Ved Parkash vs Shankari Devi

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628 of 1998 (O&M) -

RSA No.16

IN THE
E HIGH COURT FOR THE S
STATES OF PUNJAB AND
ANDIGARH
HARYANA AT CHA

213.
RSA
Rese
Pron
Uplo

sh (since deceased) through LRs
No.1628 of 1998 (O&M)
rved on:02.09.2026
nounced on:08.09.2026
oaded on:09.09.2026
Ved Parkas

and another ...Appellants

Vs

evi and others
Shankari D

CORAM:

Present:






...Respondents
HON'BLE MR. JUSTICE AMA
ARINDER SINGH GREWAL
Mr. Sachin Mittal, Advocate
Mr. Arnav Mittal, Advocate
for the appellants.
Respondents No.1 to 5 and 7 p
roceeded against ex parte.
Service of respondent No.6 has
s been dispensed with.

DER SINGH GREWAL J.
AMARIND


1.
The defendants are the appella
ants before this Court challengin
g
judgment a
and decree dated 02.03.1998 pa
assed by the learned Additiona
al
st
to as the learned 1 Appellat
District Jud
dge, Sirsa (hereinafter referred
te
Court) whe
ereby the judgment and decree
dated 18.05.1995 passed by th
he
st
b Judge, 1 Class, Sirsa (hereinaf
learned Sub
fter referred to as the learned tria
al
Court) decr
reeing the suit of the respond
dents-plaintiffs has been upheld
d,
while dismi
issing the appeal preferred by t
the appellants-defendants agains
st
the aforesai
id judgment of the learned trial C
Court.

2.
For the sake of convenience,
parties are being referred to i
n
terms of the
eir status before the learned trial
Court.

3.
In brief, the facts are that pla
aintiffs instituted the present sui
it
seeking a
decree of declaration to the
effect that they are owners i
n
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possession
in equal shares of suit land m
measuring 87 Kanals 8 Marlas
s,
bearing Khe
ewat No.207 as per the jamaban
ndi for the year 1984-85, situate
d
in Village M
Mirpur, Tehsil and District Sirsa
a. In the alternative, if found no
ot
to be in pos
ssession, the plaintiffs prayed for
r a decree for possession throug
h
natural inhe
eritance as the legal heirs of th
he original owner, Smt. Ishwar
ri
Devi. The
plaintiffs further sought a dec
claration that Mutation No.117
6
sanctioned
in favour of the defendants on t
the basis of an alleged registere
d
Will No.186
6 dated 31.05.1980 executed by
Ishwari Devi, are wrong, illega
l,
null, void, a
and not binding upon their rights
s.

4.
According to the case set up i
in the plaint, Smt. Ishwari Dev
i,
widow of G
Gopi Chand, was the absolute
owner of the suit property an
d
passed away
y in August 1987. The plaintiffs
s claim inheritance as her natura
al
legal heirs,
being the wife (Plaintiff No.1)
), sons, and daughters (Plaintiff
fs
No. 2 to 7)
of Bhagwan Chand, who was t
the son of Gopi Chand and Smt
t.
Ishwari Dev
vi. The plaintiffs alleged that Sm
mt. Ishwari Devi never execute
d
any Will in
n favor of the defendants during
her lifetime. It was pleaded tha
at
she had bee
en seriously ill for nearly 15 yea
ars prior to her death and was no
ot
in a sound,
disposing state of mind to exec
cute any document. The plaintiff
fs
asserted tha
at the alleged Will was a pro
oduct of forgery, impersonation
n,
fraud, and
misrepresentation. They furth
her pointed out that an earlie
er
Mutation N
No.1102 fraudulently procured by
y the defendants in collusion wit
h
the village
Patwari, had already been dis
smissed by the Circle Revenu
ue
Officer upo
on due verification.

5.
Upon service of notice, the de
fendants appeared and filed thei
ir
written stat
tement raising preliminary obje
ections regarding maintainabilit
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and the pla
aintiffs' locus standi . On merits
s, while admitting Smt. Ishwar
ri
Devi’s own
nership of the suit land and h
her death in August 1987, th
he
defendants
denied knowledge of the plain
ntiffs' relationship with her. Th
he
defendants
refuted all allegations of fraud
and forgery, asserting that Smt
t.
Ishwari Dev
vi had lawfully executed a genu
uine registered Will in their favo
or
before the S
Sub-Registrar, Delhi, on 31.05.1
1980. They pleaded that the Wil
ll
was scribed
d by Hari Singh, Deed Writer, a
and executed by the testatrix in
a
sound disp
osing mind without any coerc
cion or undue influence, in th
he
presence o
of attesting witnesses who
signed after receiving he
er
acknowledg
gment. Consequently, the defen
ndants maintained that Mutatio
n
No. 1176 w
was validly sanctioned in their f
favor on the strength of the sai
d
Will.

