[Cites 41, Cited by 0]

Madhya Pradesh High Court

Manoj vs Ramesh on 17 December, 2025

Author: Gurpal Singh Ahluwalia

Bench: G. S. Ahluwalia

NEUTRAL CITATION NO. 2025:MPHC
2025:MPHC:33565

S.A. No.244/2007

IN THE HIGH COURT OF MADHYA
PRADESH
AT GWALI OR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA

ON THE 17th OF DECEMBER, 2025
SECOND APPEAL No. 244 of 2007
MANOJ AND OTHERS
Versus
RAMESH AND OTHERS

Appearance:
Shri Sunil Kumar Gupta - Advocate for appellants.
Shri Rohit Bansal - Advocate for respondent No.1.
Shri Yogesh Singhal - Advocate for respondent No.4.
Shri Sanjay Singh Kushwah - Government Advocate for
respondent No.6/State.

JUDGMENT

1. This second appeal under Section 100 of CPC has been filed against the Judgment and Decree dated 24.02.2007 passed by 6th Additional and Sessions Judge, (Fast Track Court), urt), Bhind in Civil Appeal No.53A/2006 53A/2006 arising out of Judgment and Decree dated 21.10.2005 .2005 passed by First Civil Judge Class 1 Bhind in Civil Suit No. 3A/2003.

2. Appellants are the defendants who have lost their case from both the Courts below.

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

3. The facts necessary for disposal of the present appeal in short are that the plaintiff's/respondents No. 1 to 3 filed a suit for declaration of title as well as for declaration of Will ill dated 23.09.2002 as null and void as well as for grant of share in the LIC amount and permanent injunction. It was the case of the plaintiffs that the plaintiffs as well as defendants no. 4, 5 and 7 are the children of Devi Dayal. Devi Dayal died on 30.11.2002. The plaintiffs and the defendants no. 4, 5 and 7 are the class 1 heirs of Devi Dayal. Family tree was also given in the plaint. Devi Dayal was the recorded owner and in possession of Aaraji No. 262. 279, 372. Total area 1.39 hectares situated in Village Chokki, Paragana and District Bhind and Aaraji No.70 No.70, area 0.36 hectares tares situated in Village Beesalpura. In the aforesaid land, one tree of mango and sheesham and two trees of babool are standing. The aforesaid property is the disputed property. Apart from the aforesaid property, Devi Dayal had h a Life Insurance policy of ₹25,000/- and its maturity value is approximately Rs.44,000/-.

Rs.44,000 . It was claimed that the plaintiffs as well as the defendant no.4, 5 and 7 have equal share in the disputed property as well as in the amount of the LIC. The parties are Hindu and are governed by Mitakshara law.. Devi Dayal had inherited the disputed property from his father Sukhu.

u. Plaintiff and defendant no. 4 have share in the disputed property from their birth. Accordingly, plaintiff no.1 has one third share, Devi Dayal had 1/3 share and defend defendant ant no. 4 has one third share each.

However, as per the revenue law, the name of Devi Dayal was recorded in the revenue record, being the karta of the family. Plaintiff, defendant no. 4 and Devi Dayal were jointly cultivating the disputed land and it was the he sole source of their livelihood. Plaintif Plaintiffs fs no. 2 to 3 and defendant

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

no.7 7 are the daughters of Devi Dayal. After 08.12.1961, the personal laws in relation to succession have become applicable. Accordingly, plaintiffs no.2, 3, defendants defendant no. 5 and 7 have equal share along with plaintiff no.1 and defendants defendant no.5 and 7 in the one third share of the Devi Dayal and accordingly the plaintiffs and defendant no. 4, 5 and 7 are entitled to get their names mutated in place of Devi Dayal. The defendants no. 1 to 3 are the children of defendant no.4 and during the lifetime of defendant no.4, no.4 they don't have any right or share in the property. Even if it is presumed that they have any share, still they can get the same from the share of defendant no. 4 only. Devi Daya Dayal had one LIC policy whose maturity amount is ₹ 44,000/- and the plaintiffs as well as the defendants no.4, 5 and 7 are entitled for equal share in the same. However, as the name of defendant no.5 iss mentioned as a nominee, therefore, the same cannot be ad adverse verse to the rights of plaintiffs as well as defendants no.4, 5 and 7. Accordingly, it was claimed that the plaintiffs are entitled for half share in the maturity amount of LIC i.e., ₹ 22,000/-.. It was further claimed that defendant no.5 is trying very hard to receive the said maturity amount, but the Insurance Company must pay the said amount equally to all the legal heirs and it was claimed that accordingly, in respect of the maturity amount also, the plaintiffs are entitled to get their share declared.

