The appellant challenged the execution of a Will propounded by respondents in a civil suit. The High Court dismissed a Second Appeal, holding that the lower courts' concurrent findings of fact on the validity of the Will were not open to re-appreciation, and rejected a plea for additional handwriting expert evidence.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
2026:HHC:12754
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 356 of 2009 Reserved on: 11.03.2026 Date of Decision: 22.04.2026
Amar Chand (deceased) through LRs ...Appellants.
Versus
Banarsi Dass and Ors ...Respondents.
Coram
Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?1 Yes.
For the Appellants : M/s Deepak Gupta, Rahul Sharma and Avnish Mandhotra, Advocates. For Respondents No.1 to 7, 9 : M/s Rohit Sharma and Anuj and 10 Gupta, Advocates. Respondent No.8 proceeded against ex parte vide order dated 07.03.2025
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
and decree dated 23.05.2009 passed by learned Additional
District Judge (II) Kangra at Dharamshala (learned Appellate
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
2
2026:HHC:12754
Court) vide which the judgment and decree dated 31.12.2003
passed by learned Civil Judge (Junior Division), Dehra (II), District Kangra, H.P. (learned Trial Court) were affirmed. (Parties shall hereinafter be referred to in the same manner as they were arrayed before the learned Trial Court for convenience) .
3
2026:HHC:12754
and Rulia Ram had no right to execute any Will in favour of defendant No.1 beyond 1/4th share as coparcener and the Will dated 31.05.1993 executed in favour of defendant No.1 beyond 1/4th share is wrong, illegal, null and void, which does not affect the rights of the parties.
4
2026:HHC:12754
affect the rights of the plaintiffs. The defendants interfered with the suit land and threatened to change its nature, and cut and remove the standing trees existing on the suit land, despite requests. Hence, the suit was filed to seek the relief mentioned above.
5
2026:HHC:12754
plaintiff was never on talking terms with his parents after 1973. Amar Chand was taking their care. The plaintiff and his family members never remained in the village, and they never cared for Rulia Ram. Mother of the parties expired in the year 1991, and her share was given to defendant No.1 by executing another registered will on 31.05.1993. The plaintiffs never remained associated in the last rites of their mother, and all the ceremonies were performed by defendant No.1. Rulia Ram has delivered the possession of the property to various parties during his lifetime. It was admitted that mutation No. 40 was attested by the revenue authorities. However, it was denied that the mutation was wrong. The ancestral nature of the property was also denied. Hence, it was prayed that the suit be dismissed.
6
2026:HHC:12754
No. 4 admitting the execution of the Will dated 24.05.1995 and praying that the suit be decreed.
on 03.03.2000 and an additional issue on 13.02.2002: -
and the plaintiffs examined Jagjit Singh (PW1), Banarsi Dass (PW2), Shamsher Singh (PW3), Mohinder Singh (PW4), Prithi Chand (PW5), Om Parkash (PW6), Banarsi Dass (PW7) and Jagannath (PW8). The defendant examined defendant No.1 Amar
7
2026:HHC:12754
Chand (DW1), Deep Raj (DW2), Karam Chand (DW3), Salig Ram (DW4), Jiwan Dass (DW5) and Pushpa Devi (DW6).
8
2026:HHC:12754
the learned Trial Court that the execution of the Will propounded by the plaintiffs was duly proved. There were no suspicious circumstances surrounding the execution and attestation of the Will. The execution of the Will could not be doubted simply because the Will was not registered. There was no evidence that Rulia Ram was not of sound disposing state of mind at the time of the execution of the Will. The Court will not interfere with the Will simply because it finds that the property was bequeathed inequitably. The whole idea behind the execution of the Will is to disturb the natural line of succession, and the disinheritance of a successor is not a suspicious circumstance. Learned Trial Court had taken a reasonable view of the matter. Hence, the appeal was dismissed.
9
2026:HHC:12754
(i) M.L. Abdul Jabhar Sahib Vs. H.V. Venkata Sastri & Sons & ors. AIR 1969 SC 1147;
10
2026:HHC:12754
11
2026:HHC:12754
12
2026:HHC:12754
submissions made at the bar and have gone through the records carefully.
CMP No. 625 of 2011
19. Application stands disposed of.
CMP No. 454 of 2011
13
2026:HHC:12754
Rulia Ram in the Will dated 24.05.1995. It has been asserted that the signatures of Rulia Ram on the Will dated 24.05.1995 are forged as they do not tally with the signatures of Rulia Ram. The opinion of the expert was annexed as Annexure-PA4. This opinion was not available and was obtained on 20.03.2010. The whole controversy between the parties relates to the execution of the Will, and the report of the handwriting expert is essential to resolve the controversy. Hence, it was prayed that the present application be allowed and the handwriting expert be summoned to prove his report.
