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2016 DIGILAW 739 (HP)

Roshan Lal v. Anant Ram

2016-05-10

SANDEEP SHARMA

body2016
JUDGMENT : Sandeep Sharma, J. The instant appeal has been preferred against the judgment and decree dated 21.1.2006, passed by learned District Judge, Shimla, affirming the judgment and decree dated 3.9.2005 passed by learned Civil Judge (Senior Division) Chopal, District Shimla in Civil Suit No.45-1/1 of 2004, dismissing the suit of the plaintiffs. Propounder. 2. The present appeal was admitted on the following substantial question of law:- “Whether the two Courts below have fallen in error in holding that the Will set up by the appellants is not genuine, only for the reason that the same purports to be thumb impressed by the testatrix whereas she used to authenticate the papers by signing?” 3. Sole question for consideration of this Court by way of present appeal is that whether the findings returned by both the Courts below to the effect that Will Ex.PW5/A dated 12.1.2004 (in short “Will”) made in favour of the plaintiffs by the testatrix namely Smt. Pushpa Devi widow of Sh. Meena Ram has been rightly held to be surrounded by suspicious circumstances or not. 4. The plaintiffs-appellants (hereinafter referred to as “plaintiffs”) instituted a suit for declaration as well as for permanent prohibitory injunction that they have succeeded the suit property, details whereof has been given in the judgment passed by the learned trial Court below, on the basis of which Will Ex.PW5/A which was executed by Smt. Pushpa widow of late Sh. Meena Ram and for injunction to restrain the defendants-respondents (hereinafter referred to as “defendants”) from causing interference in their ownership and possession of the suit property. The learned trial Court after examining the material evidence made available on record, dismissed the suit of the plaintiffs by holding that Will Ex.PW5/A is not a genuine and valid will, rather the same is forged and fictitious document prepared after the death of the deceased/testatrix Pushpa Devi by forging her thumb impression. 5. Feeling aggrieved and dissatisfied with the aforesaid findings returned by the learned trial Court, plaintiffs filed an appeal under Section 96 of the Code of Civil Procedure in the Court of learned District Judge, Shimla, H.P. assailing therein the judgment and decree dated 3.9.2005 passed by learned trial Court, however, the same was dismissed vide judgment and decree dated 21.1.2006, whereby learned first Appellate Court held that the Will Ex.PW5/A is surrounded by suspicious circumstances. Due and valid execution of the Will by the testatrix in favour of the plaintiffs has not been established. Hence the present appeal. 6. Plaintiffs by way of Civil Suit set up a case that Smt. Pushpa Devi widow of late Sh. Meena Ram, who died issueless on 19.1.2004, executed last and final Will Ex.PW5/A in favour of plaintiff on 12.1.2004 at village Bagna, Pargna Jakholi, Tehsil Chopal, District Shimla, HP, whereby she bequeathed her entire property in favour of the plaintiffs to the exclusion of the defendants. It has been specifically averred that testatrix Smt. Pushpa Devu was in sound and disposing state of mind while executing her final Will Ex.PW5/A. However, record reveals that deceased Pushpa Devi was owner in possession of the land according to her recorded shares in Mauja Gagna, Nanhar, Shapra and Kaloon, Pargna Jakholi, Tehsil Chopal, District Shimla, details whereof is available in para-2 of the plaint. As per the details given in the plaint, deceased Pushpa Devi was also shareholder in the joint house situated at Mauja Gagna, Pargna Jakholi, Tehsil Copal, District Shimla, HP. Plaintiffs further averred that defendant No.1 manipulated the attestation of the mutation with respect to the land, situated at mauja Gagna in his favour, which was allegedly claimed to have been executed by the deceased Pushpa Devi on 27.4.1992 in his favour. Plaintiffs specifically stated that the Will dated 27.4.1992 stands cancelled by deceased Pushpa Devi on 12.1.2004 i.e. on which date, she executed her last and final Will in favour of the plaintiffs. Plaintiffs also claimed that he is in the actual physical possession of the suit land and, as such, the defendants have not acquired any right, title and interest of any kind over the same. He further stated that by way of manipulation, the defendant got registered gift deed No.102/2004 Ex.PW1/A, dated 15.5.2004 in his favour to the extent of share of the deceased with regard to the land comprised in khata/khatauni No. 52/82, kitas 2, measuring 08-01 bighas, situated at Mauja Gagna. With regard to land situated at Mauja Gagna, mutation No. 3684 Ex.PW1/J was got entered and attested by the defendants on 20.2.2004 from the Assistant Collector 2nd Grade, Chopal on the strength of illegal will Ex.DW4/A, dated 27.4.1992. 