declared. It was further pleaded that nominee is not entitled to receive the maturity amount and the Insurance Company must pay the same to all legal representatives of Devi Dayal. The defendant no.6 is out and out to pay the maturity amount to the defendant no.5, and thus thus, the defendant no.6 has also denied the rights of the plaintiffs requiring the filing of this suit. It was claimed that

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

defendant no.4 is a very clever person and he wants to deprive the plaintiff no.1 to receive the property. Accordingly, he prepared prepared a Will dated 23.09.2002 and made an application for mutation of the names of the defendants no.1 to 3 in the revenue records. As soon as the plaintiff no.1 came to know about the said fact, he filed an objection. The mutation proceedings are still ppending.

ending. It was claimed that Devi Dayal had never executed any Will in his lifetime. No Will ill was executed in favour of defendantss no.1 to 3. Devi Dayal had no right to transfer the property by executing a Will. Thus, it was the case of the plaintiffs that the Will ill purportedly executed by the Testator Devi Dayal in favour of defendants no.1 to 3 is a forged document and they have equal share in the disputed land as well as in the maturity amount of the LIC. Accordingly, suit was filed for declaration that the plaintiffs as well as the defendants no.4, 5 and 7 are the legal representatives of deceased Devi Dayal and they are entitled to get their names mutated as well as for declaration of title. It was also claimed that Will ill dated 23.09.2002 be declared as nulll and void to the extent of share of the plaintiffs. It was also claimed that plaintiffs are entitled to receive ₹ 22,000//- out of the approximate maturity value of ₹ 44,000/- and accordingly, a direction was also sought against the defendant no.6. Permane Permanent nt injunction was also sought against the defendants no.1 to 3 from interfering with the peaceful possession of the plaintiffs laintiffs as well as from restraining them from getting their names mutated in the revenue record and the defendant no.5 be restrained from receiving the entire maturity amount of LIC.

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

4. The defendants no. 1 to 5 filed their written statement and accepted the details of the disputed property as well as the LIC policy. It was claimed that as per the wishes of Devi Dayal, his wife/ wife/defendant efendant no.

5 is entitled for receiving the maturity amount and accordingly she was made nominee. Even if it is presumed that nominee is not entitled to receive the maturity amount, still the defendants no.1 to 5 are entitled to receive the maturity amount by virtue vir of Will ill dated 23.09.2002. It was conceded that, Devi Dayal had purchased the property in dispute by registered sale date dated 05.09.1969 and 30.06.1965. It was pleaded that the plaintiff Ramesh is the eldest son of Devi Dayal and defendant no. 5. It was as his moral duty to lookafter his old and infirm mother, but the plaintiff no.1 instead of discharging his legal and moral liabilities was residing separately from his mother. Ramesh on account of his bad habits of consuming liquor had taken a loan of ₹ 60,000/- from Murari, Sevaram, Santosh, Ram Ramesh Kankar, ankar, Vishambhar etc. of the Village and it was the defendant Ramashankar who had repaid the loan amount and protected the plaintiff no.1 from the moneylenders. It was claimed that at present Ramesh is residi residing ng along with Murari, one of the moneylender. Ramesh has already lost his wife and is issueless and is not able to get over his bad habits and accordingly with the help of other plaintiffs he wants to grab the property. Murari is instigating the plaintiff no.1 because the defendant Ramashankar had deposed against Murari in a civil suit. It was pleaded that if the plaintiffs succeed in getting the maturity value, then the defendant no.5 would come in a severe financial crisis who is an old and infirm lady having having a poor eye vision and she constantly requires medical treatment. In order to protect the defendant

