[Cites 19, Cited by 0]
Madhya Pradesh High Court
Smt.Rajkumari vs Brijendra Singh Yadav on 6 April, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
1
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
F.A. No.36/2007
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
First Appeal No. 36 of 2007
SMT. RAJKUMARI & OTHERS
Versus
BRIJENDRA SINGH YADAV & ANOTHER
Appearance:
Shri P.C.Chandil, Advocate for appellant No.2.
Shri R.K.Soni, Advocate for respondent No.1.
Shri Nimish Hardenia, Advocate on behalf of Shri Rajendra Sagoriya, counsel
for respondent No.2.
Reserved on : 24/03/2026
Pronounced on : 06/04/2026
JUDGMENT
This first appeal, under section 96 of CPC, has been filed against
the judgment and decree dated 30/11/2006 passed by Special Judge
(Atrocities) and I Additional Judge to the Court of I Additional District
Judge, Gwalior in Civil Suit No.16A/2003, by which the suit filed by
respondent No.1 for declaration of title, permanent injunction, as well as,
for declaration of Will dated 8/11/1995 and mutation thereupon as null
and void was decreed.
2. Appellants are defendants, who have lost their case from the trial
Court.
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
3. Facts necessary for disposal of present appeal, in short, are that
father of plaintiff late Datar Singh Yadav expired on 6/4/1998. Plaintiff is
elder son of Datar Singh Yadav, whereas defendant No.1 is widow of
Datar Singh Yadav and defendant Nos. 2 and 3 are siblings of
plaintiff. It is the case of plaintiff that his late father Datar Singh Yadav
had purchased a house situated on plot Nos. 73 and 74, Khedapati Colony,
Gwalior from Town Improvement Trust, Gwalior by registered sale deed
dated 6/11/1960 and became the owner and in possession thereof. Since
then, both the plots are in the name of late Datar Singh Yadav. Now,
Gwalior Development Authority has succeeded Town Improvement Trust
and the name of father of plaintiff is recorded in the records of the
Gwalior Development Authority. On 28/3/1998, Datar Singh Yadav
executed a Will in favour of plaintiff and the disputed house was given to
plaintiff. It was further pleaded that the Will dated 28/3/1998 was never
challenged by anybody and, accordingly, it was pleaded that on the basis
of Will dated 28/3/1998, plaintiff is owner and in possession of the
property in dispute. It was claimed that defendants are not the owners of
property in dispute. It was further claimed that taking advantage of
medical ailment of plaintiff, defendant Nos. 1 to 3 have prepared a forged
Will of Datar Singh dated 8/11/1985 by putting his forged signatures.
The said Will was executed on a stamp paper of Rs.5/- but from where it
was purchased and for what purposes it was purchased and who was the
stamp vendor etc. are not clear. Thus, it was claimed that the Will dated
8/11/1985 purportedly executed by Datar Singh is a forged document.
Plaintiff is resident of Bhopal and before getting the names of defendants
mutated in the records of GDA, a notice was also published in the
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
newspaper having circulation in Gwalior, but since plaintiff is resident of
Bhopal, therefore, he could not get information about the said public
notice and, thus he could not file any objection to the mutation application
and ultimately defendants have got their names mutated on the basis of
forged Will. On 30/7/2001, some persons including defendant Nos. 1 to 3
started making an attempt to alienate the property in question and when it
was inquired by uncle of plaintiff then he was told that defendants have
got their names mutated in the revenue records. Accordingly, uncle of
plaintiff informed the plaintiff and a public notice was published in the
newspaper pointing out that no one should purchase the property in
dispute. Thus, in nutshell it was the case of plaintiff that Will dated
28/3/1998 purportedly executed by his late father Datar Singh is last and
final Will and the Will dated 8/11/1985 purportedly executed by Datar
Singh in favour of defendant No. 1 is a forged document. Thus, a suit was
filed for declaration that Will dated 28/3/1998 is last Will of Datar Singh
Yadav and by virtue of said Will, plaintiff is the owner and in possession
of property in dispute and by virtue of Will dated 8/11/1985, defendant
No. 1 does not get any right in the property and it was also pleaded that
the mutation done in favour of defendant No.1 be set aside and permanent
injunction was also sought.
