Himachal Pradesh High Court
Piar Devi And Others vs Tirlok Kumar And Others on 23 December, 2025
( 2025:HHC:45278 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.218/2025 Date of Decision: 23.12.2025 .
Piar Devi and others .....Appellants.
Versus Tirlok Kumar and others .....Respondents.
of Coram The Hon'ble Mr. Justice Bipin Chander Negi, Judge. Whether approved for reporting?1 rt For the Appellants : Mr. Rupesh Kumar, Advocate.
For the Respondents : Nemo Bipin Chander Negi, Judge (oral).
The Appellant, before this Court by filing this appeal under section 100 of the Code of Civil Procedure (for short, CPC), has assailed the judgement and decree dated 24.2.2025 passed by the learned Additional District Judge, Dehra, District Kangra in Appeal No. 123/G/XIII/2023/2015, whereby the judgment and decree dated 31.3.2015 titled as Tirlok Kumar and others vs. Piar Devi and others, passed by the learned Civil Judge (Senior Division), Dehra, District Kangra H.P. in Civil Suit No. 34/2010 has been affirmed.
2. The parties to the appeal, hereinafter for the sake of convenience, shall be referred to in the same manner as described in the judgment of the ld. Trial Court.
1Whether reporters of Local Papers may be allowed to see the judgment? YES ::: Downloaded on - 02/01/2026 20:36:24 :::CIS 2
3. The brief facts leading to the present Second Appeal are that a suit for declaration and, in the alternative, for joint possession was filed by the plaintiffs-respondents on the ground that the land .
situated in various Mohals of Tehsil Jawalamukhi was recorded in the joint ownership and possession of the parties, except in one Khata where the family of Mani Ram was also a joint owner. Smt. Kesari Devi was the mother of the parties and predecessor-in-interest. It was of pleaded that during her lifetime, Smt. Kesari Devi had executed a registered Will dated 11.08.1998 in favour of plaintiffs no.1 to 4 and her rt son Subhash Chand in equal shares, regarding her property in specific Mohals, while giving a 1/36th share to defendants no.2 & 3. The daughters, defendants no.4 & 5, were not given any share under the Will. Subhash Chand predeceased Kesari Devi, leaving behind his lineal descendants, plaintiffs no.5 to 8.
4. After the death of Kesari Devi, the original Will was allegedly kept in the custody of plaintiff no.5, Smt. Sheela Devi, who did not produce it at the time of mutation, which was consequently sanctioned based on natural succession. It was further pleaded that defendants no.4 & 5, on the basis of these inheritance mutations, executed sale and gift deeds in favour of defendants no.2 & 3, which were not binding on the plaintiffs' rights. The plaintiffs claimed their shares as per the Will and sought a declaration that the subsequent alienations and a partition order were illegal.
::: Downloaded on - 02/01/2026 20:36:24 :::CIS 35. The suit was contested by the defendants-appellants, who raised preliminary objections regarding limitation, estoppel, and lack of cause of action. On merits, they denied the execution of any Will by .
Smt. Kesari Devi, alleging it to be a forged and fabricated document created to grab their share. They asserted that the mutations based on natural succession were legal and that defendants no.4 & 5, being the lawful successors, had validly alienated their shares. They also of contended that the partition order was binding and that the suit was barred by time as the Will was produced after an inordinate delay.
6. rt From the pleadings, the learned Trial Court framed the following issues on 27.01.2010: -
1. Whether the plaintiffs are joint owners in possession of the suit land, as alleged? OPP.
2. Whether deceased Smt. Kesari Devi had executed valid register Will dated 11.08.1998 in favour of plaintiffs or their predecessor-in-
interest? OPP.
3. Whether the plaintiffs are entitled for the relief of injunction, as prayed for? OPP.
4. Whether the alienation made by defendants No.4 and 5 in favour of defendants No. 2 and 3 qua the part of the suit land is wrong, illegal and void and not binding upon the plaintiffs, as alleged? OPP.
5. Whether the partition order passed by the revenue authority qua the suit land is wrong, illegal and void? OPP.
6. Whether suit of the plaintiffs is within time?
OPP.
7. Whether plaintiffs are estopped from filing the suit by their act and conduct? OPD.
8. Relief.::: Downloaded on - 02/01/2026 20:36:24 :::CIS 4
7. Aggrieved by this judgment and decree, the appellants preferred the First Appeal. The grounds of appeal assailed the findings on all issues, contending that the evidence was misread, the Will was .
not duly proved, and the mutations and partition were legal and unchallenged for a long period. It was argued that the belated production of the Will after about ten years created a suspicious circumstance, the suit was hopelessly time-barred, and the plaintiffs of were estopped by their conduct. Further, it was contended that proper issues were not framed, leading to a miscarriage of justice, and that rt there were material contradictions between the pleadings and the evidence which were not considered by the Trial Court.