7. With regard to land situated at Mauja Gagna, mutation No. 3684 Ex.PW1/J was got entered and attested by the defendants on 20.2.2004 from the Assistant Collector 2nd Grade, Chopal on the strength of illegal will Ex.DW4/A, dated 27.4.1992. 7. Plaintiffs specifically averred that Will DW4/A, dated 27.4.1992 set up by the defendants is illegal and void and in view of the subsequent Will Ex.PW5/A, dated 12.1.2004, they are only legal heirs of deceased Pushpa Devi and defendants have no right, title or interest over the same and a prayer was also made to declare the gift deed No.102/04 registered in the Office of Sub-Registrar, Chopal on 15.5.2004 illegal and void. 8. On the other hand, defendants by way of written statement raised objection of maintainability, locus-sandi, cause of action etc. and stated that deceased Pushpa Devi had no cordial relation with the plaintiffs and she had not executed any final Will in favour of the plaintiffs on 12.1.2004. The defendants specifically averred in their written statement that deceased Pushpa Devi had executed only one and final Will Ex.DW4/A in favour of her brother defendant No.1 on 27.4.1992. The Will Ex.PW5/A, dated 12.1.2004, as claimed by the plaintiffs, is fictitious and fake and has been prepared with a view to grab the property of deceased Pushpa Devi. Defendants specifically stated in their written statement that neither deceased Pushpa Devi cancelled any Will Ex.DW4/A dated 27.4.1992, which she had executed in favour of defendant No.1 nor she executed any Will in favour of the plaintiffs on 12.1.2004. The mutation of the land in Chak Gagna was rightly attested in favour of defendant No.1 on the basis of the valid Will executed by deceased Pushpa Devi. It is further contended that the gift deed No. 102/2004, which is registered document is also valid and legal. The defendants further stated that since mutation of land was attested in favour of defendant No.1 on 20.2.2004, on the basis of the valid Will Ex.DW4/A dated 27.4.1992 and, as such, valid gift deed was rightly registered in favour of defendant No.2. The defendants further stated that since mutation of land was attested in favour of defendant No.1 on 20.2.2004, on the basis of the valid Will Ex.DW4/A dated 27.4.1992 and, as such, valid gift deed was rightly registered in favour of defendant No.2. The defendants apart from the aforesaid contentions specifically alleged that the plaintiffs have not come to the Court with clean hands and will Ex.PW5/A dated 12.1.2004 has been got prepared/executed after the death of Smt. Pushpa Devi, as she always used to append her signatures on every documents but in the Will dated 12.1.2004 she has been shown putting thumb impression. The Will Ex.DW4/A executed in favour of defendant No.1 by deceased Pushpa Devi is only valid and legal as it was never cancelled by deceased Pushpa Devi during her life time. 9. In the aforesaid background, learned trial Court on the basis of the pleadings, crux whereof has been given hereinabove, settled inasmuch as nine issues and decided all the issues, save and except issue No.8, against the plaintiffs and dismissed the suit of the plaintiffs. 10. In order to arrive at aforesaid conclusion, learned trial Court considered the evidence brought on record by the plaintiffs. 11. Defendants by way of written statement challenged the veracity of Will Ex.PW5/A and described the same as a forged and fake document prepared by the plaintiffs after the death of deceased Pushpa Devi with a view to grab the property of the deceased Pushpa Devi. 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 . 12. 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; (see 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 Court held: “4. The principles which govern the proving of a will are well settled; (see 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 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) 13. 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) 13. I have heard learned counsel appearing for the parties and have gone through the record of the case. 14. Mr. Neeraj Gupta, learned Counsel 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-5/A is valid and genuine document duly executed in favour of the plaintiffs by deceased Pushpa Devi. He strenuously argued that the defendants have miserably failed to prove that will Ex.PW5/A was not genuine and was actually got executed by the plaintiffs after the death of deceased Pushpa Devi. 