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2016 DIGILAW 654 (HP)

Pritam Singh v. Hari Lal

2016-05-03

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. 1. The instant appeal has been preferred against the judgment and decree dated 25.05.2006 passed by learned District Judge, Hamirpur affirming the judgment and decree dated 23.12.2003 passed by learned Civil Judge (Jr. Division), Barsar, District Hamirpur, decreeing the suit of the plaintiffs by way of declaration to the effect that will dated 1.8.1998 Ex.PW-2/A is the last and valid will of late Shri Mehar Singh. 2. The present appeal was admitted on the following substantial questions of law:- “1. Whether exhibit DW-4/A Will as executed by deceased in favour of the appellants on 24.8.1985 which was registered in the office of Sub Registrar, Badsar, appellants have succeeded deceased and without cancellation thereof in the alleged subsequent exhibit PW-2/A, earlier Will has to be held valid? 2. Whether the presumption of correctness as attached to earlier Will exhibit DW-4/A, the same having been registered on 24.8.1985, much prior to the death of the deceased and in the absence of any cogent and reliable evidence, no infirmity can be found in the same? 3. Whether exhibit PW-2/A, alleged Will of the deceased is surrounded by suspicious circumstances and the same has not been prepared with the knowledge and consent of the deceased because on account of old age and ailing/weak health, he was not having a sound & disposing mind? 4. Whether Will exhibit PW-2/A, has not been proved to have been executed and prepared in accordance with mandatory requirement of Section 63 of the Indian Evidence Act? 5. Whether findings as recorded by both the courts below are vitiated on account of misreading and mis-appreciation of the pleadings of parties as well as material on record. The observation of Ld. trial court that execution of subsequent Will was not specifically denied and that it was for the defendants to show that Will set up by Plaintiffs was not valid are contrary to provisions of Law? 6. Whether scribe of exhibit PW-2/A, Sh.Parkash Singh and as per statement of Janak Singh and Kuldeep Kumar that deceased had denied having executed any earlier Will, therefore, exhibit PW-2/A does not contain Will of the deceased and the same was not prepared with the knowledge and his consent? 7. Whether land in suit being in joint ownership and possession of the parties, therefore, decree for injunction could not have been granted. 7. Whether land in suit being in joint ownership and possession of the parties, therefore, decree for injunction could not have been granted. The revenue record, exhibit D-1, Exhibit D-2, and exhibit D-3, clearly show that land in suit has not been partition? 8. Whether both the courts below have failed to take into consideration oral and documentary evidence of the appellant?” 3. Though, I will be dealing with all the substantial questions of law formulated above while examining the evidence available on record. However, with a view to resolve the actual controversy, at first instance, I am considering the substantial questions of law Nos.1 to 4 above which relates to the legality and validity of the will dated 1.8.1998 Ex.PW-2/A (in short ‘will Ex.PW-2/A’) and already existing will dated 24.08.1985 Ex.DW- 4/A (in short ‘will Ex.DW-4/A’) because controversy involved in the present lis is with regard to both the aforesaid wills set up by the parties. 4. The plaintiffs-respondents (hereinafter referred to as the ‘plaintiffs’) instituted a suit for declaration to the effect that will Ex.PW-2/A executed by Mehar Singh son of Shri Rama, resident of Village Samtana-Kalan, Tappa Dhatwal, Tehsil Barsar, District Hamirpur, H.P. is a valid will with respect to land comprised in Khata No.177, Khatauni No.230, Khasra Nos.924 and 929, kittas 2, measuring 34-11 Kanals as entered in the Jamabandi for the year 1993-94, situated in Tika Samtana-Kalan, Tappa Dhatwal, Tehsil Barsar, District Hamirpur, H.P. (hereinafter referred to as the ‘suit land’) and prayed that mutation No.1230 dated 28.3.2000 attested and sanctioned by A.C. 2nd Grade, Sub Tehsil Dhatwal and any action taken upon the same may be declared null and void. By way of consequential relief, plaintiffs have also sought a decree for permanent prohibitory injunction restraining the appellants-defendants (hereinafter referred to as the ‘defendants’) from alienation, raising any construction and changing the nature of the suit land. 5. Close scrutiny of the record reveals that deceased Mehar Singh had executed a will Ex.PW-2/A in favour of the plaintiffs and proforma-defendant No.7 in the presence of respectable persons of the locality and as per version of the plaintiffs will Ex.PW-2/A was the last will executed by deceased Mehar Singh. 