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2010 DIGILAW 849 (HP)

Budhi Parkash v. Hotem Ram

2010-06-01

V.K.SHARMA

body2010
JUDGMENT V.K. Sharma, Judge The present appeal at the instance of the contesting defendants is against the judgment and decree, dated 14.12.2007, of the learned District Judge, Kullu, H.P. in Civil Appeal No. 7/2007, titled Hotam Ram and another versus Budhi Parkash and others, whereby the judgment, dated 14.11.2005, of the learned trial Court, Civil Judge (Junior Division), Manali, Camp at Kullu, H.P. in Civil Suit No. 36 of 2002/156/04-M, titled Hotam Ram and another versus Budhi Parkash and others, was reversed and thereby the aforesaid Civil Suit for grant of a decree of declaration with consequential relief of injunction filed by the contesting respondents herein as plaintiffs against the appellants and the proforma respondents herein as contesting defendants and proforma defendants, respectively, which was dismissed by the learned trial Court, has been decreed by allowing the appeal. 2. The dispute between the parties concerns the estate of late Shri Jagat Ram @ Jagatu, grand father of the plaintiffs comprised of Khata No. 239, Khatauni No. 424, Khasra No. 840, measuring 2-16-0 bighas, vide Jamabandi for the year 1992-93, situate at Phati Shirar, Kothi Raison, Tehsil & District Kullu (H.P.), which shall hereinafter be referred to as the suit land. For the sake of convenience, the parties shall also be referred to hereinafter by their status as it was before the learned trial Court, i.e. plaintiffs, contesting defendants and proforma defendants, respectively. 3. Whereas, the plaintiffs have based their claim to the suit land as owners in possession in equal share on the basis of Will Ext. PW-2/A, dated 4.3.1992, said to have been executed in their favour by their grand father late Shri Jagat Ram @ Jagatu, who shall hereinafter be called as the 'deceased', the defendants have set up another Will Ext. DA, dated 12.5.1997, said to have been executed by the deceased in their favour. 4. Whereas, proforma defendants No. 3 & 4, Jog Ram and Shakuntla Devi @ Tara Devi are son and daughter, respectively of the deceased, the plaintiffs are sons of proforma defendant No. 3, Shri Jog Ram. 5. At the time of filing of the suit, the plaintiffs were minor and were represented by their mother-cum-next friend, Smt. Dolma. 6. The case set up by the plaintiffs is that the deceased was owner in possession of the suit land. He died on 24.11.1998. He was 'Harijan' (Cobbler) by caste. 5. At the time of filing of the suit, the plaintiffs were minor and were represented by their mother-cum-next friend, Smt. Dolma. 6. The case set up by the plaintiffs is that the deceased was owner in possession of the suit land. He died on 24.11.1998. He was 'Harijan' (Cobbler) by caste. The proforma defendants were born out of the loins of the deceased. The suit land was allotted in favour of the deceased by the Government as 'Nautor'. After allotment, he made it cultivable and planted an orchard therein. The deceased and proforma defendants lived together under one roof. He was looked-after and served by proforma defendant No. 3 and as such, in lieu of the services rendered by proforma defendant No. 3 and the plaintiffs, the deceased executed his "last, final and valid" registered Will, dated 4.3.1992, in favour of the plaintiffs in equal share and as such, they have become owners in' possession of the suit land after the death of the deceased on 24.11.1998. According to the plaintiffs, the last rites and rituals of the deceased were performed by proforma defendant No. 3 and the plaintiffs as per custom. The original Will propounded by the plaintiffs was annexed with the plaint. It was further averred that defendants No. 1 & 2 are Rajput by caste. However, they have been keeping an eye on the suit land and were trying to grab the same by hook or crook. With this motive, they propounded a forged and fictitious Will in respect of the suit land said to have been executed by deceased in their favour on 12.5.1997. Whereas, the deceased never executed any Will in favour of the contesting defendants as there was no relationship between the deceased and the contesting defendants and their father. The alleged Will was never signed by the deceased during his life time. The contesting defendants never served the deceased during his life time nor did they perform any rites and rituals after his death. The plaintiffs further went on to aver that the action of the contesting defendants is highly improbable and rather it can be termed as "atrocity played on the Harijan proletarian caste by Rajput defendants". The question of rendering services to the deceased and performance of his last rites and rituals by the contesting defendants did not arise. 7. The plaintiffs further went on to aver that the action of the contesting defendants is highly improbable and rather it can be termed as "atrocity played on the Harijan proletarian caste by Rajput defendants". The question of rendering services to the deceased and performance of his last rites and rituals by the contesting defendants did not arise. 7. It was further pleaded that in the garb of the alleged fictitious and forged Will, the contesting defendants got mutation No. 1511 entered and attested in their favour, vide Rapat No. 134, dated 25.12.1998 in connivance with the revenue officials behind the back of the plaintiffs and thus, the same is not binding upon them. The alleged Will propounded by the contesting defendants is highly suspicious. It does not bear the signatures of the deceased. The attesting witnesses are not from the locality and rather they are interested witnesses. Disposition is highly suspicious being an "inter caste disposition" as there was no occasion for the deceased to execute the alleged Will in favour of the contesting defendants. Had the alleged Will been ever executed by the deceased, there ought to have been a mention therein about the earlier Will, dated 4.3.1992, especially when both the Wills are purported to be scribed by the same petition writer. 