Judgment : (Rajani Dubey, J.) 1. The instant appeal has been filed by the appellants challenging the judgment and decree dated 31.10.2019 passed by learned Additional District Judge, Bilaspur (C.G.) in Civil Suit No. 70-A/2017 whereby the learned trial Court dismissed the suit filed by the appellants for declaration of the title over the suit property and issuance of injunction. The parties to this appeal shall be referred herein as per their description before the learned trial Court. 2. There are no admitted facts in the present case. 3. The pleadings made in the plaint by the plaintiffs, are that the plaintiff brought a suit for declaration of her title over the suit property situated at Shivghat, Old Sarkanda, Bilaspur, Tahsil & District Bilaspur (CG) bearing Khasra No. 1102/14, area 4 decimal, in which house of six rooms is built. In Revenue records, the possession is continued in the favour of Sita Bai. Before 15.06.1995, Sita Bai was living in one of the said six rooms and remained were given for the rent. In all of the remaining five rooms, one room was occupied by plaintiff (Shantibai) who has been living as tenant and all other four tenants had vacated their tenanted premises and have shifted themselves. At present plaintiff is the person who is in sole possession of the entire disputed property. On 27.04.1994, Sita Bai executed a Will in front of two witnesses, in favour of respondent No.1 (Shambhu Gond), appointing him the successor of the disputed land. On 12.05.2016, a probate was issued by District Judge, Bilaspur (C.O.), relating the said Will dated 27.04.1994. On the basis of said probate certificate dated 12.05.2016, relating to Will dated 27.04.1994, an application for mutation was submitted by Shambhu Prasad in the Court of Additional Tahsildar, Bilaspur, which was allowed on 29.10.2018 and the name of Shambhu Prasad was mutated in place of Chaitu. Due to need of money on 09.01 1992, Sita Bai executed an agreement on stamp paper to sell the disputed property to plaintiff, in front of two witnesses, for consideration amount of Rs. 75,000/- and out of which Rs. 35,000/- was received by Sita Bai and rest was to be received at the time of the registration of the sale deed. 75,000/- and out of which Rs. 35,000/- was received by Sita Bai and rest was to be received at the time of the registration of the sale deed. But due to good relation between Sita Bai and plaintiff and also because plaintiff along with her family had looked after Sita Bai, supported her during illness, incurred the medical expenses and the last rites were also performed by the plaintiff and expenses of the same were also incurred by her, leaving the rest consideration amount, Sita Bai executed another Will dated 02.06.1995, in favour of plaintiff appointing her successor of the disputed land, in front of two witnesses. The defendant is illegally interrupting in possession of the plaintiff upon the disputed property and taking benefit of his name, is also trying to alienate the property. On the basis of above mentioned averments, the plaintiff has requested reliefs to declare her the owner of the disputed property and to declare the Will dated 27.04.1994 null and void on the basis of final will dated 02.06.1995 and issuance of injunction restraining the defendant to interfere in the disputed property by any mode. 4. Vide his written statement, the defendant No.1 denied the plaint's averments and pleaded that, no cause of action arose in the year 2017, the suit filed is barred by limitation and prejudicial hence is not maintainable and is barred under the principles of res-judicata. According to defendant No. 1, before the demise of Sita Bai, there were six tenants. At present plaintiff along with his son is living only in two rooms as tenant, and is not in possession of entire suit property. Defendant No. 1 is the son of sister of Sitabai. During her life time, Sitabai duly executed Will dated 27.04.1994, relating to which, probate dated 12.05.2016, has also been issued by the District Judge, Bilaspur (CG). The probate confirms the execution of said Will dated 27.04.1994, by Sitabai in favour of defendant No.1. Thus, the present suit is barred by principles of res-judicata. Name of the defendant No.1 has also been mutated in light of said Will dated 27.04.1994 and probate dated 12.05.2016. The alleged agreement to sell is forged and bogus. The averments relating to looking after Sitabai by plaintiff are false. Under the said circumstances the Will dated 02.06.1995, has no legal value and effect. Name of the defendant No.1 has also been mutated in light of said Will dated 27.04.1994 and probate dated 12.05.2016. The alleged agreement to sell is forged and bogus. The averments relating to looking after Sitabai by plaintiff are false. Under the said circumstances the Will dated 02.06.1995, has no legal value and effect. Otherwise, also the property of Gond caste cannot be transferred to persons not belonging to said caste. The probate once issued cannot be cancelled and thus cannot be questioned in this suit. Appropriate court fees have also not been paid. The suit be dismissed with cost of Rs. 1,00,000/-. 5. Learned trial Court on the basis of pleadings of the parties, framed issues; the parties led their evidence and thereafter, the learned trial Court dismissed the suit of the plaintiffs vide order dated 31.10.2019. Hence, this appeal has been filed by the plaintiffs. 