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

no.5 from financial crisis, Devi Dayal had made her the nominee. The maturity amount should be kept securely so that the defendant no. 5 can survive on the interest accruing to the said maturity amount. It was claimed that the plaintiff no.1 had knowledge of the Will ill from the date of its execution. The suit has been filed at the instigation of Murari and accordingly it was claimed that the suit is liable to be dismissed with a cost of ₹ 5,000/-.

5. Defendant no. 6 filed its written statement and claimed that it has no concern with the disputed land. So far as the LIC policy of Devi Dayal is concerned, it was claimed that defendant no.5 has been appointed ed as nominee by the policy holder. The maturity amount was being paid to the defendant no.5, but under the orders of the Court dated 31.03.2003 the payment has been stopped and it was claimed that whatever direction is given by the Court, ourt, shall be followed followe by the defendant no. 6.

6. The trial Court, after framing issues and recording evidence, decreed the suit, and it was held that the Will ill dated 23.09.2002 is a forged document and the plaintiffs have a half share in the property of Devi Dayal as well as as in the maturity amount of the LIC. The defendants are not entitled for cost of ₹ 5,000/-.

7. Being aggrieved by the judgment and decree passed by the trial Court, the appellants preferred an appeal which too has been dismissed by the appellate court.

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

8. Challenging the judgment and decree passed by the Courts ourts below, it is submitted by counsel for appellants appellant that the late Devi Dyal had executed a Will ill in favour of the defendants no.1 to 3 and thus, thus the plaintiffs have no right or title in the disputed agricultural land. Similarly by virtue of Will, the plaintiffs have no share hare or right in the maturity value of the LIC.

9. Per contra,, counsel for respondents respondent have supported the findings recorded by the Courts ourts below.

10. This appeal has been admitted on the following substantial questions of law ;

(1)) Whether for proving a Will, ill, strict compliance of the provisions contained in Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act would be required to be adhered to, for proving its Execution xecution or mere examination of One ne Attesting Witness, itness, out of Two Witnesses itnesses would be sufficient for proving a Will?

(2)) Whether the findings arrived at by courts below of the execution of Will ill are perverse by misreading of evidence and applicatio application of legal provisions in an illegal manner?

11. Considered the submissions made by the parties.

12. Before considering the evidence which has come on record, this Court would like to consider the law governing the field of Wills.

13. A 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

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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 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 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, 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 th thee 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

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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 propou propounder nder 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 w what hat 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 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

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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 suspiciou 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 th 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 llegitimate egitimate 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, 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

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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 su 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 tion 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 action 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 objecti 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 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

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

of the will has to prove the due and valid execution of the will and that 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 applicati application on 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) 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.

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 righteo righteousness usness 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 executed it, all further enquiry is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited with approval the wellwell-known 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

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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 arty 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 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 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

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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 Pr Privy ivy 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 suspicion suspicions of the court".

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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 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 befbefore ore the Privy Council; and Their Lordships held that, since the adoption of Shama Charn was proved, the fact that he took part in

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

the execution of the will and obtained benefit under it cannot be regarded as a suspicious circumstance so as to attract the rulerule 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 deed-poll 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 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 ooff the proof that the deed-poll 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 tthat hat deed. They, however, observed that it would no doubt have been more prudent and business business-like 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 hav havee secured independent evidence that clause 26 in particular was

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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."

14. The Supreme Court in the case of Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another, 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 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 could be accepted as genuine.

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

15. The Supreme Court in the case of Gorantla Thataiah v. Thotakura Venkata Subbaiah and others, others reported in AIR 1968 SC 1332 has held as it is for those who propound the Will to prove the same.