5. Close scrutiny of the record reveals that deceased Mehar Singh had executed a will Ex.PW-2/A in favour of the plaintiffs and proforma-defendant No.7 in the presence of respectable persons of the locality and as per version of the plaintiffs will Ex.PW-2/A was the last will executed by deceased Mehar Singh. By way of present suit, plaintiffs have also alleged that will Ex.DW-4/A set up by the defendants on the basis of which mutation was sanctioned in their favour cannot be relied upon being false, fabricated and concocted and the plaintiffs and proforma defendant No.7 are not bound by the same. They further submitted that deceased Mehar Singh during his life time had delivered possession of the suit land in their favour and since then they are in possession. Defendants were requested to admit the claim of the plaintiffs in the month of October, 2000 but in vain. 6. Defendants No.1 to 6, by way of filing joint written statement, took preliminary objections of Section 10 of the Code of Civil Procedure, locus-standi, estoppel and that of maintainability. On merits, they averred that deceased Mehar Singh had executed a will Ex.DW-4/A during his life time in their favour and he had also executed an agreement on the same day in their favour, whereby he was not competent to execute any other will. It is specifically averred that during his life time he was being looked after and maintained by them. They have also pleaded that deceased Mehar Singh had to repay the loan to the Co-operative Society which he had taken as a loan. They have further stated that will Ex.PW-2/A, produced by the plaintiffs, is a result of connivance and is a forged/fake document executed under force and undue influence. The possession of the suit land was also claimed to be with them and as per their versions plaintiffs never came in possession over the same. They further averred that the matter raked up by way of the present suit is already subject matter of the Civil Suit No.190 of 1998, titled as Pritam Singh Vs. Roshan Lal, which is pending. 7. They further averred that the matter raked up by way of the present suit is already subject matter of the Civil Suit No.190 of 1998, titled as Pritam Singh Vs. Roshan Lal, which is pending. 7. The learned trial Court, on the basis of pleadings, settled inasmuch as 12 issues and decided all the issues, save and except issue No.8, in favour of the plaintiffs and granted decree for declaration to the effect that will Ex.PW-2/A is last and final will of deceased Mehar Singh and allowed the suit filed by the plaintiffs. 8. In order to arrive at aforesaid conclusion, learned trial Court considered the evidence brought on record by the plaintiffs which is an un-registered will dated 1.8.1998 Ex.PW- 2/A executed by deceased Mehar Singh in favour of plaintiffs and proforma defendants. As per averments contained in the plaint, the aforesaid will Ex.PW-2/A is last and valid will executed by deceased Mehar Singh. Since the plaintiffs had claimed themselves to be the owners in possession of the suit property on the basis of will Ex.PW-2/A executed by deceased Mehar Singh in their favour. Now, the first question which arises for consideration of this Court is that whether the findings returned by the learned Courts below that will Ex.PW- 2/A is a valid, legal and the last will of deceased Mehar Singh, is sustainable in view of the evidence adduced on the record. 9. Defendants have challenged the veracity of will Ex.PW-2/A and described the same as a forged and fake document executed by the plaintiffs forcibly using undue influence upon deceased Mehar Singh. Defendants also set up in their written statement that deceased Mehar Singh while executing will Ex.PW-2/A was not in sound disposing state of mind. Needless to say that law regarding nature and onus of the proof of the will is by way of propounder and in that regard the manner in which the evidence is required to be appreciated has been duly prescribed in the judgment passed by the Hon’ble Apex Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma and others, AIR 1959 SC 443 . 10. Guidelines framed in H. Venkatachala Iyengar case (supra) were further reiterated by Constitutional Bench of Hon’ble Apex Court in Shashi Kumar Banerjee and Others vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and others, AIR 1964 SC 529 . The Court held:- “4. 10. Guidelines framed in H. Venkatachala Iyengar case (supra) were further reiterated by Constitutional Bench of Hon’ble Apex Court in Shashi Kumar Banerjee and Others vs. Subodh Kumar Banerjee since deceased and after him his legal representatives and others, AIR 1964 SC 529 . The Court held:- “4. The principles which govern the proving of a will are well settled; (H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 (S1) SCR 426 : 1959 AIR (SC) 443 and Rani Purniama Devi v. Khagendra Narayan Dev, 1962 (3) SCR 195 : 1962 AIR (SC) 567). The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by S. 63 of the Indian Succession Act. 