Chattisgarh High Court
Smt. Asha Bai vs Purnima on 3 January, 2025
1
2025:CGHC:1864
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 221 of 2022
1. Smt. Asha Bai W/o Shivbhushan Prasad Kesharwani Aged
About 78 Years R/o Village Kamrid, Tahsil Pamgarh, District
Janjgir-Champa Chhattisgarh.
2. Rajendra Kumar S/o Shivbhushan, Aged About 62 Years R/o
Village Kamrid, Tahsil Pamgarh, District Janjgir-Champa
Chhattisgarh.
... Appellants
versus
1. Purnima D/o Bhagwan Prasad Aged About 47 Years W/o
Santosh Kumar Kesharwani, Village - Kamrid, Tahsil
Pamgarh, District Janjgir-Champa (CG. Present Address - Vill-
Sarangarh, Near Santosh, Provision Store, Kesharwani
Mohalla, District Raigarh Chhattisgarh.
2. Narendra S/o Bhagwan Prasad Aged About 43 Years R/o
Village Kamrid, Tahsil Pamgarh, District Janjgir-Champa
Chhattisgarh.
3. Anju D/o Bhagwan Prasad Aged About 41 Years W/o Teja
Gupta, Village - Kamrid, Tahsil Pamgarh, District Janjgir-
Champa Chhattisgarh. Present Address - Near Budhi Mai
Mandir, Raigarh, Tahsil & District Raigarh Chhattisgarh.
4. Mukesh, S/o Bhagwan Prasad Aged About 39 Years R/o
Village Kamrid, Tahsil Pamgarh, District-Janjgir-Champa
Chhattisgarh.
2
5. Lata D/o Kapilnath Aged About 35 Years W/o Sarad
Kesharwani, Village-Kamrid Tahsil Ramgarh, District Janjgir-
Champa Chhattisgarh. Present Address In front of Girls
School, Gandhi Ward, Mungeli, Tahsil & District Mungeli
Chhattisgarh.
6. Manju D/o Kapilnath Aged About 41 Years W/o Dilip
Kesharwani, Village Kamrid, Tahsil Pamgarh, District Janjgir
Champa Chhattisgarh. Present Address - Sadar Bazar,
Champa, Tahsil Champa, District Janjgir Champa
Chhattisgarh.
7. Laxmi D/o Kapilnath Aged About 38 Years R/o Village Kamrid,
Tah Pamgarh, District Janjgir-Champa Chhattisgarh.
8. Sanju D/o Kapilnath Aged About 36 Years R/o Village Kamrid,
Tah Pamgarh, District Janjgir-Champa Chhattisgarh.
9. Surendra S/o Kapilnath Aged About 42 Years R/o Village
Kamrid, Tah Pamgarh, District Janjgir-Champa Chhattisgarh.
10. Nageshwar S/o Kapilnath Aged About 28 Years R/o Village
Kamrid, Tah Pamgarh, District Janjgir-Champa Chhattisgarh.
11.Nutan S/o Ganga Prasad Aged About 68 Years R/o
Muchchhmalda Bhatgaon, Distt Baloda Bazar-Bhatapara (CG)
12. Pardeshi S/o Sunhar, Aged About 60 Years R/o Village
Sitamadi, Korba, Tahsil And District Korba Chhattisgarh.
13. Vikash @ Banti S/o Late Shri Ramji Aged About 39 Years R/o
Village -Sarangarh, Tahsil-Sarangarh, Distt Raigarh (CG)
14. Gaurav S/o Late Shri Ramji Aged About 26 Years R/o Village -
Sarangarh, Tahsil-Sarangarh, District Raigarh Chhattisgarh.
15. Surbhi D/o Ramji Aged About 29 yrs respondent No.13 to 15
R/o Village Sarangarh Tahsil Sarangarh, Dist. Raigarh (CG)
16.Sapna D/o Ramji Aged About 37 Years W/o Ramkumar
Kesharwani, R/o Village Bhatgaon, District- Baloda Bazar -
Bhatapara Chhattisgarh.
17. Manoj S/o Jagdish Aged About 56 Years R/o Village
Sarangarh, Baniyapara, Tahsil Sarangarh, Distt. Raigarh (CG)
18. Bhagwan Prasad S/o Late Pannalal Aged About 69 Years R/o
Village Kamrid, Tahsil Pamgarh, Dist Janjgir-Champa (CG)
19. Kapilnath S/o Late Pannalal Aged About 66 Years Respondent
No.18 & 19 R/o Village Kamrid, Tahsil Pamgarh, Dist. Janjgir-
Champa Chhattisgarh.
