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2001 DIGILAW 205 (HP)

LATA SWARAN v. DHANI RAM

2001-08-23

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—The defendant-appellants having lost before the trial Court and the First Appellate Court, are in second appeal against the judgment and decree of learned Additional District Judge, Kullu dated November 2, 1994. 2. Facts necessary for the disposal of this appeal are: 3. One Prem Kaur alias Chhabilu was the owner in possession of the properties subject matter of dispute. The properties are situate in the District of Kullu and Mandi. 4. Prem Kaur was married to one Sardar Kuldip Singh in the year 1947. No issue was born out of this wedlock. Kudlip Singh died in the year 1981. On the death of Kuldip Singh, Prem Kaur inherited his properties. She also purchased some other properties in her own name. She had adopted defendant-appellant Lata Swaran. Lata Swaran contracted love marriage with defendant-appellant Nand Singh Jhalla, then resident of Rajasthan. Defendants-appellants Jeetender Singh Jhalla, Shakunt Jhalla and Kumari Chand Jhalla are children of Nand Singh Jhalla and Lata Swaran. 5. Plaintiff-respondent Budh Ram was real brother of Prem Kaur. Respondents Dhani Ram, Chandu Lal, Rewat Ram and Dayalu Ram are sons of Budh Ram. Respondents Kala Devi and Leela Devi are daughters of Budh Ram, respondent Asha alias Thakri is daughter of Dayalu and grand-daughter of Budh Ram. 6. The case of the plaintiff-respondent: After the death of Kuldip Singh, Lata Swaran and her husband Nand Singh Jhalla started harassing Prem Kaur with a view to grab her property. Nand Singh Jhalla wanted to dispose of the property of Prem Kaur. Relations between them became so strained that he set on fire the workshop of Prem Kaur styled as "Kerala Tyres" at Kullu. Nand Singh Jhalla was prosecuted under Section 436 of the Indian Penal Code. He was convicted and sentenced to rigorous imprisonment for one year and also to pay fine. However, he was later acquitted in appeal. Prem Kaur fed with the harassment, executed a will on March 25, 1987 in favour of plaintiff-respondents and defendant Nos. 1 to 3, namely, Jeetinder Singh Jhalla, Shakunt Jhalla and Kumari Chand Jhalla. Nand Singh Jhalla had some inkling that Prem Kaur is going to execute a will disinheriting him and Lata Swaran. However, he was later acquitted in appeal. Prem Kaur fed with the harassment, executed a will on March 25, 1987 in favour of plaintiff-respondents and defendant Nos. 1 to 3, namely, Jeetinder Singh Jhalla, Shakunt Jhalla and Kumari Chand Jhalla. Nand Singh Jhalla had some inkling that Prem Kaur is going to execute a will disinheriting him and Lata Swaran. Unmindful of the fact that the will had already been executed, Nand Singh Jhalla and Lata Swaran shot Prem Kaur dead on April 17, 1987 to frustrate any effort on the part of Prem Kaur to disinherit them. A case under Section 302 read with Section 114 of the Indian Penal Code and Section 27 of the Indian Arms Act was registered against them. Both of them were prosecuted and convicted by the learned Sessions Judge. They, however, were acquitted in appeal by the High Court. 7. It is the case of the plaintiff-respondents that pursuant to the last will of Prem Kaur dated March 25, 1987, the plaintiffs have inherited the properties of deceased Prem Kaur situated in District Kullu fully described in para 2(i) to (iv) of the plaint in accordance with the shares stipulated in the will. Similarly, defendants No. 1 to 3 inherited the property situated in District of Mandi fully described in para 2(v) to (viii) of the plaint. The plaintiffs, consequently are the owners in possession of the properties described in para 2(i) to (iv) of the plaint, hereinafter referred to as "suit property". It is the further case of the plaintiffs that defendants, after the death of Prem Kaur, set up a forged and fictitious will alleged to have been executed by Prem Kaur on August 23,1967 in favour of defendant No. 1 Jeetinder Jhalla. It is pleaded that this will is forged and fictitious and was never executed by Prem Kaur and even if such will was executed, then the same stands revoked in view of the last and final will of Prem Kaur dated March 25, 1987. 8. The defendants, on the basis of forged will, got a mutation of the disputed properties sanctioned in favour of defendant Jeetender Jhalla. These mutations were attested without notice to the plaintiffs. The plaintiffs when came to know about the attestation of the mutations, filed an appeal before the Collector. 