The main legal point established in the judgment is that the validity of a will can be challenged based on suspicious circumstances, and the burden of proof lies with the party claiming under the will to remove these suspicions and establish its genuineness.

Justice Rajiv Sharma, Judge.

This Regular Second Appeal is directed against the judgment and decree dated 1.11.2000 rendered by the learned District Judge, Kullu in Civil Appeal No.70/99.

2. Material facts necessary for the adjudication of this Regular Second Appeal are that Smt. Muni Devi, predecessor-in-interest of the respondents-plaintiffs (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit for declaration with consequential relief of injunction against the defendant (hereinafter referred to as the ‘defendant’ for convenience sake). Case of the plaintiff is that one Sh. Shiv Chand son of Sh. Bhimu, husband of the plaintiff, was owner in possession of the suit land measuring 14-13-00 bighas kitas 7, Khata Khatauni No. 4/5 situated in Mauza Le- Baring, Kothi Jalhma, Sub Tehsil Udaipur, District Lauhal-Spiti. Shiv Chand died in October, 1992 in mysterious circumstances at Sainj and his dead body was cremated by the police. He died intestate. Plaintiff, being his widow was the sole heir and after the death of Shiv Chand, she inherited the entire estate left by Shiv Chand. However, defendant on the basis of “will” Ex.DW-4/A dated 25.2.1978, got mutation No. 10 dated 23.12.1992 attested in his favour. According to the plaintiff, the will dated 25.2.1978 is shrouded by suspicious circumstances and the same cannot be termed as genuine and last “will” of Shiv Chand.

3. The suit was contested by the defendant. According to the defendant, Shiv Chand was his grand- father and he died issueless. He rendered all kinds of services to Shiv Chand and out of love and affection; he executed the “will” in his favour on 25.2.1978 whereby he bequeathed his entire property in his favour. The mutation was rightly attested in his favour. No replication was filed by the plaintiff to the written statement filed by the defendant. The issues were framed by the trial court on 27.6.1997. The trial court decreed the suit vide judgment and decree dated 6.4.1999. He passed the decree for declaration against the defendant. The “will” dated 25.2.1978 Ex.DW-4/A was declared illegal, null and void having no binding effect on the rights of the plaintiff. The plaintiff was held entitled, being the sole legal representative, legally entitled to inherit the suit property left by him. The mutation No. 10 dated 23.12.1992 was also declared illegal, null and void. Defendant feeling aggrieved by the judgment and decree of the trial court, preferred an appeal before the District Judge, Kullu. He dismissed the same on 1.11.2000. Hence, the present Regular Second Appeal. It was admitted on the following substantial questions of law:

1. Whether both the courts below have ignored the Tribal customs applicable to Shri Shiv Chand, executant of the will who belongs to the Tribal community Lauhal and Spiti, wherein there was no prohibition for the testator to have executed the will in favour of the defendant-appellant in lieu of service?

2. Whether under the Tribal customs applicable to the parties, the defendant-appellant being nearest reversioner ought to have been natural successor, which provides that the widow takes a limited interest during her life time? Have both courts below taken an essentially wrong approach by holding that the will Exhibit DW-4/A was shrouded by suspicious circumstances by not making a mention of the wife of the Testator, i.e. plaintiff? Are not such findings against the well settled principles of law enunciated by Hon’ble Supreme Court of India as well as this Hon’ble Court?

3. Whether both the courts below have wrongly set aside the will Exhibit DW-4/A on such grounds which were neither pleaded nor proved by the plaintiff merely when the plaintiff-respondent failed to appear as her own witness. Were not both the courts below required to raise adverse inference against the plaintiff for not appearing as her own witness as envisaged under the Evidence Act, when the Special Attorney who was a distinct