Rambha Bai vs Vijay Kumar Verma
2025 Latest Caselaw 2873 Chatt

Chattisgarh High Court

Rambha Bai vs Vijay Kumar Verma on 22 August, 2025

                                       1




                                                       2025:CGHC:42574
                                                                     NAFR

              HIGH COURT OF CHHATTISGARH AT BILASPUR


                               SA No. 224 of 2022

                      Judgment Reserved on 04.08.2025
                    Judgment pronounced on 22.08.2025

1 - Rambha Bai W/o Khedu Ram Verma Aged About 70 Years R/o Village
Datrengi, Tahsil Bhatapara, District Baloda Bazar Bhatapara (C.G.)


2 - Dilip, S/o Khedu Ram Verma Aged About 55 Years R/o Village Datrengi,
Tahsil Bhatapara, District Baloda Bazar Bhatapara (C.G.)


3 - Anil, S/o Kheduram Verma, Aged About 50 Years R/o Village Datrengi, Tahsil
Bhatapara, District Baloda Bazar Bhatapara (C.G.)


4 - Purushottam S/o Kheduram Verma Aged About 48 Years R/o Village
Datrengi, Tahsil Bhatapara, District Baloda Bazar Bhatapara (C.G.)
                                                                    ... Appellants
                                     versus


1 - Vijay Kumar Verma S/o Kheduram Verma, Aged About 62 Years R/o Village
Datrengi, Tahsil Bhatapara,district Baloda Bazar Bhatapara (C.G.)


2 - Vyasnarayan Verma, S/o Kheduram Verma Aged About 52 Years R/o Village
Datrengi, Tahsil Bhatapara,district Baloda Bazar Bhatapara (C.G.)


3 - Kaushal Bai, W/o Ravi Verma Aged About 40 Years R/o Village Bawali, Tahsil
Pathariya, District Mungeli (C.G.)


4 - Shanti Bai, W/o Kundan Verma Aged About 35 Years R/o Village Nipaniya,
Tahsil Bhatapara, District Baloda Bazar Bhatapara (C.G.)
                                                    2



5 - State Of Chhattisgarh, Through Collector, Baloda Bazar District Baloda Bazar
Bhatapara (C.G.)
                                                                                 ... Respondents
                {Cause title is taken from Case Information System}
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For Appellants : Mr. Bharat Lal Sahu, Advocate.

For Respondent No. 1 : Mr. Hemant Kesharwani, Advocate. For Respondent No. 2 : Mr. Shobhit Koshta, Advocate. For Respondents No. 3 & 4 : None present , though served. For Respondent No. 5/State : Mr. Santosh Soni, Govt. Advocate.

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Hon'ble Mr. Justice Naresh Kumar Chandravanshi

CAV Judgment

1. This is defendants' Second Appeal filed under Section 100 of

CPC against the judgment and decree dated 08.02.2022, passed by 4 th

Upper District Judge, Balodabazar, at Bhatapara, in Civil Appeal

No. 04-A/2019, affirming the judgment and decree dated 30.11.2018

passed by Civil Judge, Class-I, Bhatapara, District Balodabazar, in Civil

Suit No. A/122/2014, whereby learned trial Court allowed the civil suit filed

by respondent No. 1/plaintiff by declaring his title on 1/8th share of suit

land directing the appellants/defendants to handover possession of the

same after partition of it. Vide aforesaid judgment, learned trial Court has

also allowed the counter-claim filed by respondent No. 2 / defendant

No. 3 - Vyasnarayan and granted the same decree in his favour, as has

been granted in favour of plaintiff.

[For the sake of convenience, parties would be referred to as per their status shown in the plaint]

2. Facts of the case, in nutshell, as projected by plaintiff in his plaint,

are that both the parties are brothers and sisters (except defendant

No.1 - Rambhabai). Following genealogical tree would demonstrate the

relationship among the parties : -

[ksnw jke ¼e`r o"kZ 1989½

izFke iRuh f}rh; iRuh dpjkckbZ ¼e`r o"kZ 1960½ jaHkk ckbZ izfroknh dza 01

fot;dqekj ¼iq=½ oknh

fnyhi vfuy C;klukjk;.k iq:"kksRre izfroknh izfroknh izfroknh izfroknh

[Subsequently name of Kailash Bai & Shanti Bai were also added as

defendants No. 7 & 8, respectively, stating them to be daughter of

Kheduram Verma]

2.1 It is averred by the plaintiff that after death of first wife, Kheduram got

married with second wife - Rambha Bai. Kheduram was having title and

possession over the land bearing Khasra Nos. 26/1 (wrongly mentioned as

36/1), 169/1, 405/1, 429, 420/1, 430/13, area 0.243 hectare, 0.012 hectare,

0.283 hectare 0.085 hectare, 1.66 hectare & 0.405 hectare, respectively . He

(Kheduram) was also having possession over Abadi land bearing Khasra No.

