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Judgment
Virender Singh, Judge
Initially, the present appeal has been filed by Shri Gopi Chand, who, during the pendency of the appeal, has expired. As such, the present appellants were ordered to be brought on record.
The present appeal has been filed under Section 100 of the Code of Civil Procedure (hereinafter referred to as ‘the CPC’), before this Court, against the judgment and decree, dated 29.11.2016, passed by the Court of learned Additional District Judge-I, Mandi, H.P. (Camp at Karsog), (hereinafter referred to as ‘the First Appellate Court’), in Civil Appeal No. 77 of 2016, titled as, ‘Gopi Chand versus Pitamber Lal & others’.
By way of judgment and decree, dated 29.11.2016, the learned First Appellate Court has dismissed the appeal of the appellant Gopi Chand (since deceased), which, he had filed against the judgment and decree, dated 30.8.2016, passed by the Court of learned Civil Judge (Jr. Division), Karsog, District Mandi, H.P. (hereinafter referred to as ‘the learned trial Court’), in Civil Suit No. 88 of 2014, titled as, ‘Gopi Chand versus Pitamber Lal & others’. By way of judgment dated 30.8.2016, the learned trial Court has dismissed the suit of appellant Gopi Chand (since deceased).
For the sake of convenience, parties to the lis, are hereinafter referred to, in the same manner, in which, they were referred to, by the learned trial Court.
Brief facts, leading to filing the present appeal, before this Court, as borne out from the record, may be summed up, as under:
Plaintiff Gopi Chand has filed the suit for declaration and perpetual injunction, against the defendants, on the ground, that his father Bardhu was having two sons and one daughter. After death of Bardhu, his estate was devolved upon the plaintiff, his sister Malti (proforma defendant) and brother Parshotam. Said Parshotam had expired issueless and was mentally sick and was not in a position to understand his welfare. After his death, his estate was also inherited by plaintiff and proforma defendant, in equal shares.
It is the further case of the plaintiff that defendants No. 1 to 3 had set up a Will, allegedly executed by Parshotam on 28.11.2000, in their favour, whereas, according to the plaintiff, defendants never looked after deceased Parshotam, nor, Parshotam was interested to bequeath his property in their favour, on the ground of strained relations.
Wife of Parshotam was kidnapped and enticed away by the grand-father of the defendants. The defendants, taking undue advantage of the simplicity and mental illness of deceased Parshotam, managed to get the Will executed, in their favour, by misrepresentation of facts and playing fraud.
After death of Parshotam, plaintiff came into possession of the immovable property of the deceased, however, in the month of September, 2014, defendants had started interfering in the land left by the deceased and disclosed about the factum of execution of the Will, in their favour, by Sh. Parshotam.
On the basis of above facts, plaintiff has sought the following reliefs:
“(i)the said alleged Will No.186 dated 28-11-2000, is wrong, illegal, null and void and which has no binding effect upon the right of the plaintiff over the inheritance right of the plaintiff in the estate of Late Sh. Parshotam deceased.
(ii) As a consequential relief, the defendants may be restrained from giving effect upon the said Will in revenue record and further they may be restrained from causing any interference in the estate of Late Sh. Parshotam in any manner, whatsoever.
(iii)And a decree to this effect together with cost of the suit may kindly be passed in favour of the plaintiff and against the defendants and / or any other relief to which the plaintiff may be found entitled to in the circumstances of the case under consideration be granted and justice be done.”
When, put to notice, the suit has been contested by defendants No. 1 to 3, by filing written statement, in which, they have taken preliminary objections that the suit is not maintainable; plaintiff has no cause of action; the suit is not properly valued, for the purpose of Court fee and jurisdiction; and the suit is time barred.
Factual position, with regard to relationship of the plaintiff and Parshotam, has not been disputed, however, it has been controverted that Parshotam was not mentally sound and was not having a sound disposing state of mind, till his death. The defendants have further pleaded that family of the defendants used to look after him, during his lifetime and due to his love and affection, deceased Parshotam executed Will No. 186, dated 28.11.2000, in favour of defendants No. 1 to 3 with his free will and consent.
