Madhya Pradesh High Court
Bhav Singh vs Harisingh on 29 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 29th OF JULY, 2025
SECOND APPEAL No. 204 of 2009
BHAV SINGH AND OTHERS
Versus
HARISINGH AND OTHERS
Appearance:
Mr. Prashant Sharma - Advocate for appellants.
JUDGMENT
Heard on the question of admission.
2. This second appeal under Section 100 of CPC has been filed against
judgment and decree dated 03.12.2008 passed by Additional Judge, Karera,
District Shivpuri to the Court of Additional District Judge, Karera, District
Shivpuri in Regular Civil Appeal No. 14-A/2008, by which judgment and
decree dated 19.05.2007 passed by Civil Judge, Class-I, Karera, District
Shivpuri in RCSA No. 13-A/2006 has been affirmed.
3. Appellants are defendants who have lost their case from both the
Courts below.
4. The facts necessary for disposal of present appeal, in short, are that
respondent No. 1/plaintiff filed a suit for declaration of title and permanent
injunction pleading inter alia that property mentioned in paragraph 2 of the
plaint is the disputed property. Testator Gyasiya S/o Khalku had 1/3rd share
in Survey Nos. 762, and 764, whereas Bhagona, S/o Khalku had 1/3rd share
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in the property, and Gopal Singh, father of plaintiff, had remaining 1/3rd
share in the aforesaid property. Gyasiya was unmarried. About 40-50 years
back, Bhagona had separated himself after partition, whereas Gyasiya and
Gopal Singh were joint. Gyasiya was suffering from Asthma prior to year
1983, and therefore, he was not keeping well. Gyasiya had love and affection
towards his brother Gopal Singh. Plaintiff and his father, Gopal Singh, were
looking after Gyasiya. Gyasiya was liking the plaintiff, and accordingly, he
executed a registered Will dated 06.06.1985 in favor of plaintiff. The
medical condition of Gyasiya deteriorated from the month of September,
2002, and he was confined to bed, and plaintiff and his father were all the
time looking after Gyasiya. Gyasiya was aged about 72 years. On
21.11.2002, Gyasiya died in the house of plaintiff. The last rituals of Gyasiya
were also performed by plaintiff. It was pleaded that by virtue of registered
Will dated 06.06.1985, plaintiff had become the owner of 1/3rd share of
Gyasiya, and thus, he along with his father became the owners of 1/3 + 1/3rd
share in Survey Nos. 762, and 764. Father of plaintiff has expired about six
months back on the date of filing of the civil suit, and thus, it was claimed
that plaintiff has become owner of property in dispute. It was further claimed
that defendants Nos. 1 and 2, on the basis of a forged Will dated 12.10.2002,
had moved an application for mutation of their names, and Tahsildar, without
considering the facts of the case, had directed for mutation of names of
defendants No. 1 and 2. Said order of mutation was challenged by plaintiff
by filing an appeal before S.D.O., Karera, which was allowed, and matter
was remanded back to Tahsildar for deciding the matter afresh. Against the
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order of S.D.O. defendants filed an appeal before the Court of Additional
Commissioner, Gwalior, Division Gwalior, who also affirmed the order of
S.D.O. Defendants had also preferred a revision before the Board of
Revenue, but the same was also dismissed. Thus, it was claimed that the case
for mutation is pending before the Court of Tahsildar. By filing civil suit,
plaintiff had claimed that he is the owner and in possession of property in
dispute by virtue of Will dated 06.06.1985 executed by Gyasiya, and it was
also claimed that defendants be restrained from interfering with the peaceful
possession of plaintiff.
5. Defendants filed their written statement and claimed that Gyasiya
had executed a Will on 12.10.2002, Exhibit D-1, and in that Will, it was
specifically mentioned that all other previously executed Wills are hereby
cancelled. Therefore, Will dated 06.06.1985, which was executed by Gyasiya
in favour of plaintiff, had stood cancelled by subsequent will dated
12.10.2002.
6. Trial Court, after framing issues and recording evidence, decreed the
suit, and held that plaintiff is the owner and in possession of land in dispute
by virtue of will dated 06.06.1985, Exhibit P-2.
7. Being aggrieved by judgment and decree passed by the Trial Court,
defendants/appelalnts preferred an appeal which too has been dismissed by
the Appellate Court.
8. Challenging the judgments and decrees passed by Courts below, it is
submitted by counsel for appellants that appellants have proved that Gyasiya
had executed a Will on 12.10.2002, Exhibit D-1, and by the aforesaid Will ,
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all the previously executed Wills stood cancelled, and therefore, plaintiff
would not get advantage of Will dated 06.06.1985, which was executed by
testator in favour of plaintiff. It is further submitted that merely because first
Will was a registered one, that would not mean that first Will cannot be
revoked by executing a second Will. It is further submitted that testator was
in a fit state of mind and notary, who was the scribe of the Will, has also
stated that Will was read out to the testator who had put his thumb
impression, and accordingly, proposed following substantial questions of
law:-
"(i) Whether in absence of proof of will, learned Courts
below erred in law in decreeing the suit ?
(ii) Whether the document which is not required to be
registered, if registered, get any presumptive value ?
(iii) Whether the subsequent will (Ex-D/1) whereby the
Gyasiya gave equal right to all the nephews has overridden the
first will ?
(iv) Whether in the light of subsequent will (Ex-D/1)
executed by the plaintiffs, plaintiffs do not get any right under the
will (Ex-P/1) ?
