Judgment V.K.Ahuja, J. 1. This is a regular second appeal filed under Section 100 C.P.C against the judgment and decree dated 30th November, 2000 of the Cour t of learned District Judge, Kinnaur Civil Division at Rampur Bushahr, H.P. affirming the judgment and decree dated 27th November, 1999 passed by the learned Sub Judge 1st Class, Ani, District Kullu, H.P. 2. Briefly stated, the facts of the case are that the respondents (hereinafter referred to as the plaintiffs ), filed a suit for declaration. It was alleged by the plaintiffs that deceased Khub Ram had an undivided share in the land detailed in the plaint. It was alleged that Khub Ram had died issueless and intestate on 17.8.1986 leaving behind no class I and class II heirs to inherit his property/ estate except the plaintiffs who being the real sister of the mother of late Sh. Khub Ram deceased is the only class II heir entitled to inherit the estate of deceased Khub Ram in preference to defendants No. 1 and 2, who are neither class I heir nor class II heirs but are related as remote agnates to the deceased. It was also alleged that the defendants in connivance with the Local Revenue Officer got the mutation of inheritance entered in their names and the defendants were not entitled to inhe rit the estate of the deceased in presence and in preference to the plaintiffs. Thus, they have challenged the mutation, sanctioned behind the back of the plaintiffs being illegal, wrong and inoperative. They also challenged the transfer of land by defendants No.1 and 2 vide gift deed dated 28.7.1988 in favour of defendant No.7, which mutation was also challenged being wrong, illegal and inoperative as against the rights of the plaintiffs. 3. It was also pleaded that Smt. Bresti, the sole plaintiff during life time had executed a registered Will dated 15.3.1989 in favour of the plaintiffs and she was a sound disposing mind at the time of execution of the Will. Thus the plaintiffs alleged that they have inherited the suit land and are entitled to be declared owners in joint possession of the suit land. The defendants took preliminary objections in regard to the fact that the suit was not properly valued etc. On merits, they have denied that the mutation was got attested in connivance with the Revenue Officer. Thus the plaintiffs alleged that they have inherited the suit land and are entitled to be declared owners in joint possession of the suit land. The defendants took preliminary objections in regard to the fact that the suit was not properly valued etc. On merits, they have denied that the mutation was got attested in connivance with the Revenue Officer. They also denied the right of Smt. Bresti to execute the Will which was pleaded to be not a genuine document and was a forged document and result of fraud coercion etc. Thus, it was pleaded that the Will was not executed by her. It was also denied that the gift deed was not valid. It was pleaded that the plaintiffs had no right to challenge the same. On the pleadings of the parties, the following issues were settled by the learned trial Court. 1. Whether the mutation No. 2135, dated 22.6.1988 of the suit land, sanctioned by AC IInd grade, Ani in favour of defendants No. 1 &2 is illegal, wrong and inoperative as alleged? OPP. 2. If issue No.1 is proved in the affirmative then whether gift deed No.143 and 144, dated 28.7.1988 by defendants No. 1&2 executed in favour of defendants No.3 to 7 are also illegal, void and inoperative as alleged? OPP 3. Whether the plaintiff is entitled for mesne profit to the tune of Rs.6,000/- per annum, as alleged? OPP 4. Whether the plaintiff is entitled for relief of joint possession as alleged? OPP 5. Whether the suit of plaintiff is barred under the provisions of Order 2 Rule 2 C.P.C., as alleged? OPD 6. Whether the suit of plaintiff is also barred by the provisions of Rule 9 of Order 9 C.P.C, as alleged? OPD 7. Whether the suit of plaintiff is bad for non-joinder of necessary parties? OPD 8. Whether the suit of plaintiff is not properly valued for the purpose of court fee and jurisdiction? OPD 9. Whether deceased Smt. Bresti Devi executed a valid ‘WILL’ in the favour of Sh. Dola Ram and Rama Nand, if so, its effect? OPP 10. Relief? 4. Whether the suit of plaintiff is bad for non-joinder of necessary parties? OPD 8. Whether the suit of plaintiff is not properly valued for the purpose of court fee and jurisdiction? OPD 9. Whether deceased Smt. Bresti Devi executed a valid ‘WILL’ in the favour of Sh. Dola Ram and Rama Nand, if so, its effect? OPP 10. Relief? 4. Parties had led their evidence and the learned trial Court vide its impugned judgment held that the mutation attested by the Revenue Officer was null and void and as also the subsequent transfer of the suit land by defendants No. 1 and 2 by gift deed and it was held by the learned trial Court that Smt. Bresti had executed a registered Will in favour of the plaintiffs who have inherited the same and, as such, are owners in joint possession. The relief of injunction was also granted in favour of the plaintiffs and as against the defendants. On appeal, those findings were up-held by the learned Appellate Court, who also granted the relief of possession in favour of the plaintiffs. Being aggrieved, the defendants have filed the present appeal. 