It is the further case of the defendants that plaintiff Gopi Chand used to quarrel with deceased Parshotam, over the land dispute, asserting the fact that whole of land belongs to him and he has also beaten up Parshotam, on 12.9.2000. The plaintiff and his son are stated to have given sickle and stick blows to Parshotam, resultant to which, a criminal case under Sections 341, 326, 325, 324, 323 read with Section 34 of the IPC was registered against the plaintiff and his son. Supporting the Will, executed by Parshotam, in their favour, defendants have pleaded that they have looked after Parshotam, during his life time.
On the basis of above, the defendants have prayed that the suit may be dismissed.
From the pleadings of the parties, following issues were framed by the learned trial Court, vide order dated 26.5.2015:
“i.Whether the plaintiff is entitled to the decree for declaration to the effect that Will No. 186, dated 28.11.2000 is illegal and liable to be declared null and void, as prayed? OPP
ii) Whether the Will No. 186, dated 28.11.2000 is result of fraud, undue influence and misrepresentation, as alleged? OPP
iii) Whether the plaintiff is entitled to the decree for consequential relief of permanent prohibitory injunction, as prayed? OPP
iv) Whether suit is not maintainable, as alleged? OPD v) Whether the suit is time barred, as alleged? OPD
vi) Whether the plaintiff has no cause of action? OPD vii) Whether the suit has not been properly valued for the purpose of court fee and jurisdiction? OPD
viii) Relief.”
Thereafter, the parties to the lis, were directed to adduce the evidence.
After closure of evidence, the learned trial Court, vide judgment and decree dated 30.8.2016, has dismissed the suit of the plaintiff.
Aggrieved from the said judgment, the plaintiff has unsuccessfully assailed the said judgment and decree, before the learned First Appellate Court, as, the appeal preferred by appellant Gopi Chand was dismissed by the learned First Appellate Court, vide judgment and decree, dated 29.11.2016.
Feeling aggrieved from the said judgment and decree, dated 29.11.2016, the present appeal has been preferred, before this Court.
The judgment and decree, passed by the learned trial Court, as upheld by the learned First Appellate Court, has been assailed, before this Court, on the ground, that the judgments and decrees, passed by both the Courts below are against law and facts.
The findings of the learned Courts below have further been assailed, on the ground, that both the Courts below have failed to consider the fact that defendants have miserably failed to prove the execution and attestation of the alleged Will, by leading cogent, reliable, trustworthy and inspiring evidence, as they have not examined the identifier, scriber and another attesting witness of the Will. There is no evidence on record to demonstrate that the defendants have ever looked after Parshotam, during his lifetime. The defendant could not dispel the suspicious circumstances, in the present case.
The findings of the Courts below have further been assailed by contending that both the Courts below have wrongly taken the factum of registration of the Will, as guarantee of its genuineness.
On the basis of above facts, Mr. Jia Lal, Advocate vice Mr. G.R. Palsra, Advocate has prayed that the appeal may kindly be accepted by setting aside the judgment and decree, passed by the learned trial Court, as upheld by the learned First Appellate Court, and the suit of the plaintiff may kindly be decreed, as prayed for.
Per contra, Ms. Shikha Chauhan, Advocate, appearing for defendants No. 1 to 3 has supported the judgment and decree, passed by the learned trial Court, as upheld by the learned First Appellate Court, on the ground that both the Courts below have rightly considered the evidence, so adduced, and as such, the findings of both the Courts below, do not require any interference, by this Court.
The appeal has been admitted by this Court, on 21.6.2017, on the following substantial questions of law:
“1.Whether a chance witness of the Will Ex-DW-2/B dated 28.11.2000 is a suspicious circumstance of the alleged Will?
