Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1058 (HP)

Lachhi Ram v. Dassi Devi

2016-06-15

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. By way of this Regular Second Appeal, the appellants/defendants have challenged the judgment and decree dated 21.12.2004 passed by the Court of learned District Judge, Mandi in Civil Appeal No. 114 of 2003 and judgment and decree dated 31.10.2003 passed by the Court of learned Sub Judge, 1st Class, Court No. III in Civil Suit No. 81/91/84/2002 (91). The trial Court by way of its judgment dated 31.10.2003 had partly decreed the suit of the plaintiffs to the extent that plaintiffs therein were sole heirs of deceased Dolu and Will dated 22.01.1990 was illegal, void and inoperative, which judgment has been upheld in appeal by the learned first Appellate Court. The appellants herein were the defendants in the Civil Suit and the appellants before the first appellate Court. 2. Brief facts necessary for the adjudication of present appeal are that the respondents/plaintiffs (hereinafter referred to as “plaintiffs”) filed a suit for declaration and for possession as a consequential relief on the grounds that the suit property defined in para 2(a) to para 2(k) of the plaint was owned and possessed by Dolu, predecessor-in-interest of the plaintiffs to the extent of share mentioned therein and plaintiffs No. 1 and 2 were the widows of Dolu and plaintiffs No. 3 to 5 were daughters of Dolu. According to the plaintiffs, the suit property was owned by Dolu and after his death, the plaintiffs being his heirs were entitled to inherit the suit property. Dolu died on 15.04.1991 and after his death, defendants took forcible possession of the land described in paras 2(a) to 2(k) of the plaint and on 05.05.1991, when plaintiffs prevented defendants from doing such unlawful acts, then the defendants stated that Dolu during his lifetime has executed alleged Will in their favour and subsequently the defendants against the provisions of law have illegally got attested Mutations No. 7, 44 and 89 in their favour on the basis of alleged Will at the back of the plaintiffs, which mutations were wrong, incorrect, void and illegal. It was further the case of the plaintiffs that defendants were alleging that Dolu had executed a Will dated 22.01.1990 in their favour which Will according to the plaintiffs was false, fictitious and forged document and in the alternative, the submission of the plaintiffs was that in case it is found that Dolu deceased had executed any alleged Will, then the same is void as Dolu was an old man and was not having disposing mind and was thus not competent to execute any alleged Will. Further, in the alternative, it was the case of the plaintiffs that if Dolu was found to be possessing sound mind, even then the alleged Will purported to have been executed by him was a void Will as the same was the result of undue influence and misrepresentation as well as fraud. 3. In the written statement, the defendants denied the case of the plaintiffs and submitted that during his life time, Dolu executed a Will of his entire property on 22.01.1990 in favour of the defendants and they were entitled to succeed the property of late Shri Dolu in accordance with that Will. The defendants further denied that after the death of Dolu, defendants took forcible possession of the land. According to them, their parents died in early childhood and they were brought up by late Sh. Dolu and it was the defendants who were rendering services to late Sh. Dolu and the entire family was residing together as late Sh. Dolu was not having any male issue and, therefore, he was treating the defendants as his own sons and it is on account of this love and affection that he has bequeathed the entire estate and other landed property in favour of the defendants. It was denied by them that the will was false, fictitious and a forged document. It was denied that Dolu was a very old man and was not having disposing mind. It was also denied that the Will was result of undue influence and misrepresentation. According to the defendants, the same was the result of love and affection of late Dolu towards the replying defendants and the same was executed by Dolu out of his free disposing mind in the presence of witnesses and accordingly, on these basis, the defendants denied the claim of the plaintiffs. 4. According to the defendants, the same was the result of love and affection of late Dolu towards the replying defendants and the same was executed by Dolu out of his free disposing mind in the presence of witnesses and accordingly, on these basis, the defendants denied the claim of the plaintiffs. 4. On the basis of the pleadings of the parties, the learned trial Court framed the following issues: “Issue No. 1 : Whether the plaintiffs are the heirs of Dolu deceased? OPP Issue No. 2 : Whether the Dolu deceased has executed a valid Will on 22.01.1990 in favour of the defendants? OPD Issue No. 3 : Whether the Dolu deceased was not having disposing mind at the time of execution of the Will as alleged. If so, its effect? OPP Issue No. 4 : If Issue No. 2 is found in the affirmative, then whether the Will in question is the result of undue influence and misrepresentation and fraud as alleged? OPP Issue No. 5 : Whether the suit in the present form is not maintainable? OPD Issue No. 6 : Whether the plaintiff as got no endorceable cause of action? OPD Issue No. 7 : Relief.” 