Judgment M.M.Kumar, J. 1. This is plaintiffs appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code) impugning the judgment and decree dated 12.10.1982 passed by the learned Additional District Judge, Jalandhar dismissing his suit for possession of House No. WB-150, Ali Mohalla, Bazar Sheikhan, Jalandhar. The learned Additional District Judge has reversed the findings of the trial Court which had decreed the suit vide judgment and decree dated 26.8.1981 by holding that the will Ex.P1 dated 5.9.1977 was the genuine will whereas the will set up by defendant-respondent No. 2 dated 11.4.1979 Ex.D1 was surrounded by suspicious circumstances and the same was liable to be ignored. 2. Brief facts of the case which have led to the filing of this appeal by the plaintiff-appellant are that Civil Suit No. 24 of 1980 for possession of the suit property was filed on 5.2.1980 claiming that father of the plaintiff-appellant Shri Sain Dass was the owner in possession of the suit property. It has been claimed that the suit property was the self acquired property by Shri Sain Dass who had died on 26.7.1979. The plaintiff-appellant propounded a registered will dated 5.9.1977 executed by Shri Sain Dass, nominating him as his only heir and successor to the suit property. The pedigree table would shown that Shri Sain Dass died leaving behind his widow and four children and the same is as under:- Nanak Chand (dead). |----------------|-------------------| Sain| Dass (Kesra Devi (Died| on widow of 26.7| 1979 Sain Dass | Defendant N0.4) |--------------|----|-----------------------| Rajpal Singh Rajinder Pal Singh Defdt. No.2 Yashpal Singh Defdt. No.1 Plaintiff 3 The plaintiff-appellant is the youngest son of defendant Shri Sain Dass, whereas the other two are elder sons, it has been claimed that defendant-respondent Nos. 1 and 2 had been adequately compensated by Shri Sain Dass during his life time by giving them more than their share from the property owned by him. The plaintiff-appellant is claimed to have served his father and mother like an affectionate and obedient son while the other sons were not on good terms with their parents. On account of indifferent attitude of defendant-respondent No. 1, his father published a declaration in the Urdu Daily Hindu Samachar dated 15.12.1965 stating that defendant-respondent No. 1 had been separated from execution of the will and has been compensated for more than his share. On account of indifferent attitude of defendant-respondent No. 1, his father published a declaration in the Urdu Daily Hindu Samachar dated 15.12.1965 stating that defendant-respondent No. 1 had been separated from execution of the will and has been compensated for more than his share. The plaintiff-appellant who had been working as a Clerk in the office of Superintendent of Police, Ferozepur has been residing at Ferozepur Cantt. On account of his absence, defendant-respondent Nos. 1 and 2 are alleged to have taken away Shri Sain Dass and Smt. Kesra Devi by misrepresenting them that they were being taken to Ferozepur Cantt. It is claimed that the plaintiff-appellant had been serving and looking-after his father Shri Sain Dass and also defendant-respondent No. 4 Kesra Devi, his mother. Shri Sain Dass is claimed to have died at Ferozepur on 26.7.1979. 4. The stand taken by the defendant-respondent Nos. 1 and 2 in their written statement is that the will propounded by the plaintiff-appellant dated 5.9.1977 was a bogus and forged document and the same had never been executed by deceased Shri Sain Dass. It is further claimed that testator Shri Sain Dass was not in a sound disposing mind at the time of execution of the will and the plaintiff-appellant was in a position to exercise undue influence on him. It is further claimed that the plaintiff-appellant did not ever render any service to the testator, rather he tortured him with the object of grabbing his property. The allegation of lack of love and affection with the defendant-respondents has been denied. It is further claimed that in fact Shri Sain Dass testator executed a will in favour of defendant-respondent Nos. 1 and 2 out of natural love and affection and the services rendered by them. The possession of the house was with their father i.e. Shri Sain Dass and it was delivered to defendant-respondent Nos. 1 and 2. 5. The stand taken by defendant-respondent No. 4 Smt. Kesra Devi is that the plaintiff-appellant served his father like an affectionate and obedient son while defendant-respondent Nos. 1 and 2 were not on good terms with testator Shri Sain Dass or with defendant No. 4 who is the mother of plaintiff-appellant as well as defendant-respondent Nos. 1 to 3. 