( 2025:HHC:44225) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.01/2025 Date of Decision: 17.12.2025 Bhagi Devi (deceased) through LRs .....Appellants. Versus Ram Dass …..Respondent. Coram The Hon’ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 For the Appellants : Mr. Navneen K. Bhardwaj, Advocate. For the Respondent : Mr. G.R. Palsra, Advocate. Bipin Chander Negi, Judge (oral). The Appellant, before this Court by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), praying for setting aside the judgement and decree dated 20.11.2024 passed by the learned District Judge, Kullu District Kullu H.P. in Civil Appeal No. 55 of 2024, whereby the judgment and decree dated 14.06.2024, passed by learned Civil Judge, Kullu District Kullu H.P. in Civil Suit No. 152 of 2013 titled as Bhagi Devi through LRs vs. Ram has been affirmed. 2. For the sake of convenience, hereinafter in this judgment, the parties shall be referred in the same manner in which they were referred before learned Trial Court. 1 Whether reporters of Local Papers may be allowed to see the judgment? YES 2 3. The brief facts, as emerging from the record, are that the original plaintiff, Smt. Bhagi Devi, filed a suit for declaration on 04.07.2013, pleading that her husband, late Sh. Kishan Chand, was the owner in possession of the suit land as detailed in the jamabandi for the year 2009-10 of Muhal Raugi, Phati & Kothi, Kais, Tehsil and District Kullu H.P. and that he died on 14.01.2013. It was pleaded that no issue was born from their wedlock and the plaintiff was the sole legal heir of the deceased. It was further pleaded that the plaintiff suffered from epilepsy and the defendant, taking undue advantage of her illness, started threatening and attempting to oust her from her share in the suit land. Upon enquiry, she learnt that the defendant had fabricated a Will dated 08.10.2012, based on which Mutation No. 42 was entered, though not yet attested. The plaintiff thus sought a declaration of being the joint owner in possession of the suit land inherited from her husband, a declaration that the said Will was null and void, and permanent injunctions restraining the defendant from interfering with her possession and from getting the mutation attested. 4. The defendant, Ram Dass, who is the real brother of late Kishan Chand, filed a written statement raising preliminary objections regarding maintainability, cause of action, and valuation. On merits, he admitted the relationship and the plaintiff's medical condition but denied the rest of the plaint. He submitted that late Kishan Chand, in a sound and disposing state of mind, had executed a registered Will dated 08.10.2012 in favour of both the defendant and the plaintiff, in lieu of 3 services rendered by the defendant. He claimed possession of the entire suit land since the time of the Will and stated that the plaintiff had left to live with her sister and was not in possession. He prayed for the dismissal of the suit. 5. Upon the pleadings of the parties, the learned trial court framed the following issues on 22.10.2013: 1. Whether the plaintiff is joint owner in possession of suit land as the plaintiff inherited the same from her husband late Shri Kishan Chand being the sole legal heir, as alleged? OPP. 2. Whether mutation no.42 attested in favour of defendant is null and void, as alleged? OPP. 3. Whether the plaintiff is entitled to the relief of permanent prohibitory injunction, as prayed? OPP. 4. Whether Will dated 8.10.2012 is legal and genuine executed by late Sh. Kishan Chand in favour of parties, as alleged? OPD 5. Whether the suit is not maintainable in the present form? OPD. 6. Relief. 6. The original plaintiff died during the pendency of the Civil Suit, therefore, her legal heirs were brought on record. After the parties led evidence, the learned trial court dismissed the suit vide its judgment and decree. Aggrieved thereby, the plaintiff preferred the first appeal. In the first appeal, the appellant-plaintiff contended that the trial court's judgment was against the law and facts, violated principles of natural justice, and failed to appreciate the evidence on record. It was 4 specifically argued that the trial court had erred in not deciding each issue independently and had arrived at a wrong conclusion regarding the validity of the Will and the plaintiff's possession. The appellant prayed for the appeal to be accepted and the suit decreed. However, the first appellate court, after considering the submissions and re- appreciating the evidence, dismissed the appeal, affirming the findings of the trial court. Hence, the present second appeal has been preferred. 7. Heard counsel for the parties, perused the perused the impugned judgements. 8. In order to prove her case, the original plaintiff Smt. Bhagi Devi examined herself as PW-1. She tendered her affidavit Ext. PW-1/A and relied upon the jamabandi records Ext. PW-1/B to PW-1/D, the death certificate Ext. PW-1/E, and a copy of the Will Ext. PW-1/F. In her cross-examination, she stated that she did not suffer from epilepsy, contrary to the pleadings. She admitted her expenses were borne by Tara Chand, the son of her sister Budhi Devi, and that the present suit was filed at Budhi Devi's instance. She further stated that Tara Chand was cultivating the suit land. She denied the execution of the Will by her husband and claimed it was forged. The plaintiff closed her evidence thereafter. 9. In rebuttal, the defendant Ram Dass examined himself as DW-1. He tendered his affidavit Ext. DW-1/A and the Will Mark-A. In his cross-examination, he admitted that late Kishan Chand was ill and was admitted in the hospital from 04.10.2012 to 11.10.2012, which period 5 covered the dates of the Will's execution and registration. He also admitted that the plaintiff's medical documents were in the possession of Tara Chand and that Tara Chand had been looking after the plaintiff. The defendant also examined Naranjan Dass Mahant, the document writer, as DW-2. He proved the Will Ext. DW-2/A and his register entry Ext. DW-2/B, detailing the execution and registration process. Mehar Chand, an attesting witness, was examined as DW-3. He supported the execution of the Will Ext. DW-2/A, stating it was read over and explained to Kishan Chand, who signed it in the presence of witnesses. No rebuttal evidence was led by the plaintiff. 10. The principles to prove the validity and execution of Will have been explained lucidly by the Supreme Court in 2023INSC847, 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. 6 (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 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) YumnamOngbiTamphaIbema 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: 7 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; (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 8 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 disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc. 11. Upon a consideration of the evidence on record and the legal principles governing the proof of Wills as laid down by the Hon’ble Supreme Court, it is found that the plaintiff failed to discharge her onus of proving the Will to be forged. Her testimony remained a bare denial, unsupported by any corroborative evidence. The defendant, as the propounder, successfully discharged his initial burden. The attestation by witnesses, including DW-3, and the registration process have been duly proved in compliance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. The fact that the testator was hospitalized during the relevant period does not, by itself, establish 9 a lack of testamentary capacity, especially in the absence of any cogent medical evidence to prove mental infirmity or that his illness impaired his understanding. 12. The disposition, which bequeaths half the property to the plaintiff, is not unnatural given the circumstances that the couple was childless and the plaintiff suffered from ill health. The minor contradictions in the testimonies of DW-2 and DW-3 are inconsequential and can be attributed to the natural lapse of memory over time. Consequently, the Will dated 08.10.2012 is held to be legal, valid, and binding. While the plaintiff retains her status as a joint co-owner under the Will, her claim of being in actual physical possession is not established by the evidence, which indicates the defendant is in de facto possession. No evidence has been led to prove any tangible threat or interference by the defendant warranting the grant of a permanent injunction. In light of these findings, the suit of the plaintiff was rightly dismissed by the trial court, and the first appellate court correctly affirmed the said dismissal. 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 and so also the pending miscellaneous application(s), if any, also stand disposed of. (Bipin Chander Negi) Judge 17th December, 2025 10 (Tarun)