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2002 DIGILAW 131 (HP)

BIMLA ROHAL v. USHA

2002-05-06

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J.—This second appeal arises out of the judgment and decree of learned District Judge, Shimla dated December 31, 1993. Facts necessary for the disposal of the appeal, may be noticed thus: 2. One Jeet Ram was owner in possession of the property subject matter of dispute, hereinafter referred to as the "disputed property". Jeet Ram died issueless on April 24,1977 at Delhi. After the death of Jeet Ram, defendant Bimla set up a will in respect of the disputed properties. Mutation of inheritance of the disputed properties was attested, on the basis of the will set up by her, in favour of the defendant Bimla on December 26, 1977. Plaintiffs are Daughters of one Jeet Ram resident of Batlana who filed a suit against the defendant claiming adverse possession of the disputed property The suit of the father of the plaintiffs was dismissed. His appeal before the District Judge too was dismissed. Thereafter, the plaintiffs filed the suit, out of which this second appeal arises, on January 19, 1985. 3. The case of the plaintiffs was : Deceased Jeet Ram (Testator) used to live in the house of the father of the plaintiffs at village Batlana. He, during his life time, executed a will bequeathing all his properties in favour of the plaintiffs. The will was given to one Thakur Dass son of Ram Dutt resident of village Sanech of Tehsil and District Shimla. The plaintiffs were not aware of this will. They came to know about the existence of the Will few months prior to the institution of the suit when Thakur Dass handed over the will to the mother of the plaintiffs. It was pleaded that the will set up by the plaintiffs was last and valid will of the testator Jeet Ram. The plaintiffs, therefore, were entitled to inherit the disputed properties of the testator. It was the case of the plaintiffs that defendant got the mutation of inheritance, of the "disputed properties" of Testator Jeet Ram, in their favour on the basis of a false and invalid will. The mutation of inheritance attested in favour of the defendant Bimla, of disputed properties, was illegal on face of the will in favour of the plaintiffs. It was the case of the plaintiffs that defendant got the mutation of inheritance, of the "disputed properties" of Testator Jeet Ram, in their favour on the basis of a false and invalid will. The mutation of inheritance attested in favour of the defendant Bimla, of disputed properties, was illegal on face of the will in favour of the plaintiffs. The plaintiffs prayed for a declaration to the effect that they have inherited the "disputed property" of the Testator and mutation of inheritance of the "disputed property" of the Testator attested on 26.12.1977, in favour of the defendant Bimla was illegal, void and was of no consequence. As a consequential relief, permanent injunction was sought against the defendant restraining her from interfering with the possession and rights of the plaintiffs over the disputed property. In alternative, it was prayed that if the defendants were found to be in possession of the "disputed property" or any portion thereof, then decree for possession may be passed in favour of the plaintiffs. 4. The defendant resisted the suit. Allegations were controverted. It was pleaded that plaintiffs were estopped from filing the present suit. As the defendant was in physical possession of the disputed property being its absolute owner, therefore, the suit for declaration and injunction was not competent. On merits, the defendants case was that the defendant succeeded to the disputed properties of deceased "Jeet Ram" by a will, which was validly executed by Jeet Ram during his lifetime. It was admitted that Jeet Ram died issueless. However, the defendant categorically denied that Jeet Ram lived with the plaintiffs or their parents. According to the defendant, her mother died when she was three years of age and thereafter, she was brought up by Smt. Rainku, mother of Jeet Ram the testator as her own daughter. Jeet Ram treated her as sister and it is in this background that a valid will was executed by Jeet Ram in favour of the defendant. Jeet Ram used to live with the defendant, as he was issueless. Jeet Ram had cordial and intimate relations with the defendant. According to the defendant, Jeet Ram was living in their house at Delhi prior to his death on April 25, 1977. It was the case of the defendant that even in the year 1956, Jeet Ram gifted her about 14 bighas of land. Jeet Ram had cordial and intimate relations with the defendant. According to the defendant, Jeet Ram was living in their house at Delhi prior to his death on April 25, 1977. It was the case of the defendant that even in the year 1956, Jeet Ram gifted her about 14 bighas of land. On the other hand, plaintiffs and their parents never lived with Jeet Ram nor they were in any way connected with deceased Jeet Ram. Only one will, pleaded defendant, and was executed by the testator Jeet Ram during his lifetime. The will set up by the plaintiffs was false. It is the case of the defendant that she had developed the disputed properties after spending huge amount. The plaintiffs have no right, title or interest of any kind over the disputed properties. According to the defendant, the father of the plaintiffs is a Namberdar and had close association with the revenue authorities. He had even filed a complaint on the death of Jeet Ram to the effect that Jeet Ram died issueless and the disputed properties left by Jeet Ram should be escheated to the State. 