First Appellate Court Must Address Suspicious Circumstances Surrounding Execution Of Will; Adverse Inference To Be Drawn If Propounder Fails To Testify: Himachal Pradesh High Court

"In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. It becomes a matter of the court's conscience, and the true question is whether the evidence led by the propounder is such as to satisfy the conscience of the court that the will was duly executed by the testator." Himachal Pradesh High Court, in a significant ruling, held that a First Appellate Court cannot reverse a Trial Court’s findings on the invalidity of a Will without specifically addressing the suspicious circumstances identified by the lower court.

A bench of Justice Rakesh Kainthla observed that the First Appellate Court, being the final court of fact, is under a legal obligation to come into "close quarters" with the reasoning of the Trial Court before reversing its findings. The Court emphasized that the propounder of a Will bears a heavy burden to dispel all legitimate suspicions through cogent evidence.

The matter arose from a civil suit where the plaintiffs sought a declaration of ownership over suit land based on a Will allegedly executed by one Gulab Singh in 1992. The suit was contested by the defendants, who claimed the Will was forged and that they had inherited the property through natural succession. While the Trial Court dismissed the suit finding the Will surrounded by suspicious circumstances, the District Court reversed this decision in appeal, prompting the present second appeal before the High Court.

The primary questions before the Court were whether the First Appellate Court was right in ignoring the oral and documentary evidence regarding suspicious circumstances as required under Section 96 of the CPC. The Court also had to determine if an adverse inference ought to be drawn against the plaintiffs for failing to appear as witnesses to prove the Will's execution. Furthermore, the Court examined whether the non-production of the Will during earlier revenue mutation proceedings constituted a valid ground for doubting its genuineness.

First Appellate Court Obligated To Individually Rebut Trial Court’s Reasoning

The Court noted that the powers of the first appellate court are well-defined under Section 96 and Order 41 Rule 31 of the CPC. Citing the Supreme Court’s decision in Santosh Hazari v. Purushottam Tiwari, the bench observed that while an appellate court has the jurisdiction to reverse findings of fact, it must consciously apply its mind to the record and assign specific reasons for arriving at a different conclusion.

The High Court found that the learned District Judge had failed to address the specific "suspicious circumstances" enumerated by the Trial Court. The bench held that the appellate court’s failure to form points for determination or consider the evidence relied upon by the trial court led to a serious legal infirmity. It was reiterated that a first appeal is a valuable right, and litigants are entitled to a full, fair, and independent consideration of evidence at that stage.

Test Of Judicial Conscience Essential In Will Disputes

The Court delved into the legal standards for proving a Will under Section 63 of the Succession Act and Section 68 of the Indian Evidence Act. It observed that unlike other documents, a Will speaks from the death of the testator, and the maker is never available to depose regarding the circumstances of its execution. This necessitates a "test of judicial conscience" rather than a test of mathematical certainty.

The bench emphasized that when a Will is surrounded by suspicious circumstances, the initial onus on the propounder becomes significantly heavier. The Court noted that any circumstance raising a "real, germane and valid" doubt—such as a shaky signature, an unfair disposition of property, or the propounder taking a leading part in the Will’s making—must be satisfactorily explained before the document can be accepted as genuine by the court.

Failure To Propound Will At Earliest Opportunity Creates Doubt

The High Court highlighted that the Will was not produced during the mutation proceedings following Gulab Singh's death, where the land was instead mutated in favor of the defendants through natural succession. Citing Kalyan Singh v. Chhoti, the Court observed that where a Will does not see the light of day for a long period and is not mentioned in applications claiming inheritance, it constitutes a major suspicious circumstance.

In the present case, the parents of the minor beneficiaries were present during the mutation attestation but never mentioned the existence of a Will. The Court found it unnatural that the plaintiffs' father would purchase a portion of the same property from a third party if a valid Will already existed in favor of his children. Such conduct, the bench noted, was inconsistent with the existence of a bona fide Will.

Adverse Inference Must Be Drawn If Propounder Avoids Witness Box

A crucial observation was made regarding the non-appearance of the plaintiffs in the witness box. The Court held that when the propounder of a Will fails to testify and offer themselves for cross-examination, an adverse inference must be drawn against them under Section 114(g) of the Indian Evidence Act.

The Court relied on the dictum in Vidhyadhar v. Manikrao, stating that where a party to the suit does not appear in the witness box to state their case on oath, the court should presume that the case set up by them is not correct. The High Court found that the learned Appellate Court erred in ignoring this aspect, as the plaintiffs' testimony was vital to dispelling the suspicions surrounding the execution of the alleged Will.

Will Shrouded In Suspicious Circumstances Cannot Be Upheld

The Court restored the Trial Court's findings regarding several suspicious factors, including the fact that the testator died only eight days after the alleged execution and the scribe failed to enter the Will in his official register. There was also a notable discrepancy regarding the day of execution, which was claimed to be a Sunday but was actually a Tuesday.

The bench concluded that the District Judge had "brushed aside" these glaring issues lightly. The High Court held that the cumulative effect of the non-registration of the scribe's entry, the contradictions in the date of execution, and the delay in propounding the document rendered the Will invalid. Consequently, the High Court set aside the appellate decree and restored the Trial Court’s judgment.

Date of Decision: 30 June 2026