4. Defendant Nos. 1 to 3 filed their written statement and admitted
that Datar Singh had died on 6/4/1998. It was also admitted that on
6/11/1960, Datar Singh had purchased Plot Nos. 73 and 74, over which
house was also constructed. It was denied that Datar Singh had ever
executed any Will dated 28/3/1998 in favour of plaintiff. It was claimed
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
that since defendants were not aware of the said Will, therefore, there was
no occasion for them to challenge the Will dated 28/3/1998. It was
claimed that the Will dated 28/3/1998 is a forged Will. It was claimed
that defendant No.2 was Colonel in Indian Army and was residing in
House No. E-7/730, Shahpura, Bhopal which was his personal property
and in that house parents of defendant No.2 were also residing and after
death of father of defendant No.2, plaintiff also shifted to the said house
whereas plaintiff was having his own house No. H-31, Baghira
Appartment, Bhopal, which is in the name of plaintiff. Defendant No.2
was earlier posted in Shrinagar, and when he came to know about the
physical ailment of his father, he came to Bhopal by air and just two days‟
thereafter, his father expired. Defendant No.1, at present is residing along
with defendant No.2 in Firozpur in his Official accommodation. It was
denied that the Will dated 8/11/1985 is a forged Will. So far as the
possession is concerned, it was denied that the plaintiff is owner and in
possession of the property in dispute. It was claimed that in fact Will
dated 8/11/1985 was executed by Datar Singh in favour of his
wife/defendant No.1. Furthermore, plaintiff was aware of Will dated
8/11/1985 right from very inception. The incident that on 30/7/2011,
plaintiff came to know that defendants are trying to alienate the property
was also denied. Thus, in nutshell it was the case of defendants that Datar
Singh had executed a Will dated 8/11/1985 in favour of defendant No.1
whereas the Will dated 28/3/1998 is a forged Will.
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
5. The GDA/defendant No.4 also filed its written statement and
claimed that it is for the plaintiff and defendant Nos. 1 to 3 to prove their
case.
6. The trial Court after framing issues and recording evidence, decreed
the suit and held that Will dated 28/3/1998 executed by Datar Singh in
favour of plaintiff is the last Will and, thus it was held that
plaintiff/respondent No.1 is the owner and in possession of the property
in dispute by virtue of Will dated 28/3/1998.
7. Challenging the judgment and decree passed by the trial Court, it is
submitted by counsel for appellant that plaintiff has failed to prove the
execution of Will dated 28/3/1998. Datar Singh died on 6/4/1998, just 9
days after execution of said Will. Datar Singh had died in a hospital. The
propounder of Will/plaintiff had played active participation in execution
of so called Will dated 28/3/1998 and signatures on Will are not that of
Datar Singh and they are completely different. It is submitted that in fact
the Will dated 28/3/1998 is a forged document. It is further submitted that
in fact Datar Singh had executed a Will dated 8/11/1985 in favour of
defendant No.1 and, therefore, by virtue of Will dated 8/11/1985,
defendant No.1 is owner and in possession of the house in dispute.
8. Per contra , the appeal is vehemently opposed by counsel for
respondent who supported the findings recorded by the trial Court.
9. Heard, learned counsel for the parties.
10. Following are the questions for determination:-
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
(i) Whether Datar Singh had executed a Will dated 28/3/1998 in
favour of plaintiff ?
(ii) Whether Datar Singh had executed a Will dated 8/11/1985 in
favour of defendant No.1?
11. The relationship of parties is undisputed. Plaintiff is the son
whereas defendant No.1/appellant No.1 is the mother and defendant Nos.2
and 3/appellant Nos. 2 and 3 are respectively the son and daughter of
defendant No.1. In other words, plaintiff and defendant Nos. 2 and 3 are
siblings whereas defendant No.1 is their mother.
Whether Datar Singh had executed the Will dated 28/3/1998
(Ex.P/2) ?
12. Before considering the facts and circumstances of the case, this
Court would like to consider the law governing the field of Will.
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 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
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
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
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
is proved to be the last will of the testator has to be
decided in the light of these provisions. Has the testator
signed the will? Did he understand the nature and effect
of the dispositions in the will? Did he put his signature
to the will knowing what it contained? Stated broadly it
is the decision of these questions which determines the
nature of the finding on the question of the proof of
wills. It would prima facie be true to say that the will
has to be proved like any other document except as to
the special requirements of attestation prescribed by
Section 63 of the Indian Succession Act. As in the case
of proof of other documents so in the case of proof of
wills it would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual test
of the satisfaction of the prudent mind in such matters."
