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2019 DIGILAW 1375 (HP)

Sunita Devi v. Ramesh Kumar

2019-09-12

CHANDER BHUSAN BAROWALIA

body2019
JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal has been maintained by the appellant, who was the plaintiff before the learned trial Court (hereinafter to be called as "the plaintiff"), laying challenge to the judgment and decree, dated 09.04.2007, passed by learned Additional District Judge, Solan, H.P., Camp at Nalagarh, in Civil Appeal No. 9-NL/13 of 2006, whereby the judgment and decree, dated 25.10.2005, passed by learned Civil Judge (Sr. Div.), Nalagarh, District Solan, H.P, in Civil Suit No. 185/1 of 2001 was affirmed, wherein suit of the plaintiff was dismissed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal are that the plaintiff filed a suit against respondent No. 1, Kartaro (whose name now stands deleted) and Maya Devi, since deceased (hereinafter to be called as "the defendants"), seeking declaration that the plaintiff is owner-in-possession of the land measuring 2 bighas and 4 biswas, bearing Khasra No. 617/56, comprised in Khewat/Khatauni No. 89/98, H.B. No. 161, situated in Village Sanerh, Pargana and Tehsil Nalagarh, District Solan, H.P. (hereinafter to be called as "suit land") and the defendants have no right, title or interest in the same, with a consequential relief of restraining the defendants permanently from interfering or alienating the suit land. The case of the plaintiff was that defendant No. 2 was married with Sant Ram and plaintiff was born out of the said wedlock. Defendant No. 2 and plaintiff instituted Civil Suit No. 49/1 of 1995 on 09.02.1995 in the Court of Sub-Judge Nalagarh, claiming themselves to be daughter and wife of Sant Ram for maintenance, which was compromised on 18.05.1996 in the Lok Adalat, wherein Sant Ram admitted the plaintiff to be owner-in-possession of 20/44 share out of three suit land and defendant No. 2 relinquished her claim in the suit land and she also admitted that she has got re-married with Ram Asra and as such, defendant No. 2 is not the wife/widow of late Sh. Sant Ram. As per the plaintiff, Sant Ram died on 20.06.2001 intestate and defendant No. 1 is sister of the deceased, therefore, the plaintiff being the only legal heir of the deceased Sant Ram has inherited 24/44 share out of the suit land and as such, she is absolute owner-in-possession of the suit land. Sant Ram. As per the plaintiff, Sant Ram died on 20.06.2001 intestate and defendant No. 1 is sister of the deceased, therefore, the plaintiff being the only legal heir of the deceased Sant Ram has inherited 24/44 share out of the suit land and as such, she is absolute owner-in-possession of the suit land. The defendants are strangers to the suit land, but they are threatening to forcibly dispossess the plaintiff from the suit land and they are also threatening to alienate the suit land, to which they have no right. 3. In written statement, it has been admitted that defendant No. 1 is sister of deceased Sant Ram and defendant No. 2 was earlier married to Sant Ram and thereafter she re-married Ram Asra. It has been further admitted that the plaintiff has instituted suit No. 49/1 of 1995 on 09.02.1995, which was compromised on 18.05.1996, wherein deceased Sant Ram admitted the plaintiff to be owner-in-possession of 20/44 share out of the suit land measuring 1 bigha. It has been denied that the plaintiff is sole owner-in-possession of the suit land after the death of Sant Ram and it has been also denied that defendant No. 1 is stranger to the suit land, but it has been stated that deceased Sant Ram was being looked after by defendant No. 1 during his life time, as defendant No. 2 has deserted the deceased more than 20 years back by contracting marriage with Ram Asra and as such the deceased has executed a Will of his property, i.e. share in the suit land, measuring 1 bigha and 4 biswas on 10.01.2001 and defendant No. 1 has also entered into possession of the suit land as co-sharer after the death of Sant Ram, who was real brother of defendant No. 1. The mutation regarding the Will has also been attested on 11.09.2001 and as such the plaintiff has no right, title or interest in the share of deceased Sant Ram in the suit land. 4. By filing replication, the contents of the plaint were reasserted. Further, it has been averred that the Will executed by the deceased is forged and fabricated document, which has been procured by defendant No. 1 in connivance with scribe and attesting witnesses and the said Will does not bear the thumb impression of the deceased. 