JUDGMENT Shiv Charan, J.
1. Heard Sri K.K. Deubey, learned Counsel for the appellants and Sri Harish Chandra Mishra on the point of admission of the second appeal for hearing and I have also perused the judgements of the courts below and other documents filed by the parties. From perusal of the documents shows that the appellants instituted O.S. No. 430 of 1986 for cancellation of the will dated 17.4.1986 executed by Pancham Singh in favour of defendant Smt. Dhanna Bai. It has been alleged in the plaint that plaintiffs are sons and widow of Pancham Singh. That Pancham Singh "inherited the property situated at Nandpura and Orchcha. That Pancham is used to visit Jhansi in order to look after the property situated in Jhansi and he engaged the defendant Smt. Dhanna Bai for domestic purposes for cleaning of the house etc. That Pancham Singh was suffering from cancer and he was weak and frail and mentally not sound. He remained hospitalized for treatment. As the defendant was looking after Pancham Singh. Hence taking the absence of appellant she got executed a will in her favour on 17.4.1986 and this will was also registered. But as Puncham Singh was not in fit state of mind and there was no necessity to execute a will in favour of the defendant when there were his legal heirs. Hence this will was fabricated. And on the strength of will she occupied the property of Nandpura, Jhansi. She was not the legally wedded wife of Pancham Singh. Because his wife Smt. Kausa Bai was alive at the time of execution of will. That no marriage took place of the defendant with Pancham Singh after divorce from earlier husband. The defendant contested the suit and filed written statement and denied from the allegations of the plaint. It has been admitted that Pancham Singh was suffering from cancer and he remained hospitalized in Germany hospital Jhansi. Further alleged that relation were strained in between Pancham Singh, his first wife and sons. Hence about 30 - 35 years earlier Pancham Singh deserted his first wife according to the custom and came in Jhansi to live there. And she married with Pancham Singh according to custom of the community and her name was recorded in the revenue record as the wife of Pancham Singh. It is wrong to allege that she was the domestic servant of Pancham Singh. The cremation was also performed by her. At the time of execution of will plaintiff No. 3 was not alive. The property situated at Jhansi was purchased by Pancham Singh and this property was delivered to the defendant by will. That the will was properly executed. Both the parties produced oral as well as documentary evidence to prove the facts in issue and on the basis of evidence produced by the parties, the trial court dismissed the suit vide judgment and 'decree dated 10.10,2000 by the Addl. Civil Judge, (S.D.) Jhansi. Against this judgment and decree of the trial court C.A. No. 97 of 2000 (Jagdish Singh and Anr. v. Dhanna Bai) was instituted and this appeal was also dismissed with costs vide judgment and decree dated 30.10.2007.
2. It has been argued by learned Counsel for the appellants that it is wrong to allege that Smt. Dhanna Bai was legally wedded wife of Pancham Singh. That Smt. Dhanna Bai in her statement stated her self as wife of Sunnu. When she is alleging herself wife of Sunnu as then as to how she married with Pancham Singh is not clear. That Annexure-17 is the copy a of the statement of Dhanna Bai. It has also been argued that it has not been proved that Dhanna Bai divorced her earlier husband Sunnu. No evidence have also been produced and also have not been proved that Pancham Singh divorced his first wife Smt. Kausa Bai so as to marry with Dhanna Bai. He stated that there are variation and contradiction in the statement of Dhanna Bai and in other circumstance regarding the period of marriage with Pancham Singh. That Dhanna Bai is not legally wedded wife and she was only domestic servant. Hence there was no question of executing the will by Pancham Singh in favour of Dhanna Bai of the property situated in Jhansi. That this will was fabricated and forged as a result of playing fraud. That at the time of execution of the will Pancham Singh was suffering from cancer and taking the benefit of illness this will was fabricated. That there was no necessity to Pancham Singh to execute the will because his son and wife was alive. It has also been argued that at the time of execution of the will wife of Pancham Singh i.e. Smt. Kausa Bai was alive. But in the will it has been stated that his wife had died That Smt. Kausa Bai is as defendants No. 3 in the suit. That no custom has been proved regarding Chhutam Chhutta in the community and learned Counsel also cited certain judgements in this connection.
3. Learned Counsel for the respondent opposed the argument of appellants' counsel and he further argued that no substantial question of law is involved in this case. The will was duly proved by the evidence according to the Evidence Act. That Smt. Dhanna Bai was the wife of Pancham Singh and after divorce to earlier husband she remarried with Pancham Singh. That Pancham Singh divorced according to custom prevalent in the community to his earlier wife and he remarried with the respondent. That overwhelming documents have been produced to show that Dhanna Bai is the legally wedded wife of Pancham Singh. That the will Is registered and admissible in evidence. That the property in dispute for which the will was executed was acquired by Pancham Singh and by the will ancestral property was delivered to the appellants. That the will was executed out of love and affection.