32. In fact, the legal principles with regard to the proof
of a will are no longer res integra. Section 63 of the
Succession Act, 1925 and Section 68 of the Evidence Act,
1872, are relevant in this regard. The propounder of the
will must examine one or more attesting witnesses and the
onus is placed on the propounder to remove all suspicious
circumstances with regard to the execution of the will.
33. In the abovenoted case, this Court has stated that the
following three aspects must be proved by a propounder:
(Bharpur Singh case [Bharpur Singh v. Shamsher Singh,
(2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 696,
para 16)
"16. ... (i) that the will was signed by the testator
in a sound and disposing state of mind duly
understanding the nature and effect of disposition
and he put his signature on the document of his own
free will, and
(ii) when the evidence adduced in support of the
will is disinterested, satisfactory and sufficient to
prove the sound and disposing state of the testator's
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
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:
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
(i) The signature of the testator may be very
shaky and doubtful or not appear to be his usual
signature.
(ii) The condition of the testator's mind may be
very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural,
improbable or unfair in the light of relevant
circumstances like exclusion of or absence of
adequate provisions for the natural heirs without
any reason.
(iv) The dispositions may not appear to be the
result of the testator's free will and mind.
(v) The propounder takes a prominent part in
the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for
long.
(viii) Incorrect recitals of essential facts."
36. It was further observed in Shamsher Singh
case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687
: (2009) 1 SCC (Civ) 934] that the circumstances narrated
hereinbefore are not exhaustive. Subject to offering of a
reasonable explanation, existence thereof must be taken
into consideration for the purpose of arriving at a finding as
to whether the execution of the will had been duly proved
or not. It may be true that the will was a registered one, but
the same by itself would not mean that the statutory
requirements of proving the will need not be complied
with.
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti
Rao [Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao,
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
(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
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
cases where there are only suspicions alone. Existence
of suspicious circumstances alone may not be
sufficient. The court may not start with a suspicion and
it should not close its mind to find the truth. A resolute
and impenetrable incredulity is not demanded from the
Judge even if there exist circumstances of grave
suspicion."
38. This Court in Anil Kak v. Sharada Raje [Anil
Kak v. Sharada Raje, (2008) 7 SCC 695] , held as under:
(Bharpur Singh case [Bharpur Singh v. Shamsher Singh,
(2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 698,
para 20)
"20. This Court in Anil Kak v. Sharada Raje [Anil
Kak v. Sharada Raje, (2008) 7 SCC 695] opined that
the court is required to adopt a rational approach and is
furthermore required to satisfy its conscience as
existence of suspicious circumstances plays an
important role, holding: (SCC p. 714, paras 52-55)
„52. Whereas execution of any other document
can be proved by proving the writings of the
document or the contents of it as also the
execution thereof, in the event there exists
suspicious circumstances the party seeking to
obtain probate and/or letters of administration with
a copy of the will annexed must also adduce
evidence to the satisfaction of the court before it
can be accepted as genuine.
53. As an order granting probate is a judgment
in rem, the court must also satisfy its conscience
before it passes an order.
54. It may be true that deprivation of a due
share by (sic to) the natural heir by itself may not
be held to be a suspicious circumstance but it is
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
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. The Will dated 28/3/1998 is Ex.P/2 and just after 9 days of
execution of said Will, Datar Singh had expired. In this Will, it is
specifically mentioned that "earlier the Will was in concise form and was
incomplete and, therefore, a detailed Will is being executed". Thus
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
contention of plaintiff in paragraph 6 of his plaint that Will dated
8/11/1985 was a forged Will and it was never executed is false even to his
knowledge. It is not the case of plaintiff that any other Will which has
been referred to in Will dated 28/3/1998 (Ex.P/2) was ever executed.
Therefore, the stand of the plaintiff that Will dated 8/11/1985 was forged
is false from the recital of Will dated 28/3/1998 (Ex.P/2). In order to
prove a Will, it is essential for the propounder of the Will to remove all
the suspicious circumstances which are attached to the Will.
Undisputedly, Datar Singh died on 6/4/1998, i.e. just nine days after the
execution of Will dated 28/3/1998.
15. From Will dated 28/3/1998 (Ex.P/2), it is clear that R.S.Sikarwar
(PW4) and R.S.Bhadoria (PW2), who are the residents of Bhopal, are the
attesting witnesses.
