JUDGMENT : Sandeep Sharma, J. The instant appeal has been preferred against the judgment and decree dated 13.10.2003, passed by learned District Judge, Mandi, affirming the judgment and decree dated 28.5.2001 passed by learned Sub Judge Ist Class, Karsog, District Mandi in Civil Suit No. 44 of 1994, whereby suit of the plaintiffs has been decreed and plaintiffs have been declared to be owner of the share of deceased Hira in the suit land and they have been held also entitled to the possession of the suit land. 2. The present appeal was admitted on the following substantial question of law:- “Whether Ex.PW3/A the alleged will of late Sh. Hira is surrounded by suspicious circumstances and for want of proper execution of it no reliance can be placed thereon.” 3. The dispute in the present case revolves around the execution of the Will No.139 Ex.PW3/A, which was allegedly executed in favour of the plaintiffs on 18.9.1987 to the exclusion of the defendants (hereinafter referred to as “appellants”), who are admittedly son and daughters of the testator late Sh. Hira. Since the present appeal has been admitted on the specific question that whether Ex.PW3/A, alleged will executed by deceased Hira is surrounded by suspicious circumstances or not, the Court shall be considering the evidence brought on record by the parties to the lis with a view to reach just and fair conclusion to ascertain whether the findings returned by both the Courts below to the effect that the plaintiffs are entitled to succeed the property of the deceased on the basis of the will Ex.PW3/A is not based upon the correct appreciation of evidence available on record. 4. Plaintiffs-respondents (hereinafter referred to as “respondents”) instituted a suit for declaration and possession praying therein, that it may be declared that the mutation No.52, dated 15.1.1994 is null and void and plaintiffs are owner of the share of deceased Hira under khewat/khatauni No.25/31, which comes to 6-8-6 bighas and possession of the suit land be also delivered to the plaintiffs along with cost of the suit or any other relief to which the plaintiffs be found entitled to under consideration be granted. 5. Plaintiffs by way of Civil Suit set up a case that Sh. Dabar and Sh. 5. Plaintiffs by way of Civil Suit set up a case that Sh. Dabar and Sh. Hira sons of Haru were the owner of the land situated at Muhal Bag Bakhari, Pargana Mahun, Tehsil Karsog, District Mandi, HP under khata/khatauni No. 25/31, khasra No. 18, measuring 12-17-16 bighas and in the aforesaid land Sh. Dabar and Sh. Hira had equal share i.e. ½ each. Since Dabar had died about five years back his estate vested in plaintiffs being natural heirs (his sons). Deceased Hira, executant of the alleged will Ex.PW3/A died on 1.5.1993. Plaintiffs specifically set up a case that before the death of Hira, he executed registered will in their favour on 18.9.1987 vide will No. 139, out of natural love and affection towards them, who are his nephews. It is specifically stated in the plaint that deceased Hira was being maintained and served by the plaintiffs and he was not having good terms with his son defendant No.1 namely Karam Singh and Hira lived with the plaintiffs for the last 25 years till his death and he was being maintained by the plaintiffs. Deceased Hira executed registered will in their favour out of natural love and affection bequeathing his property in their favour. It has been specifically averred that Sh. Hira died on 1.5.1993, thereafter they produced the will before the Assistant Collector 2nd Grade for attestation of mutation in their favour but the same was rejected without any reason and it was observed by Assistant Collector 2nd Grade that Hira in order to save stamp duty payable on account of sale deed had executed the present will, thus, the state has been defrauded. The cause of action arose to the plaintiffs on 1.5.1993, when Sh.Hira died and on 15.1.1994 when mutation was attested in favour of the defendants. On 31.3.1994 defendants finally refused to get the mutation in their favour cancelled and attested in plaintiff favour. 6. This is crux of the pleadings set up by the plaintiffs in the plaint of the civil suit. On 31.3.1994 defendants finally refused to get the mutation in their favour cancelled and attested in plaintiff favour. 6. This is crux of the pleadings set up by the plaintiffs in the plaint of the civil suit. One thing clearly emerges from the bare reading of the plaint, especially relief clause that plaintiff being aggrieved with the mutation No.52, dated 15.1.1994 approached the trial Court for getting it declared null and void and they also claimed the possession of the suit land portraying themselves to be the owner of the share of deceased Hira under khata/khatauni No. 25/31 i.e. measuring 6-8-6 bighas. Admittedly, no declaration whatsoever was sought to the effect that plaintiffs may be declared owner of the share of deceased Hira on the strength of the will EX.PW3/A. In other words, no declaration was sought that the will Ex.PW3/A, may be declared valid and final will of the testator late Sh. Hira. 7. On the other hand, in written statement filed by the defendants they claimed that being son and daughters of deceased Hira they are only entitled to inherit the estate of deceased Hira. They asserted that they were in good relation with deceased Hira and they served him till his death and deceased Hira died in the house of defendant No.1 and all the last rites were also performed by the defendants. It was never disclosed by the plaintiffs till last that any will has been executed in favour of the plaintiffs and, as such, the will on the basis of which ownership of the share of deceased Hira has been claimed is result of fraud undue influence and, as such, the same is required to be declared null and void. It is specifically averred that deceased Hira was not in sound disposing state of mind and, as such, will, if any, executed in favour of plaintiffs cannot be termed to be executed with free will of deceased Hira. Moreover, no reason whatsoever has been assigned in the will that as to why he has disinherited the defendants in the will. It is specifically averred that deceased Hira was not in sound disposing state of mind and, as such, will, if any, executed in favour of plaintiffs cannot be termed to be executed with free will of deceased Hira. Moreover, no reason whatsoever has been assigned in the will that as to why he has disinherited the defendants in the will. Defendants also justified the decision of Assistant Collector 2nd grade rejecting the prayer of plaintiffs for mutation because as per them land under the will being ancestral property of deceased Hira was devolved upon them being natural first class heirs and deceased Hira had no right to execute the will of entire share in favour of the plaintiffs. Since it was ancestral property and ½ share in the property, was of defendant No.1, which could not be bequeathed in any manner by the deceased Hira. The possession of the land belonging to Hira was also claimed to be with the defendants. 8. Collective reading of the averments contained in the plaint as well as written statement suggest that though suit filed by the plaintiffs could not be specifically said to be for declaration to get the will Ex.PW3/A, declared valid and legal one in favour of the plaintiffs, rather mutation attested in favour of the defendants were challenged on the basis of the will allegedly executed by deceased Hira in favour of the plaintiffs. Though, at this stage, it may be pointed out that proper remedy, if any, for the plaintiffs to get the ½ share of deceased Hira on the basis of Ex.PW3/A was to file a suit for declaration to the effect that will executed in favour of the plaintiffs is valid document which makes them entitled to ½ share of the property of deceased Hira. But it appears that even defendants did not take specific objection with regard to the maintainability of the suit in the present form, rather they contested the suit on the ground that the will Ex.PW3/A is shrouded by suspicious circumstances and as such cannot be relied upon. 9. Learned trial court framed the following issues and put the parties on trial:- 1. Whether the plaintiffs are owner of the suit land as alleged? OPP. 2. Whether the plaintiffs are entitled for the relief of possession? OPP. 3. Whether Sh.Hira deceased executed a registered will in favour of the plaintiffs on 18.9.1987? 9. Learned trial court framed the following issues and put the parties on trial:- 1. Whether the plaintiffs are owner of the suit land as alleged? OPP. 2. Whether the plaintiffs are entitled for the relief of possession? OPP. 3. Whether Sh.Hira deceased executed a registered will in favour of the plaintiffs on 18.9.1987? If so, its effect? OPP. 4. Whether the mutation No. 52, dated 15.1.1994 is null and void as alleged? OPP. 5. Whether the suit land is ancestral property? If so, its effect? OPD. 6. Whether the plaintiffs have no cause of action? OPD. 