As per case facts, plaintiffs sought ownership of land based on a 1958 Will, challenging a later sale deed and revenue records, while also requesting an injunction and possession. Defendants ...
2026:HHC:10674
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 467 of 2006
Reserved on:02.03.2026
Date of Decision: 07.04.2026
Prabh Dayal & others
...Appellants
Versus
Kala Devi (since deceased), through her LRs.
...Respondents
_____________________________________
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?
1
Yes
For the appellants : Mr Y.Paul, Advocate for appellants
No.2 to 5.
Name of appellant No. 1 stands
deleted vide order dated 07.10.2020
For the respondents : Mr Mohan Singh, Advocate, for
respondents No. 1(a) to 1(e).
Name of respondent No. 2 stands
deleted vide order dated 30.07.2018
Mr Surinder Verma, Advocate, for
respondents No. 3 and 4.
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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2026:HHC:10674
Rakesh Kainthla, Judge
The present appeal is directed against the
judgment and decree dated 04.07.2006, passed by learned
District Judge, Mandi, District Mandi, H.P (hereinafter
referred to as the First Appellate Court) vide which the
judgment and decree 23.09.2005, passed by learned Civil
Judge (Senior Division), Sundernagar, District Mandi, H.P. (
learned Trial Court) were upheld. (For the sake of
convenience, the parties shall be referred to in the same
manner as they were arrayed before the learned Trial court.
2. Briefly stated, the facts giving rise to the present
appeal are that the plaintiffs filed a civil suit before the
learned Trial Court for seeking declaration that the plaintiff
No. 1 is owner of 3/5
th
shares each, and plaintiffs No. 2 to 5
are owners of 1/10
th
share in the suit land described in para
1 of the plaint by virtue of Will dated 13.03.1958 executed by
late Padu, defendants have no right, title or interest in the
suit land, the revenue entries to the contrary are not
binding upon the plaintiffs, and the sale deed, executed by
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defendant No. 1 in favour of defendant No. 3 on 09.11.1998,
is void, illegal and confers no right, title or interest upon
the defendant no. 3. A consequential relief of permanent
prohibitory injunction restraining the defendants from
causing any interference in the possession of the plaintiffs
was also sought. A decree of possession was also sought in
case the plaintiffs were dispossessed during the pendency
of the suit. It was pleaded that the suit land was owned and
possessed by Padu, husband of defendant No.2 and father of
plaintiff No.1 and defendant No.1. Padu expired in the year
1968. He had executed a conditional Will on 13.03.1958 in
favour of Saju and plaintiff No.1 in equal share s. The
beneficiaries were not aware of the existence of the Will.
Plaintiff No.2 searched an old box of Padu containing the
documents and found the Will lying in the box. Saju had
married plaintiff No.1 as per the conditions of the Will.
Plaintiffs No. 2 to 5 were born to them. Saju died on
22.02.1995. Plaintiffs, being class one heirs, succeeded to
half share. Mutation No. 31, dated 26.08.1968 , to the
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contrary, does not bind the rights of the plaintiffs. The
plaintiffs requested that defendants No. 1 and 2 to admit
their claim, but they refused. Defendant No. 1 executed a
sham sale deed No. 608 dated 09.11.1998 of 81/2352 shares
measuring 0-4-1 bigha in favour of defendant No. 3. The
sale deed does not confer any right upon the defendant
No.3. The defendants interfered with the plaintiffs’
possession; hence, suit was filed for seeking the reliefs
mentioned above.
3. The suit was opposed by filing a written
statement taking a preliminary objection regarding the suit
being barred by limitation. The contents of the plaint were
denied on merits. It was asserted that the suit land is jointly
owned and possessed by the parties, who had divided the
suit land amongst themselves in a family arrangement. It
was specifically denied that any Will was executed by Padu.
Therefore, it was prayed that the present suit be dismissed.
4. A replication denying the contents of the written
statement and affirming those of the plaint was filed.
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5. The following issues were framed on 25.11.2000,
and additional issues were framed on 3.12.2003.
1. Whether on 13.03.1958, deceased Padu executed a
valid Will in favour of the plaintiffs as alleged? OPP.
1-A. Whether the defendants No.2 fraudulently concealed
the Will in dispute from the plaintiff till 1998? If so, its
effect? OPP
2. Whether the revenue entries showing the defendants
to be the owners in possession of the suit land are
wrong and illegal, as alleged? OPP.
2-A. Whether defendant No. 2 is colliding with the
plaintiff? OPD
3. Whether the sale deed dated 09.11.1998, having been
executed by defendant No.1 in favour of defendant No.
3, is void and illegal as alleged. OPP
4. Whether the defendants are interfering in the
possession of the plaintiffs qua the suit land in an
illegal manner? OPP.
5. Relief.
6. The parties were called upon to produce the evidence,
and the plaintiffs examined Hima Devi (PW -1), Tara Chand
(PW-2), Narainu (PW -3) and Hima Devi (PW -4). The
defendants examined defendant No. 1 (DW-1) and Ganga Ram
(DW-2).
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7. Learned Trial Court held that the person who had
found the Will was not examined by the plaintiff. The scribe Tara
Chand (PW-2) made a contradictory statement regarding the
execution of the Will. The due execution of the Will was not
proved. Hima Devi (PW-1) admitted that she had filed the suit at
the instance of her mother, which established collusion between
the parties. Defendant No.1 had a right to sell the property as an
owner. Defendants were co-owners and not entitled to change
the nature of the suit land. Hence, the learned Trial Court
answered issues No.2A and 4 in the affirmative, the rest of the
issues in the negative and partly decreed the suit.
8. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the plaintiffs filed an appeal, which
was decided by the learned District Judge, Mandi, H.P. (learned
Appellate Court). Learned Appellate Court concurred with the
findings recorded by the learned Trial Court that Tara Chand
(PW-2) had made a contra dictory statement. The Will
mentioned the signature of Padu, but he had put a thumb mark,
and no explanation was provided for it. All these circumstances
made the execution of the Will doubtful. Hence, the appeal was
dismissed.
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9. Being aggrieved by the judgments and decree s
passed by the learned Courts below, the plaintiffs have filed the
present appeal, which was admitted on the following
substantial question of law on 18.07.2007:
“ Whether due execution of the Will Ex. PW-2/A has been
proved in accordance with the law, and whether it confers
indefeasible title on the appellants?