4. By filing replication, the contents of the plaint were reasserted. Further, it has been averred that the Will executed by the deceased is forged and fabricated document, which has been procured by defendant No. 1 in connivance with scribe and attesting witnesses and the said Will does not bear the thumb impression of the deceased. It has been denied that defendant No. 1 has served the deceased during his life time. On the pleadings of the parties, the learned trial Court on 05.11.2001 framed the following issues for determination and adjudication: "1. Whether the plaintiff is owner-in-possession of the suit land? OPP 2. Whether the defendants are interfering with the suit land without any right, title or interest? OPP 3. Whether deceased Sant Ram had executed a Will in favour of defendant No. 1 on 10.02.2001 ? OPD 4. Whether the plaintiff is having no locus standi to file the present suit? OPD 5. Whether the plaintiff has concealed the material facts, if so, its effect? OPD 6. Relief." 5. After deciding issue No. 1 as partly yes, issue No. 3 in affirmative and issues No 2, 4 and 5 in negative, the suit of the plaintiff was dismissed. Subsequently, the plaintiff maintained an appeal before the learned first Appellate Court, which was also dismissed and the judgment and decree of learned trial Court was affirmed. Hence, the present regular second appeal, which was admitted for hearing on the following substantial questions of law: "1. Whether a Will set up in a case can be relied upon, when the same is shrouded with suspicious circumstances and the onus of proving the Will has not been discharged by the propounder of the Will? 2. Whether the impugned decree can be sustained especially in view of the failure of the Courts below to consider the qualifications/ accomplishments of an Expert, though the same are not stated in the testimony but contained in his report Ext. P-3? 3. Whether the impugned decree be sustained in view of the complete rejection of the report of the expert Ext. P-3 by the Courts below especially when the testimony of the scribe and attesting witnesses are contradictory, thus will having not been proved as per law? 6. Mr. P-3? 3. Whether the impugned decree be sustained in view of the complete rejection of the report of the expert Ext. P-3 by the Courts below especially when the testimony of the scribe and attesting witnesses are contradictory, thus will having not been proved as per law? 6. Mr. Suneet Goel, learned counsel for the appellant has argued that the judgments and decrees passed by learned Courts below are based upon surmises and conjectures and the learned Courts below have failed to take into consideration the evidence and not appreciated it in an appropriate manner and thus the judgments and decrees passed by learned Courts below deserve to be set aside. 7. On the other hand, Mr. Romesh Verma, learned counsel for respondent No. 1 has argued that the judgments and decrees passed by learned Courts below are in accordance with law and after appreciating the evidence, which has come on record correctly, as such, needs no interference. 8. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 9. Plaintiff Sunita, though appeared while leading affirmative evidence before the Court, but, she was declared incompetent witness vide order dated 21.08.2002. As far as the evidence of defendant No. 1 is concerned, she examined herself as DW-1, Ram Rakha, as DW-2, Nand Lal, scribe of Will, as DW-3 and Vijay Kumar, witness of the Will as DW-4. 10. From the statement of defendant No. 1 (Kartaro), it is clear that she is not witness to the execution of Will and she was not present even at the time of execution of Will. In her cross-examination, she has specifically stated that she has no knowledge as to when the Will was executed by deceased Sant Ram, but the Will was handed over to her by the deceased after its execution in his house, as it is she who used to look after the deceased, being sister and plaintiff or defendant No. 2 (mother of the plaintiff) never looked after the deceased, since defendant No. 2 has deserted the deceased and solemnized second marriage with one Ram Asra. 11. As far as the statements of DW-3, Nand Lal, who was scribe of the Will, is concerned, he has specifically stated that the Will, Ext. 11. As far as the statements of DW-3, Nand Lal, who was scribe of the Will, is concerned, he has specifically stated that the Will, Ext. D-1 has been written by him on 10.02.2001, at the instance of the deceased in presence of Garib Dass, Vijay Kumar and some other witnesses and contents of the Will were read over and explained to the deceased, who admitted the same to be correct and thereafter affixed his thumb impression upon the Will and he also signed the Will alongwith witnesses in presence of the testator. Though DW-3 was cross-examined at length on behalf of the plaintiff, however, nothing contrary could be elicited in his cross-examination. This witness has made it clear that at the time of execution of Will, the deceased was in sound state of mind and that he was called by witness Vijay Kumar for drafting the Will. He also deposed that the deceased affixed his thumb impression upon the Will, but since the thumb impression was not clear, as such, second thumb impression was affixed upon the Will by the deceased. He denied that the Will is a forged document. 