16. Ramesh Bhadoria (PW2) had filed his affidavit under Order 18
Rule 4 CPC and in that affidavit, he had stated that the last Will of Datar
Singh was executed on 28/3/1998 and it was Datar Singh who had got the
Will typed and in the presence of the family members of Datar Singh, the
Will was got notorized from Shri R.C.Parashar, Notary. It was further
stated that first of all Datar Singh signed the Will and thereafter
R.S.Sikarwar signed the Will and thereafter Ramesh Bhadoria (PW2)
signed the Will and the Notary had put his signatures at D to D. It was
further claimed that Datar Singh had also signed on the register of the
Notary. Thereafter, Notary had notarized the Will and at the time of
execution of Will, Datar Singh was in a fit state of mind and he had
executed the Will after understanding the same. Paragraph 8 of his cross-
examination is very important, which reads as under :-
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
"8- मैं इस प्रकरण में इस न्यायाऱय में पहऱी बार आया हॉ । यह बात
सही है कक मेरे मुख्य परीऺण का शपथ पत्र सोनी वकीऱ साहब ने
बनवाया है । यह बात सही है कक वादी अभििाषक श्री सोनी द्वारा
शपथ पत्र मुझे टाइप कराकर िोपाऱ िेजा। यह बात सही है कक उसी
टाइपशुदा शपथ पत्र पर मैंने हस्ताऺर ककये । यह कहना गऱत है कक
मुझे इस शपथ पत्र के पवव मुझे इस बात की जानकारी नहीॊ थी कक
ककस न्यायाऱय में प्रकरण चऱ रहा है । । मुझे यह बात ब्रिजेन्र
भसॊह ने (वादी) और उसके अभििाषक ने बताई थी कक न्यायाऱय में
मुकदमा चऱ रहा है ।"
17. Thus it is clear that earlier counsel for plaintiff Shri Soni prepared
an affidavit under Order 18 Rule 4, CPC and sent it to Ramesh Bhadoria
(PW2) to his house at Bhopal and thereafter Ramesh Bhadoria signed the
affidavit filed under Order 18 Rule 4, CPC. Why the counsel for plaintiff
prepared the affidavit at Gwalior and sent it to the witness at Bhopal, is
not clear and, accordingly, Shri R.K.Soni, Advocate was requested to
explain that how the affidavit under Order 18 Rule 4, CPC can be
prepared in absence of the witness and why the affidavit was prepared at
Gwalior and was sent to Bhopal to the witness? The aforesaid aspect was
not explained by Shri R.K.Soni. Thus, it is clear that Ramesh Bhadoria
(PW2) was a tutored witness and he was compelled to say whatever the
plaintiff wanted to extract from his mouth. In paragraph 10 of his cross-
examination, he has admitted that he is residing at a distance of
approximately 2 km from the house where the testator was residing and he
has also admitted that plaintiff is having his own Flat, which is
approximately 3 kms away from the place of residence of this witness.
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
When a specific question was put to him about the date of death of Datar
Singh, then initially he expressed his ignorance, then thereafter he
immediately clarified that Datar Singh died on 6/4/1998. He further
admitted that just 4-5 days prior to his death, Datar Singh had fallen sick
and, accordingly, he was got admitted in the hospital and Datar Singh died
in the hospital. He was not able to clarify as to whether Datar Singh was
hospitalized about 10 days prior to his death or not. He admitted that
Datar Singh had undergone an operation of hernia, but was unable to
clarify that the operation took place about 25 days prior to the date of his
death. He denied that Datar Singh had become incapable of walking or
speaking. In paragraph 12, he was not in a position to disclose the date on
which Datar Singh was got hospitalized. He further stated that he was
informed by his wife that Datar Singh has suffered a heart attack,
therefore he took Datar Singh to hospital. He further admitted that Datar
Singh had worked as Collector at Khandwa, Ujjain and Bhopal, Deputy
Secretary in Bhopal Secretariat, Divisional Commissioner at Sagar, OSD
in Housing Board and thereafter he was member of PSC. He further
admitted that wife of Datar Singh/ defendant No.1 was always residing
with Datar Singh and at the time of death of Datar Singh, his wife was
also present. In further cross examination, this witness was shown an
affidavit executed by him in respect of money deposited in the account of
Datar Singh in State Bank of India, Sultania Road, Bhopal in which it was
mentioned that Datar Singh had died without executing any Will.
