Research › Search › Judgment

Himachal Pradesh High Court · body

2025 DAILYLAW 3966 (HP)

Khushal Chand v. Kanchna Devi

2025-12-12

Romesh Verma

body2025
JUDGMENT : Romesh Verma, J. The present appeal arises out of the judgment and decree, dated 28.10.2015, as passed by the learned District Judge, Hamirpur, whereby the appeal preferred by the respondents/defendants has been allowed and the suit filed by the appellants/plaintiffs was ordered to be dismissed. 2 Brief facts of the case are that the appellants/plaintiffs filed a suit in the Court of learned Civil Judge (Junior Division), Court No.II, Hamirpur on 21.8.2006 for declaration with consequential relief of permanent prohibitory injunction. In the plaint, it was averred by the appellants/plaintiffs that the land entered in Khata No. 97, Khatauni No. 98, Khasra Nos.22-27-84-87-273-276-372-384- 387-89-917 kitas 11, land measuring 70 kanals 15 marlas as per jamabandi for the year 1999-2000, situated in Tika Daruhi, Mouza Bajuri, Tehsil and District Hamirpur to the extent of 1/5th share i.e. land measuring 14 Kanals 3 Marlas (for short, “suit land”) is shown to be under the ownership and possession of Chiri Devi. It was further averred that Chiri Devi was the sole owner of the suit land and she expired on 27.5.2006 leaving behind plaintiffs/appellants, defendant/respondent No.2 and proforma defendant as her legal heirs. Deceased Chiri Devi was being looked after and maintained by her legal heirs. She died intestate and she did not execute any Will. During life time of Chiri Devi, suit land was in possession of the plaintiffs. However, defendants/respondents No. 1 and 2 in connivance with other persons claimed that the deceased had executed a Will in favour of defendant No.1, but in fact no Will was executed by Chiri Devi in favour of defendant No.1 and in case there is any Will, the same is result of fraud and has been prepared in connivance with marginal witnesses after her death. 3 It was averred that the Will was produced before the Revenue Officer for attestation of mutations, but the Revenue Officer without conducting any inquiry and without giving any opportunity to the appellants/plaintiffs sanctioned mutation in favour of defendant No.1 illegally and without following any procedure. 3 It was averred that the Will was produced before the Revenue Officer for attestation of mutations, but the Revenue Officer without conducting any inquiry and without giving any opportunity to the appellants/plaintiffs sanctioned mutation in favour of defendant No.1 illegally and without following any procedure. The appellants/plaintiffs prayed decree for declaration with consequential relief of permanent prohibitory injunction in respect of the suit land which is in possession and ownership of the plaintiffs, defendant No. 2 and proforma defendant as heirs to the estate of late Chiri Devi and mutations No. 25 and 1531 attested and sanctioned on 29.6.2006 are null and void and against the provisions of law, thus, liable to be set aside. It was further prayed that in case the appellants/plaintiffs and proforma defendant are not found in possession of the suit land, then decree for possession in favour of the appellants/plaintiffs and proforma defendant be passed. 4 The suit was contested by the respondents/defendants by raising preliminary objections of estoppel, locus standi, jurisdiction, valuation, maintainability and special costs under Section 35-A CPC. etc. 5 On merits, allegations levelled in the plaint were specifically denied. It was submitted in the written statement that Chiri Devi died on 27.5.2006. As per last Will of Smt. Chiri Devi, defendant No.1 is the lawful owner of the suit land. During her life time and under sound disposing state of mind, Chiri Devi executed a Will in favour of defendant No.1 and, therefore, the suit land is coming in possession of respondents/defendants since her life time. It was averred that the Will was executed by Chiri Devi out of love and affection and in lieu of services rendered by defendant No.1 and the Will after writing was read over and explained to Smt. Chiri Devi and she admitted it to be correct and thereafter she put her thumb impression and thereafter the witnesses signed the Will in the presence of witnesses and the Will is genuine and last Will. It was further averred that the Revenue Officer gave proper opportunity of being heard and sanctioned the mutation after proper enquiry. The appellants/plaintiffs never looked after and maintained deceased Chiri Devi and they had been residing separately. During her life time, the deceased was being looked after and maintained by the respondents/defendants. The defendants prayed for dismissal of the suit. It was further averred that the Revenue Officer gave proper opportunity of being heard and sanctioned the mutation after proper enquiry. The appellants/plaintiffs never looked after and maintained deceased Chiri Devi and they had been residing separately. During her life time, the deceased was being looked after and maintained by the respondents/defendants. The defendants prayed for dismissal of the suit. 6 The appellants/plaintiffs filed replication to the written statement as filed by the respondents/defendants reiterating therein the averments as contained in the plaint and specifically denied the averments contrary to what has been averred in the plaint. 