5. On the pleadings of the parties, several issues were settled by the learned trial Court. Learned trial Court found that the will set up by the plaintiffs was false and forged and the will set up by the defendant (Exhibit DW3/A) was the only valid will. Learned trial Judge also found that the defendant was the lawful owner in possession of the suit property. The objections of the defendant that suit was not maintainable, plaintiffs were estopped from filing the suit and that suit was not properly valued for the purposes of court fees and jurisdiction were rejected. The suit of the plaintiffs was dismissed. Aggrieved, plaintiffs laid an appeal before the learned District Judge, Shimla which was allowed by the impugned judgment and decree. 6. Dis-satisfied with the judgment of reversal passed by the learned District Judge, Shimla, the defendant Bimla Rahol is in second appeal. This appeal was admitted on 4th of February, 1994 on the following substantial questions of law: (a) Whether the respondents have failed to prove the due execution of alleged will Exhibit PW5/A in accordance with Section 65 of the Indian Succession Act? This appeal was admitted on 4th of February, 1994 on the following substantial questions of law: (a) Whether the respondents have failed to prove the due execution of alleged will Exhibit PW5/A in accordance with Section 65 of the Indian Succession Act? (b) Whether Exhibit PW5/A has not been executed and proved in accordance with law and there are strong suspicious circumstance as regard to its validity? (c) What is the effect of earlier litigation in which the father of the respondents admitted the appellant to be owner of the suit land and what is the effect of that litigation on the subsequent proceedings? 7. Having heard the learned Counsel for the parties and perusal of the record, the following substantial questions of law arise for consideration in this appeal: (a) Whether the plaintiffs failed to prove due execution of the will Exhibit PW5/A in accordance with law. (b) What is the effect of non-production of the original will by the plaintiff-propounders? (c) Whether the findings arrived at by the learned District Judge are not based on evidence on record and result of misreading and mis-appreciation of the evidence and are perverse. I heard Mr. G.D. Verma, learned Senior Counsel instructed by Mr. Romesh Verma for the appellant and Mr. R.K. Bawa, learned Senior Advocate instructed by Mr. Raj Pal Thakur for the respondents. I was also taken through the records by the learned Counsel for the parties: (a) Whether the plaintiffs failed to prove due execution of the will Ext. PW5/A in accordance with law. Section 63 of the Indian Succession Act provides for the execution and attestation of the wills. Raj Pal Thakur for the respondents. I was also taken through the records by the learned Counsel for the parties: (a) Whether the plaintiffs failed to prove due execution of the will Ext. PW5/A in accordance with law. Section 63 of the Indian Succession Act provides for the execution and attestation of the wills. Section 63 reads: "Every testator, not being a soldier employed in an expedition nor engaged in actual warfare or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his marks to the will, or some other person shall sign it in his presence and by his direction; (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will; (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary". It may be noticed that according to Section 63 of the Indian Succession Act, three things are necessary for valid execution of the will: (1) It must be in writing; (2) It must be duly signed by the testator; and (3) It must be duly attested by at least two witnesses. 8. It needs no emphasis that it is the duty of the propounder of the will to show, by satisfactory evidence, that the will has been executed by the testator as contemplated under Section 63 of the Act. The execution of the will has to be proved within the parameters of Section 63 and the law requires strict compliance of this provision. The execution of the will has to be proved within the parameters of Section 63 and the law requires strict compliance of this provision. It is for the propounder of the will to prove by impeccable evidence that: (a) the will was signed by the testator; (b) the testator at the relevant time was in sound and disposing state of mind; and (c) he understood the nature and effect of putting his signature on the document of his own free will. Section 63(c) of the Indian Succession Act and Section 3 of the Transfer of Property Act though do not provide for a particular form of attestation but nonetheless, it is necessary, as required by Section 68 of the Indian Evidence Act, that at least one of the