2025:HHC:6735 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.39/2025 Date of Decision: 18th March, 2025. Mohan Singh .....Appellant. Versus Nitin Verma & Ors. …..Respondents. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellant: Mr. M. A. Safee, Advocate. For the Respondents: Nemo. Bipin Chander Negi, Judge (oral). The appellant, by filing this appeal under section 100 of the Code of Civil Procedure (for short, 'the Code'), has assailed the judgment and decree dated 11.11.2024 passed by the learned Additional District Judge, Sundernagar, HP in Civil Appeal No.209 of 2024. By the said judgment and decree, the Lower Appellate Court has confirmed the judgment and decree dated 07.03.2024 passed by the learned Senior Civil Judge, Sundernagar, in Civil Suit No.19-I of 2017. 2. The appellant before this Court was the plaintiff before the trial Court. The appellant had assailed the ‘Will’ dated 29.11.2012 before the trial court, purported to have been executed by Smt. Chugi alias Hasnu, their mother in favour of defendant No1 ( grandson of the testatrix) in respect of the land comprised in Khewat No.21, Khatauni No.22, Khasra No.127, 128, 199, Kita-3 total measuring 03-05-2019 bighas situated at 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 2025:HHC:6735 muhal Chamukha, mauja Churad, Tehsil Sundernagar, District Mandi, HP (hereinafter referred to as the "suit land"). Appellant is son of deceased Smt. Chugi alias Hasnu and proforma Respondents No.3 to 6 are daughter, sons and widow of their deceased brother Sh. Saju Ram whereas Respondents No.2, 8, 9 and 10 are sons and widow of their deceased brother Sh. Hari Ram. Defendant Nitin Verma is son of deceased brother of plaintiffs namely Dhani Ram. 3. According to the appellant all sons of Smt. Chugi were looking after her during her life time and providing her all necessities of life. Appellant was in cultivating possession of the land, the subject matter of the present Will. Smt. Chugi alias Hasnu had executed ‘Will’ in favour of all her four sons on 11.03.1990 in her sound disposing state of mind. Defendant No.1 in connivance with his close relatives Sh.Hira Lal and one Sh.Lekh Raj got executed another ‘Will’ dated 29.11.2012 from Smt. Chugi alias Hasnu by playing fraud upon testatrix with an intent to grab her property. The testatrix was not in sound state of mind at the time of execution of the ‘Will’ dated 29.11.2012. She was also hard by hearing and her eye sight was also very weak at the time of execution of the ‘Will’ dated 29.11.2012. There was no reason with her to execute any Will in favour of the defendant. It was alleged that Respondent No.1 on the basis of Will was trying to forcibly and illegally dispossess the plaintiffs. Hence this suit for declaration to the effect that Will 3 2025:HHC:6735 dated 29.11.2012 is null and void and mutation attested on the basis of said Will is also null and void with consequential relief of decree of permanent prohibitory injunction for restraining the defendants from interfering into the possession of the plaintiffs over the suit land. 4. The defendants by filing the written statement denied that all sons of deceased were looking after her and provide her with the necessities of life but did not dispute the relationship of plaintiffs, defendant and proforma defendants with deceased Smt. Chugi alias Hasnu. The possession of the plaintiff no.1 over the suit land was also denied. It was also submitted that Smt. Chugi had not executed any Will dated 11.03.1990 in favour of her four sons. It was claimed that Will dated 29.11.2012 has been executed by testatrix in sound state of mind. Defendant and his mother Smt. Satya Devi are in possession of the suit land. With these pleas, prayer was made to dismiss the suit. 5. Replication was not filed. The Learned trial court on 17.12.2021 framed the following issues :- 1. Whether the mother of the plaintiffs late Smt. Chugi alias Hasnu executed a Will dated 11.03.1990 in favour of her four sons namely Mohan Singh, Saju Ram, Hari Ram and Ganpat alias Dhani Ram as alleged?..OPP 2. Whether the deceased Smt. Chugi alias Hasnu was not in a position to execute Will dated 29.11.2012 and the same was never executed by her, as alleged?..OPP 4 2025:HHC:6735 3. Whether the Will dated 29.11.2012 illegal, null and void, as alleged ?..OPP 4. If aforesaid issues are answered in affirmative, whether the plaintiff is entitled for decree for declaration and permanent prohibitory injunction, as prayed for?.. OPP 5. Whether the Will dated 29.11.2012 was executed by Smt. Chugi alias valid Will, Hasnu alleged?.. OPD 6. Relief. 