Hemant Gupta, J.
1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned first Appellate Court, whereby suit for possession claiming 1/3rd share in land measuring 99 kanals 1 marla, owned by Sawan Singh son of Sahab Ditta was dismissed in appeal.
2. Plaintiff Sadhu Singh had two brothers, namely, Maghi Singh and Sawan Singh. Maghi Singh died during the lifetime of Sawan Singh. On 15.5.1977 Sawan Singh died after the death of Maghi Singh. Sawan Singh was owner of l/3rd share, in the agricultural land in village Kheri Jarnkhelan Taraf as mentioned in para No. 1 of the plaint and l/9th share in the land mentioned in para 3(c) of the head note of the plaint. It is the case of the plaintiff that he being brother of the deceased Sawan Singh is a preferential heir to succeed the property of the deceased in preference to the deceased, who are the sons of the pre-deceased brother. The plaintiff challenged decree dated 30.4.1977, alleged to have been obtained by defendants No. 1 to 4 from the Court of Sub Judge, 1st Class, Bassi. It was alleged that the said decree was nullity and confers no title or interest in the property in dispute to the defendants. It is, inter-alia alleged that the suit dated 30.4,1977 was sham and fictitious one; was not signed and verified by the plaintiffs and that such suit was decided on the same day on the alleged admission of the defendant Sawan Singh.
3. The defendants not only relied upon the decree dated 30.4.1977 as legal and valid but also asserted that Sawan Singh has executed his last Will dated 26.10.1975 of his. entire immovable property in favour of defendant Nos. l to 4 and thus, it was alleged that the suit is liable to be dismissed. Issue No. 1 and 2 are the material issues. Issue No. 1 is to the effect 'whether the decree dated 30.4.1977 is a nullity and not binding on the plaintiff and Issue No. 2 is whether Sawan Singh has executed a valid Will in favour of defendant Nos. 1 to 4'.
4. The learned trial Court decided both the issues against the defendants and thus, decreed the suit. Under issue No. 1, it was found by the learned trial Court that there was no dispute between the defendants and Sawan Singh, which could be settled by family arrangement and that the arrangement was mere transfer of property. It was also held that the identity of the person, who made statement in the court on 30.4.1977 is not proved and consequently held that the decree dated 30.4.1977 has been obtained by misrepresenting the facts and producing a fictitious person in place of real Sawan Singh. On issue No. 2, the Court found that the Will is surrounded by suspicious circumstances, inter-alia, for the reason that the Will was not produced at the time of sanction of the mutation of the estate of Sawan Singh and the mutation was sanctioned in favour of the plaintiff. The original Will or its photocopy was not produced by the defendant in the present case along with the written statement and that the photocopy of the Will on record, does not bear the initials of the Presiding Officer. The said fact was taken into consideration to show that the Will, was subsequently filed with the suit some time-during the proceedings of the case; in the previous suit which was decreed on 30.4.1977, the defendants have not alleged in the plaint the execution of any Will by Sawan Singh deceased, resident of Village Kheri Jarnkhelan Taraf and that the testator was ill for sometime before his death; the Will was executed at Village Gharaun, 15 miles from his village. One of the marginal witnesses, namely, DW4 Hardayal Singh is father-in-law of beneficiary Jagir Singh. DW2 Amar Singh (attesting witness) and another attesting witness DW6 Banarasi Dass are also residents of Village Gharuan.
5. The learned trial Court found that the register maintained by the Scribe is not complete and entries exist in haphazard manner and that first entry was made on 2.1.1972 and the last entry was made on 21.9.1977, but it is apparent that he used to scribe the Will by going to the villages of the persons, who wanted to execute the Will and that a criminal case is pending against him. The said witness was found to be disbelieved by the Assistant Collector and the Will scribed by him was found to be executed under suspicious circumstances. The presence of Sawan Singh at village Gharaun on the date of execution of the Will was not believable and that testimony of DW4 Hardayal Singh is not worthy of any credence. Shri K.S. Puri, Documents Expert, produced by the defendants to prove the thumb impressions on the Will has reported that the thumb impressions are not comparable. The trial Court concluded that the thumb impressions on the statement allegedly given by Shri Sawan Singh on 30.4.1977 and that on the Will Exhibit D2 do not tally and thus, decreed the suit holding that neither the decree nor Will confers any right upon the defendants.
