JUDGMENT : Chander Bhusan Barowalia, J. 1. By way of the present appeal, the appellants have challenged the judgment and decree passed by the Court of learned Additional District Judge, (Presiding Officer, Fast Track Court, Solan, District Solan, (H.P.), in Case No. 14-FT/13 of 2005/2004, dated 2.12.2005, affirming the judgment and decree passed by the learned Civil Judge (Junior Division), Solan, District Solan, (H.P.) in Civil Suit No. 28/1 of 2004/97, dated 30.6.2004. 2. Material facts necessary for adjudication of this Regular Second Appeal are that respondents/plaintiffs (hereinafter referred to as ‘plaintiffs’) maintained a suit for declaration against the original defendants/appellants (hereinafter referred to as ‘defendants’) alleging that suit land comprised in Khata/Khatauni No. 10/14, kitas 10, measuring 39-18 bighas to the extent of 1/8th share, situated in Mauza Annu, Tehsil and District Solan, (H.P.) (hereinafter referred to as the ‘suit land’) was owned and possessed by Gullu Ram son of Sant Ram, who was husband of plaintiff, namely, Sheela Devi. They have claimed that Gullu Ram, died on 10.11.1996, leaving behind the plaintiffs, as his heirs and successors. Therefore, on the basis of natural succession, they are entitled to inherit his estate. However, defendant (Smt. Kamla Devi), who is sister of deceased Gullu Ram, got the suit land mutated in her favour, vide mutation No. 97, dated 16.5.1997, on the basis of some Will alleged to have been executed by the deceased on 20.10.1997. According to the plaintiff, Gullu Ram, died intestate and he never executed any Will and therefore, mutation No. 97, dated 16.5.1997, is totally wrong, illegal, null and void and not binding upon the right, title or interest of the plaintiffs. 3. Defendant contested the suit by raising preliminary objections qua suppression of material facts and estoppel. On merits, the defendant has not disputed that plaintiff Smt. Sheela Devi, is widow and other plaintiff’s children of late Gullu Ram, but denied that they are entitled to succeed to his estate. As per the defendant, plaintiff No. 1, who was not having good relations with late Gullu Ram, deserted him 12-13 years ago and took away plaintiffs No. 2 and 3 alongwith her. During this period, defendant, who is real sister of Gullu Ram, had been serving him to the best of her capability and prior to his death Gullu Ram, had executed a legal and valid Will, dated 20.10.1996 in her favour. During this period, defendant, who is real sister of Gullu Ram, had been serving him to the best of her capability and prior to his death Gullu Ram, had executed a legal and valid Will, dated 20.10.1996 in her favour. The defendant has further pleaded that on the basis of Will, dated 20.10.1996, she has become owner-in-possession of the suit land and as such, mutation No. 97, dated 16.5.1997 is legal and valid. 4. The learned trial Court framed the following issues: “1. Whether the plaintiffs are owner-in-possession of the suit land to the extent of 1/8th share alongwith house thereon, as alleged? OPP 2. Whether the Will dated 20.10.1996 is totally wrong, illegal, null and void abinitio and not binding on the right, title or interest of the plaintiffs, as alleged? OPP 3. Whether the mutation No. 97 sanctioned on 16.5.1997 in favour of the defendant on the basis of Will dated 20.10.1996 is wrong, null and void as alleged? OPP 4. Whether the plaintiff is entitled for a decree of possession of the suit land? OPP 5. Whether the plaintiffs have not come to this Court with clean hands and have suppressed material facts, as alleged? OPD 6. Whether the plaintiffs are estopped by their acts, conducts, deeds and acquiescences from filing the present suit as alleged? OPD 7. Relief. 5. After deciding Issues No. 1 to 4 in affirmative and Issues No. 5 & 6 in negative, suit of the plaintiff was decreed. 6. Feeling aggrieved thereby the defendant maintained first appeal before the learned lower Appellate Court assailing the findings of learned Trial Court below being against the law and without appreciating the evidence and pleading of the parties to its true perspective. The learned lower Appellate Court affirmed the findings of the learned Trial Court and dismissed the appeal. Now, the appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 27.3.2006 on the following substantial question of law: “Whether the Courts below erred in invalidating the Will on the premise that the Will has been thumb marked?” 7. Mr. Now, the appellants have maintained the present Regular Second Appeal, which was admitted for hearing on 27.3.2006 on the following substantial question of law: “Whether the Courts below erred in invalidating the Will on the premise that the Will has been thumb marked?” 