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. 15. Mr. R.K. Bawa, learned Senior Counsel duly assisted by Mr. Amit Dhumal, Advocate, supported the judgments passed by both the Courts below. Mr. Bawa, forcibly argued that judgments passed by both the learned Courts below are based on correct appreciation of evidence adduced by the parties to the lis on record. He pleaded that will Ex.PW-5/A is forged and fictitious document got executed by plaintiffs in their favour after the death of deceased Pushpa Devi and, as such, same has been rightly rejected by the Courts below. During his arguments, he invited attention of this Court towards statements made by plaintiffs and defendants witnesses as well as documents placed on record to buttress his argument that will Ex.PW-5/A, is a forge and fictitious document shrouded by suspicion. He also argued that plaintiffs have miserably failed to place on record any document which could be suggestive of the fact that deceased Pushpa Devi testatrix used to put thumb impression on the document instead of signatures, which fact clearly indicates that Ex.PW5/A was falsely got prepared by the plaintiffs after the death of deceased Pushpa Devi. 16. Though, normally onus to prove the execution and validity of the Will lies upon the propounder as has been held in the judgment referred hereinabove. 16. Though, normally onus to prove the execution and validity of the Will lies upon the propounder as has been held in the judgment referred hereinabove. 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. 17. 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 presenceand 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. 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) 18. In the present case, the main contention of the defendants is that Will Ex.PW5/A is fictitious and forged document as the same has been prepared after the death of deceased Pushpa Devi. 19. In the present case, the main contention of the defendants is that Will Ex.PW5/A is fictitious and forged document as the same has been prepared after the death of deceased Pushpa Devi. 19. Perusal of Ex.PW5/A also shows that the same does not bear the signatures of deceased Pushpa Devi, whereas thumb impression has been shown in red circle A, B and C on the Will. The defendants have specifically alleged that deceased Pushpa Devi always used to append her signatures on every documents and putting up her thumb impression on Ex.PW5/A is biggest suspicious circumstances, which raises serious doubt about the genuineness and naturalness of the document. As stated above, that normally it is propounder, who is to prove the execution and validity of the Will but in the present case opposite party have taken specific plea that the Will is not genuine document, the onus is definitely upon them to indicate circumstances which could persuade the Court to reach the conclusion that Will Ex.PW5/A is fictitious and forged document got prepared by the plaintiffs after the death of deceased Pushpa Devi. 20. In the present case, defendants have termed Ex.PW5/A as a forged document as it does not bear the signatures of deceased/testatrix Pushpa Devi, who in fact always used to append her signatures on every documents. In this regard, the defendants examined DW-3, Sh. Keshu Ram, Tehsil Welfare Officer Chopal, Sh. Jai Ram Postman as DW-7 and Sh. Nathu Ram, Assistant Cashier, SBI Branch Deha as DW-8. 21. DW-3, Sh. Keshu Ram categorically stated that deceased was in receipt of old age pension vide PLO No. CHO-1768 and she used to append her signatures on the receipts of the same. He proved from the record that deceased Pushpa Devi received last pension for the period of October to December on 5.1.2004, which was actually sent to her on 10.12.2003, wherein she had appended her signatures on the receipts. 22. DW-7, Jai Ram Postman also stated that deceased was in receipt of old age pension and further that he used to carry money order of old age pension to Smt. Pushpa Devi and she used to append her signatures on the receipts and he specifically stated that she never put the thumb impression. It has also come in his statement that last pension was received by deceased Pushpa Devi on 15.1.2004 and the receipt bears her signatures. It has also come in his statement that last pension was received by deceased Pushpa Devi on 15.1.2004 and the receipt bears her signatures. Rather careful perusal of the judgment passed by learned first Appellate Court suggests that the record was perused by the Court and it was found that deceased Pushpa Devi had actually signed in Hindi on the receipt dated 15.1.2004. 