7 The learned Civil Judge on the basis of pleadings of the parties on 31.8.2007 framed the following issues:- 1. Whether the Will alleged to be executed in favour of defendant No.1 is the result of fraud and has no binding effects on the rights of the plaintiffs qua the land in dispute, as alleged?OPP. 2. Whether the plaintiffs are entitled for the relief of permanent prohibitory injunction, as prayed for ? OPP. 3. Whether the plaintiffs are estopped by their own act and conduct to file the present suit, as alleged ?OPP 4. Whether the plaintiffs have no locus-standi to file the present suit, as alleged? OPD. 5. Whether the suit has not been properly valued for the purpose of court fee and jurisdiction, as alleged? OPD. 6. Whether the suit is not maintainable, as alleged? OPD. 7. Whether the court has no jurisdiction to try and entertain the present suit, as alleged? OPD. 8. Whether the suit of the plaintiff is liable to be dismissed with special costs, as alleged ? OPD. 9. Whether the deceased Smt. Chiri Devi had executed a valid and genuine Will in favour of defendant No.1, as prayed for? OPD. 10. Relief. 8 After recording the evidence and evaluating the same, learned Civil Judge decreed the suit of the plaintiffs vide judgment and decree dated 22.12.2012, whereby the Will dated 14.5.2006 has been declared to be null and void and mutations No. 25 and 1531 attested and sanctioned on 29.6.2006 have been set aside being null and void and ultimately, the respondents/defendants were restrained permanently from causing any interference over the suit land. 9 Feeling dissatisfied, defendants No. 1 and 2 preferred an appeal before the Court of learned District Judge on 15.1.2013 and the learned District Judge vide judgment and decree dated 28.10.2015 accepted the appeal and the suit of the plaintiffs/appellants was ordered to be dismissed, which constrained the plaintiffs/appellants to file the instant appeal. 10 This Court on 28.4.2016 admitted the instant appeal on the following substantial question of law: Whether on account of misreading, mis-appreciation and misconstruction of the law and facts as well as the oral and documentary evidence available on record, the judgment and decree under challenge in the main appeal being perverse and vitiated is not legally sustainable? 11 Mr. Varun Chauhan, learned vice counsel for the plaintiffs/appellants has vehemently argued that the learned District Judge has erred by reversing the judgment of the learned Civil Judge in a slip shod manner. He has submitted that the learned Civil Judge has rightly appreciated real point in controversy and rightly decreed the suit as preferred by the appellants/plaintiffs. He submitted that the learned District Judge has not decided the matter as per settled principles of law. 12 On the other hand, Mr. C.N. Singh, learned counsel for the respondents/defendants has submitted that the learned District Judge has rightly dismissed the suit filed by the plaintiffs/appellants. 13 I have heard the learned counsel for the parties and have also scanned the record in detail. 14 From perusal of the record, it reveals that the appellants/plaintiffs filed a suit for declaration and permanent prohibitory injunction on the ground that the Will dated 14.5.2006 executed by late Chiri Devi in favour of defendant No.1 is the subject matter of the dispute. The appellants/plaintiffs averred and this is also their precise case that Smt. Chiri Devi was having her legal heirs namely Khushal Chand, Amar Singh, Ravinder Kumar (plaintiffs) and Nikka Ram (defendant No.2) being sons and Satya Devi (proforma defendant), being daughter. The appellants/plaintiffs submitted that the deceased Chiri Devi never desired to execute any Will in favour of defendant No.1 during her life time. They submitted that the Will dated 14.5.2006 is fraudulent and non est in the eyes of law. 15 The appellants/plaintiffs in order to substantiate their case has examined PW1 Khushal Chand, PW2 Dilbag Singh, PW3 Parkash Chand and PW4 Janak Raj. 16 Since the defendants have set up the Will, Ext. They submitted that the Will dated 14.5.2006 is fraudulent and non est in the eyes of law. 15 The appellants/plaintiffs in order to substantiate their case has examined PW1 Khushal Chand, PW2 Dilbag Singh, PW3 Parkash Chand and PW4 Janak Raj. 16 Since the defendants have set up the Will, Ext. DW1/A, therefore, onus lies upon them to prove the same. 17 Copy of Will, Ext. DW1/A has been written in Hindi and it was scribed by DW1 Madan Rattan, who in his deposition stated that Will, Ext. DW1/A was written by him and on Mark A, he had appended his signatures. He stated that this Will was got prepared by Chiri Devi, who was about 86 years old. She executed the Will in her proper state of mind. For about 8-9 years, she was suffering from backache and was confined to bed. He stated that whatever was said by the testatrix, the same was written in the document. DW1 stated that testatrix told him