6.
No replication was filed by the
e plaintiffs.

7.
On the basis of the pleadings
s of the parties, the learned tria
al
Court fram
med as many as six issues inclu
uding the issue of relief. Afte
er
appreciating
g the oral as well as documen
ntary evidence led by both th
he
parties, the
learned trial Court vide judgme
ent and decree dated 18.05.199
5
decreed the
e suit and declared the plaintiffs
to be owner in possession of 8
7
kanals 8 ma
arlas, while declaring the mutati
ion No.1176 sanctioned in favou
ur
of defenda
ants on the basis of alleged
Will No.186 dated 31.05.198
0
executed by
y the testatrix-Ishwari Devi as w
wrong, illegal and null and void
d.
st
the learned 1 Appellate Cour
Defendants
preferred an appeal before t
rt
against the
judgment and decree passed by
y the learned trial Court and th
he
st
learned 1
Appellate Court vide judgmen
nt and decree dated 02.03.199
8
affirmed th
e findings rendered by the learn
rned trial Court while dismissin
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the said app
peal. Aggrieved by the same, def
fendants knocked the door of thi
is
Court by wa
ay of instant regular second appe
eal.

8.
Learned counsel for the appell
lants submitted that execution o
of
the Will, Ex
x.R1 by the testatrix in favour o
of appellants-defendants has bee
n
duly prove
ed by DW-2, Mohinderjit Sin
gh, being one of the attestin
g
witnesses.
He relied upon the testimony
of DW-2, Mohinderjit Singh t
o
make out a
case that the testatrix and the at
ttesting witnesses were present a
at
the spot wh
hen the exercise of drafting, exec
cution and registration of the Wil
ll
was underta
aken. He further argued that as
s per Section 63(c) of the India
n
Succession
Act, 1925 (for short Act of 192
25) and Section 68 of the India
n
Evidence, 1
1872 (for short Act of 1872), test
timony of one attesting witness i
is
sufficient t
to prove due execution of a
document. In support of hi
is
contention,
he relied upon the judgments
passed by the Hon’ble Suprem
me
Court in M
Meena Pradhan and others Vs
s. Kamla Pradhan and anothe
er
2013 INSC
C 847 and Ganesan (D) through
h LRs Vs. Kalanjiam and other
rs
2019 (3) RC
CR (Civil) 843.

9.
It was further argued that resp
pondents-plaintiffs were not lega
al
heirs of Is
shwari Devi, as they miserab
bly failed to prove that thei
ir
predecessor
r-in-interest, Bhagwan Dass wa
as ever adopted by the testatrix
x,
thus, the fin
nding rendered by both the Cou
urts below that depriving natura
al
heirs from s
succession without assigning an
ny reason give rise to suspicion i
is
wholly unte
enable. Further reliance was p
placed upon testimony of PW-1
1,
who admitt
ed in her cross-examination that
t the testatrix had no child excep
pt
Sh. Bhagwa
an Dass, who was her step son, t
thus, the finding rendered by bot
h
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the Courts
below that plaintiffs were real
l sons and daughters of Ishwar
ri
Devi is inco
orrect.

10.
Respondents No.1 to 5 and 7
have been proceeded against e
x
parte vide o
order dated 04.12.2025 and serv
vice of respondent No.6 has bee
n
dispensed w
with vide order dated 04.12.202
25. The appeal is of the year o
of
1998 and t
therefore, this Court proceeds t
to dispose of the same with th
he
assistance o
of learned counsel appearing for
the appellants.

11.
I have heard learned counse
el for the appellants and hav
ve
perused the
e paper book with their able ass
sistance as well as the case law
ws
cited.