10. I have heard M r Y. Paul, learned counsel for
appellants No. 2 to 5, Mohan Singh, learned counsel for
respondents No.1(a) to 1(e) and Mr Surender Verma, learned
counsel for respondents No. 3 and 4.
11. Mr Y. Paul, learned counsel for appellant Nos. 2 to 5,
submitted that the learned Courts below erred in holding that
execution of the Will was not proved. The Will was executed in
the year 1958 and carried a presumption under Section 90 of the
Indian Evidence Act. The minor contradictions in the statement
of the scribe were not sufficient to discard his testimony. The
plaintiffs have also filed an application to lead additional
evidence to examine Mani Ram and Jagat Singh. He prayed that
the application for additional evidence and appeal be allowed,
and judgments and decrees passed by the learned Courts below
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be set aside. He relied upon the judgment of the Hon’ble
Supreme Court in Moturu Nalini Kanth vs. Gainedi Kaliprasad
(dead, through LRs) 2023 INSC 1004, in support of his
submission.
12. Mr Mohan Singh, learned counsel for respondents
No. 1(a) to 1(e), submitted that the learned Courts below have
rightly appreciated the material on record and have
concurrently held that execution of the Will was not proved.
There is no perversity in the findings recorded by the learned
Courts below. The witnesses could have been examined before
the learned Courts below, and no explanation has been provided
for their non-examination. The application for additional
evidence is not maintainable. Therefore, he prayed that the
present appeal and application for additional evidence be
dismissed.
13. Mr Surender Verma, learned counsel for respondents
No. 3 and 4, adopted the submissions of Mr Mohan Singh ,
learned counsel for the respondents No. 1 (a) to 1 (e).
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Additional Evidence:
14. Before adverting to the substantial question of law
framed by this Court, it is necessary to dispose of the application
(CMP No. 6699 of 2024) for leading additional evidence. It has
been asserted that the attesting witnesses had died before the
filing of the suit. Ghungar, one of the attesting witnesses, had
executed a General Power of Attorney in the name of Punnu
Ram. This fact was not in the applicants’ knowledge before
March, 2024. The attesting witness to the power of attorney can
identify Ghungar’s signature on the Will. Ghungar was also
identified by Mr Jagat Singh Chandel, Advocate, who c ould
identify the signature of Ghungar on the Will. These witnesses
could not be produced because the applicants were not aware of
their existence; therefore, it was prayed that the present
application be allowed and the witnesses be permitted to be
examined.
15. The application is opposed by filing a reply, taking a
preliminary objection regarding the lack of maintainability. It
was asserted that allowi`ng the application for leading
additional evidence will amount reopening of the matter. The
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appeal has been pending before this Court since 2006. The suit
was instituted in the year 1998, and much time had lapsed since
then. No cogent reason has been assigned for the non-
examination of the witnesses. Therefore, it was prayed that the
present application be dismissed.
16. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
17. Order 41 Rule 27 of CPC reads as under:-
“27. Production of additional evidence in the Appellate
Court
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the Appellate Court, but if—
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional
evidence establishes that, notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him at the
time when the decree appealed against was passed,
or
(b) the Appellate Court requires any document to be
produced or any witness to be examined to enable it
to pronounce judgment, or for any other substantial
cause, the Appellate Court may allow such evidence
or document to be produced, or witness to be
examined.
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(2) Wherever additional evidence is allowed to be
produced by an Appellate Court, the Court shall record the
reason for its admission.”
18. It is apparent from the bare perusal of the provision
that the Appellate Court can permit a party to produce the
evidence if the Court had refused to admit the evidence, the
evidence could not be produced despite the exercise of due
diligence, it was not within the knowledge of the parties or the
Court requires the same to enable it to pronounce the judgment
or for any other sufficient cause.
19. The application mentions that Prabh Dayal was asked
to look for the person who was familiar with the signatures of
Ghungar in the year 2020. Mani Ram informed Prabh Dayal that
the land was inherited by him along with his brother Devi Ram,
and this fact was revealed to the learned c ounsel. This
explanation does not show any reason for n ot leading the
evidence before the learned Trial Court. The applicants were
aware of the fact that they had propounded a Will of Padu, and
were required to prove the signatures of marginal witnesses.
The application does not show why no enquiry was made
regarding the person, who was familiar with the signatures of
Ghungar, when the matter was pending before the learned Trial
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Court. It was held in Sopanrao v. Syed Mehmood, (2019) 7 SCC 76:
(2019) 3 SCC (Civ) 467: 2019 SCC OnLine SC 821 that where the
evidence was not proved before the learned Courts below, and no
explanation was provided for their non -production, the
evidence be taken on record. It was observed at page 81:
“13. At this stage, it would be pertinent to point out that
the appellant-defendants, during the course of this
appeal, have filed a number of applications to place on
record certain documents which were not on the record of
the trial court. No explanation has been given in any of
these applications as to why these documents were not
filed in the trial court. These documents cannot be looked
into and entertained at this stage. The defendants did not
file these documents before the trial court. No application
was filed under Order 41 Rule 27 of the Code of Civil
Procedure, 1908, for leading additional evidence before
the first appellate court or even before the High Court.
Even the applications filed before us do not set out any
reasons for not filing these documents earlier, and do not
meet the requirements of Order 41 Rule 27 of the Code of
Civil Procedure. Hence, the applications are rejected, and
the documents cannot be taken into consideration.”
20. It was held in Jagdish Prasad Patel v. Shivnath, (2019)
6 SCC 82: (2019) 3 SCC (Civ) 112: 2019 SCC OnLine SC 492 that the
additional evidence can be led when the Trial Court had refused
to admit the evidence, the evidence was not available despite the
exercise of due diligence and the evidence is required by the
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Court to effectively adjudicate the dispute pending before it. It
was observed at page 96: -
“29. Under Order 41 Rule 27 CPC, the production of
additional evidence, whether oral or documentary, is
permitted only under three circumstances, which are:
(I) where the trial court had refused to admit the
evidence, though it ought to have been admitted;
(II) the evidence was not available to the party despite
the exercise of due diligence; and
(III) the appellate court required the additional
evidence so as to enable it to pronounce judgment or
for any other substantial cause of like nature.