7. Mr. K.D. Sood, learned Senior Counsel appearing on behalf of the plaintiffs has argued that the learned Courts below have failed to take into consideration that the Will is always executed to disinherit the legal heirs only and the learned Courts below have also failed to take into consideration that the Will was proved to be a genuine document. On the other hand, Mr. O.C. Sharma, learned counsel appearing on behalf of the defendants, has vehemently argued that Will was not a genuine document. He has further argued that when Gullu Ram, used to sign, read, write and to maintain the accounts of his shop, as per the evidence, which has come on record, depicts that there was no occasion for Gullu Ram, to put his thumb impression. He has further argued that the Will is required to be set aside, as a forged document and has rightly been set aside by the learned Courts below. There is no substantial question of law involved in the present appeal and the present appeal deserves to be dismissed. 8. To appreciate the arguments of learned counsel appearing on behalf of the parties, I have gone through the entire record in detail. 9. In order to prove its case, plaintiff No. 1 Smt. Sheela Devi, while appearing in the witness box, as PW-1, has deposed that Gullu Ram, was expired leaving behind three children, namely, Pradeep Kumar, Champa and Naveda. Gullu Ram had died on the day of Diwali. Defendant Kamla Devi, was residing in Solan and she had not come to their house. She has further stated that Gullu Ram (her husband) had never discussed about the execution of Will. She has deposed that she had no knowledge about the execution of Will and she only came to know, after the mutation of the suit land. She has stated that defendant Kamla Devi, always obstructed her over the possession of suit land. In her cross-examination, she has stated that Gullu Ram, her husband, was running a cloth shop in Ganj Bazaar, Solan. She has stated that defendant Kamla Devi, always obstructed her over the possession of suit land. In her cross-examination, she has stated that Gullu Ram, her husband, was running a cloth shop in Ganj Bazaar, Solan. She has also produced copy of Pariwar register (Ex.P-3), maintained by the Gram Panchayat Shamror, which has been duly proved on record by PW-3 Hari Dass. PW-2 Joginder Singh, has deposed that Kamla Devi, (defendant) never visited the house of plaintiff. He has further stated that deceased Gullu Ram and Sheela Devi (plaintiff No. 1) never visited his house to keep food grains. He has further deposed that no Will was executed by Gullu Ram in his presence. DW-1 Varinder Kumar, General Power of Attorney of the defendant has deposed that his mother (Kamla Devi) met with an accident and she could not recover from the injuries completely. He has further stated that plaintiff Sheela Devi, was living with her uncle, as a wife, but there was no legal and valid marriage. In his cross-examination, he has stated that the testator himself used to maintain the accounts of his shop. DW-2 Tara Singh has deposed that he had scribed the Will, at the instance of deceased Gullu Ram and after scribing the same, he had read over its contents to the deceased testator, who after admitting its contents, put his thumb mark on the same, in the presence of attesting witnesses, who also signed and put their thumb impression in the presence of testator. DW-4 Chaman Lal, one of the attesting witness of the Will, has also testified about the execution of Will, in his presence by the deceased testator. Though, the propounder has examined the witnesses to prove the execution of Will, however the suspicious circumstances, which surrounded the Will and has come on record are required to be considered and appreciated. In the alleged Will, the testator has excluded his wife and children without any reason. The explanation given by the defendant is that plaintiff No. 1, was not a legally wedded wife of deceased testator and there was only live in relationship between them. Plaintiff No. 1 alongwith her children, deserted the testator 11-12 years prior to his death and their whereabouts were not known to the testator and during this period, he was being looked after by the defendant, being his real sister. Plaintiff No. 1 alongwith her children, deserted the testator 11-12 years prior to his death and their whereabouts were not known to the testator and during this period, he was being looked after by the defendant, being his real sister. However, the stand taken up by the defendant during evidence that plaintiff No. 1, was not the