12.
The crucial question, which i
is to be answered in the instan
nt
appeal, is w
whether the Will dated 31.05.198
80 (Ex.R1) has duly been prove
d
in terms of
Section 63 of the Act of 1925?
Section 63 of the Act of 1925 i
is
reproduced
herein under:-
“63. Execution of unprivileged
d Wills. Every testator, not being
g
a soldier employed in an ex
xpedition or engaged in actua
al
warfare, or an airman so empl
loyed or engaged or a mariner a
at
sea, shall execute his Will acco
ording to the following rules:--
(a) The testator shall sign or sh
hall affix his mark to the Will, o
or
it shall be signed by some othe
er person in his presence and by
by
his direction.
(b) The signature or mark of th
he testator, or the signature of th
he
person signing for him, shall b
be so placed that it shall appea
ar
that it was intended thereby t
to give effect to the writing as
a
will.
(c) The will shall be attested by
by two or more witnesses, each o
of
whom has seen the testator sig
gn or affix his mark to the will o
or
has seen some other person si
ign the will, in the presence an
d
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by the direction of the testator,
or has received from the testato
or
a personal acknowledgment of
f his signature or mark, or of th
he
signature of such other person
n; and each of the witnesses shal
ll
sign the will in the presence of
of the testator, but it shall not b
be
necessary that more than one
e witness be present at the sam
me
time, and no particular form of
f attestation shall be necessary.”
”


13.
A bare perusal of Section 63 o
f the Act of 1925 reveals that th
he
Will must b
be signed by the testator or by so
omeone in his presence and by hi
is
direction.
The Will must be attested by
at least two witnesses and eac
h
witness mu
st have either seen the testator s
sign or affix his mark to the Wil
ll
or has seen
n some other person sign the W
Will, in the presence and by th
he
direction of
f the testator. However, it is no
ot necessary for both witnesses t
o
be present
at the same time. Further, Sec
tion 68 of Act of 1872 makes i
it
clear that a
at least one attesting witness h
as to be examined to prove th
he
execution o
of the Will.
14.
In the judgment passed by Ho
on’ble Supreme Court in Meen
a
Pradhan’s
case (supra), which is referred
d to by learned counsel for th
he
appellants,
following principles were infe
erred, which are required to b
be
proved:-
“i. The court has to consider t
two aspects: firstly, that the Wil
ll
is executed by the testator, an
nd secondly, that it was the las
st
Will executed by him;
ii. It is not required to be prov
ved with mathematical accuracy
y,
but the test of satisfaction o
of the prudent mind has to b
be
applied.
iii. A Will is required to ful
lfil all the formalities require
d
under Section 63 of the Success
sion Act, that is to say:
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(a) The testator shall sign or
affix his mark to the Will or i
it
shall be signed by some other p
person in his presence and by hi
is
direction and the said signatur
re or affixation shall show that i
it
was intended to give effect to th
he writing as a Will;
(b) It is mandatory to get it at
ttested by two or more witnesses
s,
though no particular form of at
ttestation is necessary;
(c) Each of the attesting witne
esses must have seen the testato
or
sign or affix his mark to the Wi
Will or has seen some other perso
n
sign the Will, in the presenc
ce and by the direction of th
he
testator, or has received f
from the testator a persona
al
acknowledgment of such signat
tures;
(d) Each of the attesting witn
nesses shall sign the Will in th
he
presence of the testator, howev
ver, the presence of all witnesse
es
at the same time is not required
d;
iv. For the purpose of proving
the execution of the Will, at leas
st
one of the attesting witnesse
es, who is alive, subject to th
he
process of court, and capabl
le of giving evidence, shall b
be
examined;
v. The attesting witness sho
ould speak not only about th
he
testator’s signatures but also
that each of the witnesses ha
d
signed the will in the presence
of the testator;
vi. If one attesting witness can
n prove the execution of the Wil
l,
the examination of other attes
sting witnesses can be dispense
d
with;
vii. Where one attesting witn
ess examined to prove the Wil
ll
fails to prove its due execu
ution, then the other availabl
le
attesting witness has to be calle
ed to supplement his evidence;
viii. Whenever there exists any
y suspicion as to the execution o
of
the Will, it is the responsibility
y of the propounder to remove al
ll
legitimate suspicions before it
can be accepted as the testator
's
last Will. In such cases, the
initial onus on the propounde
er
becomes heavier.
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ix. The test of judicial conscien
nce has been evolved for dealing
g
with those cases where the exe
ecution of the Will is surrounde
d
by suspicious circumstances.
It requires to consider factor
rs
such as awareness of the testa
ator as to the content as well a
as
the consequences, nature and
d effect of the dispositions in th
he
Will; sound, certain and dispos
sing state of mind and memory o
of
the testator at the time of exec
cution; testator executed the Wil
ll
while acting on his own free W
Will;
x. One who alleges fraud, fabri
ication, undue influence et ceter
ra
has to prove the same. Howev
ver, even in the absence of suc
h
allegations, if there are circum
mstances giving rise to doubt, the
n
it becomes the duty of the prop
pounder to dispel such suspiciou
us
circumstances by giving a coge
ent and convincing explanation.”
”