14
2026:HHC:12754
“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
15
2026:HHC:12754
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.”
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 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 receive additional documents.”
16
2026:HHC:12754
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 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)].
17
2026:HHC:12754
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 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 subclause. 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’.”
18
2026:HHC:12754
judgment in a more satisfactory manner, has to be considered by the Court at the time of hearing of the appeal on merits.”
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:
“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:
19
2026:HHC:12754
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 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
20
2026:HHC:12754
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 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
21
2026:HHC:12754
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 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.
22
2026:HHC:12754
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, 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.”
and since no reason has been assigned for not obtaining the
23
2026:HHC:12754
report or proving it before the learned Courts below, therefore the application cannot be allowed and is dismissed.
Substantial Question of Law :
“ 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;
24
2026:HHC:12754
( 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;
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 content 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;
25
2026:HHC:12754
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 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.”
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
26
2026:HHC:12754
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, one cannot insist on proof with mathematical certainty.
27
2026:HHC:12754
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 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.
28
2026:HHC:12754
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 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 circumstances exist, 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 ).
29
2026:HHC:12754
30
2026:HHC:12754
her presence and in the presence of the witnesses at Thehra. She had gone to Thehra to enquire about the well-being of her father. She stated in her cross-examination by learned counsel for the plaintiffs that the Will was written by Shamsher Singh (PW3) as per the directions of Rulia Ram. She and Mohinder Singh (PW4) were present at the time of the writing of the Will. Rulia Ram had put his signature in her presence. She and Mohinder Singh (PW4) had put their signatures at the instance of Rulia Ram. She stated in her cross-examination by learned counsel for defendant No. 1 that Rulia Ram had separated his sons after the death of his wife. Rulia Ram died due to a stomachache. Amar Chand used to take Rulia Ram to Hamipur and Dharamshala. She volunteered to say that Bidhi Chand was residing in the village, and he used to take Rulia Ram to the hospital. She denied that Rulia Ram had executed a Will on 31.05.1993. She stated that Rulia Ram had not told this fact to anyone, including her. She had voluntarily gone to her parental home to enquire about the well-being of Rulia Ram. Mohinder Singh (PW4) and Shamsher Singh (PW3) did not belong to her community or the village. Rulia Ram was 71–72 years of age at the time of his death. His hands used to tremble. Shamsher
31
2026:HHC:12754
Singh (PW3) had visited the house voluntarily and was not called by any person. The Will was written at about 10-11 AM. She returned on the same day. She denied that she was making a false statement at the instance of Bidhi Chand and Banarsi Dass.
32
2026:HHC:12754
33
2026:HHC:12754
Rulia Ram disclosed that he had earlier executed the wills, but he wanted to settle the dispute.
34
2026:HHC:12754
of the Will. Pushpa Devi (DW6) was already present at the house. Mohinder Singh (PW4) arrived about one hour after his arrival. The rough draft of the Will was prepared first, and the writing of the Will was completed by 11 AM. He returned at about 11:45 AM. The rough draft was torn. It took about 15-20 minutes to write the Will. He and Mohinder Singh (PW4) returned together, and Bidhi Chand remained in the house. The age of Rulia Ram was about 70 years. Rulia Ram had only put signatures in his presence once on the date of execution of the Will. Amar Chand and his family members also used to reside in the same house in which Rulia Ram was residing. Amar Chand, etc., used to reside in another room. The last rites of Rulia Ram were performed by Amar Chand. He admitted that Amar Chand had got Rulia Ram treated at Dharamshala, Jawalamukhi and Hamipur. He volunteered to say that Bidhi Chand had also got Rulia Ram treated. Rulia Ram was an educated person. The Will was written with the help of a pen brought by him because he always keeps the pen with him and had also brought the pen to the Court with him. He denied that no Will was executed by Rulia Ram, and he was making a false statement.
