Propounder proves Will via scribe and attesting witnesses; minor contradictions and beneficiary caregiver presence not suspicious circumstances; second appeal High Court cannot re-appreciate evidence absent perversity.

JUDGMENT :
Romesh Verma, J.

The present appeal arises out of the judgment and decree, dated 28.10.2015, as passed by the learned District Judge, Hamirpur, whereby the appeal preferred by the respondents/defendants has been allowed and the suit filed by the appellants/plaintiffs was ordered to be dismissed.

2 Brief facts of the case are that the appellants/plaintiffs filed a suit in the Court of learned Civil Judge (Junior Division), Court No.II, Hamirpur on 21.8.2006 for declaration with consequential relief of permanent prohibitory injunction. In the plaint, it was averred by the appellants/plaintiffs that the land entered in Khata No. 97, Khatauni No. 98, Khasra Nos.22-27-84-87-273-276-372-384- 387-89-917 kitas 11, land measuring 70 kanals 15 marlas as per jamabandi for the year 1999-2000, situated in Tika Daruhi, Mouza Bajuri, Tehsil and District Hamirpur to the extent of 1/5th share i.e. land measuring 14 Kanals 3 Marlas (for short, “suit land”) is shown to be under the ownership and possession of Chiri Devi. It was further averred that Chiri Devi was the sole owner of the suit land and she expired on 27.5.2006 leaving behind plaintiffs/appellants, defendant/respondent No.2 and proforma defendant as her legal heirs. Deceased Chiri Devi was being looked after and maintained by her legal heirs. She died intestate and she did not execute any Will. During life time of Chiri Devi, suit land was in possession of the plaintiffs. However, defendants/respondents No. 1 and 2 in connivance with other persons claimed that the deceased had executed a Will in favour of defendant No.1, but in fact no Will was executed by Chiri Devi in favour of defendant No.1 and in case there is any Will, the same is result of fraud and has been prepared in connivance with marginal witnesses after her death.

3 It was averred that the Will was produced before the Revenue Officer for attestation of mutations, but the Revenue Officer without conducting any inquiry and without giving any opportunity to the appellants/plaintiffs sanctioned mutation in favour of defendant No.1 illegally and without following any procedure. The appellants/plaintiffs prayed decree for declaration with consequential relief of permanent prohibitory injunction in respect of the suit land which is in possession and ownership of the plaintiffs, defendant No. 2 and proforma defendant as heirs to the estate of late Chiri Devi and mutations No. 25 and 1531 attested and sanctioned on 29.6.2006 are null and void and against the provisions of law, thus, liable to be set aside. It was further prayed that in case the appellants/plaintiffs and proforma defendant are not found in possession of the suit land, then decree for possession in favour of the appellants/plaintiffs and proforma defendant be passed.

4 The suit was contested by the respondents/defendants by raising preliminary objections of estoppel, locus standi, jurisdiction, valuation, maintainability and special costs under Section 35-A CPC. etc.

5 On merits, allegations levelled in the plaint were specifically denied. It was submitted in the written statement that Chiri Devi died on 27.5.2006. As per last Will of Smt. Chiri Devi, defendant No.1 is the lawful owner of the suit land. During her life time and under sound disposing state of mind, Chiri Devi executed a Will in favour of defendant No.1 and, therefore, the suit land is coming in possession of respondents/defendants since her life time. It was averred that the Will was executed by Chiri Devi out of love and affection and in lieu of services rendered by defendant No.1 and the Will after writing was read over and explained to Smt. Chiri Devi and she admitted it to be correct and thereafter she put her thumb impression and thereafter the witnesses signed the Will in the presence of witnesses and the Will is genuine and last Will. It was further averred that the Revenue Officer gave proper opportunity of being heard and sanctioned the mutation after proper enquiry. The appellants/pl