JUDGMENT Mr. Surinder Gupta, J.: - “Whether the findings of the Courts below holding the registered Will dated 06.02.1996 (Ex.P1) to be non-genuine, are based on misinterpretation and misreading of evidence.” The above substantial question of law arises for determination in this appeal. Brief Facts:- 1. The appellant filed a suit for declaration that he along with defendants-respondents No.3 and 4 is owner in possession of the suit land as fully described in the head note of the plaint on the basis of registered Will dated 06.02.1996 executed by Jaisi Ram, father of appellant and respondent No.3 and husband of Smt. Achari Devi. During the pendency of appeal, Smt. Achari Devi died. As no relief was claimed against her, she was given up as respondent No.4. 2. Admittedly, Jaisi Ram was owner of the suit property. He died in the year 1998. The case of the appellant-plaintiff is that during his life time Jaisi Ram executed a registered Will dated 06.02.1996 in favour of appellant and respondents No.3 and 4 in lieu of services rendered to him. Defendants-respondents No.1 and 2 were married more than 20 years ago and were living with their family and never served Jaisi Ram in his old age. They even did not attend the marriage of younger sister of appellant namely Sarjiwan Kumari and got the mutation of the estate of Jaisi Ram sanctioned on the basis of intestate succession compelling the appellant to file the suit. 3. Respondent No.1 and Smt. Achari Devi filed joint written statement, wherein they described the registered Will dated 06.02.1996 as forged, manipulated, invalid and fabricated document. They also denied the possession of the appellant and respondents No.3 and 4 over the suit property. The mutation of inheritance of Jaisi Ram was sanctioned vide mutation No.1647 dated 26.08.2002 in favour of all his legal heirs. It has been averred that Sarjiwan Kumari got married in the year 1994 and is having four children and living in her matrimonial house, therefore, there was no question of rendering services by her to her father Jaisi Ram. The Will is surrounded by suspicious circumstances. Prem Chand, marginal witness was wrongly shown as resident of Naurangpur, where suit property is situated while in fact, he is not residing there. The Will is surrounded by suspicious circumstances. Prem Chand, marginal witness was wrongly shown as resident of Naurangpur, where suit property is situated while in fact, he is not residing there. The suit land was purchased by respondents No.1 and 2 in favour of their father Jaisi Ram after paying the entire sale consideration in the year 1965. The appellant did not produce any Will of late Shri Jaisi Ram at the time of mutation of his estate. 4. The pleadings of the parties led to the framing of issues as follows:- (1) Whether Jaisi Ram, since deceased, executed a legal and valid Will dated 6.2.1996 in favour of the plaintiff and defendants Nos.3 and 4 ?OPP (2) Whether the plaintiff and defendants Nos.3 and 4 are owners in possession of the suit land as prayed for ?OPP (3) Whether the plaintiff is entitled for declaration ?OPP (4) Whether the plaintiff is entitled for permanent injunction as prayed for in the form of consequential relief ?OPP (5) Whether the plaintiff is estopped from filing the present suit by his own act and conduct ?OPD (6) Whether the Will dated 6.2.1996 is a forged, manipulated, invalid and fabricated document ?OPD (7) Relief. 5. In order to prove the execution of the Will, appellant Multan Singh appeared as PW1 and examined Prem Chand, the marginal witness of the Will as PW2. Admittedly, the other marginal witness of the Will, Rai Singh, Lamberdar of village Naurangpur had died. 6. On the other hand, respondent No.1 Satpal himself appeared as DW1 and examined Kewal Singh of village Naurangpur as DW2 and Harbans Lal, Ex-Sarpanch of village Naurangpur as DW3. 7. The trial Court on appraisal of evidence found certain suspicious circumstances surrounding the Will and recorded the findings on issues No.1 to 4 against the appellant-plaintiff while findings on issues No.5 and 6 were recorded in his favour. However, the suit was dismissed. 8. The factors which weighed before the lower Court while holding the Will as non-genuine, were as follows:- (i) Achari Devi wife of Jaisi Ram, who is also a beneficiary of the Will and was residing with respondent No.1, had filed joint written statement with respondent No.1, wherein she had denied the Will. However, the suit was dismissed. 