JUDGMENT : (Saurabh Shyam Shamshery, J.) Heard Mr. Rohit Verma, Advocate holding brief of Mr. Krishna Mohan, learned counsel for petitioner and Mr. Jai Raj, learned counsel for the contesting respondents. 2. In the present case land in dispute was acquisition of one Balidan Singh, which was later on inherited by one Sheodin Singh, who died issueless in the year 1965. The respondent No. 4 set up a case that he was son of Sheodin Singh's sister and further claimed that such Sheodin Singh has executed a Will deed on 23.7.1957 in his favour as well as on ground of inheritance also. 3. The respondent No. 4 on the basis of said Will deed instituted a suit under Section 229B of U.P.Z.A. & L.R. Act, claiming Sirdhari and Bhumidhari rights on part of land in dispute. The Suit was contested by the petitioner that said Balidan Singh has only one daughter namely Sheo Kala and Sheodin Singh was not empowered to execute Will in regard to land in dispute. 4. The Assistant Collector Ist-Class Rai-Bareilly, framed eight issues, including the issue No. 2 i.e. (Did Sheodin Singh execute Will deed in favour of the plaintiff? If so, is it valid? 5. The learned Trial Court decided the said issue, that the Will deed was executed by Sheodin Singh, in favour of the plaintiff and that it was also valid. Other issues were also decided and finally the Suit was decreed and the plaintiff/respondent No. 4 was declared Co-Bhumidar and Co-Sirdar of parts of land in dispute by judgment dated 31.10.1975. The relevant findings, so far as Issue Nos. 1 and 2 is concerned, are reproduced hereinafter : ''Issues Nos. 1 and 2 : From the judgment dated 7-6-81 in mutation case No. 82 filed by Chhotey Singh in Tahsildar's Court shows that it had been held that the plaintiff Chhotey Singh is the sister's son of Sheodin Singh. The will not deed which is a registered document was executed by Sheodin Singh on 23-7-57 the megina 1 witness of which was Brij Lal, now dead, whose signatures were proved by P.W.1 Ranjit singh, the brother of Brij Lal. The deceased willed all his property in favour of the plaintiff whom is he has mentioned there in as his sister's son. The deceased willed all his property in favour of the plaintiff whom is he has mentioned there in as his sister's son. Sheodin singh died in 1965 and the deed was executed 8 years prior to his death in which he has clearly mentioned that Chhotey Singh, son of his sister's Smt.Rajauta lived with Sheodin Singh during his life time. P.W.1 Ranjit Singh also have proved the pedigree given in the plaint and stated that the plaintiff is the son of Rajuta Devi who was the real sister's of Sheodin singh. Pratap Bahadur Singh, defendant No. 8 has also proved the above facts in his statement. Even D.W.1 Ram Swarup Singh has deposed in cross-examination that Baladan Singh had a son Sheodin Singh and a daughter name Rajauta Kunwar. The defendants could not give any concreate proff against the above evidence to prove their version to the effect that Baladan Singh had no daughter, as alleged by them, named Sheo Kala. Thus it is proved beyoned doubt that the plaintiff is the real sister's son of Sheodin Singh particularly in view of the statement of Bhagwan Bux singh himself where in cross-examination he has definitely deposed that Puran Singh is not the sister's son of Sheodin Singh. No doubt in his examination in chief it was alleged that Puran singh is the son of Sheo Kala who was the step sister of Sheodin Singh and who has been also living in house of Sheodin Singh. But D.W.2 Bhagwan Bux Singh further stated that Babadan Singh had got only one wife and no second marriage of his was performed. I, therefore, hold that the plaintiff, Chhotey Singh is the son of Smt.Rajauts, the real sisters of Sheodin Singh. As regards the validity of the will-deed, executed by Sheodin Singh, dated 23-7-57, it has been argued on behalf of the contesting defendants that he could execute the deed only he respect of the Bhumidhari rights and not Sirdari Land, in this case the matter of intetitance is involved and the plaintiff is not claiming the bhumidhari or Sirdari rights simply on the basis of the will-deed but he has claimed the inheritance on the basis of his being the sister's son of the deceased Sheodin Singh. The contesting defendants have not cared to prove their version that the will is Farzi, as alleged by them in the written-statement. The contesting defendants have not cared to prove their version that the will is Farzi, as alleged by them in the written-statement. As such I, hold that the will deed was executed by Sheodin Singh in favour of the plaintiff and that it is also valid. In view of the above findings Issues Nos. 1 and 2 are decided in the affirmative.'' 6. The petitioner being aggrieved, filed an Appeal before the Additional Commissioner Lucknow, which was dismissed by an order dated 12.3.1978 and the finding in regard to issue of Will by the learned Trial Court was upheld and it was declared to be a genuine registered document. 7. In the aforesaid circumstances, the petitioner approached Board of Revenue by way of filing a Second Appeal inter alia on various grounds. For reference relevant grounds are mentioned hereinafter : ''3. Because the execution of will cannot be proved unless attesting witnesses are examined. Neither the attesting witnesses were examined not the scribed was produced. 4. Because the finding of the learned Court below are perverse as the same are based upon inadmissible and unproved evidence on record. The finding cannot be given on the basis of will unless the same was proved. The will is inadmissible in evidence unless it has been proved. 