An application for the production of additional evidence
cannot be allowed if the appellant was not diligent in
producing the relevant documents in the lower court.
However, in the interest of justice and when satisfactory
reasons are given, the court can rec eive additional
documents.”
21. It was laid down in North Eastern Railway
Administration. vs. Bhagwan Das, (2008) 8 SCC 511, that the
provisions of Order 41 Rule 27 do not enable an unsuccessful
litigant to patch up the weak parts of his case. It was observed:-
“13. Though the general rule is that ordinarily the
appellate court should not travel outside the record of the
lower court and additional evidence, whether oral or
documentary is not admitted but Section 107 CPC, which
carves out an exception to the general rule, enables an
appellate court to take additional evidence or to require
such evidence to be taken subject to such conditions and
limitations as may be prescribed. These conditions are
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prescribed under Order 41 Rule 27 CPC. Nevertheless, the
additional evidence can be admitted only when the
circumstances as stipulated in the said Rule are found to
exist. The circumstances under which additional evidence
can be adduced are:
(i) the court from whose decree the appeal is preferred
has refused to admit evidence which ought to have
been admitted [clause (a) of sub-rule (1)], or
(ii) the party seeking to produce additional evidence
establishes that, notwithstanding the exercise of due
diligence, such evidence was not within the knowledge
or could not, after the exercise of due diligence, be
produced by him at the time when the decree appealed
against was passed [clause (aa), inserted by Act 104 of
1976], or
(iii) the appellate court requires any document to be
produced or any witness to be examined to enable it to
pronounce judgment, or for any other substantial
cause [clause (b) of sub-rule (1)].
14. It is plain that under clause (b) of sub-rule (1) of Rule
27 Order 41 CPC, with which we are concerned in the
instant case, evidence may be admitted by an appellate
authority if it “requires” to enable it to pronounce
judgment, or for any other substantial cause. The scope of
the Rule, in particular of clause (b), was examined way
back in 1931 by the Privy Council in Parsotim Thakur v. Lal
Mohar Thakur [AIR 1931 PC 143]. While observing that the
provisions of Section 107 as elucidated by Order 41 Rule 27
are clearly not intended to allow the litigant, who has
been unsuccessful in the lower court, to patch up the
weak parts of his case and fill up omissions in the court of
appeal, it was observed as follows : (AIR p. 148)
“… Under clause (1)(b), it is only where the
appellate court ‘requires’ it (i.e. finds it needful)
that additional evidence can be admitted. It may be
required to enable the court to pronounce
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judgment, or for any other substantial cause, but in
either case, it must be the court that requires it.
This is the plain grammatical reading of the sub-
clause. The legitimate occasion for the exercise of
this discretion is not whenever before the appeal is
heard a party applies to adduce fresh evidence, but
‘when on examining the evidence as it stands some
inherent lacuna or defect becomes apparent’.”
15. Again in K. Venkataramiah v. A. Seetharama Reddy [AIR
1963 SC 1526 : (1964) 2 SCR 35] a Constitution Bench of this
Court while reiterating the aforenoted observations in
Parsotim case [AIR 1931 PC 143] pointed out that the
appellate court has the power to allow additional evidence
not only if it requires such evidence “to enable it to
pronounce judgment” but also for “any other substantial
cause”. There may well be cases where even though the
court finds that it is able to pronounce judgment on the
state of the record as it is, and so, it cannot strictly say
that it requires additional evidence “to enable it to
pronounce judgment”, it still considers that in the
interest of justice something which remains obscure
should be filled up so that it can pronounce its judgment
in a more satisfactory manner. Thus, the question
whether looking into the documents, sought to be filed as
additional evidence, would be necessary to pronounce
judgment in a more satisfactory manner, has to be
considered by the Court at the time of hearing of the
appeal on merits.”
22. It was laid down by the Hon’ble Supreme Court in
Gobind Singh v. Union of India, 2026 SCC OnLine SC 339, that the
parties can lead evidence before the appellate court after
satisfying the conditions provided under Order 41 Rule 27 of
CPC. It was observed:
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“11.2. In order to properly appreciate the controversy
involved, it is necessary to first advert to the statutory
provision applicable to the case at hand. Order XLI Rule 27
CPC reads as follows:
“27. Production of additional evidence in the appellate
court.-
(1) The parties to an appeal shall not be entitled to
produce additional evidence, whether oral or
documentary, in the appellate court. But if-
(a) …
(aa) the party seeking to produce additional
evidence establishes that, notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him at
the time when the decree appealed against was
passed, or
(b) …the appellate court may allow such evidence or
document to be produced, or a witness to be
examined.
(2) Wherever additional evidence is allowed to be
produced by an appellate court, the Court shall
record the reason for its admission.” (emphasis
supplied)
11.3. Rule 27, being couched in negative terms, makes it
abundantly clear that parties to an appeal are not entitled
to adduce additional evidence, whether oral or
documentary, save and except in the circumstances
expressly enumerated therein. The provision
contemplates only three eventualities in which additional
evidence may be permitted: first, where the court which
passed the decree has refused to admit evidence which
ought to have been admitted; second, where the party
seeking to adduce such evidence establishes that,
notwithstanding the exercise of due diligence, the
evidence was not within its knowledge or could not have
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been produced at the time when the decree under appeal
was passed; and third, where the appellate court itself
requires any document to be produced or any witness to
be examined in order to enable it to pronounce judgment
or for any other substantial cause.
11.4. Accordingly, it is only upon satisfaction of any of the
aforesaid three contingencies that an application under
Order XLI Rule 27 CPC can be entertained. Sub-rule (2) of
the said provision further mandates that where the
appellate court forms an opinion that additional evidence
is required to be admitted, it must record the reasons for
such admission. While elucidating the scope and object of
Order XLI Rule 27 CPC, this Court, in Union of India v.
