are being referred to as plaintiffs and defendants. 2. Facts which are not in dispute in this case are that Smt. Mahan Devi widow of Sohnu was admittedly the owner of the property in question. Her uterine brother was one But a whose daughter is Chain Devi, defendant No.1 and Hoshiar Singh, defendant No. 2 is the husband of defendant No. 1 and son-in-law of the said Buta. Further facts which emerge from the record are that Rai Singh and Surjit Singh, plaintiffs filed a suit for possession against the defendants as well as for recovery of Rs. 500/-, According to the plaintiffs, they became owners of the property in suit by means of an unregistered will (Ext P-1) dated 24-3-1982 which was claimed by them to have been executed by Smt Mahan Devi being the absolute owner thereof, while being of sound disposing mind in the presence of the witnesses PWs 3 and 4 This will had been scribed by Des Raj (PW-2). It was further pleaded that the mutation of inheritance vide mutation No. 354 in favour of defendants is wrong. After the attestation of this mutation defendants were stated to have removed some utencils valued at Rs 1500/-, Since the defendants failed to admit the right of the plaintiffs despite having been asked many a times, hence the necessity of filing the suit. 3. This suit was resisted and contested by the defendants on the plea that the Will set up by the plaintiffs is fictitious and the deceased Mahan Devi had executed a registered Will (Ext D 2) on 5-11-1971 as f both of them were serving her At the same time, plaintiffs claimed that they were rendering service to Smt Mahan Devi This claim of the plaintiffs was repudiated by the defendants. It was further pleaded that the Will in favour of the defendants being a registered Will could only be cancelled by an unregistered document and further the deceased Testatrix Mahan Devi was not in a fit state of mind and health to have executed the Will dated 24-3-1982 (Ext. P-1). In the aforesaid background, trial Court framed the following issues :— 1. Whether the suit is not maintainable ? OPD. 2. Whether Smt. Mahan Devi had executed a valid Will dated 24-3-1982 in favour of the plaintiffs, if so, its effect ? OPP. 3. Whether Smt. Mahan Devi executed a valid Will dated 5-11-1971 in favour of the defendants? OPD. 4. Whether the Will dated 24-3-1982 is the result of fraud ? 4-A. Whether the plaintiffs are entitled to recover Rs. 1500/- from the defendants, as alleged ? OPP. 5 Relief. 4. Issues No. 1, 2, 4 and 4-A were held in the negative Issue No. 3 was held to be in favour of defendants thereby holding that the deceased Mahan Devi had executed a valid Will on 5-11-1971 (Ext, D-2) in favour of the defendants. As a result of these findings, the suit of the plaintiffs was dismissed. Against this judgment and decree passed by the trial Court, plaintiffs filed an appeal before the first appellate court. The lower appellate court allowed the appeal and held that the Will (Ext, P-1) dated 24-3-1982 was a genuine and valid document and on this basis decree for possession was passed in favour of the plaintiffs and against the defendants, but at the same time, the claim of Rs. 1500/- was turned down by the first appellate court. 5. It is in the aforesaid circumstances that the defendants filed the present second appeal in this court and the plaintiffs/Cross objectors have filed Cross objections No. 231 of 1989 wherein they have prayed for a decree for recovery of Rs. 1500/- which had been denied by the first appellate court. 6. Mr Bhupender Gupta, learned Counsel for the defendants has urged that the first appellate court has fallen into grave error while passing the impugned judgment and decree in favour of the plaintiffs and holding that the Will (Ext P-1) is a valid and genuine document. 1500/- which had been denied by the first appellate court. 6. Mr Bhupender Gupta, learned Counsel for the defendants has urged that the first appellate court has fallen into grave error while passing the impugned judgment and decree in favour of the plaintiffs and holding that the Will (Ext P-1) is a valid and genuine document. He further submitted that at no point of time, the deceased Mahan Devi was being served by any of the plaintiffs, who were not the near relations of the deceased .The claim made by plaintiff No.1 that the deceased was his Nani (Maternal grand-mother) that too somewhere in seventh degree, was not made out from the evidence on record. Mr. Gupta also urged that there was enough evidence on record to establish that prior to defendants, father of defendant No.1, Shri Buta was rendering service as well as looking after the deceased Mahan Devi and in whose favour she had executed a registered Will (Ext D-1 dated 26-4-1962. Since sometime before the execution of the Will (Ext D-2) there was some defect in the eyes of Buta and the defendants were looking after and maintaining the deceased, therefore, it was in these circumstances that out of love and affection, the Will (Ext, D-2) dated 5-11-1971 came to be executed and got registered by the deceased Mahan Devi, He further urged that there is enough evidence on record to hold that the marriage of defendant No.1 with defendant No. 2 was performed at the house of the testatrix and it was both of them who were looking after and taking care of the deceased Mahan Devi. 7. Next contention raised on behalf of the defendants was that the deceased Mahan Devi had executed a registered will more than 35 years ago in favour of Buta, father of defendant No.1 and father-in-law of defendant No.2. However, in the circumstances explained hereinabove, this will was superseded by a subsequent Will (Ext. D-2). With reference to these two documents, Mr. Gupta submitted that the deceased Mahan Devi was well-aware of the significance of getting a document registered. Besides this, in Ext D-2, there is a clear cut mention of the earlier Will (Ext. D-1) in favour of Buta. On this basis, he submitted that the Will (Ext. D-2). With reference to these two documents, Mr. Gupta submitted that the deceased Mahan Devi was well-aware of the significance of getting a document registered. Besides this, in Ext D-2, there is a clear cut mention of the earlier Will (Ext. D-1) in favour of Buta. On this basis, he submitted that the Will (Ext. P-1) propounded by the plaintiffs was nothing, but a fictitious document put up by the plaintiffs without its having any effect on the Will (Ext. D-2) as claimed by the plaintiffs 8. It was also urged by Mr. Bhupender Gupta that the deceased Mahan Devi was shown to be 90/92 years of age in Ext. P-1 itself and within less than a month of the execution of this document, she died. Deceased Mahan Devi being not in a fit state of mind and health to have executed Ext. P-1 is stated to have never executed the said document. In addition to this, it was urged that the deceased Mahan Devi in terms of Exts. D-l and D-2 was aware that the registration of document did carry some sanctity. Had the Will propounded by the plaintiffs (Ext. P-1) been a genuine document as claimed by them, in the ordinary course of things, there would have been atleast a mention of Ext D-2 therein may be non-registration of Ext P1 by itself be not a ground to discard the same. A few other discrepancies were also pointed out with reference to statements of PWs 2 to 4 and the manner and mode of executing the Will (Ext. P-l) on behalf of the defendants. 9. On the other hand, learned Counsel for the plaintiffs has stoutly controverted all the pleas of raised on behalf of the defendants and has submitted that Ext. P-l is the last testamentary disposition of the deceased Mahan Devi bequeathing her entire property in favour of the plaintiffs in a fit state of mind and health As such the pleas raised to the contrary or the Will (Ext. P-1) being shrouded by suspicious circumstances was vehemently denied by the plaintiffs According to them, the Wills (Exts. P-l is the last testamentary disposition of the deceased Mahan Devi bequeathing her entire property in favour of the plaintiffs in a fit state of mind and health As such the pleas raised to the contrary or the Will (Ext. P-1) being shrouded by suspicious circumstances was vehemently denied by the plaintiffs According to them, the Wills (Exts. D-1) and D2) propounded by the defendants were never executed by the deceased Mahan Devi bequeathing her property either in favour of Buta and/or in favour of defendants No.1 and 2 as claimed by them Without conceding and in the alternative it was submitted that even if the defendants were successful in proving the Will (Ext D 2), still the Will (Ext. P-1) is latter in point of time and is in accordance with law was liable to be upheld. It was also urged that non-mentioning of Ext. D-2 while executing Ext. P-1 and non-revocation of the former did not in any manner affect the due execution of the Will m favour of the plaintiffs and its non-registration cannot in any manner be made a ground to attack the same. Since Mahan Devi had not executed Exts. D-1 and D-2, as such there was no occasion for her having mentioned about either of the two in the Will (Ext. P-1) executed in favour of the plaintiffs. With reference to the statements of PWs. 2 to 4 as well as Rai Singh, plaintiff, it was submitted that the execution of the Will (Ext, P-1) stands duly proved by the deceased Mahan Devi. 10. When a reference is made to the evidence on