JUDGMENT : Dharam Chand Chaudhary, J. Plaintiffs are in second appeal before this Court. They are aggrieved by the judgment and decree passed by learned District Judge, Kinnaur Division at Rampur Bushahr, H.P. in Civil Appeal 109/1996, dated 27.9.1999, reversing thereby the judgment and decree dated 19.7.1996 passed by Senior Sub Judge, Kinnaur Division at Rampur Bushahr, Distt. Shimla in Civil Suit No. 137-1 of 1993/92 and dismissed the suit filed by them. 2. The subject matter of dispute in the present lis is land called as Kholti measuring about 16 biswas, Kashu Sataina, Khobar Kyar measuring 15 biswas which is part of land entered in Khata Khatoni No. 27/56 and 28/60 situate in Chak Jhana, Khata Khatoni No. 54/123 to 129, 55/136 to 138, 56/139 to 143, 60/143 and 69/147 situate in Chak Dansa, Khata Khatoni No. 70/148 to 152 situate in Chak Jagoni, Khata Khatoni No. 98/304 to 306 situate in Chak Dhar and the houses situate in abadi deh at Village Dansa, the ancestral property of late Lacchman, predecessor-in-interest of the parties to the suit. Lacchman had not acquired any property of his own. The suit property allegedly was co-parcenary property. Sh. Lacchman, their predecessor had died in the month of June, 1988. The respondent (hereinafter referred to as the defendant) allegedly managed the execution of ‘Will’ Ext. P-1 in his favour qua the land in dispute from deceased Lacchman in the year 1986. He allegedly was ill at that time, hence was not in a fit state of mind nor could have executed a valid Will. The plaintiffs when came to know about the existence of this forged and fictitious Will, requested the defendant not to take any benefit out of it but of no avail and to the contrary the mutations qua the land in dispute were attested on the basis of the Will, which according to the plaintiffs was forged and fictitious on 16.8.1989, 27.12.1989 and 21.2.1991, despite the objections they raised to the attestation thereof. Even after the attestation of the mutation also, they requested the defendant to admit their claim qua the land in dispute but of no avail, hence the suit for decree of declaration that Will dated 30.9.1986 Ext. P-1 was not executed by deceased Lacchman Dass in favour of defendant and the same is void, inoperative and not binding upon the plaintiffs. P-1 was not executed by deceased Lacchman Dass in favour of defendant and the same is void, inoperative and not binding upon the plaintiffs. The mutations attested on the basis thereof were also sought to be declared as null, void and inoperative and the same were also sought to be quashed and set aside. 3. In the Written Statement, the defendant had contested the suit on the grounds of limitation, bad for non-joinder of necessary parties, maintainability and valuation etc. etc. On merits, while denying the contentions to the contrary, being wrong, it was pleaded that the land in dispute was inherited by deceased Lacchman from Daya Nand. It is, however, denied that the land was wrongly vested in the name of Lacchman. The deceased Lacchman allegedly rightly acted while executing the Will in question in his favour. It is denied that he had no right to execute the Will in question. 4. On the pleadings of the parties, learned trial Judge has framed the following issues: “1. Whether late Sh. Lachhman executed a valid Will on 30.9.1986? OPD. 2. If issue no. 1 is not proved, whether the mutation of inheritance attested on the basis of the Will is not binding on the plaintiff and is liable to be set aside? OPP. 3. Whether the property is ancestral? OPP. 4. Whether the suit of the plaintiff is bad for nonjoinder of necessary parties? OPD. 5. Whether the suit of the plaintiff is within limitation ? OPP. 6. Whether the suit of the plaintiffs is not maintainable? OPD. 7. Whether the suit of the plaintiffs has been properly valued for the purposes of court fee and jurisdiction? OPP. 8. Whether the plaintiffs has no locus-standi to file the present suit? OPD. 9. Relief. 5. Learned trial Court, on appreciation of the evidence produced by the parties, while answering issues No. 1 to 3 has concluded that the land though was not ancestral, however, it was held that the same could not have been bequeathed in favour of the defendant vide ‘Will’ Ext. P-1, which was held to be illegal, null and void. Consequently, the mutations attested on the basis thereof were also held to be illegal, null, void and inoperative against the rights and interest of the plaintiffs over the land in question. P-1, which was held to be illegal, null and void. Consequently, the mutations attested on the basis thereof were also held to be illegal, null, void and inoperative against the rights and interest of the plaintiffs over the land in question. While answering issue No. 5 in favour of the plaintiffs, the suit has been held to be well within the period of limitation. The objection that the suit is bad for non-joinder of necessary parties, was answered against the defendant. Issues No. 6 & 8 were also answered in negative i.e. against the defendant and as regards valuation of the suit for the purposes of court fee and jurisdiction, the same was also answered in affirmative i.e. in favour of the plaintiffs. Consequently, learned trial Court has decreed the suit and declared the Will in question as null, void and inoperative. The mutations attested on the basis thereof were also declared as void and not binding on the rights of the plaintiffs over the suit land. In appeal, learned lower appellate Court has, however, accepted the appeal and reversed the judgment and decree passed by the trial Court. 