5. On the basis of evidence produced on record in support of their respective case, the learned trial Court decided the said issues as under:- “Issue No. 1 : Yes. Issue No. 2 : No. Issue No. 3 : Yes. Issue No. 4 : Yes. Issue No. 5 : No. Issue No. 6 : No. Relief : Suit of the plaintiffs is partly decreed as per operative part of the judgment with no order as to cost. 6. Accordingly, the learned trial Court partly decreed the case of the plaintiffs to the extent that the plaintiffs were sole heirs of deceased Dolu and Will dated 22.01.1990 was illegal, void and inoperative. The suit was decreed in the following terms:- “the suit of the plaintiffs succeeds and the same is partly decreed to the extent that plaintiffs are sole heirs of deceased Dolu and Will dated 22.1.1990 is illegal, void and inoperative. IN the peculiar facts and circumstances of the case, the parties are directed to bear the cost of the suit on their own.” 7. IN the peculiar facts and circumstances of the case, the parties are directed to bear the cost of the suit on their own.” 7. Feeling aggrieved by the said judgment passed by the learned trial Court, defendants filed appeal before the Court of learned District Judge, Mandi, which was also dismissed by the learned Appellate Court vide its judgment dated 21.12.2004. Learned Appellate Court held that on the basis of material placed on record, it can safely be said that the recitals of the said Will are full of suspicious circumstances and only because the Will had been registered, this did not mean that the Will has to be accepted as it was unless the propounder of the Will satisfy the Court that the Will was not surrounded by suspicious circumstances. Learned Appellate Court further held that the defendants had not adduced any evidence to prove as to what provision Dole Ram had made for his wife and minor daughters and as to why in the Will no property had been left by Dole Ram in favour of his wife and minor daughters. Learned Appellate Court further held that it is settled law that where the Will is surrounded by suspicious circumstances, then it is for the beneficiaries of the Will to explain these suspicious circumstances to the satisfaction of the Court. Learned Appellate Court further held that in the present case, the beneficiaries of the Will, i.e. the defendants have taken active part in the execution of the Will and undisputed fact was that the natural heirs of Dole Ram had been excluded from the property completely. According to the learned Appellate Court, both these were strong suspicious circumstances which went against the defendants. It further held that in the facts and circumstance of the present case, Dole Ram was expected to make atleast some provisions for the plaintiffs and there is no explanation given in the recitals of the Will also as to why the natural heirs have been excluded from inheriting his property. Further, according to the learned Appellate Court, these important points could not be satisfactorily explained by the defendants as to why the plaintiffs were excluded from inheriting the property of Dole Ram. Accordingly, learned Appellate Court dismissed the appeal so filed by the defendants and upheld the judgment and decree passed by the learned trial Court. Further, according to the learned Appellate Court, these important points could not be satisfactorily explained by the defendants as to why the plaintiffs were excluded from inheriting the property of Dole Ram. Accordingly, learned Appellate Court dismissed the appeal so filed by the defendants and upheld the judgment and decree passed by the learned trial Court. The said two judgments and decrees passed by the learned trial Court and the learned Appellate Court have been assailed by the appellants/defendants by way of present Regular Second Appeal. 8. This Regular Second Appeal was admitted on the following substantial questions of law on 04.04.2005:- “1. Whether the learned courts below have misconstrued and misinterpreted Ex. DA regarding its valid execution when it satisfied the legal conditions enumerated regarding its execution and proof under the Evidence Act and Indian Succession Act, which has resulted into wrong and erroneous finding of law. If so its effect? 2. Whether the findings of learned courts below regarding Will being suspicious on account of exclusion of heirs and making no provisions for widow, is contrary to law. If so its effect?” 