12. Dw-4, Vijay Kumar, attesting witness of the Will, has deposed that on 10.02.2001, the deceased has got drafted a Will from Nand Lal in his presence, which was written by Nand Lal as per the instructions of the deceased and its contents were read over and explained to the deceased, who admitted the same to be correct and affixed his thumb impression upon the Will in his presence, as well as in the presence of other witnesses. He along with other witnesses also signed the Will in presence of the testator. In cross-examination, this witness has deposed that the Will was written at about 10/11 A.M. on 10.02.2001 by Nand Lal, who was called by him. He further deposed that the deceased has affixed two thumb impressions upon the Will and at the time of execution of Will, the deceased was in sound state of mind. 13. In the present case, the plaintiff could not be examined in the Court and her step father has appeared for her, however, the statement of her step father/Power of Attorney cannot be taken as the statement of the plaintiff. 13. In the present case, the plaintiff could not be examined in the Court and her step father has appeared for her, however, the statement of her step father/Power of Attorney cannot be taken as the statement of the plaintiff. Hon'ble Delhi High Court in Harbhajan Singh vs. Kuldeep Singh & Ors., (2017) 2 CivCC 805 (Delhi), has held 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: (i) Murugesam Pillai vs. Gnana Sambandha Pandara Sannadhi, (1917) AIR PC 6 (ii) Sardar Gurbaksh Singh vs. Gurdial Singh and Anr., (1927) AIR PC 230 (iii) Kirpa Singh vs. Ajaipal Singh and ors, (1930) AIR Lahore 1 (iv) Martand Pandh arinath Chaudhari vs. Radhabai Krishnarao Deshmukh, (1930) 32 BLR 924, (v) A. Raghavamma and Anr. vs. A. Chenchamma and Anr., AIR 1964 SC 136 (vi) Gulla Kharagjit Carpenter vs. Narsingh Nandkishore Rawat, (1970) AIR M.P. 225 (vii) Arjun Singh vs. Virender Nath and Anr, (1971) AIR Allahabad 29 (viii) Bhagwan Dass vs. Bhishan Chand and Ors., (1974) AIR(P&H) 7 (ix) Musauddin Ahmed vs. State of Assam, (2009) 3 CriCC 848 (S.C) : AIR 2010 SC 3813 (x) Khatri Hotels Pvt. Ltd and Anr. vs. UOI and Anr., (2012) 1 CivCC 332 (S.C) :2012 (1) Apex Court Judgments 204 (S.C) : 2011 (9) SCC 126 and (xi) Union of India vs. Ibrahim Uddin and Anr., (2012) 3 CivCC 577 (S.C) : 2012 (3) Apex Court Judgments 137 (S.C) : 2012 (8) SCC 148 . 14. vs. UOI and Anr., (2012) 1 CivCC 332 (S.C) :2012 (1) Apex Court Judgments 204 (S.C) : 2011 (9) SCC 126 and (xi) Union of India vs. Ibrahim Uddin and Anr., (2012) 3 CivCC 577 (S.C) : 2012 (3) Apex Court Judgments 137 (S.C) : 2012 (8) SCC 148 . 14. At the same point of time, the Will was executed by the testator in favour of his sister, as the plaintiff-appellant and her mother got the share in the property in proceedings for maintenance by way of compromise in the Court. From the evidence on record, it is clear that the testator was left by the mother of the plaintiff and she was living with Ram Asra and the plaintiff was also living with her mother and since the testator was being looked after by his sister, he executed the Will in her favour. Thus, it cannot be said that the Will was executed in suspicious circumstances and execution of Will in favour of Kartaro Devi cannot be held to be unnatural act of the deceased, so, substantial question of law No. 1 is answered accordingly. 15. Now coming to the statement of PW-2, B.R. Sharma and the report (Ext. P-3) submitted by him, wherein on the basis of comparison of thumb impression on the impugned Will with the admitted thumb impression of the deceased, he came to the conclusion that thumb mark upon the Will has been intentionally obliterated to hide the true identity of the print and the disputed thumb Mark Q1 and standard Mark A1 have not come from the thumb of the deceased. However, if the statement of PW-2 is considered, there is nothing to infer that he is qualified to be an expert in comparison of thumb impression, as nothing has been stated by him in his statement qua his qualification and course/training undergone by him. Though, this witness in his cross-examination, has stated that he has received the disputed thumb impression Mark Q1 upon the Will alongwith admitted thumb impression of the deceased A1 to A5 and he has compared the