2026:HHC:1869

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No.158 of 2005

Reserved on: 18.04.2025

Decided on: 20.05.2026

Deepak Kumar Chopra (deceased) through LRs

and others ….Appellants

Versus

Rajni Devi Sehgal & others ...Respondents

Coram

Hon’ble Mr. Justice Romesh Verma, Judge

Whether approved for reporting?

For the appellants: Mr. Deepak Gupta, Advocate.

For the respondents:Mr. Bhupender Gupta, Senior Advocate

with Mr. Janesh Gupta, Advocate.

Romesh Verma, Judge

The present regular second appeal arises out of

judgment and decree as passed by learned Additional District

Judge (Presiding Officer, Fast Track Court), Solan, District Solan,

H.P. dated 16.12.2004, whereby the appeals preferred by present

respondent No.1, bearing Case Nos.2 FT/13 of 2004/97 & 3

FT/13 of 2004/97 were allowed and the judgments and decrees

as passed by learned trial Court dated 30.12.1996 in Civil Suit

Nos.570/1 of 1988 & 21/1 of 1989 were set aside, holding the

present respondent No.1 to be owner-in-possession of suit

property known as Summer Cottage situated at village Kather and

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restraining the defendants from interfering in her possession over

the suit property and from collecting rent from tenants.

Defendants were further restrained from withdrawing the amounts

lying in the bank in the account of her mother Mohini Devi.

2. Brief facts of the case are that three Civil Suits

bearing Civil Suit No.21/1 of 1989, titled as Manga Lal vs. Rajni

Devi, Civil Suit No.570/1 of 1988, titled Shrimati Rajni vs .R.L.

Malhotra & Ors. and Civil Suit No.308/1 of 1989, titled Rajinder

Lal Malhotra vs. Rajni and another were filed in the Court of

learned Senior Sub Judge, Solan, H.P. on 09.01.1989, 07.11.1988

and 15.07.1989, respectively. The dispute pertains to the estate of

late Mohini Devi and each of the parties in the civil suits is

claiming right over the property to the exclusion of others over the

suit property. Plaintiff, Manga Lal, filed a suit claiming his right,

title or interest over the suit property on the basis of Will executed

by late Mohini Devi in his favour on 20

th

July, 1988 being her real

brother. Smt. Rajni filed Civil Suit No.570/1 of 1988 claiming

herself to be the daughter of late Mohini Devi and sought title over

the suit property being the daughter of said deceased. Shri

Rajinder Lal Malhotra filed a Civil Suit No.308/1 of 1989 claiming

to be the husband of late Mohini Devi and prayed for passing of

decree in his favour, being the only natural legal heir of the

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deceased, who had survived after her death. The aforesaid suits

were decided together by learned Senior Sub Judge, Solan.

3. In the suit, which was filed by plaintiff Manga Lal,

who was substituted by his son Deepak Kumar, it was averred

that Mohini Devi was the real sister of the plaintiff and the suit

property has been inherited by him, being the only legal heir, and

also through Will executed by deceased Smt. Mohini Devi in his

favour on 20.07.1988. There was long litigation going on between

Mohini Devi and Rajinder Lal Malotra before the learned Chief

Judicial Magistrate, Solan. Smt. Mohini died issue-less and it is

only the plaintiff, who is the legal heir to inherit all movable and

immovable properties left behind by the deceased. It has been

averred in the plaint that the defendant Rajni Devi was brought up

and maintained by the deceased and she got married with Shri

B.D. Sehgal, who is presently residing at Shimla with the

defendant. Defendant Rajni prepared some false documents and

furnished an affidavit before the Assistant Collector 1st Grade,

Solan and got mutation attested in her favour on 15.09.1988.

Though, an application was submitted by the plaintiff before the

Tehsildar Solan, requesting him to enter his name in the revenue

record as he is the only legal heir vide letter dated 08.09.1988,

however, the Tehsildar, Solan, intentionally and willfully attested

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the mutation without any notice to the plaintiff. The said mutation

No.275 dated 15.09.1988 was attested behind the back of the

plaintiff and the same is not binding on the plaintiff. The

defendants have no locus standi to claim any right, title or interest

over the property left behind by deceased Mohini Devi and they

are trying to take forcible possession of the property and

threatening to oust the plaintiff. The Will executed by late Mohini

Devi on 20.07.1988 was her last Will and the same was executed

with free will and consent in presence of respectable persons.

4. The plaintiff, therefore, sought a decree for

declaration to the effect that the plaintiff is owner-in-possession of

house and land comprised in Khasra Nos.414/1, 415, 416, 417,

418 and 419, measuring 364 Sq meters situated at Mauja Kather,

Solan, Tehsil and District Solan and all movable properties i.e.

bank accounts and lockers in Canara Bank, Punjab National Bank

etc. Solan and also shares purchased from different companies

through Will executed by Mohini Devi on 20.07.1988. The

mutation No.275 attested in favour of the defendant on

15.09.1988 by the revenue authorities behind the back of the

plaintiff is illegal, null, void and is not binding on the plaintiff.