witnesses should be examined to prove the due execution of the will. It is the duty of the propounder to prove from the witness(es) that the witness(es) saw the testator signing the will and that they themselves signed the will in the presence of the testator. For a valid attestation of the will, the following conditions must be satisfied: (a) The will must be attested by at least two witnesses; (b) Each of these: (i) Must either see the testator sign or affix his mark to the will or must see some other person sign the will in the presence and by the direction of the testator, or. (ii) Must receive from the testator a personal acknowledgement of his signature or mark or of the signature of such other person. (iii) Each of these must sign the will. (iv) They must sign in the presence of the testator. If any of these four conditions is not satisfied, the attestation is bad and the will invalid. 9. The perusal of the will Exhibit PW5/A, which is not the original will and is only a Xerox copy, shows that it was witnessed and attested by Devi Ram and Hima Nand. The plaintiffs chose not to examine Devi Ram. Only Hima Nand was examined to prove the will. Hima Nand appearing as PW5 categorically stated that the will was not scribed in his presence and when he went to the house of Pandit, the will had already been scribed and he signed the same. It is his evidence that Shiv Saran got his signatures on this will. Only Hima Nand was examined to prove the will. Hima Nand appearing as PW5 categorically stated that the will was not scribed in his presence and when he went to the house of Pandit, the will had already been scribed and he signed the same. It is his evidence that Shiv Saran got his signatures on this will. He is categorical that Devi Ram, the other witness, did not sign the will in his presence. He stated that when he signed the will, Devi Ram had already signed the same. In his cross-examination, he admitted that he was not aware of the contents of the will. In his own words, "I am not aware what was written in the will". Thus, the statutory requirement of Section 63 read with Section 68 regarding the proof of the due execution of the will is not fulfilled. The first statutory requirement that will must be attested by at least two attesting witnesses of testator is not proved. Hima Nand (PW 5) admitted that other witness Devi Ram was not present when he signed the will. The scribe of the will has also not been examined. Thus, there is nothing on "the record to show that when the will was scribed and executed, it was attested by two persons. The will, therefore, is invalid for that reason alone. 10. The primary purpose of requiring a will to be attested is to make available proof that there has been compliance with the statutory requirements of the execution of the will and the document propounded as the will is the exact document which the testator signed and not a surreptitious or fraudulent document. A will cannot be said to be validly executed unless it is shown that the testator had the knowledge of its contents and he has approved the same. In the present case, it is the evidence of Hima Nand that the will was not scribed in his presence and that he is not aware about the contents of the will. In these circumstances, it is not possible to say that the testator had the knowledge of the contents of the will and had approved the same. The will speaks from the death of the testator. It is a solemn document. In these circumstances, it is not possible to say that the testator had the knowledge of the contents of the will and had approved the same. The will speaks from the death of the testator. It is a solemn document. It is, therefore, imperative that at least one attestator is examined who deposes that testator acknowledged the contents of the will in his presence. In the absence of such evidence, the will cannot be said to have been duly executed. As already noticed, the purpose of attestation is to prevent imposition of fraud and to ensure against the setting up of forged or false wills. As the will speaks on the death of the testator, therefore it is impossible that testator can be called either to deny his signatures or to explain the circumstances under which the will was executed. In the given circumstances, it was necessary that trustworthy and effective evidence was led to establish compliance with the statutory requirement of the execution of the will. The Apex Court in H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 (Supp) 1 SCR 1956, observed: "...Thus the question as to whether the will set up by the propounders proved to be the last Will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the disposition in the will? Did he put his signatures to the will knowing what it contained? Stated broadly it is the decisions of these questions which determines the nature of the finding on the question of proof of wills...." Their Lordships proceeded to observe: "However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will nor not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of proof of documents. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator was at the relevant time in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signatures to the document of his own free will". (Emphasis supplied) 11. In the present case, as noticed earlier, there is no evidence to show that the testator understood the effect of dispositions of the will Exhibit PW5/A and put his signatures to the document of his own free will. Only witness examined to prove the will, Shri Hima Nand (PW 5) was categorical that he was not aware of the contents of the will nor the same were read over or explained to the Testator. 12. It is a matter of regret that learned District Judge did not take trouble to consider this aspect of the case. He rather overstretched to find fault with the will set up by the defendant which was accepted by the revenue authorities and which will was not in question before him. In fact, the learned District Judge chose to ignore the categorical findings of the learned trial Court that will Exhibit PW 5/A is not proved to be duly executed by the deceased testator Jeet Ram. Learned trial Court noticed that Hima Nand (PW 5) signed the will which had already been scribed and had deposed that Devi Ram, the other attesting witness, had not signed the will in his presence. It is his evidence that he was not made aware of the contents of the will Exhibit PW 5/A. Learned trial Judge observed: "The contents of the will were also not read over to the witness as well as late Jeet Ram". Learned trial Judge also observed: "Devi Ram, the other witness of Exhibit PW 5/A was also not called to testify the aforesaid veracity of the will nor there is any reasonable explanation of the plaintiffs that why he has not been produced as their witness. In Exhibit PW5/A, no address of witness has been mentioned except Hima Nand." 13. Learned trial Judge also observed: "Devi Ram, the other witness of Exhibit PW 5/A was also not called to testify the aforesaid veracity of the will nor there is any reasonable explanation of the plaintiffs that why he has not been produced as their witness. In Exhibit PW5/A, no address of witness has been mentioned except Hima Nand." 13. Learned First Appellate Court went out of the way to set aside the well reasoned findings of the trial Court. The findings of the learned District Judge that the will, in question, propounded by the plaintiffs was duly executed and valid was arrived at without going into the question of due execution of the will. He chose to ignore, without any reason, the evidence that clearly show that the will was not executed in accordance with the provisions of Section 63 of the Indian Succession Act read with Section 68 of the Evidence Act. The inevitable answer to the question is that the plaintiffs failed to prove the due execution of the will. (b) What is the effect of non production of the original will by the plaintiffs-propounders. It is significant to note that the original will was not produced. No attempt was made to produce it at any stage. Only a Xerox copy was produced which was initially marked "A" but subsequently exhibited as Exhibit "PW5/ A". No explanation is offered by the plaintiffs as to why the original will was not produced, particularly when it was the specific case of the plaintiffs that the original will was given to them immediately before filing of the suit. In para 2 of the plaint, it was pleaded by the plaintiffs that the will in question was handed over to their mother few months before filing of the suit. 14. Section 64 of the Evidence Act mandates that the documents must be proved by "primary evidence". Section 62 of the Act defines primary evidence to mean "the document itself" produced for the inspection of the Court. I hardly need to emphasize that writing in original is the best evidence of its contents and must be produced unless it has been lost, destroyed or its absence is otherwise satisfactorily accounted for. The reason is not far to seek. Copy of a document is always susceptible to errors on the part of Copyist and open to substitution of forgery. The reason is not far to seek. Copy of a document is always susceptible to errors on the part of Copyist and open to substitution of forgery. The rule is that best evidence available must be produced in the Court, i.e. if the case of a party rests on a document the original document must be produced in the Court. Sections 22, 59, 61, 62 and 64 of the Evidence Act read together provide that the contents of the document can only be proved by primary evidence. Relevant provisions of Sections 22, 59, 61, 62, 64 and 65 may be noticed: "22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question. 22-A. When oral admission as to the contents of the electronic records are relevant.—Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question. 59. Proof of facts by oral evidence.—All facts, except contents of documents (or electronic records) may be proved by oral evidence. 61. Proof of contents of documents.—The contents of documents may be proved either by primary or by secondary evidence. 62. Primary evidence.—Primary evidence means the document itself produced for inspection of the Court. Explanation-I.