JUDGMENT Usha Mehra, J.
1. Suit for partition was filed by this appellant (plaintiff before the Trial Court) impleading his two brothers, present respondents (defendants before Trial Court). His suit was dismissed vide the impugned judgment dated 3rd December, 1980. Aggrieved with the dismissal of the suit he challenged the same by way of this appeal, primarily, on the ground that the respondents herein had admitted that the appellant had 1/3rd (one-third) share in the property in question. In view of this admission coupled with the fact that his father and mother bequeathed the property in his favor it was not necessary for him to implead his sisters as party to that suit. Even otherwise under the Hindu Succession Act sisters could not success to the property in question, nor the suit could be dismissed in view of the preliminary decree passed in Suit No. 296/64 dated 28th May, 1965.
2. In order to appreciate the challenge, we may have a quick glance to the facts relevant for the decision of this case. That one-half share in house No. 2976, Kucha Maidas, Bazar Sitaram, Delhi was owned by Prabhu Dayal, grand father of the parties and the remaining one-half portion was owned by Shambu Dayal, brother of Prabhu Dayal. On death of Prabhu Dayal his share was inherited by late Shri Ram Richhpal, father of the parties. And the share of Shambu Dayal was inherited by his son Jai Kishnn Dass. Father of the parties purchased the share of Jai Kishan Dass for a consideration of Rs. 8,000/- and thus became the owner of the entire house No. 2976, Kucha Maidas, Bazar Sitaram, Delhi. Thus, father of the parties late Shri Ram Richhpal Gupta acquired one-half share in the house in his individual capacity and remaining half as ancestral property as Karta. Late Ram Richhpal filed a suit for partition regarding one-half share acquired as ancestral property. The said suit was filed against his three sons i.e. appellant and respondents herein as well as against his wife Dhanno Devi. In the said Suit No. 296/64 preliminary decree for partition was granted in favor of fate Ram Richhpal. By the preliminary decree it was declared that the appellant herein along with these respondents and their mother held 1/5th share each in the half portion of the house which late Ram Richhpal acquired as ancestral property. Further of the parties vide his Will dated 24th March, 1963 bequeathed life interest in the property in question to his wife Smt Dhanno Devi. It was further stated in the Will that after her death the house in question would vest with the appellant herein in exclusion of others including respondents herein. Appellant herein was also appointed as the sole executor of the Will of his late father. Similarly Smt. Dhanno Devi mother of the parties vide registered Will dated 15th August, 1965 bequeathed her movable and immovable properties to the appellant herein with full right of alienation. She also appointed the appellant as the sole executor of her Will.
3. Ram Richhpal Gupta died on 3rd July, 1966 whereas Dhanno Devi died on 24th April, 1975.
4. Parties were in joint possession of the house in question. Appellant filed suit for partition seeking 8/10th share in the house in question. He pleaded that respondents herein had only 1/10th share each in the house in question.
5. Respondents herein contested that suit inter alia, on the grounds that the property in question could not be partitioned by metes and bounds. Moreover, value of the property had not been declared properly for the purpose of Court-fee and jurisdiction. That the suit for partition of the property in question in respect of one-half share was not maintainable because of the preliminary decree passed in Suit No. 296/64 decided on 28th May, 1965. It was also denied that one-half share of the property was the self-acquired property of their father. According to respondents their father purchased one-half share from Jai Kishan Dass out of ancestral earnings. He became owner of the property as Karta of the joint Hindu family. They denied that their late father or for that matter their mother ever made any Will bequeathing the property in question in favor of the appellant. Even otherwise Dhanno Devi had no right to Will the property because she had only life interest in the properly, secondly neither father nor their mother were capable of executing the Wills as they were mentally unfit. Their mother was a chronic patient of serious psychotherapy and lunatic.
6. Parties went to trial and led evidence. Appellant beside appearing as PW1 also adduced the evidence of Shri Ram Chand (PW 2) and I.N. Nigam (PW 3) purported attesting witnesses of the Wills executed by his father late Ram Richhpal Gupta as well as of his mother Dhanno Devi. On behalf of respondents, Krishan Mohan respondent No. 2 appeared as DW 1. Shiv Charan (DW 2), Yogender Jain (DW3), Dwarka Prasad (DW 4) and Ramesh Chand (DW 5) all near relations of the parties appeared on behalf of the respondents.
