1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.150 of 2023 Date of Decision : 04.12.2025 Mathru (deceased) through LRs. and others …… Appellants Versus Lalit Kumar and others ……Respondents Coram: The Hon’ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting?1 For the Appellants : Mr. G.R. Palsra, Advocate. For the respondents : Mr. Umesh Kanwar and Ms. Isha Thakur, Advocates. Bipin Chander Negi, Judge (oral) The Appellants, by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgment and decree dated 27.03.2023, passed by learned Additional District Judge, Sundernagar, District Mandi, Himachal Pradesh, in Civil Appeal No.65 of 2016 (Filing No.478/2016), titled Mathru (deceased) through LRs. and others vs. Lalit Kumar and others, whereby the judgment and decree dated 17.03.2016, passed by learned Civil Judge (Senior Division), Court No.1, Sundernagar, District Mandi, Himachal Pradesh, in Civil Suit No.94-I/2010, were affirmed. 1 Whether reporters of Local Papers may be allowed to see the judgment? 2 2. The parties to the appeal, hereinafter for the sake of convenience, shall be referred to in the same manner as described in the judgment of the ld. Trial Court. 3. Briefly stated the facts giving rise to the present appeal are that the plaintiffs instituted a suit for permanent prohibitory and mandatory injunction, claiming ownership and cultivatory possession of the land comprised in Khewat No. 418, Khatauni No. 481, measuring 16-02-10 bighas, Khasra Nos. 577, 578, 579, 581, 583, 600, 609, 628, 689, Kita-9 situated in muhal Bhour/4, Tehsil Sundernagar, District Mandi, H.P. Their case was that the suit land, initially owned by the predecessor-in-interest of Sh. Khindu, had been inherited by his legal heirs, including the plaintiffs. They averred that Smt. Mangli Devi, a descendant of Khindu, out of love and affection bequeathed her share in the parental property to the plaintiffs through a Will dated 20.06.1999, executed voluntarily. The plaintiff No.1, an illiterate old lady, was entrusted with the custody of the Will. After Mangli Devi's death, the plaintiff No.1 presented the Will to the Patwari, who kept a copy and assured that mutation would be attested on its basis. 4. The plaintiffs remained under the impression that the bequeathed share had been mutated in their favour. However, on 04.10.2010, when defendant No.11 tried to interfere with their possession, they discovered from the revenue record that mutation No. 2277 dated 27.08.2010 had been illegally attested in favour of defendants No.1 to 10 (the legal heirs of Mangli Devi), and further that defendants No.3, 6 & 7 had alienated parts of the suit land in favour of defendant No.11 vide Sale Deed Nos. 826/2010 and 834/2010, with corresponding mutations Nos. 2281 and 3 2282 dated 22.09.2010. The plaintiffs contended that these mutations and sale deeds were illegal, null and void, and that the defendants were threatening to disturb their peaceful possession. The cause of action accrued on 05.10.2010 when the plaintiffs acquired knowledge of these illegal orders. 5. The defendants contested the suit, denying the plaintiffs' ownership and possession. They claimed to be joint owners in possession, asserting that mutation No. 2277 was legally attested after due enquiry. They denied the execution and validity of the alleged Will dated 20.06.1999, contending it was a result of fraud, undue influence and coercion, and that Mangli Devi was not in a position to execute a valid Will due to old age and illness. Defendant No.11 claimed to be a bona fide purchaser for value. 6. Per pleadings of the parties, the following issues were framed by learned Trial court on 29-05-2014: - “1. Whether Mangli Devi deceased daughter of Hukmia had bequeathed her share in the suit land out of love, by free will and volition through a Will dated 20-6-1999 in favour of the plaintiffs? OPP. 2. If, issue No.1 is proved, whether the mutation No. 2277 dated 27-8- 2010 in favour of the defendants No.1 to 10 is wrong and illegal? OPP. 3. Whether defendants No. 3,6 and 7 have illegally alienated the suit land in favour of the defendant No.11 and sale deed No. 826/10 and its mutation No. 2281 are illegal, null and void and sale deed No. 834/09 and mutation No. 2282 dated 22-09-2010 are illegal and null and void? OPP 4. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed? OPP 5. Whether the alleged Will dated 20-6-1999 by Mangli Devi is a result of fraud, undue influence and coercion and its consequence? OPD. 6. Whether the present suit is not maintainable, as alleged? OPD. 7. Whether the plaintiffs are estopped by their own acts and conduct to file the present suit? OPD 4 8. Whether the present suit is bad for non-joinder of necessary parties, as alleged? OPD 9. Whether the plaintiffs have no cause of action, as alleged? OPD 10. Whether the defendant No.11 is a bonafide purchaser of the suit land? OPD 11. Relief.” 