2.Whether both the Courts below have misread, misinterpreted & misconstrued the oral and documentary evidence of the parties especially the statement of PW-1 Gopi Chand, statement of DW-2 Devi Singh and document Ex-DW-2/B, Will dated 28.11.2000 which has materially prejudiced the case of the appellant?
Whether the respondents/defendants have failed to remove/dispel the suspicious circumstances of the Will Ex-DW-2/B by leading inspiring evidence?"
In order to decide the aforesaid substantial questions of law, the evidence, so adduced by the parties, before the learned trial Court is required to be discussed.
Since, the plaintiff, in the present case, is seeking declaration that the Will No. 186, dated 28.11.2000 is illegal and liable to be declared as null and void, as such, in order to prove the said fact, plaintiff himself stepped into the witness box as PW-1 and deposed that Bardhu Ram was his father, who was having two sons, plaintiff and Parshottam and one daughter Maltu Devi. Parshottam died issueless. Wife of Parshottam had been enticed away by Atma Ram, grand father of the defendants. Atma Ram was son of Hira Nand. Bardhu and Hira Nand were brothers. When, the defendants had started interfering in the suit land, this witness has objected to the same. Thereafter, the defendants have set up the Will of Parshottam, whereas, according to this witness, his brother Parshottam was not having disposing state of mind. Said Parshottam either resided with this witness or with his sister.
In the cross-examination, this witness has admitted his relationship with defendants No. 1 to 3, being his grand sons in relation. He has denied the suggestions that Parshottam used to reside with the defendants. He has denied that his relations with his brother were not cordial, as he wanted to usurp his property, as he was issueless. He has further denied the suggestion that he and his sons had attacked his brother with the stick and sickle. However, he has admitted that on account of this incident, he and his sons faced the trial, under Sections 341, 326, 325, 324, 323 read with Section 34 IPC. He has denied that due to this incident, his brother was residing with defendants No. 1 to 3, who used to look after him.
To rebut this evidence, defendant No.2- Bhupinder stepped into the witness box as DW-1, who has filed his affidavit Ext. DW1/A, in which, he has asserted the fact that Parshottam was issueless. According to this witness, the plaintiff was having dispute with his brother Parshottam regarding the suit land. The plaintiff tried to usurp his land, in the year 2000. Plaintiff and his sons had attacked Parshottam and injured him. Thereafter, the matter was reported to the Police and plaintiff and his sons were facing trial. Thereafter, Parshottam had executed a Will, qua the suit land, in favour of defendants.
As per this witness, Parshottam used to reside with defendants about 8-10 years, prior to date of execution of the Will. Parshottam is stated to be having a sound disposing state of mind and after the death of Parshottam, mutation of the suit land has been sanctioned in their favour. The plaintiff is stated to be the grand father of defendants, as Atma Ram. Parshotam and plaintiff were brothers. He has feigned his ignorance about the fact that Atma Ram had enticed away the wife of Parshottam. He has feigned his ignorance as to who had accompanied Parshotam, at the time of execution of the Will. He has also feigned his ignorance that Parshottam had sustained injuries, when he was allegedly hit by motorcycle of this witness.
DW-2 Devi Singh has deposed that in the year 2000, he had gone to Tehsil Office, when, he was present with the Document Writer Ami Chand Verma, then, Parshottam alongwith 1-2 persons, was also present there. Parshottam had expressed his intention to execute the Will. Thereafter, Ami Chand Verma scribed the Will, as per the direction of Parshottam. After scribing the Will, the same was read over to the persons, present there. Thereafter, Parshotam had put signatures over it and this witness and Parshottam had also put their signatures. Prithvi Singh has also put his signatures as identifier. Thereafter, they had gone to Tehsil office alongwith Prithvi Singh. This witness has gone to Tehsil office, in connection with his personal work. This witness had gone to the seat of Ami Chand Verma, Document Writer. Parshotam and Darshan were also present there.