16. The Supreme Co Court in the case of Murthy and others v. C. Saradambal and others 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 us 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 Thimmajamma, AIR 1959 SC 443] is in H. Venkatachala Iyengar v. B.N. Thimmajamma, 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 ions 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 ions 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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 tha 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 reliesrelies 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 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 whetherer 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 ccertainty.

ertainty. The test to be applied would

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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 w will.

ill.

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

(Bharpur Bharpur Singh case [Bharpur Singh v. Shamsher SinghSingh, (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 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 ndicated therein."

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

34. In Jaswant Kaur v. Amrit Kaur [Jaswant Jaswant Kaur v. Amrit Kaur 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 nscience 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 Bharpur Singh v. Shamsher Singh 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 man 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 natura naturall heirs without any reason.

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

(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 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 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 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 regard to the condition of mind of the testator despite his signature on the will;

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

(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 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. B. Venkatamuni v. C.J. Ayodhya Ram Singh, 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 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 tinction 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 Raje,, (2008) 7 SCC 695] , held as under:

(Bharpur Bharpur Singh case [Bharpur Singh v. Shamsher Singh Singh,

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

(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 Raje,, (2008) 7 SCC 695] opined that the court is required to adopt a rational approach and iss furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role, holding: (SCC p. 714, paras 52-55) 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 y 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 attes attestation.' "

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

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

"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 accept accepted.

ed. 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 leadin leadingg 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."

17. 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, others reported in (2021) 16 SCC 543.

18 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

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

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.

19. The Supreme Court in the case of Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others 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 sition 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 others, reported in (2007) 11 SCC 621,

Balathandayutham and another v. Ezhilarasan 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 another, reported in (2005) 1 SCC 280

20. Since the details of the disputed property, the relationship of the parties has not been disputed by the defendants and even the source of

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

title of Devi Dayal is also not in dispute except that according to plaintiff, the testator Devi Dayal had succeeded from his father Suk Sukhu, whereas according to the defendants, Devi Dayal had purchased the property by two sale deeds. Since the initial burden to prove the Will is on the propounder of the Will, therefore, this Court would consider the evidence led by the defendants in that re regard.

21. The defendants had examined Ramashankar (DW-1),, Rammoorty (DW-2), Smt Sita ta Devi (DW-3), Ashok Kumar Sharma (DW--4). In order to prove the Will, ill, the propounder of the Will ill has to remove all the suspicious circumstances which are attached to a Will.

ll. The propounder of the Will ill has to prove that the testator was in a fit state of mind and was able to understand the things. He had voluntarily executed the Will. The Will ill was signed by the testator in presence of the witnesses and vice versa.

22. The undisputed fact is that Will (Ex. D.2) was executed by the testator about 2 months back of his is death. There is a serious dispute about the age of the testator. Sita Devi (DW-3), who is the daughter of the testator, has stated that at the time of death, her father was aged about 80 to 85 years. Her father was weak and had a poor eye vision and a very poor hearing capacity. He was able to identify anybody. It was also claimed that being a weak person, he was not able to go to the washroom on his own. He was nnot ot able to walk. As he was old and infirm person, therefore, he was constantly requiring the assistance of a third person. It was further claimed by her that in the rakshabandhan festival when she went to her parental home, home then she was informed by her father that he

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

has executed a Will ill in favour of the defendants defendant no.1 to 3. Smt. Rammoorty (DW-2)

2) has stated that prior to 3-4 3 4 months of his death, her father had stopped going to Bhind. All the three witnesses, namely Ramashankar (DW-11), Rammoorty (DW-2) and Sita Devi (DW DW-3) have stated that their father had expired after 2 months of executing the Will dated 23.09.2002. Since Rammoorty Devi and Sita Devi had claimed that they had gone to their parental home during the month of Sawan to celebrate the Raksha akshabandhan festival, therefore, it was verified from the calendar and itt is clear that Rakshabandhan festival estival was on 22.08.2002 and if the evidence of Rammoorty Devi (DW-2) and Sita ta Devi (DW-3) is considered, then it is clear that they have deposed that Devi Dayal had already executed a Will ill in favour of defendant no. 1 to 3 prior to Rakshabandhan festival, whereas the Will ill was actually executed on 23.09.2002 i.e., much after the Rakshabandhan festival.