6. The legality and validity of the impugned judgment has been questioned on the grounds, inter alia, that the execution of the ‘Will’ Ext. P-1 is not at all proved in accordance with law. The marginal witness examined by the defendant could not identify his thumb impression as well as that of the executants, deceased Lacchman. The requirement of Section 68 of the Indian Evidence Act, 1872, is not at all proved and as such, learned lower appellate Court has erroneously accepted the appeal and dismissed the suit. The original Will was not produced and proved in accordance with law. The Will Ext. P-1 is a legal and valid document has not at all been proved on record. Learned lower appellate Court, has allegedly mis-construed and mis-appreciated the evidence available on record in this regard. There being joint marriage of Lacchman and Dharma Nand, on the death of Dharma Nand, his share could have not been inherited by Lacchman to the exclusion of the plaintiffs and respondent who were class-I heirs and as such were entitled to inherit the share of Dharma Nand. Therefore, deceased Lacchman could not have alienated the land in dispute in favour of defendant in exclusion of the plaintiffs. Therefore, deceased Lacchman could not have alienated the land in dispute in favour of defendant in exclusion of the plaintiffs. Learned lower appellate Court is stated to have not appreciated the evidence available on record in its right perspective and as a result thereof concluded erroneously that the Will was a legal and valid document. 7. The appeal has been admitted on the following substantial question of law: “1. Whether the execution of the Will Ext. P-1 (sic. Ext. DA) has been proved by the propounder by only proving/producing the copy of Will without the production of the Original Will at the trial stage?” 8. Sh. Sumit Raj Sharma, Advocate, learned counsel representing the appellants-plaintiffs has strenuously contended that ‘Will’ Ext. P-1 is a genuine document which has not been proved on record in accordance with law. Therefore, according to Mr. Sharma, learned trial Court has rightly decreed the suit. The findings to the contrary recorded by learned lower Appellate Court have resulted in miscarriage of justice to the plaintiffs. 9. On the other hand, Mr. G.D. Verma, learned Sr. Advocate assisted by Mr. B.C. Verma, Advocate has urged that the ‘Will’ Ext. P-1 is a legal and valid document, duly proved from the evidence as has come on record by way of the own testimony of defendant and also the witness DW-2, he examined. It has, therefore been urged that learned lower appellate Court has appreciated the evidence available on record in its right perspective and has not committed any illegality and irregularity while allowing the appeal on reversal of the judgment and decree passed by the trial Court. 10. The only substantial question of law, as formulated in the present appeal, has to be adjudicated upon in the light of the facts and circumstances of this case and also the evidence available on record as well as the law applicable in a case of this nature. At the outset, I would like to refer to the provisions contained under Section 63 of Indian Succession Act, which provides for necessary constituents of execution of a valid Will. At the outset, I would like to refer to the provisions contained under Section 63 of Indian Succession Act, which provides for necessary constituents of execution of a valid Will. The same reads as follows:- (i) the Will must be attested by at least two witnesses; (ii) Each of these- (a) must either see the testator sing or affix his mark to the Will or must see some other person sign the Will, in the presence and by the direction of the testator, or (b) must receive from the testator a personal acknowledgement of his signature or mark or of the signature of such other person. (iii) Each of these must sign the Will (iv) They must sign in the presence of the testator. 11. This Court in Kishan son of Shri Kundan versus Smt. Tulki Dev wd/o Shri Kundan, 2013 (1), Civil Court Cases 548 (H.P.), after taking note of the legal position that not only the signature of the executor on the Will are required to be proved but the execution thereof should also be free from any suspicious circumstances and that if a Will is shrouded by suspicious circumstances, it cannot be treated as the last testamentary disposition of the testator in various judicial pronouncements, has held that the Will set up in that case was not the last testamentary disposition of the testator being shrouded by suspicious circumstances. 12. The law, in order to infer the execution of legal and valid Will, has been discussed by this Court in Smt. Asha Devi vs. Smt. Tarsem Devi and ors., Latest HLJ 2015 (HP) 564, wherein it has been held as follows: “14. The adjudication of the legal questions takes us to the prerequisites of a legal and valid Will. A reference in this regard can be made to Section 63 of the Indian Succession Act, which reads as follows: “63. Execution of unprivileged Wills. (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. (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 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 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.” 15. Section 68 of the Evidence Act also provides for the requirement of law in the matter of execution of legal and valid Will, which reads as follows: “68. 