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2009 DIGILAW 331 (HP)

VIJAY DEVI v. NAVENDRA SINGH KATOCH

2009-04-10

DEEPAK GUPTA, V.K.AHUJA

body2009
JUDGMENT Deepak Gupta, J. :-The present appeal and cross objections are directed against the JUDGMENT and decree dated 4.10.2002 delivered by a learned Single Judge of this Court in Civil Suit No. 14 of 1996 titled Navendra Singh Katoch vs. Vijay Devi and another. 2. Maharaja Ranvijay Singh S/o late Bir Bikram Singh was the original owner of the property in dispute. He expired on 4.7.1955 leaving behind a widow Smt. Kalindi Devi and two daughters Smt. Maya Devi (defendant NO.2) and Smt. Swaroop Kumari. The plaintiff Navendra Singh is the son of defendant No.2. Smt. Kalindi Devi died on 21.2.1973 while her daughter Smt. Swaroop Kumari died issueless on 25.2.1990. The plaintiff filed the suit in the High Court claiming that Maharaja Ranvijay Singh had executed a Will dated 21.2.1949. As per this Will he had given certain rights in his estate to his widow, which rights were to devolve upon his two daughters, Smt. Maya Devi and Smt. Swaroop Kumari, after the death of his widow. According to the plaintiff, after the death of the two daughters the entire estate was to devolve on the eldest male child of such daughters and since the plaintiff is the only male child in the family the entire estate has devolved upon him. Smt. Swaroop Kumari died issueless on 25.2.1990 at the age of about 70 years. According to the plaintiff, defendant No.1 Vijay Kumari taking advantage of the old age and ill health of the deceased Smt. Swaroop Kumari, manipulated and procured a Will in her favour in the month of May, 1988. The plaintiff came to know about the Will only when the defendant No.1 approached the Tehsildar, Nahan, for attestation of the mutation of inheritance qua the estate of deceased Smt. Swaroop Kumari in her favour on the basis of the said Will. This mutation was sanctioned in favour of defendant No.1. Appeal preferred by the plaintiff against the said order was dismissed on the ground that complicated questions of facts and law were involved which could be decided only by a competent Civil Court. The plaintiff challenged the validity of the Will and also alleged that Smt. Swaroop Kumari did not have any right to execute the Will in view of the fact that she only had a limited estate as per the Will of late Maharaja Ranvijay Singh. 3. The suit was contested by defendant No.1. The plaintiff challenged the validity of the Will and also alleged that Smt. Swaroop Kumari did not have any right to execute the Will in view of the fact that she only had a limited estate as per the Will of late Maharaja Ranvijay Singh. 3. The suit was contested by defendant No.1. She claimed that her family and the family of late Maharaja Ranvijay Singh were neighbours and were having very cordial relations. The defendant No.1 alleged that deceased Swaroop Kumari used to treat her like a daughter and she had executed a Will dated 24.5.1988 in a sound disposing mind out of her own free will and consent. The defendant No.1 also alleged that no will had been executed by Maharaja Ranvijay Singh on 21.2.1949. 4. On the pleadings of the parties, the following issues were framed:- 1. Whether the suit is not maintainable, as alleged? OPD-1 2. Whether the suit is collusive between the plaintiff and defendant No.2 as alleged? If so, to what effect? OPD-1 3. Whether the plaintiff is estopped from filing the present suit by his own acts and conduct? OPD-1 4. Whether Maharani Kalindi Devi was a lmited owner, as alleged? If so, to what effect? OPP. 5.Whether Maharani Kalindi Devi had executed a valid will in favour of the plaintiff on 19th August, 1963, as alleged? OPP. 5-A. Whether Maharaja Ranvijay Singh had executed a valid will in favour of the plaintiff on 21.2.1949 as alleged? OPP. 6. Whether Rani Swaroop Kumari has executed a valid will on 24.5.1988 in favour of the defendant No.1 as alleged? OPD-1 7. Whether the orders passed by the Collector on 18.10.1993 and by the Divisional Commissioner on 6.8.1995 are illegal, null and void, as alleged? If so, to what effect? OPP. 8. Relief. 5. Issues No. 1 and 3 were not pressed by the defendant No.1. Issues No. 2 and 6 were decided against the defendant No.1. Issue No.4 was decided against the plaintiff. Issues No. 5, 5-A and 7 were decided in favour of the plaintiff. The Will dated 24.5.1988 allegedly executed by Smt. Swaroop Kumari was held to be not proved. However, it was held that Smt. Swaroop Kumari had full right to alienate and encumber the property falling to her share. Issue No.4 was decided against the plaintiff. Issues No. 5, 5-A and 7 were decided in favour of the plaintiff. The Will dated 24.5.1988 allegedly executed by Smt. Swaroop Kumari was held to be not proved. However, it was held that Smt. Swaroop Kumari had full right to alienate and encumber the property falling to her share. The suit of the plaintiff was, however, dismissed on the ground that Rani Kalindi Devi, grand-mother of the plaintiff, became absolute owner of the property on coming into force of the Hindu Succession Act, 1956, as alleged by the plaintiff himself. Smt. Swaroop Kumari was held to be full owner of her own share. It was held that she died intestate and since her sister, Maya Devi, mother of the plaintiff, was alive, the plaintiff had no right to inherit the property of Smt. Swaroop Kumari under Section 15(2)(a) of the Hindu Succession Act, 1956. Therefore, the suit filed by the plaintiff was dismissed. However, it was held that Smt. Swaroop Kumari had full right to alienate and encumber the property falling to her share. The orders passed by the Collector and the Divisional Commissioner were held to be illegal, null and void. 6. Though the suit filed by