20. Bhanu Pratap S/o Late Teras R/o Village Kamta Post Office
Borda, Tahsil Nawagarh, Dist. Janjgir-Champa Chhattisgarh.
21. State of Chhattisgarh Through Collector, Janjgir-Champa,
District - Janjgir Champa Chhattisgarh.
... Respondent(s)
For Appellants : Mr. H.V. Sharma, Advocate
For Respondent-State : Mr. Santosh Soni,Govt. Advocate
SB:Hon'ble Mr. Justice Parth Prateem Sahu
Judgment on Board
3.1.2025
1. Heard on admission.
2. This is a plaintiffs' second appeal against the judgment and
decree dated 31.1.2022 passed in Civil Appeal No.23A/2020
by which learned 2nd Additional District Judge, Janjgir District
Janjgir Champa (CG) has affirmed the judgment and decree
dated 11.2.2020 passed by learned Civil Judge Class-2
Pamgar in Civil Suit No.15A/2014 dismissing suit of plaintiffs.
3. Facts of the case, in brief, are that plaintiffs have filed a civil
suit for declaration of title, possession, partition in respect of
land bearing Khasra No.38 area 89.95 acre, situate in village
Kamrid, Patwari Halka No.19, Tahsil Pamgarh, District Janjgir
Champa (CG) [for short 'the suit property'] and also for
declaring sale deed dated 19.12.2014 and the order dated
21.3.2018 passed in Revision No.RN06/R/A-6/179/2016 to be
illegal and void. It was averred in the plaint that the suit
property was recorded in land records in the name of Dashmat
Bai, who died issueless. During her lifetime, on 3.11.1995 said
Dashmat Bai had executed a Will Deed (Ex.P-5) in favour of
plaintiff No.2 and defendant Nos.15 & 16 and bequeathed the
suit property to them. After the death of Dashmat Bai, plaintiff
No.2 and defendant No.15 & 16 are in possession of the suit
property. An application under Sections 109, 110 of the
Chhattisgarh Land Revenue Code, 1959 (henceforth 'the
Code of 1959') was filed by them, which was allowed vide
order dated 15.6.1998 and it is ordered that the suit property
be recorded jointly in the name of plaintiff No.2, defendant
No.15 & 16 and also respondents No.1 to 14. The order dated
15.6.1998 was put to challenge in an appeal before the Sub-
Divisional Officer, Pamgarh and the same was also dismissed
vide order dated 15.2.2007 against which an appeal is
pending consideration before the Additional Collector, Janjgir.
4. Plaintiffs thereafter filed an application under Section 178 of
the Code of 1959 before the Tahsildar, Pamgarh for partition of
suit property among plaintiff and defendant No.15 and 16,
claiming half share in the suit property. The Tahsildar vide
order dated 28.2.2004 directed for division of account among
plaintiffs and defendants No.1 to 16 in the ratio of 1/18 each
against which plaintiffs preferred an appeal before the Sub-
Divisional Officer, Pamgarh and by the order dated 12.7.2006
the order of Tahsildar dated 28.2.2004 was set aside. After
passing of the order dated 12.7.2006, defendants No.1 to 16
again submitted an application under Section178 of the Code
of 1959 before the Tahsildar on which an order was passed on
28.2.2014 ordering for preparing a fard batwara list. Plaintiffs
preferred revision against the order dated 28.2.2014 which
came to be decided vide order dated 27.3.2014, setting aside
the order dated 28.2.2014 and staying further proceeding for a
period of three months so as to enable the parties to obtain
stay order from the competent civil Court. After expiry of
period of three months, the Tahsildar took up the matter and
vide order dated 27.9.2014 (Ex.P-10) ordered for division of
suit property among plaintiffs and defendants in the ratio of
1/18. Defendant No.11 sold her share to defendant No.2 vide
registered sale deed dated 19.12.2014 (Ex.P-8).
5. During pendency of civil suit, appeal preferred by plaintiffs
against the order dated 15.2.2007 came to be allowed vide
order dated 8.6.2016 (Ex.P-12) and the order dated 15.2.2007
was set aside. On appeal filed by defendants, by the order
dated 21.3.2018 (Ex.P-13) the Board of Revenue set aside the
order dated 8.6.2016 and restore the order dated 15.2.2007.