8. The defendants, on the basis of forged will, got a mutation of the disputed properties sanctioned in favour of defendant Jeetender Jhalla. These mutations were attested without notice to the plaintiffs. The plaintiffs when came to know about the attestation of the mutations, filed an appeal before the Collector. The Collector set-aside the mutations on June 10, 1988 in case No. 25-ADM/16DC of 1987-88. The case was remanded back to the Revenue Officer for making fresh inquiry. 9. According to the plaintiffs, defendants have no right, title or interest over the "suit property" which is owned and possessed by the plaintiffs on the basis of the last will and testament of Prem Kuar. It is pleaded that the relations between Prem Kaur and defendants Lata Swaran and her husband Nand Singh Jhalla were strained to the breaking point. The plaintiffs faithfully rendered services to deceased Prem Kaur till her death and also managed her household and agricultural affairs. It is in these circumstances that Prem Kaur executed the will in favour of plaintiffs qua "suit property". It is the further case of the plaintiffs that the defendants started interfering with the possession of the plaintiffs over the suit property under the garb of the forged will. 10. In this background, the plaintiffs prayed for a declaration that the will executed by Prem Kaur on March 25, 1987 is legal, valid, final and binding on the parties. The alleged will set up by the defendants is null and void and inoperative. A further declaration was sought that the plaintiffs are the owners in possession of the suit property. Plaintiffs also prayed for a restrain on the defendants from interfering with the possession of the plaintiffs over the suit property or otherwise cause any unlawful interference. 11. The defendants resisted the suit. Allegations were controverted. The execution of the will by Prem Kaur on March 25, 1987 is denied. The case of the defendants is that Prem Kaur adopted defendant No. 1 Jeetender Jhalla as her son and executed a will in his favour on September 21, 1977 (Exhibit DW4/A). This will was registered on September 22, 1977 in respect of her entire movable and immovable properties. Defendant Jeetender Jhalla was brought up by Prem Kaur from the very date of his birth. Other defendants, it is pleaded, were also cordially living with Prem Kaur in her house. This will was registered on September 22, 1977 in respect of her entire movable and immovable properties. Defendant Jeetender Jhalla was brought up by Prem Kaur from the very date of his birth. Other defendants, it is pleaded, were also cordially living with Prem Kaur in her house. It is denied that the defendant Lata Swaran and Nand Singh Jhalla ever harassed Prem Kaur. According to the defendants, there was no occasion to do so as Prem Kaur had already executed a valid will in respect of her entire properties in favour of defendant Jeetender Jhalla son of Lata Swaran and Nand Singh Jhalla. The defendants pleaded that will set up by the plaintiffs is forged, fictitious and was not executed by Prem Kaur in her life time. It is the plaintiffs, maintain defendants, who with a view to grab the property of Prem Kaur, falsely implicated Lata Swaran and her husband Nand Singh Jhalla in a murder case of which they were ultimately acquitted by the High Court. 12. The defendants maintain that plaintiffs have no right, title or interest on the suit property, particularly in view of the last will of Prem Kuar dated September 21,1977 pursuant to which will, defendant Jeetender Jhalla is the owner in possession of the property in dispute. In the alternative, it is pleaded that even if will in favour of defendant No. 1 is not proved, then defendant Jeetender Singh Jhalla being adopted son of Prem Kaur, alone is entitled to inherit the properties of Prem Kaur. 13. On the pleadings of the parties, several issues were settled by the learned trial Court. Learned trial Court found that valid will was executed by Prem Kaur on March 25, 1987 in favour of the plaintiffs in respect of the suit properties. So far will executed by Prem Kaur on March 21, 1977 is concerned, it was found by the learned trial Court that the will was not the result of "free and independent exercise of discretion by Smt. Prem Kaur". It was also found that there was simply a provision in the will that in case Prem Kaur pre-deceased her husband, properties were to go to defendant Jeetender Jhalla. It was also found that there was simply a provision in the will that in case Prem Kaur pre-deceased her husband, properties were to go to defendant Jeetender Jhalla. The preliminary objections of the defendants that: (a) the suit was not properly valued for the purposes of court fees and jurisdiction, (b) suit was not maintainable and (c) the property was not properly identified, did not find favour with the trial Court. Learned trial Court also concluded that defendant No. 7 having committed murder of Prem Kaur was not entitled to inherit her properties. The suit was accordingly decreed. 