8. It was lastly averred that the suit land was never owned and possessed by the contesting defendants and the revenue entries to this effect are not in accordance with the facts of the case and as such, the plaintiffs are not bound by the same. 9. The contesting defendants laid challenge to the suit on legal objections-regarding maintainability, valuation, the plaintiffs having not come to the Court with clean hands and guilty of suppression of true and material facts disentitling them for grant of discretionary relief of injunction, cause of action, estoppel, the suit not having been properly instituted and constituted and limitation. 10. On merits, the description of the suit property as also the factum that the deceased was 'Harijan' (Cobbler) by caste and birth of proforma defendants being his progeny were admitted by necessary implication. It was also admitted that the deceased had acquired the suit land by way of 'Nautor' grant. 10. On merits, the description of the suit property as also the factum that the deceased was 'Harijan' (Cobbler) by caste and birth of proforma defendants being his progeny were admitted by necessary implication. It was also admitted that the deceased had acquired the suit land by way of 'Nautor' grant. However, it was averred that the deceased was God brother of Shri Megh Nath, father of the contesting defendants who had been looking-after the deceased and rendering whole hearted services to him for the last more than 15 years. It was further averred that after the death of the wife of the deceased, the plaintiffs have been residing with their maternal uncle quite far away from the house of the deceased and feeling alone, the deceased had started living alone under the care of the contesting defendants. 11. On the other hand, the plaintiffs never cared to see and look-after the deceased and even never visited their father at village Shirar. The family of the contesting defendants treated the deceased as their own family member and looked-after, maintained and rendered whole hearted services to him and in lieu of past and future services, he executed a registered Will, dated 12.5.1997 in favour of the contesting defendants. It was further pleaded that the deceased died on 24.11.1998. The contesting defendants "also managed for the performance of the last rites and cremation ceremony" of the deceased and the plaintiffs even did not come on the day of his demise/cremation. According to the contesting defendants, after the death of the deceased, the suit land has been rightly mutated on the basis of registered Will, dated 12.5.1997, executed by the deceased in their favour. The plaintiffs did not raise any objection at the time of attestation of the mutation. The contesting defendants are absolute owners in possession of the suit land, who have raised and maintained apple, walnut and plum orchards over the same during the life time of the deceased and have spent more than Rs. 2 lac on the same. The plants have started bearing fruits. 12. It was denied that the deceased had executed Will, dated 4.3.1992, in favour of the plaintiffs. While admitting that the contesting defendants are Rajput by caste, it was averred that the deceased being God brother of their father, was respected and treated as a family member by them. 13. The plants have started bearing fruits. 12. It was denied that the deceased had executed Will, dated 4.3.1992, in favour of the plaintiffs. While admitting that the contesting defendants are Rajput by caste, it was averred that the deceased being God brother of their father, was respected and treated as a family member by them. 13. By filing a separate reply, the proforma defendants admitted the entire case as pleaded by the plaintiffs, including that the contesting defendants, who are Rajput by caste, never served the deceased during his life time nor did they perform his last rites and rituals. 14. On the above pleadings, the parties went to trial on the following issues: 1. Whether the plaintiffs are owners in possession of the suit land, as alleged? OPP 2. Whether deceased Jagat Ram alias Jagatu has executed valid registered Will dated 4.3.1992 in favour of the plaintiffs, as alleged? OPP 3. Whether suit of the plaintiff is within time? OPP 4. Whether the plaintiffs are estopped from filing the present suit by their act and conduct, as alleged? OPD 5. Whether the suit of the plaintiffs is not properly valued for the purpose of court fee or jurisdiction? OPD 6. Whether deceased Jagat Ram alias Jagatu has executed valid registered Will dated 12.5.1997 in favour of the defendants, as alleged? OPD 7. Relief. 15. After the parties led evidence and were heard by the learned trial Court, the suit was dismissed by holding issues No. 1, 4 and 5 in negative and the remaining issues in affirmative. 16. Being aggrieved, the plaintiffs carried the matter in appeal which was allowed by the learned District Judge, vide the impugned judgment, dated 14.12.2007. 17. The contesting defendants, who are aggrieved by the judgment of reversal passed by the learned First Appellate Court, are in appeal before this Court by way of the present Regular Second Appeal. 18. I have heard the learned counsel for the parties and perused the record. 19. The appeal has been admitted on the following substantial questions of law: 1. Whether on the proper construction and interpretation of the subsequent Will Ext. DA, it can be held that it was the last Will of the testator and on the proof of valid execution and disposition by the testator, which revoked the earlier Will and as such was the last Will of the testator? 2. Whether on the proper construction and interpretation of the subsequent Will Ext. DA, it can be held that it was the last Will of the testator and on the proof of valid execution and disposition by the testator, which revoked the earlier Will and as such was the last Will of the testator? 