15.
The factors required to be con
nsidered where the case set up i
is
that the Wil
ll was surrounded by suspicious
circumstances are; (i) awarenes
ss
of the testat
tor as to the content as well as t
the consequences, (ii) nature an
d
effect of the
e dispositions in the Will; (iii) s
sound, certain and disposing stat
te
of mind of
the testator; (iv) memory of the
e testator at the time of executio
n
and (v) tes
stator executed the Will while
e acting on his own free Wil
l.
Furthermore
e, it is well settled that each att
testing witnesses must either se
ee
the testator
sign or affix their mark to the i
instrument; or see another perso
n
sign it in t
the presence and by the directi
ion of the testator; or otherwis
se
receive a di
irect, personal acknowledgment o
of the signature from the testator
r.
In turn, ev
very attesting witness is require
ed to subscribe the Will in th
he
presence of
f the testator, though it is not man
ndatory for all attesting witnesse
es
to be simul
ltaneously present during execu
tion. For the purpose of provin
g
such an ins
strument in a court of law, at le
east one living attesting witness
s,
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who remain
ns subject to the court's process a
and capable of testifying, must b
be
examined. C
Crucially, the testimony of such
h attesting witness must not onl
y
confirm the
e signature of the testator, but m
must also explicitly demonstrat
te
that each of
f the attesting witnesses affixed t
their signatures in the presence o
of
the testator.
.
16.
This position of law has alread
dy been fortified by the decisio
n
of the Hon
n’ble Supreme Court in Jank
ki Narayan Bhoir v. Narayan
n
Namdeo Ka
adam , (2003) 2 SCC 91 , where
ein the interplay between Sectio
n
63 of the A
ct of 1925 and Section 68 of the
e Act of 1872, was authoritativel
y
expounded.
The Hon’ble Apex Court has
held that the due execution of
a
Will canno
ot be inferred merely by provin
ng the signature of the testator
r;
rather, comp
pliance with statutory attestation
n requirements must be distinctl
y
established.
. While Section 68 of the Act of
f 1872 permits the propounder t
o
examine on
nly one attesting witness to satis
sfy the rule of proof, the witnes
ss
so examine
ed must be capable of estab
blishing the complete statutor
ry
execution o
of the instrument, which necessa
arily includes attestation by bot
h
witnesses in
n the manner prescribed under S
Section 63(c) of the Act of 1925
5.
The relevan
nt part of the aforesaid judgment
is reproduced as under:-
“10. But what is significant an
d to be noted is that one attesting
g
witness examined should be in
a position to prove the executio
n
of a will. To put in other wor
rds, if one attesting witness ca
n
prove execution of the will in
terms of clause (c) of Section 6
63
viz. attestation by two attes
sting witnesses in the manne
er
contemplated therein, the exa
amination of the other attesting
g
witness can be dispensed w
with. The one attesting witnes
ss
examined, in his evidence has
to satisfy the attestation of a wil
ll
by him and the other attesting
g witness in order to prove ther
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was due execution of the will.
If the attesting witness examine
d
besides his attestation does n
not, in his evidence, satisfy th
he
requirements of attestation of t
the will by the other witness als
o
it falls short of attestation of w
will at least by two witnesses fo
or
the simple reason that the exec
cution of the will does not merely
ly
mean the signing of it by the te
estator but it means fulfilling an
d
proof of all the formalities re
equired under Section 63 of th
he
Succession Act...”

The only attesting witness DW

17.
W-2, Mohinderjit Singh in order t
o
prove the va
alid execution of the Will, Ex.R1
1 had testified as under:-
“…This Will was scribed by Sh
hri Hari Singh, petition writer.
I
recognize his signatures. Ha
ri Singh, Deed Writer has sinc
ce
died. This Will was written
at the instance of Smt. Ishwar
ri
Devi, testatrix. I recognize the
e signatures of Deed Writer, Har
ri
Singh, which is Ex.RW2/2. Is
shwari Devi has since died. Th
he
signatures of Ishwari Devi,
, testatrix is on the Will a
as
Ex.RW2/3. Her right hand thu
umb impression is Ex.RW2/4. Th
he
Will was written by Hari Singh
h, Deed Writer in the presence o
of
myself and P.R. Tandon. After
r the writing of the Will, the sam
me
was read over and explained t
to the testatrix. P.R. Tandon ha
as
also signed as a witness whos
se signature I recognize and th
he
said signature is Ex.RW2/5
5. The Will Ex.R-1 is date
d
31.5.1980. The Will Ex.R-1
was written on 31.5.1980. Th
he
aforesaid entire exercise was
done in my chamber in the Ti
is
Hazari Courts….”