(v) Whether withdrawal of previous suit, bars the filing of
subsequent suit ?"
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
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is on the propounder of the Will not only to prove the document but to
remove all the suspicious circumstances. The Supreme Court in the case of
H. Venkatachala Iyengar v. B.N. Thimmajamma and others reported in AIR
1959 SC 443 has held as under:
"18. What is the true legal position in the matter of proof of wills? It is
well-known that the proof of wills presents a recurring topic for decision
in courts and there are a large number of judicial pronouncements on the
subject. The party propounding a will or otherwise making a claim under a
will is no doubt seeking to prove a document and, in deciding how it is to
be proved, we must inevitably refer to the statutory provisions which
govern the proof of documents. Sections 67 and 68 of the Evidence Act
are relevant for this purpose. Under Section 67, if a document is alleged to
be signed by any person, the signature of the said person must be proved
to be in his handwriting, and for proving such a handwriting under
Sections 45 and 47 of the Act the opinions of experts and of persons
acquainted with the handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the execution of the document
required by law to be attested; and it provides that such a document shall
not be used as evidence until one attesting witness at least has been called
for the purpose of proving its execution. These provisions prescribe the
requirements and the nature of proof which must be satisfied by the party
who relies on a document in a court of law. Similarly, Sections 59 and 63
of the Indian Succession Act are also relevant. Section 59 provides that
every person of sound mind, not being a minor, may dispose of his
property by will and the three illustrations to this section indicate what is
meant by the expression "a person of sound mind" in the context. Section
63 requires that the testator shall sign or affix his mark to the will or it
shall be signed by some other person in his presence and by his direction
and that the signature or mark shall be so made that it shall appear that it
was intended thereby to give effect to the writing as a will. This section
also requires that the will shall be attested by two or more witnesses as
prescribed. Thus the question as to whether the will set up by the
propounder is proved to be the last will of the testator has to be decided in
the light of these provisions. Has the testator signed the will? Did he
understand the nature and effect of the dispositions in the will? Did he put
his signature to the will knowing what it contained? Stated broadly it is
the decision of these questions which determines the nature of the finding
on the question of the proof of wills. It would prima facie be true to say
that the will has to be proved like any other document except as to the
special requirements of attestation prescribed by Section 63 of the Indian
Succession Act. As in the case of proof of other documents so in the case
of proof of wills it would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual test of the satisfaction
of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills
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from other documents. Unlike other documents the will speaks from the
death of the testator, and so, when it is propounded or produced before a
court, the testator who has already departed the world cannot say whether
it is his will or not; and this aspect naturally introduces an element of
solemnity in the decision of the question as to whether the document
propounded is proved to be the last will and testament of the departed
testator. Even so, in dealing with the proof of wills the court will start on
the same enquiry as in the case of the proof of documents. The propounder
would be called upon to show by satisfactory evidence that the will was
signed by the testator, that the testator at the relevant time was in a sound
and disposing state of mind, that he understood the nature and effect of the
dispositions and put his signature to the document of his own free will.
Ordinarily when the evidence adduced in support of the will is
disinterested, satisfactory and sufficient to prove the sound and disposing
state of the testator's mind and his signature as required by law, courts
would be justified in making a finding in favour of the propounder. In
other words, the onus on the propounder can be taken to be discharged on
proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will
may be surrounded by suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and evidence in support of the
propounder's case that the signature, in question is the signature of the
testator may not remove the doubt created by the appearance of the
signature; the condition of the testator's mind may appear to be very feeble
and debilitated; and evidence adduced may not succeed in removing the
legitimate doubt as to the mental capacity of the testator; the dispositions
made in the will may appear to be unnatural, improbable or unfair in the
light of relevant circumstances; or, the will may otherwise indicate that the
said dispositions may not be the result of the testator's free will and mind.
In such cases the court would naturally expect that all legitimate
suspicions should be completely removed before the document is accepted
as the last will of the testator. The presence of such suspicious
circumstances naturally tends to make the initial onus very heavy; and,
unless it is satisfactorily discharged, courts would be reluctant to treat the
document as the last will of the testator. It is true that, if a caveat is filed
alleging the exercise of undue influence, fraud or coercion in respect of the
execution of the will propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances may raise a doubt as
to whether the testator was acting of his own free will in executing the
will, and in such circumstances, it would be a part of the initial onus to
remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just
referred, in some cases the wills propounded disclose another infirmity.
Propounders themselves take a prominent part in the execution of the wills
which confer on them substantial benefits. If it is shown that the
propounder has taken a prominent part in the execution of the will and has
received substantial benefit under it, that itself is generally treated as a
suspicious circumstance attending the execution of the will and the
propounder is required to remove the said suspicion by clear and
satisfactory evidence. It is in connection with wills that present such
suspicious circumstances that decisions of English courts often mention
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the test of the satisfaction of judicial conscience. It may be that the
reference to judicial conscience in this connection is a heritage from
similar observations made by ecclesiastical courts in England when they
exercised jurisdiction with reference to wills; but any objection to the use
of the word "conscience" in this context would, in our opinion, be purely
technical and academic, if not pedantic. The test merely emphasizes that,
in determining the question as to whether an instrument produced before
the court is the last will of the testator, the court is deciding a solemn
question and it must be fully satisfied that it had been validly executed by
the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise
in applications for probate or in actions on wills, no hard and fast or
inflexible rules can be laid down for the appreciation of the evidence. It
may, however, be stated generally that a propounder of the will has to
prove the due and valid execution of the will and that if there are any
suspicious circumstances surrounding the execution of the will the
propounder must remove the said suspicions from the mind of the court by
cogent and satisfactory evidence. It is hardly necessary to add that the
result of the application of these two general and broad principles would
always depend upon the facts and circumstances of each case and on the
nature and quality of the evidence adduced by the parties. It is quite true
that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50
CWN 895] "where a will is charged with suspicion, the rules enjoin a
reasonable scepticism, not an obdurate persistence in disbelief. They do
not demand from the Judge, even in circumstances of grave suspicion, a
resolute and impenetrable incredulity. He is never required to close his
mind to the truth". It would sound platitudinous to say so, but it is
nevertheless true that in discovering truth even in such cases the judicial
mind must always be open though vigilant, cautious and circumspect.
