Madhya Pradesh High Court
Shri Ravatpura Sarkar Lok Kalyan Trust ... vs Gajendra Singh S/O Sajjan Singh Through ... on 11 March, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:6694
1 SA-2948-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 11th OF MARCH, 2025
SECOND APPEAL No. 2948 of 2024
SHRI RAVATPURA SARKAR LOK KALYAN TRUST THROUGH
RAVISHANKAR AND OTHERS
Versus
GAJENDRA SINGH S/O SAJJAN SINGH THROUGH LRS SMT. RANU
AND OTHERS
Appearance:
Shri Arihant Kumar Nahar - Advocate for the appellants (through
video conferencing).
ORDER
Learned counsel for the appellants is heard on the question of
admission.
02. This appeal under Section 100 of the CPC has been preferred by
defendants No.1 to 3 / appellants being aggrieved by the judgment and
decree passed by the Courts below whereby the claim of plaintiff /
respondent No.1 for declaration of title and permanent injunction has been
decreed.
03. The plaintiff instituted an action before the trial Court for
declaration of his title to the suit land and for permanent injunction claiming
title to the property of his sister Late Santosh Rathore submitting that she has
expired issue-less and intestate hence her property has devolved upon him
and defendant No.4.
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04. The claim was contested by defendants No.1 to 3 primarily on the
ground that Smt. Santosh Rathore had executed a will with respect to the
disputed property in favour of defendant No.1 hence it is the owner thereof.
05. The Courts below have held that Late Santosh Rathore was the
owner of the suit property. Upon her death, her property would devolve upon
plaintiff and defendant No.4 equally. The will as set up by the defendants has
not been proved in accordance with law.
06. Learned counsel for the appellants has submitted that the will
dated 11.07.2017 executed by Santosh Rathore in favour of defendant No.1
had been duly proved by defendants No.1 to 3 in accordance with law by
examination of attesting witnesses to the same who have duly proved its
execution by the testator as well as attestation by the witnesses. Since the
will was executed electronically by way of new process of digital
registration, the simultaneous affixation of signatures, thumb impressions
and taking of photograph of both the executor and attesting witnesses before
the Sub Registrar constituted sufficient proof of execution of the will
dispelling any suspicion regarding its attestation and validity satisfying the
requirements of Sections 67 and 68 of the Evidence Act and Section 63 of
the Indian Succession Act. There was no requirement of personal presence of
executor and witnesses before the Sub Registrar for collection of their
signatures and thumb impression. The will hence ought to have been upheld.
07. I have considered the submissions of learned counsel for the
appellants and have perused the record.
08. The contention that since the will was executed digitally and
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simultaneous affixation of signatures, thumb impression and taking of
photographs of both the executor and attesting witnesses before the Sub
Registrar was done it constitutes sufficient proof of execution of the will
cannot be upheld. It may be that the will was executed and attested in the
said manner by the process of digital registration but the same would not
have the effect of ousting the mandatory requirements of Sections 67 and 68
of the Evidence Act and Section 63 (c) of the Indian Succession Act. Those
requirements still remain in the statute books and have to be complied with
for the purpose of proving execution and attestation of the will. Merely
because the mode of execution and registration of the will was different then
also the requirements of proving the will in accordance with law remain the
same.
09. The execution and attestation of a will is required to be proved in
accordance with Section 63(c) of the Indian Succession Act. It is required to
be proved that the testator signed upon the will in presence of both the
attesting witnesses and both the attesting witnesses also signed upon the will
in presence of the testator and the other attesting witness. This has been
explained in detail by the Apex Court in the case of Janki Narayan Bhoir Vs.
Narayan Namdeo Kadam, AIR 2003 SC 761.
10. For the purpose of proving the execution and attestation of the will
the defendants No.1 to 3 had examined the attesting witnesses namely Vivek
DW/1 and Manish DW/3. When their statements are perused, it is observed
that they have only stated that on the will (Exhibit P/31), the signatures of
Smt. Santosh Rathore are there and their signatures are also thereupon. There
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is no statement by any of the witnesses that the testator had signed upon the
will in their presence and in presence of the other attesting witness. There is
also no statement that each of the attesting witness had signed upon the will
in the presence of testator and in the presence of the other attesting
witnesses. The witnesses have not even identified the signatures of the other
attesting witness. Thus, mandatory requirements of proof of execution and
attestation of the will as required under Section 63(c) of the Indian
Succession Act have not been satisfied by defendants No.1 to 3.
11. Moreover, the Courts below have considered various suspicious
circumstances attending the execution of the will in disbelieving the same.
The admitted signatures of Smt. Santosh Rathore on Exhibit P/9, Exhibit
P/10, Exhibit P/11 to Exhibit P/18 are different from her signatures upon the
will Exhibit P/31. At the time of execution of the will, mother of the testator
was alive. There is no reason as to why she has been disinherited. The
attesting witnesses are interested witnesses and have taken an active part in
its execution. The plaintiff, real brother of the testator and his sister have also
been disinherited for which there is no reasonable explanation. It has not
come on record that the relationship of the testator with his mother and
brother and sister was not cordial due to which they have not been given any
property under the will. Each and every suspicious circumstance has been
considered and detailed by the Courts below who have consequently held the
will to be suspicious.
12. The findings recorded by the Courts below that due execution and
attestation of the will has not been proved in accordance with law and that
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the will is suspicious is purely a finding of fact and has been arrived at by
them on the basis of the evidence available on record. No illegality or
perversity has been pointed out in the judgment and decree passed by the
Courts below. No substantial question of law arises for determination in this
appeal which is consequently dismissed in limini.
(PRANAY VERMA)
JUDGE
Shilpa