6. Post conclusion of the trial, the trial Court on an appreciation of the pleadings, evidence led, dismissed the suit. It held that the defendant was able to prove the due execution of the Will dated 29.11.2012 as per Section 63 of the Indian Succession Act through oral evidence given by the attesting witness as well as the scribe who clearly stated that the Will was executed by the deceased Chugi Devi out of her own free will and was read over and explained to her and she put her thumb impression after understanding the contents of the Will in presence of witnesses and the witnesses also signed the Will in her presence, therefore issue No.5 was answered in affirmative and decided in favour of the defendant/appellant. The trial court held that the plaintiffs could not adduce any medical or other evidence to support their contention that Chugi alias Hansu was not in fit state of mind due to old age, rather from the overall statement of parties it came out that she was not bed ridden and was performing her daily activities herself. The Will dated 29.11.2012 was held to be valid Will and 5 2025:HHC:6735 accordingly issues Nos.1 to 4 were answered in negative and decided against the plaintiff/appellant. 7. The appellant/plaintiff having felt aggrieved and dissatisfied with the impugned judgment and decree, assailed the same by way of a first appeal submitting therein that the learned trial Court had not been able to appreciate the facts and law in correct perspective. Ld. Trial court has drawn wrong inference that defendant has proved the Will dated 29.11.2012. Provisions of Section 63 the Indian Succession Act and Section 68 of Indian Evidence Act have not been complied with strictly. Ld. trial Court has not evaluated/analysed the statements of witnesses in correct perspective and lost sight of the fact that the witnesses of this Will were close relatives of the respondent. Further father of the respondent was also accompanying the deceased as he had also executed the registered Will on the same day in favour of the respondent Nitin Verma with the same attesting witnesses. The findings of the learned trial court are arbitrary, fanciful, erroneous, capricious and based on surmises and conjectures and as such, judgment of learned trial court is not sustainable. It was submitted that in view of these facts and circumstances, the appeal be allowed and impugned judgment and decree be set-aside. The First Appellate Court also dismissed the appeal and concurred with the findings of the trial court. 6 2025:HHC:6735 8. Heard counsel for the appellant/plaintiff and perused the impugned judgments. 9. The principles to prove 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 hereinbelow:- 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” 7 2025:HHC:6735 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 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 8 2025:HHC:6735 the testator a personal acknowledgment of such signatures; (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 raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust 9 2025:HHC:6735 disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc. 10. Coming to the facts of the case, a careful perusal of the relevant material on record and applying the provisions and the case laws, it is evident that the challenge primarily is to the soundness of the state of mind of the testatrix (Chugi). In this regard, both the Courts have concurrently and correctly held after appreciating the pleading and evidence on record that the testatrix (Chugi) was in sound state of mind at the time of making as well as execution of Will in question. The mere fact that both the attesting witnesses and the identifier were known to the father of Nitin Verma, has correctly been held to not be a suspicious circumstance necessitating the revocation of the Will. 11. The execution process of the Will in question dated 29.11.2012 is not under challenge. Even otherwise, the attesting witness as well as the scribe have clearly stated in their deposition that Smt. Chugi @ Hasnu (testatrix) out of her own free will had executed the Will dated 29.11.2012. As per them, the contents of same had been read over, explained to her and it is only thereafter i.e. after understanding the contents of the Will that she had put her thumb impression on the Will. Other than the aforesaid, it has come on record that the witnesses of the Will had signed the Will in her presence. 12. Besides, the aforesaid, the Will in the case at hand, is duly registered. Registration by itself in all cases is not proof of 10 2025:HHC:6735 execution, but if no other evidence is available, the certificate of execution is prima facie evidence of execution 13. Thus, in the case at hand, I am of the opinion that both the Courts below have rightly noted that the relevant provisions were complied with, and have given well-reasoned judgments upholding the validity of the Will. The same does not want interference of the Court. 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 and so also the pending miscellaneous application(s), if any, also stand disposed of. (Bipin Chander Negi) Judge 18th March, 2025 (Gaurav Rawat)