7. The main issues for consideration is whether late Ram Richhpal could bequeath half portion of the ancestral property which he acquired as Karta and whether the Will dated 24th March, 1963 alleged to have been executed by his father late Ram Richhpal is a valid Will? And lastly whether Dhanno Devi mother of the parties could bequeath the property in question by Will dated 15th August, 1965 particularly when she had life interest only and secondly she was lunatic and of unsound mind.
8. Appellant appearing as PW1 proved the death certificate of his father as Ex. P8 and of his mother as Ex. P9. The Will of the father is exhibited Ex. P11. It is a registered Will. Similarly Will alleged to be executed by his mother is exhibited Ex. P12. From the cross-examination of appellant (PW 1), the respondents were able to prove that he took active part in the execution of the Wills of his parents. He was present according to his own admission at the time of execution of their Wills. He was the one who went and called the alleged attesting witnesses. Appellant (PW 1) further admitted in his cross-examination that on 24th March, 1963 his father got head injury. His father fell from the platform. After fall his condition became serious and he became unconscious. When his father fell from the platform on 24.3.1963 this appellant was in his office. He was informed by his son in the office at about lunch time that Ram Richhpal had sustained serious injuries because of fall. Immediately he came back from office and took his father to Willingdon Hospital, where he got him admitted. Due to that fall his father suffered fracture of the left hip bone. Late Ram Richhpal remained in the hospital under treatment for 13-14 days. According to appellant (PW 1) his father executed the Will at his residence on 24.3.1963 in the evening. Even attesting witnesses stated that Ram Richhpal executed the Will inside the 'baithak' of his house in the evening. Since late Ram Richhpal was got admitted in the afternoon in the Willingdon Hospital as admitted by the appellant (PW 1), hence, his statement as well as the statement of his witnesses cannot be relied upon. Their statements are contrary to the facts on record. The statement of appellant and his witnesses in this regard are belied from the fact that his father fell down, broke his hip bone. He was unconscious on 24.3.1963 when admitted in the hospital. If he was admitted in the hospital near about lunch time, then how could witnesses Ram Chand (PW 2) and I.N. Nigam (PW 3) attest his Will in the evening at his house? Late Ram Richhpal as per PW1's admission was rushed to hospital in unconscious state. In view of this admission by appellant it is difficult to believe that late Ram Richhpal could execute the Will on 24.3.1963 in the evening hours. Hence, statements of Ram Chand (PW 2) and I.N. Nigam (PW 3) do not inspire confidence. Neither the testimony of Ram Chand (PW 2) nor of I.N. Nigam (PW 3) inspire confidence particularly when it has come on record according to appellant's own admission that he took his father to hospital near about lunch time in unconscious state. How could such a person with broken hip would come back home and execute a Will? Even otherwise there are material contradiction in the testimony of Ram Chand (PW 2) and I.N. Nigam (PW 3) with regard to the execution of the Will Ex. P11.
9. As regard half portion of the house which was inherited by late Ram Richhpal as "Karta" he could not have bequeathed the same. He was holding that portion of ancestral property in trust as "Karta". He had not right to bequeath. Thirdly according to appellant's own showing his father bequeathed only life interest to his wife. His father according to appellant was exclusive owner of only one-half of the portion. So far as other one-half portion i.e. ancestral property is concerned his father got a preliminary decree which determined the shares in the property and his father got only 1/5th share in it.
10. Ram Chand appearing as PW 2 admitted that he did not know who signed the Will Ex. P11 because in his presence nobody signed the Will Ex. P11. He could not identify the signatures of the executant of the Will as the same was in English. In reply to a question he admitted he was called by the appellant in the evening to attest as witness the Will to be executed by his father. When PW 2 reached appellant's house, the Will Ex. P11 had already been typed. He even knew prior to the execution of the Will Ex. P11 that late Ram Richhpal was going to bequeath the property in favor of the appellant herein. He admitted that late Ram Richhpal did not sign the Will Ex. P11 in his presence on 24.3.1963. In view of these facts as admitted by PW 2 no reliance can be placed on his testimony. His statement appears to have been made at the instance of the appellant who took active part in the execution of the Will of his father. Ram Chand (PW 2) also admitted that appellant was very close to him. PW 2 and the appellant had been jointly taking active part in Arya Samaj activities of the temple.