Ibrahim Uddin (2012) 8 SCC 148, undertook an exhaustive
analysis of the provision. The relevant extract is
reproduced hereinafter:
“36. The general principle is that the appellate court
should not travel outside the record of the lower court and
cannot take any evidence in appeal. However, as an
exception, Order 41 Rule 27 CPC enables the appellate
court to take additional evidence in exceptional
circumstances. The appellate court may permit additional
evidence only and only if the conditions laid down in this
Rule are found to exist. The parties are not entitled, as of
right, to the admission of such evidence. Thus, the
provision does not apply when, on the basis of the
evidence on record, the appellate court can pronounce a
satisfactory judgment. The matter is entirely within the
discretion of the court and is to be used sparingly. Such
a discretion is only a judicial discretion circumscribed
by the limitation specified in the Rule itself.
…
38. Under Order 41 Rule 27 CPC, the appellate court has
the power to allow a document to be produced and a
witness to be examined. But the requirement of the said
court must be limited to those cases where it found it
necessary to obtain such evidence for enabling it to
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pronounce judgment. This provision does not entitle the
appellate court to let in fresh evidence at the appellate
stage, where even without such evidence it can pronounce
judgment in a case. It does not entitle the appellate court
to let in fresh evidence only for the purpose of
pronouncing judgment in a particular way. In other
words, it is only for removing a lacuna in the evidence that
the appellate court is empowered to admit additional
evidence.
…
41. The words “for any other substantial cause” must
be read with the word “requires” in the beginning of the
sentence, so that it is only where, for any other substantial
cause, the appellate court requires additional evidence,
that this Rule will apply e.g. when evidence has been
taken by the lower court so imperfectly that the appellate
court cannot pass a satisfactory judgment.” (emphasis
supplied)
Thus, a holistic reading of the aforesaid decision
makes it clear that the appellate court's inquiry, while
considering an application for leading additional
evidence, is confined to examining whether such evidence
is necessary to remove a lacuna in the case. More
importantly, the appellate court may permit additional
evidence only upon being satisfied that the conditions
expressly stipulated under Order XLI Rule 27 CPC are
fulfilled. The parties do not possess any vested or
automatic right to seek admission of additional evidence
at the appellate stage. Consequently, the provision has no
application where the appellate court is in a position to
render a satisfactory and reasoned judgment on the basis
of the evidence already available on record.
11.5. In State of Karnataka v. K.C. Subramanya (2014) 13 SCC
468, the appellants therein had moved an application
before the appellate court under Order XLI Rule 27 CPC
seeking leave to produce a map of the area to establish
that the disputed land constituted a public road. This
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Court, while affirming the High Court's decision to reject
the said application, held as follows:
“4. …On perusal of this provision, it is unambiguously
clear that the party can seek liberty to produce additional
evidence at the appellate stage, but the same can be
permitted only if the evidence sought to be produced could
not be produced at the stage of trial in spite of exercise of
due diligence and that the evidence could not be produced
as it was not within his knowledge and hence was fit to be
produced by the appellant before the appellate forum.
5. It is thus clear that there are conditions precedent
before allowing a party to adduce additional evidence at
the stage of appeal, which specifically incorporate
conditions to the effect that the party, in spite of due
diligence, could not produce the evidence, and the same
cannot be allowed to be done at his leisure or sweet will.”
(emphasis supplied)
This Court thus categorically held that unless the
requirements stipulated under Order XLI Rule 27 CPC are
strictly satisfied, a party cannot be permitted to adduce
additional evidence at the appellate stage. Such
permission cannot be granted as a matter of course, nor
can additional evidence be introduced at the whim or
convenience of a litigating party.
11.6. Where the appellate court permits additional
evidence to be adduced, Order XLI Rule 27(2) CPC casts a
mandatory obligation upon the court to record the
reasons for such admission. In Ibrahim Uddin (supra), this
Court elucidated the rationale underlying the
requirement of recording reasons in the following terms:
“42. Whenever the appellate court admits
additional evidence, it should record its reasons for
doing so (sub-rule (2)). It is a salutary provision which
operates as a check against too easy a reception of
evidence at a late stage of litigation, and the statement
of reasons may inspire confidence and disarm
objection. Another reason for this requirement is that,
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where a further appeal lies from the decision, the
record of reasons will be useful and necessary for the
court of further appeal to see if the discretion under
this Rule has been properly exercised by the court
below. The omission to record the reasons must,
therefore, be treated as a serious defect. But this
provision is only Directory and not mandatory, if the
reception of such evidence can be justified under the
Rule.”
11.7. The procedural framework under Order XLI of CPC
makes it abundantly clear that an appeal is ordinarily to
be decided on the evidence adduced before the trial court.
The appellate court is not expected to embark upon a
fresh fact-finding exercise or permit production of
additional evidence as a matter of routine. Where the
appellate court is satisfied that the material already
available on record is sufficient to enable it to pronounce
judgment, it is well within its jurisdiction to confine its
consideration to the evidence forming part of the record
of the courts below.”
23. In the present case, no cogent reason was assigned
for non-examination of the witnesses before the learned Trial
Court or the learned First Appellate Court; hence, the present
application fails, and it is dismissed.
Substantial question of law:-
24. The plaintiffs have set up a Will (Ext. PW-2/A). The
law relating to the execution of the Will was explained by
the Hon’ble Supreme Court in Meena Pradhan v. Kamla
Pradhan, (2023) 9 SCC 734 : (2023) 4 SCC (Civ) 449 as under:
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“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
received from the testator a personal
acknowledgement 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;
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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;
10.9. The test of judicial conscience has evolved for
dealing with those cases where the execution of the
will is surrounded by suspicious circumstances. It
requires consideration of factors such as awareness of
the testator as to the con tent as well as the
consequences, nature and effect of the dispositions in
the will; a sound, certain and disposing state of mind
and memory of the testator at the time of execution;
the testator executed the will while acting on his own
free will;
10.10. One who alleges fraud, fabrication, undue
influence, etc., 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
[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
23
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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.”
25. This position was reiterated in Gurdial Singh v. Jagir
Kaur, 2025 SCC OnLine SC 1466, wherein it was observed:
“11. A Will has to be proved like any other document
subject to the requirements of Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian
Evidence Act, 1872, that is, examination of at least one of
the attesting witnesses. However, unlike other
documents, when a Will is propounded, its maker is no
longer in the land of the living. This casts a solemn duty
on the Court to ascertain whether the Will propounded
had been duly proved. Onus lies on the propounder not
only to prove due execution but to dispel from the mind of
the court all suspicious circumstances which cast doubt
on the free disposing mind of the testator. Only when the
propounder dispels the suspicious circumstances and
satisfies the conscience of the court that the testator had
duly executed the Will out of his free volition without
coercion or undue influence, would the Will be accepted
as genuine. In Smt. Jaswant Kaur v. Smt. Amrit Kaur (1977) 1
SCC 369, this Court, referring to H. Venkatachala Iyengar v.