that she is being looked after and maintained by defendant No.1, who is serving her for the last more than 8-9 years. DW1 deposed that the testatrix stated that since her daughter-in-law, defendant No.1, had served her, she is under load to discharge this debt, therefore, she executed the Will in favour of defendant No.1 18 In his cross-examination, DW1 has admitted that earlier on the Will, name of Kamaljeet was written and thereafter the same was deleted since he refused to be a witness to the Will. Further, he has admitted that the Will was written on 14.5.2006 and he stated that over figure “5” there is overwriting since earlier, figure “6” was written on the same. He stated in his cross-examination that the Will was written in the room of Chiri Devi. 19 One of the marginal witnesses of the Will, Tarlok Chand stepped into the witness box as DW2 and submitted in his deposition that during the preparation of Will, he was called by defendant No.1. He stated that his house is at a distance of 10 meters. He categorically deposed that the Will was prepared as per directions of the testatrix, Chiri Devi. He stated that whatever was stated by the testatrix, the same was written on the Will. After writing the Will, the testatrix appended her signature on the same and thereafter the witnesses appended their respective signatures. He categorically deposed that the Will was prepared as per directions of the testatrix, Chiri Devi. He stated that whatever was stated by the testatrix, the same was written on the Will. After writing the Will, the testatrix appended her signature on the same and thereafter the witnesses appended their respective signatures. He stated that the Will was read over and thereafter they appended their signatures. 20 Second witness of the Will is DW3 Lekh Raj. He stated in his deposition that the Will was prepared on the askance of the testatrix Chiri Devi. First of all, Chiri Devi, appended her signature and thereafter the scribe followed by witnesses appended their signatures. DW3 stated that he appended the signature at the end. 21 Kanchana Devi, daughter-in-law of testatrix, who is beneficiary of the Will, entered the witness-box as DW5 and categorically stated that Chiri Devi executed Will in her favour because she rendered services to her. The deceased used to stay with her and she was being looked after by DW5. She stated that land of the deceased Chiri Devi is with her. Chiri Devi expired on 27.5.2006 and the Will was prepared on 14.5.2006. When the Will was prepared, at that time she was perfectly all right. After writing the Will, the same was read over to testatrix. Signatures were put by the scribe on the same and the same was accepted by the deceased Chiri Devi. DW5 stated that the plaintiffs and proforma defendant never served the deceased and never inquired about her wellbeing during her life time. Copy of the Will, executed by the testatrix in favour of defendant No.1 has been exhibited as DW1/A. 22 The defendants have also placed on record copies of the pariwar register, Ext. DW4/A and DW4/B. Perusal of these documents shows Chiri Devi to be the head of the family and she was residing with her son defendant No.2 and daughter-in- law defendant No.1 and their children. Copy of the mutation has been placed on record as Ext. P2, which shows that on the basis of the Will, mutation was attested in favour of defendant No.1. 23 From the statements of DW1, DW2 and DW3, execution of the Will is duly proved. Copy of the mutation has been placed on record as Ext. P2, which shows that on the basis of the Will, mutation was attested in favour of defendant No.1. 23 From the statements of DW1, DW2 and DW3, execution of the Will is duly proved. Scribe of the Will, DW1 has categorically stated that he prepared the Will, which was read over to the deceased-testatrix and thereafter, she appended her thumb impression on the same. To the similar extent are the testimonies of DW2 and DW3, marginal witnesses, who stated that the Will was prepared at the instance of deceased Chiri Devi and she appended her signatures and thereafter the witnesses appended their signatures. 24 Section 63 of the Hindu Succession Act reads as under:- 63. 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 witness, 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 acknowledgment 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.” 25 Perusal of Section 63 of the Hindu Succession Act stipulates that the testator shall sign or affix his mark on the Will, or it shall be signed by some other person in his presence and by his direction. The signature or mark of the testator, or 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. Further the Will shall be attested by two or more witnesses each of whom has seen the testator sign or affix his mark to Will or has seen some other person signing the Will in the presence and by the direction of the testator. 26 In the present case DW1, DW2, DW3 have duly proved execution of the Will, therefore, onus on behalf of the propounder of the Will has been discharged. 