9. Mr. Rahul Mahajan, learned counsel for the appellants has vehemently argued that the judgments and decrees passed by both the Courts below were perverse and were the result of misreading and mis-appreciation of the material on record. According to Mr. Mahajan, in the present case, the plaintiffs had failed to prove by way of bringing cogent material on record that the Will which had been propounded by deceased Dole Ram in favour of the appellants was no Will in the eyes of law. According to Mr. Mahajan, learned trial Court had erred in coming to the conclusion that Dole Ram deceased had not executed a valid Will on 22.01.1990 in favour of the defendants. According to him, the plaintiffs were not able to prove that deceased Dole Ram was either more than 80 years old or that he was not in a disposing state of mind when the Will was propounded in favour of the defendants. Further, according to Mr. Mahajan, the plaintiffs were also not able to substantiate that deceased Dole Ram was residing with them at the time of his death or when the deceased was ailing, it was the plaintiffs who took care of his health. On the contrary, according to Mr. Further, according to Mr. Mahajan, the plaintiffs were also not able to substantiate that deceased Dole Ram was residing with them at the time of his death or when the deceased was ailing, it was the plaintiffs who took care of his health. On the contrary, according to Mr. Mahajan, the defendants had successfully established on record that they were treated by the deceased like his sons and it was on this account as he was not having any male descendant that he bequeathed his entire property in favour of the defendants. He further contended that the Will was executed by late Dole Ram and registered strictly in accordance with law and there was no suspicious circumstance which shrouded the Will with suspicion. According to him, the judgments passed by both the Courts below are perverse and are the result of misreading and mis-appreciation of evidence on record. 10. Mr. Mahajan argued that Will Ex.-DA was validly executed and it satisfied all legal conditions with regard to its execution. He argued that it was not as if every Will in which natural heirs are excluded, becomes a suspicious Will. As per him, in the present case, in view of the fact that the deceased was looked after by the defendants and natural heirs of deceased neither looked after him nor he had any male descendant, the Will was executed by the deceased in favour of the defendants out of love and affection. Mr. Mahajan submitted that this aspect of the matter has also been wrongly appreciated by both the Courts below. In these circumstances, he submitted that the judgments and decrees passed by the learned Courts below were liable to be set aside and the suit filed by the plaintiffs was also liable to be dismissed with costs. 11. Mr. Y. Paul, learned counsel appearing for the respondents has argued that there was no merit in the appeal and there was neither any perversity nor any illegality in the judgments and decrees passed by the learned Courts below. 11. Mr. Y. Paul, learned counsel appearing for the respondents has argued that there was no merit in the appeal and there was neither any perversity nor any illegality in the judgments and decrees passed by the learned Courts below. According to him, whether the alleged Will executed by late Shri Dole Ram was a valid Will or not stood decided in favour of the plaintiffs by the learned two Courts below and this being a finding of fact returned by the learned trial Court as well as by the learned Appellate Court called for no interference by this Court in Regular Second Appeal. Further, according to Mr. Y. Paul, the judgments and decrees passed by the learned Courts below were otherwise also well reasoned and correct judgments based on the appreciation of material placed on record by both the parties because it stood proved from the records that the Will alleged to have been propounded by late Sh. Dole Ram was surrounded by suspicious circumstances as the natural heirs, i.e. the plaintiffs were left out in the Will without any explanation whatsoever and further the Will had not been executed in accordance with law and the beneficiaries of the Will had played active role in the execution of the same. On these basis, Mr. Y. Paul submitted that the judgments passed by the learned Courts below called for no interference. 12. I have heard the learned counsel for the parties and also gone through the records of the case. 13. Ex.-DA is the Will which has been allegedly propounded by Dole Ram. This Will has been witnessed by Bakshi Ram, S/o Sh. Dile Ram and Narpat, S/o Sh. Prem Dass. As per this Will, which has been executed on 22.01.1990, the testator of the Will has bequeathed the properties mentioned therein in favour of the defendants and neither any property has been bequeathed by him in favour of his natural heirs nor any cogent reason has been given as to why he has excluded his natural heirs from succeeding his property. 14. In order to substantiate its case that this Will was not a validly executed Will in accordance with law, Smt. Mathra Devi, plaintiff stepped into the witness box as PW-1. 