6. Learned counsel for the appellants submits that the impugned judgment and decree are bad on facts as well as law hence, are not sustainable and liable to be set aside. The trial Court overlooked the very basic principle of civil jurisprudence while allowing the suit of the respondent No.1 and hence deserves to be set aside. The impugned judgment and decree are devoid of both reason and substance as none of the evidence and contentions made by the appellant is rebutted by the respondent either by cross examination or by producing any legally enforceable evidence. The learned trial Court failed in observing that the civil cases are governed by principles of preponderance of probability accordingly the facts are assessed as proved or not proved. The trial Court also failed in applying the principles that the pleadings without evidence and evidences without pleadings are of no use. The learned trial Court did not appreciate the oral and documentary evidence properly and by giving wrong finding passed the impugned judgment and decree which are not in accordance with law. The learned trial Court did not take the three cardinal principles, into considerations-1. Admissions are the best evidence 2. absence of specific denial infer in admission of the fact which has not been denied specifically 3. wherever the natural conduct or reaction of a person is missing and there is no justifiable explanation to the same, adverse inference must be drawn against that person or against the fact narrated by him. Admissions are the best evidence 2. absence of specific denial infer in admission of the fact which has not been denied specifically 3. wherever the natural conduct or reaction of a person is missing and there is no justifiable explanation to the same, adverse inference must be drawn against that person or against the fact narrated by him. The learned trial Court erred in ignoring the self contradictory facts narrated by the respondents in their pleadings and evidences. The learned trial Court erred by inferring that a Will in regard to which probate has been issued, become final and unchallengeable. The learned trial Court erred in giving the conclusive and final effect to the probated Will, that to without appreciating the geniuses of the subsequent Will executed by Sita Bai in favour of the appellant. The learned trial Court failed in appreciating the genuine and bonafide reasons shown by the appellant regarding non submission of the previous Will and non averment in regard to its existence. The learned trial Court failed to appreciate that the rider that property of a scheduled tribe cannot be transfer to a non tribe person is not applicable in case of execution of Will. The learned trial Court has wrongly inferred the conclusion against the appellant. The appellant has properly established the execution of subsequent Will in her favour and there was nothing on record to disbelieve its existence and genuine execution. The trial Court erred in arriving at the conclusion that the subsequent Will appears suspicious, only by observing the conduct of the appellant, without considering subsequent Will on its own merits. Therefore, the impugned judgment and decree are liable to be set aside. Reliance has been placed on the decision of Hon’ble Supreme Court in the matter of Uma Devi Nambiar and others Vs. T.C. Sidhan (dead); (2004) 2 SCC 321 . 7. On the other hand, learned counsel for the respondents supporting the impugned judgment submits that the learned trial Court minutely appreciated oral and documentary evidence and rightly passed the impugned judgment and decree which are well merited and do not call for any interference by this Court. 8. Heard counsel for the parties and perused the material placed on record. 9. 8. Heard counsel for the parties and perused the material placed on record. 9. It is not disputed before the learned trial Court that the deceased Sita Bai was owner of the disputed property i.e. 6 room house bearing Khasra No. 1102/14, measuring Rakba 4 decimal and also she was recorded owner of the said property. Sita Bai used to live in one room of the suit property till her death i.e. 15.06.1995. 10. Learned trial Court framed 8 issues on the basis of the pleadings of the parties and out of which, the relevant issues are as under:- 11.As per the plaintiff/appellant, Shantibai executed a Will in favour of the defendant No.1/respondent No.1 – Shambhu Prasad Gond on 27.04.1994 and in this regard, a probate was issued on 12.05.2016 by District Judge, Bilaspur and defendant No. 1/respondent No.1- Shambhu Prasad Gond filed application before the Tehsildar for mutation on the basis of that probate and before that Sita Bai executed an agreement dated 09.01.1992 with the plaintiff and received Rs. 35,000/- and also after some time Sita Bail executed a Will on 02.06.1995 in favour of the plaintiff. As the said Will dated 02.06.1995 executed in favour of the plaintiff, was the last Will of the deceased Sita Bai, all the earlier Wills executed have become void. The said document was missing so she could not file this Will in probate proceeding and she found the said agreement and will during the Diwali cleaning in October 2017, on the basis of which, this suit has been filed against the respondents. 12. In her examination-in-chief, Shantibai (A.W.-1) stated that in support of her plaint, she filed agreement (Ex.P/1) and Will dated 02.06.1995 (Ex.P/2). In cross-examination, she admitted that she did not read the agreement (Ex.P/1). She also admitted that her name was not mentioned in Ex.P/1. 13. Rajkumar Tiwari (A.W.-2) stated that Sita Bai told him regarding selling her said house and land to Shantibai. On 09.01.1992, she had made an agreement to sell her house to Shantibai for consideration of Rs.75,000/- and had received Rs.35,000/-. She executed a will dated 02.06.1995 before the two witnesses namely Prashant Mude and Harprasad Parihar. In cross-examination, he admitted that the date was not mentioned below his signature in Ex.P/2. He further admitted that there is no date mentioned below the Will (Ex.P/2) on which the thumb impression is there. She executed a will dated 02.06.1995 before the two witnesses namely Prashant Mude and Harprasad Parihar. In cross-examination, he admitted that the date was not mentioned below his signature in Ex.P/2. He further admitted that there is no date mentioned below the Will (Ex.P/2) on which the thumb impression is there. He also admitted that there is overwriting in the age of Sitabai in the Will (Ex.P/2). 14. Harprasad (P.W.