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. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no. such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator's mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested. (Page-531) 11. I have heard learned counsel appearing for the parties and have gone through the record of the case. 12. Shri G.D. Verma, learned Senior Counsel assisted by Shri B.C. Verma, Advocate, vehemently argued that the judgments passed by both the Courts below deserve to be quashed and set aside as the same are not based on correct appreciation of evidence on record as well as on law. He further argued that material available on record clearly suggests that will Ex.PW-2/A is shrouded by suspicion and could not be given effect being a fake and forged document. He strenuously argued that plaintiffs miserably failed to prove that will Ex.PW-2/A was genuine and was actually executed by deceased Mehar Singh in sound disposing state of mind and as such no reliance could be placed on the same. During his arguments he invited the attention of this Court towards various grounds taken by him in this appeal which are not being stated here for sake of brevity. 13. To the contrary Shri N.K. Thakur, learned Senior Counsel assisted by Ms.Jamna, Advocate, has supported the judgments passed by both the Courts below. Mr.Thakur forcibly argued that judgments passed by both the learned Courts below are based on correct appreciation of evidence adduced by plaintiffs on record. He pleaded that will Ex.PW- 2/A was duly executed by deceased Mehar Singh in favour of plaintiffs in sound disposing state of mind and as such the same has been rightly accepted by the Courts below. During arguments he invited attention of this Court towards statements made by plaintiffs’ witnesses as well as documents placed on record to buttress his argument that will Ex.PW-2/A is a genuine document executed by deceased Mehar Singh. During arguments he invited attention of this Court towards statements made by plaintiffs’ witnesses as well as documents placed on record to buttress his argument that will Ex.PW-2/A is a genuine document executed by deceased Mehar Singh. He also argued that defendants have miserably failed to place on record any document which could be suggestive of the fact that Ex.PW- 2/A was falsely got executed by the plaintiffs using force and undue influence. 14. Though normally onus to prove the execution and validity of the will lies upon the propounder but in case when it is alleged by the opposite party that will is not genuine document, onus shifts on the person who alleges the will as being forged to prove the same. 15. In Daulat Ram and Others vs. Sodha and Others, (2005)1 SCC 40 , the Hon’ble Apex Court held:- “10. Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence. Since it is required to be attested, as provided in Section 68 of the Indian Evidence Act, 1872, it cannot be used as evidence until one of the attesting witnesses 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. In addition, it has to satisfy the requirements of Section 63 of the Indian Succession Act, 1925. In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so.” (Page 43) 16. In the present case the plaintiffs with a view to prove the valid execution of the will Ex.PW-2/A examined PW-2 Prakash Singh, PW-3 Janak Singh and PW-4 Kuldeep Kumar. 17. PW-2 Prakash Singh tendered evidence by way of affidavit and deposed that on 1.8.1998 deceased Mehar Singh got will Ex.PW-2/A scribed from him at around 4.00 P.M. He categorically stated that will in question was read over and explained to him and he appended his left thumb impression on the same after admitting the contents of the same as correct in presence of PW-3 Janak Singh and PW-4 Kuldeep Kumar, who had also appended their signatures as witnesses on the said will Ex.PW-2/A. It may be noted here that the said will was executed by deceased Mehar Singh in favour of his brothers Moti Ram and Roshan Lal and nephew Hari Lal, who is plaintiff No.1. PW-3 and PW-4, who by way of respective affidavits tendered their evidence and deposed that deceased Mehar Singh got scribed will Ex.PW-2/A on 1.8.1998 at about 4.00 P.M. in their presence. They categorically stated that contents of the will were read over and explained to Mehar Singh, who, after admitting the contents of the same to be true and correct, affixed his thumb impression on the same in their presence and the said will Ex.PW-2/A was also signed by both of them. There is a precise statement to the effect that while executing the will Ex.PW-2/A, Mehar Singh was in sound disposing state of mind. PW-2 Prakash Singh, PW-3 Janak Singh and PW-4 Kuldeep Kumar have