Madhya Pradesh High Court
Seetaram vs Smt. Munnidevi on 28 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 28th OF JULY, 2025
SECOND APPEAL No. 2478 of 2024
SEETARAM
Versus
SMT. MUNNIDEVI AND OTHERS
Appearance:
Ms. Arti Anuragi - Advocate for appellant.
Mr. Dilip Awasthi - Govt. Advocate for State.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against
judgment and decree dated 27.08.2024 passed by Fourth District Judge,
Gwalior in RCA No. 134/2024, as well as judgment and decree dated
28.03.2024 passed by Ninth Civil Judge, Junior Division, Gwalior in RCSA
No. 549/2021.
2. Appellant is the plaintiff who has lost his case from both the Courts
below.
3. The facts necessary for disposal of present appeal, in short, are that
plaintiff/appellant filed a suit for declaration of title and permanent
injunction. The disputed property is mentioned in paragraph 1 of the plaint. It
is the case of plaintiff that disputed property and other ancestral properties
were in the ownership and possession of Murli Singh. Murli Singh was
survived by four sons, namely, Jahar Singh, Prabhu Singh, Rajbahadur
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Singh, and Harimohan. Jahar Singh died during the lifetime of Murli Singh,
and after the death of Murli Singh, Maan Singh, Bharat Singh, plaintiff,
Asharam, and Harkunwar, who was the widow of Jahar Singh, succeeded the
share of Jahar Singh, and accordingly, their names were also recorded in the
revenue record. Asharam was issueless and he died without any issue on
06.11.2003. Plaintiff is the brother of Asharam. During his lifetime, deceased
Asharam was residing with plaintiff and during his period of illness, he was
being looked after by the plaintiff. Asharam had executed a Will dated
15.01.2003 in respect of 1/5th share of Survey No. 76 and 228 situated in
Village Vikrampur. Will was notarized by notary P.K. Dubey. After death of
Asharam, plaintiff also became the owner of 1/5th share of Asharam, and
accordingly, it was claimed that plaintiff became the owner of 2/5th share,
i.e., 1/5th share of Asharam and 1/5th share of plaintiff (out of survey Nos.
76 and 228). Defendants Nos. 1 to 3, by claiming themselves to be daughters
of Asharam, forged the documents and got their names mutated in the
revenue records. Harkunwar also made a complaint to the police, but no
action was taken. After getting their names mutated in the revenue records,
defendants Nos. 1 to 3 had also threatened the plaintiff that they would
alienate the property and will not allow him to cultivate the same, and
accordingly, suit was filed for declaration that defendants Nos. 1 to 3 do not
have any share in the property as they are not the daughters of Asharam, and
by virtue of Will dated 15.01.2003, plaintiff is the sole owner of the share of
Asharam, and permanent injunction was also sought against defendants Nos.
1 to 3 to the effect that neither they should alienate the property nor should
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interfere with the peaceful possession of plaintiff either by themselves or
though their agents.
4. Defendants Nos. 1 to 3 filed their written statement and claimed that
Asharam had died on 06.11.2003, and for 18 long years, plaintiff never
produced the Will before any competent authority. It was claimed that if the
Will was a genuine one, then plaintiff should have disclosed it immediately,
and should have got his name mutated in the revenue records on the basis of
Will, but the Will did not see light of the day for 18 long years, therefore, it
is clear that Will dated 15.01.2003 is a forged document.
5. Trial Court, after framing issues and recording evidence, dismissed
the suit.
6. Being aggrieved by judgment and decree passed by the Trial Court,
appellant preferred an appeal which too has been dismissed by the Appellate
Court.
7. Challenging the judgments and decrees passed by Courts below, it is
submitted by counsel for appellant that both the Courts below have failed to
see that appellant had successfully proved the execution of Will by Asharam
in his favour and proposed following substantial questions of law:-
"(a) Whether the judgment and decree passed by both the
court below is based on Surmises and conjunction thus it is un-
sustainable.
(b) Whether the judgment and decree passed by courts
below holding that the respondentis the owner of the disputed land
is vitiated on account of there being no evidence of ownership of
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respondenton record.
(c) Whether the judgment and decree passed by appellate
court is based on non reading and misreading the document
available on record.
(d) Whetherthe finding given by the learned trial court in
para 7, 8, 9, 10, 11 & 14 and Appellate Court in para 20, 21, 22 &
23 of the judgmentis contrary to law and liable to be set aside.
(e) That the other substantial question of law which this
Hon'ble
Court may deemedfit also be formulated during the hearing.
(f) Whether the appellant/Plaintiff was entitled to
declaration of title to the suit property on the basis of Will dated
15.01.2003.
(g) Whether learned court below error in dismissing the suit
of plaintiff particularly when plaintiff title is duly proved.
(h) Whether the court below error in law in not deciding
which is going to crux of the matter and which has been proposed
as issued before the appellate court also."
8. The moot question for consideration is as to whether plaintiff had
successfully proved the execution of a Will by Asharam in his favour or not?
9. Before considering the facts and circumstances of the case, this
Court would like to consider the law governing the field of will.
10. Will may be surrounded by suspicious circumstances, and burden
is on the propounder of the Will not only to prove the document but to
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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
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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
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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
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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
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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."
11. The Supreme Court in the case of Surendra Pal and others v. Dr.
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(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.
12. 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.
13. 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
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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
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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
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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
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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."
14. 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 .
15. The Supreme Court in the case of Bharpur Singh and others v.
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15 SA-2478-2024
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.
16. 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 .
17. Admittedly, appellant/plaintiff has not examined any attesting
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witness as required under Section 63 of Indian Succession Act. The appellant
had examined Uday Singh (PW-2), who had identified the signatures of
Testator Asharam by claiming that Asharam is his uncle. Name of father of
Uday Singh (PW-2) is mentioned as Buddh Singh, whereas it is not the case
of appellant that Buddh Singh was one of his brothers. According to
appellant, Jahar Singh had five legal representatives, namely, Maan Singh
(son), Bharat Singh (son), plaintiff (son), Asharam (son), and Harkunwar
(widow). Thus, it is clear that Uday Singh (PW-2) is not related to plaintiff
and Testator Asharam, and therefore, identification of signatures of Asharam
on the disputed Will cannot be accepted. There is no evidence on record to
show that Asharam was in a fit state of mind and was enjoying good health.
There is nothing on record to suggest that draft of the Will was ever read out
to Asharam. Even the scribe of the Will or the notary, who had notarized the
Will, has not been examined by plaintiff. It is not the case of Sitaram Singh
(PW-1) that Will was executed in his presence.
18. If the evidence which has been led by plaintiff is considered, then
it is clear that plaintiff has miserably failed in proving the execution of Will
in accordance with Section 63 of Indian Succession Act, as well as has failed
to remove all the suspicious circumstances, which are attached to a Will.
19. Both the Courts below have recorded concurrent finding of fact
that plaintiff has failed to prove the execution of Will.
20. No perversity could be pointed out by counsel for appellant in the
findings recorded by the Courts below. Even otherwise, this Court has also
considered the evidence led by plaintiff and does not find any perversity in
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the judgments passed by the Courts below.
21. As no substantial question of law arises in the present appeal,
accordingly, judgment and decree dated 27.08.2024 passed by Fourth District
Judge, Gwalior in RCA No. 134/2024, as well as judgment and decree dated
28.03.2024 passed by Ninth Civil Judge, Junior Division, Gwalior in RCSA
No. 549/2021, are hereby affirmed.
22. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