-2) stated that Sitabai executed the Will in favour of Shantibai before him and he admitted his signature on Ex.P/2 and Ex.P/1 as witness No.2 from C to C part and on Ex.P/1 from B to B part. In cross-examination, he admitted that Sitabai is an illiterate lady. He further stated that he did not know the Khasra number of the land in respect of which the sale deed was written. In the document (Ex.P/1), the name of the person who put the thumb impression, date, date of signature of witnesses, name of the author, were not mentioned. 15. Defendant- Shambhu Prasad Gond (N.A.W.-1) filed the order dated 29.10.2018 (Ex.D/1) passed by Tehsildar, computerized B-1 Khasra and map related to the suit land as Ex.D/2 and D/3, copy of Khasra and B-01 of the year 2018-19 of the disputed land and copy of order dated19.09.2017 passed by this High Court in FA No. 80/2016. 16. It is not disputed in this case that the probate was issued by District Judge, Bilaspur on the basis of previous Will dated 27.04.1994. It is clearly mentioned in the order dated 29.10.2018 passed by the Tehsildar in Revenue Case No. 335/?? -6/16-17 (Ex.D/1) that order was passed on the basis of probate case No. 58/2000 {Shabhu Prasad Vs. General Public} order dated 12.05.2016 and probate certificate dated 27.06.2016. 17. Plaintiff/appellant filed agreement (Ex.P/1) and Will (Ex.P/2) dated 02.06.1995 and as per the plaintiff, this Will was executed before two witnesses namely Prashant Mude and Harprasad Parihar. Plaintiff examined Rajkumar Tiwari (A.W.-2) and Harprasad (A.W.-3) but both the witnesses did not state that Sitabai put thumb impression before them and the said thumb impression was attested by them. It is also clear from Ex.P/2 that above thumb impression was written as:- 18. In his cross-examination, Harprasad (A.W.-3) admitted that the name of Sitabai was not written anywhere after the thumb impression on the agreement (Ex.P/1). 19. It is also clear from Ex.P/2 that above thumb impression was written as:- 18. In his cross-examination, Harprasad (A.W.-3) admitted that the name of Sitabai was not written anywhere after the thumb impression on the agreement (Ex.P/1). 19. It has been held by Hon’ble Apex Court in the matter of Meena Pradhan & Ors. Vs. Kamla Pradhan & Anr. reported in ( 2023) 9 SCC 734 in paras 10 and 11 as under:- “10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma , 1959 Supp (1) SCR 426 (3-Judge Bench). Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3-Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 (2-Judge Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3-Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will: i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him: ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. iii. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary: (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the the testator a personal acknowledgment of such signatures; (d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required. iv. iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined: v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence: viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the Initial onus on the propounder becomes heavier. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will, sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will. x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. xi. Suspicious circumstances must be 'real, germane and valid and not merely 'the fantasy of the doubting mind¹ Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, 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, etc. 11. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, 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, etc. 11. In short, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances.” 20.Thus , it is clear that the attesting witnesses did not prove this fact that Sitabai put thumb impression before them and it is also not clear from the evidence of Shantibai (A.W.-1) and Rajkumar Tiwari (A.W.-2) that no name was mentioned above and below the thumb impression. The learned trial Court also minutely appreciated all the documents of both the parties and found that the plaintiff has failed to prove Ex.P/1 and P/2 in her favour and she appeared before the District Judge in probate case bearing MJC No. 58/2000 as non-applicant No.2 and she herself pleaded that Sitabai executed Will in favour of Shambhu Prasad Gond and she did not plead about the agreement (Ex.P/1) and Will (Ex.P/2) in probate case, even if the said documents were lost, however she could have pleaded about the said documents and after some time, she constantly filed this case on this ground that she found both the documents during cleaning. Hence, the Will (Ex.P/2) appears suspicious. 21.Before the learned trial Court, appellant/plaintiff filed this case on the basis of agreement and Will but plaintiff has failed to prove this Will as genuine and subsequent Will. Learned trial Court rightly appreciated that both these documents are suspicious and statements of Rajkumar Tiwari (A.W.-2) and Harprasad (A.W.-3) are also not reliable with regard to execution of agreement and Will and arrived at the conclusion that the plaintiff has failed to prove all the issues in her favour. The findings recorded by the learned trial Court are based on proper appreciation of oral and documentary evidence and in accordance with law. Thus, we do not find any illegality or irregularity in the findings recorded by the learned trial Court. 22. The findings recorded by the learned trial Court are based on proper appreciation of oral and documentary evidence and in accordance with law. Thus, we do not find any illegality or irregularity in the findings recorded by the learned trial Court. 22. Accordingly, the appeal being without any substance is liable to be and is hereby dismissed . The judgments cited by the learned counsel for the appellant are all distinguishable from the facts and circumstances of the instant case and are of no help. 23. Let a decree be drawn up accordingly.