The central legal point established in the judgment is the requirement to dispel suspicious circumstances surrounding the execution of a Will and the burden on the propounder to remove doubts about the testator's free will and mind.

Tarlok Singh Chauhan, Judge The defendants are the appellants, who are aggrieved by the judgment and decree dated 6.6.2000 passed by learned District Judge, Hamirpur in Civil Appeal No. 43 of 1992 whereby he reversed the judgment and decree dated 31 .3.1992 passed by learned Sub Judge, 1st Class (1), Hamirpur, H.P. in Civil Suit No. 103 of 1987.

2. The plaintiff/respondent filed a suit for declaration and permanent prohibitory injunction against the appellants/defendants basing his claim on a Will alleged to have been executed by Sher Singh in his favour on 10.10.83.

3. On the other hand, the defendants/appellants did not deny the existence of Will dated 10.10.83. However, they claimed that such Will having been expressly superseded by a subsequent Will dated 28.10.83.

4. On 3.9.1987, the learned trial Court framed the following issues:

1.Whether deceased Sher Singh executed a valid will on 10.10.83 in favour of plaintiff, as alleged? OPP 2.Whether the plaintiff is entitled to the relief of injunction, as prayed for? OPP 3.Whether deceased Sher Singh executed a valid will dated 28.10.83 in favour of defendants as alleged? OPD 4.Whether plaintiff has cause of action? OPP (onus objected to) 5.Whether plaintiff is estopped by his act and conduct? OPD 6. Whether parties are governed by custom in the matters of alienation, if so, what that custom is? OPD 7.Whether suit property is ancestral qua defendants and deceased Sher Singh? 8.Relief.

5.After recording the evidence, the learned trial Court dismissed the suit. On appeal being carried to the learned lower Appellate Court, the judgment and decree passed by the learned trial Court was reversed and the suit of the plaintiff was decreed.

6.Aggrieved by the judgment and decree passed by the learned lower Appellate Court, the defendants/appellants have filed the present appeal before this Court.

7.On 29.9.2000, the appeal was admitted on the following substantial question of law:

“Whether the finding of the learned lower Appellate Court has been arrived at by placing reliance on inadmissible evidence, if so, its effect?”

8.I have heard Mr. Onkar Jairath, learned counsel for the appellants and Mr. Bhupender Gupta, Senior Advocate assisted by Mr. Ajit Jaswal, Advocate, learned counsel for the respondents and have also gone through the records carefully.

9. Mr. Onkar Jairath, learned counsel for the appellants has strenuously argued that the findings recorded by the learned lower Appellate Court are not at all sustainable in the eyes of law since they are based upon the complete misreading of oral and documentary evidence and in fact the learned lower Appellate Court has relied upon inadmissible evidence to reverse the well reasoned judgment of the learned trial Court.

10.In order to substantiate his plea, the learned counsel for the appellants has contended that as a matter of fact in the Will dated 10.10.83 executed in favour of the plaintiff/respondent, there was an express condition to the effect that the plaintiff would serve the testator in future and in case failure to do so, the Will would stand revoked. He further submits that in the entire pleadings of the plaintiff, there is no plea to the effect that he had been rendering service to the testator after the date of execution of the Will Ex.P-1. He further contended that the plaintiff was residing at Ahmedabad in Gujarat State while the deceased Sher Singh was residing at his native village in District Hamirpur and even according to the pleadings of the plaintiff himself, he had not been serving the deceased Sher Singh, though he had tried to establish on record that his wife had been serving the deceased. Moreover, the wife of the plaintiff has not been examined in this case and therefore, an adverse inference deserves to be drawn against the plaintiff. He has further contended that the plaintiff has not pleaded that the deceased Sher Singh used to maintain a diary and therefore, no reliance on the diary Ex.P-2 could h