5. The stand taken by defendant-respondent No. 4 Smt. Kesra Devi is that the plaintiff-appellant served his father like an affectionate and obedient son while defendant-respondent Nos. 1 and 2 were not on good terms with testator Shri Sain Dass or with defendant No. 4 who is the mother of plaintiff-appellant as well as defendant-respondent Nos. 1 to 3. It is further averred that out of natural love and affection towards the plaintiff-appellant, the will dated 5.9.1977 was executed by Shri Sain Dass when he was in sound disposing mind. 6. On the pleading of the parties, the following issues were framed :- 1. Whether the plaintiff is entitled for possession of a portion of house No. 150- WB as alleged in the head note of the plaint? OPP 2. Whether the registered will dated 5.9.77 in favour of the plaintiff is valid and binding on the parties? OPP 3. Whether the will dated 11.4.79 in favour of defendant Rajpal Singh and Rajinder Pal Singh is valid and binding on the parties? OPP 4. Whether the suit is properly valued for the purposes of court fee and jurisdiction? OPP 5. Relief. 7. On issue Nos. 1 to 3, the findings recorded by the trial Court are that the will Ex.D1 dated 11.4.1979 propounded by defendant-respondent Nos. 1 and 2 is surrounded by suspicious circumstance and, therefore, it has not been held to be a valid will. However, the will dated 5.9.1977 propounded by the plaintiff-appellant has been found to be executed by Shri Sain Dass validly. On issue No. 2 which is with regard to execution of the will dated 5.9.1977 in favour of plaintiff-appellant, the trial Court categorically held that flawless evidence has been produced by the plaintiff-appellant with regard to execution of will dated 5.9.1977. The basis of the aforementioned findings are the statements made by Gurbachan Lal PW-1 and Narain Dass PW2. PW2 Narain Dass testified that the will was scribed by the petition writer Haveli Ram who was his cousin. Being conversant with his hand-writing and signatures, he identified the entry in the register at serial No. 98 dated 5.9.1977 with regard to execution of the will. The signatures of Sh. Sain Dass testator also appeared against that entry and the witness identified the handwriting and signatures of the petition writer after examining the original will Ex.P1. Being conversant with his hand-writing and signatures, he identified the entry in the register at serial No. 98 dated 5.9.1977 with regard to execution of the will. The signatures of Sh. Sain Dass testator also appeared against that entry and the witness identified the handwriting and signatures of the petition writer after examining the original will Ex.P1. It is further appropriate to mention that the plaintiff-appellant has also appeared as his own witness reiterating the assertions made in the plaint. It was accordingly held by the trial Court that the plaintiff-appellant was entitled to succeed to the estate of the testator on the basis of the valid will. 8. A preliminary objection was raised by defendant-respondent Nos. 1 and 2 with regard to deficiency of court fee under issue No. 4 but the same was rendered infructuous because the deficiency was made good on 18.9.1980. In view of the findings recorded on issue Nos. 1 to 3, the suit of the plaintiff-appellant was decreed. 9. Aggrieved by the judgment and decree dated 26.8.1981 passed by the learned trial Court, defendant-respondent Nos. 1 and 2 filed an appeal. The learned Additional District Judge maintained the findings that the will set up by defendant-respondent Nos. 1 and 2 dated 11.4.1979 was surrounded by suspicious circumstances and could not be relied upon. However, she went to the extent of holding that even the will Ex.P1 set up by the plaintiff-appellant is unreliable. The suspicious circumstances mentioned were that defendant-respondent Nos. 1 and 2 who were the natural heirs have been disinherited to the exclusion of plaintiff-appellant alone and nothing was even left for the wife of the testator. Another suspicious circumstance mentioned is that Yash Pal Singh plaintiff-appellant who is the main beneficiary of the will Ex.P1 dated 5.9.1977 was present and took prominent part in the execution of the will. The view of the learned Additional District Judge with regard to these suspicious circumstances reads as under: "...... Admittedly in the will Ex.P1, it has been mentioned that Raj Pal Singh and Rajinder Pal Singh were not looking after the testator and Shakuntala Devi, is married happily in her house and Smt. Kesra Devi is being looked after