14. In order to substantiate its case that this Will was not a validly executed Will in accordance with law, Smt. Mathra Devi, plaintiff stepped into the witness box as PW-1. In her statement, she has deposed that Dole Ram was her father, who died about three years ago and at the time of his death, his age was about 80 years. She has further stated that her father was unwell for last five years before his death. He was not in sound and disposing mental position. He used to live with her and she used to take care of her father. She has further stated that Dole Ram had not executed any Will in favour of the defendants and the said Will was a forged one. She also stated that after the death of Dole Ram, his last rights were performed by the plaintiffs and not by defendants. She also stated that because of his indisposed state of mind, Dole Ram had burnt his legs in hearth (Chullah) and he had lost his sense of well being and eating habits etc. In her cross-examination, she has stated that Dole Ram was suffering from pains and swelling in his entire body as well as problem of cough and his mental condition was also not good. She also stated that Dole Ram was got treated by her in various hospitals, though she had not retained the medical records of any hospital. She also stated that Dole Ram was treated by her alone and defendants did not associate themselves in the same. She also stated in her cross-examination that Dole Ram died two three days after he had burnt himself in a hearth (Chullah). She has denied the suggestion that the defendants were brought up by Dole Ram. She also denied the suggestion that half of suit property is that of the defendants and half is of her father. She has admitted that defendant Lachhi Ram had gone to Haridwar after the death of her father, but she has also stated that she also accompanied him. She has denied the suggestion that till his death Dole Ram resided with the defendants. 15. One Shri Kala Ram has entered the witness box as PW-2 and deposed that before his death, Dole Ram used to remain ill and his mental condition was also not good. She has denied the suggestion that till his death Dole Ram resided with the defendants. 15. One Shri Kala Ram has entered the witness box as PW-2 and deposed that before his death, Dole Ram used to remain ill and his mental condition was also not good. He was not in a position to understand as to what was good for him and what was not good for him. He also stated that before his death, Dole Ram has suffered burn injuries from hearth. He also stated that deceased used to reside with the plaintiffs and plaintiffs used to take good care of the deceased. He also deposed that on account of his mental condition, Dole Ram was not in a position to execute any Will. He also deposed that the last rites of the deceased were attended by his daughters. 16. Similarly, PW-3 Madhav Ram has also deposed that age of Dole Ram was about 80 years and his mental health was not good. According to him, he was looked after by his wife and nephew. He also deposed that last rites of deceased were performed by his wife and daughters. 17. In order to prove the Will, defendant Lachhi Ram entered the witness box as DW-1. He stated that the parents of the defendants died when they were six to seven years old and they were brought up by Dole Ram and after the defendants grew up, they used to look after Dole Ram. He has further deposed that on 22.01.1990, Dole Ram had bequeathed his entire property to them by way of a Will. The Will was written by a Document Writer and the same was witnessed by Bakshi Ram and Narpat. Narpat has since died. According to him, after the Will was written by Document Writer, he made Dole Ram to read the same, who accepted the same to be correct. Very importantly, he thereafter stated that he and the witnesses were present there. His exact deposition is as under:- “mai wa gawahan bhi us samay vahi mouka per thai. Uske baad dolu ram ne is vasihat ke upar dastkhet kiye thai thatha narpat gawah ne apna angutha lagaya tha thatha bakshi ram gawah ne apne dasthkhet kiye thai. Iske baad hum sabhi tehsil chale gaye thai. Hamari pahchan deshraj vakil ne tehsildar ke samane kit hi.” 18. Uske baad dolu ram ne is vasihat ke upar dastkhet kiye thai thatha narpat gawah ne apna angutha lagaya tha thatha bakshi ram gawah ne apne dasthkhet kiye thai. Iske baad hum sabhi tehsil chale gaye thai. Hamari pahchan deshraj vakil ne tehsildar ke samane kit hi.” 18. He has also stated that he has seen the signatures of Dole Ram on the Will which were appended by Dole Ram in his presence. As per him, when Dole Ram executed the Will, his mental condition was good and his health was also good. He executed the Will out of his free deposition and the defendants had not exerted any pressure on Dole Ram to execute the said Will. In his cross-examination, he has stated that on 22.01.1990, he and Narpat had gone to Mandi in a bus. He has also stated in his cross-examination that Bakshi Ram was co-brother (Sadhu) of Bhumi Ram, who was the brother of DW-1. He has also stated that Dole Ram had mentioned in front of Narpat and Bakshi Ram that he wanted to execute a Will in favour of the defendants and this was stated by him about 1-2 months before the execution of the Will. 19. Bakshi Ram entered into the witness box as DW-2. He stated that on 22.01.1990, Dole Ram had come to him and said that he wanted to execute a Will in favour of Lachu Ram and Bhumi Ram. As per him, those days he used to work in Rajmahal Hotel at Mandi and Dole Ram had come to DW-2 at the said place and thereafter, they had gone to the Court. In his cross-examination, he has denied the suggestion that before 22.01.1990, Dole Ram had ever come to him and mentioned that he wanted to execute a gift deed in favour of the defendants. 