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 8. Relief: 10. Since the Court by way of framing issues, decided issue No.3 in favour of the plaintiffs and held that the will Ex.PW3/A is valid and genuine one. It may not be appropriate for this Court to take up the issue of maintainability of the suit in present form, filed by the plaintiffs at this stage. 11. Needless to say that law regarding nature and onus of proof of the will is by way of propounder and in that regard the manner in which 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 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 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 amble clear from the guidelines framed hereinabove that allegation with regard to will surrounded by suspicious circumstances is always to be dispelled by the propounder. The onus of proving the will is always on the propounder and law requires him to dispel the notion that will is not surrounded by suspicion. (Page-531) 13. It is amble clear from the guidelines framed hereinabove that allegation with regard to will surrounded by suspicious circumstances is always to be dispelled by the propounder. The onus of proving the will is always on the propounder and law requires him to dispel the notion that will is not surrounded by suspicion. Onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine document. 14. In the present case, plaintiffs have claimed ½ share of deceased Hira on the strength of execution of will Ex.PW3/A duly executed in favour of the plaintiffs. To the contrary, defendants while contesting the suit of the plaintiffs have denied very existence of the will, as referred hereinabove, and have stated that will, if any, executed by deceased Hira is a result of fraud undue influence and the same cannot be termed with the free will of deceased Hira, meaning thereby the defendants intended to term the will in question shrouded by suspicious circumstances. 15. 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. 16. In Shridevi 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. In case the person contesting the will alleges undue influence, fraud or coercion, the onus will be on him to prove the same. 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 ]”. 17. I have heard learned counsel appearing for the parties and have gone through the record of the case. 18. Mr. Romesh Verma, 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 law. He further argued that material available on record clearly suggests that will Ex.PW3/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 the will Ex.PW3/A was genuine and was actually executed by deceased Hira 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. 19. To the contrary, Sh. H.R. Bhardwaj, learned counsel, has supported the judgments passed by both the Courts below. Mr. Bhardwaj 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.PW3/A was duly executed by deceased Hira in favour of the plaintiffs in sound disposing state of mind and as such the same has been rightly accepted by the Courts below. Mr. Bhardwaj 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.PW3/A was duly executed by deceased Hira in favour of the 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 the statements made by the plaintiffs witnesses as well as documents placed on record to buttress his argument that will Ex.PW3/A is a genuine document executed by deceased Hira. He also argued that defendants have miserably failed to place on record any document which could be suggestive of the fact that Ex.PW3/A was falsely got executed by the plaintiffs using force and undue influence. 20. In the aforesaid background, now I proceed to examine the evidence brought on record by both the parties to the lis. In the present case, plaintiffs with a view to prove its case examined six witnesses. plaintiff Gian Chand himself examined as PW-1, PW-2, is Hari Singh, PW-3, Harish Chander, who identified the testator who scribed the will Ex.PW3/A, PW-4, Narotam Ram and PW-5, Ret Ram, who were marginal witnesses to the execution of the will and Sh. Lachmu, is PW-6. 21. On the other hand, defendants examined himself as DW-1, who was also allowed to re-examine lateron. DW-2 is Jhabe Ram and Sh. Chet Ram is DW-3. 22. Record reveals that learned trial Court while deciding the controversy at hand framed additional issue No.7-A that is “whether the will in dispute is result of fraud, undue influence and deceased Hira was not in sound disposing mind”. 23. On the direction of learned District Judge, Mandi, who vide his judgment dated 7.12.2000 remanded the case back for fresh decision. 24. In the aforesaid background, learned trial Court on the basis of the pleadings, crux whereof has been given hereinabove, decided issues No. 1 to 4 in favour of the plaintiffs and issues No.5, 6, 7 and 7-A were decided against the defendants and plaintiffs have been held entitled for the relief as sought in the plaint. 25. In view of the aforesaid discussion, now this Court intend to analyze the aspect of the evidence brought on record to suggest that will Ex.PW3/A was validly executed by the testator Hira. 25. In view of the aforesaid discussion, now this Court intend to analyze the aspect of the evidence brought on record to suggest that will Ex.PW3/A was validly executed by the testator Hira. In this regard, PW-3, Harish Chander, who scribed the will stated that the will was written by him and it was read over to the executant in the presence of the witnesses and the executant thumb marked the will and thereafter other witnesses signed the same. 26. PW-4, Narotam Ram, who is the marginal witness of the will Ex.PW3/A stated that the will was written, which was lateron thumb marked by deceased and other witnesses. In his cross-examination, he admitted his close relation with the plaintiffs and stated that his daughter is married to Hukam Chand, who is son of the plaintiff. 27. PW-5, Ret Ram an independent witness also supported the statement of PW-4, Narotam Ram with regard to the execution of the will. He like PW-4 also stated that the deceased was of sound disposing state of mind while he executed the will. He also stated that the will in question was presented before the Tehsildar for registration after 10-15 days after it was scribed by the PW-3. PW-5, Ret Ram stated that they appeared before the Tehsildar on the same day, but cannot say if it was attested by the Tehsildar on the day or not. However, fact remained that the will in question was written on 3.8.1987, whereas it was registered on 18.9.1987 i.e. after about 45 days. 28. PW-2, Hari Singh Rahtore, Advocate identified the executant before the Sub-Registrar and stated that he was of sound disposing state of mind. He stated in his statement that deceased Hira asked him to identify him but he categorically stated that will was not written in his presence but Sub-Registrar asked the executant in his presence. PW-1, Gian Chand plaintiff stated that the deceased Hira was his real Chacha (Uncle) and he was separated from his son defendant No.1 and had been living with them for the last 25 years. PW-6, Lachhmu also stated that defendant No.1 has separated from his father and the deceased used to say that defendant No.1 was not his son. 29. PW-1, Gian Chand plaintiff stated that the deceased Hira was his real Chacha (Uncle) and he was separated from his son defendant No.1 and had been living with them for the last 25 years. PW-6, Lachhmu also stated that defendant No.1 has separated from his father and the deceased used to say that defendant No.1 was not his son. 29. Ex.PW3/B is a document allegedly executed by deceased Hira was sought to be proved by the plaintiffs but that was not taken into consideration by the court below while deciding the controversy at hand because the plaintiff was unable to disclose source of the document Ex.PW3/B. This is all evidence brought on record by the plaintiffs to establish genuineness and correctness and validity of the will Ex.PW3/A. 30. However, close scrutiny of the statements given by the plaintiffs witnesses certainly suggest that there are major contradictions in the statements given by the plaintiffs’ witnesses. Though, PW-1 in his statement stated that deceased Hira had been residing with them for the last 25 years after getting separated from his son defendant No.1. He also stated that deceased Hira was being maintained and taken care of by him but admittedly as per the statements given by all the plaintiffs witnesses as well as defendants witnesses, deceased Hira died in the house of defendants and his last rites were also performed by defendant No.1 being son of the deceased Hira. Even as per the statement of PW-1, deceased Hira died near the house of defendants and factum of his death came to their notice next morning, when her wife went to cowshed for milking the cow and saw the preparation being made for the cremation of the dead body of deceased Hira. This very statement of PW-1 clearly establishes the fact that at the time of death either deceased was residing with defendant No.1 or he used to wander here and there as has emerged from the statements of witnesses brought in the defence by the defendants. It remains unexplained that if deceased Hira used to reside with the plaintiffs and further he was being taken care of and maintained by them, why no efforts were made by the plaintiffs to know whereabouts of deceased Hira, who was allegedly just lying dead in the front of the house of defendant No.1 as has been stated by PW-2. It remains unexplained that if deceased Hira used to reside with the plaintiffs and further he was being taken care of and maintained by them, why no efforts were made by the plaintiffs to know whereabouts of deceased Hira, who was allegedly just lying dead in the front of the house of defendant No.1 as has been stated by PW-2. As per the statement of the plaintiff his house is situated near to the house of defendant No.1. 