The burden of proof for alleging fraud in a Will lies with challengers, and mere age or illiteracy of the testator does not negate the Will's validity if legal standards are met.

JUDGMENT

Mr. Aman Chaudhary, J.

The present regular second appeal has been preferred against the judgment dated 19.09.1991 passed by learned District Judge, Bhiwani dismissing the appeal filed against the judgment and decree dated 02.05.1990 rendered by learned Sub Judge 1st Class, Charkhi Dadri, whereby the suit for declaration filed by the plaintiff/appellants was dismissed.

2. Briefly put, one Lok Ram s/o Kurda was the owner in possession of the suit land. He was unmarried. After his death, the plaintiff-appellants filed a suit for declaration to be held owner in possession of the land in question being the legal heirs, as they were sons' of his deceased brothers, Chuniya and Kanshi Ram and that the Will in favour of the defendants was a forged document. It was contested by the defendant-respondents by filing a written statement, stating therein that they used to serve the deceased-Lok Ram, during his lifetime and he had executed a registered Will in their favour. The plaintiffs were not in cultivating possession of the suit land.

3. On pleadings of the parties and the evidence led, the trial Court finding the Will to be not forged and the suit being not maintainable dismissed the same, which on challenge in appeal, the Will was held to be executed under suspicious circumstances by the lower Appellate Court while plaintiff-appellants were found to be not having locus standi, on the ground that they did not plead or prove that one of the brothers of deceased Loka had also expired.

4. Aggrieved plaintiff-appellants are before this Court, as also are the defendant-respondents in cross-objections as regards reversal of findings qua Will.

5. Learned counsel submitted that the lower appellate Court has rightly discarded the Will as it was surrounded by suspicious circumstances inasmuch as there were inconsistencies in statements of DWs, one attesting witness was father-in-law of one of the beneficiaries and the testator was an aged illiterate person and not proved in accordance with law and as such, the cross-objections are liable to be dismissed. However, the findings of the courts below of non-suiting the plaintiff-appellants on the ground of they not having locus are erroneous, as being nephews of deceased Loka, they had the right to inherit his property.

6. Learned counsel for the respondent on the other hand submits that as per Order VI Rule 4, the fraud had to be specifically pleaded, which in the present case is conspicuously absent and thus, any evidence led beyond pleadings cannot be looked into. The Will was not proved beyond the shadow of reasonable doubt, to be executed by way of fraud, as is the requirement of law. Presumption is attached to the registered document and the minor contradictions, which by passage of time are bound to occur, are not sufficient to hold that the Will was executed under suspicious circumstances. The registered Will has been duly proved on record in accordance with section 68 of the Indian EVIDENCE ACT , 1882 read with section 63 of the Indian SUCCESSION ACT , 1925. There were sufficient reasons and circumstances available with the testator, to have given the land to the defendant-respondents, as they looked after him as his own, and to his satisfaction and in his lifetime handed over possession of the land to them, which they are continuing to be in, a fact admitted by the plaintiffs themselves. He lived for more than 5 years after execution of the Will, but there i