Madhya Pradesh High Court
Anand Kumar Jain vs Chandra Kumar Jain on 16 February, 2024
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 M.P. No.4458/2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 16th OF FEBRUARY, 2024
MISC. PETITION No. 4458 of 2023
BETWEEN:-
1. ANAND KUMAR JAIN S/O LATE SHRI
VALLABHDAS JAIN, AGED ABOUT 57 YEARS,
OCCUPATION: BUSINESS R/O B 1504, PRISTON
HEERA MAIDAN ESTATE PAWLI THANE
(MAHARASHTRA)
2. AJAY KUMAR S/O LATE SHRI VALLABHDAS,
AGED ABOUT 54 YEARS, OCCUPATION:
BUSINESS R/O 130, SHRUTI VILA N.R.D., SOJA
COLONY COLLEGE ROAD NASIK
MAHARASHTRA (MAHARASHTRA)
.....PETITIONERS
(BY SHRI D.K.TRIPATHI - ADVOCATE)
AND
1. CHANDRA KUMAR JAIN S/O LATE SHRI
KAPOOR CHAND JAIN R/O NAUKER DARSHAN
FLAT NO. 501, OPPOSITE G.I.I.S. SCHOOL
SRIDHAR NAGAR CHINCHWAD PUNE
(MAHARASHTRA)
2. SOURABH SINGHAI S/O MAHENDRA KUMAR
JAIN R/O MAHARISHI DAYANAND WARD
SAGAR DISTRIC SAGAR (MADHYA PRADESH)
3. ALOK KUMAR JAIN S/O SHRI VALLABHDAS
JAIN R/O FLAT NO. 7, C BUILDING GOKHLE
VRINDAWAN P.N.G. CHICHWAD PUNE
MAHARASHTRA (MAHARASHTRA)
.....RESPONDENTS
(BY SHRI AVINASH ZARGAR - ADVOCATE)
This petition coming on for admission this day, the court passed the
following:
ORDER
Heard on I.A.No.18968/2023, an application for amendment in
the writ petition.
2. It is the case of the petitioner that during the pendency of this writ
petition, the SDO had passed the final order dated 6.11.2023 and by this
amendment application, the petitioner wants to incorporate the
amendment, thereby challenging the correctness of the said order.
3. Reply to this application has been filed by the respondent
pleading inter alia that once the final order has been passed by the
S.D.O. then it is an appealable order and the petitioner has an
efficacious remedy to assail the same and further, the petition was
originally filed against the interim order passed by the S.D.O., by which
the stay was vacated and once the interim order has merged in the final
order, therefore, this petition has rendered infructuous.
4. Heard the Learned Counsel for the parties on the question of
amendment.
5. So far as the question of availability of alternative remedy is
concerned, it is well settled principle of law that there is no absolute bar
for the Court not to entertain the writ petitions where the alternative
remedy is available. This Court can ignore the availability of alternative
remedy after considering as to whether the question involved in the lis is
purely a question of law, or it is a mixed question of law and facts. If it
is found that the dispute involved is a pure question of law, then this
Court can ignore the availability of alternative remedy.
6. In the present case, the only dispute is as to whether the mutation
can be done on the basis of Will. The said aspect has already been
finally decided by the Supreme Court in the case of Jitendra Singh Vs.
State of Madhya Pradesh and others, reported in 2021 SCC online
SC 802. Therefore, this court hereby ignores the availability of
alternative remedy.
7. The next question for consideration is that whether this petition
has rendered infructuous.
8. The submission has considerable force, however, before the
petition could be finally decided, an application for amendment, i.e.
I.A.No.18968/2023 was already filed and this Court has already held
that question of availability of alternative remedy is not an absolute bar
for exercise of power under Article 226/227 of the Constitution of India.
9. Accordingly, both the preliminary objections raised by counsel for
the respondent are hereby rejected.