868/11, area 0.085 hectare (hereinafter referred to as 'suit land'). Kheduram

died on 27.06.1989. Thereafter, dispute erupted between plaintiff and

defendants in respect of suit land, to which on 21.01.1996, a settlement was

made by village Panchayat with the consent of both the parties, but violating

the terms of settlement, defendants deleted name of plaintiff- Vijay Kumar

from the revenue record and forcefully constructed house on the suit land

bearing Khasra No. 868 / 11. Being son of late Khedu Ram, the plaintiff is

entitled to get 1/4th share of suit land and also entitled to get partition and

possession on his share. The plaintiff has denied the averments made by

defendants No. 2, 4 & 5 that late Kheduram had executed Will dated 4.7.1988

in their favour, as he has no right to execute Will in respect of suit land and if

there is any such Will, then it is false and fabricated, hence it does not confer

any exclusive title to them.

3. Respondents / defendants No. 1, 2, 4 & 5 filed their joint written

statement stating inter alia that their father late Khedu Ram Verma had

partitioned his land between the sons of his both the wives and kept the suit

land (except Khasra No. 868/11) with him in his share. After that partition,

plaintiff and defendant Nos. 2 to 5 were having possession in their respective

shares and Khedu Ram was in possession over the suit land. The plaintiff

had filed an application for partition before Tahsildar, Bhatapara, which was

rejected and against which, no appeal was filed by the plaintiff, hence, that

order has attained finality. It has further been averred by the defendants that

late Khedu Ram had bequeathed the suit land in favour of defendants No. 2, 4

& 5 vide registered Will dated 4.7.1988, therefore, plaintiff and defendant No.

3 have no right over the suit land, hence, civil suit filed by the plaintiff is liable

to be rejected.

4. Defendant No. 3- Vyasnarayan has also filed separate written statement

alongwith counter claim seeking relief, as has been sought for by plaintiff in

his plaint.

5. Subsequently, Kailash Bai & Shanti Bai were also impleaded as

defendants No. 7 & 8, respectively in the civil suit, but they have not filed any

written statement on their behalf.

6. On the basis of pleading of both the parties, learned trial Court framed

as many as six issues and three issues on the counter claim filed by

defendant No. 3. It also recorded evidence adduced by the parties and after

appreciation of the same, learned trial Court held that, since defendants No.

2, 4 & 5 have failed to prove the genuineness of valid execution & attestation

of Will dated 4.7.1988 (Ex.D-7) by late Khedu Ram, therefore, it do not vest

absolute title only to defendants No. 2, 4 & 5 namely Dilip, Anil &

Purushottam, rather by partly allowing the civil suit and counter claim filed by

defendant No. 3 - Vyasnarayan, held that since late Khedu Ram Verma was

absolute owner of the suit land, defendant No.1 - Smt. Rambha Bai is his

widow and other defendants are his sons and daughters, therefore, plaintiff

and defendant No. 3 alongwith other defendants are entitled to get 1 / 8 th

share each by getting partition effected of the same.

7. Defendants No. 1, 2, 4, 5, 7 & 8 preferred first appeal against the

judgment & decree passed by the trial Court. First appellate Court vide its

impugned judgment & decree dismissed the first appeal by affirming the

judgment & decree passed by the trial Court.

8. Being aggrieved & dissatisfied with the same, appellants/ defendants

No. 1, 2, 4 & 5 have preferred second appeal questioning the same.

9. This appeal has been admitted for hearing on the following

substantial question of law :-

"Whether the finding of the Courts below disbelieving the

due execution, attestation and validity of the deed of Will

dated 04.07.1988 (Ex.D.-7) executed by Kheduram in

favour of his sons, namely, Dilip (Defendant No. 2), Anil

(Defendant No. 4) and Purushottam (Defendant No. 5) by

disbelieving its attesting witness, namely, Kartik Ram (DW-

3) and thereby held that it was not executed in accordance

with the provision prescribed under Section 63 of the Indian

Succession Act, 1925 and under Section 68 of the Indian

Evidence Act, 1872, is perverse ?