8. The factors which weighed before the lower Court while holding the Will as non-genuine, were as follows:- (i) Achari Devi wife of Jaisi Ram, who is also a beneficiary of the Will and was residing with respondent No.1, had filed joint written statement with respondent No.1, wherein she had denied the Will. (ii) The plaintiff alleged that he was serving his father and had taken him to the hospital at Talwara, when Jaisi Ram was suffering from disease of blocking of urine and stool but he could not tell the name of the hospital. (iii) The appellant did not raise any objection at the time of sanction of mutation of the inheritance of Jaisi Ram in favour of all his legal heirs, despite the fact that mutation was sanctioned in his presence. (iv) The appellant admitted that he is in possession of one room of the house and respondents No.1 and 2 were also in possession of two rooms in that house which means that parties were residing separately. (The above is misinterpretation of the statement of the appellant who had stated that respondents No.1 and 2 took the possession of the rooms forcibly and locked two rooms. He had further stated that earlier his mother was residing with him, but later started residing with respondent No.1 Satpal at Jalandhar.) (v) Prem Chand, marginal witness of the Will has stated that the entire family served Jaisi Ram. (vi) No reason is given in the Will for exclusion of respondents No.1 and 2. (vii) Prem Chand, marginal witness could not tell as to how much time was consumed to prepare and execute the Will. He had stated that he had signed the Will at one place while in fact, he had signed the Will at more than one place. 9. Not satisfied with the judgment and decree passed by the lower Court, the appellant preferred first appeal before the Court of Additional District Judge (Ad hoc), Fast Track Court, Hoshiarpur. The First Appellate Court while dismissing the appeal, recorded findings in favour of the appellant approving the evidence led by them to prove registration and execution of the Will. 9. Not satisfied with the judgment and decree passed by the lower Court, the appellant preferred first appeal before the Court of Additional District Judge (Ad hoc), Fast Track Court, Hoshiarpur. The First Appellate Court while dismissing the appeal, recorded findings in favour of the appellant approving the evidence led by them to prove registration and execution of the Will. The observations of First Appellate Court in favour of case of appellant are enumerated as follows:- (i) “As far as due execution and proof of the will is concerned, the same stands discharged by the plaintiff as required under the law and ruling Om Parkash versus Man Singh and others 2008(1) Civil Court Cases 134 (P&H) referred by learned counsel for the appellant-plaintiff is fully applicable to the facts of the case.” (ii) “It is observed that in view of the ruling Daya Ram Versus Kanwar Pal 2010(3) Civil Court Cases 536 (P&H) it is observed that if while executing the Will, some heirs of the equal degree are ignored by the testatrix (sic testator) that is not a suspicious circumstance.” (iii) “The Will Ex.P1 was executed by Jaisi Ram in favour of plaintiffs, defendants no.3 and 4. In the Will a specific reason was assigned by Jaisi Ram that his other two sons namely Satpal and Santosh Kumar were beyond his control and had not rendered any kind of service to him.” (iv) “While taking note of the fact that marginal witness Prem Chand was having his property in village Naurangpur, it was observed that though PW2 had stated himself to be resident of village Kothi and not that of village Naurangpur, however there is no law that the attesting witnesses to the will is required to be from the same village to which the deceased belongs too. Therefore, the Will does not become suspicion on this account.” (v) On the point of Will being a registered document, it was observed that as far as registration of the Will is concerned, “as is held in Bhagwan Kaur versus Malwinder Singh & Ors. [2009(3) Law Herald (P&H) 2047] : 2010(1) Civil Court Cases 757 (P&H) referred by learned counsel for the appellant-plaintiff, registration of a Will is not compulsory yet registration of a Will goes a long way in establishing the genuineness of the Will. [2009(3) Law Herald (P&H) 2047] : 2010(1) Civil Court Cases 757 (P&H) referred by learned counsel for the appellant-plaintiff, registration of a Will is not compulsory yet registration of a Will goes a long way in establishing the genuineness of the Will. As I have already discussed in the preceding paras that the will is not surrounded by suspicious circumstances, therefore, mere registration of the Will does not establish the genuineness of the Will. Further more in view of Rusi Hormusji Pavri & Anr. Vs. Roxana M. Buhariwala 2010 (1) Civil Court Cases 079 (Bombay) referred by learned counsel for the appellant-plaintiff exclusion of certain heirs is not a suspicious circumstances.” 10. After discussing the above facts in favour of the appellant, the first Appellate Court still dismissed the appeal keeping in view the fact that this Will was not put forth at the time of sanctioning of mutation of estate of Jaisi Ram. From this lapse, the Appellate Court had drawn the inference that the Will was not in existence when the mutation was sanctioned on 26.08.2002. Had the Will being in existence, it would have been produced at that juncture by the appellant-plaintiff. 11. I have heard learned counsel for the appellant, perused the paper book and also gone through the record of the Courts below very carefully. 