6. On filing of civil suit, defendants filed their written statements,
denied the averments made in the plaint and prayed for
dismissal of suit. It was pleaded in written statement by
defendants No.2,4,6,8,9,10,15 and 16 that the suit is liable to
be dismissed for want of particulars of suit property. Will deed
dated 3.11.1995 has never been executed by Dashmat Bai
and it is a forged one. Possession of plaintiffs over the suit
property after the death of Dashmat Bai had also been denied.
It was pleaded that Dashmat Bai, during her lifetime, was
residing with defendant No.15 and 16 and it was they who
looked after Dashmat Bai. Pursuant to the order passed by the
Tahsildar, suit property came to be recorded in the name of
plaintiffs and defendants in revenue records is in accordance
with law and since then defendants are in possession of their
respective share in the suit property.
7. Defendant No.18, purchaser of part of suit property, has also
filed written statement denying the plaint averments.
8. On the basis of pleadings of both the parties, the trial Court
framed as many as eight issues; after recording the evidence
and evaluating the same, the trial Court vide judgment and
decree dated 11.2.2020 dismissed the suit filed by plaintiffs
recording that they failed to prove due execution of Will deed
in their favour by Late Dasmat Bai based on which they are
seeking declaration of title over the suit property.
Appellants/plaintiffs preferred a regular civil appeal before the
Court of 2nd Additional District Judge, Janjgir and the said
appeal was also dismissed vide impugned judgment and
decree dated 31.1.2022. Aggrieved therewith, plaintiffs/
appellants have preferred this second appeal challenging the
concurrent finding of the trial Court as well as First Appellate
Court, proposing following substantial question of law;-
"Whether the finding of both the learned courts below
are perverse with regard to the proof of will deed
dated 03.11.1995 beyond suspicion as details of the
property owned by the testratrix are not mentioned
though the execution and the attestation of the will
has been proved by the plaintiffs?"
9. Learned counsel for the plaintiffs/appellants submits that both
the Courts by misapplying the law on the subject of proof of
Wills did not properly appreciate the evidence adduced by the
plaintiffs and thus committed an error of law and fact while
passing the impugned judgments and decrees. The trial Court
has not appreciated the statement of witnesses, particularly of
attesting witness Rajeshwar Singh (PW-3) examined on behalf
of plaintiffs/appellants, who has supported the execution of
Will by testatrix Dashmat Bai in favour of plaintiff No.2. PW-3
has stated that testatrix Dashmat had executed the Will
(Ex.P-5) in his presence and thereby it has to be presumed
that the testatrix had signed in presence of attesting
witnesses, however, learned trial Court has erroneously held
that Will has not been proved in terms of Section 63 of the
Indian Succession Act, 1925 (for short 'the Act of 1925'). He
contended that suspicious circumstances as to the
genuineness of Will have not been pleaded by the defendants
in their written statements and therefore plaintiffs cannot be
expected to prove the fact not pleaded. The onus that was on
the propounder to prove the execution of Will has been
discharged by examining the attestor (PW-3). He further
contended that learned appellate court arrived at a conclusion
that execution of Will is not in dispute but dismissed the
appeal considering non-mentioning of the particulars of
property in the Will to be a suspicious circumstance to
disbelieve the Will. He submits that mere non-mentioning of
particulars of property in Will cannot be treated to be a
suspicious circumstance because as per Will (Ex.P-5), all the
properties, which were in possession and enjoyment of
Dashmat Bai shall devolve on the plaintiff No.2 and defendant
No.15 and 16. Hence, it is submitted that substantial question
of law, as mentioned in the appeal memo, arise for
determination of this Court and appeal be admitted for final
hearing.
10. On the other hand, learned State Counsel has supported the
impugned judgment and decree.
11. Heard learned counsel for the parties and perused the record
of both the Courts and the impugned judgments.
12. It is not in dispute in this case that Dashmat Bai was the
recorded owner of the suit property, which she has inherited in
succession from her husband. Dashmat Bai was an illiterate
woman and had no child. She had allegedly executed Will
(Ex.P-5) dated 3.11.1995 in favour of plaintiff No.2 and
defendants No.15 and 16 and she had affixed her thumb
impression in the Will (Ex.P-5). Will bequeaths half share in
the suit property to plaintiff No.2 Rajendra and remaining half
share in between Bhagwan and Kapilnath. Will Ex.P-5 further
reflects that at the time of execution of will, testatrix was 98
years old. It is mentioned in the Will that propounders are
grandsons of brothers of husband of testatrix; they are taking
care of her along with all her needs including medical etc. and
therefore, she has decided that after her death, the property
inherited from her husband would devolve equally upon the
plaintiffs and defendants No.15 and 16. The Will contains a
recital that she is executing this will in her full sense and
without any pressure in order to avoid any dispute by any
family member in respect of her property. Particulars and
details of the properties bequeathed are not mentioned in Will.
