The main legal point established in the judgment is the application of Section 63 of the Indian Succession Act, which sets out the rules for the execution and attestation of wills, and the burden of proof in cases of suspicious circumstances surrounding the execution of a will.

Ajay Mohan Goel, J.:

By way of the present appeal, the appellant/defendant has challenged the judgment and decree passed by the Court of learned Presiding Officer, Fast Track Court, Mandi, in Civil Appeal No. 140/2003, 21/2005, dated 09.05.2006, vide which, learned Appellate Court has upheld the judgment and decree passed by the Court of learned Sub Judge Ist Class, Court No. 3, Mandi, in Civil Suit No. 144/99, dated 31.07.2003.

2. This appeal was admitted on 17.05.2007 on the following substantial questions of law:-

“1. Whether an identifier can be attesting witness of the will Ex. DW2/A?

2. Whether there is totally misreading of the evidence of the appellant by both the ld. Courts below especially DW2, DW3, DW4 and DW6, which has caused great miscarriage of justice to the appellant?”

3. Brief facts necessary for the adjudication of the case are that respondents/plaintiffs, hereinafter referred to as the plaintiffs, filed a suit for declaration with consequential relief of injunction on the ground that late Chhitru was owner in possession of the suit land to the extent of 1/4th share and he died on 18.01.1999 when he was more than 95 years of age. The plaintiffs, defendants No. 2 and proforma defendant No. 4, were the daughters of late Chhitru, whereas defendant No. 3 was his widow, who had no male issue. The entire land of late Chhitru was being used, looked after and cultivated by all his daughters and widow collectively before the death of late Chhitru. They were still possessing it jointly at the time of filing of the suit. Accordingly, they were entitled to inherit the same in equal shares being first class legal heirs of late Chhitru. However, defendant No.1, husband of defendant No. 2, started proclaiming after the death of Chhitru that deceased Chhitru had executed a Will in his favour dated 01.01.1999, vide which, the entire property of late Chhitru had been bequeathed in his favour. As per the plaintiffs, late Chhitru never expected any Will in favour of defendant No. 1 and alleged document was a forged document and even if it stood proved that the thumb mark appended on the Will was of late Chhitru, even then the same was a result of fraud, misrepresentation and undue influence exercised by defendant No. 1 on late Chhitru. Accordingly, on these basis, the plaintiffs filed a suit for declaration that the alleged Will dated 01.01.1999 was null and void having been procured by fraud, misrepresentation by practicing undue influence and further, the plaintiffs be declared owners of the suit property alongwith other heirs of deceased Chhitru.

4. There are two written statements on record one filed on behalf of defendants No. 1 to 3, which is verified by defendant No. 1 and another written statement independently filed by defendant No. 3, which is duly verified by defendant No. 3.

5. In the written statement, which has been filed on behalf of defendants No. 1 to 3, it has been stated therein that after the death of Chhitru, defendant No. 1 was exclusive owner in possession of the suit land on the basis of registered Will dated 01.01.1999, which was executed by deceased Chhitru in favour of defendant No. 1 with his own free will and volition in a sound disposing state of mind. It was further mentioned in the written statement that the registered Will was validly executed by Chhitru in favour of defendant No. 1 in presence of his wife Smt. Kala Devi, defendant No. 3 and that the Will was valid and genuine one which was executed by the testator with his own free will and volition in lieu of services rendered to him by defendant No. 1 and also by defendant No. 2. It was further mentioned in the written statement that deceased Chhitru had himself come to the office of Sub Registrar, Mandi and executed and got the Will registered i.e. Will No. 1 dated 01.01.1999 in favour of defendant No. 1. It was further mentioned that testator had come to the petition writer in Mandi and got the Will scribed and thereafter, he put his