estival. Thus, the evidence of Smt. Rammoorty and Smt. Sita Devi that they were informed by their father Devi Dayal that he has executed a Will in favor of defendants no. 1 to 3 is false. Ashok Kumar Sharma, (DW DW-4), who is one of the attesting witness, has stated that the age of the deceased at the time of execution ecution of Will ill was 75 years. He was physically fit. He has further stated that Devi Dayal had come about one and a half hour prior to the execution of W Will and he had got the Will ill prepared and signed the same. However this witness was not able to disclose that at how many places, the testator Devi Dayal had put his signatures and at how many places he had put his thumb impression.

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

23.. Thus, it is clear from the evidence of the defendant witnesses themselves, that physical and mental condition of Devi Daya Dayal was not good and he was not able to walk on his own. He was not able to go to the washroom and he was always in need of an assistant. Will (Exhibit D-2) is a registered W Will ill which was executed in Bhind on 23.09.2002. It is true that the registered will m may ay carry additional weightage on the presumption that the Sub Registrar who had registered the Will must have discharged his duties in accordance with law, but that additional weightage will not relieve the propounder of the Will ill from his liability to remove ve all the suspicious circumstances. In the Will (Exhibit Exhibit D D-2), the age of Devi Dayal has been mentioned as 75 years, whereas according to the daughters of late Devi Dayal, the testator was approximately 85 years of age at the time of execution of Will.

ill. He was not in a position to walk.

He was not in a position to hear and see properly. Why the age of Devi Dayal ayal has been mentioned as 75 years in the Will ill could not be clarified by Ramashankar (DW DW-1), Rammoorty Devi (DW-2) and Sita ta Devi (DW-

3). Once thee witnesses have themselves stated that the testator was not in a fit state of mind and health, then it is very difficult to hold that the testator had gone to Bhind on his own, got the Will ill prepared and got it registered. Both the C Courts below have given a concurrent finding of fact that the defendants have failed to prove the execution of Will.

ill. This Court in exercise of power under Section 100 of CPC cannot interfere with the findings of fact unless and until they are shown to be perverse. No Perversity could ould be pointed out by the counsel for the appellants.

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

24. The Supreme Court in the case of Angadi Chandranna Vs. Shankar and Others decided on 22/04/2025 in Civil Appeal No.5401/2025 {Arising out of SLP (C) No.6799 of 2022}, 2022}, has held as under:-

"12. Before delving into the facts of the case, this court in Jaichand (supra) expressed its anguish at the High Court for not understanding the scope of Section 100 CPC, which limits intervention only to cases where a substantial question of law exists, and cl clarified arified that the High Court can go into the findings of facts under Section 103 CPC only under certain circumstances, as stated in the following passages:

"23. We are thoroughly disappointed with the manner in which the High Court framed the so so-called called subs substantial question of law. By any stretch of imagination, it cannot be termed even a question of law far from being a substantial question of law. How many times the Apex Court should keep explaining the scope of a second appeal Under Section 100 of the Code of Civil Procedure and how a substantial question of law should be framed? We may once again explain the well-settled well principles governing the scope of a second appeal Under Section 100 of the Code of Civil Procedure.

24. In Navaneethammal v. Arjuna Chett Chettyy reported in MANU/SC/2077/1996 : 1998: INSC: 349 : AIR 1996 S.C. 3521, it was held by this Court that the High Court should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first app appellate Court.

25. In Kshitish Chandra Purkait v. Santosh Kumar Purkait reported in MANU/SC/0647/1997 : 1997:INSC:487 : (1997) 5 S.C.C. 438), this Court held that in the Second Appeal, the High Court should be

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

satisfied that the case involves a substantial question of law and not mere question of law.

