IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No. 223 of 2000. Date of decision: 19.11.2010. Chhaju Ram alias Chaja Ram & ors. ….. Appellants. Vs. Ram Dev & ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the Appellants : Mr. N.K.Thakur, Advocate. For the Respondents : Mr. Ajay Kumar, Advocate. Kuldip Singh, Judge (Oral). This appeal has been directed against the judgement and decree dated 10.3.2000 passed by learned Addl. District Judge (1), Kangra at Dharamshala (Camp at Una) in Civil Appeal No. 1/93 (156/94) reversing the judgement and decree dated 10.12.1992 passed by learned Sub Judge, Una in Civil Suit No. 128/85 (RBT No. 33/89). Some of the original parties have died, hence in this judgement parties are referred as plaintiff and defendants. 2. The facts in brief are that Rattan Chand predecessor- in-interest of respondents No. 1 to 7 had filed a suit for declaration that suit property was joint Hindu Family property, injunction and joint possession. The further case of plaintiff was that suit land described in the plaint was ancestral property of deceased Thakar Dass, plaintiff, defendants No. 1 to 3 coparceners. Thakar Dass died on Whether the reporters of the local papers may be allowed to see the Judgment? Yes …2… 2.4.1985. Thakar Dass had two wives. The plaintiff was the son from first wife Smt. Bhago Devi, who had died, defendants No. 1 to 3 and 5 to 9 are the sons and daughters of Thakar Dass from his second wife Smt. Sandhya Devi defendant No. 4. Thakur Dass had 1/5th share in the property at the time of his death. After the death of Thakar Dass, the plaintiff and defendants No. 1 to 3 as coparceners are having 11/50 share each and defendants No. 4 to 9 having 1/5 share each as owners in possession. 3. Thakar Dass had no right to alienate the suit property in any manner. The will dated 4.9.1978 of Thakar Dass alleged by defendants No. 1 to 3 was wrong, illegal. In fact, Thakar Dass had not executed any will. On these averments, the suit was filed. 4. The defendants filed written statement and denied that plaintiff and defendants No. 1 to 3 constitute a joint Hindu Family. It has also been denied that property was ancestral i.e. coparcenery property. Thakar Dass had executed a will in order to avoid family litigation. Thakar Dass was absolute owner in possession of the suit property. It has been denied that plaintiff had any share in the property after the death of Thakar Dass. It has been pleaded that defendants No. 1 to 3 have succeeded to the estate of Thakar Dass on the basis of will dated 4.9.1978 executed by Thakar Dass while he was in sound disposing mind. The plaintiff filed replication in which he reasserted his case as projected in the plaint. On the pleadings of the parties, the following issues were framed:- 1. Whether Thakur Dass deceased father of plaintiff and defendants No. 1 to 3 formed a joint Hindu Family? OPP. …3… 2. Whether the suit property is a coparcenery property as alleged, if so, its effect? OPD. 3. Whether deceased Thakur Dass executed a will dated 4.9.1978 in favour of defendants No. 1 to 3, if so, its effect? OPD. 4. Whether the will is a out come of undue influence, mis-representation and importunity as alleged? OPD. 5. Whether the suit is not properly valued for the purpose of court fee and jurisdiction? OPD. 5-A Whether deceased Thakur Dass was governed by agricultural custom in the matter of alienation of property as alleged? OPD. 6. Relief. Issues No. 3 and 5-A were answered in affirmative, whereas issues No. 1, 2, 4 and 5 were answered in negative and the suit was dismissed by the learned trial court on 10.12.1992. In appeal, the learned Addl. District Judge on 10.3.2000 set-aside the judgement and decree dated 10.12.1992 and decreed the suit as per judgement, decree dated 10.3.2000, hence second appeal, which has been admitted on the following substantial questions of law:- 1. Whether examination of one marginal witness to prove the due execution of the will is not sufficient under the law? 2. Whether the exclusion of a son under the will is a suspicious circumstance surrounding the validity of the will? 5. I have heard the learned counsel for the parties and have also gone through the record. The learned counsel for the appellants has submitted that there is no requirement of law that …4… second attesting witness of the will should also appear in the witness box to prove the will. The examination of one attesting witness for proving the will is enough. The learned counsel for the appellants has submitted that DW 3 Bhagat Ram has proved the execution of the will and no more evidence is required to prove the execution of the will. He has submitted that once DW 3 has proved the will, there was no necessity even to bring any other evidence to prove that other attesting witness was also present at the time of execution of the will. It has been submitted that exclusion of a son in a will is not a suspicious circumstance regarding the validity of the will. The learned Addl. District Judge has not properly appreciated section 63 of Indian Succession Act (for short, the Act) and has erred in returning the finding that will is shrouded by suspicious circumstance. 