31. PW-2, Hari Singh Rahore, Advocate also stated that he identified the executant on his request but he categorically stated in his cross-examination that the will was not scribed in his presence. He categorically stated that contents of the will were not read over to anybody in his presence. He also stated in his cross-examination that neither Hira put thumb impression nor he signed in the presence of Tehsildar. 32. PW-3, Harish Chander admitted that he scribed the will EX.PW3/A and stated that the will was written by him and it was read over to the executant in the presence of the witnesses and then Hira put his thump impression on the same in the presence of Narotam and Ret Ram, who also signed the will. He stated that Hira did not mention anything with regard to his son and daughters in the will, rather stated that as per the will executed by Hira land measuring 2-19-5 bighas has been sold to Hukam Chand and Gian Chand and for remaining he has executed the will. He further stated that the will was registered on 18.9.1987. As per recital made in the Ex.PW3/A, it was scribed on 3.8.1997 but none of the plaintiff witnesses has given the actual date of scribing the will. PW-3 stated that will was registered on 18.9.1987. PW-4, who signed the will as a marginal witness stated that Hira used to reside with Hukam Chand and Gian Chand and they used to maintain him. He also stated that Hira was sound disposing state of mind. However, in his cross-examination, he categorically admitted that his daughter is married to the son of plaintiff Hukam Chand. He also stated that after scribing the will it was registered after 10-15 days in the office of Sub-Registrar. He denied the suggestion that he does not know whether after the death of his father Hira used to reside in jungle. However, in his cross-examination, he categorically admitted that his daughter is married to the son of plaintiff Hukam Chand. He also stated that after scribing the will it was registered after 10-15 days in the office of Sub-Registrar. He denied the suggestion that he does not know whether after the death of his father Hira used to reside in jungle. He also does not know whether the mental condition of Hira was bad when will was scribed but same was read over to Hira. He specifically stated in his cross-examination that while scribing the will he had asked the scriber that he does not have good relations with his daughters as well as son Karam Singh and he has already married her daughter and that is why he is not executing the will in their favour as well as in favour of his son namely Karam Singh. It has also come in the cross-examination of this witness that deceased Hira used to reside with defendant Karam Singh at Tatmu at his house but now a days he resides with plaintiffs Hukam Chand and Gian Chand. He also stated that he reached the place first where the will was scribed and thereafter PW-5, Ret Ram came there and they were called by Hira. 33. PW-5, Ret Ram admitted his signatures on Ex.PW3/A and stated that Hira had executed this will in favour of his nephews Hukam Chand and Giran Chand. In cross-examination, he stated that he cannot state that thumb impression affixed on first page is of Hira but on second page thumb impression is of Hira. He categorically stated that when this will Ex.PW3/A was scribed/written, he along with Hira and Narotam appeared before the Tehsildar on the same day. On that day, Tehsildar asked Hira in whose favour you are executing this will. 34. PW-6, Lachmu stated that Hira was being maintained by Hukam Chand and Gian Chand. He further stated that Hira used to state that Karam Singh was not born out of his loin. He also admitted in cross-examination that defendants have houses at three places i.e. Lawam, Kutal and the house at Tatmu is of Hira. 35. 34. PW-6, Lachmu stated that Hira was being maintained by Hukam Chand and Gian Chand. He further stated that Hira used to state that Karam Singh was not born out of his loin. He also admitted in cross-examination that defendants have houses at three places i.e. Lawam, Kutal and the house at Tatmu is of Hira. 35. All the aforesaid plaintiff witnesses have attempted to prove that will Ex.PW3/A was scribed in their presence and at that time deceased Hira was in sound disposing state of mind and the contents of the will were read over to him. However, collective reading of statement of plaintiff witnesses read with documentary evidence available on record especially Ex.PW3/A clearly indicates towards major discrepancies and contradictions. Though, the plaintiff witnesses have stated that deceased Hira was being maintained by the plaintiffs but no evidence has been led to the effect that relation between deceased Hira and defendant Karam Singh were so sour that they were residing separately, rather it has come on record that Hira died in the house of defendant Karam Singh and his last rites were also performed by the defendant. 36. Moreover, perusals of the defence witnesses suggest that Hira was not keeping well after the death of his father and he had become very quite. If the story of the plaintiffs to the effect that deceased Hira was lying dead near the house of the plaintiff is presumed to be correct, it gives strength to the story put forth by the defence witnesses that the mental condition of deceased Hira was not well and he used to wander here and there after the death of his father. Certainly, it remains unexplained that if Hira was residing with the plaintiffs, why they did not make any efforts to trace him when he did not turn up to their house one night before his death. However, in the present case, specific allegation of will being shrouded by suspicious circumstances has been leveled by the defendants, onus is upon the defendants to point out/indicate the circumstances, which may compel this Court to form an opinion that the will is shrouded by suspicious circumstances. 37. Before I refer to the circumstance indicated by Mr. However, in the present case, specific allegation of will being shrouded by suspicious circumstances has been leveled by the defendants, onus is upon the defendants to point out/indicate the circumstances, which may compel this Court to form an opinion that the will is shrouded by suspicious circumstances. 37. Before I refer to the circumstance indicated by Mr. Romesh Verma, learned counsel appearing on behalf of the appellants-defendants, I may refer to the statement given by DW-1, Karam Singh defendant, who was allowed to re-examine stated that Hira was his father and out of his loin five children were born and he was elder one apart from four sisters. He categorically stated that Hira had very cordial relation with her mother and there is no dispute pending between them in any Court. At the time of death, his father was of approximately 80 years of age. He stated that his father was very simple illiterate person. After the death of his grandfather his father became very quite. He was mentally not well because of shock. He stated that he had very cordial relation with his father and during his life time he was being maintained by him. All the land belonging to him was also maintained and cultivated by him. He categorically stated that his father was not competent/capable to execute any will because he was illiterate. Even he did not know the meaning of will. It has come in his statement that his father during his life time never disclosed to him or to anybody from the village with regard to the execution of alleged will in favour of the plaintiffs. It is only when the mutation was entered in his name then plaintiffs came with the will Ex.PW3/A. The will brought on record by the plaintiffs is false and has been fabricated by them with the help of scriber. He had also applied for the documents. He also stated that the another document produced by the plaintiffs has also been fabricated and falsely prepared by them with the help of scriber because he had tried to procure certified copy of the documents from the copying agency but was refused with the observation that there is no such pending case. He had also applied for the documents. He also stated that the another document produced by the plaintiffs has also been fabricated and falsely prepared by them with the help of scriber because he had tried to procure certified copy of the documents from the copying agency but was refused with the observation that there is no such pending case. Perusal of the cross-examination conducted on behalf of the plaintiffs of this defence witness suggest that defendants stuck to his statement made in the examination-in-chief and defence was unable to extract something contrary. 