thumb impression Mark Q1 with the thumb impression A1 to A5 and came to the conclusion that the disputed thumb impression does not tally with the admitted thumb impression of the deceased, qua which he has issued report Ext. P3 alongwith scanned images of thumb impression Exts. P3 alongwith scanned images of thumb impression Exts. P4 and P5, however, the perusal of the report Ext. P3 and statement of this witness reveals that ink used in the second thumb impression upon the Will is much darker than the ink used to take original print and further that thumb impression put by the testator on the Will was not clear and second thumb impression was taken. It is also clear from report, Ext. P3 and statement of PW-2 that in the disputed thumb impression Q1, ridges characteristics were not available and he has also stated that comparison of two thumb impressions can be carried out only on the basis of ridges characteristics. 16. Consequently, in view of the fact that the ridges characteristics in the disputed thumb impression on the Will were not available, which is main basis for comparison of the disputed thumb impression with the admitted thumb impression, the statement and report of PW-2 that the admitted thumb impression and disputed thumb impression was not of the same person and observations made by him in his report that the thumb impression on the Will was intentionally obliterated to hide the true identity of the print, cannot be relied upon, because since the first thumb impression put by the deceased on the Will was not clear, he affixed his second thumb impression upon the first thumb impression. Therefore, the statement of PW-2 and report, Ext. P3 submitted by him, cannot be made basis for concluding that the impugned Will is a forged document and same cannot be held to be sufficient to rebut the overwhelming evidence adduced by the defendant regarding the execution of impugned Will, when there is nothing on record to establish that PW-2 is qualified to be an expert in comparison of thumb impression. Thus, substantial questions of law No. 2 and 3 are answered accordingly. 17. The net result of the above discussion is that the impugned judgments and decrees passed by learned Courts below are as per law and need no interference and the present appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, also stands dismissed. Thus, substantial questions of law No. 2 and 3 are answered accordingly. 17. The net result of the above discussion is that the impugned judgments and decrees passed by learned Courts below are as per law and need no interference and the present appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, also stands dismissed. JUDGMENT : Chander Bhusan Barowalia, J. The present regular second appeal has been maintained by the appellant, who was the plaintiff before the learned trial Court (hereinafter to be called as "the plaintiff"), laying challenge to the judgment and decree, dated 09.04.2007, passed by learned Additional District Judge, Solan, H.P., Camp at Nalagarh, in Civil Appeal No. 9-NL/13 of 2006, whereby the judgment and decree, dated 25.10.2005, passed by learned Civil Judge (Sr. Div.), Nalagarh, District Solan, H.P, in Civil Suit No. 185/1 of 2001 was affirmed, wherein suit of the plaintiff was dismissed. 2. Briefly, the facts, which are necessary for determination and adjudication of the present appeal are that the plaintiff filed a suit against respondent No. 1, Kartaro (whose name now stands deleted) and Maya Devi, since deceased (hereinafter to be called as "the defendants"), seeking declaration that the plaintiff is owner-in-possession of the land measuring 2 bighas and 4 biswas, bearing Khasra No. 617/56, comprised in Khewat/Khatauni No. 89/98, H.B. No. 161, situated in Village Sanerh, Pargana and Tehsil Nalagarh, District Solan, H.P. (hereinafter to be called as "suit land") and the defendants have no right, title or interest in the same, with a consequential relief of restraining the defendants permanently from interfering or alienating the suit land. The case of the plaintiff was that defendant No. 2 was married with Sant Ram and plaintiff was born out of the said wedlock. Defendant No. 2 and plaintiff instituted Civil Suit No. 49/1 of 1995 on 09.02.1995 in the Court of Sub-Judge Nalagarh, claiming themselves to be daughter and wife of Sant Ram for maintenance, which was compromised on 18.05.1996 in the Lok Adalat, wherein Sant Ram admitted the plaintiff to be owner-in-possession of 20/44 share out of three suit land and defendant No. 2 relinquished her claim in the suit land and she also admitted that she has got re-married with Ram Asra and as such, defendant No. 2 is not the wife/widow of late Sh. Sant Ram. Sant Ram. As per the plaintiff, Sant Ram died on 20.06.2001 intestate and defendant No. 1 is sister of the deceased, therefore, the plaintiff being the only legal heir of the deceased Sant Ram has inherited 24/44 share out of the suit land and as such, she is absolute owner-in-possession of the suit land. The defendants are strangers to the suit land, but they are threatening to forcibly dispossess the plaintiff from the suit land and they are also threatening to alienate the suit land, to which they have no right. 