10. I.A.No.18968/2023 is hereby allowed.
11. With the permission of the Court, the amendment was carried out
in the court.
12. Heard on merits.
13. This petition under Article 227 of Constitution of India has been
filed seeking the following reliefs:
"I. to call for entire relevant record.
7(I A) to issue a writ in the nature of certiorari and be
pleased to be quashed the order dated 06.11.2023
(Annexure P-9).
II. to issue a writ in the nature of certiorari and to quash
the impugned order dated 11.07.2023 (Annexure P/1)
passed by S.D.O. Sagar Sub Division Sagar M.P.
III. any other relief together cost of the petition which
this Hon'ble Court deem fit and proper under the
facts and circumstances of this case may also be
awarded in favour of the petitioner."
14. It is submitted by counsel for applicant that as per the M.P. Bhu-
Rajaswa Sanhita (Bhu-Abhilekhon main Namantaran) Niyam, 2018 (In
short 'Niyam, 2018'), the name can be mutated in the revenue records
on the basis of Will, therefore, revenue authorities are well within their
rights to direct the mutation of names on the basis of Will.
15. Considered the submissions made by counsel for applicant.
16. There is no doubt that a title can be acquired by virtue of Will
and once the title can be acquired, then the name can also be mutated in
the revenue records irrespective of fact as to whether there is any rule in
that regard or not? Even otherwise as per Niyam, 2018, the names can
be mutated on the basis of Will.
17. It is the case of petitioner that in case if somebody is aggrieved by
Will, then he has to file a civil suit challenging the Will. The aforesaid
submission made by counsel for applicant cannot be accepted. If
somebody wants to take advantage of a document, then first of all, he
has to prove the same in accordance with law. Sections 67 and 68 of
Evidence Act prescribe the requirements and nature of proof which must
be satisfied by the parties, who relies on a document in the Court of law.
18. It is well established principle of law that party propounding a
Will or otherwise making a claim under a Will is under obligation to
prove the document. Unlike other document Will is a document which
speaks from the death of testator and the testator, who has already
migrated to the other world cannot appear and depose as to whether he
has executed such document or not? The propounder is required to show
by satisfactory evidence that Will was signed by testator, that testator at
the relevant time was in a sound and disposing state of mind, that he
understood the nature and effect of dispositions and had put his
signature on the document of his own volition.
19. Furthermore, Will may be surrounded by suspicious
circumstances and burden is on the propounder of the Will not only to
prove the document but to remove all the suspicious circumstances. The
Supreme Court in the case of H. Venkatachala Iyengar v. B.N.
Thimmajamma and others reported in AIR 1959 SC 443 has held as
under:
"18. What is the true legal position in the matter of
proof of wills? It is well-known that the proof of wills
presents a recurring topic for decision in courts and
there are a large number of judicial pronouncements
on the subject. The party propounding a will or
otherwise making a claim under a will is no doubt
seeking to prove a document and, in deciding how it is
to be proved, we must inevitably refer to the statutory
provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant
for this purpose. Under Section 67, if a document is
alleged to be signed by any person, the signature of
the said person must be proved to be in his
handwriting, and for proving such a handwriting under
Sections 45 and 47 of the Act the opinions of experts
and of persons acquainted with the handwriting of the
person concerned are made relevant. Section 68 deals
with the proof of the execution of the document
required by law to be attested; and it provides that
such a document shall not be used as evidence until
one attesting witness at least has been called for the
purpose of proving its execution. These provisions
prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections 59 and
63 of the Indian Succession Act are also relevant.
