Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2026 Supreme(Online)(HP) 1899

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J
Amar Chand – Appellant
Versus
Banarsi Dass – Respondent
RSA No. 356 of 2009

Advocates:
For the Appellants/Petitioners: Deepak Gupta, Rahul Sharma, Avnish Mandhotra
For the Respondents: Rohit Sharma, Anuj Gupta

In a second appeal, the High Court cannot re-appreciate evidence or disturb concurrent findings of fact regarding the validity of a Will unless the findings are shown to be perverse, arbitrary, or based on no evidence, as the scope of review under Section 100 CPC is strictly limited to substantial questions of law.

Headnote:(A) Indian Succession Act, 1925 - Section 63 - Indian Evidence Act, 1872 - Section 68 - Code of Civil Procedure, 1908 - Order XLI Rule 27 - Execution of Will - Proof of Will - Onus on propounder to dispel suspicious circumstances - Appellate court jurisdiction in second appeal - High Court cannot re-appreciate evidence or interfere with concurrent findings of fact unless finding is perverse or against settled law. (Paras 26, 28, 52, 53, 56)

(B) Appeal - Scope and ambit - High Court in second appeal exercises limited jurisdiction under Section 100 CPC - It cannot interfere with findings arrived at by trial and first appellate court simply because another view is possible - Interference is permissible only if finding is perverse, not based on any material, or involves substantial question of law. (Paras 53, 54, 56, 58)

Facts of the case:
Plaintiffs filed a suit for declaration of ownership based on a Will. Defendants contested the suit, asserting a different prior Will and alleging the later Will was fabricated and surrounded by suspicious circumstances. Trial Court and first appellate court concurrently held the Will to be genuine, rejecting the plea of suspicious circumstances.

Findings of Court:
Both courts below concurrently held that the execution and attestation of the Will were proven and no suspicious circumstances existed. The court found that minor contradictions in testimony are expected due to the passage of time and do not invalidate the Will. The court further held that registration is not a condition for validity of a Will.

Issues: Whether the findings of the courts below were a result of misreading of evidence and whether the Will was surrounded by suspicious circumstances invalidating its execution.

Ratio Decidendi: A Will must be proved in accordance with law; once the propounder dispels suspicious circumstances, the court must accept the document. High Courts cannot re-appreciate evidence in second appeal to replace findings of fact unless the findings are perverse or unsupported by record.

Result: Appeal dismissed.

Table of Content
1. factual basis of the suit regarding succession and will execution. (Para 1 , 2 , 3)
2. procedural defense and framing of issues concerning the will's validity. (Para 4 , 5 , 6 , 7 , 8 , 9)
3. appellate courts should not disturb findings on will validity. (Para 10 , 11 , 12)
4. scope of hearing in a regular second appeal. (Para 13 , 14 , 15 , 16)
5. discharge of legal guardian upon attaining majority. (Para 17 , 18)
6. conditions for admitting additional evidence under order 41 rule 27 cpc. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27)
7. requirements for proving a valid will under the succession act. (Para 28 , 29 , 30)
8. evidence of attesting witnesses as to voluntary execution. (Para 31 , 32 , 33 , 34 , 35 , 36)
9. minor inconsistencies do not invalidate will; no presumption by registration. (Para 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48)
10. high court cannot re-appreciate evidence on concurrent findings of fact. (Para 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60)
11. dismissal of appeal for lack of substantial error of law. (Para 61 , 62 , 63 , 64 , 65)

Rakesh Kainthla, Judge

The present appeal is directed against the judgment and decree dated 23.05.2009 passed by learned Additional District Judge (II) Kangra at Dharamshala (learned Appellate Court) vide which the judgment and decree dated 31.12.2003 passed by learned Civil Judge (Junior Division), Dehra (II), District Kangra, H.P. (learned Trial Court) were affirmed. (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 plaintiffs filed a civil suit before the learned Trial Court for seeking declaration that they have become the owners of the suit land mentioned in the head note of the plaint after the death of Rulia Ram as per Will dated 24.05.1995 executed by Rulia Ram in favour of the plaintiffs and defendant No.1 in equal share, and mutation to the contrary regarding Mahaal, Kamlota, Mauza Kohala, Tehsil Dehra, District Kangra, H.P. were wrong, illegal, null and void, which did not affect the ownership and rights of the plaintiffs. A relief of permanent prohibitory injunction for restraining the defendants from changing the nature/user of the suit land or raising construction, cutting, felling or removing the trees existing over the suit land was also prayed. It was prayed in the alternative that a declaration be granted to the effect that the plaintiffs, defendant No.1 and Rulia Ram were coparceners in the suit land and Rulia Ram had no right to execute any Will in favour of defendant No.1 beyond 1/4th share as coparcener and the Will dated 31.05.1993 executed in favour of defendant No.1 beyond 1/4th share is wrong, illegal, null and void, which does not affect the rights of the parties.

3. It was asserted that plaintiffs, and defendant No.1, are the sons and defendant Nos. 2 to 4 are the daughters of Rulia Ram, who had expired on 03.06.1995. The suit land was earlier owned and possessed by Sh. Khiala, the grandfather of the plaintiffs, and it devolved upon Rulia Ram by mutation No. 35 dated 28.01.1937 regarding Tika Loharda now Thehra and mutation No. 15 regarding Tika Darogu now Kamlota. Rulia Ram executed a Will of his property on 24.05.1995 in favour of the plaintiffs and defendant No.1, and the plaintiffs acquired a 2/3rd share in the suit land. The nature of the suit land is ancestral qua the parties. No coparcener has a right to alienate the joint land more than his share. The Will propounded by defendant No.1, stated to have been executed by Rulia Ram beyond 1/4th share, is null and void and does not affect the rights of the plaintiffs. The revenue authorities attested a mutation No.40 dated 24.08.1995 regarding the suit land, which is wrong and illegal and does not affect the rights of the plaintiffs. The defendants interfered with the suit land and threatened to ch

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2026 Supreme(Online)(HP) 1899

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLARakesh Kainthla, JAmar Chand – AppellantVersusBanarsi Dass – RespondentRSA No. 356 of 2009

Cases Referred (5)

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Rakesh Kainthla, J
Amar Chand – Appellant
Versus
Banarsi Dass – Respondent
RSA No. 356 of 2009