This witness has also admitted that testator Parshottam was not known to him. However, his age was about 60-62 years at that time. He has admitted that he could not say whether the person, who has signed the Will, was Parshotam or not. This witness did not know the family members of Parshotam. Parshotam was identified by Prithvi Singh. This witness has identified the signatures of Prithvi Singh on the document. The Will was executed about 15-16 years ago from the date, when, he appeared in the witness box. Parshotam is stated to be the resident of a different Panchayat. Village of Parshotam is stated to be at a distance of 40-50 km from the village of this witness. He has feigned his ignorance about the fact that Gopi Chand was brother of Parshotam. The Will is stated to have been executed at about 11:00 a.m. He could not remember the name of Tehsildar, who had attested the same. Apart from the Will, no other document was executed on that date. Purshotam was not known to him, as such, according to him, he could not say whether the person, who executed the Will, was Purshotam or not. He is a summoned witness.
Apart from this, the defendants have placed on record the documentary evidence, Ext. DW1/C, the copy of judgment of acquittal, passed by the Court of learned Sub-Divisional Judicial Magistrate, Karsog, District Mandi, H.P., in Police Challan No. 271 of 2000, titled as, ‘State versus Gopi Chand & anr.’ DW1/B is the Will, executed by Parshottam.
This is the entire evidence, adduced by the parties before the learned trial Court.
The unsuccessful plaintiff is before this Court, by way of present Regular Second Appeal, under Section 100 of the CPC. The scope of interference by the Court, under Section 100 of the CPC has elaborately been discussed by the Hon’ble Supreme Court in Hero Vinoth (minor) versus Seshammal, reported in (2006) 5 Supreme Court Cases 545. Relevant paragraph-18 of the judgment is reproduced as under:
“18.It has been noted time and again that without insisting for the statement of such a substantial question of law in the memorandum of appeal and formulating the same at the time of admission, the High Courts have been issuing notices and generally deciding the second appeals without adhering to the procedure prescribed under Section 100 of the CPC. It has further been found in a number of cases that no efforts are made to distinguish between a question of law and a substantial question of law. In exercise of the powers under this section in several cases, the findings of fact of the first appellate court are found to have been disturbed. It has to be kept in mind that the right of appeal is neither a natural nor an inherent right attached to the litigation. Being a substantive statutory right, it has to be regulated in accordance with law in force at the relevant time. The conditions mentioned in the section must be strictly fulfilled before a second appeal can be maintained and no court has the power to add or to enlarge those grounds. The second appeal cannot be decided on merely equitable grounds. The concurrent findings of facts will not be disturbed by the High Court in exercise of the powers under this section. Further, a substantial question of law has to be distinguished from a substantial question of fact. This Court in Sir Chunilal V. Mehta and Sons Ltd. v. Century Spg. & Mfg. Co. Ltd. (AIR 1962 SC 1314) held that :
"The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."
Similar view has been taken in a case titled as ‘Annamalai versus Vasanthi and others’, 2025 INSC 1267. Relevant paragraph-16 of the judgment is reproduced as under:
“16.Whether D-1 and D-2 were able to discharge the aforesaid burden is a question of fact which had to be determined by a court of fact after appreciating the evidence available on record. Under CPC, a first appellate court is the final court of fact. No doubt, a second appellate court exercising power(s) under Section 100 CPC can interfere with a finding of fact on limited grounds, such as, (a) where the finding is based on inadmissible evidence; (b) where it is in ignorance of relevant admissible evidence; (c) where it is based on misreading of evidence; and (d) where it is perverse. But that is not the case here.”
The term “perverse” has duly been elaborated by the Hon’ble Supreme Court in ‘Arulvelu and Another Versus State represented by the Public Prosecutor and Another’, reported in (2009) 10 Supreme Court Cases 206. Relevant paragraphs 22 to 30 of the said judgment are reproduced, as under:-
“22.We have carefully perused the judgment of the trial court and the impugned judgment of the High Court. The trial court very minutely examined the entire evidence and all documents and exhibits on record. The trial court's analysis of evidence also seems to be correct. The trial court has not deviated from the normal norms or methods of evaluation of the evidence. By no stretch of imagination, we can hold that the judgment of the trial court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently the judgment of the trial court is perverse.