As per the contents of Will, Hargovindram Kumhar,
Ramsanehi Kumbhkaar and Rajeshwar Singh are the attesting
witnesses and one Mr. D.R. Tiwari, Advocate is the scriber of
the Will.
13. Plaintiff Rajendra Kumar was examined as PW-1 and he has
stated that in presence of witnesses Govindram Kumhar and
Rajeshwar Singh, Dashmat Bai had executed the Will on
3.11.1995 in his favour, Bhagwan Das and Kapil Nath. She
had affixed her thumb impression on the Will in his presence.
After the death of Dashmath Bai, they are in possession and
occupation of their respective share in suit property. He
however admitted that particulars of property is not mentioned
in the Will.
14. Rajeshwar Singh, one of attesting witnesses, was examined
as PW-3 and he has stated that Dashmat Bai had no child, on
3.11.1995, in his presence, she had executed Will in respect
of her movable and immovable property in favour of Rajendra
(plaintiff), Bhagwan Prasad and Kapilnath (Defendant No.18 &
19) bequeathing equal half share to Rajendra and half share
to Bhagwan and Kapilnath. Will deed bears his signature.
Dashmat Bai had put her thumb impression on Will. Apart from
him, Govind Ram Kumhar had also signed the Will as a
witness. Will was scribed by Mr. S.L. Baani Advocate of
Bilaspur in Kamrid. In the cross-examination, this witness has
admitted that Dashmat Bai was residing with defendant No.18
and 19 and at the time of Bhagwan Prasad and Kapilnath
(Defendant No.18 & 19) were also present at the spot.
15. Plaintiff No.1 Ashabai, mother of plaintiff No.2, has been
examined as PW-2 and she has stated in cross-examination
that they have shifted to Shivrinarayan since 1987; Dashmat
Bai was residing in Kamrid in their house, she used to go to
Kamrid sometimes, not daily and in her absence, Dashmat Bai
was looked after by Kapil and others.
16. Defendant No.16 Kapil (DW-1), one of beneficiary of alleged
Will, has stated that last rites of Dashmat Bai were performed
by him and his brother Bhagwat. Dashmat Bai had never
executed Will of the suit land in favour of plaintiff No.2-
Rajendra Kumar. This witness in cross-examination has
denied about execution of any Will by Dashmat Bai in his
favour and plaintiffs.
17. Perusal of the judgment passed by the learned trial Court
would show that learned trial Court has exhaustively dealt with
the issue 'whether Dashmat Bai has executed Will Deed dated
3.11.1995 in favour of plaintiff No.2 and defendant No.15 and
17 in respect of her ownership and possessory land' and
'whether the plaintiffs are entitled for declaration of title in
respect of half share in the suit property'. In Para-16 to 34 of
judgment, trial Court has elaborately discussed how the
plaintiffs failed to prove valid execution of Will in favour of
plaintiff No.2 and defendant No.15 & 16 by Dashmat Bai in
respect of her ownership and possessory land and there are
no suspicious circumstances to show that the Will is doubtful.
Learned trial Court while not accepting the Will in question and
holding it to be surrounded by suspicious circumstances, has
held that there is discrepancy as to time of execution of Will
(Ex.P-5) in the statement of attesting witness (PW-3) and one
of the propounders (PW-1), which makes the execution of Will
doubtful and unreliable. Further, attesting witness (PW-3) has
stated that Dashmat Bai put her thumb impression mark in will
on 03.11.1985, and nowhere deposed that testatrix Dashmat
Bai affixed her thumb impression on the Will in his presence
and he also signed the Will in presence of testatrix Dashmat
Bai.
18. Section 63 (c) of the Act of 1925 requires that each of attesting
witness has seen the testator signing or affixing his/her mark
on the Will. It was further recorded that testatrix was 98 years
old illiterate lady, but there is no whisper in statement of PW-3
that the contents of will had been read over and explained to
the testator. Hence, mere version of attesting witness PW-3
that Will bears his signature as also thumb impression of
Dashmat Bai is not sufficient to prove due execution of Will.