20. Besides this, the defendants have not produced any witness in support of the execution of Will. The Document Writer has also not been examined by the defendants. 21. Learned trial Court while adjudicating on Issue No. 2, i.e. as to whether Dolu deceased has executed a valid Will on 22.01.1990 in favour of the defendants, has in detail gone into all the aspects of the matter as to whether the alleged Will executed by Dole Ram was surrounded by suspicious circumstances or not. 21. Learned trial Court while adjudicating on Issue No. 2, i.e. as to whether Dolu deceased has executed a valid Will on 22.01.1990 in favour of the defendants, has in detail gone into all the aspects of the matter as to whether the alleged Will executed by Dole Ram was surrounded by suspicious circumstances or not. All these aspects of the matter have also been taken note of by the learned Appellate Court. 22. In my considered view, it cannot be said that either of the Courts have misread or misconstrued Ex.-DA or misinterpreted the contents thereof or the circumstances in which the said Will was executed or registered. 23. The contention of plaintiffs that deceased Dole Ram was 80 years old when he died and that he was not in sound and disposing state of mind for about 4 to 5 years before his death has gone unrebutted. Defendants have not been able to produce any cogent material on record to demonstrate that either Dole Ram was not aged about 80 years when he died or that he was in a fit mental and physical condition for last 4 to 5 years before his death. 24. It is pertinent to mention here that the date of execution of Will is 22.01.1990 and Dole Ram has died on 15.4.1991, i.e. almost after one year of the execution of the alleged Will and the case of the plaintiffs is that Dole Ram was not in a fit state of mind for almost 4 to 5 years before his death. 25. Defendants have admitted that defendant No. 1 was present alongwith Dole Ram at Mandi when Dole Ram allegedly executed Will dated 22.01.1990 in favour of the defendants. In his cross-examination, defendant No. 1 has admitted that Dole Ram used to do everything on the asking of the defendants, which according to the plaintiffs was a pointer to the fact that Dole Ram was under the influence of said defendants. Witness Narpat is also close relative of defendant No. 2. There is no reason assigned in the Will as to why Dole Ram was bequeathing his entire property in favour of the defendants and was excluding his natural heirs from succeeding to any of his properties. 26. Witness Narpat is also close relative of defendant No. 2. There is no reason assigned in the Will as to why Dole Ram was bequeathing his entire property in favour of the defendants and was excluding his natural heirs from succeeding to any of his properties. 26. Now, if we see all these factors together, then the only conclusion which can be arrived at is that Dole Ram was not in a sound and disposing state of mind at the time when the Will has been purported to be executed by him. Further, the beneficiaries of the Will have played major role in the execution of Will as well as in the registration of the Will. This surrounds the Will with suspicious circumstances, especially keeping in view the fact that natural heirs of the testator of the Will have been excluded and ousted from succeeding the property of testator without any cogent explanation provided in the Will itself. 27. Further, there is inconsistency in the statements of DW-1 and DW-2. While in his deposition, DW-1 has categorically said that one or two months before the execution of Will, Dole Ram was stating in front of persons including DW-2 that he wants to bequeath his property by way of a Will, whereas DW-2 in his cross-examination has categorically stated that before 22.01.1990, Dole Ram never told him that he wants to bequeath his property in favour of the defendants. 28. In my considered view, the factum of Dole Ram having executed a Will in favour of the defendants in front of witnesses and thereafter having it registered before the registering authority does not itself make the Will a legal and valid Will in the eyes of law. Both the Courts below have correctly come to the conclusion that the Will in issue was surrounded with suspicious circumstances, in view of the fact that the natural heirs of Dole Ram were excluded from inheriting the property of Dole Ram and the beneficiaries of the Will had played an active role in the propounding of the Will. Further, it has been rightly held and appreciated by both the Courts below that defendants had failed to dispel this suspicion that the Will which was propounded by Dole Ram was on account of his free will and deposition. 29. Further, it has been rightly held and appreciated by both the Courts below that defendants had failed to dispel this suspicion that the Will which was propounded by Dole Ram was on account of his free will and deposition. 