The solemn declaration by the Testator and the need for solid foundation and reasoning to ignore a testament based on suspicious circumstances.

JUDGMENT

Anil Kshetarpal, J. - Arguments were heard. Judgment was reserved. The judgment is being released.

2. Plaintiffs-appellants are in the Regular Second Appeal against the judgments passed by the Courts below.

3. In the considered opinion of this Court, following substantial questions of law arise for determination:-

1) Whether the testament scribed in the Tehsil Compound in which Sub-Registrar also has an office, non-registration of the testament becomes a suspicious circumstance?

2) Whether merely because both the attesting witnesses of the testament belongs to the Village where property is located and the testator used to reside before her marriage, particularly when the testament is with respect to the property received from her father, is a suspicious circumstance?

4. Dispute in the present case is with respect to estate of Krishni daughter of Hari Ram. Krishni received the property measuring 21 bighas and 1 biswas from her father-Hari Ram who died in the year 1960-61. Plaintiffs are her brothers and children of her predeceased brother. She was having four brothers, out of which, Sh. Anant Ram had died. Smt. Krishni was married and residing at Village Nangal whereas her brothers were residing in Village Hari Majra. Smt. Krishni died on 19.08.1983. Initially, mutation was sanctioned on the basis of the testament which was set aside in appeal. Hence, the plaintiffs filed present suit for declaration and permanent injunction. Suit was contested by husband and children of Krishni.

5. Learned First Appellate Court, after recording a finding that the execution of the Will is proved, has held that the testament is surrounded by suspicious circumstances. The suspicious circumstances, as noticed by the learned First Appellate Court are as under:-

a) . No reason has been given for ignoring natural heirs i.e. her sons, daughters and husband. Hence, it is not a natural Will.

b) Will was not scribed from a licenced Deed Writer and although it was scribed by a Deed Writer at the Tehsil Compound, however, still it was not got registered.

c) Both the attesting witnesses are residents of the village where the property is located.

6. The appeal was admitted and has now come up for hearing.

7. On 04.05.2018, during the arguments of the learned counsels for final disposal, it was noticed that in a sealed envelope, two testamentary documents which have been marked as Ex.P1 and Ex.D1 were found and, therefore, it was considered appropriate to grant opportunity to the parties to lead further evidence. Hence, a report was asked from the trial Court after permitting the parties to lead evidence.

8. A report dated 26.09.2018 has been submitted while noticing that both, defendants as well as plaintiffs, have not led any evidence.

9. It may be noted here that the Ex.P1 is original Will whereas Ex.D1 is a photocopy. Both the Wills/Testaments are with respect to the property of Krishni located in Village Hari Majra and through the Will, property has been bequeathed in favour of the plaintiffs. However, it must be noticed that Ex.D1 is not photocopy of Ex.P1. There is slight change in the narration of both the Wills, although, property has been bequeathed in the same manner.

10. As noticed above, learned First Appellate Court has found that since both the attesting witnesses of the Will-Ex.P1, have been examined as PW1 and PW2, therefore, Will is proved. Learned First Appellate Court has further found that it is the plaintiffs who are in possession of the property left behind by Krishni.

11. Now let us deal with suspicious circumstances as noticed by the Courts below.

12. As regards, first suspicious circumstance that the testament is unnatural, as no reason has been given to deprive/disinherit her heirs namely sons, daughters and husband. On careful reading of both the Wills i.e. Ex.P1 and Ex.D1, it is apparent that the First Appellate Court has committed an error in not properly reading the testaments which are part of the record. In the testame