Further, decree for permanent prohibitory injunction was sought

restraining the defendant from interfering in the peaceful

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possession of the plaintiff under the garb of illegal mutation and

also to restrain her from alienating, selling or creating any charge

over the suit property and also to withdraw any amount from the

banks, either herself or through her agents, attorneys, servants

whosoever in any manner whatsoever be passed in favour of the

plaintiff.

5. The suit filed by the plaintiff was contested by

defendant No.1 Rajni and defendant No.2 Rajinder Lal Malhotra.

It was submitted by defendant No.1, in her written statement, that

the plaintiff has got no locus standi to file the present suit, as he is

not the successor in interest of the deceased. The defendant,

being the daughter, is the only legal representative of deceased

Mohini Devi. It has been stated that the property has been

properly and legally inherited by defendant No.1, being the

daughter of Mohini Devi, who was brought up, educated and

married by her. It was denied that any Will was ever executed by

late Mohini Devi in favour of the plaintiff. The same, if any, is

result of fraud, collusion and fabrication and without any authority.

It was stated that one Jolly alias Dhani Ram, was servant of late

Mohini Devi, in whose favour a Will was executed by the

deceased. He had no issue, therefore, he executed a valid Will in

favour of defendant No.1, which is a registered Will. Throughout

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her life Smt. Mohini Devi was being looked after and cared for by

said Jolly alias Dhani Ram. It was stated that there was litigation

between Mohini Devi and Rajinder Lal Malhotra (defendant No.2).

The two were married and were living as husband and wife since

much prior to 1956 and said Rajinder Lal Malhotra had also

married to some other lady. The relation between Mohini Devi and

Rajinder Malhotra became strained and certain litigations started

between them, wherein relation of husband and wife was

disputed by Rajindra Lal Malhotra. Defendant No.1 is the

daughter of deceased Mohini Devi and Rajinder Lal Malhotra and

she was brought up, maintained and married by them. She has

been living with her mother and during her illness, she got her

admitted in the hospital at Shimla for her treatment. Thereafter,

she was living with her mother at Solan till her death. It was

stated that the question of forcible possession does not arise as

defendant No.1 is already in possession of the property and is

receiving the rent from the tenants and further the proceedings for

succession certificate are already pending in the Court, much

prior to the filing of the suit. Therefore, defendant No.1 prayed for

dismissal of the suit as filed by the plaintiff Manga Lal.

6. In the written statement filed by defendant No.2,

Rajinder Lal Malhotra, he raised preliminary objections with

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respect to maintainability, malafide intention etc. In his written

statement, he has denied that the plaintiff is owner-in-possession

of the land and house. The execution of Will in favour of the

plaintiff was specifically denied. However, it was admitted that

Mohini Devi had left behind no son or daughter after her death. It

was stated that it is defendant Rajinder Lal Malhotra who is the

sole successor-in-interest and legal heir of deceased Mohini Devi.

It was submitted that it is he who has succeeded to the estate of

late Mohini Devi.

7. Learned trial Court framed issues in the matter on

28.12.1990 in the following manner:

1.Whether the plaintiff is owner in possession of

the land and house?OPP

2. Whether deceased Mohini Devi executed a valid will

in favour of the plaintiff on 20.7.88?OPP

3. Whether plaintiff is the only heir of deceased Mohini

Devi?OPP

4. Whether mutation No. 275 dated 15.9.88 is not

binding on the plaintiff and does not confirm an right

on the defendants?OPP

5.Whether defendants is threatening to take forcible

possession?OPP

6. Whether the plaintiff has no locus standi?0PD

7. Whether the plaintiff has no cause of action?OPD

8. Whether the suit is not properly valued for the

purpose of court fee and jurisdiction7OPD

9.Whether the suit is not maintainable ?OPD

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10. Whether the defendant No. 1 is daughter and sole

heir of deceased Mohini Devi and is in possession of

the property?OPD

11. Whether the will in favour of the plaintiff is result of

fraud, collusion and fabrication? OPD

12. Whether Mohini Devi executed a will in favour of Jali

alias Dhani Ram who in tern executed a valid will in

favour of the defendant No.1 and if so its effect ?