been very candid in stating that will was scribed in their presence and at that time Mehar Singh was in sound and disposing state of mind and he put his thumb impression on the same after understanding the nature and effect of the same. PW-2 Prakash Singh, PW-3 Janak Singh and PW-4 Kuldeep Kumar have been very candid in stating that will was scribed in their presence and at that time Mehar Singh was in sound and disposing state of mind and he put his thumb impression on the same after understanding the nature and effect of the same. At this stage, if cross-examination of the attesting witnesses and scribe is seen, no suggestion whatsoever to this effect was ever put to them from where this inference could be drawn that will Ex.PW-2/A was a false and forged will executed by deceased Mehar Singh under the undue influence of the plaintiffs and profrorma defendants. Defendants had pleaded that will Ex.PW-2/A is the result of connivance, forged and fake document which was got executed by the plaintiffs forcibly under the undue influence at that time when the testator Mehar Singh was not in a sound disposing state of mind. Evidence brought on record in support of their aforesaid contentions does not suggest the same. In the absence of specific proof of such pleas, aforesaid contentions cannot be accepted. As per settled law onus to prove the suspicious circumstance, if any, before the execution of the will is required to be dispelled and removed by the propounder. 18. In the present case as has been discussed above, all the witnesses namely, PW-2 Prakash Singh, PW-3 Janak Singh and PW-4 Kuldeep Kumar, in their statements have specifically stated that Ex.PW-2/A was executed by deceased Mehar Singh while he was in sound state of mind and in cross-examination defendants have not been able to elucidate anything which could suggest that Ex.PW-2/A, is a forged and fake document got prepared by the plaintiffs by using undue influence on deceased Mehar Singh. 19. Now, if we advert to circumstances which have been cited by defendants to suggest the illegality in will Ex.PW-2/A, which nowhere indicates that the same has been got executed by the plaintiffs forcibly using undue influence on deceased Mehar Singh while he was not in sound state of mind. If the stand taken by the defendants is carefully perused, it appears that no specific stand to deny the due execution of will Ex.PW- 2/A has been taken. If the stand taken by the defendants is carefully perused, it appears that no specific stand to deny the due execution of will Ex.PW- 2/A has been taken. Rather pleading shows that the will Ex.PW-2/A alleged to be executed by the plaintiffs has been termed as a result of connivance, forged and fake document got executed forcibly using undue influence, meaning thereby that the defendants themselves have accepted the execution of will Ex.PW-2/A. However, same has been alleged to be got executed by deceased Mehar Singh under pressure and forcibly using undue influence by the plaintiffs. Since defendants have termed the will Ex.PW-2/A as forged and fake document, got executed by the plaintiffs using undue influence, onus certainly lies on defendants to explain that what kind of undue influence was made on deceased Mehar Singh which forced/persuaded him to execute the will Ex.PW-2/A in favour of the plaintiffs. Rather, perusal of will dated 1.8.1998 brought on record and exhibited as Ex.PW-2/A by the plaintiffs has been drawn on the judicial papers in favour of plaintiffs and proforma defendant No.7 whereby he has bequeathed his entire property in their favour. The attesting witnesses to the aforesaid documents are PW-4 Kuldip Kumar, one Vice President of Gram Panchayat, Saltana-Kalan, and PW-2 Prakash Singh, Lambardar, Halqua Dhatwal, Tehsil Badsar, District Hamirpur, who had written the aforesaid document and in order to prove due execution of this document plaintiffs examined both the attesting witnesses alongwith scribe. PW-2, PW-3 and PW-4, as discussed above, have categorically stated that will Ex.PW-2/A has been scribed at the instance of deceased Mehar Singh, who after reading and admitting the contents of the same to be correct, have affixed thumb impression on the same in their presence. It has specifically come in the statements of these witnesses brought on record by the plaintiffs that deceased Mehar Singh was in sound state of mind at the time of execution of Ex.PW-2/A. In the present case where PW-2 Prakash Singh, who is the scribe of the document and whose statement has been duly corroborated by PW-3 Janak Singh and PW-4 Kuldip Kumar, who were attesting witnesses to will Ex.PW-2/A. 20. Defendants in the present case have taken a stand that Ex.PW-2/A is a forged and fake document got executed by the plaintiffs forcibly using undue influence itself amounts to admission to the effect that