Under theses circumstances, the trial Court concluded that in
the Will (Ex.P-5) it is not mentioned that land/property of
village Kamrid is 'willed'. Under Section 102 of the Indian
Evidence Act, burden of proof is on the plaintiffs in which they
failed. Considering the evidence of PW-3 with regard to time
of execution of Will, trial Court concluded that it creates
suspicion that Will was written in presence of PW-3.
19. From the judgment passed by the learned First Appellate
Court also reveals that it has also considered the factum of
execution of 'Will' (Ex.P-5) in Para-19 to 26 and affirmed the
finding recorded by learned trial Court.
20. In case at hand, the plaintiffs and defendants are relatives of
testatrix. Plaintiff has come up with the contention that testatrix
Dashmat Bai had executed a Will on 3.11.1995, bequeathing
half share in her property to plaintiff No.2 and remaining share
in favour of defendant Nos.18 and 19.
21. Section 63 of the Indian Succession Act, 1925 and Section 68
of the Evidence Act spell out the essential requirements of
wills, and their proof, in a court of law. Relevant portion of
Section 63 of the Act reads as under:-
"63.Execution of unprivileged wills.--Every
testator, not being a soldier employed in an
expedition nor 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 Test Case 30/1989 Page 14 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."
22. Section 68 of the Evidence Act reads thus:
"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:..."
23. A bare reading of Section 63 (c) of the Act of 1925 makes it
clear that the Will shall be attested by two or more witnesses
each of whom has seen the testator signing or affixing his
mark to the Will. There is a further requirement that the
witnesses have to sign the Will in the presence of the testator.
Section 68 of the Evidence Act states that such a document
cannot be used as evidence till at least one attesting witness
is called for the purpose of proving its execution, (if there such
an attesting witness is alive), and subject to the process of the
court and capable of giving evidence. Such witness has to be
examined before the document can be used in an evidence.
A combined reading of Section 63 of the Act of 1925 with
Section 68 of the Evidence Act, reveals that the propounder of
a will has to prove that the will was duly and validly executed.
That can be done by not merely by proving the testator's
signature on the will, but also establishing that attestations
were made properly as required by Section 63 (c) of the Act of
1925.
24. Legal principles regarding proof of a Will have been indicated
by Hon'ble Supreme Court in case of H. Venktachala Iyengar
vs. B.N. Thimmajamma, reported in AIR 1959 SC 443, which
are as under:-
"(1) Stated generally, a will has to be proved like any
other document, the test to be applied being the usual
test of the satisfaction of the prudent mind in such
matters. As in the case of proof of other documents, so
in the case of proof of wills, one cannot insist on proof
with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a
will to be attested, it cannot be used as evidence until,
as required by section 68 of the Evidence Act, 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.
(3) Unlike other documents, the will speaks from the
death of the testator and therefore the maker of the will
is never available for deposing as to the circumstances
in which the will came to be executed. This aspect
introduces an element of solemnity in the decision of
the question whether the document propounded is
proved to be the last will and testament of the testator.
Normally, the onus which lies on the propounder can be
taken to be discharged on proof of the essential facts
which go into the making of the will.
(4) Cases in which the execution of the will is
surrounded by suspicious circumstances stand on a
different footing. 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 and such
other circumstances raise suspicion about the
execution of the will. That suspicion cannot be removed
by the mere assertion of the propounder that the will
bears the signature of the testator or that the testator
was in a sound and disposing state of mind and
memory at the time when the will was made, or that
those like the wife and children of the testator who
would normally receive their due share in his estate
were disinherited because the testator might have had
his own reasons for excluding them. The presence of
suspicious circumstances makes the initial onus heavier
and therefore, in cases where the circumstances
attendant upon the execution of the will excite the
suspicion of the court, the propounder must remove all
legitimate suspicions before the document can be
accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which
is surrounded by suspicious circumstances that the test
of satisfaction of the judicial conscience has been
evolved. That test emphasises that in determining the
question as to whether an instrument produced before
the court is the last will of the testator, the court is called
upon to decide a solemn question and by reason of
suspicious circumstances the court has to be satisfied
fully that the will has been validly executed by the
testator.
(6) If a caveator alleges fraud, undue influence,
coercion, etc. in regard to the execution of the will, such
pleas have to be proved by him, but even in the
absence of such pleas, the very circumstances
surrounding the execution of the will may raise a doubt
as to whether the testator was acting of his own free
will. And then it is a part of the initial onus of the
propounder to remove all reasonable doubts in the
matter.