27 The Hon’ble Supreme Court in Shiva Kumar vs. Sharanabasappa , (2021) 11 SCC 277 has summarized the the relevant principles governing the adjudicatory process concerning proof of a Will, which read as under:- “1. Ordinarily, a Will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of Will too, the proof with mathematical accuracy is not to be insisted upon. 2. Since as per Section 63 of the Succession Act, a Will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence. 3. The unique feature of a Will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. 42 This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last Will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will. 4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a Will. 4. The case in which the execution of the Will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last Will of the testator. 5. If a person challenging the Will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the Will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the Will may give rise to the doubt or as to whether the Will had indeed been executed by the testator and/or as to whether the testator was acting of his own free Will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter. 6. A circumstance is “suspicious” when it is not normal or is ‘not normally expected in a normal situation or is not expected of a 43 normal person’. As put by this Court, the suspicious features must be ‘real, germane and valid’ and not merely the ‘fantasy of the doubting mind.’ 7. As to whether any particular feature or a set of features qualify as “suspicious” would depend on the facts and circumstances of each case. A shaky or doubtful signature; a feeble or uncertain mind of the testator; an unfair disposition of property; an unjust exclusion of the legal heirs and particularly the dependants; an active or leading part in making of the Will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. The circumstances above-noted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to legitimate suspicion about the execution of the Will. On the other hand, any of the circumstance qualifying as being suspicious could be legitimately explained by the propounder. However, such suspicion or suspicions cannot be removed by mere proof of sound and disposing state of mind of the testator and his signature coupled with the proof of attestation. 8. The test of satisfaction of the judicial conscience comes into operation when a document propounded as the Will of the testator is surrounded by suspicious circumstance/s. While applying such test, the Court would address itself to the solemn questions as to whether 44 the testator had signed the Will while being aware of its contents and after understanding the nature and effect of the dispositions in the Will? 9. In the ultimate analysis, where the execution of a Will is shrouded in suspicion, it is a matter essentially of the judicial conscience of the Court and the party which sets up the Will has to offer cogent and convincing explanation of the suspicious circumstances surrounding the Will.” 28 Similar reiteration of law can be found in Meena Pradhan vs. Kamla Pradhan (2023) 9 SCC 734 . 29 The Hon’ble Supreme Court has held that the Court has to consider two aspects; firstly, that the Will is executed by the testator and secondly, it was the last Will executed by him or her. It is not required to be proved with mathematical accuracy but the test of the satisfaction of the prudent mind has to be applied. A Will is required to fulfill all the formalities required under Section 63 of the Succession Act. Further it has been summarized that for the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive subject to process of the Court, and capable of being giving evidence, shall be examined. The attesting witness should speak not only about the testator’s signature but also that each of the witness had signed the Will in the presence of the testator. The attesting witness should speak not only about the testator’s signature but also that each of the witness had signed the Will in the presence of the testator. 30 In the present case, the witnesses and the scribe of the Will, in one voice have proved the execution of the Will, except for minor contradictions, which cannot be termed suspicious circumstances as the same must be real, germane and valid and not merely the fantasy of the doubting mind. 31 In the present case, it has to be seen that the Will is dated 14.5.2006 and the scribe and marginal witnesses entered the witness box on 23.5.2011 i.e. .after more than 5 years, therefore, minor contradictions, if any, in their statements are of no consequence until and unless such contradictions go to the root of the case. 32 Learned Civil Judge had non-suited the defendants/respondents on certain contradictions. Learned Civil Judge had taken into consideration that the marginal witnesses have stated in their testimonies that Chiri Devi had appended her signature on the Will Ext. DW1/A, whereas on the Will, it is thumb mark. Learned District Judge has rightly come to the conclusion that from the perusal of the signatures appended by the marginal witnesses as well as their depositions shows that they are villagers/simpleton and they are not much educated. Therefore, they could say that it was thumb marked/signed. The said contradiction does not appear to be suspicious circumstance as is being tried to be projected by the plaintiffs/appellants. 