26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor reported in MANU/SC/0058/1999 : 1999 (2) S.C.C. 471, this Court held: Keeping in view the amendment made in 1976, the High Court can exercise its jurisdiction jurisdiction Under Section 100, Code of Civil Procedure only on the basis of substantial questions of law which are to be framed at the time of admission of the Second Appeal and the Second Appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court Under Section 100 Code of Civil Procedure without following the aforesaid procedure cannot be sustained.

27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar reported in MANU/S MANU/SC/0278/1999 C/0278/1999 :

1999:INSC:192 : AIR 1999 S.C. 2213 held: The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.

28. It is thus clear that Under Section 100, Code of Civil Procedure, dure, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its sett settled led position on the basis of the pronouncement made by the Apex

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

Court or based upon inadmissible evidence or without evidence.

29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part ooff the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Un Under der Section 103, Code of Civil Procedure, the High Court has got power to determine the issue of fact. The Section lays down: Power of High Court to determine issue of fact: In any Second Appeal, the High Court may, if the evidence on the record is sufficient suffici to determine any issue necessary for the disposal of the appeal,- (a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or (b) Which has been wrongly determined by such Court Court or Courts by reason of a decision on such question of law as is referred to in Section 100.

30. In Bhagwan Sharma v. Bani Ghosh reported in MANU/SC/0094/1993 : AIR 1993 S.C. 398, this Court held: The High Court was certainly entitled to go into the question question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non non- consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate Court for a rehearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the altern alternative ative to decide the case finally in

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

accordance with the provisions of Section 103(b). ...... If in an appropriate case the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records rrelevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the court below is vivitiated tiated in law does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged.

pr

31. In the case of Hero Vinoth v. Seshammal reported in MANU/SC/2774/2006 : 2006:INSC:305 : (2006) 5 SCC 545 this Court explained the concept in the following words: It must be tested whether the question is of general public importance or whether it directly and substantially affects the rights of the parties. Or whether it is not finally decided, or not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to bee applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.

32. It is not that the High Courts are not well-versed well with the principles governing Section 100 of the Code of Civil Procedure. It is only the casual and callous approach on the part of the courts to apply the correct principles of law to the facts of the case that leads to passing of vulnerable orders orders like the one on hand."

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

12.1. In the present case, in our view, the so so-called substantial question of law framed by the High Court does not qualify to be a substantial question of law, rather the exercise of the High Court is a venture into the findin findings of the First Appellant Court by re-appreciation re appreciation of evidence. It is settled law that the High Court can go into the findings of facts only if the First Appellate Court has failed to look into the law or evidence or considered inadmissible evidence or without hout evidence. Section 103 permits the High Court to go into the facts only when the courts below have not determined or rendered any finding on a crucial fact, despite evidence already available on record or after deciding the substantial question of law, the facts of a particular case demand re--determination.

determination. For the second limb of Section 103 to apply, there must first be a decision on the substantial question of law, to which the facts must be applied, to determine the issue in dispute. When the First Appellate A Court in exercise of its jurisdiction has considered the entire evidence and rendered a finding, the High Court cannot re- re appreciate the evidence just because another view is possible, when the view taken by the First Appellate Court is plausible and does not suffer from vice in law. When the determination of the High Court is only by way of re- re appreciation of the existing evidence, without there being any legal question to be answered, it would be axiomatic that not even a question of law is involved, involved, much less a substantial one. It will be useful to refer to another judgment of this Court in Chandrabhan (Deceased) through L.Rs & Ors. v. Saraswati & Ors.11, wherein it was held as follows:

"33. The principles relating to Section 100 of the Code of Civil ivil Procedure relevant for this case may be summarised thus:

(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

of a document involving involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.

(ii) The High Court sho should uld be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substan substantial tial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.

(iii) The general Rule is that the High Court will not interfere with findings of facts arr arrived ived at by the courts below. But it is not an absolute rule. Some of the well well-

recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence;

(ii) the courts have drawn wrong inferences from proved facts by applying applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken taken as a whole, is not reasonably capable of supporting the finding.