However, initially he refused to give any answer after going through the
photocopy, buy later on the very same day, defendants were allowed to
further cross examine this witness on the basis of affidavit dated 9/6/1998
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
(Ex.D/1) given by him and he admitted in paragraph 27 of his cross
examination that in affidavit (Ex.D/1) which was given by this witness, it
is mentioned that Datar Singh had died without executing any Will. It is
really surprising that Datar Singh had died on 6/4/1998. This witness has
signed the so-called Will dated 28/3/1998 as attesting witness and on
9/6/1998 i.e. just two months after the death of Datar Singh, this witness
gave an affidavit to the bank that Datar Singh had died without executing
any Will. If this witness had already stood as an attesting witness on Will
dated 28/3/1998 (Ex.P/2), then there was no reason for this witness to
claim that Datar Singh had died without executing any Will. This is
another circumstance which makes the evidence of this witness suspicious
and unreliable.
18. There is another aspect which cannot be lost sight of. In
examination-in- chief of this witness, it is mentioned that Datar Singh had
brought the Will after getting it typed. However, in paragraph 21, he
stated that Datar Singh himself had dictated the Will, but was not in a
position to disclose the name of the typist who had typed the Will. He was
also not in a position to disclose the place where the Will was got typed.
He further admitted that signatures of any other family member of Datar
Singh were not obtained. This witness was also shaky in his cross-
examination because earlier in paragraph 22 he had stated that Datar
Singh had already signed the Will prior to his arrival, but immediately
thereafter he corrected hismelf by saying that Datar Singh had signed the
Will in his presence. Since this witness was shaky in his evidence,
therefore a specific question was put to him that in his examination-in-
chief, he has stated that Datar Singh had brought a typed Will, whereas in
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
paragraph 21, he has stated that the Will was dictated by Datar Singh and
in paragraph 23, he has stated that he does not recollect as to whether the
typist was present on the spot or not, then it was clarified by this witness
that his original statement made in the affidavit under Order 18 Rule 4,
CPC is correct. This Court has already discussed about the manner in
which the affidavit under Order 18 Rule 4 CPC was prepared. At the cost
of repetition, it is once again clarified that in fact the affidavit filed under
Order 18 Rule 4 CPC is not the version of the witness, but it is a version
plaintiff which was prepared with active connivance of his counsel.
Thus it is clear that this witness has also admitted that Datar Singh
died in the hospital. He also admitted that in fact Datar Singh was got
hospitalized by this witness. No document pertaining to the date of
hospitalization of Datar Singh has been filed. This witness has also stated
that Datar Singh has fallen sick just 4-5 days prior to his death, but in
absence of any medical document to show that Datar Singh was hale and
hearty on 28/3/1998, it is difficult to believe that Datar Singh was hale
and hearty and was in a fit state of mind on the date of execution of Will.
This witness has not stated that the Will was ever read by Datar Singh. As
already pointed out, he was shaky in his evidence with regard to who got
the Will typed and where it was got typed and ultimately when a specific
question was put to this witness, then he specifically admitted that
whatever he has mentioned in affidavit filed under Order 18 Rule 4 CPC,
that is the correct version. At the cost of repetition, it is clarified that
affidavit under Order 18 Rule 4 CPC, he had stated that a typed will was
brought by Datar Singh. In absence of any evidence that Will was dictated
by Datar Singh in presence of witnesses, it was necessary for the witness
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
to say that Datar Singh had read over the Will prior to signing the same.
Even this witness was shaky with regard to the sequence of signing the
document.
19. There is another important aspect of the matter which cannot be
lost sight of. The entire Will is a typed Will, but the date of execution of
Will, mentioned in the body of the Will itself, is handwritten. If the Will
was got typed on the very same day, then why the date was left blank
which was filled-up by handwriting. Said aspect has also not been
explained by this witness. The date 28/3/1998 written in handwriting does
not bear any short signatures of the author of that handwriting. Who wrote
the date 28/3/1998 is also not clear. Furthermore, plaintiff has not
examined the notary. Although notary cannot be equated with an attesting
witness, but in order to show that at the time of execution Will, the
testator was in a fit state of mind, the notary would have thrown some
light. Even this witness has stated that Datar Singh had also signed the
register of Notary. In view of the stand taken by defendants that the Will
dated 28/3/1998 is a forged document, plaintiff could have proved the
correctness of the signatures of Datar Singh by summoning the register of
the Notary. Even that was not done. Be that whatever it may be.