23. DW-8, Sh. Nathu Ram, a bank official also proved cheque book Ex.PW7/A, which was issued in the name of deceased Pushpa Devi. Aforesaid witness also stated that deceased Pushpa Devi had two accounts and she used to append signatures only in the accounts. 24. Careful perusal of the statements given by DW-3, Keshu Ram, DW-7, Jai Ram and DW-8, Nathu Ram clearly suggest that deceased Pushpa Devi used to append her signatures on the documents. Even perusal of the reply made to the suggestions made in cross-examination aforesaid witnesses stuck to their stand taken in examination-in chief. Aforesaid defence witnesses have been very consistent in stating that deceased Pushpa Devi used to append her signatures on the documents and their testimony could not be shattered on any points by the plaintiffs. Even suggestions which were put to the aforesaid witnesses that the documents which have been shown to be signed by deceased Pushpa Devi is not the same lady but she is the another lady, has been categorically denied by the defence witnesses. Moreover, all the defence witnesses, who have been produced by the defendants with a view to prove that Will Ex.PW5/A is a fictitious and forged document are the official witnesses and they in no manner can be termed as interested witnesses. The documents which were proved by these defence witnesses were definitely receipts/money orders/bank accounts bearing signatures of deceased Pushpa Devi. Conjoint reading of the statements of these aforesaid witnesses certainly indicates towards suspicious circumstances surrounding the Will Ex.PW5/A. A person who used to actually sign on documents till 15th January, 2004 suddenly puts thumb impression on 12.1.2004 on the Will Ex.PW5/A produced by plaintiffs is undoubtedly a suspicious circumstances. Its stands proved that deceased Pushpa Devi had appended her signatures lastly on 15.1.2004 but definitely it remained unexplained that when she could append her signatures on 15.1.2004, what was the compelling circumstances for her on 12.1.2004 i.e. three days prior to 15.1.2004 to put her thumb impression on the Will Ex.PW5/A. 25. Its stands proved that deceased Pushpa Devi had appended her signatures lastly on 15.1.2004 but definitely it remained unexplained that when she could append her signatures on 15.1.2004, what was the compelling circumstances for her on 12.1.2004 i.e. three days prior to 15.1.2004 to put her thumb impression on the Will Ex.PW5/A. 25. It has specifically come in the statement of DW-8, Nathu Ram that she appended her signatures on 15.1.2004 while receiving the payment of old age pension. However, it is not understood as to why deceased Pushpa Devi, who as per the version of the plaintiffs executed the Will EX.PW5/A in favour of plaintiffs on 12.1.2004, has put thumb impression on the same because nothing has been brought on record by the plaintiffs to suggest that on 12.1.2004 deceased Pushpa Devi was so ill that she could not sign and as such appended thumb impression. It also remains unexplained that how within three days of execution of Will Ex.PW5/A deceased Pushpa Devi could again sign on the receipts on 15.1.2004 while receiving the old age pension. Now if statements brought on record in support of the contentions and the averments made in civil suit preferred by the plaintiff are seen, it can be safely concluded that there is no explanation worth the name. There is no recital of circumstances, which compelled deceased Pushpa Devi to put thumb impression on the Will Ex.PW5/A, when admittedly till 15.1.2004, she has been signing the documents. Moreover, it emerges from the statement of PW-1, Roshan Lal that he was not aware of the fact that deceased Pushpa Devi was in receipt of some old age pension and some account was being maintained by her. If the whole of the statement made by PW-1 is read in its entirety, attempt has been made to creates impression that the plaintiff was the closest person of the deceased/testatrix Pushpa Devi and he used to render all types of services to her during her old age and, as such, Will Ex.PW5/A was executed by deceased Pushpa Devi in favour of the plaintiffs, whereby she bequeathed her entire property. If at this stage, statement/averment contained in the plaint is taken to be true, it is difficult to understand/accept that how a person, who was allegedly so close to the deceased and was rendering all kind of help in her old age, was not aware about the material facts that deceased Pushpa Devi was in receipt of an old age pension and she was also operating bank account in SBI Branch Deha; rather aforesaid ignorance of the plaintiff indicates that he was not close to deceased Pushpa Devi, as was claimed by him. 26. PW-3, Padam Singh, who was another beneficiary of the Will Ex.PW5/A similarly expressed ignorance about the operation of any bank account by deceased Pushpa Devi in SBI Branch, Deha or receipt of any old age, which fact definitely provides strength to the assertion made by the defendants that plaintiffs were not having cordial relation with deceased Pushpa Devi and they were not in speaking terms. 