6. Because the learned lower appellate Court has erred in setting up a new case of joint Hindu-family which was not pleaded by any party to the case. The learned appellate Court had held that the family of Jagpal Singh and Shiv-Din was joint. It is no body's case and the learned appellate Court cannot travel beyond the pleadings of the parties. The defendant appellant has also taken specific plea that Jagpal Singh ousted Shiv-Din and remained in possession exclusively for the last more-than 20 years. The learned appellate Court has erred in holding that no case was pleaded by the appellant that Jagpal ousted Shiv-Din. The Court below has misread the pleading of the parties.'' 8. The Board of Revenue by an order dated 24.11.1981 dismissed the Second Appeal and upheld the findings returned by the Trial Court as well as of the Appellate Court. The relevant part of the order dated 24.11.1981 is reproduced hereinafter : ''4. I have gone through the record of the case and have also heard the arguments of the learned counsels for the parties. 5. The relevant part of the order dated 24.11.1981 is reproduced hereinafter : ''4. I have gone through the record of the case and have also heard the arguments of the learned counsels for the parties. 5. The learned counsel for the appellant has argued that plot No. 509 was not agricultural land and the learned lower Courts had no jurisdiction to decide about it and as such the proceedings of the trial Court was vitiated. He has cited various rulings to prove his contention. Regarding merits of the case he has argued that the plaintiff was the sister's son but the execution has been denied because will has not been proved and that the mere registration does not validate the will as has been held in various rilings. The latest ruling referred A.I.R. 1977 page 77. He has further argued that the Additional Commissioner could not upset the joint family case as has been held in 1977 Supreme Court A.I.R. page 2262 that mortgage take place during the life time of the deceased and that the oral evidence has not been touched by the lower appellate Court. 6. In reply, the learned counsel for the respondent has argued that the survey commissioner whose report is on record found the construction on plot No. 599. Moreover, no such plea was taken before the learned Additional Commissioner and the learned counsel for the appellant is barred to raise this plea before this Court, and that the mutation proceedings were dropped because of the consolidation and the mutation was ordered on the basis of possession alone but at the same time the respondent was accepted the real sister's son. That the marginal witnesses of the will have died and that adverse possession took place and that son of Sheo Kala was Puran Singh and that is not the son of the sister of Sheodin. The record of the case shows that the appellant had not raised the pleas regarding the suit being barred on account of consolidation proceedings in the village and not framing of the issue as such these two pleas cannot be raised at this stage and are therefore not being considered. The record of the case shows that the appellant had not raised the pleas regarding the suit being barred on account of consolidation proceedings in the village and not framing of the issue as such these two pleas cannot be raised at this stage and are therefore not being considered. As regards the validity of the will it is a finding of fact and both the trial Court as well as the lower appellate Court have arrived at the conclusion after careful consideration and shifting of the evidence on record. I also find that the learned Additional Commissioner has not decided the case on the basis of the fact that the family was joint Hindu family. The argument of the learned counsel for the appellant on this point looses its impact in view of the fact that the learned Additional Commissioner has mentioned in passing while discussing the proximity of the defendant-respondent with the deceased contenure holder. It therefore, does not attract the application of the ruling cited by him on this point. The learned Additional Commissioner has considered all the points raised in the appeal and has applied his mind before arriving at the conclusion. In view of the above it does not appear that the learned lower appellate Court has commited any mistake or error which would warrant into reference in the second appeal.'' 9. In the aforesaid circumstances, the petitioner approach this Court and filed the present writ petition in the year 1981 wherein all the above referred orders were impugned. This Court by order dated 23.12.1981 passed an interim order that the entries in favour of the petitioner may not be disturbed and the said stay order was confirmed by an order dated 13.10.1982 which remained in currency. 10. Mr. Rohit Verma, learned counsel appearing on behalf of the petitioner vehemently submitted that the learned Trial Court has not decided the issue in regard to proof of Will in terms of relevant provisions of the Evidence Act. The attesting witnesses and scriber of the Will were not examined and accordingly the Will was not proved in terms of the legal procedure. 11. Learned counsel also referred the above referred grounds taken in the memo of Second Appeal as well as following grounds referred in present Writ Petition : ''(D) Because the execution of will cannot be proved unless attesting witness or examined. 