23.We also fail to arrive at the conclusion that the discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal.
The expression `perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad
(Dead) through LRs. & Others, this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd. & Others, the Court observed that `perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. Collector of Central Excise, Cochin, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
In M. S. Narayanagouda v. Girijamma & Another, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
The expression "perverse" has been defined by various dictionaries in the following manner:
Oxford Advanced Learner's Dictionary of Current English Sixth Edition Perverse: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
Longman Dictionary of Contemporary English – International Edition Perverse: Deliberately departing from what is normal and reasonable.
The New Oxford Dictionary of English - 1998 Edition Perverse: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition)
Perverse: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition Perverse: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
In Shailendra Pratap & Another v. State of U.P., the Court observed thus:
… We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
In Kuldeep Singh v. The Commissioner of Police & Others, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:
Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992, this Court observed as under:
In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
The term “perverse” has duly been elaborated by the Hon’ble Supreme Court in ‘Arulvelu and Another Versus State represented by the Public Prosecutor and Another’, reported in (2009) 10 Supreme Court Cases 206. Relevant paragraphs 22 to 30 of the said judgment are reproduced, as under:-
“22.We have carefully perused the judgment of the trial court and the impugned judgment of the High Court. The trial court very minutely examined the entire evidence and all documents and exhibits on record. The trial court's analysis of evidence also seems to be correct. The trial court has not deviated from the normal norms or methods of evaluation of the evidence. By no stretch of imagination, we can hold that the judgment of the trial court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently the judgment of the trial court is perverse.
23.We also fail to arrive at the conclusion that the discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal.
The expression `perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad (Dead) through LRs. & Others, this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd. & Others, the Court observed that `perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. Collector of Central Excise, Cochin, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
In M. S. Narayanagouda v. Girijamma & Another, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
The expression "perverse" has been defined by various dictionaries in the following manner:
Oxford Advanced Learner's Dictionary of Current English Sixth Edition Perverse: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
Longman Dictionary of Contemporary English – International Edition Perverse: Deliberately departing from what is normal and reasonable.
The New Oxford Dictionary of English - 1998 Edition Perverse: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition)
Perverse: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition Perverse: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
In Shailendra Pratap & Another v. State of U.P., the Court observed thus:
… We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
In Kuldeep Singh v. The Commissioner of Police & Others, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:
Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
The meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992, this Court observed as under:
In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed.”
Similar view has again been taken by the Hon’ble Supreme Court in ‘S.R. Tewari Versus Union of India and Another’, reported in (2013) 6 Supreme Court Cases 602. Relevant paragraph 30 of the said judgment is reproduced, as under:-
“30.The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, Kuldeep Singh v. Commissioner of Police & Ors., Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary and Babu v. State of Kerala).”
Being guided by the above decisions, now, this Court would proceed further to determine whether the substantial questions of law, as framed by this Court, can be answered in favour of plaintiff/appellant.
The plaintiff, in the present case, has sought declaration, in his favour, qua the suit land challenging the Will, executed by Shri Parshotam, in favour of defendants No. 1 to 3.
At the outset, while deciding the question of validity of a Will, it is the solemn duty of the Court to ascertain that the document, purported to be the Will of the testator, must demonstrate his or her intention. The law does not mandate any rigid or prescribed form for execution of a Will. While deciding the question of Will, the Court has to satisfy its conscience that the document, which is being presented as Will, must express the true volition of the testator.
To ascertain the said fact, the Court is required to put itself in the testator's armchair and to consider all such circumstances, which, the testator would have taken into consideration, while making the testamentary disposition. A document, which is proved to have been executed by the testator in his sound and disposing state of mind, must be regarded as a valid Will. Merely, because the document, relied upon by the parties, as the Will of the testator, is a registered one, does not absolve the propounder of the Will to dispel any suspicious circumstances, attending its execution.