the plaintiff was dismissed the defendant No.1 has filed the present appeal challenging the findings and JUDGMENT of the learned trial Court in respect of issues 6 and 7. The plaintiff has raised a preliminary objection to the maintainability of the appeal but has also filed cross-objections challenging the finding of the trial Court in respect of issue No. 4 and partly in respect of issue No. 5-A. Firstly, we shall deal with the preliminary objections raised on behalf of the plaintiff-respondent. Shri Bhupender Gupta, Sr. Advocate learned counsel appearing on behalf of the respondent has urged that an appeal lies only against a decree and since no decree has been passed against the appellant the appeal is not maintainable. On the other hand, Shri Kapil Dev Sood, Advocate, learned counsel for the appellant has urged that under Section 10 of the Delhi High Court Act, 1966 (as applicable to the State of Himachal Pradesh vide State of Himachal Pradesh Act, 1970) an appeal lies against a JUDGMENT and hence the present appeal against the findings delivered on issues No. 6 and 7 is maintainable. It would be pertinent to mention that amongst the other reliefs claimed in the suit the plaintiff had also prayed for the following relief:- “Declaration to the effect that the Will dated 24.5.1988 alleged to have been executed by the deceased Smt. Swaroop Kumari in favour of defendant No.1 is null and void having been obtained under undue influence and the same is not binding on the rights of the plaintiff in respect of the property detailed in Schedule-I, annexed to the plaint.” 7. There is no manner of doubt that under Section 96 of the Code of Civil Procedure an appeal lies only against the decree and the normal rule is that no appeal lies against a finding if the ultimate decree is in favour of the party. The Apex Court in Ganga Bai vs. Vijay Kumar and others, AIR 1974 SC 1126, held as follows:- “17. These provisions show that under the Code of Civil Procedure, an appeal lies only as against a decree or as against an order passed under rules from which an appeal is expressly allowed by Order 43, Rule1. No appeal can lie against a mere finding for the simple reason that the Code does not provide for any such appeal.” The Apex Court in Deva Ram and another vs. Ishwar Chand and another, AIR 1996 SC 378 held as follows:- “26. Thus an appeal does not lie against mere ‘findings’ recorded by a Court unless the findings amount to a “decree” or “order”. Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue, has no right of appeal and he cannot question those findings before the appellate Court. (See Ganga Bai v. Vinay Kumar, (AIR 1974 SSC 1126).” It would, however, be pertinent to mention that in para 30 the Apex Court went on to hold as follows:- “30. The High Court of Andhra Pradesh in Bansi Lal Ratwa v. Laxminarayan (1969) 2 Andhra Weekly Reporter 246, and the Full Bench of the High Court of Patna in Arjun Singh v. Tara Das Ghosh, AIR 1974 Patna 1, have taken the view that an appeal would not lie against mere adverse finding unless such finding would constitute resjudicata in subsequent proceedings. We are, however, not concerned with this aspect of the matter in the present case nor are we concerned with the earlier aspect as the plea of resjudicata having not been raised in the written statement, the appellant cannot be permitted to raise the plea here.” 8. The observation of the Apex Court made here-in-above clearly show that if the findings in the previous suit would constitute resjudicata in subsequent proceedings then the person aggrieved by such findings may have a right of filing an appeal. Following the aforesaid two JUDGMENTs, a learned Single Judge of this Court in Shakuntla Devi vs. Santosh and others, 2002(1) Cur. L.J.(H.P.)-338 and in Satya Devi and another vs. Gauran Devi and another, Latest HLJ 2002 (HP) 193, held that an appeal does not lie against mere findings recorded by a Court unless the findings amount to a decree or order. The learned Single Judge held that where the suit is dismissed the defendant against whom adverse findings might have come to be recorded on some issues has no right of appeal and he cannot question the findings before the Appellate Court. In Banarsi and others vs. Ram Phal, AIR 2003 SC 1989, the Apex Court held as follows:- “8. Sections 96 and 100 of the CPC make provision for an appeal being preferred from every original decree or from every decree passed in appeal respectively; none of the provisions enumerates the person who can file an appeal. However, it is settled by a long catena of decisions that to be entitled to file an appeal the person must be one aggrieved by the decree. Unless a person is prejudicially or adversely affected by the decree he is not entitled to file an appeal. See Phoolchand and another v. Gopal, 1967 (3) SCR 153; Smt. Jatan Kanwar Golcha v. M/s Golcha Properties (P.) Ltd., 1970 (3) SCC 573; Smt. Ganga Bai v. Vijay Kumar and others 1974, 2 SCC 393. No appeal lies against a mere finding. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against JUDGMENT.” 9. A bare reading of the last sentence of the above quoted JUDGMENT clearly shows that the Supreme Court itself drew a distinction between a decree and a JUDGMENT. 10. It is significant to note that both Sections 96 and 100 of the CPC provide for an appeal against decree and not against JUDGMENT.” 9. A bare reading of the last sentence of the above quoted JUDGMENT clearly shows that the Supreme Court itself drew a distinction between a decree and a JUDGMENT. 