5. I have heard the learned counsel for both the parties and have gone through the record of the case. 6. The main point urged by the learned counsel for the appellants during the course of arguments was that the Will had not been proved according to law as per the provisions of Section 63 of the Indian Succession Act and Section 68 of the Evidence Act. It was submitted that the respondents had examined one attesting witness, but neither the scribe nor the attesting witness has stated that the Will was signed by the executant in presence of the attesting witness or that the attesting witness signed it in presence of the executant. Thus, it was submitted that the mere examination of the attesting witness and scribe, who proved that the Will bears the signatures of the executant, is not sufficient to prove the valid execution of the Will as required by law. To substantiate his submission, he relied upon a decision of this Court in Smt. Punni Vs. Sumer Chand and others, AIR 1995 Himachal Pradesh 74. The observation made are relevant and are being reproduced below: “As regards attestation of Will, CI.(c) of S. 63 required that the Will shall be attested by two or more witnesses. To substantiate his submission, he relied upon a decision of this Court in Smt. Punni Vs. Sumer Chand and others, AIR 1995 Himachal Pradesh 74. The observation made are relevant and are being reproduced below: “As regards attestation of Will, CI.(c) of S. 63 required that the Will shall be attested by two or more witnesses. It is not necessary that both of them be present simultaneously at the time of putting their signatures but the requirement is that each of the attesting witness must have seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgement of his signature or mark on the Will. There is also an additional requirement that each of the attesting witness shall also sign the Will in the presence of the testator. In order to prove the due attestation of the Will the propounder of the Will has to prove that the two attesting witnesses saw the testator sign the Will and that they themselves signed the same in the presence of the testator. As regards the proof of attestation, in view of S.68 of the Evidence Act it is necessary to comply with the provisions of the Evidence Act to prove the due execution and attestation of the Will by calling at least one attesting witness in case he is alive and one cannot presume from the mere signature appearing at the foot of the endorsement of registration or at the foot of the document that the witnesses had appended their signatures to the documents as attesting witnesses. There is another requirement, which a propounder has to comply, is to lead sufficient and cogent evidence to dispel any suspicious circumstances attending the due execution of the Will. 7. On the other hand, learned counsel for the respondents has supported the impugned judgments supplementing it by the submission that the Will had been proved by the attesting witness and scribe who have stated that the Will was signed by the executant and there were concurrent findings of both the Courts below. The Will was executed validly which findings cannot be interfered in the second appeal. A perusal of the record of the case shows that the appeal was admitted on all the substantial questions of law as detailed at page 10 of the paper paper book. 8. The Will was executed validly which findings cannot be interfered in the second appeal. A perusal of the record of the case shows that the appeal was admitted on all the substantial questions of law as detailed at page 10 of the paper paper book. 8. The substantial questions of law are as under: 1. Whether the learned District Judge in the facts and circumstances of the case has committed an error of law in holding execution of the Will dated 15th March, 1989 (Ex.PW2/A) of Smt. Bresti in favour of Dole Ram and Rama Nand in the absence of compliance of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act in respect of Ex.PW2/A? 2. Whether the suit for injunction and actual possession of share of late Sh. Khoob Ram by plaintiffs is maintainable without praying decree for separate possession by way of partition and joining all co-sharers? 3. Whether the learned District Judge, in the facts and circumstances of the case, has committed an error of law in passing decree of actual possession of suit land in the absence of appeal, cross-appeal or cross objections by the plaintiffs for seeking decree of actual possession of suit land?” 9. Once a substantial question of law has been framed as to whether the learned District Judge committed an error in holding due execution of the Will in the absence of compliance of Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. Therefore, this question can be re-examined by this Court in the light of the substantial questions of law framed and there can be re-appraisal of evidence by this Court sitting in second appeal. Section 63 of Indian Succession Act reads as under: “Execution of unprivileged Wills-Every testator, not being a soldier employed in an expedition or 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 mark 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 the writing as a Will. © 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 been 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.” Section 68 of Indian Evidence Act reads as under: “Proof of execution of document required by law to be attested-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: (Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.)” 