11. So far as I.N. Nigam (PW 3) is concerned, his testimony has been contradicted by Ram Chand (PW 2). I.N. Nigam (PW 3) said that executant signed and thumb marked the Will Ex. P11 in his presence as well as in the presence of Ram Chand (PW 2). Whereas Ram Chand (PW 2) denied having witnessed the Will Ex. P11 in the presence of I.N. Nigam (PW 3) or the executant of the Will. This is a material contradiction with regard to the execution of the Will Ex. P11. I.N. Nigam (PW 3) stated that late Ram Richhpal executed the Will in the evening at about 6.00 p.m. in the 'baithak' of his house. He denied that late Ram Richhpal was seriously ill or was unable to move on 24.3.1963. This statement creates doubt about I.N. Nigam (PW 3) being a natural witness. Had he witnessed the Will Ex. P11 in the evening he would have known that Ram Richhpal due to fall from the platform of his house had been admitted in the hospital on 24.3.1963 in serious conditions. But this witness PW 3 did not know about the said incident nor knew about the admission of late Ram Richhpal in hospital in serious conditions in the afternoon of 24.3.1963.
12. Shri Krishan Mohan on the other hand appearing as DW 1 in no uncertain words testified that his father late Ram Richhpal sustained serious injuries due to a fall from the 'Chabutra' i.e. platform of his house on 24.3.1963. This part of his statement stood corroborated by the testimony of the appellant (PW 1). Ram Richhpal fell from the platform near about lunch time and his condition became critical due to the fall. He became unconscious when taken to Willingdon Hospital for admission where he remained admitted for couple of days, because of his fall and serious conditions, to our mind, Ram Richhpal could not have been available at his home in the evening to execute the Will Ex. P11. As per appellant's own admission his father became unconscious due to fall. Hence, to our mind, he could not have been in a position to understand the contents of the alleged Will Ex. P11. Krishan Mohan (DW 1) denied the signature of his father on Ex. P11. The incident beside being reiterated by the appellant PW 1 also stood confirmed by Shiv Charan (DW 2) who happened to be a relation of the parties. This incident has also been corroborated by Ramesh Chand (PW 5). He categorically stated that Ram Richhpal fell from "Chabootra" of his house on 24.3.1963 and became unconscious as he sustained head injury. Ram Richhpal remained unconscious from 24.3.1963 to 2.4.1963. Since Ram Richhpal was unconscious, he was incapable of executing a Will like Ex. P11. On this part of his statement not even a suggestion was given nor contradicted it. This shows that Ram Richhpal was not in proper state of mind to execute the Will Ex. P11.
13. It is a well settled principle of law that if there is a suspicious circumstance about the execution of a Will, it is the duty of the person seeking relief to prove the validity of the Will and to dispel such suspicious circumstance. For support reliance can be placed on the decision of the Supreme Court in the case of Gurdial Kaur and Ors. v. Kartar Kaur and Ors., ; Gorantta Thataiah v. Thotakura Venkata Subbaiah and Ors., ; Ramchandra Rambux, v. Champabaiand Ors., . In all these cases the Apex Court considered as to what are the suspicious circumstances and came to the conclusion that those have to be judged in the facts and circumstances of each particular case. If, however, the propounder has taken a prominent part in the execution of the Will which confers substantial benefits on him that itself is a suspicious circumstance attending the execution of the Will and in appreciating the evidence the Court should proceed in a vigilant and cautious manner. Moreover, if the circumstance raises a suspicion of the Court that the Will does not express the mind of the testator then the Court would be right in rejecting the evidence of the attesting witnesses and scribe as well as of the propounder of the Will with regard to the execution of the Will by the testator. In order to appreciate the credibility of the witnesses, the Court can look into the surrounding circumstances. The mere fact that the Will was registered by itself is not a circumstance to show that the Will is genuine. Nor this circumstance in itself is sufficient to dispel the suspicion regarding the validity of the Will where suspicion exists. In this regard reference can be made to the decision of Supreme Court in the case of Rani Purnima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr., reported .