38. DW-2, Jhabe Ram also supported the statement given by DW-1 as well as plaintiffs witnesses, where it has come on record that after the death of his father Hira had gone to the forest and he used to speak very less. He also stated that his mental condition was not well and he used to reside at Tatmu with his son Karam Singh. He categorically stated that after the death of Hira, his all rites were performed by defendant Karam Singh. Even in his cross-examination, he stated that Hira used to reside with his son Karam Singh for the last 25 years. He was being maintained by him. He specifically denied this suggestion that Hira never used to visit the house of Karam Singh. He used to come once or twice in two months. It has specifically come in his cross-examination that Hira used to speak very less and he remained quite till his death and he was/got medically treated by the defendants at his house, Mandi and Shimla. He also stated that he knows all the sisters of the defendants whose marriage expenditure was also borne by him. 39. DW-3, Chet Ram also stated that Hira has been suffering with mental problem since the time of death of his father. He used to remain quiet and he used to appear mad and his condition remained same till his death. He also stated that Hira used to reside with Karam Singh at Tatmu and all the last right were performed by defendant i.e. Karam Singh. 40. Perusal of the statements given by the defence witnesses establishes one thing beyond doubt that deceased Hira was not in good state of mind. He also stated that Hira used to reside with Karam Singh at Tatmu and all the last right were performed by defendant i.e. Karam Singh. 40. Perusal of the statements given by the defence witnesses establishes one thing beyond doubt that deceased Hira was not in good state of mind. It has come in the statement of all the witnesses that after death of his father he had become quite and rather with shock his mental condition was not good. All the witnesses have unequivocally stated that he remained same till his death. No suggestion worth the name in the cross-examination was put to these witnesses that they are deposing falsely, rather no material whatsoever was brought on record to suggest that defendants was in sound disposing state of mind. Statement of plaintiff witnesses with regard to staying of Hira with the plaintiffs appears to be little shaky and unreliable, rather it emerges from their statements that Hira used to wander here and there after the death of his father. On the other hand, if the statements of defence witnesses are seen they appears to be very consistent and trustworthy while deposing with regard to the mental health of deceased Hira as well as his being taken care of by the defendant till his death. 41. Now, adverting to the first circumstance indicted by Mr. Romesh Verma, learned counsel appearing for the appellant to substantiate his arguments that the will in question is shrouded by suspicious circumstances. He stated that Ex.PW3/A prima-facie appear to be fabricated document. As per him, the first 11 lines of the will are written in the uniform space and thereafter the space between the lines is more, as compared to the previous line and, as such, space has been extended only with a motive to complete the will on the second page which suggest that the thumb impression of deceased Hira was already obtained on the blank papers. 42. Another circumstance pointed out by Mr. Romesh Verma, learned counsel is that initial line of the will Ex.PW3/A suggest that there is mention about selling of 2-19-5 bighas land and thereafter in between line No.10 and 11, one line has been added/inserted in which entire movable and immovable property has been included. This addition has been made subsequently. 42. Another circumstance pointed out by Mr. Romesh Verma, learned counsel is that initial line of the will Ex.PW3/A suggest that there is mention about selling of 2-19-5 bighas land and thereafter in between line No.10 and 11, one line has been added/inserted in which entire movable and immovable property has been included. This addition has been made subsequently. Since both the circumstances relates to the style and manner in which the alleged will has been scribed/written, the Court itself perused the Ex.PW3/A, which clearly suggests that first few lines are written in uniform space and suddenly in later part space has been extended, meaning thereby that circumstances pointed by Mr. Verma has force. 43. Moreover, careful perusal of the same also suggests that after 11th line, one line has been inserted and careful perusal of the same leaves no doubt in the mind of the Court that it has been inserted lateron, because if it is presumed that line which has been inserted is not part of the alleged will, pattern of writing appears to be uniform but certainly insertion of line after 11th line has changed the entire pattern of the writing and spacing. This part of the text and contents of the line allegedly inserted in the will change the very character of the will, allegedly executed in favour of the plaintiffs. If the contents of the lines just above this inserted line are seen, which is under:- eSa ghjk liq= Jh gjq fuoklh ekSgky c[kkjh bykdk ekgq rglhy djlksx ftyk e.Mh dk gqW eSa bl olhgr ls fy[k nsrk gqW fd esjh Hkwfe [ksoV u0 25 feu [krkSuh u0 31 dk uEcj [kljk 79@83@113@122@151@-185 -dhrk 6 jDck 2-19-5-- ch?kk gS ftldks eSaus gqDe pan&Kku pan liq= Jh Mkcj fuoklh VVeksg bykdk ekgq okys dks oghlk cjkcj os dj fn;k gS ijUrq eSa Hkwfe ds ckjs esa fy[k nsrk gqW fd esjs ejus ds ckn esjh reke py o vapy lEifr tks Hkh esjs uke gS o esjh mijksDr Hkwfe esa ftl Hkakfr fgLlk gksxk mlds ikus dk gd dsoy mijksDr gqDe pan&Kku pan lqiq= Jh Mkcj fuoklh VVeksg bykdk ekgq okys dks gksxk vU; fdlh dks Hkh okjlku dks mijksDr Hkwfe ds ikus dk gd uk gksxk! esjh reke py o vapy lEifr tks Hkh esjs uke gS o esjh mijksDr Hkwfe esa ftl Hkakfr fgLlk gksxk mlds ikus dk gd dsoy mijksDr gqDe pan&Kku pan liq= Jh Mkcj fuoklh VVeksg bykdk ekgq okys dks gksxk vU; fdlh dks Hkh okjlku dks mijksDr Hkwfe ds ikus dk gd uk gksxk! 44. If at this stage with a view to examine the validity of the circumstances pointed by Mr. Verma, aforesaid inserted line is excluded and then remaining contents is read it definitely makes sense. 45. Further perusal of this will suggests that till 11th line there is recital about selling of 2-19-5 bighas, but suddenly one line comes whereby recital comes at ^^esjh reke py o vapy lEifr tks Hkh esjs uke gS o esjh mijksDr Hkwfe esa ftl Hkakfr fgLlk gksxk mlds ikus dk gd dsoy mijksDr gqDe pan&Kku pan liq= Jh Mkcj fuoklh VVeksg bykdk ekgq okys dks gksxk vU; fdlh dks Hkh okjlku dks mijksDr Hkwfe ds ikus dk gd uk gksxk!** 46. After perusing the will in question this Court finds force in the arguments advanced by Mr. Romesh Verma that insertion of line after 11th line as well as change in pattern of writing is definitely a suspicious circumstances in the present case from which it can be inferred that will Ex.PW3/A is a result of fraud and undue influence. 47. Learned counsel for the appellants-defendants invited attention of this Court in Vesakha Singh versus Jit Singh and another 1996(2) Civil Court Cases 339( P& H). The para No.13 and 14 of the judgment reproduced as under:- “13. Now I proceed to dispose of issue No. 1 which was decided in favour of the plaintiff as to whether Daman Singh deceased executed a will dated 13th March, 1984 in favour of the plaintiff or not. I have gone through the detailed reasons given by the trial Court and affirmed by the first appellate Court under issue No. 1 and I have my own reasons to differ with the findings of the courts below. I had already stated above that the will in dispute is Exhibit P1 on the record written on a single sheet in Urdu. The scribe of this witness is Mr. Hari Ram and is allegedly attested by Mukhtiar Singh, Lachman Singh, Gurdev Singh and Gurnam Singh; and also thumb marked by Daman Singh. I had already stated above that the will in dispute is Exhibit P1 on the record written on a single sheet in Urdu. The scribe of this witness is Mr. Hari Ram and is allegedly attested by Mukhtiar Singh, Lachman Singh, Gurdev Singh and Gurnam Singh; and also thumb marked by Daman Singh. A bare glance on this document leaves no manner of doubt in my mind that this document has been fabricated over the thumb impression of Daman Singh, and the services of at least one attesting witness Gurdev Singh have been procured subsequently to attest this will as an attesting witness. This glaring aspect of this case has been conveniently overlooked by the Courts below. The forger tries to commit forgery in perfection but nature always helps the rightful person. The space between the first 10 lines of the will is uniform but the space between the 10th and 11th lines is definitely more as compared to the previous 10 lines, casting serious doubt at least in the mind of this Court that a readymade material was given to Hari Ram scribe to get it written