JUDGMENT Mr. Paramjeet Singh, J.: - This regular second appeal by plaintiffs is directed against the judgment and decree dated 22.02.1985 passed by learned Additional District Judge, Sirsa, whereby the judgment and decree dated 23.07.1983 passed by learned Sub Judge IIIrd Class, Sirsa, has been set aside and the suit for possession filed by the plaintiffs has been dismissed. 2. For convenience sake, reference to parties is being made as per their status in the civil suit. 3. The detailed facts of the case are already recapitulated in the judgments of the Courts below and are not required to be reproduced. However, the facts relevant for disposal of this second appeal are to the effect that plaintiffs filed a suit for possession of the suit land fully described in the headnote of the plaint on the basis of ‘will’ dated 02.09.1975 alleged to have been executed by Jhangi Ram son of Ganesh Mal, grandfather of plaintiffs. It is averred in the plaint that Jhangi Ram was owner of land measuring 157 kanals 10 marlas fully described in the headnote of the plaint and jamabandi for the year 1977-78 situated in the revenue limits of village Talwara Khurd, Tehsil and District Sirsa. Jhangi Ram died on 25.11.1981. Plaintiffs are the grandsons, defendants No.1 and 2 are the sons and defendants No.3 to 5 are the daughters of Jhangi Ram deceased. Case of the plaintiffs is that Jhangi Ram had executed a registered ‘will’ dated 02.09.1975 in favour of the plaintiffs. It is alleged that after the death of Jhangi Ram, defendants in connivance with revenue authorities and without any notice to plaintiffs got a mutation entered and sanctioned in their name and mutation No.1882 dated 15.01.1982 is null and void and plaintiffs are entitled to succeed to the property as per ‘will’ dated 02.09.1975. 4. Upon notice, defendants No.1, 4, 5, 7 and 8 appeared and contested the suit whereas other defendants were proceeded against ex parte. Defendants filed written statement alleging that Jhangi Ram deceased never executed ‘will’ in question and if any ‘will’ is executed same is the result of fraud and misrepresentation and also that the ‘will’ in question is fictitious and forged document. Defendants are not bound by the ‘will’. Defendants filed written statement alleging that Jhangi Ram deceased never executed ‘will’ in question and if any ‘will’ is executed same is the result of fraud and misrepresentation and also that the ‘will’ in question is fictitious and forged document. Defendants are not bound by the ‘will’. Jhangi Ram at the time of execution of alleged ‘will’ was of old age, deaf and dumb and hence was not in a position to understand as to what is right and what is wrong. As such plaintiffs are not entitled to succeed to the property on the basis of ‘will’ in question. It was further alleged that Jhangi Ram had no right to execute the ‘will’ as the property in his hands was ancestral coparcenary property. Besides this, various preliminary objections were also raised. 5. Court of first instance, on the basis of pleadings of the parties, framed following issues: - “1. Whether Jhangi Ram executed a valid will on 2.9.75 in favour of the plaintiffs, if so its effect? OPP 2. Whether the property in dispute was ancestral property qua Jhangi Ram and the defendants, if so its effect? OPD 3. Whether the plaintiffs have no locus standi to file the present suit? OPD 4. Whether the suit is not maintainable in the present form? OPD 5. Whether the plaintiffs are estopped from filing the suit by their act and conduct? OPD 6. Whether the defendants are entitled to any special costs? OPD 7. Relief.” The Court of first instance, after appreciating evidence on record, recorded issuewise findings. Issue No.1 regarding validity of ‘will’ was decided in favour of the plaintiffs and against the defendants. Issue No.2 with regard to ancestral nature of the property was also decided in favour of the plaintiffs and against the defendants. All other issues were also decided in favour of the plaintiffs and against the defendants and suit of the plaintiffs was decreed. Against the judgment and decree of the Court of first instance, appeal preferred by the defendants has been allowed and the judgment and decree of the Court of first instance has been set aside by lower appellate Court. Hence, this second appeal. 6. I have heard learned counsel for the parties and perused the record. 7. Against the judgment and decree of the Court of first instance, appeal preferred by the defendants has been allowed and the judgment and decree of the Court of first instance has been set aside by lower appellate Court. Hence, this second appeal. 6. I have heard learned counsel for the parties and perused the record. 7. At the time of admission of the appeal, no substantial question of law was framed, however, during the pendency of appeal following substantial questions of law have been placed on record: - “1. Whether findings of First Appellate Court are totally perverse being contrary to the evidence produced by the appellant on record? 2. Whether the registered will dated 02.09.1975 is liable to be discarded by learned lower appellate court on the ground of deprivation of the legal heirs especially when the appellants are also legal heirs of testator of the will? 3. Whether the learned lower appellate Court is justified by assessing reasons while ignoring the registered will dated 02.09.1975 in violation of Section 30 of the Hindu Succession Act, 1956? 4. Whether a registered will can be ignored especially when same is duly proved by producing the attesting witnesses as per requirement of law? 5. Whether learned First Appellate Court was justified to treat suspicious circumstances in case where attesting witnesses are residing at the place where the testator and the plaintiff are residing? 