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Himachal Pradesh High Court · body

2016 DIGILAW 2033 (HP)

Chander Dev v. Roshan Lal

2016-09-21

AJAY MOHAN GOEL

body2016
JUDGMENT : Ajay Mohan Goel, J. This appeal has been filed by appellants/defendants against the judgment and decree passed by the Court of learned District Judge, Kullu in Civil Appeal No. 93 of 2005 dated 29.6.2007 vide which, learned appellate court while upholding the judgment and decree passed by the Court of learned Civil Judge (Jr. Division), Manali in Civil Suit No. 38 of 2004/148 of 2000 dated 18.10.2005, dismissed the appeal filed against the same by the appellants. 2. This appeal was admitted on 5.12.2008, on the following substantial questions of law:- “Whether on proper construction and interpretation of the registered Will Ext. DW1/A, it could be held that it was the last Will of the testator and valid presumption of a valid execution and disposition by the testator in favour of the beneficiary was to be raised? Whether on the basis of an application being allowed under Section 65 of the Indian Evidence Act to lead secondary evidence, the certified copy of the registered Will was sufficient to have proved that the Will was validly executed and registered, the certified copy being compared with the copy of the Sub Registrar and duly proved by the Sub Registrar regarding the attestation of the same and whether such mode of proof was not sufficient as observed the courts below? Whether the endorsement by the Sub Registrar that the executant had acknowledged the execution before him amounts to attestation and whether such attestation holding the signatures and thumb impression of the identifying witness, testator and the attesting witness is sufficient to discharge the onus of proof? Whether, on the collusion of the attesting witness with the other party, the Sub Registrar can be taken to be an attesting witness and treated as such for the purpose of proving the execution of the Will, and the onus on the propounder stands discharged?” 3. Brief facts necessary for adjudication of the present case are that a suit was filed by respondents/plaintiffs (hereinafter to be referred as “the plaintiffs”) to the effect that suit land measuring 17-8-5 bighas which was owned and possessed by Smt. Kamla was inherited after her death by plaintiffs No.1 to 4 and defendants No.1 and 4 in equal shares as absolute owners thereof. Smt. Kamla was widow of Sh. Narain Dass who was real brother of the father of plaintiffs and defendants No.1 and 4. Smt. Kamla was widow of Sh. Narain Dass who was real brother of the father of plaintiffs and defendants No.1 and 4. As per plaintiffs, they along with defendants No.1 and 4 and their father Lal Dass and Narain Dass and Kamla Devi lived jointly and constituted a joint family. As per plaintiffs, Kamla Devi lived with them and defendants No.1 and 4 and it was only the plaintiffs who rendered their services and maintained her and also cultivated the suit land. Kamla Devi died intestate on 14.11.1997 and her last rites were performed by defendant No.4. Thereafter the suit property was inherited by plaintiffs and defendants No.1 and 4 in equal shares being heirs of the deceased and thereafter they became owners in possession of the suit land. As per plaintiffs, defendant No.1 was a clever person and with his ulterior motive to grab the shares of plaintiffs in connivance with revenue officials and defendant No.2, he managed the mutation of deceased Kamla Devi behind the back of the plaintiff in his favour and in favour of defendant No.2 which was wrong and illegal. Further as per plaintiffs, since the last week of July, 2000, defendant No.1 started proclaiming himself that he was the sole heir of deceased Kamla Devi where-after plaintiffs made inquiries which revealed that said defendant behind their back and without any notice to them had managed the attestation of mutation of the suit land in his own name and in the name of defendant No.2 on the basis of one bogus Will. According to plaintiffs, Kamla Devi died intestate and she had not executed any Will nor there was any occasion for her to execute the same. According to plaintiffs, Will dated 24.1.1994 was bogus and fictitious and the same had been set up and forged by defendants No.1 and 2 with an ulterior motive to grab the share of plaintiffs in connivance with the scribe and marginal witnesses after the death of Kamla Devi. It was further the case of plaintiffs that Mutation No. 1294 was illegal, void and inoperative and plaintiffs were not bound by the same. On these bases that the suit was filed by plaintiffs. 4. The claim as put-forth in the plaint was denied by defendants No.1 and 2. It was denied by said defendants in the written statement that Kamla Devi had died intestate. On these bases that the suit was filed by plaintiffs. 