they have admitted the existence of Ex.PW-2/A. However, evidence adduced on record by the defendants nowhere supports the aforesaid contentions of the defendants. Defendants have miserably failed to adduce any evidence on record which could point out towards any suspicious circumstance persuading this Court to accept the contention that will Ex.PW-2/A is shrouded by suspicion and same deserves to be rejected. The circumstances which have been pointed out by the defendants to prove that will Ex.PW-2/A is a forged and fake document got executed by the plaintiffs using undue influence cannot be accepted. In cross-examination the plaintiffs’ witnesses have stated differently about their appearance on the spot, but the close perusal of the statements of the plaintiffs’ witnesses suggest that they have been quiet specific while making statements that will Ex.PW- 2/A was scribed by PW-2 Prakash Singh in the presence of PW- 3 and PW-4 at the residence of deceased Mehar Singh at his instance. Minor discrepancies, if any, appearing in their statements cannot be taken as a circumstance which could indicate that will Ex.PW-2/A is shrouded by suspicion. Rather the second circumstance pointed out by the defendants that since scriber of the will had never scribed any will prior to this and as such perusing the language of will Ex.PW-2/A, it cannot be accepted that the same was scribed by him. This circumstance, pointed out by defendants, also does not suggest that Ex.PW-2/A is a forged and fake document because in cross-examination no such suggestion was ever put to the scriber PW-2. The third circumstance pointed out by defendants is that at the relevant time deceased Mehar Singh was not in sound state of mind as he was ill and expired on 11.8.1998 i.e. 10 days after execution of will Ex.PW-2/A. Perusal of the entire trial Court file nowhere suggests that any evidence was brought on record by the defendants suggests that deceased Mehar Singh was not in good state of health at the time of execution of will Ex.PW-2/A. 21. Interestingly, no suggestion with regard to ill-will, if any, or animosity was suggested or proved which could tempt PW-2 and PW-3 to depose falsely with regard to the execution of will Ex.PW-2/A by deceased Mehar Singh. There is nothing on record which could suggest that both the attesting witnesses PW-3 and PW-4 were related to the plaintiff in any manner. 22. Defendants with a view to prove that will Ex.PW- 2/A is shrouded by suspicion also stated that nothing has been mentioned in the will Ex.PW-2/A by the testator deceased Mehar Singh with regard to the execution of previous will Ex.DW-4/A. Legally there is no requirement to give description of previous document while making fresh will and in the present case requirement of law is only that document should be scribed at the instance of deceased Mehar Singh in sound state of mind in the presence of attesting witnesses. Defendants also raised the issue of presence of interested persons i.e. plaintiff Roshan Lal on the spot at the time of execution of the will Ex.PW-2/A but in support of the aforesaid contention no rule or law barring presence of interested person has been brought to the notice of the Courts below. Issue with regard to non-registration of will Ex.PW-2/A was also pointed out by the defendants as a circumstance which could be termed as suspicious circumstances. 23. The registration is only circumstance which definitely gives presumption of due execution of a document but, as has been stated above, legally there is no requirement of registration of will. Defendants also ventured to show that PW- 3 Janak Singh was not having good relationship with the defendants as he was having boundary dispute with them and that PW-4 Kuldip Kumar was also inimical to them. But there is nothing on record to substantiate these allegations which could prove that PW-3 and PW-4 falsely deposed in favour of the plaintiffs in support of will Ex.PW-2/A. 24. In this regard it is pointed out that as per settled law there is no requirement of getting will registered and non-registration of will does not make the same invalid document. Hence, the plea in this regard raked up by the defendants cannot be termed as a suspicious circumstance surrounding the execution of the will. 25. In this regard it is pointed out that as per settled law there is no requirement of getting will registered and non-registration of will does not make the same invalid document. Hence, the plea in this regard raked up by the defendants cannot be termed as a suspicious circumstance surrounding the execution of the will. 25. Another suspicious circumstance sought to be pointed out by the defendants is that attesting witnesses hails from far away place, whereas they could be from the place near the locality. It is again reiterated that there is no such legal requirement that attesting witnesses should be from the place where testator resides. 