(1) THIS is defendants Regular Second Appeal against the judgment and decree of the District Judge, Faridkot, whereby the appeal filed by the plaintiff was accepted, thereby decreeing his suit.

(2) BRIEFLY put :the dispute pertains to determining the validity of will dated 12. 4. 1975, executed by Sardara Singh, brother of Harnam Singh (Plaintiff) in favour of his alleged wife Smt. Kartar Kaur. The parties are near relations. Harnam Singh, is the real brother of Sardara Singh, deceased, whereas Kartar Kaur claims herself to be the wife of Sardara Singh. The later fact has been denied by Harnam Singh who states that she is, infact, widow of Bhan Singh, another brother of Sardar Singh. Harnam Singh has laid claim to the property of Sardara Singh, deceased, on the ground that Sardara Singh died issueless/wifeless and so, he alone being his brother, is entitled to succeed to the estate of the deceased as other brothers, sisters and mother have already pre-deceased Sardara Singh. This way, the plaintiff denied the execution of will in favour of Kartar Kaur as well as her marriage with Sardara Singh and so filed the present suit for possession.

(3) THE defendant denied the various allegations of the plaintiff. It was further alleged that she is widow of Sardara Singh and was living with him as his wife. It is further the case of defendant that the deceased executed a will in her favour on 12. 4. 1975 and pursuance to which mutation of land, too has been sanctioned in her favour.

(4) ON the pleadings of the parties, the following issues were framed:

1. Whether Sardara Singh executed a valid will in favour of Kartar Kaur OPD. 2. Whether Kartar Kaur is a widow of Sardara Singh deceased OPD. 3. Relief.

(5) THE trial Court after referring to deposition of scribe Balraj Singh and attesting witnesses Veer Singh and Nachatar Singh to the will dated 12. 4. 1975, held the same to be free from any suspicion. Accordingly, issue No. 1 was decided in favour of the defendant. Under issue No. 2, the Court came to the conclusion that after the death of Bhan Singh, Kartar Kaur @ Kartaro married Sardara Singh (Kareva marriage), which fact was supported by Sarpanch of the village and Member of the Panchayat. Not only this Harnam Singh when cross-examined admitted that dead body of Sardara Singh was taken away by the Kartar Kaur, who collected the mortal remains of Sardara Singh also. With this evidence on record, the trial Court decided issue No. 2 also in favour of the defendant. Resultantly, the suit of the plaintiff was dismissed.

(6) BEFORE the Lower Appellate Court, the findings of the Court below were challenged by the appellant. Much emphasis was laid with regard to the alleged Karevanama, which did not see the light of the day. Besides this, it was highlighted that voters list show Kartar Kaur and Sardara Singh in different houses. Agreeing with the counsel for the appellant, the Lower Appellate Court reversed the finding of the trial Court in this regard. Similarly, the Lower Appellate Court held the will to be suspicious on the ground that the same has been scribed by a clerk of an advocate and no plausible reason has been assigned as to why the services of a deed writer were not availed. Even presence of the witnesses to the will at the time of execution of the will, was held to be suspicious. Resultantly, the appeal of the plaintiff was accepted thereby decreeing the suit.

(7) THERE is no denying the fact that the due execution of the will is to be proved by the person who sets up the same. Not only this, he has to prove that the same is free from any suspicions of any kind. It is well settled that mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed by Section 63 of the Indian Succession Act. The initial onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus. In case there are suspicious circumstances, it is incumbent upon the propounder to explain each one of them to the satisfaction of the Court, it is only thereafter that will can be held to be a genuine document. Suspicious circumstances can be a shaky signature, a feeble mind and unfair and unjust disposal of the property or the propounder himself taking a leading part in the making of the will in which he receives a substantial benefit.