14. Dis-satisfied, the defendants approached the learned Additional District Judge, Kullu in a first appeal. Learned Additional District Judge, vide his judgment impugned, found that deceased Prem Kaur executed a valid will (Ext. PW3/A) on March 25, 1987 in favour of the plaintiffs/ respondents and defendants 1 to 3. Consequently, the plaintiffs are owners in possession of the suit properties. Learned first appellate Court reversed the findings of the trial Court that will (Ext. DW4/A) in favour of defendant No. 1 was not validly executed and held that though Prem Kaur executed the will Exhibit DW3/A but the same was "superseded by her last and final will Exhibit PW3/A subsequently". The first appellate Court also found that as Nand Singh Jhalla and Lata Swaran were acquitted of the murder change by the High Court, therefore, under the law of succession, there was no impediment in the way of Lata Swaran to inherit the properties of Prem Kaur. 15. The appeal was dismissed. 16. Unable to reconcile, the defendants are in second appeal under Section 100 of the Code of Civil Procedure. 17. This appeal was admitted on November 6,1996 "on the substantial questions of law framed by the appellant and annexed with the memorandum of appeal/ The questions of law annexed with the memorandum of appeal are : (1) Whether without giving a positive finding regarding factum of possession, can a decree for permanent prohibitory injunction be passed in favour of the plaintiffs-respondents when there \ is ample material on the record showing the possession of the defendants-appellants over the suit property? (2) Whether the registered will which has duly been proved on record could be held to have been revoked by a later alleged will due execution and attestation thereof was not established on record? (2) Whether the registered will which has duly been proved on record could be held to have been revoked by a later alleged will due execution and attestation thereof was not established on record? (3) Whether it is not necessary to expressly revoke the previously executed will for a document alleged to have been claimed to be the last testament of the deceased, do the absence of recital to this effect in the alleged document, are the suspicious circumstances which would be a determining factor of the alleged document being considered as the last will of the deceased? (4) Whether the judgment and decrees passed by both the Courts below are vitiated on account of non-consideration of Exhibit DW4/A, the record of the Document Writer which was appears to have been forged apparently? (5) Whether the onus to prove due execution and attestation and also to explain the suspicious circumstances remain on the pro-pounder of the will or the Caveator is to discharge the onus in the absence of evidence of attestation and execution of the will? (6) Whether the initiation of the Criminal proceedings are the determining factor of revocation of the earlier will in favour of the persons accused on the criminal offences when they stand duly discharged of the criminal charges by the court of competent jurisdiction? 18. I have heard Mr. Bhupinder Gupta, learned Senior Counsel for the appellants and Mr. K.D. Sood, learned Counsel for the respondents. I was also taken through the record by the learned Counsel for the parties. 19. The only question which arises for consideration is validity of the will executed by Prem Kaur on March 25, 1987. 20. So far earlier will dated September 21, 1977 Exhibit DW1/A is concerned, the same was held to be valid though superseded by the will of March 25, 1987. This finding has not been agitated by the plaintiffs/ respondents. Questions No. 2, 3, 4, 5 and 6 21. The main thrust of the arguments of Mr, Bhupinder Gupta, learned Senior Counsel for the appellants was that will Exhibit PW3/A set up by the plaintiffs is vitiated by several suspicious circumstances which have not been satisfactorily explained by the plaintiffs and, therefore, the will cannot be said to be validly executed by the plaintiff. The main thrust of the arguments of Mr, Bhupinder Gupta, learned Senior Counsel for the appellants was that will Exhibit PW3/A set up by the plaintiffs is vitiated by several suspicious circumstances which have not been satisfactorily explained by the plaintiffs and, therefore, the will cannot be said to be validly executed by the plaintiff. Learned Counsel also contended that the registered will executed in favour of the defendant No. 1 (Exhibit DW4/A) was proved to be validly executed which had not been revoked specifically by the will Exhibit PW3/A. Therefore, will Exhibit PW3/A holds the field. 