14. In the present case admittedly the Will Ex. P11 was got registered before the Sub-Registrar but that by itself is not a sufficient circumstance to dispel the suspicious circumstance which has been indicated above namely that on 24th March, 1963 when it is alleged the Will Ex. P11 was executed and the witnesses attested, late Ram Richhpal had already sustained head injury, broke his hip bone and was admitted in the hospital in unconscious state of mind. Therefore, there was no question of his being available at 6.00 p.m. at his house. As per PW 1's own admission he was still in his office when he received the message from his son around lunch time that his father Ram Richhpal had fallen from the "Chabootra" of the house. He immediately came home and took his father to the hospital. This shows that the incident must have happened near about lunch time i.e. much before 6.00 p.m. Secondly, it has also come on record by the testimony of Ram Chand (PW 2) and I.N. Nigam (PW 3) that they were called by the appellant herein. He was present when I.N. Nigam (PW 3) was asked to attest the Will. This leads to one conclusion that appellant took active part in the execution of the Will Ex. P11. He is the only beneficiary of that Will. Thirdly no reason has been assigned why Ram Richhpal disinherited all other legal heirs i.e. his natural children from the inheritance. Fourthly he had no right to bequeath the ancestral property which according to appellant's own showing late Ram Richhpal held as "Karta". Further there is a material contradiction in the testimony of Ram Chand (PW 2) and I.N. Nigam (PW 3) as pointed out above. And finally in view of the preliminary decree late Ram Richhpal had only 1/5th share and, therefore, could not bequeath the entire property.
15. For the reasons stated above the only conclusion which can be arrived at is that the Will allegedly executed by late Ram Richhpal Ex. P11 is not a genuine Will. It could not have been executed by Ram Richhpal on 24th March, 1963 nor he could have bequeathed the entire house in favor of appellant.
16. Now turning to the Will of Smt. Dhanno Devi dated 15th August 1965 Ex. P12 that also cannot be called a genuine Will for the reasons that Dhanno Devi was not in a sound state of mind in August, 1965. Krishan Mohan (DW1) brother of the appellant testified that his mother was of unsound mind. She would leave the house of her own in that state of mind without informing any one. She was found missing from home on 15th August, 1965 by Krishan Mohan (DW 1) and was found lying near Novelty Cinema. He tried to search her out at his sister's place as well as at the house of his maternal uncle. She was taken from Novelty Cinema by his uncle. From there she was brought back on 30th August, 1965. He testified that his mother was in the habit of leaving the house in that mental state without informing anyone. Because of this mother leaving the house on 15th August, 1965 without informing any one this appellant lodged a complaint with the Hauz Qazi Police Station. He complained to police that his mother was of unsound mind and left the house wearing 25 Tolas of gold and that she had been taken away by somebody. Krishan Mohan (DW 1) further testified that since his mother was suffering from mental illness and was not of sound mind, she could not have executed the Will Ex. P12. Because of mental illness she would get sometime violent. This part of his testimony that his mother was of unsound mind and was suffering from mental disease and at times would get violent was neither challenged nor denied nor subjected to any cross-examination. DW 2, Shiv Charan a relation of the parties confirmed that late Dhanno Devi at the relevant time when the Will Ex. P12 is stated to have been executed was of unsound mind. She continued to be so till her death. On 15th August, 1965 she was found lying on the pavement of bridge near Mori Gate where she remained for 2-3 days. Wife of Arjan Singh brought her from Mori Gate to his house where she remained for about 10-12 days. Dwarka Prasad is the brother-in-law i.e. sister's husband of the parties. Late Dhanno Devi was of unsound mind was not denied even by PW 1 the appellant herein.