OPD

13. Whether defendant No. 2 is the sole heir of

deceased Mohini Devi? OPD

14. Relief.

8. Learned Senior Sub Judge, Solan, vide its judgment

and decree dated 30.12.1996, decreed the suit filed by plaintiff

Manga Lal/Deepak Kumar and the suits filed by Rajni Devi

(defendant No.1) and Rajinder Lal Malhotra (defendant No.2)

were dismissed. It was ordered that the plaintiffs Deepak Kumar

and Bhagi Ram were to be declared owners-in-possession of the

property of the deceased Mohini Devi comprising in Khasra

Nos.414/1, 415, 416, 417, 418 and 419, measuring 364 Sq

meters, situated in village Kather and all movable property left by

the deceased Mohini Devi. Mutation No.275 dated 15.09.1988

was also declared to be null and void and the defendants were

restrained from causing any interference in the right, title and

possession of the plaintiff.

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9. Feeling dissatisfied, Rajni Devi (defendant No.1) filed

two appeals bearing Case No.2 FT/13 of 2004/97 and Case No.3

FT/13 of 2004/97 on account of decreeing of suit of the plaintiff

and on account of dismissal of her suit. The third appeal was filed

by defendant No.2 Rajinder Lal Malhotra bearing Case No.4

FT/13 of 2004/97. The learned Additional District Judge

(Presiding Officer Fast Track Court), Solan, District Solan, H.P.,

vide its judgment and decree dated 16.12.2004, accepted the

appeals filed by Rajni, and third appeal filed by Rajinder Lal

Malhotra was dismissed as having been abated. The judgment

and decree passed by learned trial Court was set aside and it was

held that Smt. Rajni, being the owner-in-possession of the suit

property, is entitled to injunction restraining the defendants from

interfering with her possession over the suit property known as

Summer Cottage, situated in village Kather, and from collecting

rent from the tenants. Further, they were restrained from

withdrawing the amounts lying in the bank in the accounts of

Mohini Devi.

10. Feeling dissatisfied, the present regular second

appeal has been filed by Deepak Kumar Chopra and Bhagirath,

the plaintiffs before the learned trial Court against the judgment

and decree as passed by learned first appellate Court.

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11. It is contended by Mr. Deepak Gupta, learned

counsel for the appellants/plaintiffs, that the learned first appellate

Court has not appreciated the point in controversy and has

wrongly quashed and set aside the judgment and decree as

passed by learned trial Court on surmises and conjectures. He

has submitted that the learned first appellate Court has erred by

declaring respondent No.1, Rajni Devi, as the natural daughter of

deceased Mohini Devi. It is contended by learned counsel for the

plaintiffs that, after setting aside the impugned judgment and

decree as passed by learned first appellate Court, the suit filed by

the plaintiff be ordered to be decreed.

12. On the other hand, Mr. Bhupender Gupta, learned

senior counsel, duly assisted by Mr. Janesh Gupta, Advocate, has

defended the impugned judgment and decree as passed by

learned first appellate Court. He has submitted that the learned

first appellate Court, while disbelieving the Will, has rightly come

to the conclusion that the alleged Will executed by Smt. Mohini

Devi in favour of Manga Lal plaintiff is a forged document. He has

submitted that Rajni Devi, being the daughter of deceased Mohini

Devi, is well within her right to inherit and succeed the properties

left by the said deceased.

11 2026:HHC:1869

13. The present appeal was admitted by this Court on

1.11.2007 on the following substantial questions of law:

1.Whether the first appellate court has misread and

mis-appreciated the oral as well documentary

evidence led by the parties, especially in law in

reversing the judgement and decree passed by the

trial court holding that the 'will' propounded by the

predecessor-in-interest of the appellants have not

been able to remove the suspicious circumstances

surrounding the execution of the will?

2. Whether the first appellate court has rightly held the

respondent No.1 to be the real daughter of the

deceased Smt. Mohini in view of fact that the

deceased had herself described Smt.Rajni to be her

adopted daughter?

14. I have heard learned counsel for the parties at length

and have also scanned the entire record in detail.

15. The dispute in the present case pertains to the estate

of Smt. Mohini Devi. Plaintiff, Manga Lal, claims himself to be her

brother and owner of the suit property on the basis of alleged Will

executed by Mohini Devi in his favour on 20.07.1988. Rajni Devi,

defendant No.1 in the suit, claims herself to be daughter of Mohini

Devi and asserts ownership of the suit property in that capacity.

Rajinder Lal Malhotra claims himself to be the husband of

deceased Mohini Devi and asserted that being his legally wedded

12 2026:HHC:1869

wife, he alone is entitled to succeed to the properties of the said

deceased.

16. As far as the claim of Rajinder Lal Malhotra is

concerned, his suit was dismissed by the learned trial Court and

the appeal which was preferred before the learned first appellate

Court was also dismissed as having been abated. Therefore, the

findings as returned by learned trial Court have attained finality

qua him.

17. Now, the dispute in the present proceedings is

between the plaintiff, Manga Lal, and his sons, and Rajni Devi.