**** **** ****
29. According to the decisions in Fulton v. Andrew [(1875) LR 7 HL
448] "those who take a benefit under a will, and have been instrumental in
preparing or obtaining it, have thrown upon them the onus of showing the
righteousness of the transaction". "There is however no unyielding rule of
law (especially where the ingredient of fraud enters into the case) that,
when it has been proved that a testator, competent in mind, has had a will
read over to him, and has thereupon executed it, all further enquiry is shut
out". In this case, the Lord Chancellor, Lord Cairns, has cited with
approval the well-known observations of Baron Parke in the case of Barry
v. Butlin [(1838) 2 Moo PC 480, 482] . The two rules of law set out by
Baron Parke are:"first, that the onus probandi lies in every case upon the
party propounding a will; and he must satisfy the conscience of the court
that the instrument so propounded is the last will of a free and capable
testator"; "the second is, that, if a party writes or prepares a will under
which he takes a benefit, that is a circumstance that ought generally to
excite the suspicion of the court and calls upon it to be vigilant and zealous
in examining the evidence in support of the instrument in favour of which
it ought not to pronounce unless the suspicion is removed, and it is
judicially satisfied that the paper propounded does express the true will of
the deceased". It is hardly necessary to add that the statement of these two
rules has now attained the status of a classic on the subject and it is cited
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by all text books on wills. The will propounded in this case was directed to
be tried at the Assizes by the Court of Probate. It was tried on six issues.
The first four issues referred to the sound and disposing state of the
testator's mind and the fifth to his knowledge and approval of the contents
of the will. The sixth was whether the testator knew and approved of the
residuary clause; and by this last clause the propounders of the will were
made the residuary legatees and were appointed executors. Evidence was
led at the trial and the Judge asked the opinion of the jurors on every one
of the issues. The jurors found in favour of the propounders on the first
five issues and in favour of the opponents on the sixth. It appears that no
leave to set aside the verdict and enter judgment for the propounders
notwithstanding the verdict on the sixth issue was reserved; but when the
case came before the Court of Probate a rule was obtained to set aside the
verdict generally and have a new trial or to set aside the verdict on the
sixth issue for misdirection. It was in dealing with the merits of the finding
on the sixth issue that the true legal position came to be considered by the
House of Lords. The result of the decision was that the rule obtained for a
new trial was discharged, the order of the Court of Probate of the whole
will was reversed and the matter was remitted to the Court of Probate to
do what was right with regard to the qualified probate of the will.
30. The same principle was emphasized by the Privy Council in
Vellasawmy Servai v. Sivaraman Servai [(1929) LR 57 IA 96] where it
was held that, where a will is propounded by the chief beneficiary under
it, who has taken a leading part in giving instructions for its preparation
and in procuring its execution, probate should not be granted unless the
evidence removes suspicion and clearly proves that the testator approved
the will.
31. In Sarat Kumari Bibi v. Sakhi Chand [(1928) LR 56 IA 62] the
Privy Council made it clear that "the principle which requires the
propounder to remove suspicions from the mind of the Court is not
confined only to cases where the propounder takes part in the execution of
the will and receives benefit under it. There may be other suspicious
circumstances attending on the execution of the will and even in such
cases it is the duty of the propounder to remove all clouds and satisfy the
conscience of the court that the instrument propounded is the last will of
the testator". This view is supported by the observations made by Lindley
and Davey, L. JJ., in Tyrrell v. Painton [(1894) P 151, 157, 159] . "The
rule in Barry v. Butlin [(1838) 2 Moo PC 480, 482] , Fulton v. Andrew
[(1875) LR 7 HL 448] and Brown v. Fisher [(1890) 63 LT 465] , said
Lindley, L.J., "is not in my mind confined to the single case in which the
will is prepared by or on the instructions of the person taking large
benefits under it but extends to all cases in which circumstances exist
which excite the suspicions of the court".
32. In Rash Mohini Dasi v. Umesh Chunder Biswas [(1898) LR 25 IA
109] it appeared that though the will was fairly simple and not very long
the making of it was from first to last the doing of Khetter, the manager
and trusted adviser of the alleged testator. No previous or independent
intention of making a will was shown and the evidence that the testator
understood the business in which his adviser engaged him was not
sufficient to justify the grant of probate. In this case the application for
probate made by the widow of Mohim Chunder Biswas was opposed on
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the ground that the testator was not in a sound and disposing state of mind
at the material time and he could not have understood the nature and effect
of its contents. The will had been admitted to the probate by the District
Judge but the High Court had reversed the said order. In confirming the
view of the High Court the Privy Council made the observations to which
we have just referred.
