1 ( 2025:HHC:30225 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.191 of 2025 Date of Decision : 04.09.2025 Neelam Sharma …… Appellant Versus Bhola Ram and another ……Respondents Coram: The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 No For the appellant : Mr. S.D. Gill, Advocate. For the respondent : Nemo. Bipin Chander Negi, Judge (oral) The Appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 28.06.2025, passed by learned District Judge, District Kullu, Himachal Pradesh, in Civil Appeal No. 35 of 2024, whereby the judgment and decree dated 30.07.2024, passed by learned Senior Civil Judge, Kullu, District Kullu, in Civil Suit No. 174/2019/13, was affirmed. 2. The brief facts as emerge from the record are that late Sh. Budhi Prakash was the owner in possession of the suit land and residential house situated at Phati and Kothi Naggar, Tehsil and District Kullu, H.P. He died intestate on 08.04.2013, and the plaintiffs, being his son and daughter, pleaded that they inherited the property and became its owners. It was pleaded that the plaintiffs had looked after and maintained Budhi Prakash 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 ( 2025:HHC:30225 ) during his lifetime and performed his last rites, whereas the defendant did not. The defendant, however, set up a registered Will No. 349 dated 14.07.2005, executed in his favour by Budhi Prakash, and proclaimed himself the absolute owner, threatening to dispossess the plaintiffs. The plaintiffs challenged the Will as a forged and fictitious document, alleging it was procured by the defendant by exercising undue influence, taking advantage of his position as a Naib Tehsildar. 3. The defendant, in his written statement, denied that Budhi Prakash died intestate and asserted the validity of the Will. He pleaded that after the divorce between Budhi Prakash and the plaintiffs' mother, the plaintiff No.1 lived with his mother and had hostile relations with the deceased, while the plaintiff No.2 was raised jointly by the defendant and Budhi Prakash. It was contended that the defendant and his family members were the ones who rendered services, maintained Budhi Prakash during his illness, and bore his treatment expenses. The Will was stated to have been executed out of free will, love, and affection in lieu of the services rendered. Mutation based on the Will was attested in the defendant's favour, and a share of the orchard income was paid to plaintiff No.2 as per the Will's stipulation. 4. Based on the pleadings, the learned trial court framed the following issues: 1. Whether the plaintiffs are joint owners in possession of the suit land, as alleged? OPP. 2. Whether mutation No. 437 dated 15.05.2013 is wrong, illegal, null and void, as alleged? OPP. 3. Whether the plaintiffs are entitled to the relief of permanent prohibitory injunction, as alleged? OPP. 3 ( 2025:HHC:30225 ) 4. Whether the Will No. 349 dated 14.07.2005 executed by late Sh. Budhi Parkash in favour of defendant is legal and valid, as alleged? OPD. 5. Whether the suit of the plaintiffs is not maintainable in the present form? OPD. 6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD. 7. Relief. 5. After recording evidence, the learned trial court dismissed the suit, holding that the defendant had successfully proved the due execution and validity of the Will. 6. Aggrieved by the judgment and decree of the trial court, the plaintiffs filed a first appeal. The appellants contended that the trial court failed to appreciate the facts and evidence in their proper perspective and ignored the defendant's self-contradictory pleadings. It was argued that the findings on the issues were not based on cogent evidence, particularly since the appellants' status as legal heirs was admitted. A core ground of challenge was that the Will was not proved in accordance with law, as the attesting witness had admitted to signing all five pages of only one set of the Will. It was further submitted that the trial court made out a case for the respondent which was neither pleaded nor proved. The first appellate court, however, dismissed the appeal, affirming the trial court's findings. Hence, the present second appeal has been preferred. 7. Heard counsel for the appellant/plaintiff and perused the impugned judgments. 8. The core of the dispute revolved around the validity of the registered Will dated 14.07.2005, executed by the late Budhi Prakash alias Budhi Prasad in favour of the defendant, his brother. The principles to prove 4 ( 2025:HHC:30225 ) the validity and execution of Will have been explained lucidly by the Supreme Court in 2023 LiveLaw (SC) 809, titled Meena Pradhan & Ors. Vs. Kamla Pradhan & Anr. The relevant extract is reproduced here-in-below:- “7. Before delving into the facts of the case, it is pertinent to reproduce the relevant provisions dealing with the validity and execution of the Will. “Section 63 of the Indian Succession Act, 1925 Execution of unprivileged wills:- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules: (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will. (c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. Section 68 of Indian Evidence Act 1872 Proof of Execution of document required by law to be attested If a document is required by law to be attested- it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: xxx” 8. Thus, a bare reading of the abovementioned provisions would show that the requirements enshrined under Section 63 of the Succession Act have to be categorially complied with for the 5 ( 2025:HHC:30225 ) execution of the Will to be proven in terms of Section 68 of the Evidence Act. 9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator’s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. 