record, plaintiff No.1 himself while appearing as PW 1 admits that the marriage of defendant No. 1 with defendant No.2 had taken place at the residence of the deceased Mahan Devi. He further admitted that both the defendants were residing with the deceased Mahan Devi, who had also been residing in their own village. Another salient feature which is evident from the evidence on record is that the deceased Mahan Devi at the time of execution of the Will (Ext. P-1) was about ninety years of age. He further admitted that both the defendants were residing with the deceased Mahan Devi, who had also been residing in their own village. Another salient feature which is evident from the evidence on record is that the deceased Mahan Devi at the time of execution of the Will (Ext. P-1) was about ninety years of age. DW1 Smt. Chain Devi has clearly stated that during her life time, her father was rendering service to the deceased Mahan Devi and since one year prior to his death, the eye-sight of her had deteriorated and he was unable to see, therefore, she and her husband started rendering service to the deceased and it was in those circumstances that the will came to be executed She has denied the plaintiffs suggestion that the father of Smt. Mahan Devi and Buta (father of this witness) were from separate fathers. According to her, the Will (Ext. D-2) was handed over to her by Mahan Devi 4/5 months prior to her death. She admitted herself to be in possession of the property of the deceased Mahan Devi Identical is the statement of Hoshiar Singh (DW-2), who has supported the case of the defendants in its material particulars and has corroborated the statement of DW 1 so far the factum of his marriage to the said witness as well as both of them rendering service to the deceased is concerned. DW 3 Chander Prakash is the scribe of the Wills (Exts. D-1 and D-2) who has proved the execution of the same and has stated that it was scribed by him at the instance of Smt. Mahan Devi who had signed both these documents at the time of execution of each one of them after having fully understood the contents thereof. 11. DW 4 is Sadhu Ram who is a marginal witness of the Will (Ext. D-1) and has also proved his signatures on endorsement of Ext. DW 4/A signed by him after thumb-impression was put by Smt. Mahan Devi before Tehsildar having admitted the same to be correct. Similar is the statement of this witness regarding Ext, D 2, will in favour of the defendants and on this also he has proved the endorsement Ext. PW 4/B having been signed by him. DW 4/A signed by him after thumb-impression was put by Smt. Mahan Devi before Tehsildar having admitted the same to be correct. Similar is the statement of this witness regarding Ext, D 2, will in favour of the defendants and on this also he has proved the endorsement Ext. PW 4/B having been signed by him. It is in his statement that Buta was earlier living in village Kalara and then started living with his sister and marriage of Chain Devi having taken from the house of Smt. Mahan Devi has also been proved by him After the marriage, the defendants started living in the house of Smt. Mahan Devi Service was being rendered before the marriage of the defendants by Buta and after his death by both these defendants. 12. DW 5 is Mohar Singh who was Sarpanch at the time of execution of the Will (Ext. D-2). According to him, Ext D-2 was got scribed by Mahan Devi from Chander Prakash, Petition Writer in his presence which was read over by the Petition Writer to the executant. After admitting the same to be correct, Mahan Devi put her thumb-impression in the presence of this witness and DW 4 and it was signed by both of them i.e . DW 4 and DW 5 in the presence of the deceased Mahan Devi Mahan Devi was in sound disposing mind at that time and she could understand her well being Before the Tehsildar, Mahan Devi had admitted the execution of the Will (Ext. D-2) in question and the endorsement in this behalf vide Ext DW 5/A has been proved by this witness. In cross-examination to DW 5, suggestion given on behalf of the plaintiffs that in fact, Mahan Devi had one to execute the power of attorney and the Will (Ext. D-2) was fraudulently got executed, was denied. DW 6 is Ramila who was proved on record that defendant No. 1 Chain Devi was brought up by Mahan Devi and her marriage was also performed from her house. After the marriage, both the defendants started living in the house of Mahan Devi and they were rendering service to her. This witness has further stated that Rai Singh and Mahan Devi were living separately 13. After the marriage, both the defendants started living in the house of Mahan Devi and they were rendering service to her. This