by Yash Pal Singh, plaintiff. However, it is highly unbelievable that the testator would have disinherited his wife and left her at the mercy of his son. However, it is highly unbelievable that the testator would have disinherited his wife and left her at the mercy of his son. It is an admitted case of the parties that the deceased and his wife alone were living and none of their sons was living with them. So, in such circumstances, it cannot be believed that the testator would have dis-inherited his own wife who served him throughout his life or he would have through (thrown?) her at the mercy of his sons. In the will Ex.P1, there is also no provision for the maintenance of the widow. There is also no convincing evidence on the record to show that the testator was not having cordial relations with his other sons. It was the case of the plaintiff that his father had disinherited Rajinder Pal Singh and Rajinder Pal Singh (Raj Pal Singh?) from his estate and had published the news in the paper to that effect. However, this remains unsubstantiated from the record. There is also absolutely no evidence on the record to show that the relations of the testator were strained with his other sons as claimed by the plaintiff. Rather, it has come in evidence that the testator prior to his death was living with defendants No. 1 and 2 and they were looking after him when he was lying ill prior to his death. The testator died at Ferozpur at the place of one of the defendants so, this circumstance falsifies the contention of the plaintiff that the testator was not having cordial relations with his other sons. The next suspicious circumstances pointed out by the counsel for the appellant is that Yash Pal Singh, the main beneficiary in the will was present and he took prominent part in bringing into existence the impugned will. Gurbachan Dass, attesting witness of the will admitted that Yash Pal Singh was present in the Tehsil compound where the will was executed and he had also paid the charges to the petition writer. He also admitted the presence of Yash Pal Singh at the time of registration. He also admitted that even the registration charges were paid by Yash Pal Singh. So, this circumstance also goes to show that Yash Pal Singh took a prominent part in bringing into existence this will. He even dominated the testator at the time of execution of the will. He also admitted that even the registration charges were paid by Yash Pal Singh. So, this circumstance also goes to show that Yash Pal Singh took a prominent part in bringing into existence this will. He even dominated the testator at the time of execution of the will. So, this circumstance throws suspicion on the genuineness of the will. Mr. Bahri, however, contended that the execution of the will Ex.P1 stands proved because even in the subsequent will Ex.D1 there is a mention of this will. Undoubtedly, there is a mention is this will Ex.D1 regarding the earlier will. However, the reference to the will in Ex.D1 does not prove that the same was executed by the testator voluntarily of his free violation. In the will, Ex.D1, the testator had revoked the earlier will and had specifically written that no effect should be given to the will Ex.P1. It appears to me that a greed for the property is more dearer to the brothers than their blood relationship. Each of them was over anxious to get a small house which their father possessed in his life time. Yash Pal Singh plaintiff wanted to have the entire house to the exclusion of others. However, Rajinder Pal Singh and Raj Pal Singh were anxious to exclude Yash Pal Singh. The bad blood between the brothers also appears to be regarding the sharing of the property left by their father. So, in view of the suspicious circumstances surrounding the will Ex.P1. I am of the opinion that the same is also not worth credence and deserves to be rejected and property be inherited by all the heirs equally." 