Section 59 provides that every person of sound mind,
not being a minor, may dispose of his property by will
and the three illustrations to this section indicate what
is meant by the expression "a person of sound mind"
in the context. Section 63 requires that 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 that the signature or mark shall be so
made that it shall appear that it was intended thereby
to give effect to the writing as a will. This section also
requires that the will shall be attested by two or more
witnesses as prescribed. Thus the question as to
whether the will set up by the propounder is proved to
be the last will of the testator has to be decided in the
light of these provisions. Has the testator signed the
will? Did he understand the nature and effect of the
dispositions in the will? Did he put his signature to the
will knowing what it contained? Stated broadly it is
the decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as to
the special requirements of attestation prescribed by
Section 63 of the Indian Succession Act. As in the
case of proof of other documents so in the case of
proof of wills it would be idle to expect proof with
mathematical certainty. The test to be applied would
be the usual test of the satisfaction of the prudent mind
in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike
other documents the will speaks from the death of the
testator, and so, when it is propounded or produced
before a court, the testator who has already departed
the world cannot say whether it is his will or not; and
this aspect naturally introduces an element of
solemnity in the decision of the question as to whether
the document propounded is proved to be the last will
and testament of the departed testator. Even so, in
dealing with the proof of wills the court will start on
the same enquiry as in the case of the proof of
documents. The propounder would be called upon to
show by satisfactory evidence that the will was signed
by the testator, that the testator at the relevant time
was in a sound and disposing state of mind, that he
understood the nature and effect of the dispositions
and put his signature to the document of his own free
will. Ordinarily 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 justified in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof of
the essential facts just indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator
may be very shaky and doubtful and evidence in
support of the propounder's case that the signature, in
question is the signature of the testator may not
remove the doubt created by the appearance of the
signature; the condition of the testator's mind may
appear to be very feeble and debilitated; and evidence
adduced may not succeed in removing the legitimate
doubt as to the mental capacity of the testator; the
dispositions made in the will may appear to be
unnatural, improbable or unfair in the light of relevant
circumstances; or, the will may otherwise indicate that
the said dispositions may not be the result of the
testator's free will and mind. In such cases the court
would naturally expect that all legitimate suspicions
should be completely removed before the document is
accepted as the last will of the testator. The presence
of such suspicious circumstances naturally tends to
make the initial onus very heavy; and, unless it is
satisfactorily discharged, courts would be reluctant to
treat the document as the last will of the testator. It is
true that, if a caveat is filed alleging the exercise of
undue influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may
have to be proved by the caveators; but, even without
such pleas circumstances may raise a doubt as to
whether the testator was acting of his own free will in
executing the will, and in such circumstances, it would
be a part of the initial onus to remove any such
legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which
we have just referred, in some cases the wills
propounded disclose another infirmity. Propounders
themselves take a prominent part in the execution of
the wills which confer on them substantial benefits. If
it is shown that the propounder has taken a prominent
part in the execution of the will and has received
substantial benefit under it, that itself is generally
treated as a suspicious circumstance attending the
execution of the will and the propounder is required to
remove the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present
such suspicious circumstances that decisions of
English courts often mention the test of the
satisfaction of judicial conscience. It may be that the
reference to judicial conscience in this connection is a
heritage from similar observations made by
ecclesiastical courts in England when they exercised
jurisdiction with reference to wills; but any objection
to the use of the word "conscience" in this context
would, in our opinion, be purely technical and
academic, if not pedantic. The test merely emphasizes
that, in determining the question as to whether an
instrument produced before the court is the last will of
the testator, the court is deciding a solemn question
and it must be fully satisfied that it had been validly
executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of
fact which arise in applications for probate or in
actions on wills, no hard and fast or inflexible rules
can be laid down for the appreciation of the evidence.
It may, however, be stated generally that a propounder
of the will has to prove the due and valid execution of
the will and that if there are any suspicious
circumstances surrounding the execution of the will
the propounder must remove the said suspicions from
the mind of the court by cogent and satisfactory
evidence. It is hardly necessary to add that the result
of the application of these two general and broad
principles would always depend upon the facts and
circumstances of each case and on the nature and
quality of the evidence adduced by the parties. It is
quite true that, as observed by Lord Du Parcq
in Harmes v. Hinkson [(1946) 50 CWN 895] "where a
will is charged with suspicion, the rules enjoin a
reasonable scepticism, not an obdurate persistence in
disbelief. They do not demand from the Judge, even in
circumstances of grave suspicion, a resolute and
impenetrable incredulity. He is never required to close
his mind to the truth". It would sound platitudinous to
say so, but it is nevertheless true that in discovering
truth even in such cases the judicial mind must always
be open though vigilant, cautious and circumspect.