3. In written statement, it has been admitted that defendant No. 1 is sister of deceased Sant Ram and defendant No. 2 was earlier married to Sant Ram and thereafter she re-married Ram Asra. It has been further admitted that the plaintiff has instituted suit No. 49/1 of 1995 on 09.02.1995, which was compromised on 18.05.1996, wherein deceased Sant Ram admitted the plaintiff to be owner-in-possession of 20/44 share out of the suit land measuring 1 bigha. It has been denied that the plaintiff is sole owner-in-possession of the suit land after the death of Sant Ram and it has been also denied that defendant No. 1 is stranger to the suit land, but it has been stated that deceased Sant Ram was being looked after by defendant No. 1 during his life time, as defendant No. 2 has deserted the deceased more than 20 years back by contracting marriage with Ram Asra and as such the deceased has executed a Will of his property, i.e. share in the suit land, measuring 1 bigha and 4 biswas on 10.01.2001 and defendant No. 1 has also entered into possession of the suit land as co-sharer after the death of Sant Ram, who was real brother of defendant No. 1. The mutation regarding the Will has also been attested on 11.09.2001 and as such the plaintiff has no right, title or interest in the share of deceased Sant Ram in the suit land. 4. By filing replication, the contents of the plaint were reasserted. Further, it has been averred that the Will executed by the deceased is forged and fabricated document, which has been procured by defendant No. 1 in connivance with scribe and attesting witnesses and the said Will does not bear the thumb impression of the deceased. 4. By filing replication, the contents of the plaint were reasserted. Further, it has been averred that the Will executed by the deceased is forged and fabricated document, which has been procured by defendant No. 1 in connivance with scribe and attesting witnesses and the said Will does not bear the thumb impression of the deceased. It has been denied that defendant No. 1 has served the deceased during his life time. On the pleadings of the parties, the learned trial Court on 05.11.2001 framed the following issues for determination and adjudication: "1. Whether the plaintiff is owner-in-possession of the suit land? OPP 2. Whether the defendants are interfering with the suit land without any right, title or interest? OPP 3. Whether deceased Sant Ram had executed a Will in favour of defendant No. 1 on 10.02.2001 ? OPD 4. Whether the plaintiff is having no locus standi to file the present suit? OPD 5. Whether the plaintiff has concealed the material facts, if so, its effect? OPD 6. Relief." 5. After deciding issue No. 1 as partly yes, issue No. 3 in affirmative and issues No 2, 4 and 5 in negative, the suit of the plaintiff was dismissed. Subsequently, the plaintiff maintained an appeal before the learned first Appellate Court, which was also dismissed and the judgment and decree of learned trial Court was affirmed. Hence, the present regular second appeal, which was admitted for hearing on the following substantial questions of law: "1. Whether a Will set up in a case can be relied upon, when the same is shrouded with suspicious circumstances and the onus of proving the Will has not been discharged by the propounder of the Will? 2. Whether the impugned decree can be sustained especially in view of the failure of the Courts below to consider the qualifications/ accomplishments of an Expert, though the same are not stated in the testimony but contained in his report Ext. P-3? 3. Whether the impugned decree be sustained in view of the complete rejection of the report of the expert Ext. P-3 by the Courts below especially when the testimony of the scribe and attesting witnesses are contradictory, thus will having not been proved as per law? 6. Mr. P-3? 3. Whether the impugned decree be sustained in view of the complete rejection of the report of the expert Ext. P-3 by the Courts below especially when the testimony of the scribe and attesting witnesses are contradictory, thus will having not been proved as per law? 6. Mr. Suneet Goel, learned counsel for the appellant has argued that the judgments and decrees passed by learned Courts below are based upon surmises and conjectures and the learned Courts below have failed to take into consideration the evidence and not appreciated it in an appropriate manner and thus the judgments and decrees passed by learned Courts below deserve to be set aside. 