33 It has come on record that Chiri Devi was suffering from backache and she was bed ridden for about 8-9 years. It has been admitted by the witness of the plaintiffs namely, PW2 Dilbag Singh that Chiri Devi was residing in the house of defendants No. 1 and 2. He has categorically admitted that Chiri Devi was being looked after and maintained by defendants No. 1 and 2 and she used to reside only with them. 34 It has come on record and is admitted by PW1 plaintiff Khushal Chand (plaintiff No.1) that his brothers plaintiffs No. 2 and 3, namely Amar Singh and Ravinder Kumar are residing at Una. PW1 admitted that their children are studying at Una and they are residing there for about four years. 34 It has come on record and is admitted by PW1 plaintiff Khushal Chand (plaintiff No.1) that his brothers plaintiffs No. 2 and 3, namely Amar Singh and Ravinder Kumar are residing at Una. PW1 admitted that their children are studying at Una and they are residing there for about four years. PW1 also admitted that his house is at a distance of about 1 km from the old house, where Chiri Devi was residing and he has constructed the house in the year 1984. 35 PW2 Dilbagh Singh has also admitted that Chiri Devi was being looked after and maintained by defendants No. 1 and 2 and plaintiff No.2 and 3 are residing at Una for the last 15 years. 36 PW3 Prakash Chand has also admitted that the plaintiffs No. 2 and 3 are residing at Una for about 20-22 years and the house of plaintiff No.1 is situated at a distance of 500 mts. and he is residing there in his own house. 37 Perusal of the record and evidence demonstrates that plaintiffs No. 2 and 3 are settled at Una and PW1 is residing in his own house, which is at a distance of 1 km from the old house where Smt. Chiri Devi was residing. It has also been admitted by PW2 that the deceased Chiri Devi was being looked after and maintained by defendants No. 1 and 2 especially her daughter-in-law Kanchana Devi. 38 The deceased was being rendered services by the defendants No. 1 and 2. The appellants/plaintiffs have failed to establish and prove that while residing separately, how they were rendering services to the deceased Chiri Devi. Neither in the pleading nor in evidence it has come that they served their mother in any form including deputing their wives for looking after the deceased. 39 Chiri Devi was a pensioner, therefore, it can be inferred that she did not need money but having backache and being bedridden, she required the personal service and attention of someone which was provided by defendant No.1 being her daughter-in-law. 39 Chiri Devi was a pensioner, therefore, it can be inferred that she did not need money but having backache and being bedridden, she required the personal service and attention of someone which was provided by defendant No.1 being her daughter-in-law. Chiri Devi needed personal services and for physical activities, she was dependent on others and the record reveals that for that purpose, an old lady required an attendant and she found it in the form of her daughter-in- law, who served and maintained Chiri Devi till her death and thereafter Chiri Devi executed the Will by bequeathing her property in favour of her daughter-in-law (defendant No.1). 40 The above stated facts prove that out of love and affection and on account of services rendered by her daughter- in-law, deceased Chiri Devi executed the Will, Ext. DW1/A in her favour depriving her own children. This fact has also been elaborated by Chiri Devi in the Will, Ext. DW1/A whereby she stated that she is about 86 years old and she is having back ache for about 9 years, as a result of which she could not walk and was bed ridden, however she was well aware of her well being. She stated in the Will that she is having four sons and one daughter. She got married her daughter and she is happy in the house of her in-laws and whatever she could give to her daughter, she has given in the form of dowry. She has stated in the Will that her sons Amar Singh and Ravinder Kumar are residing at Una for about 8-9 years and they have settled there. They have left their residences at Village Daruhi and no one of them looked after her. She stated that her third son Khushal Chand is residing separately at a distance of 300 mts from her house and he did not look after her nor he maintained her. In the Will, it has been stated that she is being looked after by her daughter-in-law, wife of Nika Ram, defendant No.2. The Will speaks the mind of testatrix. 41 These facts establish that Chiri Devi, who was 86 years old, was being looked after and maintained by defendants No. 1 and 2 especially by her daughter-in-law. Therefore, out of love and affection and on account of services rendered to her she executed the Will, Ext. The Will speaks the mind of testatrix. 