2. Whether the registration of Will is sufficient to raise the presumption of its validity and execution by the testator and whether such instrument duly proved in accordance with Section 63 of the Indian Succession Act may be taken to be the last Will of the testator thereby revoking the earlier Will? 3. Whether the exclusion of legal representatives in the Will can be taken to be a suspicious circumstance, the main objective of the Will being to interfere in the line of succession and whether such finding by the learned Court below is contrary to the law laid down by the Apex Court as also this Hon'ble Court in AIR 1997 HP 43 ? 20. Whereas, the impugned judgment and decree, dated 14.12.2007, have been assailed by the contesting defendants within the ambit of the above substantial questions of law, which shall be discussed hereinafter, the plaintiffs have supported the findings returned by the learned First Appellate Court. 21. As already noticed, while stating facts of the case, the proforma defendants have supported the case of the plaintiffs. 22. Since the controversy between the parties revolves around two Wills, the first Ext. PW-2/A, dated 4.3.1992 set up by the plaintiffs and the second Ext. DA, dated 12.5.1997 propounded by the contesting defendants, before adverting to an elaborate discussion of the substantial questions of law for determination, it shall be appropriate to notice the relevant provisions of law governing a Will and the case law relied upon on behalf of the rival parties. 23. The definition of 'Will' as per Section 2 (h) of the Indian Succession Act, 1925 (in short, 'the Succession Act) is as under: "Will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death. 24. Section 63 of the Succession Act provides for the mode of execution of unprivileged Wills in the following terms: "63. Execution of unprivileged wills. 24. Section 63 of the Succession Act provides for the mode of execution of unprivileged Wills in the following terms: "63. Execution of unprivileged wills. 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 signed 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 acknowledgment 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." 25. A will is required to be proved in accordance with the provisions of Section 68 of the Indian Evidence Act, 1872 ('the Evidence Act) in the following mode: "68. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence. Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." 26. Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied." 26. Now, I shall turn to the case law cited at the Bar by the contesting parties one by one. Case Law cited by the contesting defendants: 27. In Smt. Uttami us. Shri Ram Dass etc. [1975] I.L.R. : a Hon'ble Division Bench of this Court has held as under, vide paras 7, 14 and 15 of the judgment: "7. It is well settled, as would be apparent from Shashi vs. Subodh (A.I.R. 1964 S.C. 529) also that the onus of proving the Will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the Will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. The propounder of a Will has to prove the due discharge the onus. The propounder of a Will has to prove the due and valid execution of it, and that if there are any suspicious circumstances surrounding the execution of• the will, the propounder must remove the said suspicion from the mind of the court by cogent and satisfactory evidence. The application of these two general and broad principles, however, depends upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties (see also Rani Purnima Devi us. Khagendra (A.I.R. 1959 S.C. 567). Once it is established in the case of an unnatural and officious will that the testator was free and had a sound disposing mind, the court cannot inject its own ethics of what is or is not a moral or a fair disposition, as is held in Ajit Chandra vs. Akhil Chandra (A.I.R. 1960 Cal 551), relying on C. Harwood vs. M. Baker, [(1840) 3 Moo. P.C. 282]. 14. The contention of the appellant's learned counsel that the will was kept secret and this was one of the factors to indicate that it was not a genuine will, is not correct. P.C. 282]. 14. The contention of the appellant's learned counsel that the will was kept secret and this was one of the factors to indicate that it was not a genuine will, is not correct. The object and effect of sections 42 to 46 of the Registration Act are that the contents of the sealed cover deposited by the testator shall remain secret during his life-time, but on his death the terms of the will shall be made public and copies of the will shall be available to the public (see C.W. Mariano vs. The Rt. Rev. F. Provost, AI.R. 1941 Rangoon 305). 15. The propounder of the will has, therefore, succeeded in dispelling any suspicious circumstances surrounding the execution of the will. That being so the Court is not concerned with whether the will is unnatural and causes hardship and cuts off wholly or in part the near relations of the testator. The court has to give effect to the Will, as laid down in Shahhi's case (supra) and Pushpauati and others vs. Chandraja Kadamba and others (A.I.R. 1972 S.C. 2492)." 28. The Hon'ble Supreme court ruled as under, vide paras 4, 6, 7 and 8 of the judgment reported as Rabindra Nath Mukherjee and another vs. Panchanan Banerjee (dead) by L.Rs. and others, AIR 1995 Supreme Court 1684: "4. As to the first circumstance, we would observe that this should not raise any suspicion, because 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. As in the present case, the two executors are sons of a half blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will. 6. Insofar as the third circumstance is concerned, we may first observe that witnesses in such documents verify whether the same had been executed voluntarily by the concerned person knowing its contents. 6. Insofar as the third circumstance is concerned, we may first observe that witnesses in such documents verify whether the same had been executed voluntarily by the concerned person knowing its contents. 