2026 Supreme(Online)(HP) 2595

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
HON'BLE MR. JUSTICE RAKESH KAINTHLA
LAXMI DUTT – Appellant
Versus
BEASA DEVI – Respondent
RSA/339/2012

Amendments to pleadings after trial require proof of due diligence, not mere inadvertence. Will execution requires statutory formalities and the dispelling of pleaded suspicions. In second appeals, High Courts cannot re-appreciate facts unless the lower court's findings are perverse.

Headnote:(A) Code of Civil Procedure, 1908 - Order VI Rule 17 - Amendment of pleadings - Proviso to Order VI Rule 17 requires the party to satisfy the Court that they could not have applied for amendment before the commencement of the trial despite the exercise of due diligence - Inadvertence is a form of negligence and does not constitute the exercise of due diligence (Paras 22, 25).

(B) Indian Succession Act, 1925 - Section 63; Indian Evidence Act, 1872 - Section 68 - Proof of Will - A Will must be signed by the testator and attested by at least two witnesses, and at least one attesting witness must be examined to prove its execution - While the propounder must dispel real, germane, and valid suspicious circumstances, such circumstances must be specifically pleaded and proved; they cannot be urged for the first time before the appellate court without a foundation laid in the pleadings (Paras 32, 33, 37, 38).

(C) Code of Civil Procedure, 1908 - Sections 100 and 103 - Scope of second appeal - Jurisdiction of the High Court in a second appeal is limited to substantial questions of law - It is impermissible to interfere with concurrent findings of fact or the reasoned findings of the first appellate court unless they are perverse, based on no material, or against settled principles of law - The High Court cannot re-appreciate evidence simply to substitute its own view for that of the lower courts (Paras 55, 56, 59, 60).

Facts of the case:
The plaintiff filed a suit for declaration that a later Will executed by the deceased was the last testament and that an earlier Will was null and void. The trial court dismissed the suit, finding the later Will shrouded in suspicious circumstances. The first appellate court reversed this decision, ruling that the later Will was properly executed and the alleged suspicious circumstances were neither pleaded nor proved. The defendant filed a second appeal challenging the validity of the later Will. During the pendency of the appeal, the plaintiff sought to amend the plaint to include further property owned by the deceased.

Findings of Court:
The application for amendment of the plaint was dismissed as the plaintiff failed to demonstrate due diligence, attributing the omission to inadvertence. Regarding the merits of the suit, the court found that the first appellate court had correctly displaced the trial court's findings by observing that the suspicious circumstances were not pleaded or proved and that the execution of the Will was duly established by evidence.

Issues: The main issues were: (i) whether the application for amendment of the plaint was maintainable at the stage of a second appeal; and (ii) whether the first appellate court acted perversely in upholding the validity of the later Will by ignoring the trial court's findings on suspicious circumstances.

Ratio Decidendi: The court ruled that amendments post-trial are prohibited without proof of due diligence. In testamentary cases, the court cannot take notice of suspicious circumstances that are not pleaded and proved. Under Section 100 of the Code of Civil Procedure, a second appellate court cannot disturb factual findings of the first appellate court unless such findings are perverse.

Result: Appeal dismissed.