legally wedded wife of deceased testator is beyond her pleadings and as such, the same cannot be accepted. Even in the Will, which has been propounded by the defendant the status of plaintiff No. 1, as wife of the deceased testator has been admitted. In the Panchayat record, plaintiff No. 1 is recorded, as wife of the deceased testator and plaintiff No. 2 and 3, as his children. Therefore, the contention of the defendant that plaintiff No. 1, was not a legally wedded wife of the deceased testator cannot be accepted. So far as the allegations of desertion are concerned, it may be seen that the defendant has alleged that plaintiff No. 1 had deserted the deceased 11-12 years prior to his death. PW-1, Sheela Devi, has specifically denied these allegations while deposing in the witness box. She has produced copy of Pariwar register Ex.P-3, maintained by the Gram Panchayat, Shamror, which has been duly proved on record by PW-3 Hari Dass. Therefore, in view of the entries in the Pariwar register, it is proved on record that plaintiff No. 1 was living with the deceased testator in or about the year 1992. 10. It has also come on record that the testator was maintaining the accounts of his shop and running a cloth business in Solan town. In these circumstances, it cannot be expected that Gullu Ram, when executed the Will would have only put his thumb impression on the document. From the perusal of document Ex.D-2 (Will), even otherwise depicts that one of the attesting witness, who has put his thumb impression on the Will i.e. Ganesh, on the same day and at the same time, his name and address are written by a different ink and in different handwriting. Why another person has written the name and address of the witness, when the witness has put his thumb impression, also creates suspicion on the genuineness of the Will. 11. At the same point of time, defendant (Kamla Devi) herself has not appeared in the witness box to prove her case. Why another person has written the name and address of the witness, when the witness has put his thumb impression, also creates suspicion on the genuineness of the Will. 11. At the same point of time, defendant (Kamla Devi) herself has not appeared in the witness box to prove her case. The witness who appeared for the defendant has admitted that plaintiff No. 1 (Sheela Devi) is wife of deceased Gullu Ram and plaintiff No. 1 alongwith her children deserted Gullu Ram, 11-12 years prior to his death. The Panchayat record also makes it clear that plaintiff No. 1 (Sheela Devi) is recorded, as wife of deceased testator (Gullu Ram) and plaintiff No. 2 and 3, as his children. Gullu Ram, was a business man and was running a cloth business in Solan bazaar, so it cannot be said that he was not having knowledge with regard to the alleged Will to be registered. Further, it has not come on record that the testator used to put his thumb impression and even otherwise also, he was running a cloth shop in Solan bazaar, which makes it clear that he was maintaining the accounts record and should be knowing how to sign and write the document. This creates a doubt about the genuineness of the document. Further DW-2, Tara Singh, has not explained, why the name and address of Ganesh, who was the attesting witness of the Will, was written in different ink, which seems to be a different handwriting. 12. Hon’ble High Court of Himachal Pradesh rendered in Hira Lal vs. Maya Ram and others, decided on 2nd June, 2011, has held in the similar circumstances that the Will is a suspicious document. In another case 2017 (2) Civil Court Cases 805 (Delhi) titled Harbhajan Singh vs. Kuldeep Singh and Others, it has been held in para 15 of the judgment, as under: “There are a catena of decisions by the Privy Council, the Supreme Court and several High Courts, where it has been held that ordinarily, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and if such material evidence is withheld, the Court is entitled to draw an adverse inference under Section 114 (g) of the Evidence Act. It is also a settled legal position that when a party to the suit does not appear in the witness box and state his own case on oath and does not suffer himself to be cross-examined by the other side, a presumption shall arise that the case set up by him is not correct and this shall give rise to an adverse inference against him. (Refer: Murugesam Pillai vs. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6 , Sardar Gurbaksh Singh vs. Gurdial Singh and Another, AIR 1927 PC 230 , Kirpa Singh vs. Ajaipal Singh and Others, AIR 1930 Lah 1, Martand Pandharinath Chaudhari vs. Radhabai Krishnarao Deshmukh, 1930 (32) Bom LR 924, A. Raghavamma and Another vs. A. Chenchamma and Another, AIR 1964 SC 136 , Gulla Kharagjit Carpenter vs. Narsingh Nandkishore Rawat, AIR 1970 MP 225 , Arjun Singh vs. Virender Nath and Another, AIR 1971 All 29 , Bhagwan Dass vs. Bhishan Chand and Others, AIR 1974 P & H 7, Musauddin Ahmed vs. State of Assam, 2009 (3) Criminal Court Cases 848 (SC) : AIR 2010 SC 3813 , Khatri Hotels Pvt. Ltd and Another vs. UOI and Another, 2012 (1) Civil Court Cases 332 (SC) : 2012 (1) Apex Court Judgments 204 (SC) : 2011 (9) SCC 126 and Union of India vs. Ibrahim Uddin and Another, 2012 (3) Civil Court Cases 577 (SC) : 2012 (3) Apex Court Judgments 137 (SC) : 2012 (8) SCC 148 ).” In the present case, only the defendant, (Kamla Devi) who would have explained with regard to the strained relation of the plaintiff, Smt. Sheela Devi, as wife of Gullu Ram and her failure to appear in the Court, an adverse inference is required to be drawn against her, as the plaintiff was not having any occasion to cross-examine her with respect to the allegations, which she has leveled in the written statement. 13. As has been held by Hon’ble Apex Court in 2014 (2) Civil Court Cases 125 (SC) titled S. Kesari Hanuman Goud vs. Anjum Jehan and Others, it has been held in para-13 of the judgment as under: “13. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to “act” on behalf of the principal. It is a settled legal proposition that the power of attorney holder cannot depose in place of the principal. Provisions of Order III, Rules 1 and 2 CPC empower the holder of the power of attorney to “act” on behalf of the principal. The word “acts” employed therein is confined only to “acts” done by the power of attorney holder, in exercise of the power granted to him by virtue of the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power- of-attorney holder has preferred any “acts” in pursuance of the power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for acts done by the principal, and not by him. Similarly, he cannot depose for the principal in respect of a matter, as regards which, only the principal can have personal knowledge and in respect of which, the principal is entitled to be cross-examined. (See: Vidhyadhar vs. Manikrao and Another, 1999 (2) Civil Court Cases 91 (SC) : 1999 (1) Apex Court Journal 438 (SC) : AIR 1999 SC 1441 , Janki Vashdeo Bhojwani vs. Indusind Bank Ltd. 2005 (2) Civil Court Cases 324 (SC) : 2005 (2) SCC 217 , M/s Shankar Finance and Investment vs. State of A.P and Others, 2008 (3) Apex Court Judgments 003 (SC) : 2008 (3) Civil Court Cases 586 (SC) : 2008 (3) Criminal Court Cases 975 (SC) : AIR 2009 SC 422 and Man Kaur vs. Hartar Singh Sangha 2010 (4) Civil Court Cases 792 (SC) : 2010 (3) Apex Court Judgments 756 (SC) : 2010 (1) SCC 512 ).” 14. The net result of the discussion is that the judgments and decrees passed by the learned Courts below are just, reasoned and after appreciating the facts, which have come on record, to its true perspective and the alleged document, i.e. Will Ex.D-3, is correctly interpreted. The net result of the discussion is that the judgments and decrees passed by the learned Courts below are just, reasoned and after appreciating the facts, which have come on record, to its true perspective and the alleged document, i.e. Will Ex.D-3, is correctly interpreted. So, the substantial question of law, is decided accordingly holding that the learned Courts below have not erred in invalidating the Will, as there were many suspicious circumstances surrounding the Will, including that it was thumb marked document, when it has come on record that Gullu Ram, used to maintain the accounts of his cloth shop and it is expected that he might be knowing, how to sign the documents, so the in invalidating of the Will, as it was a thumb marked coupled with other suspicious circumstances, which has come on record, this Court finds that the learned Courts below have committed no illegality. 15. In view of what has been discussed hereinabove, the findings recorded by the learned trial Court while passing the judgment and decree in favour of the plaintiffs and against the defendant and affirmed by the learned lower Appellate Court, while dismissing the appeal of the defendant are just, reasoned and after appreciating the facts, which have come on record to its true perspective. The documents are correctly interpreted and thus, no interference is required by this Court. The appeal, which sans merits, deserves dismissal and is accordingly dismissed. However, in view of peculiar facts and circumstances of the case, the parties are left to bear their own costs. Pending applications, if any also stands disposed of.