JUDGMENT Hon’ble S.N. Srivastava, J.—This second appeal has been preferred assailing the judgment and decree dated 25.2.1987 passed by District Judge Saharanpur whereby he reversed the judgment and decree dated 29.2.1980 rendered by the trial court attended with the order of decreeing suit for cancellation of the Will dated 14.10.1976 (Ex. A-16). 2. The plaint allegations inter-alia are that one Munshi, resident of village Ballu Pargana Gangoh District Saharanpur who was the owner of the property in dispute, adopted the plaintiff and thereafter in order to scotch the possibility of future dispute, executed a Will on 1.10.1973 in his favour. The other defendants namely defendants 1 and 2 who happen to be sons of brother of Munshi, after gaining knowledge of execution of the Will, tried to abduct Munshi and ultimately succeeded in whisking him away on 29.9.1976 in respect of which an application was made to Superintendent of Police Saharanpur. The further allegations are that during the period, the aforesaid Munshi was kept in confinement, the defendants procured a Will executed on 14.10.1976 before Sub Registrar, Sadar Saharanpur despite knowing well that the property fell within the circle of Tahsil Nakur District Saharanpur; that the Will in question executed on 14.10.1976 was null and void the same having been obtained by fraud and by exerting undue influence; that during pendency of suit, the defendant No. 2 executed a registered sale deed in favour of defendant No. 3, namely, Ali Hasan on 24.5.1978. Besides seeking relief of cancellation of Will in question, a further relief of cancelling of sale deed executed on 24.5.1978 was also prayed for. On the other hand, the allegations of abduction and illegal confinement have been specifically denied and it was pleaded that Munshi had executed the Will dated 14.10.1976 out of his free-will and volition and that the allegations of fraud, undue influence and of procuring execution of registered Will dated 14.10.1976 have been categorically repudiated. It has further been pleaded that the defendants were in actual physical possession over the property and that the plaintiff committed murder of Munshi upon gaining knowledge about the sale deed and was tried though, ultimately, he was acquitted; that the Will in favour of defendants was rightly executed by Munshi and there was not an iota of illegality, fraud or undue influence as alleged by the plaintiff and in the finally he prayed for dismissal of the suit. 3. It would appear from the record that the trial court framed as many as eight issues. The quintessence of the finding recorded by the trial court is that the Will dated 14.10.1976 was a valid document; that the plaintiff has failed to prove from any materials on record that the Will dated 14.10.1976 was obtained by fraud or by exerting undue influence; that the execution and attestation of the Will was proved as required under the law and in the ultimate analysis, it dismissed the suit vide judgment and decree dated 29.2.1980. An appeal preferred against the said judgment and decree also culminated in being dismissed by the appellate court and thereafter the matter was taken is second appeal before this Court. It would appear from the record that the second appeal and cross objections in the first round of litigation were allowed vide judgment and decree dated 15.3.1986 of the Court and the case was remanded to District Judge, Saharanpur to give verdict on limited points as indicated in the judgment attended with further direction that a clear finding be recorded in the light of observations made in the judgment further observing that the controversy arising from the appeal of the plaintiff would be redecided. According to the view held by the Court in the aforesaid judgment indicated in the judgment, no categorical finding had been recorded on the question whether the Will was genuine and whether it superseded the earlier Will and further the main controversy arising out of appeal of the plaintiff having not been decided by the lower appellate court, the matter was fit to be relegated for being decided on limited points. In view of remand, the appeal was re-registered by the District Judge Saharanpur and vide judgment and decree of the lower appellate court dated 25.2.1987, the appeal was allowed on the grounds that the case bristled with suspicious circumstances which, to rephrase, shocked the conscience of the Court and hence it could not be said that the Will was genuine and was executed by Munshi in favour of defendant-Man Singh and further that the Will executed in favour of plaintiff appellant Dharam Singh was not revoked by execution of subsequent Will (Ex.A 16). 4. This Court admitted the second appeal on substantial questions of law enumerated as substantial questions of law Nos. 4. This Court admitted the second appeal on substantial questions of law enumerated as substantial questions of law Nos. 1 to 3 which are quoted below : (1) Whether the execution of the Will dated 14.10.1976 being admitted between the parties and further having been duly proved by the evidence of the appellant, the said Will could be cancelled without any finding that the same was obtained by fraud or undue influence? (2) Whether there is a presumption of the Will having been executed by the testator of his free will and in a fit disposing state of mind after full comprehension of the contents of the same in view of the endorsement by the Registrar to the above effect on the Will and that the same has not been rebutted on the part of respondent No. 1? (3) Whether there exists any suspicious circumstance about the Will? 5. The