on the page above the thumb impression of Daman Singh. Upto the first ten lines the writer was writing the will in the normal circumstances but he fumbled by writing the 11th and 12th lines as he wanted to conclude the matter between the two lines, which he could not do so if the was to write 11th and 12th lines by leaving the normal space which was left out for writing the first ten lines. Second glaring aspect which has come to my notice by giving a bare glance to this will is that the name of one attesting witness Gurdev Singh has been written with a separate pen. The following words : "Gurdev Singh Panch, Gram Panchayat Sehna, Vald Inder Singh Jat Sehna" (Translation; Gurdev Singh, Member, Gram Panchayat, Sehna, son of Inder Singh Jat Sehna) have been written with a different pen, the tip of which was thin as compared to the other writing of the will (Ex.Pl). The case of the plaintiff is that Gurdev Singh, also put his thumb impression in the presence of the executor of the will Daman Singh, but this aspect is not proved. The case of the plaintiff is that Gurdev Singh, also put his thumb impression in the presence of the executor of the will Daman Singh, but this aspect is not proved. No doubt the above reasons, to my mind, have not been put to the witness Gurdev Singh when he appeared in the witness-box, but nevertheless this Court can make a cursory glance to the will itself in order to find out its genuineness. In Venkatachala Iyengar v. B.N. Thimmajamma and Ors., AIR 1959 S.C. 443 , it has been laid down that in order to prove the genuineness of the will the onus to prove lies on the propounder. An obligation has been put upon the propounder to show by satisfactory evidence that the will was signed by the testator and that the testator was in sound and disposing mind and that he understood the nature and effect of the dispositions and put his signatures on the document of his own free will. The will can be relied upon when the evidence adduced in respect of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signatures as required by the law. If there are suspicious circumstances surrounding the will, it is the obligation of the propounder to remove those suspicious circumstances.” “14. The evidence in this case now has to be looked into in the light of the principles as enshrined in the above authorities. After the death of Daman Singh, mutation proceedings were started and the matter was placed before the Assistant Collector 1st Grade. Exhibit PB is the mutation proceedings dated 8th February, 1985, when Shri Lal Singh, Assistant Collector 2nd Grade Bhadaur went to village Sehna. It shows that mutation of Deman Singh, who died on 27.9.1984, came for hearing before Shri Lal Singh. In the pedigree table recorded at the back of Ex. PB on the day of mutation, it is clearly shown that Smt. Jangir Kaur is the widow of Daman Singh. Both Smt. Jangir Kaur and Jit Singh were present before Shri Lal Singh, A.C. Grade II. In the pedigree table recorded at the back of Ex. PB on the day of mutation, it is clearly shown that Smt. Jangir Kaur is the widow of Daman Singh. Both Smt. Jangir Kaur and Jit Singh were present before Shri Lal Singh, A.C. Grade II. Smt. Jangir Kaur was identified by Gurdev Singh Lamberdar of the village, as widow of Daman Singh, and claimed the estate of Daman Singh, being his widow, which was disputed by Jit Singh not on the ground that Smt. Jangir Kaur was not the widow of Daman Singh, but he stated before Shri Lal Singh that Daman Singh had executed a will in his favour. Strange enough copy of the will was not produced before Shri Lal Singh at that time, nor it is mentioned on which date Daman Singh had executed the will in favour of Jit Singh, who, admittedly, is remotely related to Daman Singh. Jit Singh is the grand son of Smt. Nand Kaur, who was the sister of Daman Singh. It is also to be seen if Daman Singh would execute a will in favour of a remote relation like Jit Singh in preference to his wife Smt. Jangir Kaur. There is not an iota of evidence on the record that at any point of time there was any sort of litigation between Smt. Jangir Kaur and Daman Singh so as to show that the latter wanted to exclude Smt. Jangir Kaur from his estate or that Daman Singh wanted to go to the extent that he did not want to make any provision even for the maintenance of Smt. Jangir Kaur. What appears from the record is that Jit Singh earlier had obtained a thumb impression on a blank paper of Daman Singh and later on he got a forged will in connivance with other attesting witnesses named above and it may be mentioned here at this stage that one of the attesting witnesses was Mukhtiar Singh, who did not appear for the plaintiff in support of the will. Rather he appeared for the defendant and denied the execution of the will by Daman Singh in favour of Jit Singh plaintiff. Truth must come on the surface. Rather he appeared for the defendant and denied the execution of the will by Daman Singh in favour of Jit Singh plaintiff. Truth must come on the surface. Jit Singh admitted in his cross-examination that on 7.5.1981 vide Exhibit P6 Daman Singh got land, i.e. l/16th share of the land measuring 91 kanals 13 Marlas and the said sale deed was signed on behalf of the vendee Daman Singh by plaintiff Jit Singh himself. Jit Singh stated in the trial Court that he used to reside in village Sehna with Daman Singh for the last 14/15 years and used to serve him. The witness deposed in the cross-examination that as and when an application had to be moved or a deed had to be registered, Daman Singh used to send him. The plaintiff further admitted that he used to move the application after getting the thumb impression of Daman Singh for the sake of getting copy of the document etc. This could be the occasion when Jit Singh obtained the thumb impression of Daman Singh on a blank paper over which the will (Ex.Pl) was fabricated in connivance with the attesting witnesses and the scribe. The Courts below have interpreted this evidence in a different manner by saying that Daman Singh for this reason had executed the will in favour of Jit Singh by ignoring his wife Smt. Jangir Kaur and also by ignoring other relations. At the time of making the statement the age of Jit Singh was 27 years. It is difficult for me to appreciate if a young boy would be serving Daman Singh in the presence of his wife Jangir Kaur. I would also try to show in the subsequent portion of this judgment that Jit Singh never resided with Daman Singh in village Sehna in House No. 199 as shown in the voters list. Close relations were present who could be preferred by Daman Singh instead of Jit Singh whose relationship I had already highlighted above. 48. Another circumstance which has been pointed out by Mr. Verma, learned counsel is that no independent witness has been cited as marginal witness to the will in dispute. Though, there is no much force in the arguments advanced by Mr. 48. Another circumstance which has been pointed out by Mr. Verma, learned counsel is that no independent witness has been cited as marginal witness to the will in dispute. Though, there is no much force in the arguments advanced by Mr. Verma because absence of independent witnesses may not be detrimental if there is substantial proof the execution of the will and if it is otherwise proved to be executed in accordance with law. But in the present case, as discussed hereinabove, all the witnesses relied upon by the plaintiffs have been very-very in consistent while stating date and time as well as their presence at the time of the execution of the will. Recital of the execution shows that will was scribed on 3.8.1987 at the behest of deceased Hira but admittedly at that time none of the plaintiffs witnesses were present because they have stated that the will was registered on 18.9.1987 in their presence and they were present at the time when will was being written or subscribed. The aforesaid facts gains significance, when it comes in the statements of the plaintiffs witnesses that Hira had asked scriber that he does not have good relation with his son and daughters and he has already married his daughter, as such, does not want to give property to any daughters as well as his son i.e. defendant No.1. If that version is taken to be correct, it remains unexplained that why the same was not reduced into writing by scriber PW-3 while scribing the will Ex.PW3/A. It also remains unexplained that when will was written or subscribed on 3.8.1987 why it was got registered after almost 1 ½ months because admittedly it was registered on 18.9.1987. 