10. The State of Himachal Pradesh was established vide the State of Himachal Pradesh Act, 1970, w.e.f. 25th January, 1971. Prior to this Himachal Pradesh was union territory. It would be pertinent to mention that reorganisation of the State of Punjab took place w.e.f. 1.11.1966 when certain hilly areas of the State of Punjab were merged in the than Union territory of Himachal Pradesh. Prior to 1.11.1966 the areas which formed part of the erstwhile State of Punjab fell within the jurisdiction of the than High Court of Punjab. The original areas of the State of Himachal Pradesh fell under the jurisdiction of the Judicial Commissioner of the State of Himachal Pradesh. The High Court of Delhi was constituted under the Delhi High Court Act, 1966. The jurisdiction of the Delhi High Court was extended to the entire area forming part of the union territory of the Himachal Pradesh w.e.f. 1st May, 1967. Prior to the constitution of the Delhi High Court the area falling within the jurisdiction of this Court also fell within jurisdiction of the Punjab High Court. Section 10 of the Delhi High Court Act reads as follows:- “10. Powers of Judges.-(1) Where a single Judge of the High Court of Delhi exercises ordinary original civil jurisdiction conferred by sub-section (2) of section 5 on that Court an appeal shall lie from the JUDGMENT of the single Judge to a Division Court of that High Court. (2) Subject to the provisions of sub-section (1), the law in force immediately before the appointed day relating to the powers of the Chief Justice, single Judges and Division Courts of the High Court of Punjab and with respect to all matters ancillary to the exercise of those powers shall, with the necessary modifications, apply in relation to the High Court of Delhi.” 11. A bare reading of Section 10(1) shows that an appeal lies against any JUDGMENT passed by a Single Judge of the High Court exercising ordinary civil jurisdiction to a Division Bench of the Court. A bare reading of Section 10(1) shows that an appeal lies against any JUDGMENT passed by a Single Judge of the High Court exercising ordinary civil jurisdiction to a Division Bench of the Court. The HIMACHAL PRADESH HIGH COURT was constituted in terms of Section 21 of the State of Himachal Pradesh Act, 1970. Sections 23 and 25 of the said act relate to the jurisdiction of the Court and are relevant for our purpose. They read as follows:- “23. Jurisdiction of High Court.-The HIMACHAL PRADESH HIGH COURT shall have, in respect of any part of the territories comprised in the State of Himachal Pradesh, all such jurisdiction, powers and authority as, under the law in force immediately before the appointed day, are exercisable in respect of that part of the said territories by the High Court of Delhi. xxx….. xxxx…. xxx…. Practice and Procedure in High Court.-Subject to the provisions of this Part, the law in force immediately before the appointed day with respect to practice and procedure in the High Court of Delhi shall, with the necessary medications, apply in relation to the HIMACHAL PRADESH HIGH COURT .” 12. A bare perusal of these two sections shows that the HIMACHAL PRADESH HIGH COURT will have the same jurisdiction as was being exercised by the High Court of Delhi before the appointed date i.e. 25th January, 1971. Therefore, the present appeal has been filed under Section 10 of the Delhi High Court Act and as pointed out above an appeal lies against a JUDGMENT and not against a decree. What is the import of the word ‘JUDGMENT’ has been the subject matter of a large number of decisions. A Full Bench of the Delhi High Court in Begum Aftab Zamani vs. Lal Chand Khanna, AIR 1969 Delhi 85, while dealing with the scope of the word ‘JUDGMENT’ occurring in Clause 10 of the Letters Patent and Section 10 of the Delhi High Court Act, held as follows: xxxx…..xxx…. In order to decide whether an adjudication should be treated as a “JUDGMENT” within the meaning of clause 10 of the Letters Patent, we feel that regard should be had not to the form of the adjudication but to its effect upon the suit or the civil proceeding in which it is made. In order to decide whether an adjudication should be treated as a “JUDGMENT” within the meaning of clause 10 of the Letters Patent, we feel that regard should be had not to the form of the adjudication but to its effect upon the suit or the civil proceeding in which it is made. If its effect, whatever its form and whatever the nature of the proceeding in which it is made, is to put an end to the suit or proceeding, or if its effect, if not complied with, is to put an end to the suit or proceeding, the adjudication is indisputably a “JUDGMENT” within the meaning of this clause. Other decisions or determinations adjudicating upon a disputed controversy on the merits in a suit or proceeding may also appropriately fall within the contemplation of the word “JUDGMENT”. It is not possible to lay down any definite rule which would meet the requirements of all cases and all that we may say is that in determining whether an order or decision constitutes a “JUDGMENT” or not, the Court has to take into consideration the nature of the order and its effect upon the suit or the civil proceeding in which it is made. Each case would thus depend on its own peculiar facts and circumstances. We have arrived at this conclusion on the plain reading of Section 10 of the Act in the background of the statutory scheme. In our view, the draftsman could neither have intended to restrict the right of appeal only to final JUDGMENTs disposing of the entire suit, nor could he have intended it to extend to all orders made during the course of trial, however ministerial or procedural in their nature or ineffectual on the rights of the parties. xxx. Xxx… xxx…. In the present case, the JUDGMENT has indisputably disposed of the suit finally, with the result that nothing more remains to be done in the trial of the suit. Whether a decree is also to be framed in agreement with the JUDGMENT under the Civil P.C. is , in