4. The claim as put-forth in the plaint was denied by defendants No.1 and 2. It was denied by said defendants in the written statement that Kamla Devi had died intestate. As per defendants deceased Kamla Devi had executed registered Will dated 24.1.1994 in favour of defendants No.1 and 2 and her last rites were performed by defendants No.1 and 2. It was denied by defendants that after the death of Kamla Devi, suit land was inherited by plaintiffs and defendant No.1 and 4 in equal shares. Defendants also justified the mutation which was attested in their favour based on the Will which was executed in their favour by Kamla Devi. It was denied by defendants that Will which was executed in their favour by Kamla Devi was a bogus Will. According to said defendants, after the death of Narain Dass, Kamla Devi brought defendant No.2 to her house who at the relevant time was studying in 4th Class and firstly they were brought up, educated and maintained by Kamla Devi and her husband and when he became major along with defendant No.1, both of them rendered services to Kamla Devi and also managed her household and agricultural affairs. According to defendants, plaintiffs had never rendered any services to Kamla Devi and Will dated 24.1.1994 had been executed by her in favour of defendants No.1 and 2 out of love and affection and in lieu of services rendered by them to her. 5. On the basis of pleadings of the parties and material placed on record, the learned Trial Court framed the following issues:- “1.Whether the parties are joint owners in possession of the suit land, as alleged ? OPP. 2. Whether the plaintiffs have got no locus standi and cause of action to file the present suit? OPD 1 and 2. 3. Whether suit is bad for non joinder of necessary parties? OPD 1 and 2. 4. Whether suit has not been properly valued for the purpose of Court fee and jurisdiction? OPD 1 and 2. 5. Whether Smt. Kamla Devi-deceased executed a valid and last Will dated 24.1.1994 in favour of defendants No.1 and 2? OPD 1 and 2. 6. Relief” 6. The learned Trial Court returned the following findings on the said issues:- “Issue No.1 : Yes. OPD 1 and 2. 5. Whether Smt. Kamla Devi-deceased executed a valid and last Will dated 24.1.1994 in favour of defendants No.1 and 2? OPD 1 and 2. 6. Relief” 6. The learned Trial Court returned the following findings on the said issues:- “Issue No.1 : Yes. Issue No.2 : No. Issue No.3 : No. Issue No.4 : No. Issue No.5 : No. Relief : The suit is decree, per operative part of the judgment.” 7. Accordingly, learned trial court vide its judgment dated 18.10.2005 decreed the suit of the plaintiffs by holding that the plaintiffs and defendants No.1 and 4 were jointly owners in possession of land measuring 17-8-5 bighas subject matter of the suit being legal heirs of deceased Kamla Devi. It was further held by learned trial court that mutation No. 1294 was wrong, illegal and void and mutations No. 1338 and 1339 were also wrong, illegal and void. 8. Feeling aggrieved by the said judgment and decree passed by learned trial court, defendants therein filed an appeal. Learned appellate court vide its judgment and decree dated 29.6.2007 while upholding the judgment and decree passed by learned trial court dismissed the appeal so filed by the defendants. It is pertinent to mention that plaintiffs had also filed cross-objections against the judgment and decree passed by learned trial court and the said cross objections were also dismissed by learned appellate court. 9. The judgment and decree so passed by learned trial court in favour of the plaintiffs and upheld in appeal by learned appellate court is challenged by the appellants/defendants by way of this appeal. 10. According to Mr. Sanjeev Kuthiala, learned counsel for the appellant, the finding so returned by both the learned courts below are erroneous and not sustainable. According to Mr. Kuthiala the execution of the Will in issue stood duly proved in consonance with the provisions of Section 63 of the Indian Succession Act and this very important aspect of the matter had been ignored by both the learned courts below. He further argued that both the learned courts below had erred in not appreciating that application filed under Section 65 of the Indian Evidence Act was allowed by the learned trial court vide order dated 21.5.2004. 11. On the other hand it was submitted by Mr. He further argued that both the learned courts below had erred in not appreciating that application filed under Section 65 of the Indian Evidence Act was allowed by the learned trial court vide order dated 21.5.2004. 11. On the other hand it was submitted by Mr. G.R. Palsra learned counsel for respondents No.1 to 4 that the factum of there not being any valid Will executed by late Smt. Kamla in favour of defendants No.1 and 2 stood concurrently decided in favour of the present appellant and the said finding returned by both the learned courts below did not warrant any interference in the second appeal. Mr. Palsra further argued that even otherwise, there is no infirmity with the findings returned in this regard by both the learned courts below because the execution of the Will in issue could not be proved by the defendants as was rightly held by both the learned courts below. Mr. Palsra further submitted that there was no question of presumption of valid execution and disposition of the testator in favour of beneficiary when the suspicion surrounding the execution of the Will could not be explained satisfactorily by the propounder of the Will. Accordingly, he argued that there was no merit in the appeal and the same be dismissed. 12. I have heard learned counsel for the parties and also gone through the records of the case as well as judgments and decrees passed by both the courts below. 