11. Learned counsel also referred the above referred grounds taken in the memo of Second Appeal as well as following grounds referred in present Writ Petition : ''(D) Because the execution of will cannot be proved unless attesting witness or examined. Chhotey Singh respondent No. 4 neither produced attesting witnesses nor produced the scriber of alleged will. (E) Because the respondent No. 1, 2 and 3 have given perverse finding as the same relied-upon in admissible and unproved evidence on record. The will is in-admissible in evidence unless it has been proved. (F) Because a very heavy onus lay upon the person setting up the will and strict proof is required to prove the execution of the will but the respondent No. 1, 2 and 3 did not comply the provisions of law. (G) Because the respondent Nos. l, 2 and 3 have erred in setting-up a new case of joint Hindu family which was not pleaded by any party to the case. It was specific plea of the petitioner that Jaspal Singh (father of the petitioner ousted Sheo-Deen Singh deceased and remained in possession exclusively and adversely for the last more than 25 years. The respondent No. 1, 2 and 3 misread the pleadings of the petitioner.'' 12. Learned counsel, in support of his submissions, placed reliance on judgements passed by this Court in Gaon Sabha v. B.R., 2024 AHC 16953, Dr. Jeevan Bahadur Samaddar v. Govind Charan Samaddar and others, dated 30.5.2013 (Second Appeal No. 234 of 2010) and by Supreme Court in Santosh Hazari v. Purushottam Tiwari, 2001 LawSuit (SC) 237 and H. Venkatachala Iyengar v. B.N. Thimmajamma and others, AIR 1959 SC 443 . 13. Per contra, Mr. Jai Raj learned counsel for contesting respondent refers the findings returned by the Trial Court and affirmed by the Appellate Court as well as Board of Revenue that since they are not perverse findings, therefore, the same may not be interfered in the writ jurisdiction. 14. Heard the counsel for the parties and perused the record. 15. Before adverting to the rival submissions a recent judgement passed by the Supreme Court, on the issue of proof of Will, in case of Meena Pradhan and others v. Kamla Pradhan and another, 2023 INSC 847 , is relevant and its Paragraph Nos. 7 to 11 are mentioned hereinafter : ''7. 15. Before adverting to the rival submissions a recent judgement passed by the Supreme Court, on the issue of proof of Will, in case of Meena Pradhan and others v. Kamla Pradhan and another, 2023 INSC 847 , is relevant and its Paragraph Nos. 7 to 11 are mentioned hereinafter : ''7. Before delving into the facts of the case, it is pertinent to reproduce the relevant provisions dealing with the validity and execution of the Will. ''Section 63 of the Indian Succession Act, 1925 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. (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 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 1872 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: xxx'' 8. Thus, a bare reading of the abovementioned provisions would show that the requirements enshrined under Section 63 of the Succession Act have to be categorially complied with for the 4 CIVIL APPEAL NO. 3351 OF 2014 execution of the Will to be proven in terms of Section 68 of the Evidence Act. 9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator's property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. 10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 (3Judge Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135 (3Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 (2Judge Bench) Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 (3Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC 277 (3 Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the Will: i. The Court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him; ii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. iii. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. iii. A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures; (d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required; iv. For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of Court, and capable of giving evidence, shall be examined; v. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator; vi. If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; vii. Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; viii. Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last Will. In such cases, the initial onus on the propounder becomes heavier. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. In such cases, the initial onus on the propounder becomes heavier. ix. The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will; x. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. xi. Suspicious circumstances must be 'real, germane and valid' and not merely 'the fantasy of the doubting mind' 1. Whether a particular feature would qualify as 'suspicious' would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc. 11. In short, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances.'' 16. In the present case there are concurrent findings of three Revenue Courts that the Will was proved and there was no suspicious circumstances. 17. It is well-settled that in order to disturb concurrent findings there must be material that the concurrent findings were absolutely perverse or a well-settled principle of law was not followed. 18. As referred above, the learned Trial Court decided the issue on basis of statement of PW-1 Ranjeet Singh brother of Brijlal (since deceased) a marginal witness to Will and he proved signatures of his brother. The other marginal witness was not examined as well as scriber was also not examined. 