**** **** ****
29. According to the decisions
in Fulton v. Andrew [(1875) LR 7 HL 448] "those
who take a benefit under a will, and have been
instrumental in preparing or obtaining it, have thrown
upon them the onus of showing the righteousness of
the transaction". "There is however no unyielding rule
of law (especially where the ingredient of fraud enters
into the case) that, when it has been proved that a
testator, competent in mind, has had a will read over to
him, and has thereupon executed it, all further enquiry
is shut out". In this case, the Lord Chancellor, Lord
Cairns, has cited with approval the well-known
observations of Baron Parke in the case
of Barry v. Butlin [(1838) 2 Moo PC 480, 482] . The
two rules of law set out by Baron Parke are:"first, that
the onus probandi lies in every case upon the party
propounding a will; and he must satisfy the conscience
of the court that the instrument so propounded is the
last will of a free and capable testator"; "the second is,
that, if a party writes or prepares a will under which he
takes a benefit, that is a circumstance that ought
generally to excite the suspicion of the court and calls
upon it to be vigilant and zealous in examining the
evidence in support of the instrument in favour of
which it ought not to pronounce unless the suspicion is
removed, and it is judicially satisfied that the paper
propounded does express the true will of the
deceased". It is hardly necessary to add that the
statement of these two rules has now attained the
status of a classic on the subject and it is cited by all
text books on wills. The will propounded in this case
was directed to be tried at the Assizes by the Court of
Probate. It was tried on six issues. The first four issues
referred to the sound and disposing state of the
testator's mind and the fifth to his knowledge and
approval of the contents of the will. The sixth was
whether the testator knew and approved of the
residuary clause; and by this last clause the
propounders of the will were made the residuary
legatees and were appointed executors. Evidence was
led at the trial and the Judge asked the opinion of the
jurors on every one of the issues. The jurors found in
favour of the propounders on the first five issues and
in favour of the opponents on the sixth. It appears that
no leave to set aside the verdict and enter judgment for
the propounders notwithstanding the verdict on the
sixth issue was reserved; but when the case came
before the Court of Probate a rule was obtained to set
aside the verdict generally and have a new trial or to
set aside the verdict on the sixth issue for misdirection.
It was in dealing with the merits of the finding on the
sixth issue that the true legal position came to be
considered by the House of Lords. The result of the
decision was that the rule obtained for a new trial was
discharged, the order of the Court of Probate of the
whole will was reversed and the matter was remitted
to the Court of Probate to do what was right with
regard to the qualified probate of the will.
30. The same principle was emphasized by the Privy
Council in Vellasawmy Servai v. Sivaraman
Servai [(1929) LR 57 IA 96] where it was held that,
where a will is propounded by the chief beneficiary
under it, who has taken a leading part in giving
instructions for its preparation and in procuring its
execution, probate should not be granted unless the
evidence removes suspicion and clearly proves that
the testator approved the will.
31. In Sarat Kumari Bibi v. Sakhi Chand [(1928) LR
56 IA 62] the Privy Council made it clear that "the
principle which requires the propounder to remove
suspicions from the mind of the Court is not confined
only to cases where the propounder takes part in the
execution of the will and receives benefit under it.
There may be other suspicious circumstances
attending on the execution of the will and even in such
cases it is the duty of the propounder to remove all
clouds and satisfy the conscience of the court that the
instrument propounded is the last will of the testator".