(8) THE main thrust of the learned counsel for the appellant is to dislodge the reasoning given by the lower Appellate Court to hold will Exhibit-D1 to be a suspicious document. According to the counsel, the Lower Appellate Court without assigning any valid reasons has brushed aside the unimpeachable deposition of scribe Balraj Singh and attesting witnesses Veer Singh and Nachattar Singh. The conclusion of the Court that since the will has been scribed by a clerk of an advocate, is by itself, a suspicious circumstance, is nothing but erroneous in the light of the evidence on record. Elaborating, the counsel urged that it has come in the statements of the attesting witnesses who accompanied Sardara Singh from village to Moga that when they reached the Court premises at Moga, it was a holiday and so no petition writer was available at the given time. It is only per chance that Balraj Singh clerk of an advocate was found in the Court premises and so was asked to scribe the will by Sardara Singh. The trial Court noticed this fact and so held the same to be free from any suspicions. The Lower Appellate Court without meeting the reasons assigned by the trial Court has simply chosen to discard the will on this solitary ground. Statements of Veer Singh and Nachattar Singh, attesting witnesses to the will have been discarded on the ground that these witnesses do not belong to Moga and otherwise, too are not related to the parties. This circumstance, too can hardly be termed as suspicious. Admittedly, the deceased Sardara Singh and the attesting witnesses namely Veer Singh and Nachattar Singh belong to the same village. As has come in evidence, Sardara Singh brought them along with him for getting the will executed at Moga. Veer Singh is the Sarpanch of the village, whereas Nachattar Singh is the member Panchayat. Noting has come on record that these witnesses were in any way interested in getting this document executed. Besides this, there is no such legal requirement that such a document must be attested by a relation of the deceased. Another point which weighed with the Lower Appellate Court is that there is no mention of Kareva marriage in the will. This too has hardly any merit. Kartar Kaur, after the death of his previous husband Bhan Singh entered into a Kareva marriage with Sardara Singh almost 17/18 years before his death, and so lived as his wife. Thus, there was hardly any need to record her as widow of Bhan Singh or that she entered into a Kareva marriage with Sardara Singh in the will as highlighted by the lower Appellate Court. The plaintiff, however, in support of the conclusion arrived at by the Lower Appellate Court has argued that various circumstances highlighted by the Lower Appellate Court are clearly a pointer that the will is surrounded by suspicious circumstances. There is no clear proof on record that Smt. Kartar Kaur, contracted Kareva marriage with Sardara Singh and in the absence of the same, the Lower Appellate Court rightly came to the conclusion that she is not the legally wedded wife of the deceased. This being a finding based upon the appreciation of evidences on record is not vitiated in any manner and once the finding on issue No. 2, is affirmed by this Court, the sole basis for bequeathing his property in favour of Kartar Kaur, itself falls to the ground. This way, the Lower Appellate Court rightly concluded that will Exhibit -D1 is not free from suspicious. Even otherwise, no reasons have been give in the will as to why the preferential claim of the plaintiff being his real brother, is being ignored. In support of his submissions, the learned counsel relied upon the judgment of the Apex Court reported as H. Venkatchala Iyengar v. B. N. Thimmajamma, A. I. R. 1959 Supreme Court 443; Smt. Guro v. Atma Singh, 1992 (2) R. R. R. 26; Bhagwan Singh v. Inder Kaur, 1992 (2) R. R. R. 113 and Banarasi Dass v. Kaur Sain, 1992 (2) R. R. R. 233. The celebrated judgment of the Apex Court is taken as a guideline while assessing the evidence led by the parties with regard to the execution of the will and the suspicious circumstance, if any, surrounding such a will. In the present case much emphasis has been laid by the Lower Appellate Court, as to the will having been scribed by a clerk of an advocate and not by a petition writer. The Lower Appellate Court, while making these observation has simply glossed over the rebutted dispositions of Veer Singh, DW2 and Nachattar Singh, DW3, who accompanied Sardara Singh from village to Moga so as to be the attesting witnesses to the document which was intended to be executed by him. Both the witnesses have clearly stated that as soon as they reached the Court premises, it was found to be a holiday. It has also come in their statements that Balraj Singh, DW4, a clerk of a practising advocate at Moga, happened to be there in the Court premises and so was asked to scribe the will by Sardara Singh. Thus, the reason for getting the will scribed by a person other than the petition writer has been well explained by the witnesses. The Lower Appellate Court, infact, has not dilated upon this aspect, which consequently has resulted in arriving at the conclusion which is not supportable as per evidence on record. Similarly, the lower Appellate Court chose to discard the testimony of both the attesting witnesses on the ground that they do not belong to Moga. It has come in evidence that Veer Singh Sarpanch and Nachattar Singh, Member Panchayat, accompanied Sardara Singh at his instance and reached Moga. Both the witnesses belong to the village of the deceased and knew him over the years and perhaps deceased deposed confidence in them and for this reason, asked them to accompany him for getting this document executed. This way, the Lower Appellate Court, has simply misread the evidence adduced by the defendants in this regard or has chosen to ignore the same for no legitimate reasons. The learned counsel for the plaintiff further insisted that even if the reasoning given by the Lower Appellate Court for reversing the judgment, is not found to be weighty, yet the judgment, can be upheld on the ground that Kareva marriage has not been proved on record, nor any reason has been given in the will for ignoring the plaintiff-real brother of the deceased. I am afraid, this too has hardly any merit. It has come in the statement of the defendant duly supported by Veer Singh and Nachattar Singh residents of the village that Kartar kaur @ Kartaro contracted kareva marriage with Sardara Singh some 17/18 years i. e. after the death of her previous husband Bhan Singh and ever since then has been performing the duties of a legally wedded wife. Not only this, she performed the last rites of Sardara Singh and immersed the mortal remains of Sardara Singh at Haridwar. The first fact has been obliquely accepted by Harnam Singh in his statement as PW1, whereas the later has not been specifically denied. Had she been the wife of Sardara Singh, she would not have performed the last rites which fact, by itself, lends credence to the deposition of Kartar Kaur and her witnesses that she infact contracted a Kareva marriage with Kartar Singh and remained as his wife till his death. The last objection of the learned counsel for the respondent is that there is no mention in the will as to why the plaintiffs claim to his estate is being excluded. This point has otherwise been answered as deceased in his will has stated that Kartar Kaur is his wife. Wife in preference to the brother of the deceased succeeds under Hindu Succession Act; Yet with a view to remove all possible objections which may be raised by the interested persons, the deceased rightly thought of bequeathing his property in favour of Kartar Kaur so that no such controversy is raised subsequently. I have perused the judgments cited by the learned counsel for the respondent. Except for judgment in H. Venkatchala Iyengars case no other judgment has any applicability to the facts of the present case. Each case has been decided on its peculiar facts and thus no useful purpose will be served by dilating upon each one of these judgments.

(9) FOR the aforesaid reasons, I accept the appeal and set aside the judgment and decree of the Lower Appellate Court. Resultantly, the suit of the plaintiff shall be deemed to have been dismissed. In the peculiar facts and circumstances of the case, the parties are left to bear their own costs.