26. Now, in the totality of the circumstances pointed out by defendants to suggest that will Ex.PW-2/A is shrouded by suspicious circumstances, there is no material which could create suspicion about the due execution of document Ex.PW- 2/A. Rather, perusal of the entire evidence on record indicates that will Ex.PW-2/A was executed by deceased Mehar Singh in sound state of mind in favour of plaintiffs and proforma defendants. 27. Shri G.D. Verma, learned Senior Counsel in support of his contention invited the attention of this Court to the judgment passed by Hon’ble Apex Court in Satya Pal Gopal Das vs. Smt. Panchubala Dasi and others, AIR 1985 SC 500 , perusal whereof shows that same is not applicable in the present facts and circumstances of the case because undoubtedly will, if any, sought to be given effect should be free from all suspicions. But as has been discussed in detail appellants-defendants have not brought on record any document which would be termed as a suspicion enough to term Ex.PW-2/A as a forged and fake document, rather suscipicion circumstances, if any, would vary from case to case. 28. It appears from the perusal of the record of the Courts below that it was also urged by the defendants that late production of will Ex.PW-2/A can be treated as a strong suspicion circumstance surrounding the execution of will Ex.PW-2/A. To rebut the same plaintiffs submitted that will Ex.PW-2/A was submitted by them before A.C. 2nd Grade, Dhatwal, but the same was not considered. Here also interestingly no suggestion with regard to same was put to PW-1 Hari Lal in cross-examination with regard to production of Ex.PW-2/A before A.C. 2nd Grade. Here also interestingly no suggestion with regard to same was put to PW-1 Hari Lal in cross-examination with regard to production of Ex.PW-2/A before A.C. 2nd Grade. In the instant case will in question was executed on 1.8.1998 and testator died on 11.8.1998, mutation Ex.D-10 shows that defendants produced will Ex.DW-4/A on 15.9.1998 on the basis of which rapat in the daily diary was made and mutation Ex.D-10 was attested and sanctioned on 28.3.2000. Suit was filed by the plaintiff on 10th March, 2010 which was admittedly before attestation and sanction of the mutation dated 28.3.2000 recorded on the basis of Ex.DW-4/A. Perusal of mutation order dated 28.3.2000 Ex.D-10 also pointed out that will Ex.PW-2/A was actually produced by plaintiffs before A.C. 2nd Grade, but the same was not accepted being un-registered document. Hence, the plea taken by the defendants that late production of will Ex.PW-2/A is most strong suspicion circumstance cannot be accepted. 29. Now, this Court adverts to other averments made by the defendants that deceased Mehar Singh at the time of execution of earlier will dated 24.8.1985 Ex.DW-4/A had executed an agreementEx.DW-4/B in their favour whereby he was not entitled to execute any will. It is not understood that how an agreement could take away the legal right of deceased Mehar Singh to make a will, if any. Perusal of alleged agreement Ex.DW-4/B suggests that there was no specific bar for deceased Mehar Singh to bequeath his property by way of will. Recital made in Ex.DW-4/B shows that deceased Mehar Singh stated that in case he cancels his earlier will defendants would be entitled to recover the loan as satisfied with interest at the rate of 15% from his property. Rather perusal of recital made in Ex.DW-4/B that will dated 24.8.1985 Ex.DW-4/A alleged to be executed by deceased Mehar Singh in favour of defendants compel this Court to infer that will Ex.DW-4/A alleged to be made by deceased Mehar Singh in favour of defendants was actually result of using undue influence. The contents of Ex.DW-4/B clearly suggests that some loan was required to be repaid by deceased Mehar Singh, which was actually paid by defendants and in lieu of same the will dated 24.8.1985 (Ex.DW-4/A) was got executed in favour of defendants. The contents of Ex.DW-4/B clearly suggests that some loan was required to be repaid by deceased Mehar Singh, which was actually paid by defendants and in lieu of same the will dated 24.8.1985 (Ex.DW-4/A) was got executed in favour of defendants. Since trial Court below, while deciding issue No.8, has specifically returned the findings that “deceased Mehar Singh had executed a valid will on 24.8.1985 in favour of the defendants” and same has not been challenged by the plaintiffs, this Court refrains itself from making any findings on the same. 30. Shri G.D. Verma, learned Senor Counsel, also cited judgments passed by Punjab and Haryana High Court in Gurpal Singh vs. Darshan Singh, 1998 (1) S.L.J. 174 and Gurdev Singh vs. Shakuntla and Others, (2004) 137 P.L.R. 718 in support of his contention that will Ex.DW-4/A was a