19. 18. As referred above, the learned Trial Court decided the issue on basis of statement of PW-1 Ranjeet Singh brother of Brijlal (since deceased) a marginal witness to Will and he proved signatures of his brother. The other marginal witness was not examined as well as scriber was also not examined. 19. The learned Trial Court held that the contesting respondent No. 4/plaintiff was son of real sister of Sheodin Singh, and that the defendants/petitioner has failed to prove that the Will was fictitious. It was also held that Sheodin Singh, was empowered to execute the Will. His right on basis of inheritance was also accepted. 20. From the bare perusal of the reasons assigned by learned Trial Court, it appears that the above referred principles, to prove a Will, were not followed. It is not on record that other attesting witness was not able to come forward and since he was not produced, therefore, there was no evidence that the attesting witness has seen the testator signed his mark to Will as well as that he has seen other persons also to sign on the Will in his presence. 21. In this regard the Court also takes note of statement of Chhotey Singh, the plaintiff, however, he himself has not stated about details of attesting witnesses and scriber. So far as other witness is concerned, i.e. Ranjit Kumar, he can only prove signature of his brother (since deceased), one of the attesting witnesses. In these circumstances, it was mandatory to examine other attesting witnesses to prove the Will in accordance with law. It was not the case that other attesting witness was not alive. 22. The Court also perused order passed by the Appellate Court. The Appellate Court gave more emphasis that the Will was a registered document as well as whether the testator was empowered to execute the Will or not. The Appellate Court has not considered the requisite procedure to prove a Will i.e. whether the attesting witnesses were examined or not and the consequence of their non examination. 23. The Court further perused specific grounds taken by the petitioners in the memo of second appeal, that execution of Will cannot be proved unless attesting witnesses are examined and in the present case neither one alive attesting witness nor scriber was examined. 24. 23. The Court further perused specific grounds taken by the petitioners in the memo of second appeal, that execution of Will cannot be proved unless attesting witnesses are examined and in the present case neither one alive attesting witness nor scriber was examined. 24. The Court also perused the order passed by the Board of Revenue in the Second Appeal that the above referred grounds was not even considered and without returning a finding about effect of non-examination of attesting witnesses (alive) and scriber, dismissed the second appeal returning a very short finding. The Board of Revenue has not applied mind whether any question of law was involved or not. 25. In the aforesaid circumstances the Court is of considered opinion that the position of law, so far as proof of Will is well-settled and is being retreated in Meena Pradhan and others (Supra) also that a Will has to be proved in terms of Section 63 Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1872. 26. As referred above, Section 63 of Indian Succession Act, 1925 contemplates certain formalities that it was mandatory to get the Will attested by two or more witnesses and in order to prove the Will under Section 68 of Indian Evidence Act, 1872, that at least one attesting witness has to come forward to prove the Will. 27. As referred above, in the present case, one of the attesting witnesses has died, before the suit was filed, however, it is not on record whether other attesting witness was alive or not and since there is no finding that he was dead, it is, therefore, presumed that he was alive, however, the plaintiff has neither produced him nor scriber was produced. Therefore, the Will cannot be considered to be proved in terms of above referred provisions, as well as in terms of Meena Pradhan (supra). 28. In the aforesaid circumstances the Court is of considered opinion that there was a question of law involved before the Board of Revenue that the orders passed by the Trial Court and the Appellate Court were contrary to the law and that Will was not proved in accordance with law, however, the Board of Revenue has failed to consider it. 29. 29. In the aforesaid circumstances the Court can remand the matter to the Board of Revenue to decide the Second Appeal afresh, after framing question of law, however, the Court takes note that this writ is pending since 1981 i.e. for about more than four decades, therefore, to remand the matter at this stage would not be in the interest of justice. 30. In the aforesaid circumstances the Court is of considered opinion that it is a fit case where an interference could be caused in the concurrent findings of three Revenue Courts, since they are perverse and finding returned that the Will was proved was contrary to establish and settled law to prove a Will. 31. The evidence produced by the plaintiff/respondent No. 4 was not sufficient to prove the Will, therefore, the findings returned by the Trial Court/Appellate Court as well as Board of Revenue are perverse and contrary to law and therefore an interference is caused and accordingly all the impugned judgements are set aside, the suit filed by plaintiff/respondent No. 4 is dismissed and its legal consequence Will follow. 32. With aforesaid observations, this writ petition is disposed of.