- (1.) UMESHWAR Pandey, J. Heard Sri Satya Prakash, learned Counsel for the appellant and Sri S. C. Verma holding brief of Sri R. K. Yadav appearing on behalf of the respondent No. 1.
(2.) THIS appeal challenges the judgment and decree of the lower appellate Court dated 6-11-2006 whereby the appellant plaintiff's first appeal has been dismissed and the judgment of the trial Court has been affirmed. The appellant plaintiff filed a suit for cancellation of a Will stating it to be a forged document and obtained by practice of fraud. The executant of the Will-Gupal Singh has been claimed to be the real brother of the appellant whereas the defendant No. 1, who is beneficiary in the Will is a resident of some other village and belongs to a separate caste. On this basis, it is alleged that there was absolutely no occasion for Gupal Singh to execute the disputed Will in favour of the defendant- respondent No. 1. It is further alleged that one advocate namely R. K. Kulshrestha doing pairvi on behalf of Gupal Singh in other Suit No. 392 of 1994 after manipulating all these, got the disputed will prepared and executed. In fact, there was no occasion for execution of the same. It is accordingly liable to be cancelled. In reply to the aforesaid pleadings the defendant respondent No. 1 filed his written statement inter alia pleading that in fact the said Gupal Singh was a bachelor and had no connections with his brother, the plaintiff. He was being looked after for all his comforts by the defendant No. 1 and was staying with him. His earlier suit No. 392 of 1994 for cancellation of sale-deed was also being prosecuted on his behalf by the defendant No. 1 for which Gupal Singh had executed a general power of attorney in defendant's favour. Since the said executant of Will was extremely obliged by the defendant respondent No. 1, he made up his mind to execute it which is not a forged document.
(3.) ON the pleadings of the parties, the trial Court framed several issues in this case and gave its findings holding that the Will in question is not a forged document. It was executed by Gupal Singh in full consciousness and whether the signatures or the thumb-impressions made in the document were that of Gupal Singh or not the burden to prove it was upon the plaintiff. The trial Court also found that from the evidence recorded from the side of the defendant No. 1, which also include the statement of the attesting witness, it was duly proved that the Will was executed with all genuine intentions by Gupal Singh without any pressure or other influence and thus only the suit was dismissed against which the first appeal was preferred before the Court below. While concurring with the factual findings in the case recorded by the trial Court, the lower appellate Court has also held that the Will in question was perfectly a genuine document duly executed without any otherwise influence or pressure made upon its executant Gupal Singh. The defendant No. 1, the beneficiary under the Will was looking after his all comfort etc. and Gupal Singh was extremely pleased with him, thus resulting into the execution of Will. The arguments advanced from the side of the plaintiff appellant that the burden has been wrongly put upon the plaintiff to prove the genuineness of the Will, was also discussed by the lower appellate Court and it was found that the burden to prove the will to be an ingenuine and forged document was actually upon the plaintiff and not upon the defendants because it was the plaintiff who sought its cancellation in the suit. Thus, the Court below affirmed the findings recorded by the trial Court and dismissed the appeal.;