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 documents at hand were registered and it is on record that the Sub-registrar had explained the contents to the old lady. So, we db not find the third circumstance as suspicious on the facts of the present case. 7. As to "ubiquitous" Subodh, it may be said that somebody has to take necessary steps in such matters; but if he happens to be one close to the executor, some eye-brow is bound to arise. Even so, if there be; other circumstances on record to show the voluntary character of the document, the eye-brows should get dropped down. And such circumstances were present in the case, which somehow missed the two courts below. These are: (1) Making of two codicils by Saroj Bala, last of which was about three years after the execution of will. The need for these arose because the testatrix had made use some of the properties listed in the will. So, the testatrix knew what was the will for and why it needed change. (2) The testatrix executed an FDR of Rs.15,000/- on 2.8.67 which shows that she was not so immobile or senile as sought to be made out by the respondents. The fact that her signature in the FDR was shaky has no cutting edge, because nearing 90 at the relevant time, the signature could have well been shaky because of old age. (3) Testatrix sold some property in February 67 and received the sale price, which shows her consciousness as to how to deal with her properties. 8. If a total view is taken of the aforesaid circumstances, which has to be the approach, we are of the opinion that the courts below over played some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders." 29. 8. If a total view is taken of the aforesaid circumstances, which has to be the approach, we are of the opinion that the courts below over played some circumstances which they regarded as suspicious and somehow missed some circumstances which bolstered the case of the propounders." 29. In Shakuntala Devi vs. Savitri Devi and others, AIR 1997 Himachal Pradesh 43, this Court noticed as under, vide para 25 of the judgment: The Hon'ble Supreme Court in Smt. Sushila Devi v. Pandit Krishna Kumar Missir, AIR 1971 SC 2236 , has held that prima facie, the circumstance that no bequest was made to the natural heir(s) by the testator would make the will appear unnatural, but if the execution of the Will is satisfactorily proved, the fact that the testator had not bequeathed any property to one of his children cannot make the Will invalid." 30. This Court further noticed as under, vide para 7 of the judgment reported as Bhikham and another vs. Govind Ram and others, Latest HLJ 2006 (H) 709: "The Hon'ble Supreme Court in Pentakota Satyanarayana and others v. Pentakoa Seetharatnam and others (AIR 2005 Supreme Court 4362) vide para 24 has held that the signatures of the Registering Office and identifying witnesses affixed to the endorsement of registration, are sufficient attestation of the Will. It has further been held that the endorsement of the Sub Registrar that the executants has acknowledged before him the execution of the Will also amounts to attestation." 31. The following propositions of law were propounded by the Hon'ble Supreme Court in Savithri and others vs. Karthyayani Amma and others, (2007) 11 Supreme court Cases 621, vide paras 20 to 25: "20. Therein, this court also took into consideration the decision of this Court in H. Venkatachala Iyengar (supra), wherein the following circumstances were held to be relevant for determination of the existence of the suspicious circumstances : (i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will; (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit. 21. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. 21. We do not find in the fact situation obtaining herein that any such suspicious circumstance was existing. We are not unmindful of the fact that the court must satisfy its conscience before its genuineness is accepted. But what is necessary there for, is, a rational approach. 22. Deprivation of a due share by the natural heirs itself is not a factor which would lead to the conclusion that there exist suspicious circumstances. For the said purpose, as noticed hereinbefore, the background facts should also be taken into consideration. The son was not meeting his father. He had not been attending to him. He was not even meeting the expenses for his treatment from 1959, when he lost his job till his death in 1978. The testator was living with his sister and her children. If in that situation, if he executed a Will in their favour, no exception thereto can be taken. Even then, something was left for the appellant. 23. In Ramabai Padmakar Patil (Dead) though L.Rs. and Others v. Rukminibai Vishnu Vekhande and Others [ (2003) 8 SCC 537 /, this Court held : '8. A Will is executed to alter the mode of succession and by the very nature of things it is bound to result in either reducing or depriving the share of a natural heir. If a 16 person intends his property to pass to his natural heirs, there is no necessity at all of executing a Will. It is true that a propounder of the Will has to remove all suspicious 'circumstances. Suspicion means doubt, conjecture or mistrust. But the fact that natural heirs have either been excluded or a lesser share has been given to them, by itself without anything more, cannot be held to be a suspicious circumstance, especially in a case where the bequest has been made in favour of an offspring. [See also S. Sundaresa Pai and Others v. Sumangala T. Pai (Mrs.) and Another - 2002 (1) SCC 630 ]. 24. Strong reliance has been placed by the learned counsel on Gurdial Kaur and Others v. Kartar Kaur and Others [ (1998) 4 SCC 384 /, wherein it was held: 4. [See also S. Sundaresa Pai and Others v. Sumangala T. Pai (Mrs.) and Another - 2002 (1) SCC 630 ]. 