learned counsel for the appellant canvassed that none of the grounds spelt out by the lower appellate court for treating the circumstances as enumerated in the judgment as suspicious circumstances could be sustained. It was further urged that the execution and registration of the Will dated 14.10.1976 was proved without there being an iota of suspicious circumstance and the circumstances cited by the lower appellate court as suspicious circumstances do not constitute suspicious circumstances nor are they borne out from the record. It is further canvassed that the findings of suspicious circumstances are perverse and further that the same shock the conscience of the court are unsustainable in law. It was further canvassed that the entire materials on record clearly go to show that the Will was rightly executed and the Will in favour of plaintiff stood revoked by subsequent Will. 6. Per contra, Sri Manoj Mishra, appearing for respondents contended that the lower appellate court reckoned with relevant materials which constituted suspicious circumstances inasmuch as the circumstances which were treated as suspicious circumstances were not contradicted nor explained by the defendant appellant. He further contended that both the attesting witnesses had kinship and no independent witness was there coupled with the fact that suspicious circumstances spelt out in the judgment of the appellate court clearly make out a case that no Will dated 14.10.1976 was executed and it was nothing but a fraud committed on Munshi. He further contended that both the attesting witnesses had kinship and no independent witness was there coupled with the fact that suspicious circumstances spelt out in the judgment of the appellate court clearly make out a case that no Will dated 14.10.1976 was executed and it was nothing but a fraud committed on Munshi. It is further canvassed that the finding of the lower appellate court is borne out from the materials on record attended with further contentions that merely non-reversal of some of the grounds would not impair the soundness of the judgment. 7. Both the learned counsel for the parties copiously cited decisions in support of their respective case, which I propose to deal with in the latter part of this judgment. 8. Having considered the rival submissions of the learned counsel for the parties, I feel called to take up substantial question No. 3 relating to the aspect of suspicious circumstance about execution of Will dated 14.10.1976 which has bearing on the controversy involved in this appeal. 9. A close scrutiny of the decision of the lower appellate court transpires following circumstances, which were daubed as suspicious circumstances : (a) That the deceased Munshi was a resident of village Balu where he had his property. Munshi was aged about 90 or 95 years when the Will dated 14.10.76 was executed. He was an illiterate man and his eyesight was also weak. He did not have any son or daughter and his wife had also died. He had executed a Will in favour of plaintiff appellant Dharam Singh on 1.10.1973 in respect of his entire property. Village Balu lies in Tahsil Nakur where office of the Sub Registrar exists. The distance of Nakur from village Balu is less than that of Saharanpur, where the impugned Will was registered. (b) That the Plaintiff has filed certified copy of the application dated 28.9.1976 Ex. 5 in which the allegations about the abduction of Munshi have been made. In my view, these facts constitute suspicious circumstances as regards the execution of the Will by Munshi and the burden lies on the propounder of the Will to explain these suspicious circumstances and to satisfy the conscience of the court as regards the genuineness of the Will. (c) That both the attesting witnesses were related to defendant Man Singh who is the beneficiary under the Will. (c) That both the attesting witnesses were related to defendant Man Singh who is the beneficiary under the Will. The defendants could have examined the lawyer concerned who could have asserted that deceased Munshi had taken legal advice from him and on the instructions of Munshi, the Will was written and executed. However, the lawyer concerned was not examined nor his name was disclosed by these witnesses. Further, deceased Munshi was hospitalized and treated in District Hospital Saharanpur but defendants have not produced any evidence to prove that Munshi was ever hospitalized either for treatment of his eye sight or for his urinary trouble and further no independent evidence was produced that Munshi was in village Balu before execution of the Will dated 14.10.1976. 10. By spelling out the above circumstances, the appellate court observed that it cannot be said that the Will Ex. A16 was a genuine Will executed by Munshi nor can it be said that the Will Ex. 6 which was executed by Munshi in favour of plaintiff appellant Dharam Singh was revoked by the subsequent execution of the Will Ex. A.16. 