35
2026:HHC:12754
contradictions in the statements of the witnesses, which make the execution of the Will highly suspicious. This submission cannot be accepted. It was laid down by the Hon'ble Supreme Court in Meenakshiammal v. Chandrasekaran, (2005) 1 SCC 280 = 2004 SCC OnLine SC 1397 that the suspicion must be one inherent in the transaction itself and not a suspicion that arises from a conflict of testimonies. It was observed:
“20. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao, AIR 1962 AP 178, the Court, while discussing the provisions of Section 63 of the Succession Act, 1925, has held that the suspicion alleged must be one inherent in the transaction itself and not the doubt that may arise from a conflict of testimony which becomes apparent on an investigation of the transaction. That suspicious circumstances cannot be defined precisely. They cannot be enumerated exhaustively. They must depend upon the facts of each case. When a question arises as to whether a will is genuine or forged, normally, the fact that nothing can be said against the reasonable nature of its provisions will be a strong and material element in favour of the probabilities of the will. Whether a will has been executed by the testator in a sound and disposing state of mind is purely a question of fact, which will have to be decided in each case on the circumstances disclosed and the nature and quality of the evidence adduced. When the will is alleged to have been executed under undue influence, the onus of proving undue influence is upon the person making
36
2026:HHC:12754
such allegation, and the mere presence of motive and opportunity are not enough.”
v. Savitri Devi, 1996 SCC OnLine HP 12= AIR 1997 HP 43 that contradictions in the statements of witnesses do not amount to suspicious circumstances. It was held:
“23. The District Judge has relied heavily on the contradictions appearing in the depositions of DW.1 Satya Devi, DW. 2 Keshav Ram, DW 3 Sher Singh and DW.4 Amar Singh with regard to the execution of the Will. Such contradictions, which are of a minor nature, will not be a suspicious circumstance. The memory fades away with the passage of time, and when evidence is being given after a lapse of six years, the witnesses cannot be expected to make a parrot-like statement on each and every minor aspect of the cast Therefore, the District Judge has erred in relying upon such minor contradictions coming in the statements of various witnesses.”
discard the Will.
37
2026:HHC:12754
“12. In Ishwar Dutt v. Smt. Leela Devi and others, 1997 (1) SLJ 684, a question arose whether the joining of attesting witnesses who did not belong to the village of the testator would be a suspicious circumstance. It was held that the mere fact that attesting witnesses are not from the village of the testator would not be a suspicious circumstance.
OnLine HP 1008 = 2019 (3) Civil Court Cases 564 , that a Will cannot be doubted on the ground that the attesting witnesses did not belong to the village of the testator.
38
2026:HHC:12754
writing the Will, and this is a suspicious circumstance. This submission cannot be accepted. It was laid down by the Punjab & Haryana High Court in Tirath Singh Versus Sajjan Singh 1997 (2) Civil Court Cases 299 (P&H) that the participation by the beneficiary is not a suspicious circumstance when he had not influenced the wishes of the testator. It was held:
“Kartar Singh (D.W.3) also stated in his crossexamination that when they started from the village, he, Tirath Singh, Ralla, Harbhajan Singh, and Karnail Singh were together. According to the learned counsel for the respondent, it clearly goes to show that Tirath Singh and Karnail Singh, the appellants, had taken an active part in getting the Will executed from Ralla in their favour. There is no substance in this contention. It was not elicited from Gobind Parshad (D.W.2) and Kartar Singh (D.W.3) as to how and in what manner Tirath Singh and Karnail Singh had taken an active part in the execution of the Will, or that Ralla was influenced by them to execute that Will in their favour. The mere fact that at the time of scribing the Will, they were present or that they had accompanied Ralla from the village to the Court compound where the Will was scribed, is not sufficient to draw an inference that they had exercised any undue influence on Ralla and, under the influence, Ralla had executed the Will in their favour.”
SCC OnLine HP 20 = AIR 2000 HP 7 that the mere presence of the beneficiary does not establish the exercise of undue influence in the execution of the Will. It was held:
39
2026:HHC:12754
“Otherwise, also, the presence of the beneficiary or such beneficiary accompanying the testator for the execution of a Will would not show that undue influence was exercised by the beneficiary in the execution of the Will. The Will was registered on the same day, and the endorsement of the Sub-Registrar shows that the contents of the Will were read over and explained to Shri Dilu by the Sub-Registrar, who admitted the contents to be correct. It is now well settled that the mere presence of the beneficiary or their accompanying the testator would not show the exercise of undue influence in the execution of the Will (See Tirath Singh v. Sajjan Singh (Died) through his LRs. 1998 (1) SLJ 232). In Gun Parkash v. Bhola Nath, AIR 1997 Him Pra 27 , the Will was scribed in the presence of family members of the beneficiary. The testator was an old lady, and her natural heirs were deprived by her. In this context, it was observed :
"No doubt, the presence of the family members of the defendants has been stated to be there by the plaintiff's witnesses, but that by itself will not make the Will suspicious unless something more than that is established. The Will in question in the instant case is registered, and the deceased was identified by an Advocate before the Sub-Registrar. Simply because the testator was an old lady and natural heirs have been deprived by her is not by itself a suspicious circumstance to discard the same......."