20. Another attesting witness is R.S.Sikarwar (PW4). Examination-in-
chief of this witness was also filed in the form of affidavit under Order 18
Rule 4 CPC. Ramesh Bhadoria (PW2) was examined on 6/7/2006 and
7/7/2006, whereas R.S.Sikarwar (PW4) was examined on 20/9/2006.
Therefore, this witness was aware of certain facts which were put to
Ramesh Bhadoria (PW2) in his cross-examination and thus it appears that
he had become more vigilant. In examination-in-chief, this witness has
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
specifically admitted that his affidavit under Order 18 Rule 4 CPC was
prepared by his counsel. It is not out of place to mention here that this
witness is a resident of Bhopal. He admitted in paragraphs 1 and 2 of his
cross-examination that on the date of recording of his cross-examination,
he was posted as Professor in a private Engineering College in Bhopal.
However, he tried to improve his version by saying that although affidavit
under Order 18 Rule 4, CPC was prepared by his counsel, but it was on
his instructions. He further admitted that before he could reach to his
counsel, he had received a telephonic call from the plaintiff who gave him
the address of the counsel for the plaintiff. However, he denied that he
was tutored by the plaintiff. Thus, it is clear that plaintiff informed this
witness about the address of his counsel and accordingly, this witness
went to the counsel of plaintiff and accordingly an affidavit under Order
18 Rule 4 CPC was prepared. The affidavit was filed on 30/8/2003. It is
not out of place to mention here that cross-examination of Brijendra
(PW1)/plaintiff started on 8/11/2005 and was concluded on 3/5/2006.
Therefore, it is clear that presence of Brijendra on 30/8/2003 before the
trial court was not essential. From the order-sheet dated 30/8/2003, it is
clear that Brijendra was also present along with this witness in the Court.
However, as the Presiding Officer was on leave, therefore this witness
could not be cross-examined on the said date and ultimately he was cross-
examined on 20/9/2006. Therefore, looking to the conduct of plaintiff and
his counsel in dictating the terms to the witnesses as also evident from the
evidence of Ramesh Bhadoria (PW2), as well as partial admission made
by this witness, it is clear that in fact this witness is also a tutored witness.
Be that whatever it may be. In paragraph 7 of his cross-examination, he
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
admitted that Datar Singh had died in the hospital on 6/4/1998. He
admitted that since he had read the date of death of Datar Singh as
mentioned in his affidavit, therefore he is disclosing the date. When he
was confronted with his affidavit, then he admitted that the date of death
of Datar Singh is not mentioned in his affidavit. In paragraph 8, he
admitted that Datar Singh had undergone an operation in the month of
February and thereafter it was claimed that Datar Singh had recovered. A
specific question was put to this witness in paragraph 11 that who got the
Will typed and where the Will was got typed, then he gave a vague reply
that Datar Singh had called him in the Office of Parashar Notary and he
informed that he is executing a Will and therefore this witness has to sign
the Will.
Thus, it is clear that this witness was not in a position to disclose
that who had dictated the Will and from where the will was got typed. He
further admitted that at that time of notarization of Will, the family
members of Datar Singh were present, but was not in a position to clarify
as to whether defendant No.2 was present or not. He admitted that wife,
daughter and son-in-law of Datar Singh, who were present, did not sign
the Will. Thus, it is clear that this witness has also admitted that Datar
Singh died just 9 days after the execution of so-called will dated
28/3/1998 (Ex.P/2). This witness was not in a position to disclose that
who got the will typed and from where the Will was got typed. This
witness has also not stated that before signing the Will, Datar Singh had
read over the Will or contents of the Will were ever read over to the
witnesses.
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
Thus, in the considered opinion of this court R.S. Sikarwar (PW4),
who is another attesting witness of the Will, is also not a reliable witness.
21. Brijendra(PW1)/plaintiff, has admitted in paragraph 17 of his
cross-examination that he is in possession of the medical documents of his
father, but he claimed that he has not brought the same. He also admitted
in paragraph 18 that his father had died in Akshay Hospital. He denied the
suggestion that his father was hospitalized about 20 days prior, but he
claimed that he was hospitalized about 4-5 days back. In paragraph 19, he
admitted that the Will dated 28/3/1998 was executed in his presence and
at the time of execution of Will, except Mahendra Singh/ defendant No.2,
all other family members including the mother and siblings were present.