13. In the present case there is a concurrent finding recorded by both the learned courts below to the effect that Kamla Devi never executed any Will dated 24.1.1994 in favour of defendants No.1 and 2. The Will in issue is on record as Ext. DW1/A. The Will bears the signatures of the testator Kamla Devi. The scribe of the Will was Mansukh and Dhayan Singh was the marginal witness of the execution of the said Will. 14. Mansukh has entered the witness box as DW3 and he has stated that he has seen the second copy of Will and this Will was scribed by him on the asking of Kamla Devi. He has further deposed that the Will was read over to Kamla Devi and after accepting the contents thereof to be correct, she had appended her signatures on the original Will as well as the second copy of the same. He has further deposed that the Will was read over to Kamla Devi and after accepting the contents thereof to be correct, she had appended her signatures on the original Will as well as the second copy of the same. He further stated that witness had also appended signatures in the presence of Kamla Devi. He further stated that at the relevant time Kamla Devi was in sound and disposing state of mind and she was in a position to understand what was good and bad for her. In his cross-examination he admitted it to be correct that in the second copy he had not written that the same was true copy of the original. He further stated that he cannot say that second copy was the true copy of the original or not. 15. Dhayan Singh entered the witness box as DW4 and this witness deposed that Kamla Devi had got one Will scribed through Mansukh and that he had seen the second copy of the same. This witness further stated that the Will was read over and after understanding the contents thereof, Kamla Devi had appended her signatures on the same and thereafter he had also signed the same. He stated that he appended his signatures in the presence of Kamla Devi and she was in a sound and disposing state of mind. In his cross-examination this witness deposed that he came after some time of the scribing of the Will. He further stated that he reached the Tehsil on that day between 1:30 and 2:00 p.m. He further stated that he had come there because of his own work. He further admitted in his cross-examination that Kamla Devi did not append her signatures Mark Y, Mark Z and Mark Z1 on Ext. DW1/A in his presence. This witness further stated in his cross-examination that he was asked to be a witness to the execution of the Will by Keshav and he had become a witness to the same on the asking of Keshav and he did not know Kamla Devi. He further stated that Keshav met him in the Tehsil. Another important thing which is stated in his cross-examination was that the Will in fact already stood scribed before he reached there and after his arrival only his name and address was written. 16. He further stated that Keshav met him in the Tehsil. Another important thing which is stated in his cross-examination was that the Will in fact already stood scribed before he reached there and after his arrival only his name and address was written. 16. Section 63 of the Indian Succession Act clearly lays down that every testator shall execute his/her 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. (c) The will shall he 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 acknowledgment 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." 17. Coming to the facts of the present case, it has clearly and categorically come in the testimony of DW4 that the Will in issue was already scribed when he reached and after his arrival only his name and address were scribed on the Will. He further stated in his cross-examination that the testator of the Will did not append her signatures on the same in his presence. In the present case it is apparent that the propounder of the Will Keshav had played an active role in the execution of purported Will Ext. DW1/A. 18. It has been held by the Hon’ble Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma, AIR 1959 SC 443 , that in the cases in which execution of the Will is surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of her own free will. DW1/A. 18. It has been held by the Hon’ble Supreme Court in H. Venkatachala Iyengar Vs. B.N. Thimmajamma, AIR 1959 SC 443 , that in the cases in which execution of the Will is surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of her own free will. The Hon’ble Supreme Court has further held that in such circumstances, the initial onus is on the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. Such suspicion cannot be removed by the mere assertion of the propounder that the Will bears signature of the testator or that the testator was in a sound and disposing state of mind at the time when the Will was made. 19. In the present case, the propounder of the Will has failed to discharge this initial onus as she has not been able to remove all reasonable doubts in the matter. Though the purpose of the Will is to deprive the natural heirs from the devolution of the property as per natural succession, however, if the Will is suspicious, then the onus is upon the propounder of the Will to remove that suspicion and if the propounder succeeds in removing the suspicious circumstances, then the Court has to give effect to the Will, even if it has cut off whole or in part near relations. 20. It is a matter of record that in the present case the original Will was not produced by the defendants and in fact they led secondary evidence in order to prove the execution of Will, Ext. DW4/A, by stating that the original Will was lost. In this regard, it is relevant to refer to the averments which were made by the defendants in the application which was filed under Section 65 of the Indian Evidence Act for permitting them to lead secondary evidence. 