40
2026:HHC:12754
was accompanying the testatrix, who was at an advanced age, is not a suspicious circumstance. It was held:
of all the sons by excluding the daughters. No unequal benefit was granted to the plaintiffs. Therefore, the mere fact that the plaintiff Bidhi Chand had called Mohinder Singh (PW4) or had produced the document will not make the execution of the Will suspicious.
41
2026:HHC:12754
“5. Sh. K D. Sood, learned Counsel for Sh. Baru Ram and others, has urged that since the will was registered, a presumption of its correctness and genuineness arises in the facts and circumstances of the present case This argument deserves to be rejected outrightly in view of the law laid down in Gopal Das and another v. Sri Thakurji and other, AIR 1943 Privy Council 83 , that even after the endorsement of Registrar made under section 60 (2) of the Registration Act is proved, it remains to be shown that the person admitting execution before the Registrar was Balandue The registration of the will does not create any presumption of its genuineness, which is to be proved independently and statement of the Registrar is only a piece of evidence which is to be assessed to judge how far it proves that the execution of the will is in accordance with section 63 of Indian Succession Act It is to be kept in mind that the Registrar cannot be a statutory attesting witness. (Please refer to Karri Nokarajuv. Putra Venkatarao and others AIR 1974 And Pra 13; In the Goods of Late Shri C. Rai, Barrister-at-law, 1980 RLR 346, Punjab and Haryana High Court; Labh Singh and others v. Piara Singh (deceased by L Rs ) and another, AIR 1984 P & H. 270 and Dharam Singh v. A. S. O and another, 1990 (Supp) SCC 684 .”
2010 Latest HLJ 992 that no presumption applies to a registered Will. It was observed:
42
2026:HHC:12754
the registered Will about its genuineness.
43
2026:HHC:12754
the village for about 17 years. The relationship of Rulia Ram
remained cordial with his 3 daughters. He volunteered to say that the relationship with Kamlesh was not cordial. He admitted that Rulia Ram used to cultivate the land himself.
“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 Gyanoba Patil, 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
44
2026:HHC:12754
talk about the execution of Will was held. The witness, Sheikh Nabi, however, deposed that the talk 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 Lachiram 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
45
2026:HHC:12754
was hardly any scope or a valid reason for the High Court to interfere with .
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 provisions 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).
“13. The High Court, while exercising its jurisdiction under Section 100 of the Code of Civil Procedure, exercises
46
2026:HHC:12754
a limited jurisdiction. It may interfere with a finding of fact arrived at by the trial court and/or the first appellate court only in the event that a substantial question of law arises for its consideration.
“ 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
47
2026:HHC:12754
or by the Federal Court or by the Supreme Court, its merely wrong application on the facts of the case 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.”
(2018) 11 SCC 564 , wherein it was observed: -
48
2026:HHC:12754
“17. In the first place, we find that the High Court decided the second appeal like a first appeal 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.”
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
49
2026:HHC:12754
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.”
50
2026:HHC:12754
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 wellconsidered 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
51
2026:HHC:12754
the whole exercise done by the High Court is beyond the scope and jurisdiction conferred under Section 100 CPC.”
“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 Court 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 appellate 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.”
52
2026:HHC:12754
58. 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
53
2026:HHC:12754
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.”
through LRs & ors. (supra) wherein it was observed at page 210:
“32.3. The general rule is that the High Court will not interfere with findings of fact arrived at by the courts below. But it is not an absolute rule. Some of the wellrecognised exceptions are where ( i ) the courts below have ignored material evidence or acted on no evidence; ( ii ) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or ( iii ) the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence”, it not only refers to
54
2026:HHC:12754
cases where there is a total dearth of evidence, but also refers to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding.”
Final order:
dismissed.
forthwith.
55
2026:HHC:12754
CMP No. 16181 of 2024
( Rakesh Kainthla) Judge
22nd April, 2026 (Nikita)
3 issues framed by the court
Whether the High Court can interfere with concurrent findings of fact regarding the execution of a Will in a second appeal under Section 100 CPC?
Whether additional evidence can be admitted in appellate proceedings under Order 41 Rule 27 CPC?
Whether the Will in question was executed by the testator in a sound disposing state of mind free from suspicious circumstances?