25. In case of Yumnam Ongbi Tampha Ibema Devi vs Yumnam
Joykumar Singh and others, reported in (2009) 4 SCC 780
Hon'ble Supreme Court has discussed the requirements of a
valid will and observed thus:-
"13.As per provisions of Section 63 of the
Succession Act, for the due execution of a Will:
(1) the testator should sign or affix his mark to the
Will;
(2) the signature or the mark of the testator should
be so placed that it should appear that it was
intended thereby to give effect to the writing as a
Will;
(3) the Will should be attested by two or more
witnesses, and
(4) each of the said witnesses must have seen the
testator signing or affixing his mark to the Will and
each of them should sign the Will in presence of the
testator.
26. In case of M.B. Ramesh (Dead) by LR's vs. K.M. Veerajee
Urs (Dead) by LR's and others, reported in (2013) 7 SCC
490, Hon'ble Supreme Court has held thus:-
"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."
(emphasis supplied)
27. In Jagdish Chand Sharma vs. Narain Singh Saini (dead)
through LRs and others, reported in (2015) 8 SCC 615, it
was observed thus:-
"52.While dwelling on the respective prescripts of
Section 63 of the Act and Section 68 and 71 of Act 1872
vis-à-vis a document required by law to be compulsorily
attested, it was held that if an attesting witness is alive
and is capable of giving evidence and is subject to the
process of the Court, he/she has to be necessarily
examined before such document can be used in
evidence. It was expounded that on a combined reading
of Section 63 of the Act and Section 68 of the 1872 Act,
it was apparent that mere proof of signature of the
testator on the Will was not sufficient and that attestation
thereof was also to be proved as required by Section 63
(c) of the Act. It was, however, emphasised that though
Section 68 of the 1872 Act permits proof of a document
compulsorily required to be attested by one attesting
witness, he/she should be in a position to prove the
execution thereof and if it is a Will, in terms of Section 63
(c) of the Act, viz, attestation by two attesting witnesses
in the manner as contemplated therein. It was exposited
that if the attesting witness examined besides his
attestation does not prove the requirement of the
attestation of the Will by the other witness, his testimony
would fall short of attestation of the Will by at least two
witnesses for the simple reason that the execution of the
Will does not merely mean signing of it by the testator
but connotes fulfilling the proof of all formalities required
under Section 63 of the Act. It was held that where the
attesting witness examined to prove the Will under
Section 68 of 1872 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."
(emphasis supplied)
28. Recently, the Hon'ble Supreme Court while interpreting
Section 63 (c) of the Act of 1925 in Civil Appeal
No.13192/2024 (Gopal Krishan & ors vs Daulat Ram &
ors), decided on 2.1.2025, has observed thus:-
8. The requisites for proving of a Will are well
established. They were recently reiterated in a
Judgment of this Court in Meena Pradhan and others
vs Kamla Pradhan and another. See also Shivkumar
and others v. Sharanabasappa and others. The
principle as summarized by the former are reproduced
as below:-
"...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 fulfill 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; (2023) 9 SCC 734 (2021) 11
SCC 277
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 etcetera 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."
29. Let us examine the facts of the case in hand keeping in mind
the broad principles which have been laid down by Hon'ble
Supreme Court in above decisions interpreting Section 63 of
the Act of 1925. In case at hand, one of the attesting
witnesses namely Rajeshwar Singh (PW-3) was examined to
prove due execution of Will. On going through the testimony
of Rajeshwar Singh (PW-3) it is seen that testatrix Dashmat
Bai has executed the Will in his presence. But, still there is a
serious lacuna which goes to the root of the matter as he has
not at all stated in his entire testimony that testratrix has put
her thumb impression mark in the Will dated 3.11.1995 in
presence of witnesses and that he also signed the Will in
presence of the testatrix. It is well settled that in order to prove
the execution of Will, it is absolutely necessary that the
witness had seen the testator/testatrix signing or affixing
his/her mark on the Will and only then, it can be said that
execution of Will is proved. In absence of proof of due
attestation as envisaged under Section 63 (c) of the Act of
1925, the Will cannot be said to be proved. In instant case,
statement of PW-3 that testatrix Dashmat Bai executed the
Will in his presence, cannot be stretched up to the extent in
order to hold or infer that attestation has been proved in terms
of Section 63 (c) of the Act of 1925. In other words, from the
statement of attesting witness Rajeshwar Singh it is not
established at all that the testatrix put her thumb impression
mark in his presence and the attesting witnesses also signed
the Will in the presence of / before testatrix Dashmat Bai and
therefore, both the Courts' have rightly held that plaintiffs have
failed to prove execution of Will as per law.