B.N. Thimmajamma 1959 Supp (1) SCR 426
,
enumerated
the principles relating to proof of Will:—
“10. ***** **** **** ****
“1. Stated generally, a will has to be proved like
any other document, the test to be applied being
the usual test of the satisfaction of the prudent
mind in such matters. As in the case of proof of
other documents, so in the case of proof of wills,
24
2026:HHC:10674
one cannot insist on proof with mathematical
certainty.
2. Since Section 63 of the Succession Act requires
a will to be attested, it cannot be used as
evidence until, as required by Section 68 of the
Evidence Act, 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.
3. Unlike other documents, the will speaks from
the death of the testator, and therefore, the
maker of the will is never available for deposing
as to the circumstances in which the will came to
be executed. This aspect introduces an element
of solemnity in the decision of the question
whether the document propounded is proved to
be the last will and testament of the testator.
Normally, the onus which lies on the
propounder can be taken to be discharged on
proof of the essential facts which go into the
making of the will.
4. Cases in which the execution of the will is
surrounded by suspicious circumstances stand
on a different footing. 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 and such
other circumstances raise suspicion about the
execution of the will. That suspicion cannot be
removed by the mere assertion of the
propounder that the will bears the signature of
the testator or that the testator was in a sound
and disposing state of mind and memory at the
time when the will was made, or that those like
the wife and children of the testator who would
normally receive their due share in his estate
25
2026:HHC:10674
were disinherited because the testator might
have had his own reasons for excluding them.
The presence of suspicious circumstances makes
the initial onus heavier and, therefore, in cases
where the circumstances attendant upon the
execution of the will excite the suspicion of the
court, the propounder must remove all
legitimate suspicions before the document can
be accepted as the last will of the testator.
5. It is in connection with wills, the execution of
which is surrounded by susp icious
circumstances, that the test of satisfaction of the
judicial conscience has been evolved. That test
emphasises that in determining the question as
to whether an instrument produced before the
court is the last will of the testator, the court is
called upon to decide a solemn question, and by
reason of suspicious circumstances, the court
has to be satisfied fully that the will has been
validly executed by the testator.
6. If a caveator alleges fraud, undue influence,
coercion, etc., in regard to the execution of the
will, such pleas have to be proved by him, but
even in the absence of such pleas, the very
circumstances surrounding the execution of the
will may raise a doubt as to whether the testator
was acting of his own free will. And then it is a
part of the initial onus of the propounder to
remove all reasonable doubts in the matter.”
The Court further held:—
“9. In cases where the execution of a will is
shrouded in suspicion, its proof ceases to be a
simple lis between the plaintiff and the defendant.
What, generally, is an adversary proceeding
becomes in such cases a matter of the court's
conscience, and then the true question which arises
for consideration is whether the evidence led by the
26
2026:HHC:10674
propounder of the will is such as to satisfy the
conscience of the court that the will was duly
executed by the testator. It is impossible to reach
such satisfaction unless the party which sets up the
will offers a cogent and convincing explanation of
the suspicious circumstances surrounding the
making of the will.”
12. Similarly, in Ram Piari v. Bhagwant (1993) 3 SCC 364,
this Court held that when suspicious circumstance exists,
Courts should not be swayed by the due execution of the
Will alone:
“3. ……………….Unfortunately, none of the courts paid
any attention to these, probably because they were
swayed with due execution even when this Court in
Venkatachaliah case [AIR 1959 SC 443: 1959 Supp (1) SCR
426] had held that, proof of signature raises a
presumption about knowledge , but the existence of
suspicious circumstances rebuts it…………….”
13. There is no cavil when suspicious circumstances exist
and have not been repelled to the satisfaction of the
Court, the Court would not be justified in holding that the
Will is genuine since the signatures have been duly
proved and the Will is registered. (AIR 1962 SC 567).
26. A similar view was taken in Moturu Nalini Kanth
(supra).
27. In the present case, the plaintiffs examined Tara
Chand (PW-2) to prove the execution of the Will. He stated that
Padu revealed that he would marry his daughter Hima to Saju,
and Saju would look after Padu and his wife. Saju would hand
over all the earnings to Padu. Padu would bequeath the property
located at Behali to Hima and Saju if they fulfilled the conditions
27
2026:HHC:10674
laid down by him. He (Tara Chand) wrote the document
(Ext.PW-2/A) as per the wishes of Padu. It was read over and
explained to Padu. Padu thumb marked the document , and
thereafter Ghungar put his signature. Again stated that Ghungar
had put his thumb mark. Dhani Ram also put his thumb mark.
He also put his signature. He stated in his cross-examination
that he is not a professional ‘Deed Writer’ and that he had only
prepared one document. Padu came to him some days before
writing the document and asked him to prepare the document.
He (Tara Chand) advised Padu to bring two witnesses; however,
he did not know the number of witnesses required in the Sale
Deed or the Will. Padu and Ghungar had put their thumb marks.
Ghungar had put his thumb mark with the help of the ink of the
pen or Kalam.
28. Learned Courts below had rightly held that the
testimony of this witness does not prove the due execution of
the Will. He claimed that Ghungar had put his signature on the
document (Ext.PW-2/A) and then, in the same breath, stated
that Ghungar had put his thumb mark. He reiterated in his
cross-examination that Ghungar had put his thumb mark. The
document (Ext.PW-2/A) bears the signatures of Ghungar and
28
2026:HHC:10674
not the thumb mark Thus, he has not proved the signatures of
the attesting wintess. Further, the learned Appellate Court had
rightly pointed out that Will bears words signature of Padu but
contains his thumb mark. This was not explained by any person.
He claimed that he is not a professional ‘Deed Writer’, and did
not know the number of witness es required in a Will or Sale
Deed. He has not explained how he could have asked Padu to
bring two witnesses. Learned Courts below were justified in
rejecting his testimony in these circumstances.