This view is supported by the observations made by
Lindley and Davey, L. JJ.,
in Tyrrell v. Painton [(1894) P 151, 157, 159] . "The
rule in Barry v. Butlin [(1838) 2 Moo PC 480, 482]
, Fulton v. Andrew [(1875) LR 7 HL 448]
and Brown v. Fisher [(1890) 63 LT 465] , said
Lindley, L.J., "is not in my mind confined to the
single case in which the will is prepared by or on the
instructions of the person taking large benefits under it
but extends to all cases in which circumstances exist
which excite the suspicions of the court".
32. In Rash Mohini Dasi v. Umesh Chunder
Biswas [(1898) LR 25 IA 109] it appeared that though
the will was fairly simple and not very long the
making of it was from first to last the doing of Khetter,
the manager and trusted adviser of the alleged testator.
No previous or independent intention of making a will
was shown and the evidence that the testator
understood the business in which his adviser engaged
him was not sufficient to justify the grant of probate.
In this case the application for probate made by the
widow of Mohim Chunder Biswas was opposed on the
ground that the testator was not in a sound and
disposing state of mind at the material time and he
could not have understood the nature and effect of its
contents. The will had been admitted to the probate by
the District Judge but the High Court had reversed the
said order. In confirming the view of the High Court
the Privy Council made the observations to which we
have just referred.
33. The case of Shama Charn Kundu v. Khettromoni
Dasi [(1899) ILR 27 Cal 522] on the other hand, was
the case of a will the execution of which was held to
be not surrounded by any suspicious circumstances.
Shama Charn, the propounder of the will, claimed to
be the adopted son of the testator. He and three others
were appointed executors of the will. The testator left
no natural son but two daughters and his widow. By
his will the adopted son obtained substantial benefit.
The probate of the will with the exception of the last
paragraph was granted to Shama Charn by the trial
Judge; but, on appeal the application for probate was
dismissed by the High Court on the ground that the
suspicions attending on the execution of the will had
not been satisfactorily removed by Shama Charn. The
matter was then taken before the Privy Council; and
Their Lordships held that, since the adoption of Shama
Charn was proved, the fact that he took part in the
execution of the will and obtained benefit under it
cannot be regarded as a suspicious circumstance so as
to attract the rule laid down by Lindley, L.J.,
in Tyrrell v. Painton [(1894) P 151, 157, 159] . In Bai
Gungabai v. Bhugwandas Valji [(1905) ILR 29 Bom
530] the Privy Council had to deal with a will which
was admitted to probate by the first court, but on
appeal the order was varied by excluding therefrom
certain passages which referred to the deed-poll
executed on the same day by the testator and to the
remuneration of the solicitor who prepared the will
and was appointed an executor and trustee thereof.
The Privy Council held that "the onus was on the
solicitor to satisfy the court that the passages omitted
expressed the true will of the deceased and that the
court should be diligent and zealous in examining the
evidence in its support, but that on a consideration of
the whole of the evidence (as to which no rule of law
prescribed the particular kind required) and of the
circumstances of the case the onus was discharged". In
dealing with the question as to whether the testator
was aware that the passages excluded by the appeal
court from the probate formed part of the instrument,
the Privy Council examined the evidence bearing on
the point and the probabilities. In conclusion Their
Lordships differed from the view of the appeal court
that there had been a complete failure of the proof that
the deed-poll correctly represented the intentions of
the testator or that he understood or approved of its
contents and so they thought that there were no
grounds for excluding from the probate the passages in
the will which referred to that deed. They, however,
observed that it would no doubt have been more
prudent and business-like to have obtained the
services of some independent witnesses who might
have been trusted to see that the testator fully
understood what he was doing and to have secured
independent evidence that clause 26 in particular was
called to the testator's attention. Even so, Their
Lordships expressly added that in coming to the
conclusion which they had done they must not be
understood as throwing the slightest doubt on the
principles laid down in Fulton v. Andrew [(1875) LR
7 HL 448] and other similar cases referred to in the
argument."