22. So far the execution of the will (Ext. PW3/A) by Prem Kaur on March 25, 1987 set up by the plaintiffs is concerned, the same has been discussed at length by both the trial Court and the first Appellate Court. Both the Courts have referred to the strained relations between Prem Kaur and Lata Swaran as well as her husband Nand Singh Jhalla. Both the Courts found that Nand Singh Jhalla was prosecuted under Section 436 IPC and convicted/ though acquitted in appeal by the High Court. They also referred to a suit filed by Prem Kaur against Lata Swaran and her husband on July 29, 1981 (Ext. PX/9). It was alleged by Prem Kaur in this suit that Lata Swaran and Nand Singh Jhalla had been quarreling with her. They were also causing unnecessary interference in her property. She sought a restrain on them from interfering in her properties. On September 19,1981, both Lata Swaran and Nand Singh Jhalla made a statement before the Court that they had no concern with the properties of Prem Kaur and they will not interfere in the same. On this undertaking, the suit was withdrawn by Prem Kaur. Copy of the orders is placed on record as Exhibit PX/8. The Courts below also referred to the incident of "Kerala Tyres". "Kerala Tyres was owned by Prem Kaur. It was looked after by one Chandu Lal on behalf of Prem Kaur. Prem Kaur later asked Nand Singh Jhalla to look after this business. Nand Singh forged signatures of Chandu Lal and obtained a loan of rupees 15,000 against this business from UCO Bank, Kullu, Prem Kaur was so annoyed that she lodged a criminal complaint against Nand Singh Jhalla under Section 420 IPC. This complaint subsequently was not pressed by her. Prem Kaur later asked Nand Singh Jhalla to look after this business. Nand Singh forged signatures of Chandu Lal and obtained a loan of rupees 15,000 against this business from UCO Bank, Kullu, Prem Kaur was so annoyed that she lodged a criminal complaint against Nand Singh Jhalla under Section 420 IPC. This complaint subsequently was not pressed by her. These circumstances clearly establish that relations between Prem Kaur on one hand and Lata Swaran and her husband Nand Singh Jhalla on the other were seriously strained. It also shows that both of them were interested in grabbing properties of Prem Kaur and defrauding her. The strained relations led to the execution of the will by Prem Kaur in favour of the plaintiffs and children of Lata Swaran and Nand Singh Jhalla. 23. The argument of the learned Senior Counsel for the appellants that the will is unnatural and there were no reasons with Prem Kaur to have disinherited the appellants in the circumstances, is fallacious and not supportable by evidence on record. 24. So far contention of Mr. Bhupinder Gupta, learned Senior Counsel that the will Exhibit PW3/A does not specifically revokes or supersedes the earlier will Exhibit DW4/A in favour of defendant No. 1 is concerned, the same has no merit. There is specific reference in the will Exhibit PW3/ A to the effect that any other will executed by her earlier, shall be treated as cancelled. A perusal of the will Exhibit PW3/A shows that there is an elaborate will. It refers to Lata Swaran and her husband Nand Singh Jhalla and also to their children Jeetender Jhalla, Shakunt Jhalla and a daughter Chand Jhalla. It stated in the will that Shakunt Jhalla was born after the death of her husband. It specifically declares that her relations with her son-in-law and daughter Lata Swaran are not good. She minus no words to say that Lata Swaran and her husband Nand Singh Jhalla do not look after her. She declared that she was being looked after by her brother Budh Ram and his children. She is satisfied with their services and has full faith in them and that she would be looked after by them in future. In the end, she declares that if any other will, apart from this will, is found, then it would be deemed to have been cancelled. She is satisfied with their services and has full faith in them and that she would be looked after by them in future. In the end, she declares that if any other will, apart from this will, is found, then it would be deemed to have been cancelled. In the circumstances, it cannot be said that earlier will Exhibit DW4/A has not been revoked by Prem Kaur. 25. A will can be revoked either expressly or impliedly. No particular form or expression is necessary for the revocation