41 These facts establish that Chiri Devi, who was 86 years old, was being looked after and maintained by defendants No. 1 and 2 especially by her daughter-in-law. Therefore, out of love and affection and on account of services rendered to her she executed the Will, Ext. DW1/A in favour of her daughter-in-law. 42 Learned counsel for the appellants/plaintiffs has urged that on the Will there is figure ‘6’ substituted with figure ‘5’ and it raises suspicion and thus, creates doubt. However, in case testimony of DW1 is seen, he has given clarification that figure ‘6’ was wrongly written and the same was corrected. He has also clarified that firstly Kamaljeet wanted to be witness, but later on he refused and thereafter Lekh Raj signed on the Will. Therefore, this is not a suspicious circumstance as is being tried to be projected by the learned counsel for the appellants/plaintiffs. 43 Submission of the appellants/plaintiffs is that defendant No.1 being a beneficiary actively participated in the execution of the Will, therefore, it creates doubt and is one of the suspicious circumstances for disbelieving the Will. 44 However, the Hon’ble Supreme Court in Pentakota Satyanarayana vs. Pentakota Seetharatnam , 2005 (8) SCC 67 has held contrary to what is being tried to be projected by the appellants/plaintiffs, which reads as under: “25. It is settled by a catena of decisions that any and every circumstance is not a suspicious circumstance. Even in a case where active participation and execution of the Will by the propounders/beneficiaries was there, it has been held that that by itself is not sufficient to create any doubt either about the testamentary capacity or the genuineness of the Will. It has been held that the mere presence of the beneficiary at the time of execution would not prove that the beneficiary had taken prominent part in the execution of the Will. This is the view taken by this Court in Sridevi & Ors vs. Jayaraja Shetty & Ors, (2005) 2 SCC 784 . In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In the said case, it has been held that the onus to prove the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will proof of testamentary capacity and the proof of signature of the testator as required by law not be sufficient to discharge the onus. In case, the person attesting the Will alleges undue influence, fraud or coercion, the onus will be on him to prove the same and that as to what suspicious circumstances which have to be judged in the facts and circumstances of each particular case.” 45 Merely, for the reason that the beneficiary of the Will participated in the execution of the Will cannot be construed to be a suspicious circumstance. In the present case Chiri Devi, who was an old lady, was totally dependent upon her daughter-in-law Kanchana Devi for her physical activity. It has also come on record that Chiri Devi was being looked after and maintained by her daughter-in-law as she was residing with her. Therefore, to say that she participated in the execution of the Will raises suspicious circumstance cannot be accepted. In the present case Will has been executed at home and being an old lady and being looked after by her daughter- in-law, participation of defendant No.1 does not raise suspicion in any manner. 46 Learned District Judge has rightly appreciated and scanned the record in its true perspective and has rightly come to the conclusion that the Will executed by Chiri Devi, Ext. DW1/A in favour of defendant No.1 is legal and valid. 47 This Court is well aware of the fact that it should not re-appreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the learned first appellate court. 48 In Navaneethammal vs. Arjun Chetty , AIR 1996 SC 3521 , the Hon’ble Supreme Court has held as under:- “20. In our considered view the lower appellate court has fairly appreciated the evidence in the above background and has reached the conclusion that the suit was not barred by limitation. 48 In Navaneethammal vs. Arjun Chetty , AIR 1996 SC 3521 , the Hon’ble Supreme Court has held as under:- “20. In our considered view the lower appellate court has fairly appreciated the evidence in the above background and has reached the conclusion that the suit was not barred by limitation. Even assuming that another view is possible on a re-appreication of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.” 49 The Hon’ble Supreme Court has discussed the law on the subject in Civil Appeal No. 5401/2025, arising out of SLP (C) No. 6799/2022, titled as Angadi Chandranna vs. Shankar & ors., decided on 22.4.2025, wherein in paras 12 and 12.1 thereof, it was observed as under:- 12. Before delving into the facts of the case, this court in Jaichand (supra) expressed its anguish at the High Court for not understanding the scope of Section 100 CPC, which limits intervention only to cases where a substantial question of law exists, and clarified that the High Court can go into the findings of facts under Section 103 CPC only under certain circumstances, as stated in the following passages: “23. We are thoroughly disappointed with the manner in which the High Court framed the so-called substantial question of law. By any stretch of imagination, it cannot be termed even a question of law far from being a substantial question of law. How many times the Apex Court should keep explaining the scope of a second appeal Under Section 100 of the Code of Civil Procedure and how a substantial question of law should be framed? We may once again explain the well-settled principles governing the scope of a second appeal Under Section 100 of the Code of Civil Procedure. 