He further admitted that he took his parents to the office of Parashar
Notary. He claimed that he had seen the Will (Ex.P/2) for the first time
when it was signed by his father and witnesses. He further claimed that
the Will was brought by his father. He further admitted that his parents
were not keeping well, therefore generally he used to stay back in their
house in the night. He further admitted that at the time of notarization of
Will, his father, mother, sister, brother-in-law were also present. He was
not able to clarify as to why none of his family members had signed the
Will. He was also not in a position to disclose that from where the Will
was got typed because it was his case that the Will was got typed by his
father. When a specific question was put to him that who had put the date
on the Will (Ex.P/2), then he was not in a position to disclose this fact. He
further admitted in paragraph 21 that there is a mention in the Will dated
28/3/1998 (Ex.P/2) about the previous Will, but he claimed that he does
not know the previous Will. He further claimed that he cannot identify the
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
signatures of his sister and her husband, although both are literate. When a
specific question was put to this witness in paragraph 23 about the
signatures of his father, then initially he claimed that abruptly he cannot
identify the signatures of his father. However, he accepted that the
signatures on Will dated 08/11/1985 Ex.D/1 appears to be that of his
father but tried to wriggle out of his admission by saying that he cannot
say so with certainty. Plaintiff has also relied upon a notice sent by him to
Gwalior Development Authority (Ex.P/5). This notice is dated 21/8/2001.
A specific question was put to this witness that the date of Will (Ex.P/2) is
not mentioned in this notice. However, he stated that although the date is
not mentioned but there is a mention regarding Will. He denied the
suggestion that the date of Will was not mentioned because by that time
the Will dated 28/3/1998 (Ex.P/2) was not in existence. He denied in
paragraph 31 of his cross-examination that Will dated 28/3/1998 (Ex.P/2)
was belatedly created after the documents Ex.P/3, P/4 and P/5 were
brought in existence. He denied the suggestion that the date on the Will
dated 28/3/1998 (Ex.P/2) was put at a later stage after verifying from the
blank space in the register of the Notary. He denied that the date
28/3/1998 in Ex.P/2 is in his handwriting. He further admitted that in one
room of the house in dispute, his uncle Kalyan Singh is residing. He
admitted that Kalyan Singh does not pay any rent to him. He further
admitted that the house was earlier in possession of Employment
Exchange Office and now the Employment Exchange Office has vacated
the premises and has handed over the possession to his mother/defendant
No.1. In paragraph 35, initially he denied the suggestion that the house in
question is in possession of defendant No.1 and her lock is on the
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
premises, but he clarified that the key is with him because the key was
given by his mother to him.
22. Kalyan Singh (PW3) is the uncle of the plaintiff. He has admitted
that in some part of the property in dispute, he is residing. This witness
was examined to prove that few persons had come to see the property for
the purposes of sale. This witness in paragraph 5 of his cross-examination
has also admitted that he had signed his affidavit filed under Order 18
Rule 4, CPC at the instance of plaintiff. He admitted that he does not
know as to what is mentioned in his affidavit filed under Order 18 Rule 4,
CPC. He further admitted that he has come along with the plaintiff to give
evidence. Thus, it is clear that even affidavit of this witness under Order
18 Rule 4, CPC was prepared without his knowledge and even this
witness was not aware as to what is mentioned in his affidavit under
Order 18 Rule 4, CPC.
23. From the aforesaid appreciation, it is clear that Datar Singh was not
well and just prior to the execution of so-called Will dated 28/3/1998
(Ex.P/2), he was operated upon. He died on the ninth day of the date of
execution of Will (Ex.P/2). At the time of his death, he was hospitalized.
Although plaintiff has admitted that medical documents of the plaintiff are
available with him, but he deliberately did not place it on record. It is well
established principle of law that if a party is in possession of best
evidence and does not produce the same in spite of a specific question put
to it in evidence, then an adverse inference can be drawn. The witnesses
have failed to prove that who got the Will typed and from where the Will
was got typed. According to the witnesses, all the family members except
defendant No.2 were present at the time of notarization of will, but none
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
of the family members had signed the Will dated 28/3/1998 (Ex.P/2).