17. After she left the house and till the time she was recovered from the bridge near Mori Gate and taken to the house of her son-in-law Dwarka Prasad, nobody knew her whereabouts. Rather appellant lodged police report about her missing. That she was of unsound mind stood proved from the testimony of Yogender Jain (DW 3) the grandson on late Dhanno Devi. He testified that late Dhanno Devi was of unsound mind. She used to leave the house in that state of mind. He also stated that once she left the house, she was found lying near Novelty Cinema. Dwarka Prasad son-in-law of Dhanno Devi and brother-in-law of parties appearing as DW 4 also testified that Dhanno Devi was of unsound mind. She was incapable of executing a Will. This mental state of Dhanno Devi continued til] her death. She would leave the house because of her mental sickness. This aspect that Dhanno Devi was of unsound mind was neither denied nor subjected to cross examination. In fact from the testimony of DW 1 to DW 5 it stood established that on 15th August, 1965 Dhanno Devi left her house. She was found lying near Novelty Cinema. Ramesh Chand (DW 5) nephew of the parties brought her from there and took her to the house of DW 4. The fact that she was not of sound mind has been proved on record from the unrebutted testimony of the defendant Dhanno Devi left the house on 15th August, 1965 and her whereabouts were not known. In August, 1965 according to defendant's witnesses, mental condition of Dhanno Devi was not good. She was incapable of understanding anything. Even the appellant appearing as PW 1 admitted in cross-examination that his mother was of unsound mind but denied that she remained out of house and stayed on pavement in front of Novelty Cinema under serious attack of lunacy on 15th August, 1965 onwards. He, however, could not deny the suggestion that from Novelty Cinema his maternal uncle took Dhanno Devi to his house. He, however, could not recollect for how long she remained with DW 4. In his own words he admitted that his mother was found missing on 15th August, 1965 which is reproduced as under:
"Search was made for my mother among all the relations and Kishan Mohan defendant told me that she was lying on the pavement in front of Novelty Cinema for 4 days from where my uncle Kesho took her to his house."
18. This admission of PW 1 clearly proves that Dhanno Devi was a mental case. She could come out from home and remained on streets and pavement without anybody knowing. This proves mental illness of late Dhanno Devi. PW 1 admitted having lodged police report with P.S. Hauz Quzi that his mother left without intimation and that she was wearing ornaments measuring 25 tolas.
19. In view of the overwhelming evidence on record to show that late Dhanno Devi was of unsound mind, and was found lying near Novelty Cinema on 15th August, 1965, it does not appeal to reason how a person of unsound mind could execute a Will. Will executed by a person of unsound mind cannot be called a valid Will. Interestingly both Ram Chand (PW 2) and I.N. Nigam (PW 3) also happen to be witnesses to the Will Ex P12 allegedly executed by Dhanno Devi. It may not be a coincidence that same witnesses witnessed the Will Ex. P11 and P12 of the father as well as of the mother respectively. I.N. Nigam (PW 3) stated that Dhanno Devi had signed and thumb marked in his presence whereas her son Krishan Mohan (DW 1) in no uncertain words stated that his mother did not know how to sign. She never used to thumb mark, For this reason also the Will Ex. P12 allegedly executed by Dhanno Devi is not above suspicion. In view of the fact that Dhanno Devi was of unsound mind the alleged Will Ex. P12 executed by Dhanno Devi is shrouded with suspicion which suspicion the appellant miserably failed to dispel. Therefore, the execution of the Will Ex. P12 by Dhanno Devi has been rightly rejected by the learned Trial Court.
20. As already pointed out above the mere registration of the Will does not make its execution genuine particularly when there are serious discrepancies in the evidence of the alleged attesting witnesses as well as the fact that Dhanno Devi was not of sound mind. Hence, mere registration will not make the Will Ex. P12 valid. In fact neither the plaintiff nor his witnesses stated that Dhanno Devi was in sound state of mind when the Will Ex. P12 was executed. For the reasons stated, we find no infirmity in the conclusion arrived at by the Trial Court on issue No. 6.
21. Since it has been held that the alleged Will executed by late Ram Richhpal Ex. P11 was not a valid and genuine Will, similarly Dhanno Devi's Will is not a genuine Will, the question is how the property is to devolve on the legal heirs of the deceased Ram Richhpal. It is to devolve on all the children i.e. three sons as well as the daughters whom the appellant ought to have imp leaded as a party. Having not done so it was fatal to the suit. Orissa High Court in similar circumstances in the case of Biswanath Panda and Ors. v. Dr. Lokanath Panda, , held that under Section 8 read with Section 9 and Schedule-I of the Hindu Succession Act, the first class legal heirs i.e. the sons and daughters will inherit the property of a Hindu who dies, intestate. Since daughters form first class heirs appellant ought to have imp leaded them. Having not done so, the Trial Court was justified in coming to the conclusion that the suit in the absence of necessary party was not maintainable. We see no reason to disagree with the same. We find no merits in the appeal. Dismissed.