Colour shows how this judgement treated each authority
M.L. Abdul Jabhar Sahib Vs. H.V. Venkata Sastri & Sons & ors.Referred¶62
M.L. Abdul Jabhar Sahib Vs. H.V. Venkata Sastri & Sons & ors. AIR 1969 SC 1147 · Who else cites this
Jagdish Chand Sharma Vs. Narain Singh Saini (dead) through LRs & ors.Referred¶65
Jagdish Chand Sharma Vs. Narain Singh Saini (dead) through LRs & ors. (2015) 8 SCC 615 · Who else cites this
Benga Behera and Anr Vs. Braja Kishore Nanda and othersReferred¶67
Benga Behera and Anr Vs. Braja Kishore Nanda and others (2007) 9 SCC 728 · Who else cites this
Janki Narayan Bhoir vs. Narayan Namdeo KadamReferred¶67
Janki Narayan Bhoir vs. Narayan Namdeo Kadam (2003) 2 SCC 91 · Who else cites this
Sopanrao v. Syed MehmoodRelied on¶105
Sopanrao v. Syed Mehmood, (2019) 7 SCC 76 · Who else cites this
Jagdish Prasad Patel v. ShivnathRelied on¶110
Jagdish Prasad Patel v. Shivnath, (2019) 6 SCC 82 · Who else cites this
North Eastern Railway Administration. vs. Bhagwan DasRelied on¶117
North Eastern Railway Administration. vs. Bhagwan Das, (2008) 8 SCC 511 · Who else cites this
Parsotim Thakur v. Lal Mohar ThakurRelied on¶129
Parsotim Thakur v. Lal Mohar Thakur [AIR 1931 PC 143] · Who else cites this
K. Venkataramiah v. A. Seetharama ReddyRelied on¶133
K. Venkataramiah v. A. Seetharama Reddy [AIR 1963 SC 1526 : (1964) 2 SCR 35] · Who else cites this
Gobind Singh v. Union of IndiaRelied on¶135
Gobind Singh v. Union of India, 2026 SCC OnLine SC 339 · Who else cites this
State of Karnataka v. K.C. SubramanyaRelied on¶159
State of Karnataka v. K.C. Subramanya (2014) 13 SCC 468 · Who else cites this
Meena Pradhan v. Kamla PradhanRelied on¶174
Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734 · Who else cites this
Gurdial Singh v. Jagir KaurRelied on¶195
Gurdial Singh v. Jagir Kaur, 2025 SCC OnLine SC 1466 · Who else cites this
Smt. Jaswant Kaur v. Smt. Amrit KaurRelied on¶200
Smt. Jaswant Kaur v. Smt. Amrit Kaur (1977) 1 SCC 369 · Who else cites this
H. Venkatachala Iyengar v. B.N. ThimmajammaRelied on¶200
H. Venkatachala Iyengar v. B.N. Thimmajamma 1959 Supp (1) SCR 426 · Who else cites this
Ram Piari v. BhagwantRelied on¶215
Ram Piari v. Bhagwant (1993) 3 SCC 364 · Who else cites this
Meenakshiammal v. ChandrasekaranRelied on¶244
Meenakshiammal v. Chandrasekaran, (2005) 1 SCC 280 · Who else cites this
Naudha alias Budhia Versus Sudershan SinghRelied on¶257
Naudha alias Budhia Versus Sudershan Singh 1998 (1) S.L.C. 388
Ishwar Dutt v. Smt. Leela Devi and othersRelied on¶258
Ishwar Dutt v. Smt. Leela Devi and others, 1997 (1) SLJ 684
Tara Singh v. Smt Shanti and othersRelied on¶259
Tara Singh v. Smt Shanti and others, 1988 PLJ 77
Jagdish v. Shibi DeviRelied on¶261
Jagdish v. Shibi Devi, 2019 SCC OnLine HP 1008 · Who else cites this
Tirath Singh Versus Sajjan SinghRelied on¶266
Tirath Singh Versus Sajjan Singh 1997 (2) Civil Court Cases 299 (P&H)
Leela v. Drumti DeviRelied on¶268
Leela v. Drumti Devi, 2000 SCC OnLine HP 20 · Who else cites this
Kartar Chand Versus Mathura DassRelied on¶275
Kartar Chand Versus Mathura Dass 2004 Latest HLJ 105
Baru Ram Versus KishanRelied on¶282
Baru Ram Versus Kishan 1992(1) Shim. L.C. 115
4 provisions across 3 enactments
Amar Chand (deceased) through LRs
Banarsi Dass and Ors
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