6. Whether the learned lower appellate Court committed grave error by holding that non-examination of Registrar in witness box as attesting witness is a suspicious circumstance? 7. Whether the lower appellate Court was justified to put the onus upon the appellate/plaintiff to prove the fact which has not been set up in the pleading, especially case pleaded by the defendants?” 8. Learned senior counsel for the appellants vehemently contended that ‘will’ dated 02.09.1975 in favour of the plaintiffs is legal and valid and the same has been proved on record by examining attesting witnesses. The ‘will’ was executed more than six years prior to the death of Jhangi Ram when he was hale and hearty and used to reside with the plaintiffs. ‘Will’ was executed out of love and affection. Jhangi Ram was fit, physically and mentally, and ‘will’ has been executed in his full senses. The ‘will’ was executed more than six years prior to the death of Jhangi Ram when he was hale and hearty and used to reside with the plaintiffs. ‘Will’ was executed out of love and affection. Jhangi Ram was fit, physically and mentally, and ‘will’ has been executed in his full senses. Registration of the ‘will’ clearly speaks volumes about the state of mind of the executant as he had appeared before the public official. As such, findings of lower appellate Court are perverse and not sustainable in the eyes of law. Learned senior counsel further contended that there is no document on record to prove the ancestral nature of the property. ‘Will’ has been duly proved by examining PW1 Asa Nand deed writer, who prerpared the ‘will’ Ex.P1 and two marginal witnesses i.e. Ram Dayal PW2 and Bakhatawar Singh PW3. As such, lower appellate Court has wrongly discarded ‘will’ merely on the basis that heirs have been ignored. Learned senior counsel submitted that lower appellate Court has just referred to number of judgments to discard the ‘will’ that executant of the ‘will’ must explain as to why he is disinheriting other legal heirs and has treated non-mentioning the names of other legal heirs in the ‘will’ as suspicious circumstance. Besides this, another ground taken is that Jhangi Ram studied upto 6th/7th class and used to sign, however, document in question i.e. ‘will’ is thumb marked. Lower appellate Court has based its finding on the grounds that no evidence has been led to prove that Jhangi Ram used to reside with plaintiffs and they were serving him and property in question is ancestral and Raj Kumar has admitted the same. On these grounds, ‘will’ has been discarded. 9. On the other hand, learned counsel for respondents No.1 to 3 and 5 to 9 vehemently contended that mere registration of ‘will’ does not mean that it is a valid and legal ‘will’. Lower appellate Court after considering the evidence has rightly reversed the finding on issue No.1. Findings of fact cannot be nterfered with in the second appeal. It has been further contended that Jhangi Ram was deaf and dumb and lacked testamentary capacity. ‘Will’ is shrouded by suspicious circumstances and is not enforceable as no explanation has been given as to why he had discarded other legal heirs i.e. sons and daughters. 10. Findings of fact cannot be nterfered with in the second appeal. It has been further contended that Jhangi Ram was deaf and dumb and lacked testamentary capacity. ‘Will’ is shrouded by suspicious circumstances and is not enforceable as no explanation has been given as to why he had discarded other legal heirs i.e. sons and daughters. 10. I have considered the contentions raised by learned counsel for the parties. 11. In view of the arguments raised by learned counsel for the parties, I find that following substantial question of law arises for consideration in this appeal: - “Whether the findings of lower appellate Court discarding the ‘will’ are perverse and result of non-reading and misreading of evidence on record?” 12. So far as disinheritance and ancestral nature of the property is concerned, Jhangi Ram, much prior to his death, had partitioned his property amongst the coparceners/legal heirs i.e. 2/3rd share was given to two sons i.e. Hari Chand and Arjan Dass and 1/3rd remained with him. Finding in this regard has been recorded by lower appellate Court itself in para No.14 of the judgment, which reads as under: - “A perusal of the Will Ex.P1 in brief shows that Jhangi Ram testator had two living sons, namely Hari Chand and Arjan Dass defendants, three living daughters namely, Ishwar Bai, Vidhya Bai and children of fourth daughter Parmeshwari who had since died. The Will further shows that out of his movable and immovable property, Jhangi Ram had already given 2/3 share to his two sons Hari Chand and Arjan Dass (defendants) through a suit for declaration and remaining 1/3rd share was left with him. The Will further shows that the three plaintiffs who are grandsons of Jhangi Ram from his son Arjan Dass were living with the testator (Jhangi Ram) and used to serve him. Will further shows that he had already married his daughters and had given them sufficient amount and that he was helping them even then according to his capacity. The Will further shows that the three plaintiffs who are grandsons of Jhangi Ram from his son Arjan Dass were living with the testator (Jhangi Ram) and used to serve him. Will further shows that he had already married his daughters and had given them sufficient amount and that he was helping them even then according to his capacity. Will further shows that only three plaintiffs would be entitled to succeed to remaining 1/3 share left with Jhangi Ram, in equal shares, after his death and the daughters of his two sons Arjan Dass and Hari Chand, and male issues