20. The Supreme Court in the case of Surendra Pal and others v. Dr.
(Mrs.) Saraswati Arora and another, reported in (1974) 2 SCC 600 has
held that propounder has to show that the Will was signed by testator, that
he was at the relevant time in a sound disposing state of mind, that he
understood the nature and effect of the dispositions, that he put his
signature to the testament of his own free Will, that he has signed it in
the presence of the two witnesses who attested it in his presence and in
the presence of each other. Once these elements are established, the
onus which rests on the propounder is discharged. Furthermore, there
may be cases in which the execution of the Will itself is surrounded by
suspicious circumstances, such as, where the signature is doubtful, the
testator is of feeble mind or is overawed by powerful minds interested in
getting his property, or where in the light of relevant circumstances the
dispositions appears to be the unnatural, improbable and unfair, or where
there are other reasons for doubting that the dispositions of the Will are not
the result of testator's free Will and mind. It has also been held that in all
such cases where there may be legitimate suspicious circumstances those
must be reviewed and satisfactorily explained before the Will is accepted
and the onus is always on the propounder to explain them to the
satisfaction of the Court before it could be accepted as genuine.
21. The Supreme Court in the case of Gorantla Thataiah v. Thotakura
Venkata Subbaiah and others, reported in AIR 1968 SC 1332 has held as
it is for those who propound the Will to prove the same.
22. The Supreme Court in the case of Murthy and others v. C.
Saradambal and others, reported in (2022) 3 SCC 209 has held that
intention of testator to make testament must be proved, and propounder
of Will must examine one or more attesting witnesses and remove all
suspicious circumstances with regard to execution of Will. It has been
held as under:
"31. One of the celebrated decisions of this Court on
proof of a will, in H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. Venkatachala Iyengar v. B.N.
Thimmajamma, AIR 1959 SC 443] is in H. Venkatachala
Iyengar v. B.N. Thimmajamma, wherein this Court has
clearly distinguished the nature of proof required for a
testament as opposed to any other document. The relevant
portion of the said judgment reads as under: (AIR p. 451,
para 18)
"18. ... The party propounding a will or otherwise
making a claim under a will is no doubt seeking to
prove a document and, in deciding how it is to be
proved, we must inevitably refer to the statutory
provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant
for this purpose. Under Section 67, if a document is
alleged to be signed by any person, the signature of
the said person must be proved to be in his
handwriting, and for proving such a handwriting under
Sections 45 and 47 of the Act the opinions of experts
and of persons acquainted with the handwriting of the
person concerned are made relevant. Section 68 deals
with the proof of the execution of the document
required by law to be attested; and it provides that
such a document shall not be used as evidence until
one attesting witness at least has been called for the
purpose of proving its execution. These provisions
prescribe the requirements and the nature of proof
which must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections 59 and
63 of the Succession Act are also relevant. Section 59
provides that every person of sound mind, not being a
minor, may dispose of his property by will and the
three illustrations to this section indicate what is meant
by the expression "a person of sound mind" in the
context. Section 63 requires that 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 that the signature or mark shall be so made that it
shall appear that it was intended thereby to give effect
to the writing as a will. This section also requires that
the will shall be attested by two or more witnesses as
prescribed. Thus, the question as to whether the will
set up by the propounder is proved to be the last will
of the testator has to be decided in the light of these
provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in
the will? Did he put his signature to the will knowing
what it contained? Stated broadly it is the decision of
these questions which determines the nature of the
finding on the question of the proof of wills. It would
prima facie be true to say that the will has to be proved
like any other document except as to the special
requirements of attestation prescribed by Section 63 of
the Indian Succession Act. As in the case of proof of
other documents so in the case of proof of wills it
would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual
test of the satisfaction of the prudent mind in such
matters."
