JUDGMENT
N.K. Kapoor, J.
1. This is plaintiff’s appeal against the judgments and decrees of the Courts below whereby their suit for declaration has been dismissed.
2. Briefly put, the plaintiffs instituted suit for declaration and permanent injunction to the effect that they are owners in possession of suit land detailed in paras (a), (b) and (c) of the head-note of the plaint situated in village Patti, H. B. No. 287 and that the defendant be restrained from interfering in their possession over the said land. It was averred that the suit property was owned and possessed by Dasondhi Ram son of Labha and a part of it was also owned and possessed by them. The said Dasondhi Ram died on 27-4-1975 issueless. His wife had pre-deceased him. The plaintiffs further averred that they were entitled to succeed to his estate under the Hindu Succession Act ; and otherwise also they were his natural heirs. Plaintiffs Nos. 2 and 3 are sons of Sucheta real brother of Dasondhi Ram whereas plaintiff No. 1 is the son of Rattan Singh alias Thakur the pre-deceased son of Sucheta. It was further aver- red that after his death, the estate of Dasondhi devolved upon them and thus they came into possession of his property-both moveable and immoveable It was also stated that they used to look after Dasondhi and used to render all types of services to him. The plaintiffs pleaded that the alleged Will dated 8.12.1967 executed by Dasondhi in favour of the defendant is false, fictitious and forged document and has been prepared simply to deprive them of their right of inheritance to the estate of Dasondhi. The Will was said to be unnatural and unbelievable on the ground that no reason has been given by Dasondhi for excluding the plaintiffs from inheritance. It was further stated that Dasondhi was not having sound disposing mind at the time of alleged execution of the Will and some other person was made to personate as Dasondhi. Due to old age and sickness Dasondhi Ram was unable to take any prudent decision and that the Will in question is not the result of his free consent. It was further stated that the defendant has no connection or relationship with the said Dasondhi and the Will was the result of undue influence exercised by the defendant on Desondhi. It was further stated that even if the Will is proved to be genuine, it cannot effect their right of inheritance and succession to the estate of Dasondhi.
3. The defendant put in appearance and filed written statement. He denied that the plaintiffs are related to Dasondhi or they have any connection with the suit property or they rendered any services to Dasondhi It was maintained that Dasondhi had executed a valid registered Will dated 8.12.1967 in his favour in a sound disposing mind and of his free will. Consequently his properties devolved upon him and he has been in possession of the same as exclusive owner since the death of Dasondhi. The defendant plead- ed that even during the life time of Dasondhi, he used to manage his properties as Dasondhi used to reside with him It was stated that Dasondhi was his maternal uncle he being the son of his wife’s brother. Since Dasondhi Ram had no issue, he brought him up and also performed his marriage. Dasondhi Ram had also executed a registered gift deed dated 19.4J957 in his favour in respect of a part of his property and he is in possession of the same. It was stated that the plaintiffs had always been rude and indifferent towards Dasondhi. It was also stated that the plaintiffs are not the sole heirs of Dasondhi Ram as their sister Kishni Devi is alive. The defendant denied that the plaintiffs are in possession of the suit property.
4. On the pleadings of the parties, the following issues were framed by the trial Court :-
“(1) Whether the plaintiffs are the owners in possession of the suit land ? OPP.
(2) Whether plaintiffs are entitled for injunction prayed for ? OPP.
(3) Whether Dasondhi Ram executed a valid Will dated 8.12.1967 in favour of the defendant? OPD.
(4) Whether suit is properly valued for the purposes of Court fee and jurisdiction ? OPP.
(5) Whether plaintiffs are. estopped to file the suit by their act and conduct ? OPD.
(6) Relief”.
5. The trial Court determined issues Nos. 3 and 3 against the plaintiffs and in favour of the defendant. Consequently issue No. 2 was also decided against the plaintiffs. Issues Nos. 4 and 5 were also decided in favour of the plaintiff. Resultantly, in view of its findings on issues Nos. 1 and 3, the trial Court dismissed the suit vide judgment and decree dated 4 10.1978. ”
6. Findings of the trial Court in respect of issues Nos. 4 and 5 were not assailed before the lower Appellate Court. Finding of the trial Court in respect of issues Nos. 1, 2 and 3 were affirmed by the lower appellate Court. The Court held that the Will executed by Dasondhi Ram was valid and free from suspicion. The appeal was consequently found to be without merit and was dismissed.