6. In appeal against the said judgment, the learned first Appellate Court found that the property cannot be transferred by way of a consent decree as the plaint and statement of the defendant admitting the claim is no substitute for transfer of the property Reliance was placed on the judgment of this Court reported as , Sardari Lal and Ors. v. Smt. Shakuntala Devi,. However, on the question of Will, the first Appellate court reversed the finding of the learned trial Court and thus, dismissed the suit.
7. During the course of hearing of appeal on 4.1.2006, the following substantial question of law was found to have arisen for consideration of this Court:
Whether Will, Exhibit D2, dated 26.10.1975 is proved to be executed and that it is not surrounded by suspicious circumstances.
8. The learned first Appellate Court found that the statement made by Sawan Singh Exhibit Dl in the suit filed by the defendants on the basis of family arrangement has to be presumed to be genuine. Under Section 80 of the Indian Evidence Act, the onus was on the plaintiff to show that Sawan Singh did not appear before the Court in the earlier litigation. The Court found that the factum of statement in the previous suit is a strong circumstance in favour of the working in the mind of Sawan Singh regarding making of the Will. It also found that mere fact that Hardial Singh has witnessed the Will, cannot be considered as a suspicious circumstance as had Hardial Singh been vitally interested in the estate of Sawan Singh, his efforts would have been to see that Sawan Singh bequeaths all his estate in favour of Jagir Singh and not in favour of other defendants. Similarly, the another attesting witness Amar Singh is friend of Hardial Singh and his testimony does not advance the case of plaintiff. The Court reversed the finding regarding credibility of Banarsi Dass and concluded that sins of the scribe would not visit the legatees and even if the Scribe is rushing to and fro to make his living there is nothing wrong about it. It was further held that though Banarasi Dass may have unsavory past and unhappy antecedents but that would create suspicion and mere suspicion, however, strong, shall not take ^iace of positive proof and thus, reversed the finding. As per the Expert's report, he could not compare the thumb impressions but there is no evidence that the thumb impressions do not tally. The plaintiff could have got the thumb impressions compared. The trial Court went wrong in assuming the role of a Finger Print Expert and proceeded to examine the thumb impressions by itself.
9. Learned Counsel for the appellant has argued that the decree dated 30.4.1977 cannot be taken into consideration conferring ownership rights in favour of the defendants and that the finding recorded by the learned first Appellate Court that the Will dated 26.10.1975 is duly proved to be executed and is without any suspicious circumstances, is not sustainable in law. The conclusion drawn by the learned trial Court was based upon proper appreciation of evidence, but the learned first Appellate Court reversed the findings without any cogent reasons. Each of the factor taken into consideration by the learned trial Court is sufficient to hold that the Will dated 26.10.1975 is not surrounded by suspicious circumstances.
10. Maghi Singh brother of the deceased Sawan Singh has pre-deceased his brother Sawan Singh, The Will is alleged to be executed by Sawan Singh in favour of grandsons of Maghi Singh in preference to his brother i.e. plaintiff. The execution of such Will is sought to be proved by producing DW6 Banarasi Dass Scribe, DW4 Hardial Singh and DW3 Amar Singh (attesting witnesses). The execution of the Will is proved on the statements of the attesting witness and the scribe. Though the Handwriting and Finger Print Expert DW10 Dewan K.S. Puri has deposed that the thumb impressions on Will are not clear for a definite opinion and that type and trend of ridges are loop with left opening but these are not enough to give definite opinion, though these are similar with the specimen thumb impression. He has deposed that in other words, the type and left down trend of ridges in the loop are similar in the disputed and the specimen thumb impressions, but he cannot give any definite opinion on these similarities which are only in type and main tend of ridges.