—Where a document is executed in several parts, each part is primary evidence of the document. When a document is executed in counter part, each counter part being executed by one or some of the parties only, each counter part is primary evidence as against the parties executing it. Explanation-IL—Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but where they are all copies of a common original, they are not primary evidence of the contents of the original. 64. Proof of documents by primary evidence.—Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. 64. Proof of documents by primary evidence.—Documents must be proved by primary evidence except in the cases hereinafter mentioned. 65. Cases in which secondary evidence relating to documents may be given.— Secondary evidence may be given of the existence, condition or contents of a document in the following cases— (a) When, the original is shown or appears to be in the possession or power— of the person against whom the document is sought to be produced or of any person out of reach of, or not subject to, the process of the court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it; (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest; (c) when the original has been destroyed or lost, or when the party offering, evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time; (d) when the original is of such a nature not to be easily movable; (e) when the original is a public document within the meaning of Section 74; (f) when the original is a document of which a certified copy is permitted by this act, or by any other law in force in (India), to be given in evidence; (g) when the originals consist of numerous accounts or other documents, which cannot conveniently be examined, in Court, and the fact to be proved is the general result of the whole collection. In cases (a), (c) and (d), any secondary evidence of the contents of the document is admissible. In case (b) the written admission is admissible. In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 65-A. Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of Section 65-B...." 15. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. 65-A. Special provisions as to evidence relating to electronic record.—The contents of electronic records may be proved in accordance with the provisions of Section 65-B...." 15. Reading the provisions noted above, it is apparent that the contents of a document can only be proved by "documentary evidence", i.e. the original document itself though there are exceptional cases in which it may be proved otherwise, i.e, by secondary evidence as contemplated under Section 65 of the Act. Section 22 of the Evidence Act excludes even oral admissions as to the contents of a document unless party proposing to prove them shows that he is entitled to lead secondary evidence, under Section 65 of the Act, of the contents of such document. Section 59 provides that all facts may be proved by oral evidence except the contents of the document. This provision is based on the "the best evidence rule." Greenleaf in his evidence at page-82 explained and stated the rule thus: "...A fourth rule which governs the production of evidence that which requires the best evidence of which the case, in its nature, is susceptible. This rule does not demand the greatest amount of evidence which can possibly be given of any fact but its design to prevent the introduction of any, which from the nature of the case, supposes that better evidence is in the possession of the party. It is adopted for the prevention of fraud; for when it is apparent, that the better evidence is withheld, it is fair to presume that the party has some sinister motive for not producing and that if offered, his design would be frustrated...." In Earl of Suffolk v. Greenwill, Ch. Rep. 89 (92), the Court ruled that it was dangerous to admit the contents and sufficiencies of deeds to be proved by the testimony of witnesses, the construction of deeds being the office of the Court. Tinterden, L.C.J. in Vincent v. Cole, M & M. 257, observed: "I have always (perhaps more so than other Judges), acted most strictly on the rule that what is in writing shall be proved by the writing itself. Tinterden, L.C.J. in Vincent v. Cole, M & M. 257, observed: "I have always (perhaps more so than other Judges), acted most strictly on the rule that what is in writing shall be proved by the writing itself. My experience has taught me the extreme danger or relying on the recollection of the witnesses, however, honest, as the contents of the written instruments; they may be so easily mistaken that I think the purposes of justice require the strict enforcement of the rule". 