10. In the light of the above provisions and the above decision, the evidence has to be appreciated as to whether it complies with the above provisions of law or not. In the present case, the will in question has been proved in evidence as Ex.PW2/A. It was executed by Smt. Bresti, who thumb marked the Will dated 15.3.1989. The names of the scribe mentioned is as Sh. Anup Ram, Document Writer and the name of the attesting witness mentioned is as Mohar Singh,s/o Kanshi Ram and there are signatures of one Khyal Chand, Pradhan, Gram Panchayat also over the Will. Out of these persons, the plaintiffs examined the scribe as PW-4, Anup Ram. The names of the scribe mentioned is as Sh. Anup Ram, Document Writer and the name of the attesting witness mentioned is as Mohar Singh,s/o Kanshi Ram and there are signatures of one Khyal Chand, Pradhan, Gram Panchayat also over the Will. Out of these persons, the plaintiffs examined the scribe as PW-4, Anup Ram. A perusal of the statement shows that he simply stated that at the instance of Smt. Bresti, he wrote the Will Ex.PW2/A. He stated that in red circle “B”, there are his signatures. He further stated that the Will was read over to Bresti, who affixed her thumb mark on being satisfied and thereafter, the witness Khyal Chand and Mohar Singh signed the same. 11. It is clear from the perusal of the statement that this witness never stated that the Will was read over to Smt. Bresti in presence of the witnesses and she signed it in presence of the witnesses or both the witnesses signed in her presence. His statement only proves that it was thumb marked by Bresti and then it was signed by both the witnesses and nothing else was stated as is required by law as mention above. He admitted that he is not an attesting witness of the Will. Out of the two attesting witnesses, Khayala Ram was stated to be dead and the plaintiffs examined PW-2 Mohar Singh. A perusal of the statement of Mohar Singh shows that the Will was executed in favour of the plaintiffs mark A/ Ex.PW2/A. He further stated that within a circle, there are his signatures and the Will was read over and the second witness Khayala Ram is dead. He further sta ted that it was written by the Deed Writer. 12. From a perusal of the statement, it is also clear that he did not state that the will was thumb marked by Smt. Bresti, in presence of both the witnesses or that both the witnesses signed in her presence. Therefore, the statement of both these witnesses, the attesting witness and scribe do not prove that the requirements of Section 63 of Indian Succession Act and Section 68 of Evidence Act were complied with. 13. According to the above decision, the witnesses have to prove the Will in the manner as provided in both the Sections and as held above. Therefore, the statement of both these witnesses, the attesting witness and scribe do not prove that the requirements of Section 63 of Indian Succession Act and Section 68 of Evidence Act were complied with. 13. According to the above decision, the witnesses have to prove the Will in the manner as provided in both the Sections and as held above. It is not only the signatures of the witness or the scribe are to be proved but the Will in question has to be proved to have been validly executed as laid down in the above provisions. 14. Apart from the above decision, I may also make a reference to the decision of Hon’ble Supreme Court in Naresh Charan Vs. Paresh Charan, AIR 1955,S.C 363, wherein it was held as under: “It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend on the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence.” It is therefore, clear from the above discussion, that if it is a question of fact as to whether the Will has been proved in accordance with law and in view of above deposition of the scribe and attesting witnesses, it cannot be said that the Will in question satisfies the requirement of Section 63 of Indian Succession Act and Section 68 of Evidence Act. Learned counsel for the respondents had relied upon the decision in Gurdev Kaur Vs. Kaki, AIR, 2006 S.C.1975 to show that the findings of fact are not liable to be interfered with the observations made are relevant and are being reproduced below: The High Courts would have jurisdiction of interfering under S. 100.C.P.C only in a case where substantial questions of law are involved and those questions have been clearly formulated in the memorandum of appeal. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as ‘ substantial question of law’ which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become ‘third’ trial on facts’or’ one more dice in the gamble. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the Section is that the appeal shall be heard only on that question.” 16. From the above discussion, it is clear that both the Courts below have come to their own conclusions that the Will in question is legally proved therefore, the findings to the contrary holding that the Will was valid one and are liable to be set aside. Coming to the question as to whether the plaintiffs were entitled to the relief in the absence of the Will, no issue was framed by the learned trial Court in this regard as to whether the plaintiffs are entitled to succeed to the property of the deceased. In the absence of any such issue having been framed or any findings given, it can not be said that the plaintiffs are entitled to the relief, even in the absence of the Will having not been proved. Therefore, no findings can be given in that regard and no cross objection was filed by the plaintiffs claiming that even in the absence of the Will, they are entitled to succeed to the property and no issue was framed in this regard. Therefore, the appeal filed by the defendants is allowed and the findings to the contrary are set aside holding that the suit is liable to be dismissed. Therefore, the appeal filed by the defendants is allowed and the findings to the contrary are set aside holding that the suit is liable to be dismissed. However, it is clarified that once the question of inheritance is raised at the time of attestation of mutation in regard to the property in question, the Revenue Officer shall be guided by the provisions of Hindu Succession Act and shall decide the question as per law at the time of attestation of mutation. The appeal is allowed accordingly. However, parties are left to bear their own costs.