24. Strong reliance has been placed by the learned counsel on Gurdial Kaur and Others v. Kartar Kaur and Others [ (1998) 4 SCC 384 /, wherein it was held: 4. The law is well settled that the conscience of the court must be satisfied that the Will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said Will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the Will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the Will to dispel the suspicious circumstance. As in the facts and circumstances of the case, the court of appeal below did not accept the valid execution of the Will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the court of appeal below has also been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs. 25. There is no dispute in regard to the proposition that the conscience of the court must be satisfied. In the instant case, the High Court has considered the relevant factors. It has been found that the Will was the product of the free will. He had executed the Will after knowing and understanding the contents thereof." 32. The Hon'ble Apex Court has further laid the following proposition of law, vide para 27 in Pentakota Satyanarayana and others vs. Pentakota Seetharatnam and others, AIR 2005 Supreme Court 4362: "27. Mr. Narsimha, learned counsel for the respondents, submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. Mr. Narsimha, learned counsel for the respondents, submitted that the natural heirs were excluded and legally wedded wife was given a lesser share and, therefore, it has to be held to be a suspicious circumstance. We are unable to countenance the said submission. The circumstances of depriving the natural heirs should not raise any suspicion because the whole idea behind the execution of the will is to be interfered in the normal line of succession and so natural heirs would be debarred in every case of the Will. It may be that in some cases they are fully debarred and some cases partly. This is the view taken by this Court in Uma Devi Nambiar and Others vs. T.C. Sidhan (Dead) (2004) 2 SCC 321 ." 33. Per contra, reliance has been placed on behalf of the plaintiffs on the following authorities to highlight the law points propounded there under. 34. In Bharpur Singh and others vs. Shamsher Singh; (2009) 3 Supreme Court Cases 687, the Hon'ble Supreme Court, vide paras 23 and 24 of the judgment has highlighted some of the suspicious circumstances, which may be found to be surrounded in the execution of a Will: "23. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may not appear to be the result of the testator's free will and mind. v. The propounder takes a prominent part in the execution of the Will. vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts. 24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not. viii. Incorrect recitals of essential facts. 24. The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the Will had duly been proved or not. It may be true that the Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with." 35. It was further held by the Hon'ble Supreme court in Gurdial Kaur and others vs. Kartar Kaur and others, (1998) 4 Supreme Court Cases 384, vide para 4 of the judgment: "The law is well settled that the conscience of the Court must be satisfied that the will in question was not only executed and attested in the manner required under the Indian Succession Act, 1925 but it should also be found that the said will was the product of the free volition of the executant who had voluntarily executed the same after knowing and understanding the contents of the will. Therefore, whenever there is any suspicious circumstance, the obligation is cast on the propounder of the will to dispel suspicious circumstance. As in the facts and circumstances of the case, the Court of Appeal below did not accept the valid execution of the will by indicating reasons and coming to a specific finding that suspicion had not been dispelled to the satisfaction of the Court and such finding of the Court of Appeal below has also has been upheld by the High Court by the impugned judgment, we do not find any reason to interfere with such decision. This appeal, therefore, fails and is dismissed without any order as to costs." 36. The plaintiffs have laid much emphasis on the following observations made by the Hon'ble Apex Court in Benga Behara and another vs. Braja Kishore Nanda and others, (2007) Supreme Court Cases 728, vide paras 41 to 43 of the report: "41. The Court granting Letters of Administration with a copy of the Will annexed, or probate must satisfy itself not only about the genuineness of the Will but also satisfy itself that it is not fraught with any suspicious circumstances. 42. No independent witness has been examined to show how the testatrix came close to the respondent No. 1. The Court granting Letters of Administration with a copy of the Will annexed, or probate must satisfy itself not only about the genuineness of the Will but also satisfy itself that it is not fraught with any suspicious circumstances. 42. No independent witness has been examined to show how the testatrix came close to the respondent No. 1. Why valuable agricultural land measuring Ac 4.187 and homestead land along with a house standing thereon had been gifted in favour of the first respondent, has not been explained. The original Will has not been produced. Why both the Will and the sale deed should have been executed on the same day, has not been explained. 43. The burden on the first respondent was heavy, he being a stranger to the family. He failed to discharge the said burden. Variance, inconsistencies and contradictions have been brought on record, particularly in the statements of P.W.-4 and P.W.-9 and other witnesses vis-a-vis the contents of the document, which we have noticed hereinbefore." 