33. The case of Shama Charn Kundu v. Khettromoni Dasi [(1899) ILR
27 Cal 522] on the other hand, was the case of a will the execution of
which was held to be not surrounded by any suspicious circumstances.
Shama Charn, the propounder of the will, claimed to be the adopted son of
the testator. He and three others were appointed executors of the will. The
testator left no natural son but two daughters and his widow. By his will
the adopted son obtained substantial benefit. The probate of the will with
the exception of the last paragraph was granted to Shama Charn by the
trial Judge; but, on appeal the application for probate was dismissed by the
High Court on the ground that the suspicions attending on the execution of
the will had not been satisfactorily removed by Shama Charn. The matter
was then taken before the Privy Council; and Their Lordships held that,
since the adoption of Shama Charn was proved, the fact that he took part
in the execution of the will and obtained benefit under it cannot be
regarded as a suspicious circumstance so as to attract the rule laid down by
Lindley, L.J., in Tyrrell v. Painton [(1894) P 151, 157, 159] . In Bai
Gungabai v. Bhugwandas Valji [(1905) ILR 29 Bom 530] the Privy
Council had to deal with a will which was admitted to probate by the first
court, but on appeal the order was varied by excluding therefrom certain
passages which referred to the deed-poll executed on the same day by the
testator and to the remuneration of the solicitor who prepared the will and
was appointed an executor and trustee thereof. The Privy Council held
that "the onus was on the solicitor to satisfy the court that the passages
omitted expressed the true will of the deceased and that the court should
be diligent and zealous in examining the evidence in its support, but that
on a consideration of the whole of the evidence (as to which no rule of law
prescribed the particular kind required) and of the circumstances of the
case the onus was discharged". In dealing with the question as to whether
the testator was aware that the passages excluded by the appeal court from
the probate formed part of the instrument, the Privy Council examined the
evidence bearing on the point and the probabilities. In conclusion Their
Lordships differed from the view of the appeal court that there had been a
complete failure of the proof that the deed-poll correctly represented the
intentions of the testator or that he understood or approved of its contents
and so they thought that there were no grounds for excluding from the
probate the passages in the will which referred to that deed. They,
however, observed that it would no doubt have been more prudent and
business-like to have obtained the services of some independent witnesses
who might have been trusted to see that the testator fully understood what
he was doing and to have secured independent evidence that clause 26 in
particular was called to the testator's attention. Even so, Their Lordships
expressly added that in coming to the conclusion which they had done
they must not be understood as throwing the slightest doubt on the
principles laid down in Fulton v. Andrew [(1875) LR 7 HL 448] and other
similar cases referred to in the argument."
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11. The Supreme Court in the case of Surendra Pal and others v. Dr.
(Mrs.) Saraswati Arora and another , reported in (1974) 2 SCC 600 , has held
that propounder has to show that the Will was signed by testator, that he was
at the relevant time in a sound disposing state of mind, that he understood
the nature and effect of the dispositions, that he put his signature to the
testament of his own free Will, that he has signed it in the presence of the
two witnesses who attested it in his presence and in the presence of each
other. Once these elements are established, the onus which rests on the
propounder is discharged. Furthermore, there may be cases in which the
execution of the Will itself is surrounded by suspicious circumstances, such
as, where the signature is doubtful, the testator is of feeble mind or is
overawed by powerful minds interested in getting his property, or where in
the light of relevant circumstances the dispositions appears to be the
unnatural, improbable and unfair, or where there are other reasons for
doubting that the dispositions of the Will are not the result of testator's free
Will and mind. It has also been held that in all such cases where there may
be legitimate suspicious circumstances those must be reviewed and
satisfactorily explained before the Will is accepted and the onus is always on
the propounder to explain them to the satisfaction of the Court before it
could be accepted as genuine.
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.
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Saradambal and others, reported in (2022) 3 SCC 209 , has held that intention
of testator to make testament must be proved, and propounder of Will must
examine one or more attesting witnesses and remove all suspicious
circumstances with regard to execution of Will. It has been held as under:
" 31. One of the celebrated decisions of this Court on proof of a will, in
H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala
Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443] is in H. Venkatachala
Iyengar v. B.N. Thimmajamma, wherein this Court has clearly
distinguished the nature of proof required for a testament as opposed to
any other document. The relevant portion of the said judgment reads as
under: (AIR p. 451, para 18)
"18. ... The party propounding a will or otherwise making a claim
under a will is no doubt seeking to prove a document and, in
deciding how it is to be proved, we must inevitably refer to the
statutory provisions which govern the proof of documents. Sections
67 and 68 of the Evidence Act are relevant for this purpose. Under
Section 67, if a document is alleged to be signed by any person, the
signature of the said person must be proved to be in his handwriting,
and for proving such a handwriting under Sections 45 and 47 of the
Act the opinions of experts and of persons acquainted with the
handwriting of the person concerned are made relevant. Section 68
deals with the proof of the execution of the document required by
law to be attested; and it provides that such a document shall not be
used as evidence until one attesting witness at least has been called
for the purpose of proving its execution. These provisions prescribe
the requirements and the nature of proof which must be satisfied by
the party who relies on a document in a court of law. Similarly,
Sections 59 and 63 of the Succession Act are also relevant. Section
59 provides that every person of sound mind, not being a minor,
may dispose of his property by will and the three illustrations to this
section indicate what is meant by the expression "a person of sound
mind" in the context. Section 63 requires that the testator shall sign
or affix his mark to the will or it shall be signed by some other
person in his presence and by his direction and that the signature or
mark shall be so made that it shall appear that it was intended
thereby to give effect to the writing as a will. This section also
requires that the will shall be attested by two or more witnesses as
prescribed. Thus, the question as to whether the will set up by the
propounder is proved to be the last will of the testator has to be
decided in the light of these provisions. Has the testator signed the
will? Did he understand the nature and effect of the dispositions in
the will? Did he put his signature to the will knowing what it
contained? Stated broadly it is the decision of these questions which
determines the nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will has to be
proved like any other document except as to the special requirements
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of attestation prescribed by Section 63 of the Indian Succession Act.