11. In this regard learned counsel for the appellant referred to Sections 17, 28 and 29 of the Registration Act 1908 and argued that so far as Will is concerned it could be registered at Saharanpur Headquarters as well and that Registration Act does not make registration compulsory at a particular Sub-Registry within the periphery of which property is situated. Sections 17, 28 and 29 of the Registration Act being germane on the point, are quoted below : “17. Sections 17, 28 and 29 of the Registration Act being germane on the point, are quoted below : “17. (1) The following documents shall be registered if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which Act No. XVI of 1864, or the Indian registration Act, 1866 (XX of 1866), or the Registration Act, 1871 (VII of 1871), or the Indian Registration Act, 1877 (III of 1877), or this Act came or comes into force, namely, (a) instruments of gift of immoveable property; (b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property; (c) non-testamentary instruments, which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; (d) leases of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent; and (e) non-testamentary instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immoveable property........” xxx xxx xxx “28. Save as in this part otherwise provide, every document mentioned in Sec. 17, sub-section (1), Clauses (a), (b), (c), (d) and (e) Sec. 17, sub-section (2) in so far as such documents affects immoveable property and Sec. 18, Clauses (a), (b), (c), and (cc) shall be presented for registration in the office of a Sub Registrar within whose sub-district the whole or some portion of the property to which such document relates is situated. "29. "29. (1) Every document not being a document referred to in Sec. 28, or a copy of a decree or order, may be presented for registration either in the office of the Sub Registrar in whose sub-district the document was executed or in the office of any other sub-Registrar under the State Government at which all the persons claiming under the document desire the copy to be registered. (2) A copy of a decree or order may be presented for registration in the office of the Sub Registrar in whose sub-district the original decree or order was made, or, where the decree or order does not affect immoveable property, in the office of any other Sub Registrar under the State Government at which all the persons claiming under the decree or order desire the copy to be registered.” 12. From a combined and punctilious reading of the aforesaid Sections, it leaves no manner of doubt that the Will could be registered at Saharanpur Headquarters as well. The circumstance why the Will was got registered at Headquarters’ Saharanpur instead of Tahsil Nakur, within whose sub-district the property laid and further that Sub Registry Nakur lay at a shorter distance vis-à-vis Saharanpur, cannot be upgraded to the height of being one deserving of being treated as suspicions circumstance in view of the fact that it is borne out from the evidence of the two witnesses that deceased Munshi had quite often visited Saharanpur Headquarters even earlier. The Will could as well be registered at Saharanpur and therefore, the view of the lower appellate court that the Will was registered at Saharanpur and not at Nakur Sub-Registry, which lies at a shorter distance from village Balu, does not, in my considered opinion, commend to me for treating it as suspicious circumstance. The other grounds spelt out by the appellate court that lawyer on whose advice the Will was registered on 14.10.1976 was not examined and hence this constitutes one of the suspicious circumstances in execution of the Will also does not appear to be correct proposition. 13. In this connection, decision of the Apex Court in Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande, 2003(96) RD 640 may be referred to. In this decision, the Apex Court has considered the effect of non-examination of Advocate who was present at the time of attestation and execution of the Will. 13. In this connection, decision of the Apex Court in Ramabai Padmakar Patil v. Rukminibai Vishnu Vekhande, 2003(96) RD 640 may be referred to. In this decision, the Apex Court has considered the effect of non-examination of Advocate who was present at the time of attestation and execution of the Will. In paragraph 9 of the said decision, the Apex Court repelled the arguments holding that non-examination of the Advocate who was present cannot spawn a doubt regarding authenticity of the Will in view of Section 63 of the Indian Succession Act and proviso to Section 68 of the Evidence Act. Paragraph 9 of the said decision being germane, is abstracted below : “The learned District Judge has observed that Smt. Yamunabai was very old when she executed the Will and she was hard of hearing and was unable to walk. He further observed that Chhaya Dighe who typed the Will and one Shri Tiwari, Advocate, who was present at the time of preparation and execution of the will, were not examined and these facts together created a doubt regarding the authenticity of the will. As discussed earlier, in view of Section 63 of the Indian Succession Act and the proviso to Section 68 of the Evidence Act, the requirement of law would be fully satisfied if only one of the attesting witness is examined to prove the will. That this had been done in the present case by examining PW-2 Raghunath Govind Sogale cannot be disputed. No infirmity of any kind had been found in the testimony of this witness. Chhaya Dighe merely typed the Will and she is not an attesting witness nor it is anybody’s case that Smt. Yamunabai had put her thumb impression on the Will in her presence, therefore, her examination as witness was wholly redundant. The mere non-examination of the Advocate who was present at the time of preparation or registration of the will cannot, by itself, be a ground to discard the same. The fact that Smt. Yamunabai was hard of hearing or that she was unable to walk does not lead to an inference that her mental faculties had been impaired or that she did not understand the contents of the document which she was executing. The fact that Smt. Yamunabai was hard of hearing or that she was unable to walk does not lead to an inference that her mental faculties had been impaired or that she did not