7. On the other hand, Mr. Romesh Verma, learned counsel for respondent No. 1 has argued that the judgments and decrees passed by learned Courts below are in accordance with law and after appreciating the evidence, which has come on record correctly, as such, needs no interference. 8. In order to appreciate the rival contentions of the parties, I have gone through the record carefully. 9. Plaintiff Sunita, though appeared while leading affirmative evidence before the Court, but, she was declared incompetent witness vide order dated 21.08.2002. As far as the evidence of defendant No. 1 is concerned, she examined herself as DW-1, Ram Rakha, as DW-2, Nand Lal, scribe of Will, as DW-3 and Vijay Kumar, witness of the Will as DW-4. 10. From the statement of defendant No. 1 (Kartaro), it is clear that she is not witness to the execution of Will and she was not present even at the time of execution of Will. In her cross-examination, she has specifically stated that she has no knowledge as to when the Will was executed by deceased Sant Ram, but the Will was handed over to her by the deceased after its execution in his house, as it is she who used to look after the deceased, being sister and plaintiff or defendant No. 2 (mother of the plaintiff) never looked after the deceased, since defendant No. 2 has deserted the deceased and solemnized second marriage with one Ram Asra. 11. As far as the statements of DW-3, Nand Lal, who was scribe of the Will, is concerned, he has specifically stated that the Will, Ext. 11. As far as the statements of DW-3, Nand Lal, who was scribe of the Will, is concerned, he has specifically stated that the Will, Ext. D-1 has been written by him on 10.02.2001, at the instance of the deceased in presence of Garib Dass, Vijay Kumar and some other witnesses and contents of the Will were read over and explained to the deceased, who admitted the same to be correct and thereafter affixed his thumb impression upon the Will and he also signed the Will alongwith witnesses in presence of the testator. Though DW-3 was cross-examined at length on behalf of the plaintiff, however, nothing contrary could be elicited in his cross-examination. This witness has made it clear that at the time of execution of Will, the deceased was in sound state of mind and that he was called by witness Vijay Kumar for drafting the Will. He also deposed that the deceased affixed his thumb impression upon the Will, but since the thumb impression was not clear, as such, second thumb impression was affixed upon the Will by the deceased. He denied that the Will is a forged document. 12. Dw-4, Vijay Kumar, attesting witness of the Will, has deposed that on 10.02.2001, the deceased has got drafted a Will from Nand Lal in his presence, which was written by Nand Lal as per the instructions of the deceased and its contents were read over and explained to the deceased, who admitted the same to be correct and affixed his thumb impression upon the Will in his presence, as well as in the presence of other witnesses. He along with other witnesses also signed the Will in presence of the testator. In cross-examination, this witness has deposed that the Will was written at about 10/11 A.M. on 10.02.2001 by Nand Lal, who was called by him. He further deposed that the deceased has affixed two thumb impressions upon the Will and at the time of execution of Will, the deceased was in sound state of mind. 13. In the present case, the plaintiff could not be examined in the Court and her step father has appeared for her, however, the statement of her step father/Power of Attorney cannot be taken as the statement of the plaintiff. 13. In the present case, the plaintiff could not be examined in the Court and her step father has appeared for her, however, the statement of her step father/Power of Attorney cannot be taken as the statement of the plaintiff. Hon'ble Delhi High Court in Harbhajan Singh vs. Kuldeep Singh & Ors., (2017) 2 CivCC 805 (Delhi), has held 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: (i) Murugesam Pillai vs. Gnana Sambandha Pandara Sannadhi, (1917) AIR PC 6 (ii) Sardar Gurbaksh Singh vs. Gurdial Singh and Anr., (1927) AIR PC 230 (iii) Kirpa Singh vs. Ajaipal Singh and ors, (1930) AIR Lahore 1 (iv) Martand Pandh arinath Chaudhari vs. Radhabai Krishnarao Deshmukh, (1930) 32 BLR 924, (v) A. Raghavamma and Anr. vs. A. Chenchamma and Anr., AIR 1964 SC 136 (vi) Gulla Kharagjit Carpenter vs. Narsingh Nandkishore Rawat, (1970) AIR M.P. 225 (vii) Arjun Singh vs. Virender Nath and Anr, (1971) AIR Allahabad 29 (viii) Bhagwan Dass vs. Bhishan Chand and Ors., (1974) AIR(P&H) 7 (ix) Musauddin Ahmed vs. State of Assam, (2009) 3 CriCC 848 (S.C) : AIR 2010 SC 3813 (x) Khatri Hotels Pvt. Ltd and Anr. vs. UOI and Anr., (2012) 1 CivCC 332 (S.C) :2012 (1) Apex Court Judgments 204 (S.C) : 2011 (9) SCC 126 and (xi) Union of India vs. Ibrahim Uddin and Anr., (2012) 3 CivCC 577 (S.C) : 2012 (3) Apex Court Judgments 137 (S.C) : 2012 (8) SCC 148 . 