10. Learned counsel for the appellants / defendants would submit that

father of defendants namely late Khedu Ram Verma, during his life time, had

partitioned his land between his son of both the wives and his own. In that

partition, Khedu Ram had kept suit land in his share. In his life time, he

possessed the same and cultivated also. Since suit land was of the share of

Khedu Ram, therefore, he was having absolute right over it. It is further

contended that late Khedu Ram had executed registered will dated 4.7.1988

[certified copy (Ex.D-7)] in respect of suit land in favour of defendants No. 2, 4

& 5. On the basis of that Will, the suit land has been recorded in their name in

the revenue record. Though, plaintiff and defendant No. 3 - Vyasnarayan are

also sons of Khedu Ram, but being absolute owner, Khedu Ram had absolute

right to give his suit land to any son by depriving his other sons. Since by

registered Will deed, he gave suit land to defendants No. 2, 4 & 5, therefore,

plaintiff and defendant No. 3 have no right at all on the suit land. Learned

counsel further submits that execution of Will has been proved by

propounder / beneficiary of the Will by examining one attesting witness

namely Kartik Ram Verma (DW-3) as provided in Section 63 of the Indian

Succession Act, 1925 and Section 68 of the Indian Evidence Act. Said

attesting witness has specifically stated in his deposition that late Khedu Ram

verma had got executed Will (Ex.D-7) in favour of Dilip, Anil and Purushottam

and Khedu Ram had also put his signature on the Will in his presence.

Attesting witness has also deposed that he had also put his signature on the

Will and, thus, execution & attestation of Will has been duly proved by

aforesaid attesting witnesses, despite that learned trial Court as well as first

appellate Court has declined to accept genuineness of the Will only on the

basis of trivial grounds, which is perverse & illegal, hence, he prayed that

appeal may be allowed by setting aside judgment & decree passed by both

the courts below dismissing the civil suit filed by plaintiff and counter claim

filed by defendant No. 3 - Vyasnarayan.

11. Per contra, learned counsel appearing for respondents No. 1 & 2 would

support the judgment & decree passed by both the courts below. They further

submit that since there is concurrent finding of the both the courts below and

no any valid ground has been raised by appellants/defendants to interfere

with the same, hence, the appeal may be dismissed.

12. I have heard learned counsel for the parties and perused the judgment

& decree impugned, including record of both the courts below with utmost

circumspection.

13. Undisputedly, defendant No. 1- Smt. Rambha Bai is wife of late Khedu

Ram Verma and plaintiff and defendants No. 2 to 5 and 7 & 8 are sons and

daughters of late Khedu Ram. From the oral & documentary evidence

available on record, it is also found proved that suit land (except Khasra No.

868/11) was recorded in the name of late Khedu Ram Verma in the revenue

record. Generally being class-I heir of late Khedu Ram Verma, plaintiff and

defendants are entitled to get equal share in the suit land in view of provisions

contained in Section 8 of the Hindu Succession Act, 1956.

14. It is claim of defendants No. 2, 4 & 5 that since suit land was fallen in

share of late Khedu Ram Verma in partition effected between him and his

sons, therefore, status of suit land was his self acquired property, as such, he

had bequeathed the suit land in favour of defendants No. 2, 4 & 5 namely,

Dilip, Anil & Purushottam, respectively vide registered Will dated 4.7.1988

[certified copy (Ex.D-7)], but this claim of defendants No. 2, 4 & 5 has not

accepted by both the courts below. Thus, their claim of exclusive title over the

suit land except Khasra No. 868/11 is based on alleged Will executed by late

Khedu Ram in their favour.

15. It is trite law that, if any person claimed his title over the land /

immovable property on the basis of Will, then it is liability of such person /

propounder to prove that alleged Will was executed by testator in accordance

with provisions contained in Section 63 of the Indian Succession Act, 1925 read

with Section 68 of the Evidence Act, 1872, which are reproduced below :-

16. 'Section 63 of the Act of 1925' provides as under:-

"63. Execution of unprivileged Wills.--Every testator, not being a Soldier employed in an expedition or engaged in actual welfare, or an airman so employed or engaged, or a mariner at set, 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 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. 'Section 68 of the Evidence Act, 1872' provides as under:-

"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 be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

18. Thus, to say will has been duly executed the requirements mentioned in

clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied

with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be

signed by some other person in his presence and by his direction; (b) that the

signature or mark of the testator, or the signature of the person signing at his

direction, has to appear at a place from which it could appear that by that mark or

signature the document is intended to have effect as a will; (c) the most important

point involve in this appeal, is that the will has to be attested by two or more

witnesses and each of these witnesses must have seen the testator sign or affix

his mark to the Will, or must have seen some other person sign the Will in the

presence and by the direction of the testator, or must have received from the

testator a personal acknowledgement of signature or mark, or of the signature of

such other person, and each of the witnesses has to sign the Will in the presence

of the testator.