32. In fact, the legal principles with regard to the proof
of a will are no longer res integra. Section 63 of the
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 abovenoted 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 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. 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."
38. This Court in Anil Kak v. Sharada Raje [Anil
Kak v. Sharada Raje, (2008) 7 SCC 695] , held as under:
(Bharpur Singh case [Bharpur Singh v. Shamsher Singh,
(2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p.
698, para 20)
"20. This Court in Anil Kak v. Sharada Raje [Anil
Kak v. Sharada Raje, (2008) 7 SCC 695] opined that
the court is required to adopt a rational approach and
is furthermore required to satisfy its conscience as
existence of suspicious circumstances plays an
important role, holding: (SCC p. 714, paras 52-55)
'52. Whereas execution of any other document
can be proved by proving the writings of the
document or the contents of it as also the
execution thereof, in the event there exists
suspicious circumstances the party seeking to
obtain probate and/or letters of administration
with a copy of the will annexed must also adduce
evidence to the satisfaction of the court before it
can be accepted as genuine.
53. As an order granting probate is a judgment
in rem, the court must also satisfy its conscience
before it passes an order.
54. It may be true that deprivation of a due
share by (sic to) the natural heir by itself may not
be held to be a suspicious circumstance but it is
one of the factors which is taken into
consideration by the courts before granting
probate of a will.
55. Unlike other documents, even animus
attestandi is a necessary ingredient for proving
the attestation.' "
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. Similar law has been laid down by Supreme Court in the case of
Dhanpat v. Sheo Ram (Deceased) through legal representatives and
others, reported in (2020) 16 SCC 209 and in the case of V.
Kalyanaswamy (Dead) by legal representatives and another v. L.
Bakthavatsalam (Dead) by legal representatives and others, reported
in (2021) 16 SCC 543.
24. The Supreme Court in the case of Bharpur Singh and others v.
Shamsher Singh, reported in (2009) 3 SCC 687 has held that it may be
true that 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. In terms of Section 63(c), Succession Act, 1925 and
Section 68, Evidence Act, 1872, the propounder of a Will must prove its
execution by examining one or more attesting witnesses and propounder
of Will must prove 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.
25. The Supreme Court in the case of Niranjan Umeshchandra
Joshi v. Mrudula Jyoti Rao and others, reported in (2006) 13 SCC
433 has held that mere proof that testator had signed the Will is not
enough. It has also to be proved that testator has signed out of his free
will having a sound disposition of mind and not a feeble and debilitated
mind, understanding well the nature and effect thereof. The Court will
also not refuse to probe deeper in the matter merely because
propounder's signature on the Will is proved. Similar law has been laid
down by Supreme Court in the cases of Savithri and others v.
Karthyayani Amma and others, reported in (2007) 11 SCC 621,
Balathandayutham and another v. Ezhilarasan, reported in (2010) 5
SCC 770, Pentakota Satyanarayana and others v. Pentakota
Seetharatnam and others, reported in (2005) 8 SCC 67 and
Meenakshiammal (Dead) through legal representatives and others
v. Chandrasekaran and another, reported in (2005) 1 SCC 280.
26. Therefore, in order to take advantage of Will for getting his name
mutated in the revenue records, beneficiary must prove that Will was a
genuine one and must remove all suspicious circumstances which are
attached to it by examining at least one of the attesting witnesses as well
as by proving the mental status of testator, willingness of testator,
understanding of testator etc. All these findings cannot be given by
revenue authorities.
27. The Supreme Court in the case of Jitendra Singh v. State of
Madhya Pradesh by order dated 06.09.2021 passed in SLP (civil)
No.13146/2021 has held as under:
"6. Right from 1997, the law is very clear. In the case
of Balwant Singh v. Daulat Singh (D) By Lrs.,
reported in (1997) 7 SCC 137, this Court had an
occasion to consider the effect of mutation and it is
observed and held that mutation of property in revenue
records neither creates nor extinguishes title to the
property nor has it any presumptive value on title.