10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2Judge Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will: i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him; ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures; 6 ( 2025:HHC:30225 ) (d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required; iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; v. The attesting witness should speak not only about the testator’s signatures but also that each of the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will; x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. execution of the Will to be proven in terms of Section 68 of the Evidence Act. xi. Suspicious circumstances must be ‘real, germane and valid’ and not merely ‘the fantasy of the doubting mind’ 1. Whether a particular feature would qualify as ‘suspicious’ would depend on the facts and circumstances of each case. Any circumstance 7 ( 2025:HHC:30225 ) raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.” 9. Coming to the facts of the case, a careful perusal of the relevant material on record and applying the provisions and the case laws, the learned trial court as well as the First Appellate Court have correctly identified the legal framework governing the proof of a Will, as encapsulated in Section 63 of the Indian Succession Act, 1925, and Section 68 of the Indian Evidence Act, 1872. The defendant, as the propounder of the Will, discharged the initial onus placed upon him by examining one of the attesting witnesses, Prem Lal (DW-3), and the scribe, Bhuvneshwar Dutt (DW-2). Their testimonies were consistent, cogent, and detailed the entire process of execution, attestation, and registration of the Will. Their evidence remained unshaken despite lengthy cross-examination, and nothing material was elicited to cast doubt on the authenticity of the proceedings or the mental capacity of the testator at the time. The Will itself, Exhibit DW-2/B, provided a detailed and logical explanation for the bequest, citing the estranged relationship with the plaintiffs, the care provided by the defendant and his family, and the testator’s free will. 10. The plaintiffs, who challenged the Will on grounds of undue influence and fraud, failed to substantiate their allegations with any credible evidence. Their case was significantly weakened by the failure of plaintiff No. 2, who resided with the testator until her marriage, to enter the witness box. Furthermore, the appellant’s own admissions during cross-examination that 8 ( 2025:HHC:30225 ) he did not reside with or care for his father during his lifetime, did not participate in his last rites, and that his mother had pursued maintenance proceedings against the deceased, buttressed the defendant’s case and the reasons stated in the Will for excluding the plaintiffs. The alleged suspicious circumstances, including the defendant’s official position, were not proven to have played any role in the execution of the Will, as it was established that he was not present during its signing or registration. 11. Furthermore, the plaintiffs failed to cross-examine the defendant on crucial aspects, such as the non-payment of the 25% orchard income to plaintiff No. 2 as stipulated in the Will, which amounted to a tacit admission of the defendant’s plea on that point. The alleged suspicious circumstances, including the defendant’s position as a revenue official, were not backed by any evidence suggesting he was present during the execution or registration of the Will. 12. The learned trial court rightly held that the mere exclusion of natural heirs is not, by itself, a suspicious circumstance, especially when a valid and convincing reason for such exclusion is provided, as was done in the present case. The findings of the courts below are based on a meticulous appreciation of evidence and a correct application of the law. The plaintiffs failed to prove that the Will was the product of fraud or undue influence, and consequently, the mutation of the property in the defendant’s favour based on that Will was rightly upheld. No substantial question of law arises for consideration in this second appeal, and the concurrent findings of fact call for no interference. 9 ( 2025:HHC:30225 ) 13. In view of the aforesaid, there arises no question of law much less a substantial question of law for the consideration of the Court. Accordingly, the appeal being devoid of merit is dismissed, so also the pending miscellaneous application(s), if any, also stand disposed of. (Bipin Chander Negi) September 04, 2025 (KS/T.B.) Judge