12. In view of the observations of the first Appellate Court that the execution of the Will is duly proved and the testimony of the marginal witness Prem Chand cannot be doubted on the ground that he is not a resident of the village where the suit property is situated, the only fact which required to be looked into is as to whether the non-production of the Will at the time of sanctioning of mutation on 26.08.2002 is fatal to the case of the plaintiff-appellant. 13. This suit was filed on 01.10.2002 i.e. 35 days after the sanctioning of the mutation. The appellant admits that he was present at the time of sanctioning of mutation. His statement has not been looked into in proper prospective and misinterpreted by both the Courts below. He had stated that his sister Sarjiwan Kumari (respondent No.3) had handed over the Will of his father to him when respondents No.1 and 2 got the mutation sanctioned. The appellant admits that he was present at the time of sanctioning of mutation. His statement has not been looked into in proper prospective and misinterpreted by both the Courts below. He had stated that his sister Sarjiwan Kumari (respondent No.3) had handed over the Will of his father to him when respondents No.1 and 2 got the mutation sanctioned. This part of the statement of the appellant is unrebutted and rather, shows that he was given the Will after respondents No.1 and 2 got the mutation of the estate of deceased Jaisi Ram sanctioned. It shows that the appellant was not aware of the Will by that time. Had he been aware of the registered Will of his father Jaisi Ram, he would have resisted sanctioning of mutation of estate of Jaisi Ram in favour of all his legal representatives. The findings recorded by the first Appellate Court while ignoring the registered Will are as follows:- “However, in the present case in hand, it is observed that the appellant-plaintiff has not been able to prove the existence of the Will at the point of sanctioning of mutation qua the estate of Jaisi Ram in favour of his natural heirs. Had the Will was in existence at the time of sanctioning of the mutation, the appellant-plaintiff would have certainly produced and proved the same in those proceedings. However, mutation though sanctioned in the presence of PW1 and PW2 on the basis of natural succession, however, PW1 opted to remain mute spectator and thereafter raised from the slumber and started claiming declaration on the basis of the Will.” 14. The Appellate Court had made similar observations in para 18 of the judgment, which reads as follows:- “18…………… From this part of the deposition of PW1 and PW2, it has come to the surface that when at the time of sanctioning of the mutation qua the estate of Jaisi Ram, PW1 was present why he did not raise any objection regarding the sanctioning of the mutation on the basis of natural inheritance. Had the Will in question was in existence at the relevant point of sanctioning of the mutation he would have certainly produced the same before the competent authority. Had the Will in question was in existence at the relevant point of sanctioning of the mutation he would have certainly produced the same before the competent authority. The silence of PW1 regarding the Will at the time of sanctioning of the mutation leads this Court to infer that at that point of time, the will was not in existence.” 15. The facts which are proved on the basis of evidence are that Jaisi Ram and his wife were living with the appellant at village Naurangpur. Admittedly, respondents No.1 and 2 got married long back and were settled at Jalandhar and in Rajasthan since long. They appeared to have some dispute with their father because they did not attend the marriage of their sister and this fact has been admitted by respondent No.1, when he appeared as DW1. It has also been stated by respondent No.1 that even at the time of death of his father, he had reached home after his cremation. Jalandhar and Naurangpur, Tehsil Mukerian are situated within a distance of less than 50 kms. Though the absence of respondent No.1 at the time of cremation of his father has not been explained but still it is not a fact which can be taken into consideration either in favour of appellant or against respondents No.1 and 2. The question involved in this case is as to whether Jaisi Ram had executed a legal and valid Will. The Will in question is a registered document. It was scribed by a regular deed writer and was executed in the presence of Prem Chand and Rai Singh, marginal witnesses. Rai Singh Lamberdar had admittedly died and could not be examined. Prem Chand the other witness has fully supported the execution of Will by Jaisi Ram and his testimony has been admitted by the first Appellate Court. In the Will, Jaisi Ram has specifically recited that besides the appellant, his wife Achari Devi, daughter Sarjiwan Kumari, he had two more sons namely Satpal and Santosh Kumar, respondents No.1 and 2, who did not served him at all, as such, shall not be entitled to any share in his property and if any claim is raised by them, the same will be false and without basis. 16. 