As per the provisions of Section 63 of the Indian Succession Act, a Will shall be attested by two or more witnesses, each of whom has 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 testator, or has received from thè testator a personal acknowledgment of his signature or mark, upon the Will. It is not necessary that more than one witness be present at the same time. Also, no particular form of attestation is necessary, to render the Will valid in law.
The legal requirement to prove the Will has elaborately been enunciated by the Hon’ble Supreme Court, way back in the year 1959, in case ‘H. Venkatachala Iyengar, Appellant v. B.N. Thimmajamma and others, Respondents’, reported in AIR 1959 Supreme Court 443. Relevant paragraphs 18 to 22 of the said judgment are reproduced, as under:-
“(18)What is the true legal position in the matter of proof of wills ? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under s. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression " a person of sound mind " in the context. Section 63 requires that 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 that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by s. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the, prudent mind in such matters.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not ; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely 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 deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895: (AIR 1946 PC 156) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth ". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.”
(Self-emphasis supplied)
Section 63 of the Indian Succession Act contains the formalities, which the propounder of the Will is required to be proved, before accepting a document as validly executed document with sound-disposing mind.
Provisions of Section 63 of the Indian Succession Act are reproduced, as under:-
“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)The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c)The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence an d 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.”
Although, it is not necessary that more than one witness be present, at the same time and no particular form or attestation shall be necessary. The Hon’ble Supreme Court in case ‘Pentakota Satyanarayana & Ors vs Pentakota Seetharatnam & Ors’, reported in 2006(1) Civil Court Cases 563, has discussed the essentials, which are required to be proved, in order to accept the document, as validly executed Will. Paragraph 22 of the said judgment is reproduced, as under:-
“22.It is clear from the definition that the attesting witness must state that each of the two witnesses has seen the executor sign or affix his mark to the instrument or has seen some other persons sign the instrument in the presence and by the direction of the executant. The witness should further state that each of the attesting witnesses singed the instrument in the presence of the executant. These are the ingredients of attestation and they have to be proved by the witnesses. The word 'execution' in Section 68 includes attestation as required by law.”
The Hon’ble Supreme Court in case ‘Girja Datt Singh v. Gangotri Datt Singh’, reported in AIR 1955 SCC 346, has elaborately discussed the term ‘attestation’.
Relevant paragraph 14 of the said judgment, is reproduced, as under:-
“14.It still remains to consider whether the attestation of the signature of the deceased on the will, Ex. A-36 was in accordance with the requirements of Section 63, Indian Succession Act. Section 63 prescribes that:
"(c)The will shall be attested by two or more witnesses, each of whom has 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 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 .............."
In order to prove the due attestation of the will Ex. A-36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A-23 and Ex. A-36 from Gonda to Tarabganj for reasons best known to themselves.
If no reliance could thus be placed upon their oral testimony, where would be the assurance that they actually saw the deceased execute the will in their presence and each of them signed the will in the presence of the deceased. It may as well be that the signature of the deceased on the will was appended at one time, the deceased being there all alone by himself and the attestations were made by Uma Dutt Singh and Badri Singh at another time without having seen the deceased sign the will or when the deceased was not present when they appended their signatures thereto in token of attestation. We have no satisfactory evidence before us to enable us to come to the conclusion that the will was duly attested by Uma Dutt Singh and Badri Singh and we are therefore unable to hold that the will Ex. A-36 is proved to have been duly executed and attested.”