37. In the same vein, the following observations made by the Hon'ble Supreme court, vide para 24 of the judgment reported as Adiuekka and others vs. Hanamavva Kom Venkatesh (dead) by L.Rs. and another, (2007) 7 Supreme Court Cases 9 have been pressed into service by the plaintiffs: "24. The disposition made in the Will is unfair, unnatural and improbable as no sane person, save and except for very cogent reasons, would disinherit his minor children. DW-1 does not state as to from where and how he obtained possession of the original Will." 38. To the similar effect is the proposition of law laid by the Hon'ble Supreme Court, vide para 42 of the judgment in Sayed Askari Hadi Ali Augustine Imam vs. State (Delhi Administration) and another, (2009) 5 Supreme Court Cases 528: "42. For the aforementioned purpose, it may not be relevant for us to enter into the disputed question as to whether the Will is surrounded by suspicious circumstances as the same would appropriately call for decision in the testamentary proceeding. Pendency of two proceedings whether civil or criminal, however, by itself would not attract the provisions of Section 41 of the Evidence Act. A judgment has to be pronounced. The genuineness of the Will must be gone into. Pendency of two proceedings whether civil or criminal, however, by itself would not attract the provisions of Section 41 of the Evidence Act. A judgment has to be pronounced. The genuineness of the Will must be gone into. Law envisages not only genuineness of the Will but also explanation to all the suspicious circumstances surrounding thereto besides proof thereof in terms of Section 63(c) of the Indian Succession Act, and Section 68 of the Evidence Act. [See Lalitaben Jayantilal Popat vs. Pragnaben Jamnadas Kataria." 39. The plaintiffs also relied upon the authority cited by the contesting defendants reported as Shakuntala Devi vs. Sauitri Devi and others, AIR 1997 Himachal Pradesh 43 (supra). 40. Lastly, reliance was also placed on an authority of this Court in Smt. Chaitru and another vs. Kali Dass and another, 2006 (3) Shimla Law Cases 356. 41. Against the above backdrop, I shall now take up the substantial questions of law for discussion and decision as follows. Substantial Question of Law No. 1: Whether on the proper construction and interpretation of the subsequent Will Ext. DA, it can be held that it was the last Will of the testator and on the proof of valid execution and disposition by the testator, which revoked the earlier Will and as such was the last Will of the testator? 42. A Will is subject to revocation and alteration under Section 62 of the Succession Act, which reads as under: "62. Will may be revoked or altered. A will is liable to be revoked or altered by the maker of it at any time when he is competent to dispose of his property by will." 43. Will Ext. DA, dated 12.5.1997 has been set up by the contesting defendants. The plaintiffs have propounded another Will Ext. PW-2/A, dated 4.3.1992. Both the Wills were scribed by PW-2 Shri Chhering Ram. He was called as a witness by the plaintiffs to prove the Will Ext. PW-2/A, dated 4.3.1992. It was during cross examination that Will Ext. DA, dated 12.5.1997 was put to him and it was elicited from him that the same has been scribed by him at the instance of the deceased. It was read over to him and after admitting its contents to be correct, he had put his signatures in the presence of the witnesses, where after the witnesses had also signed the same. It was read over to him and after admitting its contents to be correct, he had put his signatures in the presence of the witnesses, where after the witnesses had also signed the same. According to PW-2 Shri Chhering Ram, the deceased was in a sound disposing of mind. 44. Out of the two attesting witnesses to Will Ext. DA namely Shri Kehar Singh and Shri Gopal Thakur, Advocate, the former had died and the latter was examined as DW2. DW-2 Shri Gopal Thakur, Advocate has stated that he was knowing the deceased. On 12.5.1997, he had got scribed a Will Ext. DA from Shri Chhering Ram (PW-2) in the presence of Shri Kehar Singh, Nambardar, Phati Bainchi in the presence of this witness (DW-2, Shri Gopal Thakur, Advocate). The document writer had read over the same to the deceased, who had signed it in their presence and in turn, they had also signed the same in the presence of the deceased. The deceased was in sound disposing of mind at that time. He used to understand his good and bad. Then, Shri Chhering Ram (PW-2) had affixed his stamp on the Will and had signed the same. Thereafter, the Will was presented before the Sub Registrar, Kullu. The Sub Registrar had read over the same to the deceased, who had admitted it to be correct. Thereafter, the deceased had signed the endorsement in their presence and in turn, they had also signed the same in the presence of the deceased. The witness has lastly stated that Shri Kehar Singh, Nambardar has since died. In cross-examination, he has deposed that the deceased was working as Peon in the eye hospital at Raison and as such, he was knowing him. During further cross-examination, he has stated that he has not undergone any eye operation in the said hospital and instead he had gone there to see his relatives, that is, maternal grand mother and grand father in 1984-85. 45. In further cross-examination, the witness has categorically stated that soon after execution of Will Ext. DA, it was presented to the Tehsildar (Sub Registrar) on the same day and was registered. However, a bare perusal of Will Ext. DA would go to show that though it is shown to have been executed on 12.5.1997, it was registered on the next day, that is, 13.5.1997. DA, it was presented to the Tehsildar (Sub Registrar) on the same day and was registered. However, a bare perusal of Will Ext. DA would go to show that though it is shown to have been executed on 12.5.1997, it was registered on the next day, that is, 13.5.1997. This aspect of the matter casts a very serious doubt on the very veracity of the testimony of DW-2, Shri Gopal Thakur, Advocate and goes to the very root of the case for the reasons to be stated hereinafter. 46. It goes without saying that a Will comes into operation after the death of the testator. It being so, the only persons available to testify about its genuineness and the attendant circumstances are the scribe, marginal witnesses and the registering authority. However, in this case, the scribe (PW-2, Shri Chhering Ram) was examined by the plaintiffs and the contesting defendants have not elicited anything during his cross-examination to explain the above incongruity as to what were the circumstances in which the Will Ext. DA, which is shown to have been executed on 12.5.1997 was registered only on the next day (13.5.1997). In so far as the marginal witness, Shri Kehar Singh, Nambardar is concerned, he had already died and thus, was not available to throw any light on this aspect. Admittedly, the Sub Registrar has not been examined to unfold this mystery. 