24. In Navaneethammal v. Arjuna Chetty reported in MANU/SC/2077/1996 :1998: INSC: 349 : AIR 1996 S.C. 3521 , it was held by this Court that the High Court should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate Court. 25. 24. In Navaneethammal v. Arjuna Chetty reported in MANU/SC/2077/1996 :1998: INSC: 349 : AIR 1996 S.C. 3521 , it was held by this Court that the High Court should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate Court. 25. In Kshitish Chandra Purkait v. Santosh Kumar Purkait reported in MANU/SC/0647/1997: 1997:INSC:487: (1997) 5 S.C.C. 438 ), this Court held that in the Second Appeal, the High Court should be satisfied that the case involves a substantial question of law and not mere question of law. 26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor reported in MANU/SC/0058/1999: 1999 (2) S.C.C. 471 , this Court held: Keeping in view the amendment made in 1976, the High Court can exercise its jurisdiction Under Section 100, Code of Civil Procedure only on the basis of substantial questions of law which are to be framed at the time of admission of the Second Appeal and the Second Appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court Under Section 100 Code of Civil Procedure without following the aforesaid procedure cannot be sustained. 27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar reported in MANU/SC/0278/1999 : 1999:INSC:192 : AIR 1999 S.C. 2213 held: The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence. 28. It is thus clear that Under Section 100, Code of Civil Procedure, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence. 29. 29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Under Section 103, Code of Civil Procedure, the High Court has got power to determine the issue of fact. The Section lays down: Power of High Court to determine issue of fact: In any Second Appeal, the High Court may, if the evidence on the record is sufficient to determine any issue necessary for the disposal of the appeal,- (a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100. 30. In Bhagwan Sharma v. Bani Ghosh reported in MANU/SC/0094/1993 : AIR 1993 S.C. 398 , this Court held: The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non- consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate Court for a rehearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103(b) If in an appropriate case the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged. 31. In the case of Hero Vinoth v. Seshammal reported in MANU/SC/2774/2006:2006:INSC:305 : (2006) 5 SCC 545 this Court explained the concept in the following words: It must be tested whether the question is of general public importance or whether it directly and substantially affects the rights of the parties. Or whether it is not finally decided, or not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law. 32. It is not that the High Courts are not well-versed with the principles governing Section 100 of the Code of Civil Procedure. It is only the casual and callous approach on the part of the courts to apply the correct principles of law to the facts of the case that leads to passing of vulnerable orders like the one on hand.” 12.1. In the present case, in our view, the so-called substantial question of law framed by the High Court does not qualify to be a substantial question of law, rather the exercise of the High Court is a venture into the findings of the First Appellant Court by re-appreciation of evidence. It is settled law that the High Court can go into the findings of facts only if the First Appellate Court has failed to look into the law or evidence or considered inadmissible evidence or without evidence. Section 103 permits the High Court to go into the facts only when the courts below have not determined or rendered any finding on a crucial fact, despite evidence already available on record or after deciding the substantial question of law, the facts of a particular case demand re- determination. Section 103 permits the High Court to go into the facts only when the courts below have not determined or rendered any finding on a crucial fact, despite evidence already available on record or after deciding the substantial question of law, the facts of a particular case demand re- determination. For the second limb of Section 103 to apply, there must first be a decision on the substantial question of law, to which the facts must be applied, to determine the issue in dispute. When the First Appellate Court in exercise of its jurisdiction has considered the entire evidence and rendered a finding, the High Court cannot re-appreciate the evidence just because another view is possible, when the view taken by the First Appellate Court is plausible and does not suffer from vice in law. When the determination of the High Court is only by way of re-appreciation of the existing