DW-2, the attesting witness

18.
nowhere deposed in terms o
of
Section 63(
(c) of the Act of 1925 to the
effect that the testatrix put he
er
signature in
n his presence on the alleged Wi
ill, Ex.R-1 and he subscribed th
he
Will in her
r presence. Neither his testimo
ony explicitly demonstrated tha
at
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another wit
tness had also affixed his sig
gnatures in the presence of th
he
testator.

19.
It is crystal clear that the conc
cession granted by Section 68 o
of
the Act of 1
1872, concerns the number of w
witnesses required to be examine
d
in Court and
d it does not dilute the requirem
ment that the Will itself must hav
ve
been atteste
ed by at least two witnesses. One
e attesting witness may prove th
he
entire cerem
mony. But where the only attestin
ng witness examined is unable t
o
establish th
hat the testatrix signed the W
Will in his presence, or that h
he
appended h
his signature thereto in the presen
nce of the testatrix, and is furthe
er
unable to p
prove the participation of the
second attesting witness in th
he
manner req
quired by law, the evidence
falls short of establishing du
ue
execution o
of the Will in accordance with S
Section 63(c) of the Act of 1925
5.
Therefore,
in the opinion of this Court,
the appellants-defendants hav
ve
miserably f
failed to prove due execution
of the Will, Ex.R-1 as per th
he
mandate pre
escribed under Section 63(c) of t
the Act of 1925.

20.
Furthermore, grave suspiciou
us circumstances surround th
he
execution o
of the alleged Will (Ex. R-1). Th
he document was drafted in Urdu
u,
whereas Sm
mt. Ishwari Devi was a Hindi-kn
nowing lady. The propounders o
of
the Will h
ad no remote family relations
ship with the testatrix, and th
he
instrument
fails to state any reason whatso
ever for completely disinheritin
g
her natural
legal heirs. Additionally, PW-
1 categorically deposed that th
he
testatrix suf
ffered from weak mental capac
city for 10-15 years prior to he
er
death, rend
dering her incapable of possess
sing a sound, disposing state o
of
mind. The
legal burden to dispel these
suspicious circumstances reste
d
squarely up
pon the appellants-defendants,
a burden they entirely failed t
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discharge.
Moreover, once Mutation No
.1102 previously sanctioned i
n
favour of th
he appellants-defendants on the
basis of the very same Will wa
as
rejected by
the Assistant Collector, 2nd Gr
rade, the subsequent sanctionin
g
of Mutatio
on No.1176 on the strength
of that same invalid Will i
is
unsustainab
ble in law. Thus, both the lea
arned Courts below have rightl
y
declared Mu
utation No.1176 as non est in the
e eye of law.

21.
In view of the judgments passe
ed by the Hon’ble Supreme Cour
rt
in Pankaja
akshi (Dead) through Legal R
Representatives and others Vs
s.
Chandrika
and others (2016) 6 SCC 157,
7, Randhir Kaur Vs. Prithvi Pa
al
Singh and o
others (2019) 17 SCC 71 and G
Gurbachan Singh (dead) through
h
LRs Vs. G
Gurcharan Singh (dead) throug
ugh LRs and others (2023) SCC
C
875 , questions of law are not r
equired to be framed in secon
d
Online SC 8
appeal befo
ore the Punjab and Haryana H
High Court whose jurisdiction i
is
circumscrib
bed by provisions of Section 41 o
of the Punjab Courts Act, 1918.
22.
As an upshot of above discuss
sion, this Court finds no illegalit
y
and pervers
sity in concurrent findings of fa
act rendered by both the learne
d
Courts belo
ow and the same are upheld.
The regular second appeal i
is
dismissed.

23.
Pending misc. application(s), if
f any, also stand disposed of.


(AMARI
INDER SINGH GREWAL)
JUDGE
September
Pankaj*
08, 2026
Whether speaking/reasoned
Whether reportable
Yes
Yes
PANKAJ KUMAR
2026.09.09 17:07
I attest to the accuracy and
authenticity of this document