27. PW-4 Sh. Lachhi Ram, one of the marginal witness of the alleged Will Ex.PW5/A, who in his statement stated that one girl namely Mamta had caught hold of the thumb of the deceased Pushpa Devi at the time of execution of the Will Ex.PW5/A since deceased/testatrix Pushpa Devi was not in a position to put her thumb impression on the Will on the given date. Interestingly, girl named by PW-4, Lachhi Ram, Mamta has not been examined by the plaintiffs and definitely omission of Mamta as a plaintiff witness raises doubt with regard to the genuineness of the Will Ex.PW5/A. Rather statement of PW-4, Sh. Lachhi Ram suggests that Mamta actively participated in putting alleged thumb impression on the Will Ex.PW5/A and facts and circumstances, where its stand proved that deceased Pushpa Devi used to put signature on documents, an adverse inference can be drawn that alleged thumb impression was forcibly put with the help of girl namely Mamta on Ex.PW5/A. Absence of Mamta as a plaintiff witness definitely indicates towards suspicious circumstances and compel this Court to conclude that Ex.PW5/A is definitely shrouded by suspicious circumstances. The plaintiffs have not been able to prove on record that deceased Pushpa Devi was old lady afflicted with such disease that she could not append her signatures in her advance age because none of the plaintiff witness has stated that she was not keeping good health and was unable to maintain herself. The plaintiffs have not been able to prove on record that deceased Pushpa Devi was old lady afflicted with such disease that she could not append her signatures in her advance age because none of the plaintiff witness has stated that she was not keeping good health and was unable to maintain herself. Admittedly, it stands proved on record that on 15.1.2004, deceased Pushpa Devi appended her signatures on the relevant receipts but plaintiffs have failed to explain what were the compelling reasons that she put her thumb impression on Ex.PW5/A on 12.1.2004 i.e. three days prior to 15.1.2004 when she actually appended signatures while receiving her old age pension. Moreover, there is no document placed on record by the plaintiffs to suggest that prior to execution of EX.PW5/A, testatrix Pushpa Devi at any point time had appended thumb impression on any document. True, it is that one can also put thumb impression instead of signatures on document but in peculiar facts as are in this case, plaintiffs with a view to dispel the notion that will is not shrouded by suspicious circumstances, was required to explain the reason that why deceased pushpa puts thumb impression on 12.1.2004, when admittedly she signed document on 15.1.2004. 28. Undisputedly, one is also entitled to put thumb impression instead of signatures on the documents but it assumes significance, when person, who usually put signatures on each and every document suddenly puts thumb impression that too on a will, whereby he or she bequeathed his/her property ignoring her own family members. Definitely, in this situation, onus lies heavily on the propounder of that will to dispel the notion that document has been executed by a person with free will and same is not a fake and fictitious document. 29. In the present case, the plaintiffs with a view to prove the valid execution of the will Ex.PW5/A examined PW-1, Roshan Lal, PW-3, Padam Singh and PW-4, Lachhi Ram, as has been explained above, they have miserably failed to prove validity of the execution of the Will Ex.PW5/A. Though, by way of civil Suit they had sought declaration that Ex.PW5/A is valid document and executed by deceased Pushpa Devi in their favour bequeathing her entire property, but conjoint reading of the statements of plaintiff witnesses as well as documentary evidence adduced on record, nowhere suggest that execution of the Will Ex.PW5/A was valid one. Rather statement given by DW-3, DW-7 and DW-8 strengthens the stand taken by the defendants that Will Ex.PW5/A is shrouded by suspicious circumstances. 