As in the case of proof of other documents so in the case of proof of
wills it would be idle to expect proof with mathematical certainty.
The test to be applied would be the usual test of the satisfaction of
the prudent mind in such matters."
32. In fact, the legal principles with regard to the proof of a will are no
longer res integra. Section 63 of the Succession Act, 1925 and Section 68
of the Evidence Act, 1872, are relevant in this regard. The propounder of
the will must examine one or more attesting witnesses and the onus is
placed on the propounder to remove all suspicious circumstances with
regard to the execution of the will.
33. In the abovenoted case, this Court has stated that the following three
aspects must be proved by a propounder: (Bharpur Singh case [Bharpur
Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] ,
SCC p. 696, para 16)
"16. ... (i) that the will was signed by the testator in a sound and
disposing state of mind duly understanding the nature and effect of
disposition and he put his signature on the document of his own free
will, and
(ii) when the evidence adduced in support of the will is
disinterested, satisfactory and sufficient to prove the sound and
disposing state of the testator's mind and his signature as
required by law, courts would be justified in making a finding
in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be removed
by cogent, satisfactory and sufficient evidence to dispel
suspicion. In other words, the onus on the propounder can be
taken to be discharged on proof of the essential facts indicated
therein."
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur, (1977)
1 SCC 369] , this Court pointed out that when a will is allegedly shrouded
in suspicion, its proof ceases to be a simple lis between the plaintiff and
the defendant. What generally is an adversarial proceeding, becomes in
such cases, a matter of the court's conscience and then, the true question
which arises for consideration is, whether, the evidence let in by the
propounder of the will is such as would satisfy the conscience of the court
that the will was duly executed by the testator. It is impossible to reach
such a satisfaction unless the party which sets up the will offers cogent
and convincing explanation with regard to any suspicious circumstance
surrounding the making of the will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v. Shamsher
Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , this Court has
narrated a few suspicious circumstance, as being illustrative but not
exhaustive, in the following manner: (SCC p. 699, para 23)
"23. Suspicious circumstances like the following may be found to be
surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and
doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and
debilitated at the relevant time.
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13 SA-204-2009
(iii) The disposition may be unnatural, improbable or unfair in
the light of relevant circumstances like exclusion of or absence
of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the
testator's free will and mind.
(v) The propounder takes a prominent part in the execution of
the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts."
36. It was further observed in Shamsher Singh case [Bharpur Singh v.
Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] that the
circumstances narrated hereinbefore are not exhaustive. Subject to offering
of a reasonable explanation, existence thereof must be taken into
consideration for the purpose of arriving at a finding as to whether the
execution of the will had been duly proved or not. It may be true that the
will was a registered one, but the same by itself would not mean that the
statutory requirements of proving the will need not be complied with.
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [Niranjan
Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433] , in paras
34 to 37, this Court has observed as under: (SCC pp. 447-48)
"34. There are several circumstances which would have been held to
be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind
of the testator despite his signature on the will;
(ii) When the disposition appears to be unnatural or wholly
unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the
execution of will which confers on him substantial benefit.
***
35. We may not delve deep into the decisions cited at the Bar as the
question has recently been considered by this Court in B. Venkatamuni v.
C.J. Ayodhya Ram Singh [B. Venkatamuni v. C.J. Ayodhya Ram Singh,
(2006) 13 SCC 449] , wherein this Court has held that the court must
satisfy its conscience as regards due execution of the will by the testator
and the court would not refuse to probe deeper into the matter only
because the signature of the propounder on the will is otherwise proved.
36. The proof of a will is required not as a ground of reading the
document but to afford the Judge reasonable assurance of it as being what
it purports to be.
37. We may, however, hasten to add that there exists a distinction
where suspicions are well founded and the cases where there are only
suspicions alone. Existence of suspicious circumstances alone may not be
sufficient. The court may not start with a suspicion and it should not close
its mind to find the truth. A resolute and impenetrable incredulity is not
demanded from the Judge even if there exist circumstances of grave
suspicion."
38. This Court in Anil Kak v. Sharada Raje [Anil Kak v. Sharada Raje,
(2008) 7 SCC 695] , held as under: (Bharpur Singh case [Bharpur Singh v.
Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p.
698, para 20)
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14 SA-204-2009
"20. This Court in Anil Kak v. Sharada Raje [Anil Kak v. Sharada
Raje, (2008) 7 SCC 695] opined that the court is required to adopt a
rational approach and is furthermore required to satisfy its
conscience as existence of suspicious circumstances plays an
important role, holding: (SCC p. 714, paras 52-55)
'52. Whereas execution of any other document can be proved
by proving the writings of the document or the contents of it as
also the execution thereof, in the event there exists suspicious
circumstances the party seeking to obtain probate and/or letters
of administration with a copy of the will annexed must also
adduce evidence to the satisfaction of the court before it can be
accepted as genuine.
