Umeshwar Pandey - (1.) -Heard Sri Sankatha Rai, learned counsel for the appellants.
(2.) THIS second appeal challenges the judgment and decree dated 10.10.2006 passed by the lower appellate court granting the appeal of the respondents plaintiffs and decreeing the suit by reversing the judgment and order of the trial court. The respondents plaintiffs filed a suit for cancellation of registered Will dated 23.10.1992 executed by one Preetam Singh, who happened to be father of the plaintiffs. The Will was challenged on the ground that it has been got executed by some impostor posing to be Preetam Singh. That Preetam Singh at that point of time of the execution of the Will was an old and infirm person of about 80 years of age. The plaintiffs, who are daughters, had been looking after his comforts and there was absolutely no occasion for Preetam Singh to execute a Will in favour of the defendants, who are simply his nephews, thus, divesting the ownership of the entire property held by him and entitling to his nephews to the title of said property after his death. The suit was contested by the appellants defendants stating that it were they who had been looking after all the comforts of Preetam Singh during his old age and he having been fully satisfied with the service of the defendants, made up his mind to execute the impugned Will in their favour. They also disputed the status of plaintiff No. 1-Smt. Kamla Devi of being the real daughter of the executant of the Will and stated that this Smt. Kamla Devi is a daughter born to the wife of Preetam Singh from out of her earlier wedlock with some other person.
(3.) THE trial court after considering the pleadings of the parties framed issues and having recorded evidence of the parties oral as well as documentary and upon hearing the counsel of the respective parties, was of the view that the Will in question was a genuine document duly proved on record and there could not be any doubt about its execution by the deceased Preetam Singh, accordingly the plaintiffs' suit was dismissed. Against this judgment and decree, the plaintiffs went in appeal before lower appellate court which while reversing the findings recorded by the trial court has been of the view that the Will in question appears to have been executed in doubtful circumstances more especially at the fag end of the life of Preetam Singh when he was too much old a person of about 80 years. THErefore, in order to prove that this Will was actually a genuine document even though the initial burden was not on the defendants, they did also have heavy burden upon them to rebut the evidence of the plaintiff. THE appellate court has found out from the evidence recorded in the trial court and from other materials available on record that the Will in question is not a document, which has been got executed in fair manner. THE executant of the Will Preetam Singh was an old person and since the recital of the Will itself is doubtful, it could not be held that it is in all possibility, a genuine document executed by that old man. THE appellate court has discussed the entire evidence and the available circumstances elaborately and thereafter only has reversed the judgment of the trial court. Sri Sankatha Rai, learned counsel for the appellants, has submitted that one of the plaintiffs Smt. Kamla Devi withdrew the suit and therefore, there was absolutely no occasion to decree the same for cancellation of the impugned Will. It is also argued that the appellate court has not taken right view in the matter and has not discussed the evidence in the manner, as it has been discussed by the trial court.;