understand the contents of the document which she was executing. It is important to note that Smt. Yamunabai personally came to the office of the Sub-Registrar and her death took place after a considerable period i.e. 3 years and 9 months after the execution of the will. No evidence has been adduced by the defendants to show that at the time of the execution of the Will she had been suffering from any such ailment which had impaired her mental faculties to such an extent that she was unable to understand the real nature of the document which she was executing. We are, therefore, clearly of the opinion that the finding recorded by the learned District Judge, which has been affirmed by the High Court in second appeal, is not based upon a correct application of legal principles governing the proof and acceptance of Will and the same is completely perverse. The aforesaid finding is accordingly set aside. The finding recorded by the trial Court that the will is genuine is hereby restored.” 14. Reverting to the present case, it would appear that two witnesses who were shown to be having kinship with defendant Man Singh were examined to prove execution and attestation of the Will, who, in my considered opinion, proved to the hilt the attestation and execution of the Will. The trial court also reckoned with the evidence of the parties and found execution and attestation of the Will to be proved. It is worthy of notice here that the finding of the trial court that attestation of Will executed by Munshi dated 14.10.1976 is proved by attesting witnesses has not been reversed by the lower appellate court. It is also significant to mention here that the lower appellate court has reckoned into account Ex. 5 i.e. application filed by plaintiff on 28.9.76 containing allegations of abduction of Munshi and there is nothing on record to suggest whether pursuant to the said application, any proceeding was initiated or prosecution was launched. Even the contents of that application do not seem to have been proved from any material on record. The lower appellate court without any valid basis treated the allegations contained in Ex. Even the contents of that application do not seem to have been proved from any material on record. The lower appellate court without any valid basis treated the allegations contained in Ex. 5 as suspicious circumstance. 15. In the galaxy of various other materials on record and finding of the trial court and consideration of materials it is clearly established that Munshi and Tulsi resided in the same house and plaintiff was prosecuted and punished for theft in the said house which is borne out from judgment on record coupled with the fact that the plaintiff initially, proceeded with the case that he was adopted son which he could not prove and therefore trial court disbelieved the case of adoption. The further fact that defendants 1 and 2 were the real sons of brother of Munshi clearly makes out a case that the finding of the trial court that execution and attestation of the Will is proved cannot be said to be suffering from any blemish and tainted by any suspicious circumstances in contra-indication of what has been held by the lower appellate court in its decision. The argument of the learned counsel for the respondents that attesting witnesses were the relatives and no independent witness was produced and therefore, proceeds the argument, the lower appellate court has rightly treated it as suspicious circumstance, do not commend to me for acceptance. In this connection decision of Apex Court in Rabindra Nath Mukherjee and another v. Panchanan Banerjee, (1995) 4 SCC 459 may be noticed. In this case, the Apex Court was seized of similar question as contained in Substantial Question No. 3 and in para 6 of the said decision, the Apex Court dealt with the question whether the witnesses to the documents were interested and active part was played by a close relation of one of the executors. The quintessence of what has been held by the Apex Court is that in case where a will is registered and the Sub Registrar certifies that the same had been read over to the executor who on doing so admitted the contents, the fact that the witnesses to the document are interested loses significance. The quintessence of what has been held by the Apex Court is that in case where a will is registered and the Sub Registrar certifies that the same had been read over to the executor who on doing so admitted the contents, the fact that the witnesses to the document are interested loses significance. It was further observed that the documents at hand were registered and it is on record that the Sub Registrar had explained the contents to the old lady, so we do not find the third circumstance as suspicious on the facts of the present case. 16. In view of the above, this Court is of the firm view that the finding of the lower appellate court treating certain circumstances as suspicious circumstances surrounding the execution/attestation of the Will cannot be countenanced and lower appellate court erred in law in recording the finding and decree the suit. 17. In the result the question No. 3 is decided in favour of defendants and this court finds no suspicious circumstances existing about attestation and execution of the Will and the finding of the trial court was rightly recorded and were borne out from the record. 18. In the result, second appeal succeeds and is allowed and the impugned decree passed by the lower appellate court is set aside. The suit in consequence shall stand dismissed. In the facts and circumstances of the case, there will be no order as to costs. Appeal Allowed. ———