49. There are material contradictions with regard to the registration of the will in the statement of PW-4 Narotam Ram and PW-5, Ret Ram. PW-5 stated that on the very same day when this will was written in his and Narotam Ram presence, it was presented before the Sub-Registrar in their presence. But to the contrary, PW-4, Narotam Ram’s stated that it was registered after 10-15 days later, which statement is definitely contrary to the records because admittedly it was registered after 45 days i.e.18.9.1987. But to the contrary, PW-4, Narotam Ram’s stated that it was registered after 10-15 days later, which statement is definitely contrary to the records because admittedly it was registered after 45 days i.e.18.9.1987. Moreover, in view of statement of the witnesses, it sands proved that PW-4, Narotam Ram was related to the plaintiffs as he admitted that his daughter has been married to the son of the plaintiff. True, it is that there is no bar for the relation to become marginal witness but in the present facts and circumstances of the case, where entire evidence led by the plaintiffs appears to be unreliable and untrustworthy and shaky, an adverse inference can be drawn as far as citing of PW-4 as plaintiff witness is concerned. 50. Mr. Verma, learned counsel also invited attention of this Court towards the contents of disputed will Ex.PW3/A and stated that there is unfair and unreasonable disposition of the entire movable and immovable property of the testator, especially in view of the fact that the testator was an old, illiterate, village simpleton and also heaving feeble mind. 51. After conjoint reading of the statements brought on record by the plaintiffs and the defendants, it leaves no doubt that testator was not having good sound disposing state of mind at the time of execution of will. Since he was old and illiterate, definitely was not in a position to make recital as has been allegedly made in the disputed will. 52. Admittedly, there is no recital at all in the will that why testator does not want to give anything to his family i.e. son and his daughters, especially in view of the fact that there is nothing on record which can suggest that relation between the defendant and testator were so sour that he ignored them at the time of execution of the will. If at this stage just for the sake of discussion, if it is presumed that relation between the testator and plaintiffs and defendants were not so good, that he ignored them at the time of execution of the will, but definitely plaintiffs have miserably failed to prove on record either by ocular or by documentary evidence, which could compel this Court to have an opinion that relation of testator/deceased Hira with plaintiff were so good that he bequeathed his entire property to the plaintiffs out of love and affection, rather evidence on record clearly indicates that at the time of death, deceased was not residing with the plaintiffs and his all last rites were performed by the defendants. All the defence witnesses unequivocally stated that defendants used to maintain the deceased Hira till his death, which fact remains un-rebutted. If the statement of all the defence witnesses as well as plaintiffs witnesses are read in its entirety, one thing can be safely inferred that after the death of his father, deceased Hira was not in good state of mind and he used to wander here and there even at the time of his death. As per version of plaintiff (PW-1) himself, Hira died in front of the house of the defendants. One aspect which also invited attention of this Court is that admittedly it is proven on record that the property of deceased Hira was in possession of defendant till his death and they were living in the house of deceased. Plaintiffs have failed to place on record any convincing evidence which could compel this Court to believe that all the first class legal heirs of deceased (all the children of the testatrix) could be disinherited form the property, which is admittedly in the possession of the defendants by the deceased Hira while executing his will. Moreover, there is no single word written in the will against any of the first class heirs regarding the cause of their disinheritance from the suit property. Rather, perusal of the plaint, nowhere suggest that plaintiffs ever pleaded and disclosed ground which could be sufficient for the testator Hira to disinherit all the first class legal heirs. 53. Apart from above, appellants have indicated many instances which definitely persuaded this Court to form an opinion that the will is shrouded by suspicious circumstances some of that are as follows:- 1. 53. Apart from above, appellants have indicated many instances which definitely persuaded this Court to form an opinion that the will is shrouded by suspicious circumstances some of that are as follows:- 1. That no reasons has been assigned why the registration was delayed for one and half months after the execution of the will Ex.PW3/A on 3.8.1997. 2. That, PW-3, scriber stated that the will was entered on 18.9.1987 in the register, whereas date of its execution is 3.8.1987, which creates doubt regarding the valid execution of the will. 3. That there are material contradictions in the testimony of PW-4 and PW-5 with regard to the date and time of the execution of the will. PW-4 stated that will was written and registered on the same day. PW-5 marginal witness stated that it was registered on some other day coupled with the fact that he is close relative of the propounder i.e. plaintiff. 54. To substantiate the aforesaid arguments advanced by the Mr. Romesh Verma, learned counsel stated that law with regard to proof of a valid will is now well settled and will should be found to be free from any suspicious circumstances. Section 63(c) of the Indian Succession Act reads as under:- “Section 63.- Execution of unprivileged Wills - Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 1(or an airman so employed or engaged,) or a mariner at sea, shall execute his Will according to the following rules:- (a) and (b)… (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark of the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.” Indisputably, the said provision is mandatory in nature. A Will is required to be attested by two or more witnesses.” 55. What constitutes suspicious circumstances, is discussed by the Hon’ble Apex Court in Bharpur Singh and others Vs. A Will is required to be attested by two or more witnesses.” 55. What constitutes suspicious circumstances, is discussed by the Hon’ble Apex Court in Bharpur Singh and others Vs. Shamsher Singh, 2009(1) Apex Court Judgment 711(S.C). Relevant portion of the judgment reads as under:- “22. We may notice that in Jaswant Kaur vs. Amrit Kaur & ors. [ (1977) 1 SCC 369 ] this Court pointed out that when the Will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and defendant. An adversarial proceeding in such cases becomes a matter of Court's conscience and propounder of the Will has to remove all suspicious circumstances to satisfy that Will was duly executed by testator wherefor cogent and convincing explanation of suspicious circumstances shrouding the making of Will must be offered. 17. Suspicious circumstances like the following may be found to be surrounded in the execution of the Will: i. The signature of the testator may be very shaky and doubtful or not appear to be his usual signature. ii. The condition of the testator's mind may be very feeble and debilitated at the relevant time. iii. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason. iv. The dispositions may not appear to be the result of the testator's free will and mind. v. The propounder takes a prominent part in the execution of the Will. vi. The testator used to sign blank papers. vii. The Will did not see the light of the day for long. viii. Incorrect recitals of essential facts. 56. The onus to prove the will is always on the propounder. It is held so again by the Hon‘ble Apex Court in K. Laxmanan V. Thekkayil Padmini and others, 2009(1) Apex Court judgments 040 (S.C.) : 2009(1) Civil Court Cases 526 (S.C.) : 2009(1) SCC 354 . This judgment also reads as follows:- “19. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. This judgment also reads as follows:- “19. When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the court and only when such responsibility is discharged, the court would accept the will as genuine. Even where there are no such pleas, but circumstances given raise to doubt, it is on the propounder to satisfy the conscience of the court. Suspicious circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions 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 indications 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 late will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee and Pushpavathi v. Chandraraja Kadamba.” 57. With a view to substantiate his arguments with regard to the execution of will shrouded by suspicious circumstances, Mr. Verma, learned counsel invited attention of this Court on the judgment passed by Hon’ble Apex Court in Jaswant Kaur versus Amrit Kaur and others SLJ Himachal Pradesh 1978-2, wherein it has been held as under:- “9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary proceeding becomes in such cases a matter of the court's conscience and then the true question which arises for consideration is whether the evidence led by the pro-pounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will .offers a 'cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.” “10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. It is impossible to reach such satisfaction unless the party which sets up the will .offers a 'cogent and convincing explanation of the suspicious circumstances surrounding the making of the will.” “10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thirnmajamma & Others. (1959) Supp. 1. S.C.R. 426. The Court, speaking through Gajendragadkar J., laid down in that case the following propositions:- 1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the ease of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Since section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by section 63 of the Evidence Act, one attesting witness 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. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstance that the test of satisfaction of the judicial conscience has been evolved. That test emphasizes that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution' of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 58. Mr. Verma, learned counsel with a view to substantiate his arguments with regard to exclusion of first class legal heirs of the will alleged to be proved as a genuine is also shrouded by suspicion placed reliance on the judgment passed in Kalyan Singh versus Smt. Chhoti and others, AIR 1990 Supreme Court 396. 58. Mr. Verma, learned counsel with a view to substantiate his arguments with regard to exclusion of first class legal heirs of the will alleged to be proved as a genuine is also shrouded by suspicion placed reliance on the judgment passed in Kalyan Singh versus Smt. Chhoti and others, AIR 1990 Supreme Court 396. Para No. 20 and 22 of the judgment is reproduced as under:- “20. It has been said almost too frequently to require repetition that a will is one of the most solemn documents known to law. The executant of the will cannot be called to deny the execution or to explain the circumstances in which it was executed. It is, therefore, essential that trustworthy and unimpeachable evidence should be produced before the court to establish genuineness and authenticity of the will. It must be stated that the factum of execution and validity of the will cannot be determined merely by considering the evidence produced by the propounder. In order to judge the credibility of witnesses and disengage the truth from falsehood the court is not confined only to their testimony and demeanor. It would be open to the court to consider circumstances brought out in the evidence or which appear from the nature and contents of the documents itself. It would be also open to the court to look into surrounding circumstances as well as inherent improbabilities of the case to reach a proper conclusion on the nature of the evidence adduced by the party.” “22. The Privy Council in Mt. Biro v. Atma Ram, AIR 1937 PC 101 had an occasion to consider and analogous case where the wife was practically disinherited and there was unexplained delay in producing the will in public. There the alleged will by a testator gave only a life estate to his daughter who was the only child and who was to get some property at her marriage. The bulk of the estate was vested in the window of the testator and three other women, namely his mother, his step-mother and his paternal aunt. These women though entitled under the Hindu Law only to maintenance were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. These women though entitled under the Hindu Law only to maintenance were made joint owners equally with the widow of the testator. None of the devisees could get the estate partitioned or alienate it for necessity. It was, however, provided that the lady, who survived the other three devisees, would become the absolute owner of the estate. The window of the testator would not get her husband’s estate, if she predeceased any of her co-devisees. The will was not produced until 22 years after its execution through there were occasions to produce it, had it been in existence. Considering these circumstances, the Privy Council observed (at p.104): “It is most that a person having a wife and a minor unmarried daughter, who should be the objects of his affection, would make a will which would practically disinherit them.” “That the testament is unnatural and runs counter to the ordinary sentiments of persons, having a status in society similar to that of Harbans Lal, cannot be seriously disputed. But his is not the only circumstance which tells against its genuineness. The will purports to have been executed on 24th August, 1900, and the testator died within a monthly of that date. But it is strange that it was not produced until 1922, after the commencement of the present litigation. During this long period of 22 years, which intervened, there were occasions when the widow or her advisers could have produced the document, if it had been in existence; but they did not do so……” The will in the present case, constituting the plaintiff as a sole legatee with no right whatever, to the testator’s wife seems to be unnatural. It casts a serious doubt on genuineness of the will. The will has not been produced for very many years before the court or public authorities even though there were occasions to produce it for asserting plaintiff’s title to the property. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We, therefore, concur with the conclusion of the High Court and reject the will as not genuine.” 59. The plaintiff was required to remove these suspicious circumstances by placing satisfactory material on record. He has failed to discharge his duty. We, therefore, concur with the conclusion of the High Court and reject the will as not genuine.” 59. In case titled as Jagdish Chand Sharma Versus Narain Singh Saini (Dead) through legal representatives and others 2015(8) Supreme Court cases 615, wherein it has been held as under:- “The materials on record, as a whole, also do not, in our comprehension, present a backdrop, in which, in normal circumstances, the testator would have preferred the appellant to be the legatee of his property as set out in the Will, Ex. A-1, by denying his wife, children and grand children who were alive and with whom he did share a very warm affectionate and cordial relationship. Viewed in this context, the bequest is ex facie unnatural, unfair and improbable thus reflecting on the testator’s cognizant, free, objective and discerning state of mind at the time of the alleged dispensation. The suspicious circumstances attendant on the disposition, in our opinion, do militatively impact upon the inalienable imperatives of solemnity and authenticity of any bequest to be effected by a testamentary instrument.” 60. In Surinder Paul and another versus Sataya Devi and others, 1997(2) S.L.J. 1510, wherein it has been held as under: “9. Counsel for the respondents, on the other hand, argued that the concurrent findings of the Courts below do not call for any interference in the second appeal as the same were based upon appreciation of evidence adduced by respective parties. According to counsel, appellants have failed to dispel any one of the various suspicious circumstances surrounding the execution of Will as noticed by the trial Court. According to counsel, it is well settled that it is upon the beneficiary to dispel all such suspicious circumstances before such a document can be held to be a valid thereby depriving the rightful claimants to the rights. Since they have failed to discharge this onus, courts below have rightly ignored the Will. I have heard learned counsel for the parties as well as perused the well written judgments of courts below as well as of the lower appellate Court. Concededly, Daulat Ram died issueless leaving behind plaintiffs and Smt. Maya Devi, his sisters, to be the nearest heirs. I have heard learned counsel for the parties as well as perused the well written judgments of courts below as well as of the lower appellate Court. Concededly, Daulat Ram died issueless leaving behind plaintiffs and Smt. Maya Devi, his sisters, to be the nearest heirs. Defendants No. 1 and 2 - the appellants - are not related to Daulat Ram. They even do not belong to his caste. According to defendants, they had been looking after him and so out of love and affection he chose to bequeath this property in their favour and so executed a Will. Will, of course, is a solemn document and it is to be given effect to if proved and free from all suspicious circumstances. Onus to dispel all suspicious circumstances is upon the person propounding such a document. The trial Court made reference to various infirmities as have come up in the statements of witnesses creating a doubt as to the due execution of the Will i.e. (i) that the executant was not in a disposing mind at the time of execution of Will as he had been suffering from T.B. and this fact had been admitted by witnesses of the parties (ii) the fact that the executant dies on the next date by itself suggest that he was not in a fit physical and mental condition so as to understand the consequences of what he has been doing; (iii) that a chronic T.B. patient could not walk for a one and half mile as stated by the attesting witnesses of the Will; and (iv) that as per statement of witnesses of the Will, after execution of the Will, they returned to the village whereas