30. On the other hand, critical examination of evidence brought on record by the defendants i.e. DW-3, DW-7 and DW-8, who are admittedly officials witnesses leaves no doubt in the mind of the Court that Ex.PW5/A is fictitious and forged document propounded by the plaintiffs after the death of deceased Pushpa Devi. All the defence witnesses unequivocally stated that deceased Pushpa Devi used to append signatures on documents and it stands also proved on record that till 15.1.2004 she had been appending signatures on the receipts, whereas it remained unexplained on the part of plaintiffs that why she did not sign on 12.1.2004 i.e. three days prior to 15.1.2004. Rather as has been observed above, this Court is compelled to draw adverse inference of non- examination of a lady/girl named Mamta, who as per the statement of PW-4 caught hold the thumb of deceased Pushpa Devi at the time of the execution of the Will Ex.PW5/A. 31. In the facts and circumstances of the case and after conjoint reading of the statements made by the witnesses as well as record available on record, this Court has no hesitation in concluding that Ex.PW5/A is shrouded by suspicious circumstances and it is fictitious and forged document prepared by plaintiffs with a view to grab the property of the deceased Pushpa Devi. Statement of PW-4, Lachhi Ram itself is enough to suggest that deceased Pushpa Devi was made to append thumb impression on Ex.PW5/A with the help of girl named Mamta, whose absence itself is indicative of the suspicious circumstances. Evidence brought on record be it oral or documentary by the defendants is enough to hold that defendants have discharged their onus by proving that Will Ex.PW5/A is fictitious and forged document and cannot be given effect to. 32. Now, if I advert to Ex.DW4/A, dated 27.4.1992 executed by deceased Pushpa Devi in favour of defendant No.1 is concerned, has been rightly termed as genuine document by the Courts below because admittedly its execution has been admitted by the plaintiffs. 32. Now, if I advert to Ex.DW4/A, dated 27.4.1992 executed by deceased Pushpa Devi in favour of defendant No.1 is concerned, has been rightly termed as genuine document by the Courts below because admittedly its execution has been admitted by the plaintiffs. The existence of Will Ex.DW4/A, dated 27.4.21992 has been denied by the plaintiffs only on the ground that Will put forth by defendants stands revoked/cancelled by deceased Pushpa Devi with the execution of subsequent will Ex.PW5/A in favour of the plaintiffs. Since execution of the Will Ex.PW5/A has been held to be not genuine and valid, any stipulation made therein is of no consequences, meaning thereby will Ex.DW4/A, dated 27.4.1992 is a genuine will duly executed by deceased Pushpa Devi in favour of the defendant. Moreover, defendants have duly proved the valid execution of will EX.DW4/A by examining marginal witnesses DW-1, Anant Ram, DW-5, Bhagat Singh and DW-6 Bali Ram. 33. Moreover, conjoint perusal of the statements of DWs No.3, 7 and 8 and averments contained in the plaint filed by plaintiffs, leaves no doubt in the mind of the Court that the defendants have successfully proved the valid execution of the Will Ex.DW4/A. Since Ex.DW4/A has been held to be valid one, mutation No.3684 Ex.PW1/J attested/accepted in favour of defendant No.1 is also held to be valid. Accordingly, gift deed No. 102/04, dated 15.5.2004 executed by defendant No.1 in favour of defendant No.2 cannot be termed illegal. In view of the fact that mutation No.3684 Ex.PW1/J dated 20.2.2004 stands attested in favour of the defendants on the basis of Ex.DW4/A, which is duly proved/executed Will in favour of the defendants by the deceased Pushpa Devi, finding of the Courts below that mutation has been rightly allowed in favour of defendants cannot be set-aside. 34. 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 decide the substantial question of law with a view 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-plaintiffs have not able to make out a case to persuade this Court that Ex.PW-5/A is valid and genuine document executed by deceased Pushpa Devi in favour of the plaintiffs, rather defendants have been successful in indicating the circumstances, which compelled the conscious of this Court to return the findings that Ex.PW5/A is shrouded by suspicious circumstances and same cannot be given effect being a fictitious and forged document prepared by the plaintiffs. Hence, present appeal fails and is dismissed accordingly. All the interim orders are vacated. All the miscellaneous applications are disposed of.