29. It is evident from the pleadings of the parties as well as the material which has been placed on record by way of evidence by the parties that deceased Dole Ram was not in sound and disposing state of mind at the time when the Will in issue was allegedly executed by him bequeathing his entire property in favour of the defendants. The Will is otherwise surrounded with suspicious circumstances because besides the fact that the deceased Dole Ram excluded his natural heirs from succeeding his property without there being any cogent explanation in the Will as to why this was being done, the beneficiaries of the Will had admittedly played a major role in the preparation/execution as well as registration of the said Will. 30. In the present case, it cannot be said that the findings of fact arrived at by both the Courts below with regard to Ex.-DA are not supported by evidence. There is no perversity in the said decisions of the learned Courts below on account of mis-appreciation of evidence. In my considered view, in view of the documentary and other evidence, the learned Courts below were correct in coming to the conclusion that Ex.-DA was surrounded with suspicious circumstances. 31. The Hon’ble Supreme Court in S.R. Srinivasa and others Vs. S. Padmavathamma, (2010) 5 SCC 274 has held that because the Will merely mentions that the natural heirs are well settled in their lives, it cannot be inferred that there was convincing reason as to why they were excluded from inheritance. 32. It has been held by the Hon’ble Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma, AIR 1959 SC 443 that in the cases in which execution of the Will is surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of his own free will. The Hon’ble Supreme Court has further held that in such circumstances, the initial onus is on the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. The Hon’ble Supreme Court has further held that in such circumstances, the initial onus is on the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. Such suspicion cannot be removed by the mere assertion of the propounder that the will bears signature of the testator or that the testator was in a sound and disposing state of mind at the time when the will was made. 33. In the present case, in my considered view, the propounders of the Will have failed to discharge this initial onus as they have not been able to remove all reasonable doubts in the matter. 34. Learned counsel for the appellants has heavily relied upon the judgment of the Hon’ble Supreme Court in Sridevi and others Vs. Jayaraja Shetty and others (2005) 2 SCC 784 . In that case also, the testator was 80 years of age at the time of execution of the Will and in fact he died after 15 days of the execution of the Will. The Will so executed by the testator was held to be a valid Will. I am afraid that this judgment is of no help to the appellants for the reason that it is clear from the judgment of the Hon’ble Supreme Court that except the factum of testator being 80 years of age at the time of execution of Will and his having died after 15 days of the execution of the Will, nothing was brought on record to show that the testator was not in good health or not possessed of his physical or mental faculties. The Hon’ble Supreme Court also held that the submission of the learned counsel for the appellants that the testator had deprived the other heirs of his property was not true. In fact, the Hon’ble Supreme Court held that it is not a case where the father had deprived his other children totally from inheritance. Reasons for unequal distribution have been given in the Will itself and this had been done by him to balance the equitable distribution of the properties in favour of all his children. Relevant paragraphs of the said judgment read as under:- “10. Shri Sanjay Parikh, learned advocate appearing for the appellants strenuously contended that the will propounded by the respondents was not a duly executed will. Relevant paragraphs of the said judgment read as under:- “10. Shri Sanjay Parikh, learned advocate appearing for the appellants strenuously contended that the will propounded by the respondents was not a duly executed will. According to him, the burden to prove due execution of the will was on the propounders of the will which they have failed to discharge. That the will was surrounded by suspicious circumstances. The burden to remove the suspicion on the due execution of the will was also on the propounders which they have failed to discharge. According to him, the testator died within 15 days of the execution of the will and that he did not have the testamentary capacity to execute the will. Respondent No. 13 had taken a prominent part in the execution of the will as he was present in the house at the time of the alleged execution of the will. That natural heirs had been excluded from the properties bequeathed in favour of Dharmaraja Kadamba and Raviraja Kadamba without any valid reasons. That the respondents had failed to disclose the execution of the will in any of the earlier proceedings before the revenue authorities and the forest