16. The first Appellate Court has not accepted the Will executed by Jaisi Ram firstly on the ground that it was not produced at the time of mutation, thereby drawing inference that it was not in existence at that time. The above observations of the first Appellate Court is perverse and based on misreading and misinterpretation of evidence. The appellant has categorically stated that he was not present when his father had executed the Will. The Will was given to him by his sister when respondents No.1 and 2 got the mutation sanctioned. Moreover, the Will is a registered document. It was very much available in the record of the Sub Registrar. As such, this inference cannot be drawn that it was not in existence at the time of mutation. 17. Another factor which weighed before the first Appellate Court is that the appellant opted to remain mute spectator at the time of sanctioning of mutation and thereafter came out from slumber to claim the relief based on the Will, which cannot be allowed. The above observation has no basis. The appellant filed the suit within 35-36 days of the sanctioning of the mutation, as such, it cannot be said that he was in deep slumber. The sanctioning of mutation in the presence of appellant on the basis of intestate inheritance of Jaisi Ram does not operate as an estoppal against him to claim his share in the estate of late Jaisi Ram on the basis of registered Will. The suspicious circumstances regarding Will as per the observations of the Court of Additional Civil Judge (Senior Division), Dasua were not accepted by the first Appellate Court. Even otherwise, if Achari Devi after the death of her husband has started living with her son i.e. respondent No.1 at Jalandhar; the appellant could not tell the name of the hospital where he had taken Jaisi Ram for treatment; Achari Devi had filed joint written statement with respondent No.1 etc. are not the suspicious circumstances. Prem Chand, marginal witness had described in his statement, the manner in which the Will was executed. If he could not tell the time consumed in preparing and executing the Will, it does not create any suspicion about his statement. He had signed the Will once before the deed-writer and then his signatures were also appended when the Will was got registered. If he could not tell the time consumed in preparing and executing the Will, it does not create any suspicion about his statement. He had signed the Will once before the deed-writer and then his signatures were also appended when the Will was got registered. His mere saying that he signed the Will once, does not create any suspicion, particularly when he was not confronted with his signatures on the Will. 18. The above discussion of the facts of the case, evidence on file and the judgments of the Courts below, show that both the Courts have gone astray while appreciating the evidence. Though the first Appellate Court rectified the judgment of the lower Court to a great extent but its finding that the Will was not in existence at the time of sanctioning of mutation, is perverse and based on misreading and misinterpretation of the evidence and requires rectification in this regular second appeal. 19. In case Municipal Committee, Hoshiarpur Vs. Punjab State Electricity Board & Ors 2010(13) SCC 216 , while dealing with scope of Section 103 Civil Procedure Code, Hon’ble Supreme Court has observed as follows:- “23. There is no prohibition on entertaining a second appeal even on a question of fact provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in a routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide: Jagdish Singh v. Natthu Singh, AIR 1992 SC 1604 ; Karnataka Board of Wakf v. Anjuman-EIsmail Madris-Un-Niswan, 1999(3) R.C.R. (Civil) 639; and Dinesh Kumar v. Yusuf Ali, [2010(4) Law Herald (SC) 2261] : 2010(3) R.C.R.(Civil) 243: 2010 (1) R.C.R. (Rent) 543). 24. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law. 24. If a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide: Bharatha Matha & Anr. v. R. Vijaya Renganathan & Ors., [2010(4) Law Herald (SC) 2276 : 2010(2) Marr.L.J. 137 (SC)] : 2010(3) R.C.R. (Civil) 252).” 20. No doubt, it is a judicial precedent that concurrent findings recorded by the two Courts below are usually not interfered in second appeal but it is not an absolute rule to be applied universally and invariably. If the findings of Courts below are either perverse or not based on the material on record, the same are subject matter to be looked into regular second appeal. 21. As a sequel to my discussion above, the finding of lower Court on the issues No.1 to 4 are reversed and recorded in favour of the appellant-plaintiff. Consequently, the appeal is accepted and the suit of the appellant-plaintiff is decreed with costs throughout, for declaration to the effect that the appellant along with Sarjiwan Kumari, respondent No.3 and Achari Devi, respondent No.4 (since deceased) are owners in possession of the suit land on the basis of the registered Will of late Jaisi Ram dated 06.02.1996 and respondents No.1 and 2 have no right, title or interest in the suit property and are restrained from interfering in the possession of the same. ---------0.B.S.0------------ —————————