6. The learned counsel for the respondents has supported the impugned judgement, decree and has submitted that defendants have examined only DW 3 Bhagat Ram attesting witness but the statement of Bhagat Ram is short of requirement of Section 63 of the Act, and, therefore, the execution of the will has not been proved. He has prayed for dismissal of the appeal. 7. The substantial questions of law No. 1 and 2 are interconnected and can be considered collectively, therefore, both the substantial questions of law are taken up together for disposal. Section 63 of Indian Succession Act is as follows:- “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:- …5… (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 witnesses, 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 acknowledgement 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.” 8. In Smt. Punni v. Sumer Chand and others AIR 1995 HP 74, it has been held as follows:- “As regards attestation, clause (c) aforementioned requires that the Will shall be attested by two or more witnesses. It is not necessary that both of them be present simultaneously at the time of putting their signatures but the requirement is that each of the attesting witness must have seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signature or mark on the Will. There is also an additional requirement that each of the attesting witness shall also sign the Will in the presence of the testator. In Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346, it was held that in order to prove the due attestation of the will the propounder of the will has to prove that the two attesting witnesses saw the testatory sign the will and that they themselves signed the same in the presence of the testator. As regards the proof and attestation, reference was made to Section 68 of the Evidence Act and it was held this it is necessary to comply with the provisions of the Evidence Act to prove the due execution and attestation of the Will by calling at least one attesting witness in case he is alive and one cannot presume from the mere …6… signatures appearing at the foot of the endorsement of registration or at the foot of the document that the witnesses had appended their signatures to the documents as attesting witnesses. On the proof of a Will, onus of proof as also the nature of evidence required to be led, in H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, it was held that (at pp. 451 and 452 of AIR):…………” 9. The learned counsel for the respondents has relied K.M.Varghese and others v. K.M. Oommen and others AIR 1994 KERALA 85 with emphasis on para-65, which is as follows:- “In AIR 1974 AP 13 K. Nookaraju v. P. Venkatarao a learned single Judge of A.P. High Court held that it is clear from section 68 of the Evidence Act read with section 63(c ) of the Indian Succession Act, that it is sufficient even if one attestor is examined but that attestor should speak not only about the testator’s signature or affixing his mark to the will or somebody else signing it in his presence and by his direction or that he had attested the will after taking acknowledgement from the testator of the signature or mark, but he must also speak that each of the witnesses had signed the will in the presence of the testator.” 10. A bare perusal of Section 63 of the Act and Section 68 of Indian Evidence Act makes it clear that it is not necessary that more than one attesting witness in every case should appear in the court to prove the execution of the will. The requirement of law is satisfied in case one attesting witness appears in the court and proves the execution of the will. In the present case, DW 3 Bhagat Ram attesting witness of will Ex. D-1 has been examined in the court. In these circumstances, it cannot be said that since other attesting witness has not appeared in the court, therefore, on this ground alone the case of the defendants regarding the execution of the will should be thrown out. It is the case of the defendants that other attesting witness has since died. …7… 11. The connected question is with respect to execution of the will dated 4.9.1978 Ex. D-1 of Thakar Dass. DW 3 Bhagat Ram has nowhere stated in his statement that at the time of execution of will Ex. D-1 or when the will was signed by the testator Bhagat Ram, the other attesting witness was also present, nor he has stated that Thakar Dass in his presence as well as in presence of other attesting witness of the will has admitted the execution of the will. He has also not stated that other attesting witness of the will signed the will in his presence and in presence of testator. He has not even named the other attesting witness of the will. The statement of DW 3 Bhagat Ram does not fulfill the requirement of the Act regarding the execution of the will. Thus seen from any angle, the execution of the will has not been proved. Once the execution of the will has not been proved, it is not necessary to go into the question of suspicious circumstance even though the learned Addl. District Judge has recorded a specific finding on this aspect also. The above substantial questions of law are accordingly decided. It is held that appellants/ defendants have failed to prove execution of will dated 4.9.1978 Ex. D-1. No other point has been urged. 12. The result of above discussion there is no merit in the appeal, which is dismissed with no order as to costs. November 19, 2010. ( Kuldip Singh ), (Hem) Judge.