21. Para 3 and 4 of the said application read as under:- “3. DW4/A, by stating that the original Will was lost. In this regard, it is relevant to refer to the averments which were made by the defendants in the application which was filed under Section 65 of the Indian Evidence Act for permitting them to lead secondary evidence. 21. Para 3 and 4 of the said application read as under:- “3. That after the execution and registration of the aforesaid Will dated 24.1.1994, the same was kept in safe custody by the defendants No.1 and 2 and after the death of Smt. Kamla Devi, the estate left by her has been inherited by the defendants No.1 and 2 on the basis of the aforesaid Will and the mutation to this effect has also been attested and sanctioned in favour of the defendants No.1 and 2. 4. That the original Will dated 24.1.1994 executed by said Kamla Devi during her life time, is now lost and the defendants tried their level best to trace out the same but the same is not traceable as such the defendants No.1 and 2 are not in a position to produce the aforesaid original Will dated 24.1.1994.” 22. However, Keshav Ram who entered the witness box as DW2 stated in his cross-examination that the original Will was with him and thereafter he stated that he had handed it over to the Advocate. Application for permission to lead additional evidence is dated 21.4.2004. DW2 Keshav Ram entered the witness box on 17.8.2004. Learned trial Court allowed the application filed by the defendants to lead additional evidence vide order dated 21.5.2004. The only conclusion which can be drawn from what has been discussed above is that either the averments which were made in the application filed by defendants for permitting them to lead secondary evidence were incorrect and wrong or the statement made by DW2 in the Court was incorrect and wrong. However, keeping in view the fact that DW2 had entered the witness box subsequently then the filing of application by the defendants to lead secondary evidence, it is apparent that the application which was filed by the defendants for permitting them to lead secondary evidence were based on incorrect facts. 23. However, keeping in view the fact that DW2 had entered the witness box subsequently then the filing of application by the defendants to lead secondary evidence, it is apparent that the application which was filed by the defendants for permitting them to lead secondary evidence were based on incorrect facts. 23. Be that as it may, it remains a matter of fact that the original Will was not produced by defendants on the pretext that the same was lost but Keshav Ram in his cross examination categorically stated that the Will was in his possession and thereafter he stated that the same was handed over to him by his Lawyer. The only conclusion which can only be drawn from the said conduct of the defendants is that the original Will was purposely withheld by them from the Court and this itself becomes a suspicious circumstance regarding the execution of the Will which in my considered view defendants miserably failed to dispel. 24. Further coming to Will, Ext. DW1/A, in his cross examination Mansukh who entered the witness box as DW3 has deposed that he cannot say that the second copy of the Will was true copy of the original Will, therefore, in this view of the matter also in my considered view defendants were not able to remove the suspicion circumstances surrounding the Will. Perusal of judgments passed by both the learned courts below will demonstrate that both the learned courts below have taken into consideration the evidence on record and after discussing the same in detail they have come to the conclusion that defendants could not prove that Will Ext. DW1/A was a valid Will executed by Kamla Devi in their favour. It cannot be said that the findings so arrived at by the learned courts below are either perverse or not borne out from the records. The contention of the learned counsel for the appellant that because the Will in issue is a registered Will, therefore, presumption is in favour of the said Will that it is a validly executed Will also deserves rejection because the document in issue was registered in itself is not sufficient to dispel all the other related suspicious circumstances regarding the validity of the Will. In my considered view had the defendants been able to dispel the suspicious circumstances surrounding the execution of the Will then the factum of the said Will being a registered document would they had come to their rescue in the absence of the original Will being on record. However in the present case the appellant/defendants have miserably failed to prove that Ext. DW1/A was a validly executed Will by Kamla Devi in their favour. 