7. After trial, the learned Trial Court vide judgment dated 17.03.2016 decided all substantive issues against the plaintiffs, holding that the Will was not proved, the mutations and sale deeds were valid, and that defendant No.11 was a bona fide purchaser. Consequently, the suit was dismissed. 8. Aggrieved by the said judgment and decree, the plaintiffs preferred the first appeal. In the first appeal, the appellants contended that the lower court had erred in holding that the Will Ext. PW-2/A was not proved, as the attesting witness Amar Chand and the scribe Ram Dass had proved its execution in accordance with Section 63(c) of the Indian Succession Act. It was argued that after recording evidence of due execution, the court wrongly dismissed the suit. A specific plea was raised that the Trial Court had erroneously dismissed their application for examining another attesting witness, Nand Lal, which resulted in a failure of justice, and the case ought to be remanded for his examination. It was further contended that the finding on Issue No.10, holding defendant No.11 to be a bona fide purchaser, was incorrect, and that guardians for minor respondents were not legally appointed. 9. However, the First Appellate Court, after considering the submissions and the record, dismissed the appeal, affirming the findings and 5 the decree of the Trial Court. Hence, the present second appeal has been preferred. 10. Heard Counsels for the parties and perused the impugned judgments. 11. The core of the present case revolves around the purported Will dated 20-06-1999 set up by the plaintiffs. The onus to prove its due execution and validity, as framed in Issue No.1, rested squarely upon them. For proving a Will, the mandate of Section 68 of the Indian Evidence Act, 1872, read with Section 63(c) of the Indian Succession Act, 1925, is clear, its execution must be proved by examining at least one attesting witness, if alive and capable of giving evidence. 12. The principles to prove the validity and execution of Will have been explained lucidly by the Supreme Court in 2023 INSC 847, 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 6 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) 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; 7 (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 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 8 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.” 13. Applying these principles to the instant case the document Ext. PW-2/A expressly records Roop Lal and Nand Lal as its attesting witnesses. The plaintiffs, however, failed to examine either of them. While the scribe, Dass Ram (PW-2), and the identifier, Amar Chand (PW-3), were examined, their testimonies cannot substitute the mandatory proof required from an attesting witness. No valid explanation has been offered for this failure. The report on the summons for Nand Lal indicated he was unwell and under treatment, but the plaintiffs did not pursue steps to secure his evidence through commission or otherwise, choosing instead to close their evidence. 14. The other attesting witness, Roop Lal, was never even summoned. Consequently, the plaintiffs have not discharged the initial burden of proving the due execution and attestation of the Will in accordance with law. 15. Beyond the formal proof, the plaintiffs, as propounders, were also duty-bound to dispel any suspicious circumstances surrounding the Will. The conduct of the plaintiffs creates serious doubt. The testator, Mangli Devi, died in 1999, yet the Will was never presented before the revenue authorities for mutation in the plaintiffs' favour for over a decade. Mutation of inheritance was attested in favour of the defendants, her legal heirs, on 27.08.2010. It was only after this, and subsequent alienation by the defendants, that the plaintiffs instituted the suit in 2013, claiming under the Will. The vague plea 9 that the Will was given to a Patwari, without specifying any date or examining the said official, further shrouds the claim in suspicion. This inordinate delay of 14 years in asserting their rights under the Will, while the defendants dealt with the property, is a significant circumstance which the plaintiffs have failed to explain or dispel. 16. In light of the plaintiffs' failure to prove the due execution of the Will as per statutory requirements and their inability to account for the highly suspicious circumstances surrounding its belated emergence, the finding of the Trial Court, affirmed by the First Appellate Court, that Issue No.1 is not proved, cannot be termed perverse or illegal. This finding is conclusive, and the remaining issues, including the challenge to mutation No. 2277 and the subsequent sale deeds, which were contingent upon the proof of the Will, must consequently fail. The judgment and decree of the lower courts, dismissing the plaintiffs' suit, are therefore upheld. 17. 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. (Bipin Chander Negi) December 04, 2025 (KS) Judge