our opinion, immaterial because the Act does not take notice of decrees and in terms it provides for appeals only from JUDGMENTs. Whether a decree is also to be framed in agreement with the JUDGMENT under the Civil P.C. is , in our opinion, immaterial because the Act does not take notice of decrees and in terms it provides for appeals only from JUDGMENTs. The JUDGMENT under appeal, however, conclusively determines the rights of the parties with regard to the matters in controversy in the suit and it embodies in itself the formal expression of the adjudication. Merely because as a result of the adjudication, it purports also to grant a decree, would not deprive the JUDGMENT of the characteristics of a decree for the purposes of Court Fees Act. This JUDGMENT must, therefore, be held to amount to a decree and, therefore, excluded from the operation of Article 11, Schedule II. The Act, it may be remembered, does not define either “JUDGMENT” or “decree”. It merely makes the JUDGMENT appealable under Section 10. To be appealable, as hereinbefore discussed, the JUDGMENT, broadly stated, must be more than a mere statement given by the Judge of the grounds of a decree or order; in other words, it must contain or embody a decision on a dispute affecting the merits as well. In the case before us, the JUDGMENT also contains all the criteria of a decree and this indeed is not contested. We are, therefore, inclined to hold that this case quite clearly falls within the purview of Article 1, Schedule I and is subject to payment of ad valorem court-fee.” 13. The Apex Court also considered the scope of the word JUDGMENT in a detailed JUDGMENT in Shah Babulal Khimji vs. Jayaben D. Kania and another, AIR 1981 SC 1786. After considering the entire law on the subject held as follows:- “113. Thus, under the Code of Civil Procedure, a JUDGMENT consists of the reasons and grounds for a decree passed by a court. As a JUDGMENT constitutes the reasons for the decree it follows as a matter of course that the JUDGMENT must be a formal adjudication which conclusively determines the rights of the parties with regard to all or any of the matters in controversy. The concept of a JUDGMENT as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word ‘JUDGMENT’ as used in Cl. The concept of a JUDGMENT as defined by the Code of Civil Procedure seems to be rather narrow and the limitations engrafted by sub-section (2) of Section 2 cannot be physically imported into the definition of the word ‘JUDGMENT’ as used in Cl. 15 of the Letters Patent because the Letters Patent has advisedly not used the term ‘order’ or ‘decree’ anywhere. The intention, therefore, of the givers of the Letters Patent was that the word ‘JUDGMENT’ should receive a much wider and more liberal interpretation than the word ‘JUDGMENT’ used in the Code of Civil Procedure. At the same time, it cannot be said that any order passed by a trial Judge would amount to a JUDGMENT; otherwise there will be no end to the number of orders which would be appealable under the Letters Patent. It seems to us that the word ‘JUDGMENT’ has undoubtedly a concept of finality in a broader and not a narrower sense. In other words, a JUDGMENT can be of three kinds:- (1) A final JUDGMENT - A JUDGMENT which decides all the questions or issues in controversy so far as the trial Judge is concerned and leaves nothing else to be decided. This would mean that by virtue of the JUDGMENT, the suit or action brought by the plaintiff is dismissed or decreed in part or in full. Such an order passed by the trial Judge indisputably and unquestionably is a JUDGMENT within the meaning of the Letters Patent and even amounts to a decree so that an appeal would lie from such a JUDGMENT to a Division Bench.” 14. It is clear that the Apex Court drew a distinction between the definition of decree and JUDGMENT as occurring in Code of Civil Procedure and the term JUDGMENT as used in the Letters Patents. In respect of a final JUDGMENT the Apex Court clearly held that a JUDGMENT which decides all the questions or issues so far as the trial Judge is concerned and leaves nothing else to be decided is a final JUDGMENT. A ‘JUDGMENT’ has been described as constituting the reasons for the decree that follows. Reasons are part of the JUDGMENT while the decree is the operative part of the order. A ‘JUDGMENT’ has been described as constituting the reasons for the decree that follows. Reasons are part of the JUDGMENT while the decree is the operative part of the order. Therefore, we are of the considered view that the law cited by the respondent which relates only to Section 96 of the Code of Civil Procedure is not applicable to the present appeal which has been filed under Section 10 of the Delhi High Court Act. This provision allows a party to challenge a JUDGMENT. The findings given by the learned trial Judge holding the Will set up by the defendant No.1 to be invalid as well as the findings recorded by him that the orders of the Revenue Officials allowing mutation of the property in favour of the defendant No.1 are null and void, definitely amount to a JUDGMENT against the appellant and therefore, we are of the view that the appellant is entitled to challenge the same by means of the present appeal. 