53. As an order granting probate is a judgment in rem, the
court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to)
the natural heir by itself may not be held to be a suspicious
circumstance but it is one of the factors which is taken into
consideration by the courts before granting probate of a will.
55. Unlike other documents, even animus attestandi is a
necessary ingredient for proving the attestation.' "
39. Similarly, in Leela Rajagopal v. Kamala Menon Cocharan [Leela
Rajagopal v. Kamala Menon Cocharan, (2014) 15 SCC 570 : (2015) 4
SCC (Civ) 267] , this Court opined as under: (SCC p. 576, para 13)
"13. A will may have certain features and may have been executed
in certain circumstances which may appear to be somewhat
unnatural. Such unusual features appearing in a will or the unnatural
circumstances surrounding its execution will definitely justify a
close scrutiny before the same can be accepted. It is the overall
assessment of the court on the basis of such scrutiny; the cumulative
effect of the unusual features and circumstances which would weigh
with the court in the determination required to be made by it. The
judicial verdict, in the last resort, will be on the basis of a
consideration of all the unusual features and suspicious
circumstances put together and not on the impact of any single
feature that may be found in a will or a singular circumstance that
may appear from the process leading to its execution or registration.
This, is the essence of the repeated pronouncements made by this
Court on the subject including the decisions referred to and relied
upon before us."
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 .
NEUTRAL CITATION NO. 2025:MPHC-GWL:15860
15 SA-204-2009
15. The Supreme Court in the case of Bharpur Singh and others v.
Shamsher Singh, reported in (2009) 3 SCC 687 , has held that it may be true
that Will was a registered one, but the same by itself would not mean that the
statutory requirements of proving the Will need not be complied with. In
terms of Section 63(c), Succession Act, 1925 and Section 68, Evidence Act,
1872, the propounder of a Will must prove its execution by examining one or
more attesting witnesses and propounder of Will must prove that the Will
was signed by the testator in a sound and disposing state of mind duly
understanding the nature and effect of disposition and he put his signature on
the document of his own free Will.
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 .
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16 SA-204-2009
17. Thus, it is clear that the burden heavily lies on the propounder of
Will to remove all the suspicious circumstances which are attached to Will.
18. In the present case, both the parties have relied upon Will executed
by Gyasiya. Gyasiya had executed one registered Will on 06.06.1985,
Exhibit P-2, in favour of plaintiff, and according to defendants, Gyasiya had
executed another Will dated 12.10.2002, which was notarized by Shri Girraj
Kishore Maheshwari (DW-5).
19. Before considering the Will, which was purportedly executed by
Gyasiya in favour of defendants, this Court would like to consider as to
whether plaintiff had established that Will dated 06.06.1985, Exhibit P-2,
was executed by testator in favour of plaintiff or not?
20. A registered will carry an additional presumption of correctness.
The Supreme Court in the case of Metpalli Lasum Bai (Since Dead) And
Others vs. Metapalli Muthaih (D) By LRs., by judgment dated 21.07.2025 in
Civil Appeal No. 5921/2015, has held as under:-
"9. The Will is a registered document. The defendant-Muthaiah in his
evidence, admitted the signatures as appearing on the said Will (Ext.-A1)
to be that of his father, i.e., M. Rajanna. The Will distributed the properties
in defined proportions between the plaintiff-Lasum Bai, defendant-
Muthaiah and Rajamma (widowed daughter of M. Rajanna). There is
ample material on record to establish that M. Rajanna anticipated that the
relations between plaintiff-Lasum Bai and defendant-Muthaiah were not
congenial and that is why, in order to avoid future conflicts, he divided his
properties by way of a family settlement and bequeathed a share thereof to
plaintiff-Lasum Bai, while leaving the major share to his son i.e., the
defendant-Muthaiah. The distribution of the properties, as per the family
settlement (regarding which oral evidence was led), and the registered
Will is almost in the same proportions. The Will, is a registered document
and thus there is a presumption regarding genuineness thereof. The trial
Court accepted the execution of the Will based on the evidence led before
it. As the Will is a registered document, the burden would lie on the party
who disputed its existence thereof, who would be defendant-Muthaiah in
this case, to establish that it was not executed in the manner as alleged or
that there were suspicious circumstances which made the same doubtful.
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17 SA-204-2009
However, the defendant-Muthaiah in his evidence, admitted the signatures
as appearing on the registered Will to be those of his father, M. Rajanna.
He also admitted the fact that the plaintiff-Lasum Bai was in possession of
6 acres and 16 guntas of land, which fell into her share as per the Will. In
this background, the trial Court was right in holding that M. Rajanna made
a fair distribution of his tangible assets amongst his legal heirs by
executing the Will dated 24th July, 1974 and so also the oral family
settlement. We are of the view that the evidence available on record
fortifies the existence and persuasive nature of the oral family settlement
which is countenanced by the factum of the possession of the suit schedule
properties including the disputed property, which was admittedly with the
plaintiff-Lasum Bai and subsequently the purchaser i.e., Janardhan
Reddy."
21. However, it is made clear that merely because a Will is a registered
one would not mean that it has to be treated as conclusive proof that Will was
properly executed by the testator, and still propounder of Will has to remove
all the suspicious circumstances attached to it. Execution of Will is to be
proved by the propounder in accordance with the provisions of Section 63 of
the Indian Succession Act.