29. It was submitted that the Will was executed in the
year 1958, and the presumption under Section 90 of the Indian
Evidence Act applied to it. This submission will not help the
appellants. It was laid down by the Hon’ble Supreme Court in
Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687: 2008 SCC
OnLine SC 1867 that Section 90 of the Indian Evidence Act does
not dispense with the proof of the Will. It was observed at page
698:
“19. The provisions of Section 90 of the Evidence Act,
1872 keeping in view the nature of proof required for
proving a will, have no application. A will must be proved
in terms of the provisions of Section 63( c) of the
Succession Act, 1925 and Section 68 of the Evidence Act,
1872. In the event the provisions thereof cannot be
29
2026:HHC:10674
complied with, the other provisions contained therein,
namely, Sections 69 and 70 of the Evidence Act providing
for exceptions in relation thereto, would be attracted.
Compliance with statutory requirements for proving an
ordinary document is not sufficient, as Section 68 of the
Evidence Act postulates that execution must be proved by
at least one of the attesting witnesses, if an attesting
witness is alive and subject to the process of the court and
capable of giving evidence. (See B. Venkatamuni v. C.J.
Ayodhya Ram Singh [(2006) 13 SCC 449], SCC p. 458, para
19.)”
30. Therefore, no advantage can be derived from Section
90 of the Indian Evidence Act to prove the execution of the Will.
31. Both the learned Courts below have concurrently
held that the due execution of the Will was not proved. This is a
pure findings of fact. It was laid down by the Hon’ble Supreme
Court in Kashibai v. Parwatibai, (1995) 6 SCC 213, that it is not
permissible for the High Court to interfere with the findings of
fact related to the execution of the Will while hearing the second
appeal. It was observed:-
“11..…. In the present case, the trial court, after a close
scrutiny and analysis of the evidence of Defendant 1, Smt.
Parvati Bai, VirBhadra, Sheikh Nabi, Shivraj and
GyanobaPatil who are witnesses to the Will, recorded the
finding that none of them deposed that Lachiram had
signed the said Will before them and they had attested it.
None of them, except Sheikh Nabi, even deposed as to
when the talk about the execution of Will was held. The
witness, Sheikh Nabi, however, deposed that the talk
30
2026:HHC:10674
about the Will also took place at the time of the talk about
the adoption. But this witness too did not depose that
deceased Lachiram had signed the alleged Will in his
presence. In the absence of such evidence, it is difficult to
accept that the execution of the alleged Will was proved in
accordance with law as required by Section 68 of the
Evidence Act, read with Section 63 of the Indian
Succession Act and Section 3 of the Transfer of Property
Act. It may be true, as observed by the High Court, that
the law does not emphasise that the witness must use the
language of the section to prove the requisite merits
thereof, but it is also not permissible to assume
something which is required by law to be specifically
proved. The High Court simply assumed that Lac hiram
must have put his signature on the Will Deed in the
presence of the attesting witness, Sheikh Nabi, simply
because the Deed of Adoption is admitted by the witness
to have been executed on the same day. The High Court
committed a serious error in making the observations
that broad parameters of Nabi's evidence would show
that Lachiram executed the Will in his presence, that he
signed the Will being part of the execution of the
testament and this evidence in its correct background
would go to show that what was required under Section
63 has been carried out in the execution of the Will. With
respect to the High Court, we may say that these findings
of the High Court are clearly based on assumptions and
surmises and are totally against the weight of the
evidence on record. The trial court on a close and thorough
analysis of the entire evidence came to a proper conclusion
that the Will has not been proved in accordance with the law
which finding has been further affirmed by the lower
appellate court after an independent reappraisal of the entire
evidence with which we find ourselves in agreement as there
was hardly any scope or a valid reason for the High Court to
interfere with.
31
2026:HHC:10674
12. Further, it may not be out of place to mention that
sub-section (1) of Section 100 of the Code of Civil
Procedure explicitly provides that an appeal shall lie to
the High Court from every decree passed in appeal by any
court subordinate to the High Court if the High Court is
satisfied that the case involves a substantial question of
law. Sub-section (4) of Section 100 provides that when
the High Court is satisfied that a substantial question of
law is involved in any case, it shall formulate that
question. But surprisingly enough, the High Court seems
to have ignored these provisi ons and proposed to
reappreciate the evidence and interfere with the findings
of fact without even formulating any question of law. It
has been the consistent view of this Court that there is no
jurisdiction to entertain a second appeal on the ground of an
erroneous finding of fact, based on an appreciation of the
relevant evidence. There is a catena of decisions in support of
this view. Having regard to all the facts and circumstances
of the present case discussed above, we are satisfied that
there was no justification for the High Court to interfere
with the well-reasoned findings of the two courts below.
Consequently, this appeal must succeed. ” (Emphasis
supplied).
32. It was laid down by the Hon’ble Supreme Court in Rur
Singh v. Bachan Kaur, (2009) 11 SCC 1 : (2009) 4 SCC (Civ) 387:
2009 SCC OnLine SC 320 that it is not permissible for the High
Court to interfere with the concurrent findings of fact regarding
the execution of the Will. It was observed:
“13. The High Court, while exercising its jurisdiction
under Section 100 of the Code of Civil Procedure, exercises
a limited jurisdiction. It may interfere with a finding of
fact arrived at by the trial court and/or the first appellate
32
2026:HHC:10674
court only in the event that a substantial question of law
arises for its consideration.
14. The High Court framed only one substantial question
of law, viz., whether the will had been duly proved and/or
was otherwise genuine. It is essentially a question of fact.
The learned trial Judge as also the first appellate court in
opining that the will was genuine and free from
suspicious circumstances inter alia took into
consideration the existing materials on record viz. the
parties ordinarily do not want their agricultural land to go
out from the family and in that view of the matter if Kehar
Singh had bequeathed his agricultural land only in favour
of his sons and excluding the daughters from inheritance,
no exception thereto could be taken.
18. The High Court essentially entered into the arena of
the appreciation of evidence. It interfered with the
concurrent findings of fact arrived at by the courts
below.”