(Self-emphasis supplied)
The term ‘attestation’ has again been discussed, by the Hon’ble Supreme Court, in case ‘N. Kamalam (dead) and Another v. Ayyaswamy and Another’, reported in AIR 2001 Supreme Court 2802. Relevant paragraphs 26 and 27 of the said judgment are reproduced, as under:-
“26.The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe. The full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons and others v. Rahilna Bi and others (AIR 1962 Madras 111), wherein Ramachandra Iyer, J. speaking for the full bench in his inimitable style and upon reliance on Lord Cambells observation in Burdett v. Spilsbury has the following to state pertaining to the meaning to be attributed to the word ‘attestation’:
The definition of the term attested which is almost identical with that contained in S.63 (c) of the Indian Succession Act, has been the result of an amendment introduced by Act 27 of 1926. Prior to that amendment it was held by this court that the word attested was used only in the narrow sense of the attesting witness being present at the time of execution. In Shamu Pattar v. Abdul Kadir ILR 35 Mad 607 (PC), the Privy Council accepted the view of this court that attestation of a mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that a mere acknowledgement of his signature by the executant to the attesting witness would not be sufficient. The amending Act 27 of 1926 modified the definition of the term in the Transfer of property Act so as to make a person who merely obtains an acknowledgment of execution and affixed his signature to the document as a witness, an attestor. It will be noticed that although S.3 purports to define the word attested it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose of the Act; the word attest is used as a part of the definition itself. It is, therefore, necessary first to ascertain the meaning of the word attest independent of the statute and adopt it in the light of the extended or qualified meaning given therein. The word attest means, according to the Shorter Oxford Dictionary to bear witness to, to affirm the truth or genuineness of, testify, certify. In Burdet v. Spilsbury, (1842-43) 10 Cl and F 340, Lord Cambell observed at page 417,
“What is the meaning of an attesting witness to a deed? Why, it is a witness who has seen the deed executed, and who signs it as a witness.”
The Lord Chancellor stated,
“the party who sees the will executed is in fact a witness to it; if he subscribes as a witness, he is then an attesting witness.”
The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign. Further, attestation being an act of a witness, i.e., to testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended by Act 27 of 1926. Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution.
After the amendment of S.3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received from the executant a personal, acknowledgment of his signature, mark etc. Thus of the two significant requirements of the term attest, namely (1) that the attestor should witness the execution, which implies his presence, then, and (2) that he should certify or vouch for the execution by subscribing his name as a witness; which implies a consciousness and an intention to attest, the Amending Act modified only the first; the result is that a person can be an attesting witness, even if he had not witnessed the actual execution, by merely receiving personal acknowledgment from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter requirement, namely, certifying execution which implies that the attesting witness had the animus to attest.”
It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependant on the fact situation. The learned Judge as noticed above has himself recorded that two significant requirements of the term attest viz., that the attestor should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not but depict otherwise. The scribes presence cannot be doubted but the issue is not what it is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise this issue unfortunately we are not in a position to lend concurrence with. The will as produced, records the following at page 4 thereof: (page 106 of the P.Book)
Witnesses L.T.I. of Masanae Gowder
(sd/-(T.subbiya) S/oVeerai Gowder 25/298 Thomas Street Coimbatore.
(sd/-) B. Govindaraju s/o S. Balagurumurthy Chettiar 25/250 Rangai Gowder Street, Coimbatore.
..S/d Arunachalam” The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to the proof of due attestation unless the situation is so expressed in the document itself this is again however not the situation existing presently in the matter under consideration. Some grievance was made before this court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available.”
The essential condition of valid attestation has elaborately been discussed, by the Hon’ble Supreme Court in case ‘M.L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others’, reported in AIR 1969 Supreme Court 1147. In this case, the Hon’ble Supreme Court has categorically held that the person, who puts signatures on the document for some other purpose i.e. to certify that he is a scribe or an identifier or a registering officer, does not fall within the definition of “an attesting witness”. Relevant paragraph 8 of the said judgment,s is reproduced, as under:-
“8.Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words:-"Attested", in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the (1) I.L.R. 52 Mad. 123.
direction of the executant, or has received from the executant a personal acknowledgment of his-signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present it the same time and no particular form of attestation shall be necessary."