witness has further stated that Rai Singh and Mahan Devi were living separately 13. Against the aforesaid evidence of the defendants in support of the Will (Ext D-2), plaintiff No 1 has appeared as PW 1, who has stated that the Will (Ext. P-J) was executed by Mahan Devi in his favour when she was of sound disposing mind and thereafter no Will had been executed by her. He has given a detail of certain other articles which are stated to have been removed by the defendants after the attestation of mutation in question. Thus, on that basis decree of Rs. lt500 was prayed for, 14. PW2 is Des Raj scribe of the Will (Ext. P-1) in favour of the plaintiffs. He stated that he scribed the Will (Ext P-1) at the instance of Mahan Devi, who after admitting the same to be correct put her thumb-impression on the Will in the presence of the witnesses namely, Karam Chand, Des Raj and Rai Singh and at the same time Chhajju Raj (PW 3) and Karam Singh (PW 4) put their respective signatures on the Will in question According to PW 2, he was sent for by Mahan Devi a day earlier through Karam Chand This witness has stated in the opening line of his cross-examination that the Will of Mahan Devi was executed in her village at Riali, whereas PW 1 has stated that this Will was executed at village Badukhar. Similarly, in the statements of PWs. 1 and 2, there is discrepancy as to putting of thumb-impression by the deceased Mahan Devi on the Will (Ext. P-1) PW 1 has stated that the thumb-impression of Mahan Devi was obtained from the pad, whereas PW 2 has stated that the ink for obtaining the thumb impression was taken from the ink-pat. Presence of Rai Singh plaintiff No.1 is also admitted. All the arrangements i.e. of having obtained judicial paper, ink and pea etc, according to PW 1, had been made by Mahan Devi herself. 15. For proving the Will (Ext. P-1) statements PW 3, Chhajju Ram and PW 4 are also there, but the fact remains as to what weightage is to be attached to both these statements. All the arrangements i.e. of having obtained judicial paper, ink and pea etc, according to PW 1, had been made by Mahan Devi herself. 15. For proving the Will (Ext. P-1) statements PW 3, Chhajju Ram and PW 4 are also there, but the fact remains as to what weightage is to be attached to both these statements. PW 3 stated that there was no pad there on the spot and probably, the thumb impression was put by Smt. Mahan Devi alongwith ink, though in the first of his statement, he has stated that he does not re-collect this fact, DW-3 had gone to the house of the deceased Mahan Devi after having received the message through whom has not been mentioned by him, PW 4 Karam Chand has also made an identical statement in support of the case of the plaintiffs. According to this witness, Chhajju Ram had been asked by Mahan Devi in his presence to call Des Raj When this witness had gone to call Des Raj, this had taken place one day prior to the execution of the Will. Both PW 3, Chhajju Ram and PW 4 had been informed regarding her intention to execute the Will so that both of them are present. 16. Another fact that after the marriage of the defendants, both of them were living with Mahan Devi which was at Mauza Riali, is also proved on the record. It has come in the statement of DW-3 that the distance between Riali and Badukhar is 1-1/4 Kms 17. This is the entire evidence on record and in the circumstances as well as facts of the case k has to be decided as to what weight has to be attached to the evidence examined by each of the parties 18. Deceased Mahan Devi being about 90 years of age is not in dispute when the Will (Ext P-1) is stated to have been executed by her According to defendants, she was not in a sound disposing mind. There is ample evidence on record for this Court to hold that defendant No.1 prior to her marriage was living with Mahan Devi, her marriage with defendant No. 2 was performed from the residence of Mahan Devi. After their marriage both the defendants were residing with Mahan Devi. There is ample evidence on record for this Court to hold that defendant No.1 prior to her marriage was living with Mahan Devi, her marriage with defendant No. 2 was performed from the residence of Mahan Devi. After their marriage both the defendants were residing with Mahan Devi. Although the plaintiff Rai Singh while appearing as PW 1 docs not admit this fact, but besides the statements of PWs 1 and 29 PW 3 has also admitted this fact. In addition to this, the state of mind and health of deceased Mahan Devi coupled with her old age on the basis of the evidence on record and the death of Mahan Devi within less than a month of the execution of Will (Ext. P-1) is a vital circumstance for this