15. We mayalso point out that the Apex Court while observing that no appeal lies against a finding has come to this conclusion on the ground that the findings in the earlier suit do not act as resjudicata in the subsequent suit. The Apex Court in para 30 in Deva Ram and another vs. Ishwar Chand and another, supra, has made reference to two JUDGMENTs of the Andhra Pradesh High Court and the Full Bench JUDGMENT of the High Court of Patna, wherein a view had been taken that if the adverse findings would constitute resjudicata in subsequent proceedings then an appeal would lie against such findings. The Apex Court did not express its views on the matter. However, if the JUDGMENTs of the Apex Court cited here-in-above are read in detail it is clear that the Apex Court held that a person is not entitled to challenge the findings since they do not operate as rejudicata in subsequent proceedings. The Apex Court did not decide the question as to whether findings which would amount to resjudicata could be challenged or not. The Apex Court did not decide the question as to whether findings which would amount to resjudicata could be challenged or not. In addition to the two JUDGMENTs i.e. Bansi Lal Ratwa v. Laxminarayan, (1969) 2 Andhra Weekly Reporter 246, and the Full Bench of the High Court of Patna in Arjun Singh v. Tara Das Ghosh, AIR 1974 Patna 1, a Full Bench of the Jammu and Kashmir High Court in The Jammu and Kashmir Bank vs. Lal Mohamed Bangroo, AIR 1969 J & K 25 has also held that findings which operate as rejudicata can also be challenged under Section 96 of the Code of Civil Procedure. Section 11 of the Code of Civil Procedure deals with resjudicata. The relevant part of the Section reads as follows:- “11. Res judicata.- No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.” 16. It is apparent from a bare reading of this Section that when a matter is directly and substantially in issue in a former suit between the same parties, the same issue cannot be tried in a subsequent suit between the same parties or parties litigating under their title. In the present case, the plaintiff had specifically challenged the validity of the Will and the mutation of the property in favour of the defendant No.1. These were matters substantially in issue in the suit. The findings recorded on these issues, would in our opinion, operate as resjudicata against the defendant No.1 in subsequent proceedings if she does not challenge the same. This is another ground to hold that these findings can be challenged under Section 10 of the Delhi High Court Act. 17. We are also of the considered view that it is the substance of the decree and not the mere form which has to be looked into. In the present case the suit of the plaintiff has in fact not been dismissed. 17. We are also of the considered view that it is the substance of the decree and not the mere form which has to be looked into. In the present case the suit of the plaintiff has in fact not been dismissed. No doubt, the learned Single Judge has in the operative portion of the JUDGMENT held that the suit is dismissed but the fact remains that the learned Single Judge has virtually passed a decree of declaration to the effect that the Will dated 24.5.1988 executed by Smt. Swaroop Kumari is null and void. He has held this Will to be illegal. He has also decided issue No.7 in favour of the plaintiff and held that the orders passed by the Collector dated 18.10.1993 and that of the Divisional Commissioner dated 6.8.1995 are bad, illegal, null and void. The proper course for the learned Single Judge should have been to order that the suit of the plaintiff is partly decreed. He may not have given relief to the plaintiff but it is apparent that the plaintiff’s suit had been partly decreed in his favour. The learned Single Judge after holding the Will set up by defendant No.1 was not duly proved came to the conclusion that since deceased Swaroop Kumari died intestate leaving behind her sister Maya Devi, mother of the plaintiff, he had no right to her property. The suit has been dismissed on this ground. In view of the above discussion we negative the preliminary objections raised. 18. Shri K. D. Sood, Advocate, has challenged the findings on issue No.6. He submits that the Will has been proved by producing one of the attesting witnesses and there are no suspicious circumstances surrounding the Will. He also submits that the learned Single Judge has taken a highly technical view in holding that the Will was not proved since DW-5, the attesting witness, had not stated that Smt. Swaroop Kumari had signed the Will in the presence of the two attesting witnesses or that the attesting witnesses had signed the Will in the presence of deceased Swaroop Kumari. 19. Section 63 of the Indian Succession Act, 1925 deals with the execution of unprivileged Wills and reads as follows:- “63. 19. Section 63 of the Indian Succession Act, 1925 deals with the execution of unprivileged Wills and reads as follows:- “63. Execution of unprivileged wills.-Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, (or an airman so employed or engaged) or a mariner at sea, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his marks to the will or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator or the signature of the person signing for him shall be so placed that it shall appear that it was intended thereby to give effect to she writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary.” Sub-section (c) provides that a Will must be attested by at least two witnesses and each of these witnesses should have seen the testator sign or affix his mark on Will. The Section further provides that the witnesses must sign the Will in the presence of the testator. These are the essential requirements of the valid execution of a Will. These requirements cannot be just wished away. The propounder of a Will must prove that there was compliance with the mandatory requirements of Section 63. It is true that some times this compliance can be inferred from the statement of the witness and it is not necessary that the witness should repeat the words of the Section but there must be material on record to draw such an inference from the statement of the witnesses. 