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 Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied.” 16. Additionally, Section 30 of the Hindu Succession Act provides that any Hindu may dispose of by Will or other testamentary disposition any property, which is capable of being disposed of by him in accordance with the provisions of Indian Succession Act or any other law for the time being in force applicable to Hindus.” 13 The Apex Court in M.B. Ramesh vs. K.M. Veeraje Urs. and others, (2013) 7 SCC 490 , has held as follows: “16. We may, however, note in this behalf that as held by a Constitution bench of this Court in Chunilal Mehta Vs. and others, (2013) 7 SCC 490 , has held as follows: “16. We may, however, note in this behalf that as held by a Constitution bench of this Court in Chunilal Mehta Vs. Century Spinning and Manufacturing Company reported in AIR 1962 SC 1314 , it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties, necessarily raises a question of law. That apart, as held by a bench of three judges in Santosh Hazari Vs. Purushottam Tiwari reported in 2001 (3) SCC 179 , whether a particular question is a substantial question of law or not, depends on the facts and circumstances of each case. When the execution of the will of Smt. Nagammanni and construction thereof was the subject matter of consideration, the framing of the question of law cannot be faulted. Recently, in Union of India Vs. Ibrahim Uddin reported in 2012 (8) SCC 148 , this Court referred to various previous judgments in this behalf and clarified the legal position in the following words:- “67. There is no prohibition to entertain a second appeal even on question of fact, provided the Court is satisfied that the findings of the courts below were vitiated by non-consideration of relevant evidence or by showing erroneous approach to the matter and findings recorded in the court below are perverse.” 17. At the same time we cannot accept the submission on behalf of the respondents as well that merely because the will was more than 30 years old, a presumption under Section 90 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short) ought to be drawn that the document has been duly executed and attested by the persons by whom it purports to have been executed and attested. As held by this Court in Bharpur Singh Vs. Shamsher Singh reported in 2009 (3) SCC 687 , a presumption regarding documents 30 years old does not apply to a will. A will has to be proved in terms of Section 63 (c) of the Succession Act read with Section 68 of the Evidence Act. 18. That takes us to the crucial issue involved in the present case, viz. with respect to the validity and proving of the concerned will. A Will, has to be executed in the manner required by S 63 of the Succession Act. 18. That takes us to the crucial issue involved in the present case, viz. with respect to the validity and proving of the concerned will. A Will, has to be executed in the manner required by S 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness. Section 71 of the Evidence Act is another connected section “which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances”, as observed by this Court in paragraph 11 of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported in 2003 (2) SCC 91 and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted. At the same time, as held in that very judgment the section cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Succession Act to present in evidence a witness, though alive and available. 19. The relevant provisions of these three sections read as follows: “Section 63 of the Succession Act "63. 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) ..... (b) ..... (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." Section 68 of the Evidence Act "68. 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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence..." Section 71 of the Evidence Act "71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not re-collect the execution of the document, its execution may be proved by other evidence." 20. In the present matter, there is no dispute that the requirement of Section 68 of the Evidence Act is satisfied, since one attesting witness i.e. PW-2 was called for the purpose of proving the execution of the will, and he has deposed to that effect. The question, however, arises as to whether the will itself could be said to have been executed in the manner required by law, namely, as per Section 63 (c) of the Succession Act. PW-2 has stated that he has signed the will in the presence of Smt. Nagammanni, and she has also signed the will in his presence. It is however contended that his evidence is silent on the issue as to whether Smt. Nagammanni executed the will in the presence of M. Mallaraje Urs, and whether M. Mallaraje Urs also signed as attesting witness in the presence of Smt. Nagammanni. Section 63 (c) of the Succession Act very much lays down the requirement of a valid and enforceable will that it shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will, and each of the witnesses has signed the will in the presence of the testator. As held by a bench of three judges of this Court (per Gajendragadkar J, as he then was) way back in R. Venkatachala Iyengar Vs. B N. Thimmajamma reported in AIR 1959 SC 443 , that a will has to be proved like any other document except that evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Succession Act, apart from the one under Section 68 of the Evidence Act.” 14. B N. Thimmajamma reported in AIR 1959 SC 443 , that a will has to be proved like any other document except that evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Succession Act, apart from the one under Section 68 of the Evidence Act.” 14. Applying the above legal principles in the given facts and circumstances of this case, it would not be improper to conclude that the execution of the Will Ext. P-1 is not at all proved and the same rather is shrouded by suspicious circumstances cannot be treated to be the last testamentary disposition of the testator deceased Lacchman Dass by any stretch of imagination. The present, as a matter of fact, is a case where cogent and reliable evidence qua scribe of the Will Ext. P-1 at the instance of the testator deceased Lacchman and attestation by two marginal witnesses, in the manner as provided under Section 63 (c) of the Indian Succession Act, is not at all proved. 