authorities which were contested between the appellants and Respondent Nos. 8-13 which throws a grave and serious doubt about the due execution of the will. That the will was got registered after a lapse of 4 years and did not see the light of the day till it was produced in the present proceedings after a lapse of more than 6 years. That the burden to dispel the suspicious circumstance enumerated above was on the propounders of the will which they had failed to discharge by leading cogent and acceptable evidence. As against this, Dr. Rajeev Dhavan, learned Senior Counsel appearing for the Respondent Nos. 8-13 contended that the due execution of the will had been proved by the testimony of the scribe and the two attesting witnesses coupled with the testimony of the hand-writing expert. That the attesting witnesses have categorically stated that the will had been executed in their presence and the testator signed the same while in sound disposing mind and in possession of full physical and mental faculties. The need to register the will after a lapse of 4 years arose as per the legal advice given to them. That the attesting witnesses have categorically stated that the will had been executed in their presence and the testator signed the same while in sound disposing mind and in possession of full physical and mental faculties. The need to register the will after a lapse of 4 years arose as per the legal advice given to them. That the will had been disclosed to the respondents at the time of final obeisance ceremony of the deceased in the year 1976, and then in the year 1978 in the proceedings before the forest authorities. That the will was disclosed to the entire world at the time of its registration on 11.9.1980. According to him, there were no suspicious circumstances attending the due execution of the will and even if there were any such circumstances, the same had been dispelled by the respondents by leading cogent evidence. 15. Coming to the suspicious circumstances surrounding the will, it may be stated that although the testator was 80 years of age at the time of the execution of the will and he died after 15 days of the execution of the will, the two attesting witnesses and the scribe have categorically stated that the testator was in sound state of health and possessed his full physical and mental faculties. Except that the deceased is 80 years of age and that he died within 15 days of the execution of the will, nothing has been brought on record to show that the testator was not in good health or possessed of his physical or mental faculties. From the cross- examination of the scribe and the two attesting witnesses, the appellants have failed to bring out anything which could have put a doubt regarding the physical or mental incapacity of the testator to execute the will. Submission of the learned counsel for the appellants that the testator had deprived the other heirs of his property is not true. The family properties had been partitioned in the year 1961. The shares which were given to Dharmaraja Kadamba and Raviraja Kadamba were in possession of tenants and vested in the State Government after coming into force of Karnataka Land Reforms (Amendment) Act, 1973 whereas the properties which had been given to the daughters were in the personal cultivation of the family. The shares which were given to Dharmaraja Kadamba and Raviraja Kadamba were in possession of tenants and vested in the State Government after coming into force of Karnataka Land Reforms (Amendment) Act, 1973 whereas the properties which had been given to the daughters were in the personal cultivation of the family. The testator while executing the will bequeathed the properties which had fallen to his share in the partition and which he had inherited from his brother which were in his personal cultivation in favour of his two sons Dharmaraja Kadamba and Raviraja Kadamba and gave the right to receive compensation to other heirs of the properties which were under the tenants and had vested in the State Government. It is not a case where the father had deprived his other children totally from inheritance. Reasons for unequal distribution have been given in the will itself. This had been done by him to balance the equitable distribution of the properties in favour of all his children. 16. Counsel for the appellants argued that Respondent No. 13 had taken prominent part in the execution of the will as he was present in the house at the time of the alleged execution of the will. We do not find any merit in this submission. Apart from establishing his presence in the house, no regarding the execution of the will. Mere presence in the house would not prove that he had taken prominent part in the execution of the will. Moreover, both the attesting witnesses have also stated that the daughters were also present in the house at the time of execution of the will. The attesting witnesses were not questioned regarding the presence of the daughters at the time of the execution of the will in the cross-examination. The presence of the daughters in the house at the time of execution of the will itself dispels any doubt about the