19. It is thus clear that one of the requirements of due execution of will is its

attestation by two or more witnesses which is mandatory.

20. Section 68 of Evidence Act speaks of as to how a document required by

law to be attested can be proved. According to the said Section, a document

required by law to be attested 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 an evidence. It flows from this Section that if there be an attesting

witness alive capable of giving evidence and subject to the process of the Court,

has to be necessarily examined before the document required by law to be

attested can be used in an evidence.

21. On a combined reading of Section 63 of the Succession Act with Section 68

of the Evidence Act, it appears that a person propounding the will has got to

prove that the will was duly and validly executed. That cannot be done by simply

proving that the signature on the will was that of the testator but must also prove

that attestations were also made properly as required by clause (c) of Section 63

of the Succession Act. It is true that Section 68 of Evidence Act does not say that

both or all the attesting witnesses must be examined. But at least one attesting

witness has to be called for proving due execution of the Will as envisaged in

Section 63. Although Section 63 of the Succession Act requires that a will has to

be attested at least by two witnesses, Section 68 of the Evidence Act provides

that a document, which is required by law to be attested, shall not be used as

evidence until one attesting witness at least has been examined for the purpose

of proving its due execution if such witness is alive and capable of giving

evidence and subject to the process of the Court. In a way, Section 68 gives a

concession to those who want to prove and establish a will in a Court of law by

examining at least one attesting witness even though will has to be attested at

least by two witnesses mandatorily under Section 63 of the Succession Act. But

what is significant and to be noted is that, the one attesting witness examined

should be in a position to prove the execution of a will. To put in other words, if

one attesting witness can prove execution of the will in terms of clause (c) of

Section 63, viz., attestation by two attesting witnesses in the manner

contemplated therein, the examination of other attesting witness can be

dispensed with. The one attesting witness examined, in his evidence has to

satisfy the attestation of a will by him and the other attesting witness in order to

prove there was due execution of the will. If the attesting witness examined

besides his attestation does not, in his evidence, satisfy the requirements of

attestation of the will by other witness also it falls short of attestation of will at

least by two witnesses for the simple reason that the execution of the will does

not merely mean the signing of it by the testator but it means fulfilling and proof of

all the formalities required under Section 63 of the Succession Act. Where one

attesting witness examined to prove the will under Section 68 of the Evidence Act

fails to prove the due execution of the will then the other available attesting

witness has to be called to supplement his evidence to make it complete in all

respects. Where one attesting witness is examined and he fails to prove the

attestation of the will by the other witness there will be deficiency in meeting the

mandatory requirements of Section 68 of the Evidence Act.

22. In the matter Murthy & Ors. v. C. Saradambal & Ors. 1, their Lordships

of the Supreme Court while considering one of the celebrated decision in the

case of H. Venkatachala Iyengar v. B.N. Thimmajamma 2 has observed as

under :-

"32. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will.

33. In the above noted case, this Court has stated that the following three aspects must be proved by a propounder:

(Bharpur Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 696, para 16) "16. ... (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 the testator's mind and his signature as required by law, courts would be

1 (2022) 3 SCC 290 2 AIR 1959 SC 443

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."

34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369] , this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial proceeding, becomes in such cases, a matter of the court's conscience and then, the true question which arises for consideration is, whether, the evidence let in by the propounder of the will is such as would satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.

35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner: (SCC p. 699, para 23) "23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:

(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.

(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.

(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like

exclusion of or absence of adequate provisions for the natural heirs without any reason.

(iv) The dispositions may not appear to be the result of the testator's free will and mind.

(v) The propounder takes a prominent part in the execution of the will.

(vi) The testator used to sign blank papers.

(vii) The will did not see the light of the day for long.

(viii) Incorrect recitals of essential facts."

36. It was further observed in Shamsher Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 :

(2009) 1 SCC (Civ) 934] that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.

37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433] , in paras 34 to 37, this Court has observed as under: (SCC pp. 447-48) "34. There are several circumstances which would have been held to be described 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.

***

35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh [B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449] , wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.