22. Will dated 06.06.1985, Exhibit P-2, was executed by Gyasiya in
favour of Hari Singh, and Ghasiram and Gyanchand were the attesting
witnesses. Ghasiram (PW-5) has stated that Gyasiya had executed a Will in
his presence. On the instructions of Gyasiya, Will was drafted by the
advocate which was typed by clerk of the advocate. Contents of Will were
read over by the advocate to the testator. Testator accepted the contents of
Will, and thereafter, he put his thumb impression. Thereafter, Ghasiram
(PW-5) and Gyanchand signed the Will as attesting witnesses. Thereafter,
Gyasiya went to the Office of Sub-Registrar and got the Will registered.
Even Sub-Registrar, Karera had read out the Will to Gyasiya, which was
accepted by Gyasiya. Gyasiya had also put his thumb impression in front of
Sub-Registrar and this witness, and Gyanchand had also signed the Will as
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attesting witnesses. This witness was cross-examined, and nothing could be
elucidated from the evidence of this witness which may demolish the
examination-in-chief of this witness. This witness has also specifically stated
that at the time of execution of Will, Gyasiya was hale and hearty.
23. Gyanchand Jain (PW-2) is another attesting witness. He has also
stated that Will was read over to Gyasiya, who put his thumb impression after
accepting the contents of the Will. Will, Exhibit P-2, was thereafter signed
by this witness and Gyanichand. Thereafter, Gyasiya took the Will to the
Sub-Registrar Office and got it registered. Sub-Registrar had also read out
the contents of Will. This witness was also cross-examined, and nothing was
put to this witness with regard to mental health condition of testator.
24. Furthermore, testator remained alive for a period of 17 years after
the execution of Will dated 06.06.1985, Exhibit P-2. Since Will is a
registered one, therefore, it contains an additional presumption with regard to
its correctness.
25. Under these circumstances, this Court is of considered opinion that
Courts below did not commit any mistake by recording concurrent findings
of fact that plaintiff has successfully established the execution of Will dated
06.06.1985, Exhibit P-2.
26. Now, the next question for consideration is as to whether
defendants have proved execution of Will dated 12.10.2002, Exhibit D-1, or
not?
27. Bhura and Lallu Singh are the attesting witnesses.
28. Bhura (DW-2) is one of the attesting witnesses. In his affidavit
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19 SA-204-2009
filed under Order 18 Rule 4 CPC, he had stated that Gyasiya had executed a
Will, which was read over by Gyasiya in the presence of attesting witnesses
and villagers. Thereafter, Gyasiya had put his thumb impression, and this
witness and Lallu Singh had signed the Will as attesting witnesses. Although
name of Khet Singh was also mentioned as the attesting witness, but later on,
he refused to sign. Draft of Will was brought by Girraj Maheshwari, which
was read over by him. Deceased Gyasiya was residing separately and was not
residing with Hari Singh. In cross-examination, this witness admitted that
Will was not drafted in his presence. Advocate had brought this Will by
getting it typed from Narwar, and it was read over by the advocate. It was
around 12:00 pm. Will was read over in the house and not in the field. It was
denied that at the time of execution of Will, Gyasiya was residing with Hari
Singh. This witness has stated that Gyasiya was residing with Gopal. Lallu
Singh had brought the advocate. He has stated that in his statement, Exhibit
P-14, he had not stated that Gyasiya was not in a position to walk.
29. It is not out of place to mention here that evidence of Bhura was
also recorded in another civil suit which was tried by Civil Judge, Class-I,
Karera, and in that evidence, he had admitted that at the time when this Will
was executed, Gyasiya was not in a position to walk. However, he denied
that Gyasiya was confined to bed, but clarified on his own that he used to go
out to answer the call of nature. Attention of this witness was invited to his
previous statement, which was recorded by way of evidence in another case,
and has been marked as Exhibit P-14, and in that evidence, Bhura had
admitted that Gyasiya was not in a position to walk.
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20 SA-204-2009
30. Lallu Singh (DW-3) is also one of the attesting witnesses of the
Will. He had stated that Will was read over by deceased Gyasiya in the
presence of witnesses and villagers, and thereafter, he had put his thumb
impression. Name of Khet Singh was also mentioned as an attesting witness,
but later on, he refused to sign the Will. In cross-examination, he admitted
that Will was got typed at Narwar. Draft of the Will was prepared by
advocate. At the time of preparation of Will at Narwar, Gyasiya was not
present. He further stated that this witness was sent by Gyasiya for getting
the Will drafted. Will is a typed one. This witness could not point out that
who had notarized the Will, Exhibit D-1. He admitted that notary had affixed
the seal at Narwar in his presence. He admitted that sister of Bhav Singh and
Sahab Singh, in whose favour Will was also executed, is married to this
witness. He denied that Gyasiya had not affixed his thumb impression. He
denied that in his statement recorded in revenue proceedings, Exhibit P-15,
he had stated that Will was executed in the house of the advocate.
31. Thus, from the evidence of this witness, it appears that notary seal
was affixed on the Will by the notary at Narwar and not in the presence of
testator.
32. Girraj Kishore Maheshwari (DW-5) has stated that on 12.10.2002,
Bhura and Khet Singh came to him for preparation of Will and informed that
Gyasiya wants to execute his Will in respect of all the movable and
immovable property in favour of Bhav Singh, Sahab Singh, and Hari Singh.