so-called role which Respondent No. 13 had played in the execution of the will. The attesting witnesses were not questioned regarding the presence of the daughters at the time of the execution of the will in the cross-examination. The presence of the daughters in the house at the time of execution of the will itself dispels any doubt about the so-called role which Respondent No. 13 had played in the execution of the will. They have not even stepped into the witness box to say as to what sort of role was played by Respondent No. 13 in the execution of the will.” According to the learned counsel for the appellants, the very purpose of propounding the Will is to deprive natural heirs of the property by the testator, otherwise there may not be any reason for the testator to execute the Will. Mr. Mahajan states that in the present case, the testator intended to deprive his natural heirs from the property and, therefore, he took a conscious decision to execute Ex.-DA and bequeath the entire property in favour of the defendants. This submission of the learned counsel for the appellant on the face of it looks attractive, but when one goes slightly deep into the facts of the present case, then it emerges that though the purpose of the Will is to deprive the natural heirs from the devolution of the property as per natural succession, however, if the Will is suspicious, then the onus is upon the propounder of the Will to remove that suspicion. The Hon’ble Supreme Court in the judgment so relied upon by the learned counsel for the appellants has reiterated that it is the duty of the propounder of the Will to remove all suspicious circumstances and if the propounder succeeds in removing the suspicious circumstances, then the Court has to give effect to the Will, even if it has cut off whole or in part near relations. Because in the present case, the defendants have not been able to remove the suspicious circumstances surrounding the Will, therefore, the above judgment is also of no assistance to the appellants. 35. Coming again to the facts of the present case, the plaintiffs have proved that the testator besides being 80 years of age was not in sound state of health and was not possessed of physical or mental faculties during four five years before his death. 35. Coming again to the facts of the present case, the plaintiffs have proved that the testator besides being 80 years of age was not in sound state of health and was not possessed of physical or mental faculties during four five years before his death. Not only this, it is not a case where the testator has distributed his property unequally between his children. Here is a case where the children have been left out in totality and the entire property has been bequeathed in favour of his brother’s children without any cogent explanation as to why he was depriving his natural heirs of his property. Further, admittedly, the propounders of the Will have played a major role in the preparation/execution as well as registration of the Will executed by deceased Dole Ram. Therefore, the judgment of the Hon’ble Supreme Court being relied upon by the learned counsel for the appellant does not further his cause. 36. Learned counsel for the appellants has also relied upon the judgment passed by this Court in Om Parkash and others Vs. Bhup Singh and others, Latest HLJ 2009 (HP) 106 and on the basis of the said judgment, he has contended that this Court can interfere with the judgments passed by both the Courts below where evidence has not been rightly considered and appreciated by the learned Courts below and if the conclusions arrived at are not supported by the evidence and the same are perverse. There is no dispute with this preposition of law and the scope of Section 100 of the Code of Civil Procedure even in those cases where there are incorrect findings, however the fact of the matter still remains that each and every case has to be adjudicated upon facts which are peculiar to it. 37. In the present case, in my considered view, it cannot be said that there is mis-appreciation of evidence by the learned Courts below or the conclusions which have been arrived at by the learned Courts below are not supported by evidence or the same are perverse. Therefore, the said judgment which has been relied upon by the learned counsel for the appellants is also of no assistance to them. 38. Therefore, the said judgment which has been relied upon by the learned counsel for the appellants is also of no assistance to them. 38. Keeping this aspect of the matter in view and in view of the law which I have discussed above, it cannot be said the learned Courts below have misread or mis-appreciated Ex. DA. Further, it also cannot be said that the learned Courts below have erred in coming to the conclusion that the Will in issue was not a legal and valid Will in which the natural legal heirs stood excluded from succeeding the property of the testator of the Will without any cogent explanation. Thus, both the substantial questions of law are answered accordingly. 39. Therefore, in view of my findings recorded above, the appeal being without any merit is dismissed with cost.