Learned trial Court, after coming to the conclusion that the Will

executed by late Mohini Devi in favour of Manga Lal was legal

and valid, held that the plaintiff is the owner-in-possession of the

suit property on the basis of valid Will executed by Mohini Devi in

favour of the plaintiff on 20.07.1988.

18. Regarding the issue whether the defendant, Rajni

Devi, is the daughter of Mohini Devi, it was held that there is

mention in Will Ext. PW-2/A and Ext.DW-14/A that defendant No.1

is the adopted daughter of Mohini Devi. Learned trial Court came

to the conclusion that, apart from the documentary evidence, it is

also the case of defendant No.2 that Rajni was not the daughter

of Mohini Devi and Rajinder Lal Malhotra. It was held that the

13 2026:HHC:1869

evidence leaves no doubt that the defendant No.1 was an

adopted daughter of the deceased Mohini Devi and defendant

No.2.

19. Learned trial Court, after accepting the Will (Ext. PW-

2/A) in favour of the plaintiff as legal and valid, decreed the suit

filed by the plaintiff. However, the appeals preferred by Rajni Devi

were accepted by learned first appellate Court by coming to the

conclusion that the aforesaid Will is surrounded by suspicious

circumstances. Further, it was held by learned first appellate

Court that Rajni Devi is the real daughter of Mohini Devi and

Rajinder Lal Malhotra.

20. It is contended by Mr. Deepak Gupta, learned

counsel for the appellants, that the pleadings and the documents

which have been placed on record by defendant No.1 Rajni Devi

are self-contradictory. On the one hand, a copy of mutation dated

15.09.1988 (Ext. DX/1) reveals that Smt. Rajni Devi had filed an

affidavit before the revenue authorities claiming herself to be the

adopted daughter of Mohini Devi, and based upon that, the said

mutation was attested in favour of defendant No.1. On the other

hand, in the written statement, a stand has been taken by her that

she is the daughter of deceased Mohini Devi. Another stand was

also taken in the written statement that one Jolly alias Dhani Ram

14 2026:HHC:1869

was the servant of her mother, who looked-after and maintained

her mother, and on account of his services, Mohini Devi executed

a Will in his favour, who further executed the Will in faovur of

Rajni Devi.

21. Mr. Deepak Gupta, learned counsel, has contended

that the finding as returned by learned first appellate Court

regarding the fact that Rajni Devi is the real daughter of late

Mohini Devi is contrary to the record and pleadings.

22. On the other hand, Mr. Bhupender Gupta, learned

senior counsel, has submitted that there is ample evidence on

record to show that Rajni Devi was the real daughter of late

Mohini Devi. He has drawn attention of this Court to Ext. DX, the

wedding card of Rajni Devi with one Shri Bhawani. In the said

wedding card, she has been shown to be the daughter of Mohini

Devi. Similarly, Mr. Bhupender Gupta, learned senior counsel, has

relied upon Ext. D1W2/A, which is the matriculation certificate,

showing Rajni Devi to be the daughter of Rajinder Lal Malhotra.

He has submitted that, in conjunction with the oral evidence and

these two documents, it is proved that Rajni Devi is the daughter

of Mohini Devi.

23. This Court has to proceed with the matter on the

basis of documents placed on record to verify whether defendant

15 2026:HHC:1869

No.1, Rajni Devi, is the adopted or the real daughter of deceased

Mohini Devi. The admission on the part of defendant No.1 in the

copy of mutation (Ext. DX/1) reveals that she had filed an affidavit

before the revenue authorities claiming herself to be the adopted

daughter of Mohini Devi. On the basis of the affidavit and the

admission made by Rajni Devi, the said mutation dated

15.09.1988, was attested by the revenue authorities. Defendant

No.1 has taken a stand in the written statement that her mother

was happy with the services of her servant, namely, Jolly alias

Dhani Ram and a registered Will was executed in favour of Jolly

alias Dhani Ram, who thereafter executed the Will (Ext. D1W4/A)

in her favour on 07.10.1988. In the said Will, it is mentioned that

there is a daughter of Mohini Devi, who has been brought up and

looked after by Mohini Devi like her daughter. It has further been

stated that Rajni Devi was born out of an illicit relation of Rajinder

Lal Malhotra and Mohini Devi.

24. There are divergent stands which have been taken

by Rajni Devi. On one hand, she stated that she is adopted

daughter, however, in the written statement, she claims to be the

real daughter. Then, she further takes a stand that the suit land

has been bequeathed in her favour by the servant of her mother.

In case, the written statement of defendant No.2 Rajinder Lal

16 2026:HHC:1869

Malhotra is seen, he has categorically denied that Mohini Devi

has left behind any son or daughter. He has further denied that

defendant, Rajni Devi, was brought up by deceased Mohini Devi.