25. The Hon’ble Supreme Court in S.R. Srinivasa and others Vs. S. Padmavathamma, (2010) 5 SCC 274 held as under:- “This Court in Iyengar case had clearly held that cases in which the execution of the will is surrounded by suspicious circumstances, it may raise a doubt as to whether the testator was acting of his own free will. In such circumstances it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter. The presence of suspicious circumstances makes initial onus heavier. Such suspicion cannot be removed by the mere assertion of the propounder that the will bears signature of the testator or that the testator was in a sound and disposing state of mind at the time when the will was made” 26. The Hon’ble Supreme Court in Bharpur Singh and others Vs. Shamsher Singh, (2009) 3 SCC 687 has held as under:- “14. The legal principles in regard to proof of a will are no longer res integra. A will must be proved having regard to the provisions contained in clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, in terms whereof the propounder of a will must prove its execution by examining one or more attesting witnesses. Where, however, the validity of the Will is challenged on the ground of fraud, coercion or undue influence, the burden of proof would be on the caveator. In a case where the Will is surrounded by suspicious circumstances, it would not be treated as the last testamentary disposition of the testator. 15. This Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma opined that the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. 15. This Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma opined that the fact that the propounder took interest in execution of the Will is one of the factors which should be taken into consideration for determination of due execution of the Will. It was also held that: (AIR p. 451, para 19) one of the important features which distinguishes Will from other documents is that the Will speaks from the date of 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. 16. In H. Venkatachala case, it was also held that the propounder of will must prove: (i) that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and (ii) when the evidence adduced in support of the Will is disinterested, satisfactory and sufficient to prove the sound and disposing state of testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of propounder, and (iii) If a Will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein. It was moreover held: (H. Venkatachala case, AIR p. 452, para 20) "20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein. It was moreover held: (H. Venkatachala case, AIR p. 452, para 20) "20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter." 17. This Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao held: (SCC pp. 447-48, paras 33-34) "33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See Madhukar D. Shende v. Tarabai Aba Shedage and Sridevi v. Jayaraja Shetty.) Subject to above, proof of a Will does not ordinarily differ from that of proving any other document. 34. There are several circumstances which would have been held to be described (sic) by this Court as suspicious circumstances: (i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will; (ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances; (iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit. [See H. Venkatachala Iyengar v. B.N. Thimmajamma and T.K. Ghosh's Academy v. T.C. Palit.]" 27. The Hon’ble Supreme Court in Kashibai and another Vs. Parwatibai and others, 1996 (1) S.L.J. 315 has held as under:- 11. Here we may also take note of the definition of the expression "attested" as contained in Section 3 of the Transfer of Property Act which reads as under:- "3. The Hon’ble Supreme Court in Kashibai and another Vs. Parwatibai and others, 1996 (1) S.L.J. 315 has held as under:- 11. Here we may also take note of the definition of the expression "attested" as contained in Section 3 of the Transfer of Property Act which reads as under:- "3. attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." Having regard to the afore-mentioned definition an attesting witness is a person who in the presence of an executant of a document puts his signature or mark after he has either seen the executant himself or someone on direction of the executant has put his signature or affixed his mark on the document so required to be attested or after he has received from the executant a personal acknowledgement of his signature or mark or the signature or mark of such other person. In the present case the trial Court after a close scrutiny and analysis of the evidence of the defendant No. 1, Smt. Parvati Bai, Vir Bhadra. 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 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. 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 law does not emphasis 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 assumption and surmises and, totally against the weight of the evidence on record. With respect to the High Court we may say that these findings of the High Court are clearly based on assumption and surmises and, 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 law which finding has been further affirmed by the lower appellate Court after an independent reappraisal of entire evidence with which we find ourselves in agreement as there was hardly any scope or a valid reason for the High Court to interfere with.” Therefore, in view of the discussion held above as well as the law laid down by the Hon’ble Supreme Court it cannot be said that the findings returned by both the learned courts below to the effect that defendants were not able to prove valid execution of Will Ext. DW2/A in their favour. Both the learned courts below have correctly come to the conclusion that the defendants were not able to prove the valid execution of Will Ext. DW4/A in accordance with law. The substantial question of law is answered accordingly and as a result thereof, the appeal is dismissed with costs.