The legal point established is that the presumption under Section 90 of the Evidence Act does not apply to Wills, and the proof of a Will must comply with statutory requirements and dispel suspicious circumstances.

Tarlok Singh Chauhan, J.

The defendant is the appellant and has come up in appeal against concurrent findings recorded against him by the learned Courts below.

2. The facts as necessary for the adjudication of the case are that the predecessor-in-interest of the respondents/plaintiffs i.e. Chingu Ram (hereinafter referred to as the ‘plaintiff’) filed a suit for declaration and injunction to the effect that he is owner in possession of the suit land as detailed in the plaint being legal heir of deceased Rania son of Dheru and that the mutation No. 515 in favour of the appellant/defendant (hereinafter referred to as the ‘defendant’) is null and void and that the Will dated 15.3.1946 in favour of the defendant executed by deceased Rania is also wrong and illegal. A decree of permanent injunction was also sought by the plaintiff against the defendant to the effect that he be restrained from cutting or removing trees or taking forcible possession of the suit land.

3. It was averred that the suit land was owned and possessed by deceased Rania S/o Dheru as co-sharer. The said Rania left the village and his whereabouts are not known for the last sixty years nor he has been heard of being alive. He was 12 years of age when he left the village. He never visited the village again and as such, is presumed to be dead. The mutation was attested on 12.8.1988 in respect of his estate and as such, his date of death is to be presumed to be 12.8.1988. The said Rania was minor when he left the village and therefore, there was no occasion for him to execute Will nor he ever executed Will nor he was competent to do so. The defendant in connivance with the settlement field staff and witnesses propounded a false forged Will and on its basis managed to mutate the estate of deceased Rania in his favour. The Will in question is forged and fabricated document and therefore is not binding on the rights of the plaintiff in the suit land. The plaintiff is the only legal heir of deceased Rania and is entitled to succeed his estate. The revenue official did not adopt proper procedure at the time of attestation of mutation and forged Will was relied upon for attestation of mutation. The defendant threatened to cut and remove the trees and to take forcible possession of the suit land in an illegal manner.

4. The suit was contested and resisted by defendant by raising preliminary objections regarding maintainability, estoppel on account of his act and conduct, jurisdiction and limitation. On merits, it was admitted that the suit land was owned and possessed by Rania son of Dheru. It was denied that said Rania left the village when he was child. It was also denied that he had not been heard of for the last more than 60 years. The said Rania was having disposing state of mind and being issueless on 15.3.1946, had executed the Will of his entire property in favour of the parties to the extent of half share. It was denied that Rania left the village when he was of 12 years old, rather he left about thirty years back. It was averred that the dispute inter se the parties in respect of the estate of deceased Rania arose during settlement in the year 1986. It was denied that mutation had been wrongly attested. It was averred that the Will was a genuine one and had been executed by deceased Rania voluntarily. It was also averred that during consolidation operation, the revenue staff had partitioned the joint land and the same cannot be assailed before the Civil Court. It was denied that Rania left the village before 15.3.1946 or that he was insane or incompetent to execute the Will. The correctness of the pedigree-table was also challenged. It was averred that the defendant is already in possession of his share in the suit land. It was lastly denied that the defendant threatened to cut or remove the trees. The defendant accordingly prayed for dismissal of the suit.

5. The plaintiff filed replication wherein the contents of the written statement were controverted and