Since, Rajni Devi claims that Rajinder Lal Malhotra is her father,

and this fact has been denied by defendant No.2, an affidavit was

filed before the revenue authorities stating that she is adopted

daughter of Mohini Devi and based on that stand Mutation was

attested in her favour. Even, if it is presumed that she is the

adopted daughter of Mohini Devi, the necessary pleadings and

proof are missing in the present case. There is no averment qua

the same in the written statement or evidence led by her.

25. The procedure for a valid adoption has been

prescribed under the provisions of Hindu Adoption and

Maintenance Act, 1956, specifically in Sections 6 to 11. The said

pleadings are missing in the present case. Furthermore, there are

neither plausible pleadings nor any documents placed on record

to show that a valid adoption took place. Defendant No.1 has

also not proved any custom, as the kind of evidence required to

establish custom or adoption of a girl, has not been adduced.

26. The Hon’ble Madras High Court in Appeal No.6 of

2000, titled Lalitha vs. Parameshwari & others, decided on

26.04.2001 has held that adoption of female child was not

17 2026:HHC:1869

permitted prior to commencement of the Hindu Adoption and

Maintenance Act, 1956. The Hon’ble Court has held as follows:

“28. It is further stated by the learned advocate for

the plaintiff that P.W. 1, the plaintiff, was adopted at

the time when she was three months old and P.W. 2,

mother of the plaintiff had deposed that her sister

had taken the plaintiff in adoption and her husband

was also present at that time, and thereby she

supports the case of the plaintiff that she was given

in adoption.

29. Reverting back to the case of the appellant, it is

submitted that adoption of a female child was not

known to Hindu Law prior to passing of the Act in

the year 1956 and admittedly, the plaintiff purported

to have been adopted prior to passing of this Act. In

Ex. A-3, the date of birth of the plaintiff is shown as

1-7-1946 and in Ex. A-8, the date of birth of the

plaintiff is given as 6-9-1946. Though the date and

month of the plaintiffs different, the year, in which

the plaintiff was born is not in dispute and the

evidence was that she was given in adoption at the

time when the plaintiff was three months old. Then

possibly the year in which the alleged adoption had

taken place was 1946, which is prior to passing of

the Act in the year 1956 and therefore, the Act is not

applicable, and the Adoption, purported to have

been taken place was not permissible under law.

30. Though the plaintiff is able to produce certain

documents. Exs. A-4 to 7 and A-13 to 18, wherein

she has been described as the daughter of

Kuppusamy Naicker, the said recitals would not

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cloth her with any right as that of a daughter as the

very adoption of a female child before passing of the

Hindu Adoptions and Maintenance Act, 1956 was

not permissible. In the said context, any amount of

evidence either oral or documentary adduced on

behalf of the plaintiff to make it appear, as if she was

recognised as the daughter of Kuppusamy Naicker

cannot be countenanced for the simple reason that

the very validity of the adoption itself is questioned

and in the said context, those documents are of no

avail.

34. Taking into consideration of all the abovesaid

aspects and circumstances of the case and also the

appraisal of the various rulings relied upon by the

plaintiff and defendant for and against the adoption

of a female child, we are of the considered opinion

that the factum of adoption itself is questionable on

the ground that prior to Hindu Adoptions and

Maintenance Act. 1956, adoption of a female child

was not known to Hindu Law and the same was not

permissible. The plaintiff was also not able to bring

home the family custom prevailed in the family, for

adopting a female child and in the eye of law, it

cannot be held that the plaintiff was the adopted

daughter of late Kuppusamy Naicker. The mere fact

that in the invitation card, printed for the puberty

function, celebration of the marriage of the plaintiff

and the school certificate, in which, the name of

Kuppusamy Naicker finds a place, as the father of

the plaintiff, would not establish that the plaintiff was

adopted by Kuppusamy Naicker and as we have

already adverted to that the adoption of a female

19 2026:HHC:1869

child was not legal, we have to necessarily hold that

the plaintiff is not the adopted daughter of

Kuppusamy Naicker.

35. In this case, the equities are clearly in favour of

the defendant/appellant, who is the naturally born

daughter and who, in the normal course, is entitled

to succeed to the properties of her father. The

plaintiff who had been brought up by the defendant's

father and who had been taken into a family at the

time when they had no children cannot, in the light

of the law as it stood prior to the Hindu Adoptions

and Maintenance Act, claim a right in the properties.

The plaintiff has also not proved any custom, as the

kind of evidence required to establish custom of

adoption of a girl, has not been adduced.

27. In the present case, admittedly, as per her own case,

defendant No.1 was born in the year 1954. Therefore, on that

account and as per the provisions of law then in force, no

adoption of a female could have been done. Consequently, the

alleged adoption is not proved, meaning thereby defendant No.1

has failed to prove the adoption. Defendant No.1 was not able to

bring home any custom to prove adoption of female child. There

is no pleading or proof qua the same. She has also failed to prove

that she is the real daughter of deceased Mohini Devi.