10. Mr. H.S. Giani, learned counsel for the plaintiff-appellant has argued that the findings recorded by the trial Court with regard to will dated 5.9.1977 Ex.P1 have been unlawfully reversed by the learned lower appellate Court on the basis of so called two suspicious circumstances, namely (a) that the other natural heirs have been disinherited like defendant-respondents 1 to 4 to the exclusion of the plaintiff-appellant; and (b) that the plaintiff-appellant took an active and prominent part in the preparation and execution of the will. The learned counsel has pointed out that defendant-respondent No. 1 was disinherited as is clear from the proclamation made in Urdu Daily Hindi Samachar dated 15.12.1965. The learned counsel has pointed out that defendant-respondent No. 1 was disinherited as is clear from the proclamation made in Urdu Daily Hindi Samachar dated 15.12.1965. He has also invited my attention to paragraph 12 of the written statement filed by defendant No. 4, the mother of the plaintiff-appellant and defendant-respondent Nos. 1 to 3 Kesra Devi wherein she has supported the stand of the plaintiff-appellant. In her written statement, Kesra Devi has averred that defendant-respondent Nos. 1 and 2 did not serve Sh. Sain Dass her husband nor they served her. She has fully endorsed the execution of the will dated 5.9.1977 Ex.P1. The learned counsel has placed reliance on a judgment of the Supreme Court in the case of Surender Pal and Anr. v. Dr. (Mrs.) Saraswati Arora and Anr., A.I.R. 1974 S.C. 1999 and Naranjan Singh v. Mst. Dipo and Ors., 197 P.L.J. 523 to argue that mere presence of beneficiary at the time of execution of the will by itself cannot be considered as a suspicious circumstance. 11. Mr. B.R. Mahajan, learned counsel for defendant-respondent Nos. 1 and 2 has argued that there is neither any oral evidence nor any documentary evidence to prove the fact that there were strained relations between defendant-respondent Nos. 1 and 2 and Sh. Sain Dass. According to the learned counsel in the absence of any evidence, no finding could be recorded to that effect. Assailing the genuineness of will Ex.P1 propounded by the plaintiff-appellant, the learned counsel has contended that no provision has been made for the widow mother Kesra Devi nor anything has been given to defendant-respondent Nos. 1 to 3. The learned counsel has also pointed out that the age of the testator at the time of execution of the will was 80 years and presence of the beneficiary at the time of execution assumes significance. He has also pointed out that the theory of strained relationship is completely exploded when it is remembered that the plaintiff-appellant himself has pleaded that Sh. Sain Dass, the testator used to live with defendant-respondent Nos. 1 and 2. The learned counsel has urged for upholding the later will dated 11.4.1979 Ex.D1 propounded by defendant-respondent Nos. 1 and 2 which is also a registered document. 12. Sain Dass, the testator used to live with defendant-respondent Nos. 1 and 2. The learned counsel has urged for upholding the later will dated 11.4.1979 Ex.D1 propounded by defendant-respondent Nos. 1 and 2 which is also a registered document. 12. After hearing learned counsel for the parties and perusing the record, I am of the considered view that this appeal deserves to be allowed because two suspicious circumstances pointed out by the learned Additional District Judge in respect of will dated 5.9.1977 Ex.P1 cannot constitute a legal basis to conclude that the will was not validly executed. It has been pointed out that the plaintiff-appellant was present at the time of execution of the will Ex.P1 dated 5.9.1977 and took active part in bringing into existence that document. It is well settled that in the absence of any material to the contrary, mere presence of beneficiary at the time of execution of the will or at the time of registration of the will would not make the will as the one surrounded by suspicious circumstances. In support of the aforementioned view, it may be apposite to refer to the judgment of the Supreme Court in Surindra Pals case (supra) and the same has been followed by this Court in Niranjan Singhs case (supra). In Surindra Pals case (supra) it has further been held that the propounder must prove that the will was signed by the testator in a sound disposing state of mind and in the presence of two witnesses. Once these facts are established the onus stands discharged. In this regard the view of the their Lordships reads as under:- "The propounder has to show that the will was signed by the testator; that he was at the relevant time in a sound disposing state of mind, that he understood the nature and effect of the dispositions, that he put his signature to the testament of his own free will and that he has signed in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. Once these elements are established, the onus which rests on the propounder is discharged. But there may be cases in which the execution of the will itself is surrounded by suspicious circumstances/such as, where the signature is doubtful, the testator is of feeble mind or is overawed by powerful minds interested in getting his property, or where in the light of the relevant circumstances the dispositions appear to be