33. It was held in Lisamma Antony v. Karthiyayani, (2015)
11 SCC 782, that it is impermissible to interfere with the findings
of fact under Section 100 of CPC. It was held:
“11. It is a settled principle of law that a second appeal
under Section 100 of the Code of Civil Procedure, 1908,
cannot be admitted unless there is a substantial question
of law involved in it. As to what is a substantial question
of law, in Kondiba Dagadu Kadam v. Savitribai Sopan Gujar
[Kondiba Dagadu Kadam v. Savitribai Sopan Gujar, (1999) 3
SCC 722], this Court has explained the position of law as
under : (SCC pp. 725-26, para 6)
“6. If the question of law termed as a substantial
question stands already decided by a larger Bench
of the High Court concerned or by the Privy Council
or by the Federal Court or by the Supreme Court, its
merely wrong application on the facts of the case
33
2026:HHC:10674
would not be termed to be a substantial question of
law. Where a point of law has not been pleaded or is
found to be arising between the parties in the
absence of any factual format, a litigant should not
be allowed to raise that question as a substantial
question of law in a second appeal. The mere
appreciation of the facts, the documentary evidence
or the meaning of entries and the contents of the
document cannot be held to be raising a substantial
question of law. But where it is found that the first
appellate court has assumed jurisdiction which did
not vest in it, the same can be adjudicated in the
second appeal, treating it as a substantial question
of law. Where the first appellate court is shown to
have exercised its discretion in a judicial manner, it
cannot be termed to be an error either of law or of
procedure requiring interference in the second
appeal.”
12. In view of the above position of law, the question
formulated by the High Court in the present case, as
quoted above, cannot be termed a question of law, much
less a substantial question of law. The above question
formulated is nothing but a question of fact. Merely for
the reason that, on appreciation of evidence, another
view could have been taken, it cannot be said that the
High Court can assume the jurisdiction by terming such a
question as a substantial question of law.
13. Having gone through the impugned order challenged
before us and after considering the submissions of the
learned counsel for the parties, we are of the view that the
High Court has simply re-appreciated the evidence on
record and allowed the second appeal and remanded the
matter to the trial court.”
34. A similar view was taken in Narendra v. Ajabrao,
(2018) 11 SCC 564, wherein it was observed:-
34
2026:HHC:10674
“17. In the first place, we find that the High Court
decided the second appeal like a first appea l under
Section 96 of the Code inasmuch as the High Court went
on appreciating the entire oral evidence and reversed the
findings of fact of the first appellate court on the
question of adverse possession. Such an approach of the
High Court, in our opinion, was not permissible in law.
18. Second, the High Court failed to see that a plea of
adverse possession is essentially a plea based on facts,
and once the two courts, on appreciating the evidence,
recorded that a finding may be of reversal, such a finding
is binding on the second appellate court. It is more so as
it did not involve any question of law, much less a
substantial question of law. This aspect of law was also
overlooked by the High Court.
19. Third, the High Court has the jurisdiction, in
appropriate cases, to interfere in the finding of fact
provided such finding is found to be wholly perverse to
the extent that no judicial person could ever record such
a finding or when it is found to be against any settled
principle of law, pleadings or evidence. Such errors
constitute a question of law and empower the High Court
to interfere. However, we do not find any such error
here.”
35. It was held in Ramathal v. Maruthathal, (2018) 18 SCC
303, that it is not appropriate for the High Court to disturb the
concurrent findings of facts by re-appreciating the evidence and
its jurisdiction is confined to the substantial question of law. It
was observed:-
“13. It was not appropriate for the High Court to embark
upon the task of reappreciation of evidence in the second
appeal and disturb the concurrent findings of fact of the
courts below, which are the fact-finding courts. At this
35
2026:HHC:10674
juncture, for better appreciation, we deem it appropriate
to extract Sections 100 and 103 CPC, which read as
follows:
“100. Second appeal.—(1) Save as otherwise
expressly provided in the body of this Code or by
any other law for the time being in force, an appeal
shall lie to the High Court from every decree
passed in appeal by any court subordinate to the
High Court, if the High Court is satisfied that the
case involves a substantial question of law.
(2) An appeal may lie under this section from an
appellate decree passed ex parte.
(3) In an appeal under this section, the
memorandum of appeal shall precisely state the
substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a
substantial question of law is involved in any case,
it shall formulate that question.
(5) The appeal shall be heard on the question so
formulated, and the respondent shall, at the
hearing of the appeal, be allowed to argue that the
case does not involve such a question:
***
103. Power of the High Court to determine issues of
fact.— In any second appeal, the High Court may,
if the evidence on the record is sufficient,
determine any issue necessary for the disposal of
the appeal—
(a) which has not been determined by the lower
appellate court or by the court of first instance,
and the lower appellate court, or
(b) which has been wrongly determined by such
court or courts by reason of a decision on such
question of law as is referred to in Section 100.”
36
2026:HHC:10674
14. A clear reading of Sections 100 and 103 CPC envisages
that a burden is placed upon the appellant to state in the
memorandum of grounds of appeal the substantial
question of law that is involved in the appeal, then the
High Court being satisfied that such a substantial
question of law arises for its consideration has to
formulate the questions of law and decide the appeal.
Hence, a prerequisite for entertaining a second appeal is a
substantial question of law involved in the case, which
has to be adjudicated by the High Court. It is the intention
of the legislature to limit the scope of a second appeal
only when a substantial question of law is involved, and
the amendment made to Section 100 makes the legislative
intent clearer that it never wanted the High Court to be a
fact-finding court. However, it is not an absolute rule that
the High Court cannot interfere in a second appeal on a
question of fact. Section 103 CPC enables the High Court to
consider the evidence when the same has been wrongly
determined by the courts below, on which a substantial
question of law arises, as referred to in Section 100. When
the appreciation of evidence suffers from material
irregularities, and when there is perversity in the findings
of the court which are not based on any material, the
court is empowered to interfere on a question of fact as
well. Unless and until there is absolute perversity, it
would not be appropriate for the High Courts to interfere
in a question of fact just because two views are possible;
in such circumstances, the High Courts should refrain
from exercising the jurisdiction on a question of fact.