28. In order to substantiate her claim, defendant No.1

examined Kewal Krishan as DW-1. He has stated in his

20 2026:HHC:1869

deposition that he knew Rajni and that she is the daughter of

Mohini. He further stated that after the marriage, Rajni, on

account of her services, resides in Shimla and these days she is

residing in Solan. He stated that he does not know when Rajni

was born. He stated that he does not know the name of her father

nor does he know the year in which year Rajni was born. He

stated that he is deposing that Rajni is the daughter of Mohini

because she was residing with her. After her marriage, he did not

see Rajni Devi with Mohini Devi.

29. DW-3 is the testimony of Shrawan Kumar Sahni. He

stated that Rajinder Lal Malhotra and Mohini were the husband

and wife and they came from Pakistan. He stated that Rajni is the

daughter of Mohini and Rajinder Lal Malhotra and that she was

brought up by them. He has admitted that regarding the birth of

Rajni he has not seen any record. He denied the suggestion that

Rajni was adopted by Ashcharj Lal through the Court. He stated

that he does not know the date of marriage of Rajni. He stated

that he does not know if Rajni was married under the supervision

of Mohini Devi. He stated that he does not know that whether

Rajni Devi is the adopted daughter or the real daughter.

30. DW-4 is the statement of Mathu Ram. He stated that

he knew Rajinder Lal Malhotra and Mohini Devi since 1950-1951.

21 2026:HHC:1869

He stated that Rajni Devi is the daughter of the aforesaid

persons. Rajni Devi was brought up by Rajinder Lal Malhotra and

Mohini Devi. He stated that Jolly alias Dhani Ram, had executed

a Will in favour of Rajni Devi in his presence.

31. Rajni Devi entered into the witness box as DW-2 and

stated that she was born in the year 1954. She stated that Mohini

Devi is her mother and Rajinder Lal Malhotra is her father. She

was born in Solan and both her parents maintained and brought

her up at Solan. In her deposition, she stated that the relations

between Mohini Devi and Rajinder Lal Malhotra remained cordial

until 1977. Thereafter, some differences arose between them and

Rajinder Lal Malhotra suddenly started saying that he had kept

his mother as his keep and that Rajni is his adopted daughter.

32. Defendant No.2,Rajinder Lal Malhotra, entered the

witness box as D-2W-1 and stated that Mohini Devi was his wife.

He stated that he knew Rajni from the time when his servant by

Ashcharj Lal had adopted her. He further stated that Ashcharj Lal

had adopted Rajni through the Court of Smt. Kaushalya Pawha, a

competent Court of law. Rajni was adopted from an orphanage.

He stated that by Ashcharj Lal was residing with him and, when

Rajni was about 3 to 4 years, he died and after the death of

Ashcharj Lal, his wife Mohini Devi stated that they should keep

22 2026:HHC:1869

Rajni Devi with them instead of sending her back to an

orphanage. Thereafter, Rajni Devi was brought up, looked after

and maintained by Mohini Devi. He stated that when Rajni started

showing affection towards Rajinder Lal Malhotra as a daughter,

difference arose between him and Mohini Devi. Regarding this,

Mohini Devi used to state that if they will say that Rajni Devi is an

orphan, it would be very difficult to arrange her marriage,

however, if they claimed she is their daughter, she would be

happily married. He has stated that he did not admit this fact and

he did not participate in the marriage of Rajni Devi. He has stated

that Rajni is not related to him in any manner.

33. From the depositions of the parties, in conjunction

with the pleadings, documents and the findings of the learned trial

Court, it is noted that defendant No.1 admitted that she is the

adopted daughter of Mohini Devi. However, when the pleadings

are examined, the said fact is totally missing. In order to prove the

case of a valid adoption, the defendant was required to place on

record material along with the documents to substantiate the

validity of adoption. As per the provision of law as laid down by

Hon’ble Madras High Court, it has been held that prior to the

Hindu Adoption and Maintenance Act, 1956, the adoption of a

female child was not recognized under Hindu Law and was not

23 2026:HHC:1869

permissible. The parameters for a valid adoption have been laid

down in Hindu Adoption and Maintenance Act, 1956, more

particularly, under Sections 6 to 11. Although a procedure has

been prescribed for a valid and legal adoption, but in the present

case there are neither pleadings nor any document(s) to establish

and show that whether she is the adopted daughter or she is the

real daughter of late Mohini Devi. Consequently, this Court holds

that Rajni Devi is not the daughter of late Mohini Devi.