20. In the present case, the defendant No.1 to prove the Will only examined one of the attesting witnesses and the scribe of the Will. 20. In the present case, the defendant No.1 to prove the Will only examined one of the attesting witnesses and the scribe of the Will. The attesting witness is DW-6 Babu Ram. He states that the Will was scribed by DW-5 Shri V. C. Jain, Advocate, at the instance of Smt. Swaroop Kumari. He also states that he was present at the time of the execution of the Will and has signed the Will as an attesting witness. He has, however, not specifically stated that Smt. Swaroop Kumari had seen him signing the Will. He has also not stated that she had signed the Will in the presence of the other attesting witness Inder Singh or that Inder Singh had signed the Will in the presence of Smt. Swaroop Kumari. Even DW-5 while appearing in the witness box has only stated that after he had read over and explained the Will to Smt. Swaroop Kumari she admitted the contents and signed the same in his presence. He further states that the attesting witnesses, i.e. DW-6 and Inder Singh had signed the Will in his presence. DW-5 has not stated that Smt. Swaroop Kumari had signed the Will in the presence of the two alleged attesting witness or that the said witness had signed the Will in the presence of Smt. Swaroop Kumari. Therefore, the witness had failed to prove compliance of Section 63 (c) of the Indian Succession Act. We are, therefore, in agreement with the learned Single Judge who held that the defendant No.1 has failed to prove due execution of the Will. 21. The Hon’ble Supreme Court in H. Venkatachala Iyengar v. B. N. Thimmajamma and others, AIR 1959 SC 443, dealt in detail with the proof of Wills. It held as follows:- “What is the true legal position in the matter of proof of wills ? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68, Evidence Act are relevant for this purpose. Under S. 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss. 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that 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 that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters. 22. The Hon’ble Court went on further to observe:- “However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will……..” 23. In Girja Datt Singh v. Gangotri Datt Singh, AIR 1955 SC 346, it has been held that in order to prove the due attestation of the will, the propounder would have to prove that the deceased testator had signed the will in the presence of the two attesting witnesses and that such attesting witnesses had signed the will in the presence of the testator. It has further been held that the witnesses must be shown to have appended their signatures ‘ANIMO ATTESTANDI’ and mere presence of the signatures of two witnesses would not mean that they had appended their signatures as attesting witnesses. 24. The Apex Court has considered the provisions of Section 63 and the manner in which a Will should be proved by the attesting witnesses. 25. In Yumnam Ongbi Tampha Ibemma Devi v. Yumnam Joykumar Singh and Ors. JT 2009 (4) SC 307, it was held as follows:- “6. As per provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the testator should sign or affix his mark to the Will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3) the Will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in presence of the testator. 7. The attestation of the Will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested witness should put his signature on the Will animo attestandi. It is not necessary that more than one witness be present at the time and no particular form of attestation is necessary. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. Therefore, having regards to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.” 26. The attesting witness should speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.” 26. The Apex Court in no uncertain term has held that the attesting witness should not only speak about the signature or affixing his mark by the testator but should also state that each of the witnesses had signed the Will in the presence of the testator. This has not been done in the present case. It is thus clear that the attestation of the Will has not been proved in accordance with law. 27. Even if we were to overlook this grave lapse on the part of the defendant in not proving the Will we feel that there are many suspicious circumstances surrounding the Will and it cannot be said that the execution of the Will Ext. DG is free from doubt. 28. The facts proved on record are that Smt. Swaroop Kumari belonged to a royal family. She was a well off person. PW-12 Sunder Singh was appointed as Assistant Manager to look after the properties by the court of wards. Even after the court of wards ceased to exercise jurisdiction of the property the same was managed by this witness. This witness has stated that the properties were being managed by him and the income being derived from the orchard at Vikram bagh was used for the maintenance and improvement of Ranvijay Bhawan and also being used to maintain Smt. Swaroop Kumari. There is evidence to show that when Smt. Swaroop Kumari suffered a fracture in the year 1973 and again suffered a fracture in the year 1985, she was treated at Nahan and at Shimla and it was this witness who looked after her. There is evidence on record that there were four person employed to look after Smt. Swaroop Kumari. On 23rd February, 1990 this witness alongwith Datti Devi and Som Chand had taken Smt. Swaroop Kumari to the hospital where she died on 25th February, 1990. Thereafter, he informed her family members who came to Nahan and performed the last rites of Smt. Swaroop Kumari. The plaintiff was examined as PW-15 and he has also stated that Smt. Swaroop Kumari was being maintained out of the income from the orchard etc. Thereafter, he informed her family members who came to Nahan and performed the last rites of Smt. Swaroop Kumari. The plaintiff was examined as PW-15 and he has also stated that Smt. Swaroop Kumari was being maintained out of the income from the orchard etc. The defendant No.1 has placed great reliance on letters Ext. DA to DF which were sent by Smt. Swaroop Kumari to the defendant No.1. These letters do reveal that Smt. Swaroop Kumari had a lot of love and affection for defendant No.1. The execution of these letters has not been disputed before us by the plaintiff. However, it would be pertinent to mention that except for one letter dated 3.6.1985 all the other letters have been sent after the execution of the alleged Will on 24.5.1988. However, there is no reference to the Will in the said letters. 