registered one and should have been given precedence over will dated 1.8.1998 Ex.PW-2/A, which was admittedly an unregistered document. After carefully going through the law cited by learned Senior Counsel, there is no doubt that registered will always stands on better footing as it gives presumption that will was made in sound disposing state of mind and it also dispel the suspicion that at the time of execution of the will person was not suffering by any mental ailment or disability and was incapable of making itself possession. There is no dispute with regard to the settled law that registered will always stands on better footing than that of unregistered will but there is no law which prohibits that unregistered will, if any, cannot be given effect. Rather, effect of registration or non-registration of a particular will would vary from case to case depending upon the facts and circumstances of the case and as such judgment relied upon by Shri Verma cannot be made applicable in the present facts and circumstances. Moreover, Ex.DW-4/A will executed by late Mehar Singh in favour of defendants has been already held valid by trial Court below but with the execution of will dated 1.8.1998 Exd.PW-2/A stands revoked automatically because there is no legal requirement to specifically revoke earlier will at the time of executing latest will. 31. As per settled law even execution of any agreement as has been alleged in the same case could not create any hurdle/bar in the way of deceased Mehar Singh in exercising his right to execute the will. 31. As per settled law even execution of any agreement as has been alleged in the same case could not create any hurdle/bar in the way of deceased Mehar Singh in exercising his right to execute the will. It is a different matter that defendants could always take steps in accordance with law for enforcement of the terms and conditions of Ex.DW-4/B. All the circumstances pointed out by the defendants to persuade the Courts below as well as this Court to conclude that will Ex.PW-2/A was got executed forcibly using undue influence and same is shrouded by suspicion cannot be accepted because defendants have miserably failed to prove on record by way of specific evidence which could point out that deceased Mehar Singh executed will Ex.PW-2/A against his will under the pressure of present plaintiffs. Rather material brought on record by plaintiffs suggests that deceased Mehar Singh while executing the will was in sound state of mind and all legal requirements, as required at that point of time, were completed. 32. In the present case defendants claimed the suit land on the basis of will dated 24.8.1985 Ex.DW-4/A which was duly registered and veracity of same has also been duly proved as plaintiffs in the present case have not been able to place on record any document to show that will dated 24.8.1985 Ex.DW-4/A was not executed by deceased Mehar Singh. Rather, PW-1 plaintiff Hari Lal admitted execution of will dated 24.8.1985 duly executed in favour of defendants No.1 to 6 though he termed the same as false, fabricated and concocted document. Since in the present case will dated 24.8.1985 was held to be valid and that finding was not assailed in any manner by the plaintiffs, no discussion with regard to same is required to be made in the present case. 33. Defendants also denied the right, title or interest of the plaintiffs and proforma defendants on the suit land and contested that they are not entitled for the relief of injunction against them. But perusal of the evidence on record clearly establish that deceased Mehar Singh was residing with the plaintiffs for so many years because defendants have failed to establish that deceased Mehar Singh was being looked after and maintained by them and as such they were in possession of the property. But perusal of the evidence on record clearly establish that deceased Mehar Singh was residing with the plaintiffs for so many years because defendants have failed to establish that deceased Mehar Singh was being looked after and maintained by them and as such they were in possession of the property. Their own witness DW-2 Pritam Singh admitted that deceased Mehar Singh used to reside with the plaintiff Roshan Lal. In his statement rather he stated that he had instituted a suit against plaintiff Roshan Lal as well as deceased Mehar Singh and copy whereof was also placed on record by the defendants. The aforesaid circumstances and fact indicate that defendants and deceased Mehar Singh were not having good relations as they were in litigation. Defendants did not make available on record any documents which could suggest that they were in possession of the suit land in question. 