The burden of proving the execution of a Will rests on the propounder, who must dispel any suspicious circumstances to establish its validity.

JUDGMENT :

Rakesh Kainthla, J.

The present appeal is directed against the judgment and decree dated 04.07.2006, passed by learned District Judge, Mandi, District Mandi, H.P (hereinafter referred to as the First Appellate Court) vide which the judgment and decree 23.09.2005, passed by learned Civil Judge (Senior Division), Sundernagar, District Mandi, H.P. ( learned Trial Court) were upheld. (For the sake of convenience, the parties shall be referred to in the same manner as they were arrayed before the learned Trial court.

2. Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court for seeking declaration that the plaintiff No. 1 is owner of 3/5th shares each, and plaintiffs No. 2 to 5 are owners of 1/10th share in the suit land described in para 1 of the plaint by virtue of Will dated 13.03.1958 executed by late Padu, defendants have no right, title or interest in the suit land, the revenue entries to the contrary are not binding upon the plaintiffs, and the sale deed, executed by defendant No. 1 in favour of defendant No. 3 on 09.11.1998, is void, illegal and confers no right, title or interest upon the defendant no. 3. A consequential relief of permanent prohibitory injunction restraining the defendants from causing any interference in the possession of the plaintiffs was also sought. A decree of possession was also sought in case the plaintiffs were dispossessed during the pendency of the suit. It was pleaded that the suit land was owned and possessed by Padu, husband of defendant No.2 and father of plaintiff No.1 and defendant No.1. Padu expired in the year 1968. He had executed a conditional Will on 13.03.1958 in favour of Saju and plaintiff No.1 in equal shares. The beneficiaries were not aware of the existence of the Will. Plaintiff No.2 searched an old box of Padu containing the documents and found the Will lying in the box. Saju had married plaintiff No.1 as per the conditions of the Will. Plaintiffs No. 2 to 5 were born to them. Saju died on 22.02.1995. Plaintiffs, being class one heirs, succeeded to half share. Mutation No. 31, dated 26.08.1968, to the contrary, does not bind the rights of the plaintiffs. The plaintiffs requested that defendants No. 1 and 2 to admit their claim, but they refused. Defendant No. 1 executed a sham sale deed No. 608 dated 09.11.1998 of 81/2352 shares measuring 0-4-1 bigha in favour of defendant No. 3. The sale deed does not confer any right upon the defendant No.3. The defendants interfered with the plaintiffs’ possession; hence, suit was filed for seeking the reliefs mentioned above.

3. The suit was opposed by filing a written statement taking a preliminary objection regarding the suit being barred by limitation. The contents of the plaint were denied on merits. It was asserted that the suit land is jointly owned and possessed by the parties, who had divided the suit land amongst themselves in a family arrangement. It was specifically denied that any Will was executed by Padu. Therefore, it was prayed that the present suit be dismissed.

4. A replication denying the contents of the written statement and affirming those of the plaint was filed.

5. The following issues were framed on 25.11.2000, and additional issues were framed on 3.12.2003.

1. Whether on 13.03.1958, deceased Padu executed a valid Will in favour of the plaintiffs as alleged? OPP.

1-A. Whether the defendants No.2 fraudulently concealed the Will in dispute from the plaintiff till 1998? If so, its effect? OPP

2. Whether the revenue entries showing the defendants to be the owners in possession of