It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness. to a fact. Briefly put, the essential conditions of a valid attestation under s.3 are :
(1 ) two or more witnesses. have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has. signed the instrument in the presence of the executant. It is essential that the witness should have- put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.”
(Self-emphasis supplied)
The propounder of the Will is duty bound to dispel the suspicious circumstances. Although, the term ‘suspicious circumstance’ has nowhere been defined in the CPC, however, the Hon’ble Supreme Court in ‘Smt. Indu Bala Bose and others versus Manindra Chandra Bose and another, reported in AIR 1982 Supreme Court 133, has elaborately discussed the term ‘suspicious circumstances’.
Relevant paragraph-7 of the judgment is reproduced, as under:
“7.This Court has held that the mode of proving a will does not ordinarily differ from that of proving any other document except to the special requirement of attestation prescribed in the case of a will by Section 63 of the Successions 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. Even where circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signatures of the testator, the condition of the testator's mind, the disposition 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 suspicions should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes a prominent 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. (See AIR 1964 SC 529, [1959] Suppl. 1 SCR 426 & [1962]3 SCR 195).”
As discussed, in the present case, the propounder of Will, i.e. defendants, have examined only one witness, i.e. DW-2 Devi Singh, as attesting witness, who is the resident of village Bhutti, P.O. Karsog. He has admitted that Purshottam was not known to him.
Learned counsel for the plaintiff could not point out any provision of law, according to which, the attesting witness should be known to the testator. The requirement of law is that the document, before being considered as a Will, should be attested by two or more witnesses, each of whom, has seen the testator sign or affix his mark to the Will, or has seen some other persons 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, over the Will. DW-1 falls within the definition of attesting witness.
The document Ext. DW1/B, is being presented by the defendants, as a validly executed Will, in their favour, by the testator. Upon the said Will, Devi Singh has put signatures as attesting witness, and testator has been identified by Prithvi Singh. As such, merely because DW-1 has deposed that Parshotam was not previously known to him, will not take his deposition out of the purview of ‘attesting witness’. He has fully deposed regarding the essential requisites of a Will. Although, Parshotam was not identified by this witness, but, the testator was duly identified by Prithvi Singh.
In such situation, even if DW-2 was not knowing Parshotam, testator, but, the said fact cannot be taken, as a disqualification, to be the attesting witness.
In this case, it has also been argued by the learned counsel for the plaintiff that there was no occasion for the testator Parshotam to execute the Will, in favour of defendants No. 1 to 3. In order to understand the intention of Parshotam, in executing the Will, principle of ‘armchair’ is to be applied by the Court, i.e. being itself to the situation to the testator, by considering the stand, which might have taken into consideration by the Testator, while executing the Will.
The plaintiff, in the present case, has admitted the fact about the registration of the FIR, against him, as well as, his son, which was lodged by Parshotam. From the document, Ext. DW1/C, it has been proved that Parshottam, lodged the FIR against his brother Gopi Chand, his nephew Padam Nath, upon which, FIR, under Sections 341, 326, 325, 324, 323, read with Section 34 IPC was registered. Although, both the accused, in the said case, were acquitted, but, their acquittal was on account of the fact that prosecution could not prove their guilt, beyond reasonable doubt, as such, judging the facts, on the touchstone of preponderance of probabilities, testator Parshotam was having every reason to divest his property from his brother, by executing the Will, in favour of defendants No. 1 to 3.
In view of discussions made above, this Court has no hesitation to hold that the learned trial Court, as well as, learned First Appellate Court has rightly held that DW-2, being the chance witness, cannot be said to be suspicious circumstance, as such, it can be said that Parshotam had validly executed a Will, in favour of defendants No. 1 to 3, with his sound disposing state of mind.
Viewed this, substantial questions of law, are answered against the appellants and in favour of the respondents. The appeal is dismissed and the judgments and decrees, passed by both the Courts below, are upheld.
Decree-sheet be prepared accordingly.
The pending application(s), if any, are also disposed of.
Send down the record.