47. Now, we are left only with the deposition of DW-2, Shri Gopal Thakur, Advocate. However, his testimony with regard to the date(s) of execution and registration of Will Ext. DA, dated 12.5.1997 has been found to be seriously flawed and on the face of it appears to be factually incorrect. In such situation, the inescapable conclusion deducible in the facts and circumstances of the case is that his very presence either at the time of execution of Will Ext. DA or at the time of its registration stands totally falsified. This inference is also fortified from his further cross-examination wherein he has stated that neither Shri Kehar Singh was Nambardar of the Phati to which the deceased belonged nor he himself is from that Phati. DA or at the time of its registration stands totally falsified. This inference is also fortified from his further cross-examination wherein he has stated that neither Shri Kehar Singh was Nambardar of the Phati to which the deceased belonged nor he himself is from that Phati. It can be safely concluded that both DW-2 Shri Gopal Thakur, Advocate and late Shri Kehar Singh, Nambardar not being from the locality of the deceased and there being no other reliable evidence to show their acquaintance with the deceased, they cannot be said to be the natural witnesses to Will Ext. DA. 48. In view of the above, the first part of substantial question of law whether on the proper construction and interpretation of the subsequent Will Ext. DA, it can held that it was the last Will of the testator' has essentially to be answered in negative. As a natural corollary for the reasons to be recorded herein below, the second part of the question that 'on the proof of valid execution and disposition by the testator, it revoked the earlier Will and as such, was the last Will of the testator', is also liable to be answered in negative. 49. True it is that a Will can be revoked either by an express stipulation or by necessary implication by execution of subsequent Will. However, in the present case, it would be seen that as there is no mention in Will Ext. DA, dated 12.5.1997 about the earlier Will Ext. PW-2/A, dated 4.3.1992, it is not a case of express revocation of the earlier Will Ext. PW-2/A, dated 4.3.1992. Further more, since alleged Will Ext. DA, dated 12.5.1997 has not been found to be the 'last Will of the testator', it cannot be said that it led to revocation of the earlier Will Ext. PW-2/A, dated 4.3.1992 by necessary implication. 50. Substantial question of law No.1 is answered in the above terms. Substantial Question of Law No. 2: Whether the registration of Will is sufficient to raise the presumption of its validity and execution by the testator and whether such instrument duly proved in accordance with Section 63 of the Indian Succession Act may be taken to be the last Will of the testator thereby revoking the earlier Will? 51. Substantial Question of Law No. 2: Whether the registration of Will is sufficient to raise the presumption of its validity and execution by the testator and whether such instrument duly proved in accordance with Section 63 of the Indian Succession Act may be taken to be the last Will of the testator thereby revoking the earlier Will? 51. It is manifest from the above discussion and decision on substantial question of law No. 1 that neither due execution nor registration of Will Ext. DA is established in accordance with law, particularly Section 63 of the Succession Act and the relevant provisions of the Indian Registration Act. 52. In such situation, Will Ext. DA cannot be taken to be the last Will of the deceased thereby revoking the earlier Will Ext. PW-2/A. 53. Substantial question of law No. 2 is answered accordingly. Substantial Question of Law No. 3: Whether the exclusion of legal representatives in the Will can be taken to be a suspicious circumstance, the main objective of the Will being to interfere in the line of succession and whether such finding by the learned Court below is contrary to the law laid down by the Apex Court as also this Hon'ble Court in AIR 1997 HP 43 ? 54. There cannot be any dispute with the proposition that in comparison to the natural succession, the purpose of a testamentary disposition is ordinarily to make a departure from the natural line of succession and as such, exclusion of natural heirs while making a Will is unavoidable, may be in a particular case only to some extent, and thus, cannot in each and every case be said to be a suspicious circumstance. However, this proposition of law is required to be applied taking into consideration the peculiar facts and circumstances of each case and not as a omnibus dictum of law. 55. However, this proposition of law is required to be applied taking into consideration the peculiar facts and circumstances of each case and not as a omnibus dictum of law. 55. The present substantial question of law has been based on the principle of law noticed by this Court in para 25 of the judgment in the case of Smt. Shakuntala Devi vs. Savitri Devi and others (supra), which in turn is based on the proposition of law enunciated by the Hon'ble Supreme Court in re: Smt. Sushila Devi vs. Pandit Krishna Kumar Missir and others, AIR 1971 Supreme Court 2236 and I may submit with due respect that the facts of the case before the Hon'ble Supreme Court and this Court as relied upon are clearly distinguishable from the facts of the case in hand. Whereas, in both the cases before the Hon'ble Supreme Court and this Court as relied upon, the beneficiaries under the Will and those excluded were near relations, which is not the situation in the present case. Here, whereas, the deceased Shri Jagat Ram @ Jagatu was a Harijan by caste and cobbler by occupation, the contesting defendants and their father, Shri Megh Nath are Rajput by caste, there being no inter se relationship between them except the assertion made by the contesting defendants that the deceased Shri Jagat Ram @ Jagatu was God brother of their father, Shri Megh Nath, which appears to be a mere assertion not supported by any other independent and reliable evidence except the self serving averments set up by them in their written statement and the deposition of DW- 1 Budhi Parkash. 