36. The proof of a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be.

37 [Ed.: Para 37 corrected vide Official Corrigendum No. F.3/Ed.B.J./86/2007 dated 5-12-2007.] . We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion."

39. Similarly, in Leela Rajagopal v. Kamala Menon Cocharan [Leela Rajagopal v. Kamala Menon Cocharan, (2014) 15 SCC 570 : (2015) 4 SCC (Civ) 267] , this Court opined as under: (SCC p. 576, para 13)

"13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely

justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us."

23. In the case of Meena Pradhan & others v. Kamla Pradhan &

Another3, Hon'ble Supreme Court, considering its various judgments on

the principles required to be proved with regard to the validity of execution

of Will, has observed in para 10 & 11 as under;-

10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, 1958 SCC OnLine SC 31 : 1959 Supp (1) SCR 426 : AIR 1959 SC 443] (three-Judge Bench), Bhagwan Kaur v. Kartar Kaur [Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC 135] (three-Judge Bench), Janki Narayan Bhoir v. Narayan Namdeo Kadam [Janki Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91] (two- Judge Bench), Yumnam Ongbi Tampha Ibema Devi v.

Yumnam Joykumar Singh [Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 :

(2009) 2 SCC (Civ) 348] (three-Judge Bench) and Shivakumar v. Sharanabasappa [Shivakumar v.

3 (2023) 9 SCC 734

Sharanabasappa, (2021) 11 SCC 277] (three-Judge Bench), we can deduce/infer the following principles required for proving the validity and execution of the will:

10.1. 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;

10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

10.3. 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;

10.4. 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;

10.5. 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;

10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;

10.7. 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;

10.8. 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. 10.9. 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;

10.10. 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.

10.11. Suspicious circumstances must be "real, germane and valid" and not merely "the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ". 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.

24. Very recently, in the matter of Metpalli Lasum Bai (since

dead) and others Vs. Metapalli Muthaith (D) by legal representatives 4,

their Lordships of the Supreme Court has held that Will is a registered

document and, thus, there is presumption regarding genuineness thereof.

Therefore, burden would lie on the party, who disputed its existence to

establish that it was not executed in the manner as alleged or that there

were suspicious circumstances, which made the same doubtful.

25. Prior to raising such presumption, propounder of the Will is

prima facie bound to prove genuineness of the Will in the manner as has

been provided in Section 63 of the Indian Succession Act, 1925 read with

Section 68 of the Evidence Act, as has been observed in the case of

Murthy & others (supra) and Meena Pradhan & others (supra).

26. Applying the ratio of law laid down by the Supreme Court in afore-

cited case (s) to the facts of instant case, it is quite apparent that

defendants No. 2, 4 and 5 are claiming their absolute right over the suit

4 Civil Appeal (S) No. 5921 of 2015 & Civil Appeal (S) 5922 of 2015, decided on 21st July, 2025

land on the basis of Will dated 4.7. 1988 (Ex.D-7) executed by late Khedu

Ram Verma in their favour, but neither they have filed original Will

allegedly executed by late Khedu Ram Verma nor defendant - Dilip

(DW-1), who is one of the propounder / beneficiary of the Will, has stated

in his deposition that why original Will has not been filed & proved. Even

he has not authenticated that document Ex.D-7, which is said to be

certified copy of the said Will. Rather Ex.D-7, which is said to be certified

copy of said Will has been authenticated by defendant No. 8 - Shanti Bai,

who is not propounder / beneficiary of the Will.

27. Perusal of B. (1) of Kistbandi Khatouni of the year 1994-95 (Ex.P-2)

would show that earlier after death of Khedu Ram Verma, suit land was

recorded in the name of plaintiff and defendants No. 1 to 5 in compliance

of Namantaran Order No. 7 dated 26.6.1990, if alleged Will was executed

by Khedu Ram Verma in favour of defendants No. 2, 4 & 5, then question

arises as to why, while that Namantaran (QkSrh vkns'k) they had not disclosed

about the execution of alleged Will, rather it seems that based on that will,

defendants No. 2, 4 & 5 recorded their names in the revenue record of the

suit land in the year 1994-95 i.e. after 5 - 6 years from the date of death of

Khedu Ram Verma, who died on 27.06.1989, thus, it is found that they

keep the Will in dark for more than 5-6 years, even after death of Khedu

Ram without getting it acted upon.