Court to hold that the deceased Mahan Devi was not in a sound disposing mind to have executed the Will (Ext.. P1) and thus, the execution thereof is not free from doubt. Looking to the age of the deceased, ordinarily it was expected that the persons from the neighbourhood of the executant should have been associated in the process of scribing as well as execution of the Will (Ext. P-1), who were the best witnesses. There is no such evidence on record. In addition to this, both the defendants were not only residing with the deceased Mahan Devi but were also rendering service to her. This fact has been proved on record from the evidence led by the plaintiffs as well as by the defendants. In the face of this position, there was neither any occasion much less cause for Mahan Devi to have executed the Will (Ext. P-1) in favour of the plaintiffs on 243-1982 as claimed by them, 19. How and in what manner plaintiff No. 2 was rendering service to become a beneficiary under the Will (Ext. P-1) is another circumstance to repel the claim of the plaintiffs. There is not a word said in support of this aspect of the case. The said plaintiff No. 2 has not appeared in the witness box nor there is anything on the file to show as to what relationship he had near or remote with Smt Mahan Devi deceased. There is evidence on record to show that the house of plaintiff No. 1 was near the house of Smt. Mahan Devi. The said plaintiff No. 2 has not appeared in the witness box nor there is anything on the file to show as to what relationship he had near or remote with Smt Mahan Devi deceased. There is evidence on record to show that the house of plaintiff No. 1 was near the house of Smt. Mahan Devi. In case any of the plaintiffs was rendering service to Smt. Mahan Devi, evidence from the neighbourhood of Smt. Mahan Devi was the best evidence which has not been produced by the plaintiffs. 20. Another reason to discard the Will (Ext. P-1) is that the deceased Smt Mahan Devi had executed a registered Will (Ext. D-2) in favour of the defendants as far back as on 5-11-1971 This Court in the peculiar facts and circumstances of this case is of the view that the plaintiffs were not care of this Will i.e. (Ext D-2) and/or of the earlier Will in favour of Banta (Ext. D-1) being there in existence As such no mention of either of these two Wills had been made in Ext. P-1. No doubt, it was not necessary to do so, but looking to the fact that Smt. Mahan Devi was i well-aware of the significance of registration, ordinarily these Will (Exts. D1 and D-2) would have found mention in Ext. P-1 had it been executed by Smt, Mahan Devi as claimed by the plaintiff. 21. It was urged on behalf of the plaintiffs that the Will (Ext. P-1) being the last Will of the testatrix, the same needs to be respected. No doubt, the wish of the testatrix needs to be respected. his can only be done provided it is held that the Will (Ext. P-1) was the last testamentary disposition made by Smt Mahan Devi deceased. Lastly, it was urged by Mr. Sood that even if this Court comes to the conclusion that the findings recorded by the Court below are erroneous, then this Court while exercising powers under section 100 of the Code of Civil Procedure will not interfere with such erroneous findings. 22. On the other hand, learned Counsel for the plaintiffs urged that this is a case of gross mis-appreciation of evidence by the lower appellate going to the root of the matter, therefore, interference is justified. 23. 22. On the other hand, learned Counsel for the plaintiffs urged that this is a case of gross mis-appreciation of evidence by the lower appellate going to the root of the matter, therefore, interference is justified. 23. Ordinarily, this Court would have been reluctant to have interfered with the findings recorded by the lower appellate Court so far those relate to the proof of Ext.-P-1 being the last Will executed by Mahan Devi in favour of the plaintiffs. But in view of the discussion regarding evidence produced by the parties, it is clear that the lower appellate Court has not at all appreciated the evidence in its right perspective but has further mis- appreciated the same. That being so, this Court cannot be a silent spectator to such findings and uphold those. Accordingly, the submission made on behalf of the plaintiffs in this behalf is hereby rejected. No other point had been urged in support of this appeal. As a result of the above discussion, the present appeal deserves to be allowed. Consequently, R.S.A. No. 155 of 1989 is allowed and the Cross-Objections No. 231 of 1989 are hereby dismissed. While doing so, the suit of the plaintiffs stands dismissed with no order as to costs. Appeal allowed. -