29. It is on record that in addition to PW-12 and 3-4 other servants, Dr. Peter D’souza, PW-10, was also looking after Smt. Swaroop Kumari. 30. DW-5 V.C.Jain, who is the scribe of the Will states that on 24.5.1988 he was approached by Smt. Swaroop Kumari for scribing a Will. He thereafter scribed the Will in the consulting room of the Bar Association, Nahan. The Will was thereafter got registered. In crossexamination he states that Smt. Swaroop Kumari had never been his client. According to him he might have met Smt. Swaroop Kumari three to four times prior to May, 1988. He, however, knows the defendant Vijay Kumari and her brothers very well. He infact knows the brothers of defendant by their nicknames. Though in examination in chief this witness states that he was approached by Smt. Swaroop Kumari on 24.5.1988 but in cross-examination he clarifies that he was contacted by Smt. Swaroop Kumari on telephone at about 8.30 or 9 a.m. and she came to the Court premises at about 1.00 p.m. He further states that the two witnesses were accompanying her. He, however, could not say whether the two witnesses and Smt. Swaroop Kumari had come together. According to him, the Will Ext.DG was recorded by him in his own words on the basis of the general instructions given by Smt. Swaroop Kumari. He, however, did not prepare any rough draft. He had never visited Smt. Swaroop Kumari and had not gone to her house at Ranvijay Bhawan. According to him, the Will Ext.DG was recorded by him in his own words on the basis of the general instructions given by Smt. Swaroop Kumari. He, however, did not prepare any rough draft. He had never visited Smt. Swaroop Kumari and had not gone to her house at Ranvijay Bhawan. He further states that no servant, male or female, had accompanied Smt. Swaroop Kumari to the Court premises. 31. DW-6 Babu Ram, the attesting witness, has stated that the Will was recorded verbatim as dictated by Smt. Swaroop Kumari and nothing was added by the scribe. He states that he was a neighbour of Smt. Swaroop Kumari and according to this witness he was on visiting terms with Smt. Swaroop Kumari and used to visit her house once in a month as a neighbour. According to him, he used to visit Smt. Swaroop Kumari to help her in making purchase of daily needs. Surprisingly, this witness who is stated to be on visiting term with Smt. Swaroop Kumari, states that Smt. Swaroop Kumari had no sister. If he was on visiting terms and knew Smt. Swaroop Kumari he would have known that she had a sister. His statement that he used to help Smt. Swaroop Kumari in making purchase of daily needs also cannot be believed since there is material on record that there were at least four employees in the house where Smt. Swaroop Kumari was living. 32. Further in cross-examination this witness states that he had gone to the house of Smt. Swaroop Kumari only once on the date of execution of the Will and never visited her thereafter. He does not know how many servants were there in the house to look after Smt. Swaroop Kumari. This witness did not even know the ailment which Smt. Swaroop Kumari was suffering from though he allegedly visited her in the hospital. This witness has further confounded the problem when he states that he met Smt. Swaroop Kumari for the last time in the month of March, 1988. If that be correct, how could he had been present at the time of the alleged execution of the Will on 24.5.1988. He also states that he had never seen Smt. Swaroop Kumari writing or signing. This witness does not know the other attesting witness Inder Singh. If that be correct, how could he had been present at the time of the alleged execution of the Will on 24.5.1988. He also states that he had never seen Smt. Swaroop Kumari writing or signing. This witness does not know the other attesting witness Inder Singh. According to him Smt. Swaroop Kumari asked him to come to the Court Complex a day before the execution of the Will. He reached the Court Complex of his own and at that time Sh. Inder Singh, Advocate, had reached there simultaneously. Smt. Swaroop Kumari was already present in the consulting room. He admits that Smt. Swaroop Kumari was heavily built and used to walk with the help of a stick. 33. No doubt, there is evidence on record to show that Swaroop Kumari was quite fond of defendant No.1. She may have had reasons to execute a Will in her favour but the Will must be proved in accordance with law and the propounder of the will must dispel the suspicious circumstances surrounding the Will. In the present case, Smt. Swaroop Kumari who belonged to a royal family could not have walked to the Court of her own without the help of aid or any servant. According to defendant No.5 Sh. V. C. Jain, she had contacted him on the morning of the day the Will was to be executed and he had asked her to come to the Court complex. Therefore, it is not understandable how Smt. Swaroop Kumari would have called DW-6, the attesting witness on a day prior to the execution of the Will. If she had not fixed any appointment with the counsel and no time had been fixed till than how could she have told DW-6 as to where and at what time he had to come. A Will is a very solemn document and normally a reasonable person would get it witnessed by persons closely known to him. In the present case, the Will was registered. It is obvious that Smt. Swaroop Kumari was, therefore, not intending to keep the Will a closely guarded secret. It would be expected in such a case that the executor would have asked some persons closely known to her to have attested the Will as witness. 