8. However, the First Appellate Court, dismissed the appeal and affirmed the judgment and decree of the Trial Court. Hence, the present Second Appeal.
9. Heard Counsels for the appellants and perused the impugned judgements.
10. The plaintiffs, in order to prove their case, examined PW-1 Satish Kumar, the scribe of the Will Ex. PW-1/A, who specifically stated that on the asking of Kesari Devi, he wrote the contents of the Will, which were read over to her and she admitted the contents before affixing her thumb impression in the presence of attesting witnesses.
PW-2 Sunil Kumar, an attesting witness, corroborated this testimony, stating that the Will was scribed at Dehra, read over, and duly signed in the presence of Kesari Devi, who was in her full senses. PW-3 Tarlok, ::: Downloaded on - 02/01/2026 20:36:24 :::CIS 5 one of the plaintiffs, narrated the case of the plaintiffs, stating the Will was executed by his mother out of her own wishes and was later handed over to Sheela Devi, and explained the delay in its production.
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11. To rebut this evidence, the defendants examined DW-1 Parveen, grandson of Kesari Devi, who stated that she used to reside with them and had not executed any Will, and that no Will was produced at the time of mutation. DW-2 Pushpa Devi, daughter of Kesari Devi, of also denied the execution of any Will and stated that mutations were attested and documents executed without objection.
12. rt The principles to prove the validity and execution of Will have been explained lucidly by the Supreme Court in 2023INSC847, titled Meena Pradhan & Ors. Vs. Kamla Pradhan & Anr. The relevant extract is reproduced hereinbelow: -
7. Before delving into the facts of the case, it is pertinent to reproduce the relevant provisions dealing with the validity and execution of the Will.
"Section 63 of the Indian Succession Act, 1925 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: (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 ::: Downloaded on - 02/01/2026 20:36:24 :::CIS 6 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.
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Section 68 of Indian Evidence Act 1872 Proof of Execution of document required by law to be attested If a document is required by law to be attested- it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: xxx"
of
8. Thus, a bare reading of the abovementioned provisions would show that the requirements enshrined under Section 63 of the Succession Act have to be categorially complied with for the execution of the Will to be proven in terms of rt Section 68 of the Evidence Act.
9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator's property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.
10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91(2Judge Bench) YumnamOngbiTamphaIbema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will:
i. The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.::: Downloaded on - 02/01/2026 20:36:24 :::CIS 7
iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence .
and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the of 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 acknowledgment of such signatures;
rt
(d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of ::: Downloaded on - 02/01/2026 20:36:24 :::CIS 8 execution; testator executed the Will while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the .
absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. execution of the Will to be proven in terms of Section 68 of the Evidence Act.
xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind' 1.
of Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and rt unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc.
13. Applying these principles to the instant case, it can be concluded that the plaintiffs have successfully proved the due execution and registration of the Will dated 11.08.1998 by late Smt. Kesari Devi.
The testimonies of the scribe and the attesting witness are clear, consistent, and remain unshaken in cross-examination. They have established that the contents were read over and explained to the testatrix, who admitted them and voluntarily affixed her thumb impression before the witnesses and the Sub-Registrar. The alleged presence of the beneficiaries at the time of execution, in the absence of any evidence that they took a prominent part in the process, does not constitute a suspicious circumstance sufficient to vitiate the Will. The explanation for the non-production of the Will at the time of mutation that it was withheld by Sheela Devi due to apprehension is plausible in ::: Downloaded on - 02/01/2026 20:36:24 :::CIS 9 the context of family dynamics and does not cast doubt on the Will's genuineness.
14. Consequently, the mutations sanctioned on the basis of .
natural succession, being summary proceedings for fiscal purposes, do not confer title and are subject to the actual testamentary disposition.
The subsequent alienations by defendants no.4 & 5, based on these erroneous mutations, are therefore not binding on the rights of the of plaintiffs as determined by the valid Will. The suit, being essentially one for establishing rights based on inheritance and a consequent rt declaration, is not barred by limitation. The findings of the learned Trial Court as well as the First Appellate Court on the validity of the Will, the legality of the mutations and alienations, and the entitlement of the plaintiffs to the declaration sought, are therefore affirmed.
15. In view of the aforesaid, there arises no question of law much less a substantial question of law for the consideration of the Court. Accordingly, the appeal being devoid of merit is dismissed, so also, the pending miscellaneous application(s), if any.
(Bipin Chander Negi) Judge 23rd December, 2025 (Tarun) ::: Downloaded on - 02/01/2026 20:36:24 :::CIS