of a will. In the present case, the will declares that if there is any other will, the same be deemed to be cancelled though it does not refer expressly to the will Exhibit DW4/A. It is settled law that later will revokes all earlier wills even though it may not contain a specific clause of revocation, provided the subsequent will is proved by clear and satisfactory evidence. It is always a question of the intention of the testator. If the testator unambiguously deals with the entire property, then it revokes all earlier wills and if the later will covers the same ground as earlier one, then it must be taken as a substitution for the earlier will. The question whether earlier will has been revoked or not is a question of fact. 26. It may be noticed that earlier will was executed on September 21, 1977 on which date, she had not inherited the properties of her husband including the property in dispute which she inherited only on the death of her husband in the year 1981. It is also to be noticed that when earlier will Exhibit DW4/A was executed, only Jeetender Singh Jhalla was born to Lata Swaran and, therefore, it refers only to Jeetender Singh Jhalla. The later will however, refers to the other children of Lata Swaran, namely, Shakunt Jhalla and Chand Jhalla who also inherit the properties of Prem Kaur. This shows that Prem Kaur had intended to revoke the earlier will. 27. This apart, as already pointed out, the question of revocation of a will is a question of fact and this Court in second appeal shall refrain from re-appraising the evidence on record on this aspect. 28. This shows that Prem Kaur had intended to revoke the earlier will. 27. This apart, as already pointed out, the question of revocation of a will is a question of fact and this Court in second appeal shall refrain from re-appraising the evidence on record on this aspect. 28. The contention that the judgment and decree of the trial Court and the First Appellate Court are vitiated on account of non-consideration of the previous will dated September 21, 1977 in the context of the register of a Document Writer Nanak Chand (PW 3) has no merit. The Will Exhibit DW4/A dated September 21, 1977 has been considered both by the trial Court and the First Appellate Court. The learned trial Court found that this will was not validly executed: First Appellate Court, however, concluded that though will Exhibit DW4/A in favour of defendant No. 1 was validly executed but the same stood revoked by the later will Exhibit PW3/A. Therefore, it cannot be contended that will Exhibit DW4/A in favour of defendant No. 1 was not considered by the Courts below. 29. Mr. Gupta, learned Senior Counsel drew my pointed attention to the testimony of scribe of the will (Exhibit PW3/A) Shri Nanak Chand. Nanak Chand was Document Writer practicing at Kullu at the relevant time. It is his evidence that he scribed the will (Ext. PW3/A) at the instance of Prem Kaur. According to him, the contents of the will were explained to her who after admitting the contents to be correct, signed the will in his presence and presence of two attesting witnesses Pritam and Hira Lal Namberdars. The will was entered at Sr. No. 63 in his register. This register was produced in the Court. It was suggested that the entry in the register was made at a later date as the writing in the register gets narrower in the end. Photo copy of the register was retained in the Court. The perusal of this register shows that the entry is signed by Prem Kaur. It is true that the space between the lines of the writing of the abstract of the will in the register is narrower towards the end. This, however, is not suggestive of the fact that this entry was interpolated at a later date, or that the will was executed after the death of Prem Kaur. It is true that the space between the lines of the writing of the abstract of the will in the register is narrower towards the end. This, however, is not suggestive of the fact that this entry was interpolated at a later date, or that the will was executed after the death of Prem Kaur. This entry is dated March 25, 1987 and the entry at Sr. No. 64 is dated March 28, 1987. All the entries are continuous. There would not have been any space available to interpolate this entry subsequent to March 28, 1987. This contention has been rejected both by the trial Court and the First Appellate Court. Learned trial Court observed that it was for the Document Writer to have entered the abstract of the document in his register and if the same is not properly entered, Prem Kaur or the plaintiff-respondents could not be blamed for the same particularly when other pages of his register shows similar spacing in relation to other documents. 