IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA: RSA.No.156/1998. Date of Decision : 3rd July, 2008. Gatinder Kumar and another. …Appellants. Versus: Pushpa Devi and another. …Respondents. Coram: The Hon’ble Mr.Justice Sanjay Karol, Judge. Whether approved for Reporting? Yes. For the appellants: Mr. Sunil Mohan Goel, Advocate. . For Respondents. Mr.Anuj Nag, Advocate. Sanjay Karol, J (Oral). Learned counsel for the parties have agreed that only the following substantial question of law arises for consideration in the present appeal: “Whether the learned court (District Judge) erred in arriving at conclusion that the propounder has failed to prove due execution of the will in accordance with the provisions of Section 63 of the Indian Succession Act. ?” The present respondents are the successor-in-interest of the original plaintiff Sh. Inder Dev (hereinafter Sh.Inder Dev is referred to as the ‘plaintiff’ and the present appellants are the defendants in the suit (hereinafter are referred to as the ‘defendants’). The plaintiff’s suit, for declaration and injunction was to the effect that he is in possession and joint ownership of the 2 suit land and the will executed by his mother Smt. Kasturu is a result of mis representation, undue influence, coercion and such be declared void. Notably, the defendants are the sons of the plaintiff. The plaintiff’s suit was resisted by the defendants by propoundering a registered will No.94 dated 4th May, 1993, duly executed by their grand mother Smt. Kasturu. The defendants being the beneficiaries, pursuant to the death of the testator on 26th January, 1986, have become rightful owners of the suit land. Based on the pleadings of the parties, the trial Court framed the following issues: 1. Whether the suit is not legally competent and maintainable? ……OPD. 2. Whether the plaintiff is estopped by his act and conduct to file the present suit? ……OPD. 3. Whether the suit is correctly valued for the purpose of court fee and jurisdiction? …… OPP. 4. Whether the suit land is ancestral property as alleged? ….OPP. 5. Whether the will registered on 4.5.1983 has been rightly and validly executed by Smt. Kasturu in favour of the defendants, as alleged? ….OPP. 6. Whether registered will No. 94 dated 4.5.1983 is the result of misrepresentation undue influence coercion and is a forged document as alleged?. …..OPP. 7. Whether mutation No. 379 and 149 have been wrongly attested in favour of the defendants? …OPP. 3 8. Relief. In order to prove its case, the plaintiff examined himself as PW-1, Sh. Budhi Ram (PW-2) and Sh. Amin Chand (PW-3). In rebuttal the defendants examined Sh. Om Parkash (DW-1), Sh.Ganesh Dass (DW-2), Parveen Kapoor (DW-3), Sh. Ishwar Dass (DW-4) and Sh. Jai Chand (DW-5). The defendants placed on record a copy of the said will (marked ‘DY’). Based on the evidence produced by the parties, the trial Court dismissed the suit holding that the suit land was not an ancestral property and that the will registered on 4th May, 1983 had been validly executed by Smt. Kasturu in favour of the defendants and the same was not as a result of misrepresentation, undue influence, coercion. Based on the said will mutation No. 379 and 149 attested in favour of the defendants has also held to be valid. The plaintiff’s suit No. 60 of 1989 was dismissed in terms of judgment and decree dated 15th December, 1993 passed by Sub Judge, Ist Class Court No. II, Mandi, H.P. Aggrieved by the same, the plaintiff filed a Civil Appeal No. 6 of 1994 before the District Judge, Mandi and during the pendency of the appeal, after the plaintiff’s death, the present respondents being his legal heirs were impleaded in the appeal. The only question agitated in the appeal was with regard to the validity of the will. No other point was raised or adjudicated by the court below. The appellate Court i.e. District Judge, Mandi allowed the said Civil Appeal No. 6 of 1994 in terms 4 of its judgment and decree dated 12th November, 1997 and while reversing the trial Court judgment and decree dated 15th December, 1993 decreed the plaintiff’s suit holding that the will executed by Smt. Kasturu Devi on 4th May, 1983 was not proved to have been validly executed as is required under Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as the ‘Act’). The entries of mutation were consequently held to be illegal. I have heard learned counsel for the parties and also perused the record. The only issue which requires consideration in the present appeal is as to whether the provisions of Section 63 of the ‘Act’ stands complied with while executing the will. Smt. Kasturu Devi is alleged to have executed the will mark ‘DY’. It is a registered document and has been signed by two attesting witnesses, namely, Sh. Ishwar Dass (DW-4) and Sh. Bhutashan. In order to prove the will only one of the attesting witnesses (DW-4) has been examined and his statement needs to be scrutinized. He has deposed that deceased Smt. Kasturu Devi had requested him to witness the will which had already been prepared prior to his reaching the office of the Registrar. He has further deposed that prior to his signing the will, the other witness Sh. Bhutashan had already signed the will and left the place. In 5 cross-examination, he has also stated that Smt. Kasturu Devi signed the will only after he had attested his signature. He has reiterated that Sh. Bhutashan had left the place prior to the signing of the will by him and also the testator. His exact statement as translated by the lower appellate court is being reproduced as under: “The will had already been scribed before I reached. Kasturu told that she had executed a will and asked me to sign it…………..The other witness Sh. Bhutashan had already signed it.” “ I cannot say if the will has been executed one day before I signed it.” This statement is undisputed and un controverted. Section 63 of the ‘Act’ requires that: (1) The will must be in writing, (2) It must be signed by the testator, (3) It must be duly attested by at least two witnesses. Duty to prove the will rests upon the propounder which in the present case are the defendants. The defendants were required in law to prove that the attesting witnesses saw the testator sign the will and that they themselves signed the will in the presence of the testator. It is settled position of law that the attesting witnesses and the testator shall affix their signatures and attest the document in the presence of each other and the witnesses should be sure that the will has been executed by the testator, voluntarily in free disposing state of mind, in the presence of each other. {See: M.L.Abdul Jabbar Sahib Vs. 6 H.Venkata Sastri and sons, AIR 1969 S.C. 1147 and Benga Behera and another Vs. Braja Kishore Nanda and others (2007) 9 S.C.C. 728} Applying the said principle to the facts of the present case, it is evident from the version given by PW-4 is that Sh. Bhutashan had already signed the will and left the place prior to the will being signed by the testator and the second witness i.e. Ishwar Dass (DW-4). In my view, the court below has rightly reversed the judgment passed by the trial Court as the propounder of the will i.e. defendants had failed to prove the due execution of the will in accordance with the provisions of Section 63 of the ‘Act’. The question of law is answered accordingly. I see no illegality, infirmity or perversity in the impugned judgment. The same is based on settled principles of law and the facts have been correctly appreciated. The appeal is accordingly dismissed. (Sanjay Karol), Judge. July 3, 2008(R)