30. That apart, the Will in question contained incorrect recital that
plaintiff No.2 Rajendra Kumar and defendant No.15 and 16
are taking care of testatrix for the last 30 years. However,
plaintiff No.1-Asha, wife of Shivbhushan and mother of plaintiff
No.2, in her cross-examination admitted that she shifted to
Shivrinarayan in the year 1987 and since then they are
residing there. Thus, this recital in the Will in question is wrong
and creates a suspicion about genuineness of the Will, which
is an unregistered document. Furthermore, one of the
beneficaires of Will in question, who was impleaded as
defendant, specifically denied the execution of Will Ex.P-5. In
respect of the Will executed by a Hindu, if the same has been
denied by one of the beneficiaries to the Will, then it is
bounden duty cast upon the party claiming benefit under the
Will to prove the Will as per law.
31. True it is that the first appellate Court in Para-25 of its
judgment has opined that the execution and attestation of Will
dated 3.11.1995 is proved without setting aside the finding
recorded by learned trial Court in Para-33 and 34 of its
judgment on Issue No.7. However, in Para-26 learned first
appellate Court had affirmed the finding recorded by learned
trial Court on Issue No.1 and 7 recording that trial Court has
not committed any error in deciding Issue No.1 and 7 to be not
proved. Issue No.7 formed by trial Court is 'whether Dashmat
Bai has executed Will dated 3.11.1995 in favour of plaintiff
No.2 and defendant No.15 and 16 of the land owned and
possessed by her'. When once finding recorded by trial Court
on Issue No.7 is affirmed by learned first appellate Court, then
the observation made in para-25 will have no relevance.
32. Learned First Appellate Court recorded in categorical terms
that it is not clear from the Will Ex.P-5 that it has been
executed in respect of the suit property situated in village
Kamrid as it does not contain details of the properties referred
to in it and thus genuineness of the Will dated 3.11.1995 is
surrounded with suspicion. It is well settled that mere
execution of Will, thus, by producing scribe or attesting
witness or proving genuineness of testator's signature or
thumb impressions by themselves is not sufficient to establish
validity of Will unless suspicious circumstances, usual or
special, are ruled out and the courts' conscience is satisfied
not only on execution but about its authenticity. In the instant
case, the circumstances brought on record create great
suspicions which has not been removed by the plaintiffs to
establish that the Will in question is genuine and was
executed by the testatrix as per law.
33. As discussed above, one of the beneficiaries of the Will, who
was impleaded as defendant No.16- Kapil has denied the
execution of Will. Testatrix was an illiterate lady about 98
years of age, there is no evidence that the Will was read over
and explained to her. One of the beneficiaries, plaintiff No.2
was present while execution of Will, as admitted by PW-1. All
the above are suspicious circumstances which were not
properly met and explained by the plaintiffs' witnesses.
34. There is no force in the submission of learned counsel for
appellants that suspicious circumstances as to the
genuineness of Will have not been pleaded by the defendants
in their written statements. When prime consideration of
learned trial Court while deciding Issue No.7 was with regard
to valid execution of Will and its prove as required under
Section 63 (c) of the Act of 1925 read with Section 68 of the
Evidence Act, to which learned trial Court has found that valid
execution of Will has not been proved and the finding
recorded by trial Court on Issue No.7 has been affirmed by
learned first appellate Court in Para-26 of its judgment, the
ground raised by learned counsel for appellants that
suspicious circumstances have not bee pleaded by
defendants and therefore, plaintiffs cannot be called upon to
prove such fact, is not having much importance in the facts
and circumstances of the case.
35. Hon'ble Supreme Court in its various decisions has made it
clear that a second appeal can be dismissed at the admission
stage without formulation of substantial question of law if none
arises in a given case. In case of C. Doddanarayana Reddy
(Dead) by L.Rs. and Ors. Vs. C. Jayarama Reddy (Dead)
by L.Rs. and Ors. (2020) 4 SCC 659, Hon'ble Supreme
Court has observed and concluded thus:-
"25. The question as to whether a substantial
question of law arises, has been a subject-matter of
interpretation by this Court. In the judgment in
Karnataka Board of Wakf v. Anjuman-E-Ismail
Madris-Un-Niswan13, it was held that findings of the
fact could not have been interfered within the
second appeal. This Court held as under: (SCC pp.