14. vs. UOI and Anr., (2012) 1 CivCC 332 (S.C) :2012 (1) Apex Court Judgments 204 (S.C) : 2011 (9) SCC 126 and (xi) Union of India vs. Ibrahim Uddin and Anr., (2012) 3 CivCC 577 (S.C) : 2012 (3) Apex Court Judgments 137 (S.C) : 2012 (8) SCC 148 . 14. At the same point of time, the Will was executed by the testator in favour of his sister, as the plaintiff-appellant and her mother got the share in the property in proceedings for maintenance by way of compromise in the Court. From the evidence on record, it is clear that the testator was left by the mother of the plaintiff and she was living with Ram Asra and the plaintiff was also living with her mother and since the testator was being looked after by his sister, he executed the Will in her favour. Thus, it cannot be said that the Will was executed in suspicious circumstances and execution of Will in favour of Kartaro Devi cannot be held to be unnatural act of the deceased, so, substantial question of law No. 1 is answered accordingly. 15. Now coming to the statement of PW-2, B.R. Sharma and the report (Ext. P-3) submitted by him, wherein on the basis of comparison of thumb impression on the impugned Will with the admitted thumb impression of the deceased, he came to the conclusion that thumb mark upon the Will has been intentionally obliterated to hide the true identity of the print and the disputed thumb Mark Q1 and standard Mark A1 have not come from the thumb of the deceased. However, if the statement of PW-2 is considered, there is nothing to infer that he is qualified to be an expert in comparison of thumb impression, as nothing has been stated by him in his statement qua his qualification and course/training undergone by him. Though, this witness in his cross-examination, has stated that he has received the disputed thumb impression Mark Q1 upon the Will alongwith admitted thumb impression of the deceased A1 to A5 and he has compared the thumb impression Mark Q1 with the thumb impression A1 to A5 and came to the conclusion that the disputed thumb impression does not tally with the admitted thumb impression of the deceased, qua which he has issued report Ext. P3 alongwith scanned images of thumb impression Exts. P3 alongwith scanned images of thumb impression Exts. P4 and P5, however, the perusal of the report Ext. P3 and statement of this witness reveals that ink used in the second thumb impression upon the Will is much darker than the ink used to take original print and further that thumb impression put by the testator on the Will was not clear and second thumb impression was taken. It is also clear from report, Ext. P3 and statement of PW-2 that in the disputed thumb impression Q1, ridges characteristics were not available and he has also stated that comparison of two thumb impressions can be carried out only on the basis of ridges characteristics. 16. Consequently, in view of the fact that the ridges characteristics in the disputed thumb impression on the Will were not available, which is main basis for comparison of the disputed thumb impression with the admitted thumb impression, the statement and report of PW-2 that the admitted thumb impression and disputed thumb impression was not of the same person and observations made by him in his report that the thumb impression on the Will was intentionally obliterated to hide the true identity of the print, cannot be relied upon, because since the first thumb impression put by the deceased on the Will was not clear, he affixed his second thumb impression upon the first thumb impression. Therefore, the statement of PW-2 and report, Ext. P3 submitted by him, cannot be made basis for concluding that the impugned Will is a forged document and same cannot be held to be sufficient to rebut the overwhelming evidence adduced by the defendant regarding the execution of impugned Will, when there is nothing on record to establish that PW-2 is qualified to be an expert in comparison of thumb impression. Thus, substantial questions of law No. 2 and 3 are answered accordingly. 17. The net result of the above discussion is that the impugned judgments and decrees passed by learned Courts below are as per law and need no interference and the present appeal, which sans merits, deserves dismissal and is accordingly dismissed. Pending applications, if any, also stands dismissed.