34. In this case, it cannot be said that the First Appellate Court acted on no evidence. The Respondents in their

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

Second Appeal before the High Court did not advert to any material evide evidence nce that had been ignored by the First Appellate Court. The Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously.

35. In this case, as observed above, evidence evidence had been adduced on behalf of the Original Plaintiff as well as the Defendants. The First Appellate Court analysed the evidence carefully and in effect found that the Trial Court had erred in its analysis of evidence and given undue importance to discrep discrepancies ancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption. There was no such infirmity in the reasoning of the First Appellate Court which called for interference.

36. Right ight of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual fin findings dings arrived at by the First Appellate Court."

12.2. In the present case, the First Appellate Court analyzed the entire oral evidence adduced by both parties, as well as the documentary evidence relied upon by either side, and dismissed the suit. The authority auth to re-consider consider the evidence is available only to the First Appellate Court under Section 96 and not to the High Court in exercise of its authority under Section 100, unless the case falls under the exceptional circumstances provided under Section 103. 103 While so, the re-appreciation re appreciation of the entire evidence, including the contents of the exhibits, reliance on and wrongful identification of a different property and treating

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

the same to be the suit property actually in dispute to prescribe another view with without out any substantial question of law, only illustrate the callousness of the High Court in applying the settled principles. Therefore, the High Court erred in setting aside the judgment and decree of the First Appellate Court."

25.. As the relationship of the parties and title of Devi Dayal is not in dispute, therefore each and every legal representative of Devi evi Dayal will have equal share in the property in dispute and accordingly both the Courts ourts below have rightly granted equal share share to all the legal representatives. Thus, Thus both the substantial questions of law are answered in negative.

26. At this stage, it is submitted by counsel for appellant appellants that II.A. No.

2007 has been filed by all the three sisters namely Rammoorty, Sita Devi and Savitri thereby admitting the title of the defendant no.1 to 3 by virtue of Will ill executed by Devi Dayal Dayal, and accordingly, accordingly it is submitted that the aforesaid compromise application should be accepted. It is further submitted that this Court ourt by order dated 20.02.2009 had observed that the effect of compromise shall be considered at the time of hearing. Accordingly, it is prayed that the share of all the three sisters be given to the defendants no. 1 to 3.

27. Considered the aforesaid submission made by the counsel for the appellants.

28. No statements of any of the sisters namely Rammoorty, Sita Devi and Savitri have been recorded in support of the compromise application.

NEUTRAL CITATION NO. 2025:MPHC 2025:MPHC:33565

Therefore, it is held that the compromise application has not been verified so far. Furthermore Furthermore, in the compromise application it is mentioned that they accept the title of defendant defendants no. 1 to 3 on the basis of Will ill executed by Devi Dayal. This Court has alread alreadyy held that the defendants have failed to prove the execution of Will ill in favour of defendants no. 1, 2 and 3 by the testator Devi Dayal. During the lifetime of defendant no.4, the defendants no.1, 2 and 3 would otherwise not get any share in the property. Once this Court has given a finding that the Will ill executed by Devi Dayal in favour of defendant defendants no. 1 to 3 could not be proved by the defendants, then this compromise application which is based on the so-called called Will ill cannot be allowed. However, if so desir desired, the sisters would be entitled to relinquish their share at any stage by executing a registered relinquishment deed.

29. No other argument is advanced by any other parties.

30. Accordingly, the Judgment and Decree dated 24.02.2007 passed by 6th Additional tional and Sessions Judge, (Fast Track Court), Bhind in Civil Appeal No.53A/2006 and Judgment and Decree dated 221.10.2005 .2005 passed by First irst Civil Judge Class 1 Bhind in Civil Suit No. 3A/2003 are hereby affirmed.

31. Appeal fails and is hereby dismissed.

(G. S. AHLUWALIA) JUDGE

Aman