15. The original Will has not seen the light of the day. The defendant, propounder thereof has not produced the same in evidence while in the witness box. It is an attested copy thereof, which has been tendered in evidence by learned counsel representing the plaintiffs in his own statement recorded separately. When the defendant has failed to produce the original Will, how he could have said, while in the witness box, that the same was executed by his father deceased Lacchman in his favour and that thereby the land in dispute was bequeathed to him exclusively in complete ouster of the plaintiffs, none else but his real brothers. Otherwise also, nothing has come on record in his statement while in the witness box as DW-1 as to who was the scribe of the Will. He has also not said anything about the marginal witnesses who witnessed the execution thereof in the manner as provided under Section 63 (c) of the Indian Succession Act. 16. Now, if coming to the statement of Chura Ram, no doubt, he claims himself to be one of the marginal witnesses to the Will Ext. He has also not said anything about the marginal witnesses who witnessed the execution thereof in the manner as provided under Section 63 (c) of the Indian Succession Act. 16. Now, if coming to the statement of Chura Ram, no doubt, he claims himself to be one of the marginal witnesses to the Will Ext. P-1 and while in the witness box has deposed that the same was executed by deceased Lacchman at Rampur in favour of Vasu Dev (defendant), however, he expressed his ignorance that the same was reduced into writing by the scribe who sits near the side of one Megha Nand. Though, as per his version he had signed this document, however, due to weak eye-sight, expressed his inability to identify the same, meaning thereby that he has failed to identify his signatures on this document. Though, he tells us that the witnesses Moti Ram and Jagat Ram were also present, however, nothing has come in his statement that they had also put their signatures on this document. Interestingly enough, nothing has come on record to show in his statement that Will in question was reduced into writing at the instance of deceased Lacchman. The contents thereof were read over and explained to said deceased Lacchman in vernacular and that after understanding and admitting the same to be true and correct, he had put his signatures in the presence of all the witnesses. Also that, the witnesses had also put their signatures in the presence of testator. In other words, there is no evidence to show that the marginal witnesses have seen the testator while putting his signatures on the Will and the testator had also seen the marginal witnesses while putting their signatures on the Will in question. Therefore, for want of such evidence, it cannot be said by any stretch of imagination that Will Ext. P-1 is a legal and valid document. This is the only evidence produced by the defendant to prove the execution of ‘Will’ Ext. P-1, which in the opinion of this Court, is neither sufficient nor cogent and reliable. The facts and circumstances of this case rather are identical to M.B. Ramesh’s case (supra). The point in issue in this case, therefore, is squarely covered by the judgment ibid. 17. P-1, which in the opinion of this Court, is neither sufficient nor cogent and reliable. The facts and circumstances of this case rather are identical to M.B. Ramesh’s case (supra). The point in issue in this case, therefore, is squarely covered by the judgment ibid. 17. Now, if coming to the evidence produced by the plaintiffs, plaintiff No. 2 has himself stepped into the witness box as PW-1. He has categorically stated that deceased Lacchman, being 80-90 years of age, was not in a sound disposing state of mind and neither he executed any Will in favour of the defendant nor he could have done so. As per his version, the Will in question is not a legal and valid document. Similar is the version of PW-2 Sh. Madan Lal. Both of them, though have been cross-examined at length, but in sundry. When the onus to prove that the Will executed in his favour is a genuine document has not been discharged by him at all, the same cannot be held as legal and valid by any stretch of imagination. Learned lower appellate Court has neither appreciated the evidence available on record nor legal position in its right perspective and as a result thereof the findings so recorded are erroneous, hence not legally sustainable. The substantial question of law is decided accordingly. 18. In view of what has been said hereinabove, this appeal succeeds and the same is accordingly allowed. Consequently, the judgment and decree passed by learned lower appellate Court is quashed and set aside and that of learned trial Court is affirmed. However, no orders so as to costs.