Such entries are relevant only for the purpose of
collecting land revenue. Similar view has been
expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial
Commissioner, (2007) 6 SCC 186, it is observed and
held by this Court that an entry in revenue records does
not confer title on a person whose name appears in
record-of-rights. Entries in the revenue records or
jamabandi have only "fiscal purpose", i.e., payment of
land revenue, and no ownership is conferred on the
basis of such entries. It is further observed that so far
as the title of the property is concerned, it can only be
decided by a competent civil court. Similar view has
been expressed in the cases of Suman Verma v. Union
of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin
(2008) 8 SCC 12; Rajinder Singh v. State of J&K,
(2008) 9 SCC 368; Municipal Corporation,
Aurangabad v. State of Maharashtra, (2015) 16 SCC
689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC
342; Bhimabai Mahadeo Kambekar v. Arthur Import
& Export Co., (2019) 3 SCC 191; Prahlad Pradhan v.
Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v.
Darshan Singh, (2019) 13 SCC 70."
28. Counsel for applicant also conceded that revenue authorities have
no jurisdiction to decide the question of title but only contention is that
since mutation can also be done on the basis of Will, therefore, the
revenue authorities are well within their rights to mutate the name of a
person on the basis of Will. Unfortunately this general proposition of
law which is being suggested by counsel for applicant cannot be
accepted unless and until Will is duly proved, it cannot be acted upon
and the revenue authorities have no jurisdiction to decide the
authenticity, correctness, genuineness of a Will which can only be done
by Civil Court. Thus, in the light of fact that revenue authorities cannot
decide the genuineness of the Will, the rule which permits the mutation
of name of a beneficiary on the basis of Will has to be interpreted that
the name of a beneficiary can be mutated provided the Will is duly
proved and for that purposes the beneficiary has to approach the Civil
Court for declaration of his title. Even otherwise in none of the previous
judgments it has been held that in spite of a declaration by Civil Court
the name of a beneficiary of a Will cannot be mutated. The word "Will"
as mentioned in Rules, 2018 necessarily means a valid and genuine Will
and not any piece of paper. Therefore, even in the light of Niyam, 2018
it cannot be said that there is any material change in the law.
29. It is submitted by counsel for petitioners that a Coordinate Bench
of this Court by order dated 07.10.2023 passed in W.P.No.3499/2022
has already referred the question as to whether revenue authorities have
a jurisdiction to mutate the names of the beneficiaries of a will or not.
However, it is submitted that High Court cannot held as to whether
judgment passed by Supreme Court is per incuriam or not?
30. It is submitted by counsel for respondents that since, the aforesaid
question is already under reference, therefore the hearing of this case
may be deferred awaiting outcome of W.P.No.3499/2022.
31. Considered the submission made by counsel for parties.
32. Accordingly, the order dated 11.07.2023 passed by Sub-
Divisional Officer, Sagar in Appeal No.0121/2023-24 is hereby set
aside. The revenue authorities are directed to mutate the names of all the
legal heirs of the owner of the property in dispute and the respondents
shall be free to approach the Civil Court for declaration of their title on
the basis of Will. The mutation shall be subject to final disposal of civil
litigation.
33. This petition succeeds and is hereby allowed.
(G.S. AHLUWALIA)
JUDGE
vc
VARSHA Digitally signed by VARSHA CHOURASIYA
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH, ou=HIGH COURT OF MADHYA
CHOUR
PRADESH,
2.5.4.20=f460d4685ef5a4622238f0b59b78c240
7fd3ee2f619d9ce8e428c224c23ec8ac,
postalCode=482001, st=Madhya Pradesh,
serialNumber=A0506346908D8FDC4A2DA996
ASIYA
8A85B01E1D95EF7D1630553560798626817C4
267, cn=VARSHA CHOURASIYA
Date: 2024.02.21 18:29:13 +05'30'