56. The contesting defendants have failed to examine either any respectable person from the locality or any village functionary, such as, Pradhan, Nambardar or Ward Panch etc. To substantiate their assertion that the deceased was God brother of their father, Shri Megh Nath. Even Shri Megh Nath, father of the contesting defendants, has not entered the witness box to depose that the deceased was his God brother. Adverse inference is bound to be drawn against the contesting defendants on this score. 57. To substantiate their assertion that the deceased was God brother of their father, Shri Megh Nath. Even Shri Megh Nath, father of the contesting defendants, has not entered the witness box to depose that the deceased was his God brother. Adverse inference is bound to be drawn against the contesting defendants on this score. 57. The only evidence with regard to the assertions made by the contesting defendants that either the deceased was God brother of their father, Shri Megh Nath or that he was living and being looked after by them and further that his last rites and ceremonies were also performed by them as per custom and in lieu of such services he had executed Will Ext. DA in their favour, on the basis of which the suit land was mutated in their favour and is in their possession comprises of the deposition of Shri Budhi Parkash as DW-1. 58. In cross-examination in the very opening line, he has admitted in quite categorical terms that whereas deceased was Harijan (Chamar) by caste, they are Thakur Rajput. Though, he has denied that they are not on visiting and partaking terms to the houses of Harijan (Chamars), but this part of his statement can only be taken with a pinch of salt taking into consideration the caste equations and social relations prevalent in our society and particularly in district Kullu to which the parties belong and where the subject matter of the litigation between them is also situate. In further cross-examination, he has admitted that the deceased was not living with their family and instead was living near their house. According to him, they had served the deceased from 1997 to 1998 and that he had died in the year 1998. Thus, since Will Ext. DA is said to have been executed on 12.5.1997 and even according to DW -1 Budhi Parkash (contesting defendant No. 1), they had started rendering services to the deceased in the year 1997, it is not understandable by any stretch of imagination that Will Ext. DA was in lieu of the past services rendered by the contesting defendants or their father to the deceased. Further more, this part of the testimony of DW-1 Budhi Parkash is in stark contradiction to the pleadings set up by the contesting defendants, vide para 5 of their written statement wherein it was averred that "said Sh. DA was in lieu of the past services rendered by the contesting defendants or their father to the deceased. Further more, this part of the testimony of DW-1 Budhi Parkash is in stark contradiction to the pleadings set up by the contesting defendants, vide para 5 of their written statement wherein it was averred that "said Sh. Jagat Ram alias Jagtu was God brother of Sh. Megh Nath, the father of the replying defendants, who have been looking after and rendering whole hearted services to said Sh. Jagat Ram alias Jagtu for the last more than 15 years". The written statement filed by the contesting defendants is dated 5.8.2003. It was filed in the learned trial Court on 1.9.2003. In such situation, the period of 15 years of rendering the alleged services by the contesting defendants or their father Shri Megh Nath to the deceased dates back to somewhere in the year 1988. However, according to DW-1, Shri Budhi Parkash, they had served the deceased from 1997 to 1998 as stated by him during cross-examination. The time gap between 1988 and 1997-1998 is about 9/10 years. It being so, the assertion made by the contesting defendants that the deceased was being served by them and their father stands totally falsified. 59. Though he has further stated that services rendered by them to the deceased were in the nature of supply of ration and medicines, there is no evidence to this effect and he has simply stated that the prescription slips regarding treatment might be with his father, which admittedly were not produced. He has stated that the deceased had died on 24.11.1998 and though according to him, none had put 'Antarbasa', he was cremated by the villagers including themselves. This belies the assertion pleaded and sought to be proved by the contesting defendants that they had performed the last rites and ceremonies of the deceased as per custom. 60. To the contrary, extract of family register Ext. DW-3/A would go to show that the family of the deceased Shri Jagat Ram @ Jagatu comprising of himself, his son proforma defendant No. 3 Shri Jog Ram, daughter in law Smt. Dolma, grand daughter Kali Devi and grand sons, plaintiffs Hotam Ram and Inder Dev, was residing together within the jurisdiction of Gram Panchayat, Shirar. As such, recital incorporated in Will Ext. As such, recital incorporated in Will Ext. DA, dated 12.5.1997 that prorofma defendant No. 3 Shri Jog Ram was residing away from home stands falsified. The fact that in Will Ext. DA, dated 12.5.1997, there is not even a mention about the plaintiffs who are grand sons of the deceased and in whose favour he had executed earlier Will Ext. PW-2/A, dated 4.3.1992 in itself is a very suspicious circumstance which cannot be lightly overlooked. 61. This question is answered accordingly. 62. In view of the above discussion and decision on substantial questions of law No. 1 to 3, I see no merit in this appeal, which is accordingly dismissed with costs throughout.