30. In Nalinakshi, the disputed will was held to have not been legally proved by the trial Court. The first appellate Court, reappraising the evidence, took a contrary view and held that the document was a genuine will. The High Court in appeal set-aside the order of the first appellate Court. The Apex Court observed: The question that is involved in the second appeal is whether the will executed by Babu Shetty in favour of I am of the view that simply because the Document Writer did not maintain his register properly is not suggestive of the will Exhibit PW3/A being forged particularly when it has duly been proved by the scribe of the will and two attesting witnesses." 31. Mr. Bhupinder Gupta, learned Counsel then contended that there are suspicious circumstances attached to the will which shows that the will was not voluntarily executed. He particularly refers to the fact that Lata Swaran who was the only child of Prem Kaur stands disinherited. The argument is misplaced and cannot be accepted. There is preponderance of evidence on record that relations between Lata Swaran, her husband on one hand and Prem Kaur on the other hand, had almost broken down. Love was lost between them. He particularly refers to the fact that Lata Swaran who was the only child of Prem Kaur stands disinherited. The argument is misplaced and cannot be accepted. There is preponderance of evidence on record that relations between Lata Swaran, her husband on one hand and Prem Kaur on the other hand, had almost broken down. Love was lost between them. The fact that Lata Swaran and her husband were tried for the murder of Prem Kaur and convicted by the learned Sessions Judge, though acquitted by the High Court, cannot be brushed aside. Prem Kaur in her life time had launched criminal proceedings against Lata Swaran and her husband. In the totality of the circumstances, disinheritance of Lata Swaran cannot be said to be unnatural. It may be recalled that Lata Swaran was disinherited even in the will of 2977 (Exhibit DW4/A) which is propounded by the defendants themselves and which the defendants claim to be genuine will of Prem Kaur. 32. In the present case, though Lata Swaran has been disinherited but her three children have been given entire properties in the District of Mandi and, therefore, by no stretch it can be said that disposition is inequitable or there is total disinheritance of the defendants. 33. It is then contended by Mr. Gupta, learned Senior Counsel that the will in question Exhibit PW3/A was result of undue influence exercised by plaintiff Budh Ram who was real brother of Prem Kaur. The Supreme Court in Rabindra Nath Mukherjee v. Panchanan Banerjee, AIR 1995 Supreme Court 1684, observed that deprivation of natural heirs by the testator "should not raise any suspicion". Their Lordships observed : ".....The whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially." 34. The question whether a person is in a position to dominate the will of another to get a document executed by undue influence is a question of fact which is not open to question in second appeal under Section 100 of the Code of Civil Procedure. The question whether a person is in a position to dominate the will of another to get a document executed by undue influence is a question of fact which is not open to question in second appeal under Section 100 of the Code of Civil Procedure. The Supreme Court in Afsar Shaikh v. Soleman Bibi, AIR 1976 Supreme Court 163, considering the ambit and scope of Section 100 of the Code and held that the High Court, in second appeal, is not competent to reverse the findings of fact to the effect that a person was not in a position to dominate the will and held that: "A question whether a person was in a position to dominate the will of another and procured a certain deed by undue influence, is a question of fact, and a finding thereon is a finding of fact and if arrived at fairly, in accordance with the procedure prescribed, is not liable to be reopened in second appeal." 35. In this case, there was allegation in the plaint that Hiba-bil-Ewaz in question was vitiated by fraud and misrepresentation by A. No particulars of plea of undue influence were pleaded. In this context, it was observed by the learned Judges that the High Court was not competent, in second appeal, to reverse the findings of fact recorded by the first appellate Court to the effect that A was not in a position to dominate the will of the plaintiff and he did not exercise any undue influence on the plaintiff to obtain Hiba-bil-Ewaz, which was voluntarily executed by the plaintiff after understanding its contents and it was further observed that it is not open to the High Court to interfere in the second appeal with the findings of the Courts below on the ground of an error of question of fact even if the findings were erroneous. The Apex Court observed: "High Court has no jurisdiction to entertain the second appeal on the ground of erroneous findings of fact, however, gross or inexcusable the error may seem to be". 