16. In the present case, original will admittedly was in power and possession of the plaintiffs and, therefore, the case of the plaintiffs do not fall within the exception under Section 65 of the Evidence Act. Non-production of the original will in the Court militates against the very existence of the will. The Xerox copy of the will (Ext. PW5/A) produced by the plaintiffs would not prove the contents thereof. In other words, the will Ext. PW5/ A set up by the plaintiffs is not proved to be duly executed or a genuine document. There is yet another reason for insisting on the production of the original will. The perusal of original will alone satisfy the conscience of the Court and requirement of Section 63 of the Indian Succession Act regarding the signatures, execution and attestation, which in the absence of the original, cannot be vouchsafed. The insistence on the production of the original will is to see that the instrument offered as will is the same and exact, which is alleged to have been executed and signed by the testator and not a forged document. In the absence of the original, it is not possible to say that the will propounded by the plaintiffs is the same and exact which was, if at all, executed by the testator as alleged, nor it can be said that the signatures on the will are in fact signatures of the testator. The will propounded by the plaintiffs, in the circumstances cannot be held to be duly proved. 17. To conclude, the non-production of the original will by the plaintiffs is fatal to their case. The will set up by the plaintiffs is not proved to have duly been executed. The will propounded by the plaintiffs, in the circumstances cannot be held to be duly proved. 17. To conclude, the non-production of the original will by the plaintiffs is fatal to their case. The will set up by the plaintiffs is not proved to have duly been executed. The question is answered accordingly: (c) Whether the findings arrived at by the learned District Judge are not based on evidence on record and result of misreading and misappreciation of evidence and are perverse. It is important to note that when mutation was attested in favour of the defendant on the basis of the will in her favour, Jeet Ram husband of Chando Devi and father of the plaintiffs contested such attestation of the will. His objections were overruled. Dis-satisfied, he filed an appeal before the Collector, Shimla, who vide orders dated October 30, 1978 (Ext. DA) dismissed the appeal of the father of the plaintiffs and rejected the contention of the father of the plaintiffs that will was not genuine. It is incredible to believe that the will set up by the defendant on the basis of which mutation of inheritance of the disputed property was attested in favour of the defendant, was not in the knowledge of the mother of the plaintiffs. Jeet Ram, father of the plaintiffs had also moved an application to the Collector for the stay of the attestation of mutation on the grounds that Jeet Ram died issueless, therefore, the property should be escheated to the State. Not contended, the father of the plaintiffs filed a suit before the learned Sub-Judge 1st Class Court No. 3 Shimla on April 12,1978, alleging that he was in adverse possession of the disputed property of deceased testator and has become its owner. The suit was dismissed by the trial Court on December 12, 1979. It was held that the plaintiff was not in possession of the disputed property and it was concluded that the defendant was in possession of the disputed property. The suit of the plaintiff was dismissed (Ext. DC). The appeal before the District Judge too was dismissed on June 11, 1982. In the judgment, learned District Judge observed that the will set up by the defendant has been proved to be duly executed by the testator. The plea of the father of the plaintiffs that he was in adverse possession of this property was rejected. DC). The appeal before the District Judge too was dismissed on June 11, 1982. In the judgment, learned District Judge observed that the will set up by the defendant has been proved to be duly executed by the testator. The plea of the father of the plaintiffs that he was in adverse possession of this property was rejected. Learned trial Judge noticed that the will Exhibit PW5/A is dated November 8, 1976 whereas, the suit on the basis was filed only on February 26, 1985. The plaintiffs gave an explanation that this will was lying with one Thakur Dass son of Shri Ram Dutt resident of Sanech, Tehsil and District Solan and Chando Devi, mother and guardian of the plaintiffs came to know about this fact only few months before the filing of the suit. In para 2 of the plaint, it was asserted: "The said will was lying with one Thakur Dass son of Ram Dutt resident of Sanech Tehsil and District Solan which fact came to the knowledge of the plaintiffs some months back when the said Shri Thakur Dass handed over the will in question to the mother of the plaintiffs. Photostat copy of the will is attached." 18. As already noticed, Chando Devi appearing as PW 3 stated that this will was handed over to her about four years back, i.e., some where in the year 1983. Apparent as it is, this forged will was set up after Jeet Ram father of the plaintiffs failed to get the land by other means including the complaint to the District Collector and claim of adverse possession over the disputed property. Learned District Judge failed to take note of this evidence on record though this was discussed at length by the learned trial Court. 