of Hari Chand (defendant) and children of his two daughters would have no right in the property willed away, and that the grandsons of Jhangi Ram would perform his last rites and they would bear the entire expense. In the last it has been mentioned in the Will that the Will is valid and it would be acted upon.” 13. Once the ancestral property stands partitioned amongst coparceners and 2/3rd share had already been given to sons then only 1/3rd property remained with Jhangi Ram which would be his separate property. As such the finding of lower appellate Court with regard to ancestral nature of the property in dispute is not sustainable. Even if there is admission by plaintiff – Raj Kumar, this admission does not prove that it was ancestral property. Once the property is partitioned amongst the coparceners i.e. sons and father, it does not remain ancestral coparcenary property and it becomes separate property. As such this is not a valid ground to discard the ‘will’. 14. So far as disinheritance of legal heirs is concerned, perusal of ‘will’ and its contents clearly indicate that Jhangi Ram was having great love and affection for the plaintiffs. In the ‘will’ it has been mentioned that he had given property to his sons Hari Chand and Arjan Dass to the extent of 2/3rd share equally and had also given other movable property. It has also been mentioned that he had been residing with his grandsons Raj Kumar, Narinder Kumar and Anil Kumar sons of Arjan Dass. He was happy with their services and it has also been mentioned that he had already married his three daughters and had spent sufficient money at that time. There is complete explanation for disinheriting his two sons and three daughters. He was happy with their services and it has also been mentioned that he had already married his three daughters and had spent sufficient money at that time. There is complete explanation for disinheriting his two sons and three daughters. At the cost of repetition, it would be appropriate to mention that Jhangi Ram executant of the ‘will’ had given 2/3rd share of his property by way of civil Court decree to his two sons and only 1/3rd share remained with him which he had bequeathed in favour of his grandsons/plaintiffs. There is explanation in the ‘will’ itself that he had already married his three daughters, namely, Ishwar Bai, Vidhya Bai and Parmeshwari. It is also mentioned in the ‘will’ that he had given sufficient money to his daughters at that time. Minute details are not expected to be written by the executant, it is only the intention of the executant which is to be inferred from the contents of the document. There is a complete explanation which has been misunderstood by the lower appellate Court. Jhangi Ram was so conscious that he has disinherited other children of Hari Chand and Arjan Dass. Elaborate details have been mentioned in the registered ‘will’, which has been duly proved by examining petition writer/deed writer Asa Nand as PW1 and marginal witnesses Ram Dayal as PW2 and Bakhatawar Singh as PW3. As such there is no doubt that contents as well as intention of the executant has been duly proved on record. Once 2/3rd of the property in the hands of Jhangi Ram has been given to his two sons, who happened to be coparceners, the remaining 1/3rd share is to be treated as self- acquired property of Jhangi Ram. Therefore, he was well within his right to execute the ‘will’ according to his free will and it has been rightly done. Lower appellate Court has not considered and read document in its true form. This is a case of clear misreading of ‘will’ Ex.P1, which has been duly proved by witnesses and well-reasoned findings of Court of first instance have been reversed. 15. So far as evidence with regard to staying with plaintiffs at Bhiwani is concerned, it is specifically mentioned in the ‘will’ itself that he was staying with his grandsons and was happy from their services. 15. So far as evidence with regard to staying with plaintiffs at Bhiwani is concerned, it is specifically mentioned in the ‘will’ itself that he was staying with his grandsons and was happy from their services. ‘Will’ is always executed keeping in view love and affection and the services rendered by a person/persons to the executant of the ‘will’. 16. So far as affixing thumb impression on the ‘will’ is concerned, study upto 6th or 7th is sufficient to read and sign but registering authority asks the person to affix his/her thumb impression which is even difficult to tamper with. Handwriting science is not an exact science whereas fingerprint science is an exact science; even the fingerprints of twins do not tally with each other. If at all defendants were apprehending that thumb impressions were not of Jhangi Ram, they could have very-well got examined the same from some fingerprint expert. Merely because signatures have not been put on the ‘will’ and only thumb impressions are their, is not a suspicious circumstance. Rather thumb impression is more authentic and can be verified. There is complete misreading of evidence on record by the lower appellate Court. As such, the findings recorded by lower appellate Court are perverse and not sustainable in the eyes of law. There is no suspicious circumstance surrounding the ‘will’ in question. Findings of lower appellate Court are based only on the imagination and not on the facts and circumstances as well as the evidence on record. The substantial question of law is answered in positive. 17. No other point has been raised. 18. In view of above discussion, appeal is allowed. Judgment and decree of lower appellate Court is set aside and that of Court of first instance is restored. No order as to costs Decree-sheet be prepared. ---------0.B.S.0------------ —————————