34. There are many contradictions in the statements of DW-5 and DW6. It is obvious that Smt. Swaroop Kumari was, therefore, not intending to keep the Will a closely guarded secret. It would be expected in such a case that the executor would have asked some persons closely known to her to have attested the Will as witness. 34. There are many contradictions in the statements of DW-5 and DW6. DW-6 claims that he was on visiting terms with Smt. Swaroop Kumari but when his statement read as a whole it is apparent that he is telling a lie. He does not know her family members. He does not know how many servants she had. Though he claims to have visited her in the hospital but he does not know what ailment she was suffering from. Therefore, it cannot be believed that Smt. Swaroop Kumari would have called this witness who was virtually unknown to her to attest such a solemn document like the Will. In the statement of this witness there are inherent contradictions in respect to the last time he met Smt. Swaroop Kumari which have already been pointed out above. This witness states that the scribe had scribed the Will verbatim as dictated by Smt. Swaroop Kumari whereas DW-5 V.C.Jain states that he had written the Will in his own words on the general instructions given by Smt. Swaroop Kumari. DW-5 states that Smt. Swaroop Kumari had used spectacles for reading the Will. However, DW-6 contradicts the same and depose that Smt. Swaroop Kumari possessed good eye sight. Even if the letters relied upon by the defendant No.1 are gone into they only show that the deceased liked the defendant No.1. There is nothing to indicate that this liking was to the extent that she would exclude her natural heirs. In fact the material placed on record clearly shows that defendant No.1 had left Nahan after her marriage in 1986 and for the last two years she had not looked after the deceased. Therefore, there was no reason for the deceased to execute the Will in favour of the defendant No.1 35. The appellant-defendant No.1 for the reasons best known to her did not care to examine the other attesting witness Shri Inder Singh, Advocate. The only attesting witness examined is Babu Ram. His evidence, as discussed above, does not inspire confidence. Therefore, there was no reason for the deceased to execute the Will in favour of the defendant No.1 35. The appellant-defendant No.1 for the reasons best known to her did not care to examine the other attesting witness Shri Inder Singh, Advocate. The only attesting witness examined is Babu Ram. His evidence, as discussed above, does not inspire confidence. There is no explanation as to how he, the testator, and the other attesting witnesses reached simultaneously in the Court room. There is nothing on record to show how Smt. Swaroop Kumari reached the Court. There is no explanation why she did not associate some persons well-known to her as the attesting witnesses. It would have been another matter if she had asked the scribe Shri V.C. Jain to arrange the witnesses. This is not the case of the defendant. Once the testator herself was arranging for the witnesses, it would be reasonable to expect that the witnesses were some well known to her. As pointed out above, Babu Ram may at best be an acquaintance of the testator but was definitely not socially or otherwise closely associated with Smt. Swaroop Kumari. His presence at the time of attestation of the document is doubtful. Shri V.C. Jain, DW-5, clearly states that he had never been lawyer of Smt. Swaroop Kumari. There is nothing on record to show how and in what circumstances she contacted him. The statement of Shri V.C. Jain shows that he is closely known to the defendant and his brothers and has in-fact represented them in certain cases. The other contradictions have already been pointed out above. Keeping all these circumstances into consideration, we find that the defendant No.1 has failed to discharge the onus which was on her to show that the Will was executed by Smt. Swaroop Kumari of her own free will. The Will accordingly has not been proved 36. Keeping in view the above discussion, we are of the considered view that the learned SingleJudge rightly held that the defendant No.1 has failed to prove due execution of the Will Ext. DG. 37. As far as the cross-objections are concerned, there is no merit what-so-ever in the same. The case set up by the plaintiff himself is that after coming into force of the Hindu Succession Act, 1956, Maharani Kalindi Devi became full owner of the property. DG. 37. As far as the cross-objections are concerned, there is no merit what-so-ever in the same. The case set up by the plaintiff himself is that after coming into force of the Hindu Succession Act, 1956, Maharani Kalindi Devi became full owner of the property. The plaintiff has also proved on record gift deed Ext.PW-1/A executed by Maharani Kalindi Devi in his favour. In view of this stand taken by the plaintiff it does not lie in his mouth to say that Smt. Swaroop Kumari, daughter of Maharani Kalindi Devi was not full owner of the property. 38. In view of the above discussion we find no merit in the appeal or the cross objections, which are accordingly dismissed.