19. Lastly, the learned District Judge has neither given any reasons nor referred to any evidence as to how the will was proved to have been duly executed. In fact, there is no evidence regarding the execution of the will save and except the evidence of Hima Nand (PW 5) who, as already noticed, had expressed his ignorance about the contents of the will or the presence of other attesting witnesses, the findings of learned District Judge, about the due execution of the will was indeed de hors the evidence on record. Learned District Judge did attempt to show that the will propounded by the defendant Bimla Devi was surrounded by suspicious circumstances. He noticed that the defendant alongwith her husband and children was living at Delhi and the defendant used to visit Batlana on occasions. He also referred to the ration card in the name of the defendant, which was made at Delhi and concluded that the will in favour of the defendant could not have been executed by the testator. Such a conclusion was result of misreading the evidence and perverse. It was admitted fact that the testator during his lifetime, had gifted some land to the defendant out of love and affection but the learned District Judge observed that there was no document of gift prepared by the testator when he gifted the property to the defendant. Otherwise also these aspects had no relevance to decide the genuineness of the will set up by the plaintiffs. Learned District Judge observed that there was no presumption either in law or in fact that the will propounded was forgery. He added that the party should apply for the probate or for the Letters of Administration of a will is required to prove the will, yet he ignored this material proposition, that is, the proof of the will. Learned District Judge observed: "The contents of the will were read to late Jeet Ram who admitted the same to be correct and then signed the will". This observation of the learned District Judge is not supportable by the evidence on record as discussed earlier. The observation in fact is contrary to the evidence on record. 20. Had the will Exhibit PW 5/A really existed, it would have been set up at the earliest at least when, according to the plaintiffs, it came in their hands. It is the evidence of Chando Devi (PW 3), mother of the plaintiffs, that this will was given to her by Tahkur Dass about four years prior to her examination in the Court. She was examined in the Court on September 4, 1987. Therefore Thakur Das must have given the will to her in the year 1983. The suit was filed by her in the year 1985 two years after the alleged discovery of will. She was examined in the Court on September 4, 1987. Therefore Thakur Das must have given the will to her in the year 1983. The suit was filed by her in the year 1985 two years after the alleged discovery of will. The mutation of inheritance of the disputed property of the testator was attested in favour of the defendant on December 26, 1976 vide mutation Exhibit DE. The delay in the circumstances is intentional. It may be noticed that according to the case set up in the plaint by the plaintiffs, Thakur Dass handed over the will to Chando Devi. Now Thakur Dass was none else than the father of Chando Devi and maternal grand-father of the plaintiffs. This relationship was not disclosed in the plaint. What was stated in para 2 of the plaint is: "The said will was lying with one Shri Thakur Dass son of Ram Dutt resident of Sanech, Tehsil and District Shimla, which fact came to the knowledge of the plaintiffs some months back when the said Shri Thakur Dass handed over the will in question to the father of the plaintiffs". (Emphasis supplied) 21. The tone and tenor of this averment shows as if Thakur Dass was a stranger to the plaintiffs and their mother. It is difficult to believe that Thakur Dass chose to hand over the will to his own daughter, the mother of the beneficiaries, almost after nine years of the death of the testator particularly when the father of the plaintiffs was struggling to get this land by any means. Not only he set up his adverse possession but also pleaded that if the land could not be given to him, then it should be escheated to the State. It is incredible to believe that Thakur Dass, maternal grandfather of the plaintiffs and father of their mother, would not tell them about the will which was executed in favour of the plaintiffs immediately on the death of the testator. This raises serious doubt about the very existence of the will. The probability factor shows that after the father of the plaintiffs failed in his efforts to get the disputed property by various means including his suit claiming adverse possession of the disputed property, the will was forged and set up by the father of the plaintiffs in the name of his minor children. 22. Mr. The probability factor shows that after the father of the plaintiffs failed in his efforts to get the disputed property by various means including his suit claiming adverse possession of the disputed property, the will was forged and set up by the father of the plaintiffs in the name of his minor children. 