JUDGMENT Umeshwar Pandey, J.
1. 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 plaintiffs first appeal has been dismissed and the judgment of the trial court has been affirmed.
3. 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.
4. 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.
5. 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.
6. 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.
7. Learned Counsel for the appellant has submitted that the findings recorded by the court below that the burden to prove the genuineness of the Will was not upon the defendant, who is beneficiary under the said Will and that the burden lay upon the plaintiff to prove it as ingenuine, is an illegal proposition and the case should not have been viewed and merits assessed on these lines by the Court.
8. As regards the contention regarding Will being genuine or ingenuine, the parties have led their evidence on record, which is elaborately discussed in the judgments of both the courts below. In this regard the factual findings have been recorded and those factual findings of course are not to be considered and interfered with by this Court in second appeal. As regards the burden of proof in the present case, it is the plaintiff appellant, who has come for obtaining a decree of cancellation of the Will on the ground of its being forged and in genuine. Therefore, the initial burden to prove the document as a forged document was squarely upon the plaintiff and not upon the defendant. What the defendant was required to do is to produce one attesting witness in the case to demonstrate before the Court that the Will was actually executed in his presence by the testator in all free and fair atmosphere. There was no pressure of any sort upon him in this regard. This burden has actually been discharged by the defendant No. 1 by producing one of the attesting witnesses of that Will. To say, that the defendant has not discharged his burden would not be thus, a correct proposition. The courts below have found that the original Will, which has been challenged, was not got summoned by the plaintiff to show before the Court that it is a forged or illegal document. This burden was on the plaintiff only. Mere statement of fact made by the plaintiff that since the beneficiary in the Will was not related or connected with the executant, Will definitely not be sufficient to prove that the Will is an ingenuine document. It is in the aforesaid facts and circumstances that the courts below have found that there was no justification for granting a decree for cancellation of the Will and as such, the suit has been dismissed. I do not find any substantial question of law as arising from out of the findings so recorded for decision in the first appeal. There is also no infirmity in these findings requiring interference by this Court in a second appeal.
9. The appeal is without merits and accordingly fails and is hereby dismissed.