he stayed at Nawanshahr. This, according to the court was most un-natural. What was the reason for thump-marking this document when executant was a educated person ? This again creates a doubt as one of his arm was amputated and may be there was no proof in existence to compare the thumb-impression of the executant.” “10. Will does not make mention of sisters or any of other heirs. As noticed earlier, no attempt has been made to dispel any of the suspicious circumstances, so courts below rightly discarded this document. Somewhat similar matter came up for consideration before the apex Court in case reported as Ram Piari v. Bhagwant, (1990-1) 97 P.L.R. 639 (S.C.). Will does not make mention of sisters or any of other heirs. As noticed earlier, no attempt has been made to dispel any of the suspicious circumstances, so courts below rightly discarded this document. Somewhat similar matter came up for consideration before the apex Court in case reported as Ram Piari v. Bhagwant, (1990-1) 97 P.L.R. 639 (S.C.). In the aforesaid case, a disinherited daughter challenged the Will to have been executed by a father a day before his death bequeathing all his property in favour of sons of her only sister. Though in the aforesaid case, the findings of the Courts below were affirmed by the High Court, the apex Court set aside the findings holding that the matter has not been properly comprehended by any of the court. It further held that though freedom to bequeath one's own property amongst Hindus is absolute both in extent and person, including rank stranger yet to have testamentary capacity or a disposable mind what is required of propounder to establish is that the testator at the time of disposition knew and understood that the property he was disposing and persons who were to be beneficiaries of his disposition. According to the Apex Court, prudence requires reason for denying benefit to those who too were entitled to bounty of testator as they had similar claims on him. Absence of it may not invalidate a Will but it shrouds the disposition with suspicious as it does not give any inkling to the mind of testator to enable the court to judge if the disposition was voluntary act. In this case too, the court noticed that whereas the testator could sign yet he thumb-marked the document and so observed that this by itself was sufficient to put the court on alert. Respectfully following the aforesaid judgment and applying the ratio to the facts of the present case. I am of the view that the view taken by the Courts below is in consonance with the various decisions taken by this Court as well as Apex Court.” 61. In Milkhi Ram and others versus Smt. Surmoo Devi, 1993(3) S.L.J. 2729. The relevant para of the judgment reproduced as under:- “9. I am of the view that the view taken by the Courts below is in consonance with the various decisions taken by this Court as well as Apex Court.” 61. In Milkhi Ram and others versus Smt. Surmoo Devi, 1993(3) S.L.J. 2729. The relevant para of the judgment reproduced as under:- “9. In Ram Piari versus Bhagwant and others, 1990 Marriage LJ 283, in para 4 of the judgment, the learned Judge of the Supreme Court made the following observations:- “Ratio in Malkani v. Jamadar, AIR 1987 SC 767 , was relied on to dissuade this Court from interfering, both, because of the finding that will was genuine, was a finding of fact and omission to mention reason for disinheriting the daughter of taking prominent part by beneficiary by itself was not sufficient to create any doubt about the testamentary capacity was because of misunderstanding of the correct import of the decision and the circumstances in which it was rendered. Property in Malkani’s case was land. Beneficiary was nephew as against married daughter. Anxiety in village to protect landed property of agricultural holdings from going out of family is well known. Even though it cannot be said to be hard and fast rule yet when disinheritance is amongst heirs of equal degree and no reason for exclusion is disclosed, is disclosed, then the standard of scrutiny is not the same and if the courts below failed to be alive to it as is clear from their orders then their orders cannot be said to be beyond review…..” 62. In case S.R. Srinivasa and others versus S. Padmavathamma 2010(3) Civil Court Cases 359 (S.C.). Para No.39 of the judgment reproduced as under:- “39. Since there were suspicious circumstances, it was necessary for the defendants to explain the same. The registration of the Will by itself was not sufficient to remove the suspicion. The first appellate court also notices that even in cases where the execution of the will is admitted, at least one attesting witness of the Will has to be examined to receive the will in evidence. Dw-2, who has been examined is the scribe of the will, has given no plausible reasons as to why the will was presented twice before the sub-Registrar creates suspicion about the genuineness of the will. Even the attesting witnesses to the Will have not been examined. Dw-2, who has been examined is the scribe of the will, has given no plausible reasons as to why the will was presented twice before the sub-Registrar creates suspicion about the genuineness of the will. Even the attesting witnesses to the Will have not been examined. There is no evidence whether the will was read over by the Sub-Registrar or anybody else before it was registered. It is not explained as to how the Will came into possession of defendant No.1. There is no evidence when he was put in proper custody of the Will. Considering the cumulative effect of all the circumstances, the First Appellate Court has held that execution of the Will is surrounded by suspicious circumstances. Consequently, the appeal was allowed and the judgment of the Trial Court was set-aside. 63. Mr. H.K. Bhardwaj, learned counsel representing the defendants while arguing forcibly contended that this Court does not sit in appeal over the right or wrong of the testator’s decision and the Court’s role is very limited. Hence, as such, it cannot re-appreciate the evidence available on record. He contended that a will appearing on face of it have been duly attested in favour of the plaintiff/defendant and as such no interference of this Court is called for in the present case where there is ample evidence on record to suggest that the will Ex.PW3/A is valid document duly executed by the testator in favour of the defendants. To substantiate aforesaid arguments, he placed reliance on the judgment titled as Gurdev Kaur and others Vs. Kaki and others (2007) 1 Supreme Court Cases 546. The para No.77 of the judgment is reproduced as under:- “The High Court has clearly deviated from the settled principle of interpretation of the will. The court does not sit in appeal over the right or wrong of the testator’s decision. The court’s role is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is the product of the free and sound disposing mind. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest.” 64. It is only for the purpose of examining the authenticity or otherwise of the instrument propounded as the last will, that the court looks into the nature of the bequest.” 64. There cannot be any quarrel with the aforesaid observations made by the Hon’ble Apex Court that court does not sit in appeal over the right or wrong testator’s decision and court role is very limited to examine whether the instrument propounded as the last will of the deceased is or is not that by the testator and whether it is product of the free and sound disposing mind. 65. In the instant case, perusal of the detailed discussion made hereinabove, would clearly suggest that sincere efforts has been made by the Court to ascertain whether the alleged will Ex.PW3/A is executed by testator with free and sound disposing mind or not. Since in the specific case, the appellant/defendant had raised plea that will Ex.PW3/A is forged and fictitious document surrounded by suspicious circumstances, it was incumbent upon this Court to examine the material available on record to reach just and fair conclusion that the will Ex.PW3/A is validly executed document. Hence, the judgment relied upon by the respondents cannot be of any help in the present case. 66. Consequently, in view of the aforesaid discussion as well as law discussed hereinabove passed by the Hon’ble Apex Court as well as High Courts, I have no hesitation to conclude that the facts and circumstances of the present case clearly suggest that will Ex.PW3/A is forged and fictitious document. The plaintiffs have failed to dispel the notion that will is not shrouded by suspicious circumstances, rather evidence available on record suggest that the same is a result of fraud and cannot be relied upon. To the contrary, defendants have successfully proved on record that the will Ex.PW3/A is shrouded by suspicious circumstances, which has persuaded this court to declare that will Ex.PW3/A is null and void and cannot be given effect to being forged and fictitious document. Accordingly, the judgment and decree passed by both the Courts below are quashed and set-aside. The appeal is accordingly allowed.