22. Mr. G.D. Verma, learned Senior Counsel raised a contention that in the pleadings it was stated that the will was handed over by the father of Chando Devi to her but in her evidence appearing as PW 3, she stated that the will was handed over to her four years back by her brother. Faced with the situation, an application to lead additional evidence was filed on behalf of the plaintiffs before the First Appellate Court for permission to examine "Puran Dass" in whose custody the will remained till it was handed over to the appellants. It was pleaded that Chando Devi, mother of the appellants, being an illiterate lady, could not instruct her counsel to take steps for the examination of Puran Dass in the trial Court. This application was allowed by the learned District Judge without any justifiable reason in spite of the objections taken by the defendant that the pleading of the plaintiffs was that it was handed over to the mother of the plaintiffs by Thakur Dass, her father. It was further submitted that Puran Dev was brother of Chando Devi and it could not be said that Chando Devi, when the plaint was made, was not aware as to who handed over the will to her. 23. Mr. Verma urged that the learned first Appellate Court did not notice the contention of the defendant. The application was allowed only on the ground that it would not cause any prejudice to the defendant as the plaintiffs only wanted to prove "that from whose possession the will came to her". Mr. Verma referred to several authorities in support of his contention. I need not go into this question as I have already held that the will is not proved to have been duly executed and non-production of the original will was fatal to the case of the plaintiffs. 24. It may also be noticed that Mr. Mr. Verma referred to several authorities in support of his contention. I need not go into this question as I have already held that the will is not proved to have been duly executed and non-production of the original will was fatal to the case of the plaintiffs. 24. It may also be noticed that Mr. Verma raised a contention that after having allowed the additional evidence, learned District Judge, after examination of Puran Dass, allowed an application for the amendment of the plaint filed by the plaintiffs to say that the will was handed over to the plaintiffs by Puran Dass and not by Thakur Dass. The argument was that the plaintiffs could not be permitted to amend the plaint to erase an admission made by the plaintiffs that the will was handed over to them by Thakur Dass, their maternal grand-father simply to tailor the proceedings to suit the evidence of the plaintiff Chando Devi that the will was handed over to her by her brother, particularly, when before amendment of the plaint, Puran Dass had been examined as additional evidence by the District Judge. This question too is academic, in view of my findings that the will in question was neither validly executed nor proved on the record. However, this exhibits anxiety of the District Judge to some how or the other allow the appeal. 25. In conclusion, the findings of the learned District Judge that the will in question was duly executed and proved are based on conjectures, de hors the evidence on record and perverse. The question is accordingly answered. Mr. R.K. Bawa, learned Senior Counsel for the respondents lastly urged that the question of validity of a will is a question of fact and this Court will not go into this question in second appeal. It is true that the execution of a will is a question of fact and the court will hesitate to interfere with this question in second appeal. However, if the evidence on record is contrary to the finding of fact arrived at by the first Appellate Court, this Court, under Section 100 of the Code of Civil Procedure, will not hesitate to interfere particularly when the findings are not only de hors the evidence but perverse. In Mohd. However, if the evidence on record is contrary to the finding of fact arrived at by the first Appellate Court, this Court, under Section 100 of the Code of Civil Procedure, will not hesitate to interfere particularly when the findings are not only de hors the evidence but perverse. In Mohd. Yunus v. Gurubux Singh, 1995 Supp (1) Supreme Court Cases 418, the Apex Court held: "Where there is a gross misappreciation of evidence which goes to the root of the matter, certainly the second appellate Court can exercise its jurisdiction." In Kulwant Kaur and others v. Gurdial Singh Mann (Dead) by LRs. and others, (2001) 4 Supreme Court Cases 262, the Apex Court reiterated this position and observed: "...While it is true that in a second appeal a finding of fact, even if erroneous, will generally not be disturbed but where it is found that the findings stand vitiated on wrong test and on the basis of assumptions and conjectures and resultantly there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to deal with the issue. This is, however, only in the event such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication...." 26. In the present case, the findings of reversal recorded by the learned First Appellate Court are not only without any evidence on record but are based on assumptions and conjectures which indeed materially prejudiced the case of the defendant. No other point was urged before me. 27. In result, the appeal is accepted. The impugned judgment and decree of the learned District Judge is set-aside and that of the trial Court is restored. The respondent shall pay cost of the appeal to the appellant. Appeal allowed.