347-48, paras 12-15)
"12. This Court had repeatedly held that the
power of the High Court to interfere in
second appeal under Section 100 CPC is
limited solely to decide a substantial
question of law, if at all the same arises in
the case. It has deprecated the practice of
the High Court routinely interfering in pure
findings of fact reached by the courts below
without coming to the conclusion that the
said finding of fact is either perverse or not
based on material on record.
13. In Ramanuja Naidu v. Vs. Kanniah
Naidu (1996) 3 SCC 392, this Court held :
(SCC 393)
'It is now well settled that concurrent
findings of fact of trial court and first
appellate court cannot be interfered
with by the High Court in exercise of
its jurisdiction under Section 100 of
the Civil Procedure Code. The Single
Judge of the High Court totally
misconceived his jurisdiction in
deciding the second appeal under
Section 100 of the Code in the way he
did.'.
14. In Navaneethammal v. Arjuna Chetty
(1996) 6 SCC 166, this Court held: (SCC p.
166)
'Interference with the concurrent
findings of the courts below by the High
Court under Section 100 CPC must be
avoided unless warranted by
compelling reasons. In any case, the
High Court is not expected to
reappreciate the evidence just to
replace the findings of the lower
courts. ... Even assuming that another
view is possible on a reappreciation of
the same evidence, that should not
have been done by the High Court as it
cannot be said that the view taken by
the first appellate court was based on
no material.'
15. And again in Taliparamba Education
Society v. Moothedath c Mallisseri Illath
M.N. (1997) 4 SCC 484, this Court held:
(SCC p. 486, para 5)
'5.... The High Court was grossly in error
in trenching upon the appreciation of
evidence under Section 100 CPC and
recording reverse finding of fact, which
is impermissible.' "
29. The learned High Court has not
satisfied the tests laid down in the aforesaid
judgments. Both the courts, the trial court
and the learned first appellate court, have
examined the school leaving certificate and
returned a finding that the date of birth does
not stand proved from such certificate. May
be the High Court could have taken a
different view acting as a trial court but
once,two courts have returned a finding
which is not based upon any misreading of
material documents, nor is recorded against
any provision of law, and neither can it be
said that any Judge acting judicially and
reasonably could not have reached such a
finding, then, the High Court cannot be said
to have erred. Resultantly, no substantial
question of law arose for consideration
before the High Court.
30. Thus, we find that the High Court erred
in law in interfering with the finding of fact
recorded by the trial court as affirmed by
the first appellate court. The findings of fact
cannot be interfered with in a second
appeal unless, the findings are perverse.
The High Court could not have interfered
with the findings of fact."
36. In case of State of Rajasthan and Ors. Vs. Shiv Dayal
and Ors. (2019) 8 SCC 637 Hon'ble Supreme Court has
observed and concluded thus:-
"16. When any concurrent finding of fact is
assailed in second appeal, the appellant is
entitled to point out that it is bad in law
because it was recorded dehors the
pleadings or it was based on no evidence
or it was based on misreading of material
documentary evidence or it was recorded
against any provision of law and lastly, the
decision is one which no Judge acting
judicially could reasonably have reached.
(See observation made by learned Judge,
Vivian Bose, J., as his Lordship then was a
Judge of the Nagpur High Court in
Rajeshwar Vishwanath Mamidwar Vs.
Dashrath Narayan Chilwelkar [Rajeshwar
Vishwanath Mamidwar Vs. Dashrath
Narayan Chilwelkar, 1942 SCC OnLine MP
26 : AIR 1943 Nag 117].
17. In our opinion, if any one or more
ground, as mentioned above, is made out in
an appropriate case on the basis of the
pleading and evidence, such ground will
constitute substantial question of law within
the meaning of Section 100 of the Code."
37. In the instant case, in the light of the above discussion and
decisions of Hon'ble Supreme Court, this Court is of the view
that no substantial question of law much less the question
proposed as substantial question of law by the appellants
herein in the memorandum of grounds of appeal arise. Hence,
SYED appeal is dismissed in limine.
ROSHAN
ZAMIR ALI 38. Decree be drawn accordingly.
by SYED Sd/-
ZAMIR ALI (Parth Prateem Sahu)
Judge
roshan/-