unnatural improbable and unfair, or where there are other reasons for doubting that the dispositions of the will are not the result of the testators free will and mind. In all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the will is accepted. Again in cases where the propounder has himself taken a prominent part in the execution of the will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence. After all, ultimately it is the conscience of the Court that has to be satisfied, as such the nature and quality of proof must be commensurate with the need to satisfy that conscience and remove any suspicion which a reasonable man may, in the relevant circumstances of the case, entertain. See H. Venkatachala Iyengar v. B.N. Thimmajamma, A.I.R. 1959 S.C. 443; and Rani Purnima Debi v. Khagendra Narayan Deb, A.I.R. 1962. S.C. 567. In the latter case this Court, after referring to the principles stated in the former case emphasised that where there are suspicious circumstances the onus will be on the propounder to explain them to the satisfaction of the Court before the will could be accepted as genuine; and where the caveator alleges undue influence, fraud and coercion the onus is on him to prove the same..." When the facts of the present case are examined in the light of the principles laid down in Surendra Pals case (supra) then it becomes evident that the plaintiff-appellant has led cogent evidence showing the execution of the will in the presence of two witnesses. He has also proved the fact that the testator Shri Sain Dass was in sound disposing mind. The will was registered afterwards. He has also proved the fact that the testator Shri Sain Dass was in sound disposing mind. The will was registered afterwards. Therefore, the suspicious circumstance pointed out by the learned Additional District Judge that the plaintiff-appellant was present at the time of execution of the will without anything more cannot be of any significance and that by itself is not a suspicious circumstance. The other suspicious circumstance that defendant-respondent Nos. 1 and 2 have been excluded from the benefits of testamentary presents could also not constitute any basis for declaring the will as invalid because all the indications in the evidence as well as in the written statement filed by defendant-respondent No. 4 Smt. Kesra Devi are that defendant-respondent Nos. 1 and 2 were not in good books of the testator. Moreover, defendant-respondent Nos. 1 and 2 have made an attempt to get a document executed (Ex.D1) dated 11.4.1979 to claim that the testator Shri Sain Dass has bequeathed his whole property to them. Had there been any love and affection between Shri Sain Dass and defendant-respondent Nos. 1 and 2, there was hardly any necessity of creating a document like Ex.D1 which has been found by both the Court as having never been executed by testator Shri Sain Dass. Even the learned Additional District Judge has not been able to touch that finding of the trial Court. Therefore, I am of the considered opinion that the learned Additional District Judge has based his finding to discard the will dated 5.9.1977 Ex.P1 on the basis of conjecture and surmises. The well reasoned findings recorded by the trial Court on the basis of evidence and the pleadings could have resulted into only one finding that the will dated 5.9.1997 was the valid will and was duly executed by testator Shri Sain Dass. 13. The argument that there is no evidence showing love and affection between Shri Sarin Dass and the plaintiff-appellant, would not require any detailed consideration in view of the fact that mother of defendant-respondent Nos. 1 and 2 has made it absolutely clear that defendant-respondent Nos. 1 and 2 did not have any respect for their father. Moreover, defendant-respondent Nos. 1 and 2 never claimed any issue on the aforementioned controversy and point is being raised for the first time before this Court which in law is impermissible. Therefore, I have no hesitation in rejecting the aforementioned argument. 1 and 2 did not have any respect for their father. Moreover, defendant-respondent Nos. 1 and 2 never claimed any issue on the aforementioned controversy and point is being raised for the first time before this Court which in law is impermissible. Therefore, I have no hesitation in rejecting the aforementioned argument. 14. For the reasons recorded above, this appeal succeeds and the cross objections filed by defendant-respondent Nos. 1 and 2 are dismissed. The judgment and decree dated 26.8.1981 passed by the trial court is restored. However, there would be no order as to costs.