evidence, without there being any legal question to be answered, it would be axiomatic that not even a question of law is involved, much less a substantial one. It will be useful to refer to another judgment of this Court in Chandrabhan (Deceased) through L.Rs & Ors. v. Saraswati & Ors.11, wherein it was held as follows: “33. The principles relating to Section 100 of the Code of Civil Procedure relevant for this case may be summarised thus: (i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law. (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law. (iii) The general Rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well- recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding. 34. In this case, it cannot be said that the First Appellate Court acted on no evidence. The Respondents in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court. The Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously. 35. In this case, as observed above, evidence had been adduced on behalf of the Original Plaintiff as well as the Defendants. The First Appellate Court analysed the evidence carefully and in effect found that the Trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption. There was no such infirmity in the reasoning of the First Appellate Court which called for interference. 36. Right of appeal is not automatic. Right of appeal is conferred by statute. There was no such infirmity in the reasoning of the First Appellate Court which called for interference. 36. Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court.” 12.2. In the present case, the First Appellate Court analyzed the entire oral evidence adduced by both parties, as well as the documentary evidence relied upon by either side, and dismissed the suit. The authority to re-consider the evidence is available only to the First Appellate Court under Section 96 and not to the High Court in exercise of its authority under Section 100, unless the case falls under the exceptional circumstances provided under Section 103. While so, the re-appreciation of the entire evidence, including the contents of the exhibits, reliance on and wrongful identification of a different property and treating the same to be the suit property actually in dispute to prescribe another view without any substantial question of law, only illustrate the callousness of the High Court in applying the settled principles. Therefore, the High Court erred in setting aside the judgment and decree of the First Appellate Court.” 50 To the similar extent, the Hon’ble Supreme Court in Civil Appeal Nos.14138-14139 of 2024, arising out of SLP (C) Nos. 2050-2051/2023, titled as Jaichand (dead) through LRs & ors. vs. Sahanulal & anr., decided on 10.12.2024 has held as under:- “27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar reported in AIR 1999 S.C. 2213 held:- “The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.” 28. It is thus clear that under Section 100, C.P.C., the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.” 51 It is well settled principle of law that this Court can go into the findings of facts only if the First Appellate Court has failed to look into the law or evidence or considered inadmissible evidence or without evidence. 52 Section 103 CPC permits this Court to go into the facts only when the courts below have not determined or rendered any finding on a crucial fact, despite evidence already admissible on record and after deciding the substantial question of law, the facts of a particular case demand re- determination. When the first appellate court in exercise of its jurisdiction has considered the entire evidence and rendered a finding, this Court will not re-appreciate the evidence just because another view is possible, when the view taken by the first appellate court is plausible and does not suffer from vice in law. 53 In the present case, the learned first appellate court has analyzed oral evidence adduced by both the parties as well as evidence relied upon by either side and consequently, dismissed the suit. The authority to reconsider the evidence is available only to the learned first appellate court under Section 96 CPC and not to this Court in exercise of its authority under Section 100 CPC, unless the case falls under the exceptional circumstances provided under Section 103 CPC. 54 Keeping in mind the legal proposition of law, as laid down by the Hon’ble Supreme Court, this Court is of the opinion that the learned first appellate court has rightly scanned the oral as well documentary evidence on record and has passed the judgment, whereby the suit for declaration and injunction filed by the appellants/plaintiffs has been ordered to be dismissed. This Court does not find any infirmity in the impugned judgment. Substantial question of law is answered accordingly. This Court does not find any infirmity in the impugned judgment. Substantial question of law is answered accordingly. 55 In view of aforesaid discussion and for the reasons stated hereinabove, I find no merit in the instant appeal and the same is accordingly dismissed, leaving the parties to bear their own costs. Pending application(s), if any, also stands disposed of.