28. Ex.D-7 is said to be certified copy of alleged Will of late Khedu

Ram Verma, in which, he has put his thumb impression. Only attesting

witness Kartik Ram has also stated in his cross-examination that Khedu

Ram Verma had put his thumb impression on the Will in his presence,

whereas, defendant - Dilip (DW-1) has admitted in his cross-examination

that his father late Khedu Ram was educated person and of a reputed

family.

29. Sundar Ram Verma (DW-2), who is cousin brother of late Khedu

Ram Verma, has also admitted that they are old Malugujar and he has

also admitted that Khedu Ram was educated person and he put his

signature on the documents. Shanti Bai (DW-4), who is daughter of late

Khedu Ram Verma, has also admitted in her cross-examination that his

father used to do all the paper works as per his requirement by his own

hand. Thus, from the aforesaid evidence, it is very well proved that late

Khedu Ram Verma was educated person, he used to do his paper works

in his own writing and also put his signature on the documents. But

alleged Will (Ex.D-7) does not contain his signature, rather it contents his

thumb impression. Attesting witness Kartik Ram Verma (DW-3) has also

stated that Khedu Ram Verma had put his thumb impression on the Will in

his presence, but neither he nor Dilip Kumar (DW-1) have stated in their

deposition that when Khedu Ram Verma was educated person, then why

he did not put his signature on the Will and under which circumstances,

instead of signing the Will, he put his thumb impression, whereas, sole

attesting witness Kartik Ram Verma (DW-3) has stated in his deposition

that while execution of alleged Will, Khedu Ram was perfectly healthy

person. If it is so, then why instead of putting his signature on the Will, put

his thumb impression. This is grave suspicion surrounded the Will.

30. Kartik Ram Verma (DW-3) is said to be only attesting witness of

alleged Will, but while his deposition, neither certified copy of the Will

(Ex.D-7) was authenticated from his deposition nor his signature on it, has

been shown and authenticated / proved by defendants, therefore, it cannot

be said that alleged Will (Ex.D-7) has been duly proved by Kartik Ram

Verma (DW-3).

31. Dilip Kumar (DW-1) is propounder of the Will and Kartik Ram Verma

(DW-3) is attesting witness of the Will, but they have not stated that who is

the second attesting witness of the Will (Ex.D-7). It has also not been

proved that why second attesting witness [Himitram /not clear] has not

been examined and whether he is alive or not. Though as per Section 68

of the Evidence Act, 1872, one attesting witness of the Will can prove the

Will, but one attesting witness examined, in his evidence, has to satisfy the

attestation of Will by him and the other attesting witness in order to prove

that there was due execution of the Will. If the attesting witness examined

besides his attestation does not satisfy the requirement of attestation of

the Will by other witness also it falls short of attestation of the will at least

by two witnesses for the reason that the execution of Will does not merely

mean the signing of it by testator, but it means fulfilling and proof of all the

formalities required under Section 63 of the Indian Succession Act, 1925.

32. In the instant case, since second attesting witness has not been

examined, therefore, in view of above facts, it cannot be said that

execution of the Will in terms of clause (c) of Section 63 of the Act, 1925,

viz, attestation by two attesting witnesses in the manner contemplated

therein, has been proved. Therefore, merely on the basis of vague

statement of sole attesting witness - Kartik Ram (DW-3) that late Khedu

Ram had executed Will (Ex.D-7) of the suit property in favour of

defendants No. 2, 4 & 5 cannot held to be proved as per the provisions of

Section 63 of the Indian Succession Act. Moreover, there are various

suspicious circumstances surrounded the Will i.e. (i) original Will has not

been filed & proved (ii) The Will did not see the light of the day for four -

five years (iii) when Testator Khedu Ram Verma was educated person,

then why he did not put his signature on the Will and under which

circumstances, he put his thumb impression on the Will

33. In view of the foregoing discussion, it is found that learned trial Court

as well as first appellate Court has not erred in law in not relying the

genuineness of Will (Ex.D-7) holding that execution of Will has not been

proved in accordance with law. Consequently, judgment & decree passed

by the trial court as well as first appellate Court is upheld and the second

appeal filed by appellants / defendants deserved to be dismissed.

34. Accordingly, substantial question of law is answered in favour of

plaintiff and against the defendants No. 1, 2, 4 & 5. Consequently, second

appeal fails and is hereby dismissed. No cost (s).

35. A decree be drawn up accordingly.

36. Pending application (s), if any, also stands disposed of.

Sd/-

(Naresh Kumar Chandravanshi) Judge

AMIT by AMIT KUMAR DUBEY KUMAR Date:

DUBEY 2025.08.23 11:27:37 +0530