34. As far as the other contention as raised by learned

counsel for the appellants is concerned that the finding of learned

first appellate Court with respect to the execution of Will in favour

of the plaintiff, whereby the finding as returned by the learned trial

Court was set aside and it was held that the Will is shrouded by

suspicious circumstances, requires interference and has to be

examined in view of the evidence led by parties and the copy of

Will.

35. Before coming to the factual matrix, as regards the

requisites for proving of Will, the exposition of law as laid down by

the Hon’ble Apex Court is required to be discussed in the

following manner:

24 2026:HHC:1869

36. The Hon’ble Supreme Court in Gopal Krishan and

others vs. Daulat Ram and others, (2025) (2) SCC 804 has

held as under:

“15.The requisites for proving of a Will are well

established. They were recently reiterated in a

Judgment of this Court in Meena Pradhan and

others v. Kamla Pradhan and Another9. See also

Shivakumar and Others v. Sharanabasappa and

Others10. The principles as summarised by the

former are reproduced as below:-

“…10.1. 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;

10.2. It is not required to be proved with

mathematical accuracy, but the test of satisfaction of

the prudent mind has to be applied. 10.3. 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 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

25 2026:HHC:1869

received from the testator a personal

acknowledgment of such signatures;

(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;

10.4. 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; 10.5. 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;

10.6. If one attesting witness can prove the

execution of the will, the examination of other

attesting witnesses can be dispensed with;

10.7. 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;

10.8. 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; (2023) 9 SCC 734 (2021) 11 SCC

277

10.9. The test of judicial conscience has been

evolved for dealing with those cases where the

execution of the will is surrounded by suspicious

26 2026:HHC:1869

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 execution; testator executed the will while acting

on his own free will;

10.10. 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;

10.11. Suspicious circumstances must be “real,

germane and valid” and not merely “the fantasy of

the doubting mind [Shivakumar v. Sharanabasappa,

(2021) 11 SCC 277] ”. 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 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.”

37. Similarly, the Hon’ble Apex Court in Meena Pradhan

and others vs. Kamla Pradhan and another, (2023) 9 SCC

734 has come to the conclusion that in order to prove the Will, the

Court is required to consider factors, such as awareness of the

27 2026:HHC:1869

testator as to its 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 execution;

testator executed the Will while acting on his own free Will.

38. The Hon’ble Supreme Court has repeatedly held that

a person who alleges fraud, fabrication, undue influence 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.

Suspicious circumstances must be ‘real, germane and valid’ and

not merely ‘the fantasy of the doubting mind’. 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 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. Broadly, it has to be proved

that (a) the testator signed the Will out of his own free will, (b) at

the time of execution, he had a sound state of mind, (c) he was

aware of the nature and effect thereof and (d) the Will was not

28 2026:HHC:1869

executed under any suspicious circumstances. It is a mandate of

law that 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. The Hon’ble Supreme Court has held as under:

“10.8. Whenever there exists any suspicion as to

the execution of the Will, it is the responsibility of the

propounder to remove all legitimate suspicions be-

fore it can be accepted as the testator's last Will. In

such cases, the initial onus on the propounder be-

comes heavier.

10.9. The test of judicial conscience has been

evolved for dealing with those cases where the exe-

cution of the Will is surrounded by suspicious cir-

cumstances. 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 dis-

positions in the Will; sound, certain and disposing

state of mind and memory of the testator at the time

of execution; testator executed the Will while acting

on his own free Will;

Suspicious circumstances must be ‘real, germane

and valid’ and not merely ‘the fantasy of the

doubting mind’ 1. 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

29 2026:HHC:1869

signature, a feeble mind, an unfair and 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.

11. In short, apart from statutory compliance,

broadly it has to be proved that (a) the testator

signed the Will out of his own free Will, (b) at the

time of execution he had a sound state of mind, (c)

he was aware of the nature and effect thereof and

(d) the Will was not executed under any suspicious

circumstances.”

39. A copy of Will (Ext.PW-2/A) has been placed on

record and the same is dated 20.07.1988. In order to prove his

case, the plaintiff, Manga Lal, examined himself as PW-1. After

his death, PW Deepak was examined. PW-1 has stated in his

deposition that Mohini Devi was his younger sister and that she

was issueless. He stated that Rajni Devi was adopted by the

servant of late Mohini Devi. He stated that Mohini Devi executed

the Will with respect to the entire property in his favour. He stated

that Mohini Devi, after coming back from Shimla, gave a copy of

Will to his son. After the death of Manga Lal, plaintiff, his son

Deepak Kumar entered the witness box. In his deposition, he has

stated that the Will was given to him by his father in the Court.