7. Disinherited brother’s son and grandson have assailed the validity of the judgments of the courts below on the ground that both the courts have failed to apply the correct legal principal as enunciated by various judicial pronouncements calling upon the propounder to prove the documents will-and remove the suspicious circumstances, if any, surrounding it. Since the courts below have ignored the suspicious circumstances which have been elicited from the statements of the witnesses, judgments stand vitiated and thus liable to be reversed.
8. Elaborating this, the counsel highlighted the unnaturalness of the Will, Will having been thumb marked by Dasondhi Ram though literate, witnesses of the Will belong to another village and no reason has been given for excluding the natural successors-the plaintiffs.
9. Will in its very nature is intended to exclude some or all of his or her heirs who would else succeed and is thus to be viewed with great caution by the courts. Besides proving the due execution of the Will by examining the scribe, attesting witness or witnesses, yet the court calls upon the person setting up this document to remove the suspicious circumstances surrounding the Will, if .any, before it is accepted Courts invariably rely upon the dictum of the apex Court in H. Venkatachalliah v. Themmajamma, A.l.R. 1959 S. C. 443. to examine such a document.
10. In the instant case, the Will is alleged to have been executed by Dasondhi Ram on 8.12.1967. o Scribe Shri Brij Nath and attesting witnesses Husan Chand and Ram Lal (DW-2 and DW-3) respectively have been examined by the defendants whose testimony has been accepted by both the courts. Mere execution of the Will say by producing scribe or attesting witnesses or proving the genuineness of the testators’s thumb impression by themselves is not sufficient to establish the validity of Will unless suspicious circumstances usual or special are ruled out and the court’s conscious is satisfied not only of the execution but about its authenticity. In the present case, courts below have accepted the due execution of the Will and have further held that the same is free from the suspicion of any kind.
11. However, the learned counsel with a view to create dent in the findings of the courts below, have laid much emphasis on the fact that the testator though literate is alleged to have thumb marked this disputed document. This by itself could be taken as circumstances creating suspicion but as the facts have come on record the reason for thumb marking the Will stands proved by the statement of the witnesses who have deposed that the testator had some injuries on his hand and so he thumb marked the document. Besides this, there is evidence on record that the deceased being of advance age at times had thumb marked the documents besides the Will in dispute. For this, the respondent referred to the sale deed Exhibit D-2 executed by Dasondhi Rarn in the year 1971 which too was thumb marked by him This being the position, there is not much merit in this objection of the counsel for the appellants.
12. The next contention of the counsel is that no reason has been assigned for not associating the residents of the village with regard to the execution of the Will meaning thereby that witnesses of this will do not belong to this village. This objection too is without any merit. Husan Chand is a relation of the defendant and the other witness was known to Husan Chand and since the intention of Dasondhi Ram was to give property to the defendant, he obviously preferred persons known to the defendant and the testator. Despite a lengthy cross-examination of the attesting witnesses, nothing could be elicited by the counsel for the plaintiff which could be inferred shaking their testimony. This otherwise, also is no ground to discard their sworn testimony otherwise worthy of belief.
13. The next objection of the counsel that no reason has been assigned for ignoring the plaintiffs or say preferring the defendant, this objection is also meaningless. It has come on record that Shri Dasonddi Ram made a gift of immovable property as far as back 1957 (Exhibit D-3) in favour of the defendant whom he described as his adopted son. Mutation in respect of the gifted land was sanctioned in his favour on 27.6.1957 The fact that the defendant had been looking after the old man during all these years is well proved on record as per voter lists (Exhibit D-8 and D-9) which show the defendant and the prepounder to be living in the same house.
14. Registered will in this case was executed in the year 1967. Dasondhi Ram died in the year 1957. During all these years, he did not think of reversing his decision is ample proof that he intended to give the property to the defendant whom he treated as his son.
15. The judgment cited by the appellants Ram Piari v. Bhagwant and Ors., (1990-1) 97 P.L.R. 639 (S.C.) is not applicable to the facts of the present case. On fact of that case, the Court came to the conclusion that there has been erroneous application of principle of Jaw which has resulted in miscarriage of justice and so the Court thought fit to interfere- under Article 136 of the Constitution of India. However, in the present case, even on re-appraisal of facts on record no such question of law much Jess a substantial question of law so as to attract Section 100 of the Code of Civil Procedure is discernible. Apex Court in Malkani v. Jamadar, A. I. R. 1987 S. C. 769 declined to examine the matter afresh in view of concurrent findings of the Courts below. I, too, find no ground to interfere in the concurrent findings of the courts below.
16. The result, therefore, is. that the appeal must fail and is dismissed.
No costs.