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HIMACHAL PRADESH HIGH COURT
Rakesh Kainthla, J.
Sudesh Kumari – Appellant
versus
Pawan Singh – Respondent
RSA No.25 of 2023
Decided on 20.6.2024
(A) Indian Succession Act, 1925 – Section 63 – Proof of execution of Will – Court has to ascertain intention of a person putting his signatures and if signatures were put in token of fact that person had seen the executant putting his signatures, he would be called an attesting witness – Mere nomenclature of a person in Will as an Identifier is not sufficient to hold that Will was not attested by two witnesses – Unless sufficient evidence is led to show that person putting his signatures on document signed it to attest it, the person cannot be called to be an attesting witness – Court has to see intention of person putting his signatures and if he had put signatures in acknowledgement of having seen testator putting his signatures, he will fall within definition of attesting witness even though, he has been described as an Identifier. (Paras 14 to 17)
(B) Hindu Law – Succession – Appellant-plaintiff is claiming her mother’s property on the basis of Will – There is no evidence regarding impairment of mental faculty of testatrix – Plea that she was not of a sound disposing state of mind cannot be accepted – Deceased had given reason for excluding plaintiff from her estate – She stated that she had gifted jewellery cash and other articles to plaintiff and nothing was due to her – She was executing Will after being satisfied with services rendered by defendant – Recital in Will that deceased was residing with defendant is duly proved on record – Submission that there was no justification for excluding plaintiff and executing Will in favour of defendant is not acceptable – Execution of Will cannot be doubted merely because defendant happened to be present in office of Sub-Registrar – Both Courts have concurrently found that due execution and attestation of Will were proven – There is no suspicious circumstance surrounding execution of Will – Will satisfies mandatory requirements of Section 63 of Succession Act – It is not permissible for High Court to interfere with findings of fact in second appeal under Section 100 of CPC. (Paras 38, 39, 40, 41, 42, 43, 49 and 50)
(C) Civil Procedure Code, 1908 – Sections 100 and 103 – Second appeal – Prerequisite for entertaining a second appeal is a substantial question of law involved in the case which has to be adjudicated by High Court – Unless and until there is absolute perversity, it would not be appropriate for High Courts to interfere in a question of fact just because two views are possible – In such circumstances, High Courts should restrain itself from exercising jurisdiction on a question of fact – When intention of Legislature is so clear courts have no power to enlarge scope of Section 100 for whatsoever reasons – Justice has to be administered in accordance with the law. (Para 46)
Result: Appeal dismissed.
JUDGMENT
Rakesh Kainthla, J.—The present appeal is directed against the judgment and decree dated 31.08.2022 passed by learned Additional District Judge-I, Kangra at Dharamshala (learned First Appellate Court), vide which the appeal filed by the appellant (plaintiff before learned Trial Court) was dismissed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the plaintiff filed a civil suit before the learned Trial Court seeking a declaration that she has succeeded her mother Savitri Devi’s share in the suit land mentioned in the headnote of the plaint on the basis of Hindu Succession Act, entries regarding Savitri Devi’s estate in favour of the defendant based on the Will dated 7.10.2010 bearing registration No. 3313/2010 registered with Sub Registrar, Indora, stated to have been executed by Savitri Devi are null and void and do not affect the rights of the plaintiff to succeed to her estate. A relief of permanent prohibitory injunction for restraining the defendant from alienating the suit land, dispossessing the plaintiff from the suit land, cutting and removing the trees and changing the nature of the suit land was also sought. In the alternative, the plaintiff prayed for a decree for possession to the extent of her share. It was pleaded that Savitri Devi was the owner in possession of the suit land. She died intestate on 15.12.2011, leaving behind the plaintiff as her only legal heir. The defendant got attested Mutation No. 407 dated 23.07.2012 in Mohal Badala, Tehsil Indora and Mutation No. 137 dated 23.07.2012 in Mohal Dhanera, Tehsil Fatehpur, regarding the estate of the deceased based on the Will stated to have been executed by her on 07.10.2010 registered with Sub Registrar, Indora at Sr. No. 3313/2010. Savitri Devi was not mentally fit and, in a sound, disposing state of mind. She never executed any Will and was not competent to execute the Will due to her mental status. The Will was prepared in connivance with the scribe and the witnesses. The plaintiff used to visit her mother. The defendant used to reside at some distance from the house of Savitri Devi. He never served Savitri Devi during her lifetime. The Will is not binding upon the rights of the plaintiff. The plaintiff asked the defendant to admit her claim, but in vain. Hence, the suit was filed to seek the relief mentioned above.
3. The suit was opposed by the defendant by filing a written statement taking preliminary objections regarding lack of maintainability, locus standi and cause of action, the plaintiff having not approached the Court with clean hands, the plaintiff being estopped by her act and conduct from filing the suit and the suit being barred by limitation. The contents of the plaint were denied on merits. It was asserted that Savitri Devi executed a Will on 07.10.2010 in favour of the defendant in her sound disposing state of mind. The defendant became the owner of the suit land on the basis of the Will. Savitri Devi had mentioned in her Will that she had already given enough money, gold, silver jewellery and other articles to the plaintiff at the time of her marriage. Savitri Devi was residing with the defendant and the defendant looked after her in all respects. The defendant is nephew of Savitri Devi and he served Savitri Devi after the death of her husband. He bore all the expenses of the plaintiff and her mother Savitri Devi. The plaintiff sold her share of the land, which she had inherited from her father. The plaintiff filed the present suit to grab the property; hence, it was prayed that the suit be dismissed.
4. A replication denying the contents of the written statement and affirming those of the plaint was filed.
5. Learned Trial Court framed the following issues on 22.07.2014:-
(1) Whether the Will dated 07.10.2010 is illegal, null and void and has not binding on the rights of th
(1) Proof of execution of Will – Mere nomenclature of a person in Will as an Identifier is not sufficient to hold that Will was not attested by two witnesses.(2) High Courts should restrain itself fr....
The burden of proving the execution of a Will rests on the propounder, who must dispel any suspicious circumstances to establish its validity.
The mere presence of beneficiaries during will execution is not sufficient to invalidate it; the burden of proving suspicious circumstances lies with the challengers.
Propounder proves Will via scribe and attesting witnesses; minor contradictions and beneficiary caregiver presence not suspicious circumstances; second appeal High Court cannot re-appreciate evidence....
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