11. The learned trial Court has proceeded to compare the thumb impressions and concluded that the thumb impressions are not comparable. In my view, the comparison of thumb impressions, require a scientific study and on the basis of comparison from naked eyes without any scientific basis, no finding could be returned that the thumb impressions are not of the same person. It was open to the plaintiff to examine any other expert to enable the Court to frame an opinion that statement of which of the Expert is believable. Dewan K.S. Puri a known Finger Print Expert, has deposed that though the type and trend of the ridges are similar but definite opinion cannot be given. Therefore, the basis of statement of DWIO-Dewan K.S. Puri, one can conclude that the thumb impressions have similarities but the no definite opinion could be given.
12. In the absencei of evidence of any. expert, to return ..a conclusive .finding that the thumb impressions are not of the one and the same person, the Court is to revert back to the oral testimonies in respect of the Will. DW6 Banarasi Dass has deposed that he has scribed Will at village Gharuan at the instance of Sawan Singh, which was read over to him and he thumb marked the same in the presence of Amar Singh, Hardial Singh and Charan Singh. He has produced his register of execution of Wills. First entry in the register is that of 2.1.1972 and the last that of 20.12.1977. The register has been used by the Scribe for almost six years. Mere fact that the witness scribes the Will at different places, will not render the testimony of the witness as that of an unreliable witness. The places at which he has gone to execute the Will are in the near vicinity of the place of his stay. Therefore, it is but natural for the persons to seek assistance of an experienced Deed Writer. At best his testimony is required to be examined with care and caution but, mere fact that he has executed Wills at different places or he was disbelieved in one or two cases, will not render his testimony inadmissible or untrustworthy in evidence. The due execution of the Will is dependent upon proved circumstances in each case and, therefore, the testimony of DW6 could not have been rejected by the learned trial Court. The first Appellate Court has rightly taken into consideration the testimony of the Scribe. Similarly statement of DW4 Hardayal Singh is also that of a reliable witness. He is Nambardar of Village Gharuan, though one of the defendants i.e. Jagir Singh is his son-in-law. Mere fact that the Will is attested by the father-in-law of a beneficiary, cannot be termed as a suspicious circumstance. The village Gharuan, where the Will is executed is only 15 miles away from the village of testator. If there had been any intention to usurp the land of Sawan Singh, the Will would have been prepared bequeathing the entire property in favour of his son-in-law Jagir Singh.
13. DW3 Amar Singh has also supported the execution of Will by Sawan Singh at Gharuan. He has denied the suggestion that a false document has been executed at the instance of Hardial Singh. Rather he deposed that he attested at the instance of Sawan Singh. The execution of the Will, thus, stands proved. The suspicious circumstances delineated by the learned trial Court are based on surmises arid conjectures. The fact that the mutation was sanctioned on the basis of Will is not a ground to hold that the Will was not genuine. The plaintiff got the mutation sanctioned in his favour within one month of the death of the deceased. Similarly, if the photocopy of the Will is not signed by the Presiding Officer, it is not relevant to determine the genuineness of the Will. The defendants have relied upon the Will in the written statement. Similarly, in Civil Suit filed on 30.4.1977, the mention of the Will was not warranted. The Will has to come into operation only after the death of the executor. Since Sawan Singh died on 14.5.1977, no adverse inference can be drawn from the fact that there was no reference of the Will in the Civil Suit. The learned first Appellate Court has considered all the aspects in detail to return a finding of fact that the Will dated 26.10.1975 is proved to be executed by Sawan Singh and is not surrounded by suspicious circumstances.
14. Learned Counsel for the appellants has sought to dispute the said finding by way of re-appreciation of evidence. With the help of learned Counsel for the parties, I have gone through the evidence as well. Even on re-appreciation of evidence, I do not find that the findings recorded by the first Appellate Court are not the plausible findings in law.
15. Consequentlys I do not find that any substantial question of law arises for consideration in the present Regular Second appeal. Hence, the same is dismissed with no order as to costs.