15. When the intention of the legislature is so clear, the
courts have no power to enlarge the scope of Section 100
for whatsoever reasons. Justice has to be administered in
accordance with the law. In the case at hand, the High
Court has exceeded its jurisdiction by reversing the well-
considered judgment of the courts below, which is based
on cogent reasoning. The learned Judge ought not to have
entered the arena of reappreciation of the evidence, hence
37
2026:HHC:10674
the whole exercise done by the High Court is beyond the
scope and jurisdiction conferred under Section 100 CPC.”
36. It was laid down by the Hon’ble Supreme Court in
Gurnam Singh v. Lehna Singh, (2019) 7 SCC 641 : (2019) 3 SCC (Civ)
709: 2019 SCC OnLine SC 374, that where the First Appellate Court
had appreciated the facts regarding the execution of the Will, it
is not permissible for the High Court to interfere with this
findings of fact in second appeal under Section 100 of CPC. It was
observed:
“15. Applying the law laid down by this Court in the
aforesaid decisions to the facts of the case on hand, we are
of the opinion that the High Co urt has erred in
reappreciating the evidence on record in the second
appeal under Section 100 CPC. The High Court has
materially erred in interfering with the findings recorded
by the first appellate court, which were on reappreciation
of evidence, which was permissible by the first appellate
court in the exercise of powers under Section 96 CPC.
Cogent reasons, on appreciation of the evidence, were
given by the first appellate court. The first appellate court
dealt with, in detail, the so -called suspicious
circumstances which weighed with the learned trial court,
and thereafter it came to the conclusion that the will,
which as such was a registered will, was genuine and did
not suffer from any suspicious circumstances. The
findings recorded by the first appe llate court are
reproduced hereinabove. Therefore, while passing the
impugned judgment and order [ Lehna Singh v. Gurnam
Singh, Civil Regular Second Appeal No. 2191 of 1985, order
dated 27-11-2007 (P&H)], the High Court has exceeded its
jurisdiction while deciding the second appeal under
Section 100 CPC.”
38
2026:HHC:10674
37. Similarly, it was held in C. Doddanarayana Reddy v. C.
Jayarama Reddy, (2020) 4 SCC 659, that the High Court cannot
interfere with the concurrent findings of fact unless there is
perversity or the same is de hors the evidence led before the
Courts:
“25. The question as to whether a substantial question of
law arises has been a subject matter of interpretation by
this Court. In the judgment in Karnataka Board of Wakf v.
Anjuman-E-Ismail Madris-Un-Niswan [Karnataka Board
of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, (1999) 6
SCC 343], it was held that findings of fact could not have
been interfered with in the second appeal. This Court held
as under : (SCC pp. 347-48, paras 12-15)
“12. This Court had repeatedly held that the power
of the High Court to interfere in a second appeal
under Section 100 CPC is limited solely to deciding
a substantial question of law if at all the same
arises in the case. It has deprecated the practice of
the High Court routinely interfering in pure
findings of fact reached by the courts below ,
without coming to the conclusion that the said
finding of fact is either perverse or not based on
material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu [Ramanuja
Naidu v. V. Kanniah Naidu, (1996) 3 SCC 392], this Court
held : (SCC p. 393)
‘It is now well settled that concurrent findings of
fact of the trial court and the first appellate court
cannot be interfered with by the High Court in the
exercise of its jurisdiction under Section 100 of the
Civil Procedure Code. The Single Judge of the High
Court totally misconceived his jurisdiction in
39
2026:HHC:10674
deciding the second appeal under Section 100 of
the Code in the way he did.’
14. In Navaneethammal v. Arjuna Chetty [Navaneethammal
v. Arjuna Chetty, (1996) 6 SCC 166], this Court held : (SCC p.
166)
‘Interference with the concurrent findings of the
courts below by the High Court under Section 100
CPC must be avoided unless warranted by
compelling reasons. In any case, the High Court is
not expected to reappreciate the evidence just to
replace the findings of the lower courts. … Even
assuming that another view is possible on a
reappreciation of the same evidence, that should
not have been done by the High Court as it cannot
be said that the view taken by the first appellate
court was based on no material.’
15. And again in Taliparamba Education Society v.
Moothedath MallisseriIllath M.N. [Taliparamba Education
Society v. Moothedath MallisseriIllath M.N., (1997) 4 SCC
484], this Court held : (SCC p. 486, para 5)
5. … The High Court was grossly in error in
trenching upon the appreciation of evidence under
Section 100 CPC and recording a reverse finding of
fact, which is impermissible.”
38. Thus, it is not permissible for this Court to
reappreciate the evidence when no perversity has been shown.
Since, in the present case, the learned Courts below have
recorded their findings on the evidence, it is not permissible to
interfere with the same.
39. The Will (Ext.PW-2/A) mentions that Saju was kept
with the condition that if he would faithfully serve and hand
40
2026:HHC:10674
over all the income to Padu during his lifetime, Padu would hand
over his daughter, Hima, to Saju. In case no son was born to
Padu, the property would be handed over to Hima and Saju after
the death of Padu.
40. Tara Chand (PW -2) also stated that Padu had
expressed a desire that Saju would serve Padu and his wife and
would hand over the income to Padu; thus, it was a conditional
will and would come into effect on the fulfilment of the
condition.
41. Hima Devi (PW-1) stated that the land belonged to
her father. She had married Saju. She and Saju used to look after
the property. Her father had expressed a desire that the
property would be owned by her, after his death. She remained
in possession of the property. She has nowhere stated in her-
examination-in-chief that Saju had served Padu and his wife
and handed the income over to him. Thus, her statement does
not show that the conditions laid down in the Will were satisfied.
42. Narainu (PW-3) stated in his examination-in-chief
that Saju used to cultivate the land of Padu. Saju and his wife,
Hima, used to serve Padu and his wife. This witness has not
41
2026:HHC:10674
stated that Sanju used to hand over the income of the property
to Padu as desired by him in the W ill; therefore, the Will
propounded by the plaintiffs does not confer an indefensible
right or title on the appellants as the necessary condition laid
down in the Will was not fulfilled.
43. In view of the above, the present appeal fails, and it is
dismissed, so also the pending application(s), if any.
44. The record of the learned Courts below be returned
alongwith a copy of this judgment.
(Rakesh Kainthla)
Judge
07
th
April, 2026
(ravinder)
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