Shri Baksha Singh And Ors. @APPELLANT@Hash Girdhari Singh

Under challenge in this second appeal under Section 100 CPC is the judgment dated 4.5.2017 passed by the Addl. District Judge, Dausa in Civil

Regular Appeal No. 16/2012 affirming the judgment and decree dated 3.3.2012 passed by the Addl. Civil Judge (Sr. Division) Dausa whereby the

plaintiffrespondent’s (hereafter ‘plaintiff’s’) suit for cancellation of Will dated 16.11.2000 and permanent injunction was decreed.

I have heard counsel for the defendantappellant (hereafter ‘the defendant’) and perused the impugned judgments.

By the two concurrent judgments dated 4.5.2017 and 3.3.2012, the courts below have come to a finding of fact that the Will dated 16.11.2000

purportedly executed by late Bhanwar Singh, father of the plaintiff Girdhari Singh as also of the defendant Baksh Singh, Ratan Singh, Chand Kanwar

and the grand father of the defendants Mahaveer Singh, Prem Kanwar, Dilip Singh, Mahendra Singh, Sajjan Singh, Rajendra Singh, Virendra SinghÂ

and Surendra Singh was unsustainable as the requisite onus probandi was not discharged by the defendants and the suspicious circumstances obtaining

from the plaintiff’s evidence on record with regard to execution of the Will not adequately explained to the court’s satisfaction. The courts

below took note of the evidence on record including that of DW 4 Jagdish Prasad Gupta that the late Bhanwar Singh at the time of purported

execution of the Will dated 16.11.2000 was about 100 years old, incapable in mind and intent and in fact confined to bed in a seriously ill condition.

Further two days following the alleged execution of purported Will dated 16.11.2000, Bhanwar Singh had indeed expired on 18.11.2000. The courts

below also took into consideration that there were major contradictions in the evidences of the defendants’ witnesses and the contesting

defendants had not been able to establish as to who was the scribe of the will, from whom stamps on which the purported Will was executed were

purchased and by whom. Even the date of execution of the Will was unclear. The courts below also took note of the fact from the evidence on

record that one of the beneficiary of the Will, the defendant Baksh Singh was present at the time of purported execution of the Will dated 16.11.2000

which was a matter of relevance in the context of the overall evidence on record. The courts also noted that its conclusions on the appreciation of

evidence that the testator Bhanwar Singh was not capable and of free mind when he purportedly executed the Will dated 16.11.2000 were further

buttressed by the fact that except for defendant Baksh Singh and his wife Manohar Kanwar (now deceased and represented by her LRs), all other

defendants in the plaintiff’s suit had in the written statement admitted that the Will dated 16.11.2000 was fraudulently obtained and late Bhanwar

Singh was on the date of its purported execution was incapable of executing it on his free intent/ consent.

In Gorantla Thataiah Versus Thotakura Venkata Subbaiah & Ors. reported in 1968 AIR 1332, the Apex court held that suspicious circumstances in

the execution of the will must be adjudged with reference to the fact situation of a particular case and if the propounder takes a prominent part in

the execution of the Will which confers substantial benefits on him, that itself is a suspicious circumstance attending the execution of the Will. It was

held that in appreciating the evidence in such a case, the Court would proceed with the evidence before it in a vigilant and cautious manner and unless

suspicion is removed to the satisfaction of the court by one propagating such a will, the imprimatur of the court on the genuineness of the Will in

question will not be put and the will liable to be canclelled. In so holding the Apex Court referred to the law set out in the case of Barry Versus Butlin

reported in (2 Moo. P.C. 480) that onus probandi lies in every case upon the party propounding a Will and when the will is challenged it must satisfy

the conscious of the court that the instrument so propounded is the last Will of a free and capable testator. More so if a party writes or prepares a

Will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court be a cause for it to be vigilant in

examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed.

Similarly, in the case of Seth Beni Chand (since dead) Now by LRs Versus Smt. Kamla Kunwar & Ors. reported in 1976 (4) SCC 554, the Apex

Court held when suspicious circumstances with regard to the execution of a will are made out the onus probandi lies on one propounding a Will and

she must satisfy the court’s conscious from evidence of probative worth that the instrument in question was the last Will of a free and capable

testator â€" i.e. that the testator when executed the Will had a sound and disposing mind and memory. In N. Kamalam (Dead) and Anr. Versus

Ayyasamy & Anr. reported in (2001) 7 SCC 503, the Apex Court held that when the circumstances in which the Will is executed are shrouded in

suspicion, it is the duty of the propounder of the Will to remove that suspicion by leading satisfactory evidence.

Counsel for the defendants seeking to challenge concurrent finding of fact of the courts below arrived on the appreciation of evidence, required this

court to once again reconsider and reappreciate the evidence. That this Court would loathe to do in the exercise of its jurisdiction under Section 100

of CPC for the Court’s jurisdiction is triggered only when a substantial question of law has been made out in the second appeal. Counsel for the

defendants has not been so able to do at all.

The submissions of counsel for the defendants based on the defendant’s application under Order 41 Rule 27 CPC filed before the appellate court

are of no avail inasmuch as the first appellate court has dealt with the said application in extensio holding that the death of Mohan Kanwar defendant

no. 4 in the suit on 18.3.2011 prior to passing of the decree on 3.3.2012 by the trial court was of no event, not only for the reason that her death was

not brought to the notice of the trial court or the plaintiff at the relevant time by her counsel by resort to Order 22 Rule 10A CPC but also for the

reason that her LRs Dilip Singh and Mahaveer Singh were already on record of the trial court at the relevant time. And in these circumstances, the

suit could not have abated as contended by the defendants nor rendered the judgment of the trial court cancelling the will dated 16.11.2000 liable to be

set-aside. The first appellate court also held that application under Order 41 Rule 27 CPC on the issue of taking on record the report of the hand

writing expert was again of no avail for the reason that it recorded an opinion of the hand writing expert in respect of the agreement dated 21.7.1989

purportedly executed by the plaintiff Girdhari Singh which for whatever its worth had no bearing on the issue in appeal with regard to the invalidity or

otherwise of the Will dated 16.11.2000. To the conclusion of the first appellate court, I may add that the application under Order 41 Rule 27 CPC

insofar as it related to taking on record the report of the hand writing expert with regard to purported signature of the plaintiff Girdhari Singh on the

agreement dated 21.7.1989 was even otherwise not maintainable as additional evidence within the scope of Order 41 Rule 27 CPC could be laid at the

appellate stage only after furnishing sufficient cause to the Court’s satisfaction as to why the said evidence of the hand writing expert forÂ

whatever its worth could be brought before the trial court when it could have been in the course of the trial of the suit. That was evidently not done.

I am of the considered view that in the facts of the case and the findings of fact by the courts below on which their judgments turn, counsel for the

defendants has not been able to make out any substantial question of law to warrant entertaining of this second appeal.

In the result, the second appeal is dismissed at the admission stage itself.Â