4. I have considered all the facts and circumstances of the case as well as argument of learned Counsel for the parties. And from the evidence I am of the opinion that the respondent/defendant proved the execution of will as required to be proved by the Evidence Act. The scribe and witness were produced to prove the will. On the basis of minor contradiction the genuineness of the will cannot be doubted. Both the courts below arrived at the conclusion that Pancham Singh executed the will in favour of Dhanna Bai. It is also a fact that Pancham Singh lived with Dhanna Bai as wife and husband. In the voter list the name of Dhanna Bai has been recorded as wife of Pancham Singh. There are bills of electricity and house tax which shows that Dhanna Bai was the wife of Pancham Singh. The receipt of house tax is of 6.1.1976. And one receipt is of the year 1978-79 and in this document the name of Dhanna Bai has been shown as wife of Pancham Singh. It cannot be believed that this document is fabricated and procured for the purpose of this will. In the year 1976 there was no dispute of this fact. Hence there was no question of fabrication of this documents. The will in question was executed on 6.5.1984 although it is a fact that at the time of execution of the will Pancham Singh was suffering from cancer and after 24 days of execution of will Pancham Singh died. But merely due to this reason the execution of will cannot be doubted. I disagree with the argument of appellants' counsel that the will in question is shrouded with suspicion and hence it cannot be believed. He argued that neither the marriage has been proved nor the divorce to Pancham Singh's earlier wife is proved nor the divorce by Dhanna Bai to her earlier husband is proved. And there are material variations in the time regarding marriage which also show that the factum of marriage is wrong. But I disagree with the argument of appellants' counsel. The document shows that since 1976 Dhanna Bai had been living with Pancham Singh as his wife. And there is record to prove this fact. Whether marriage was valid or not is not very material for disposal of this case. The question is whether Pancham Singh executed a will in favour of Dhanna Bai as alleged. The will can be executed out of love and affection in favour of a person. And in the present case there is documentary evidence that Dhanna Bai had been living as his wife with Pancham Singh although marriage is not required to be proved valid. But even then document shows that both of them live as wife and husband and it is sufficient circumstance to infer that Pancham Singh out of love and affection executed the will of his self acquired property situated at Jhansi in favour of Dhanna Bai. Pancham Singh | had an ancestral property at Orchcha (M.P.) and Pancham Singh was conscious of the fact that which property was to be delivered to Dhanna Bai by will and which property to his sons. The property situated at Orchha (M.P.) was delivered to the appellants in the will. Although learned Counsel for the appellants also argued in this context that as these appellants are also the member of the joint family and they were sharer in the property by birth and there was no necessity to execute the will regarding the property of Orchha. Because in all circumstances it were the appellants who were entitled to inherit property But it was for the executant of the will to decide that as to why he mentioned the property of Orchcha in the will. If the intention of Dhanna Bai was to play fraud on Pancham Singh then she could have also got executed the will regarding the property of Orchha also. But as Pancham Singh wanted to deliver the property of Orcha hato the appellants. Hence he specially mentioned in the will that this fact shows the genuineness of the will.
5. Learned Counsel for the appellant cited (Smt. Bibbe v. Smt. Ram Kali and Ors.) on the point of custom regarding marriage A.L.P. 2001(44) page 737 (N. Kamalam v. Ayyasamy and Anr.) Hon'ble Supreme Court on the point of prove of will, (Yamanaji H. Jadhav v. Nirmala) Hon'ble Supreme Court on the point of custom regarding marriage, (1977) 1 Supreme Court cases 369 (Smt. Jaswant Kaur v. Amrit Kaur and Ors.) regarding the proof of will and Major Singh v. Rattam Singh and Ors.) regarding substantial question of law in connection of the will.
I have perused all the judgements filed by learned Counsel for the appellants. But considering the facts and circumstances of the case in my opinion these ruling are of no help to the appellants. The Hon'ble Apex Court in case of Major Singh v. Rattan Singh and Ors. held that if the will has been validly executed and the courts below recorded a concurrent finding that the will was not validly executed then High Court can interfere. And this is a substantial question of law. But this ruling is against the argument of appellants' counsel. In the present case both the courts below recorded a concurrent finding that the will was validly executed and there are no suspicious circumstance to show that the will is doubtful. Under theses circumstance on the basis of this judgment of the Hon'ble Apex Court there is no substantial question of law. It is also material to mention that during the life time of Panchan Singh these appellants filed a criminal complaint under Section 420 I.P.C. against the respondent and the criminal complaint was dismissed. And this is also material circumstance to show that Pancham Singh executed the will.
6. On the basis of above discussions, I am of the opinion that there is a concurrent finding of both the courts below regarding the genuineness of the will and the will was duly proved according to the evidence Act. Hence the judgment of the courts below is perfectly justified. As the judgements were delivered after recording the finding of fact, hence the appeal cannot be admitted at this stage for hearing. That no substantial question of law is involved and the substantial question of law framed by the appellants' counsel in the memo of appeal cannot be called the substantial question of law.
7. In my opinion there is no justification to admit the second appeal for hearing. The second appeal is liable to be dismissed summarily accordingly. The second appeal is dismissed summarily accordingly.