He reached Village - Udiyapur at 02:00 pm and Will was read over to
Gyasiya. Consent was given by Gyasiya, and thereafter, he affixed his thumb
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21 SA-204-2009
impression. Khet Singh had refused to sign the Will, therefore, Bhura and
Lallu Singh signed the Will as attesting witnesses. In cross-examination, this
witness has stated that Will was prepared in a hut which was constructed
outside the house. It was 02:00 pm and not 12:00 pm. He admitted that at the
time of attestation, except Bhura, Khet Singh, and Lallu Singh, no other
person was present, and he also admitted that he had not put any note on the
Will that Khet Singh had refused to sign the Will. Initially, Gyasiya put his
thumb impression, and thereafter, Will was signed by all other persons. It
took about half an hour to execute the Will. Since in the summons, it was not
mentioned that notary register should be brought by this witness, therefore,
he has not brought the same. He denied that Will was not executed.
33. If the evidence of Bhura (DW-2), Lallu Singh (DW-3), and Girraj
Kishore Maheshwari (DW-5) are read together, then it is clear that there is a
serious discrepancy as to where Will was drafted. According to Bhura (DW-
2) and Lallu Singh (DW-3), Will was prepared by Girraj Kishore
Maheshwari (DW-5) at Narwar, whereas Girraj Kishore Maheshwari (DW-5)
has stated that he had prepared the Will in a hut which was situated outside
the house of Gyasiya. Will, Exhibit D-1, is not a handwritten one, but it is a
typed Will. If Will was prepared by Girraj Kishore Maheshwari (DW-5),
then it is clear that he must have come along with a typist because this
witness has not stated that he knows how to type and had also taken a
typewriter with him. But, neither Girraj Kishore Maheshwari (DW-5) nor
Bhura (DW-2) nor Lallu Singh (DW-3) have stated that Will was typed in
the village. On the contrary, Bhura (DW-2) and Lallu Singh (DW-3) had
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22 SA-204-2009
specifically stated that Will, Exhibit D-2, was prepared by Girraj Kishore
Maheshwari at Narwar itself.
34. Admittedly, Gyasiya had never instructed Girraj Kishore
Maheshwari to prepare the Will. In fact, according to Girraj Kishore
Maheshwari, Bhura and Khet Singh had contacted him to prepare the Will,
whereas Lallu Singh (DW-3) has stated that he was instructed by Gyasiya to
get the Will prepared. Thus, it is clear that Will, Exhibit D-1, was not
prepared on the instructions and dictations of Gyasiya, but it was prepared by
Girraj Kishore Maheshwari at Narwar on the instructions of persons other
than Gyasiya. Why Khet Singh did not agree to sign the Will has not been
explained by defendants, but one thing is clear that one of the attesting
witnesses was not ready to sign the Will. Therefore, it is clear that there are
certain suspicious circumstances which compelled Khet Singh not to sign the
Will.
35. None of the witnesses have stated that Gyasiya was in a fit state of
mind, whereas Bhura (DW-2), in his evidence Exhibit P-14, had admitted
that testator was confined to bed at the time of execution of Will.
Furthermore, Will, Exhibit D-1, was executed on 12.10.2002, whereas
testator died on 21.11.2002, i.e., just approximately one month after the so-
called Will.
36. As already pointed out, defendants' witnesses have failed to prove
that Gyasiya was in a fit state of mind or he was able to understand things.
Even Girraj Kishore Maheshwari (DW-5) has not stated that he has prepared
the Will on the dictations of Gyasiya. Who gave the details of properties,
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23 SA-204-2009
which are mentioned in Will, Exhibit D-1, has also not been clarified by this
witness.
37. Under these circumstances, this Court is of considered opinion that
merely because it is mentioned in Will dated 12.10.2002, Exhibit D-1, that
by this Will, all the previous Wills are hereby cancelled, cannot be given any
importance because defendants have failed to prove the execution of Will
dated 12.10.2002. Furthermore, Will dated 06.06.1985, Exhibit P-2, is a
registered Will, and therefore, a presumption of correctness of the document
is attached to the registered Will. Although, said correctness would not mean
that registration of Will by itself would amount to conclusive evidence, but it
will give rise to a presumption that Sub-Registrar must have discharged his
duties in accordance with law.
38. Both the Courts below have come to a conclusion that defendants
have failed to prove that second Will dated 12.10.2002, Exhibit D-1, was
ever executed by Testator Gyasiya.
39. Under these circumstances, this Court is of considered opinion that
the Courts below did not commit any mistake by holding that by virtue of
Will dated 06.06.1985, Exhibit P-2, plaintiff has become the owner of
property in dispute.
40. Even otherwise, it is a well-established principle of law that even if
the concurrent findings of facts are shown to be erroneous, still the same
cannot be interfered with by this Court in exercise of power under Section
100 of CPC.
41. No perversity could be pointed out by counsel for appellants.
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42. As no substantial question of law arises in the present appeal,
accordingly, judgment and decree dated 03.12.2008, passed by Additional
Judge, Karera, District Shivpuri to the Court of Additional District Judge,
Karera, District Shivpuri, in Regular Civil Appeal No. 14-A/2008, as well as
judgment and decree dated 19.05.2007, passed by Civil Judge, Class-I,
Karera, District Shivpuri, in RCSA No. 13-A/2006, are hereby affirmed.
43. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