36. The Apex Court observed: "High Court has no jurisdiction to entertain the second appeal on the ground of erroneous findings of fact, however, gross or inexcusable the error may seem to be". 36. In V. Ramachandra Ayyar v. Ramalingam Chettiar, AIR 1963 Supreme Court 302, dealing with the scope of interference under Section 100 of the Code, the Apex Court observed that the High Court may be justified to interfere with the findings of fact if it has been recorded by the first Appellate Court without any evidence for the reason that such a finding of fact is not supported by any evidence. This, however, reminded Their Lordships, does not mean that the High Court can interfere if it thinks that the evidence accepted by the lower appellate Court could not have reasonably been accepted. In that case, the question involved was whether the lease deed executed by the respondent in favour of the appellants was justified by adequate consideration and whether the respondent had independent advice at the time when he signed the said document and did respondent act bona fide or was the lease deed imposed upon him. Apex Court held that the High Court was not justified in interfering with the findings of fact recorded by the learned lower appellate Court in favour of the appellant. 37. Mr. Kapil Dev Sood, learned Counsel for the plaintiff-respondents relying upon Nalinkashi N. Rai v. Indira Shetty, (1999) 9 Supreme Court Cases 248, urged that the question whether a will can be believed or not is not a question of law. The High Court, emphasized Mr. Sood, will not reappraise the evidence to ascertain whether will should be believed or not. 38. In Nalinakshi, the disputed will was held to have not been legally proved by the trial Court. The first Appellate Court, reappraising the evidence, took a contrary view and held that the document was a genuine will. The High Court in appeal set-aside the order of the first Appellate Court. The Apex Court observed: The question that is involved in the second appeal is whether the will executed by Babu Shetty in favour of Narayana of his 1/ 4th share under Ext. D-l can be believed or not. Such a question is not a question of law much less a substantial question of law." 39. The Apex Court observed: The question that is involved in the second appeal is whether the will executed by Babu Shetty in favour of Narayana of his 1/ 4th share under Ext. D-l can be believed or not. Such a question is not a question of law much less a substantial question of law." 39. There is a concurrent findings of the fact that the will Exhibit PW3/A was validly executed by the testatrix Prem Kaur. The suspicious circumstances spelled out by the defendants-respondents are non-existent or untenable. It is not open to this Court, in second appeal to reappraise the evidence to come to a different conclusion even if such a conclusion is possible by reappraisal of the evidence. Reference may also be made to Deity Pattabhiramaswamy v. S. Harymayya, AIR 1959 Supreme Court 57; Navaneethammal v. Arjuna Chetty, (1996) 6 Supreme Court Cases 166; Vidhyadhar v. Manikrao, (1999) 3 Supreme Court Cases 573 and Hari Singh v. Kanhaiya Lai, 1999 (7) SCC 288. 40. The questions raised above, in the facts and circumstances of the case are not substantial questions of law. Question No. 1 41. Learned Counsel for the appellant in the end urged that there is no positive findings that the plaintiffs are in possession of the "suit property", therefore, injunction restraining the defendants from interfering with the possession of the defendants could not have been granted by the Courts below. 42. I notice, learned trial Court found, as a matter of fact, that suit property is situate within the jurisdiction of Municipal Committee, Kullu and had been under the tenancy of third parties. Therefore, it cannot be said that defendants are in possession of the property. I am not inclined to reappraise the evidence to find out whether the defendants-appellants are in possession of any part of the disputed property in this appeal. The question is accordingly answered. 43. The inevitable conclusion is that there is no merit in this appeal. The same is dismissed with costs. Appeal dismissed.