34. It is also not disputed that loan was raised by deceased Mehar Singh from Cooperative Society for which he had executed agreement Ex.DW-4/B authorizing the defendants to recover loan amount paid by them from his property. DW-4 Beli Ram has admitted in cross-examination that relations of defendant No.1 and deceased Mehar Sigh testator had become strange due to loan of Cooperative Society. DW-2 Pritam Singh himself admitted in his cross-examination that the case filed by him against Roshan Lal and late Mehar Singh was being prosecuted by Roshan Lal plaintiff on behalf of late Mehar Singh, testator, which fact is suggestive of the fact that the relations of the defendants with testator Mehar Singh were not cordial and the same were got stranged due to litigation pending in the Court. The aforesaid fact itself suggests that due to compelling reason as has been pointed out above deceased Mehar Singh testator executed a will Ex.PW-2/A in favour of plaintiffs and proforma defendant No.7 Moti Ram. The aforesaid fact itself suggests that due to compelling reason as has been pointed out above deceased Mehar Singh testator executed a will Ex.PW-2/A in favour of plaintiffs and proforma defendant No.7 Moti Ram. Careful perusal of the statements made by PW-2, PW-3 and PW-4 in their examination-in-chief as well as in cross-examination establish the fact that the testator deceased Mehar Singh was in a sound disposing state of mind at the time of execution of the will Ex.PW-2/A because defendants have been miserably failed to shatter their testimonies in cross-examination of DW-2 Pritam Singh, DW-6 Manoj Sharma, DW-4 Beli Ram clearly establish that late Mehar Singh was being looked after and maintained by the plaintiffs during his life time and being satisfied from their services, he executed will Ex.PW-2/A. To the contrary, defendants have miserably failed to bring on record any evidence/document which could suggest that Ex.PW-2/A was got executed forcibly using undue influence. No strong suspicion circumstances surrounding the execution of will Ex.PW-2/A has been brought on record either by way of oral evidence or by documentary evidence which could persuade this Court to interfere with the findings returned by Courts below in this regard. 35. Definitely onus to explain suspicious circumstances, if any, lies on propounder but onus shifts to a person who alleges/level allegations of undue influence, fraud or coercion on the propounder of the will. 36. In Sridevi and Others vs. Jayaraja Shetty and Others, (2005) 2 SCC 784 , the Hon’ble Apex Court held:- “11. It is well settled proposition of law that mode of proving the will does not differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act, 1925. The onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and proof of the signature of the testator, as required by law, need be sufficient to discharge the onus. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. Where there are suspicious circumstances, the onus would again be on the propounder to explain them to the satisfaction of the court before the will can be accepted as genuine. Proof in either case cannot be mathematically precise and certain and should be one of satisfaction of a prudent mind in such matters. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. As to what are suspicious circumstances have to be judged in the facts and circumstances of each particular case. (For this See H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors. (1959) Supp. 1 SCR 426 and the subsequent judgments Ramachandra Rambux v. Champabai & Ors. (1964) 6 SCR 814 ; Surendra Pal & Ors. v. Dr. (Mrs.) Saraswati Arora & Anr. (1974) 2 SCC 600 ; Smt. Jaswant Kaur v. Smt. Amrit Kaur & Ors. (1977) 1 SCC 369 and Meenakshiammal (Dead) Thr. LRs. & Ors. v. Chandrasekaran & Anr. (2005) 1 SCC 280 ).” (Page-789) 37. In the present case, as has been discussed above, the present appellants have miserably failed to prove any allegation of fraud, undue influence or coercion etc. 38. In the facts and circumstances discussed above, this Court is of the view that findings returned by the trial Court below which was further upheld by the first appellate Court do not warrant any interference of this Court as findings given on the issues framed by the trial Court below as well as specifically taken up by this Court to reach the root of the controversy appears to be based on correct appreciation of oral as well as documentary evidence. Moreover, as has been discussed in detail above, appellants-defendants have not able to make out a case to persuade this Court that Ex.PW-2/A is a fake and forged document, got executed by the plaintiffs forcibly using undue influence. They have also failed to indicate any circumstance which could compel this Court to return the finding that Ex.PW-2/A was shrouded by suspicion. Hence, present appeal fails and is dismissed, accordingly. 39. All the interim orders are vacated. All the miscellaneous applications are disposed of.