40. In order to prove the execution of Will, Chattar Singh,

the scribe of the Will, entered the witness box as PW-2. He stated

that Ext.PW-2/A was written by him at the instance of Mohini

30 2026:HHC:1869

Devi. He further stated that the Will was written according to the

directions given by Mohini Devi and was scribed in Kamla Nehru

Hospital at the time when she was admitted there. He stated that

he knew Mohini Devi since 1968. He also stated that the said

execution was made at about 5:00 to 6:00 PM in the evening. He

further stated that in the hospital room, there was only one chair

and one bed of Mohini Devi.

41. PW-3 is the deposition of K.P. Singh, who was

examined to prove the execution of Will. In his testimony, he

stated that he went to the hospital in the afternoon and returned

from the hospital before 5:00 PM. He further stated that in the

hospital there was only one patient in the room. He also stated

that there was only one stool and one chair. He has denied the

suggestion that Pushpa Sood, another patient, was also admitted

in the same room.

42. The testimonies of these witnesses are full of

contradictions, as rightly pointed out by the learned trial Court.

PW-1, Manga Lal, stated in his deposition that Mohini Devi, after

coming back from Shimla, gave the Will to his son, whereas his

son stated that the Will was given to him by his father in the

Court. There is material contradictions in the statements of PW-2

and PW-3, as PW-2, Chatter Singh, stated that the execution of

31 2026:HHC:1869

the Will took place between 5:00 PM and 6:00 PM in the evening,

whereas PW-3 stated that he came back from the hospital prior to

5:00 PM in the evening. PW-2 and PW-3, in their depositions,

have stated that there was only one patient admitted in the

hospital room at the relevant time. However, the said testimony is

in contrast to the record which has been placed on record as Ext.

D1W5/A.

43. DW-5, Nitya Nand Sharma, in his deposition has

stated that another patient, namely, Pushpa Devi was admitted

along with Mohini Devi in room No.3. These material

contradictions, in conjunction with the copy of Will (Ext. PW-2/A),

creates doubt regarding the due and legal execution of the said

Will.

44. A perusal of Ext. PW-2/A reveals that the second leaf

of the Will was cut diagonally and has been taped from the back

side. Although, the scribe of the Will, PW-2, Chatter Singh, in his

deposition, stated that the second page of the Will was not torn

when the Will was written. however, a perusal of Will, makes it

apparent on the face of record that there are interpolations,

cuttings and corrections. The first page of the Will gives an

impression that Mohini Devi was happy with the services of Jolly

alias Dhani Ram her servant and there is only reference of said

32 2026:HHC:1869

Dhani Ram. However, on the second leaf, the contents have been

changed and there are interpolations and insertion of the words.

On the second leaf, the words have been added which create

doubt in the mind of the Court. It seems that the page was cut

and pasted with another page in order to insert the signatures of

late Mohini Devi. The document is highly suspicious, and the

plaintiff has failed to establish its valid and due execution.

Learned first appellate Court has rightly disbelieved Ext. PW-2/A

and it does not call for any interference. The words “Sampatti”,

“mere marne ke uprant”, “man”, “paksh” and “tareek” have been

joined with a piece of paper, which creates doubt and suspicion

with respect to valid execution of said document.

45. Learned first appellate Court, after discussing the

entire material placed on record along with evidence, rightly came

to the conclusion that Ext. PW-2/A is not legal, valid and genuine

and it requires outright rejection.

46. The substantial questions of law are answered

accordingly.

47. No other point urged or raised by the learned counsel

for the parties.

33 2026:HHC:1869

48. Cumulative effect of the aforesaid discussion is that

Rajni has not been able to prove that she is the daughter of

Rajinder Lal Malhotra and Mohini Devi. As regards the claim put-

forth by Rajinder Lal Malhotra, the suit filed by him stood

dismissed and the appeal filed by him against the judgment of

trial Court stood abated. Thus, no findings are required to be

rendered qua him. Therefore, after holding the Will, Ext. PW-2/A,

surrounded by suspicious circumstances and not sustainable in

the eyes of law, the claim of Manga Lal on the basis of the Will

executed by Mohini Devi in his favour, is rejected. However,

being the real brother of Mohini Devi, he is held entitled to

succeed to the suit property by way of inheritance.

49. Consequently, in view of discussions and findings

hereinabove, the appeal is partly accepted and it is held that Rajni

Devi is not the daughter of Mohini Devi and the plaintiff, being the

real brother of deceased Mohini, is entitled to inherit the suit

property on the basis of inheritance. Further, Will Ext. PW-2/A is

declared null and void and it is not binding upon the rights of the

parties.

50. Accordingly, the impugned judgment and decree

dated 16.12.2004, as passed by learned First Appellate Court are

partly quashed and set aside and modified in the aforesaid terms.

34 2026:HHC:1869

51. Pending application(s), if any, shall also stand

disposed of.

( Romesh Verma )

Judge

20

th

May, 2026

(vt)