Why the defendants were not made the attesting witness and why the
persons who were stranger to the family of Datar Singh were made the
attesting witnesses, has not been clarified by the witnesses including the
plaintiff. The affidavits of Ramesh Bhadoria (PW2), Kalyan Singh (PW3),
R.S.Sikarwar (PW4) were got prepared by the plaintiff through his
Advocate. Ramesh Bhadoria (PW2) is the resident of Bhopal. His
affidavit under Order 18 Rule 4 CPC was prepared at Gwalior and it was
sent to Bhopal so that he can read it out and then he gave his evidence.
Kalyan Singh (PW3) also admitted that the affidavit under Order 18 Rule
4, CPC was got prepared by plaintiff and he does not know as to what is
written in that affidavit. Similarly, R.S.Sikarwar (PW4) has admitted that
the affidavit was prepared by counsel for plaintiff and it was the plaintiff
who gave the address of his counsel. Since the testator was not well and
he was hospitalized and he died in the hospital, therefore the burden was
heavily upon the plaintiff to prove that he was in a fit state of mind and
the plaintiff in spite of the medical documents available with him, has
failed to prove that the testator was hale and hearty and was not
hospitalized on the day when the so-called Will dated 28/3/1998 (Ex.P/2)
was executed. Plaintiff has also failed to prove that why the date
28/3/1998, as mentioned in the body of Will (Ex.P/2), was not typed but
why it was hand-written and who wrote that date.
24. There is another aspect of the matter which cannot be lost sight of.
Plaintiff was confronted with the signatures of Datar Singh on another
Will (Ex.D/1). He admitted that the signatures appear to be of his father,
but he tried to wriggle out by saying that he cannot say with certainty. It is
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
really surprising that plaintiff, who belongs to a very rich and literate
family in which his father Datar Singh was a highly qualified person; an
IAS Officer who not only worked on different high posts like Collector
and Commissioner, but was also a member of PSC and the plaintiff
himself is a highly qualified person, was unable to identify the signatures
of his own sister and his brother-in-law who are also literate persons.
Plaintiff, who must be well acquainted with the signatures of his father,
did not collect his courage to say that the Will dated 8/11/1995 which was
attested by Shashi Singh, the sister of the plaintiff and Satendra Singh, the
brother-in-law of the plaintiff, does not bear the signatures of his father.
25. Defendants have also relied upon the death certificate issued by
Akshay Heart Hospital, Bhopal to show that Datar Singh had expired on
6/4/1998 and the cause of death was cardio-respiratory failure. Defendants
have also filed multiple documents containing admitted signatures of
Datar Singh. Defendants have also relied upon the evidence of Dr.
Sunanda Dhenge (DW5), who is handwriting expert and had given her
opinion (Ex.D/11) with regard to signatures of Datar Singh on Will dated
28/3/1998 (Ex.P/2) and Will dated 8/11/1995 (Ex.D/1). She had given her
report that the signatures on Will dated 28/3/1998 do not match with the
admitted signatures of Datar Singh, whereas the signatures on Will dated
8/11/1995 (Ex.D/1) are having common penmanship. After comparing the
signatures of Datar Singh on (Ex/D1) with admitted signatures on other
documents which have been filed as exhibits and Ex.D/9 and Ex.D/10, it
is clear that signatures of Datar Singh on disputed Will dated 28/3/1998
(Ex.P/2) are completely different. This comparison of signatures on
disputed will dated 28/3/1998 (Ex.P/2) has been done by this Court in
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
exercise of power under section 73 of Evidence Act just to find out as to
whether the Will dated 28/3/98 (Ex.P/2) contains the signatures of Datar
Singh or not. The conclusion drawn by this Court that the signatures on
Will dated 28/3/1998 (Ex.P/2) are different from the admitted signatures
of Datar Singh, is merely a corroborative finding and the finding that the
Will dated 28/3/1998 (Ex.P/2) was never executed by Datar Singh is
primarily based on other factors which have already been reproduced.
26. Under these circumstances, this Court is of considered opinion that
the plaintiff has failed to prove that Will dated 28/3/1998 (Ex.P/2) was
executed by Datar Singh. The trial Court has misdirected itself by holding
that the Will was duly proved by plaintiff.
Whether Datar Singh had executed the Will dated 8/11/1995
(Ex.D/1) or not?
27. Although no issue was framed by the trial Court in respect of the
aforesaid question, but in order to avoid any further legal complications or
legal battle between the family members and in view of the fact that it was
the defence of the defendants, this Court thinks it appropriate to give a
finding in that regard also.
28. Defendants have examined Smt. Rajkumari (DW1), Smt. Shashi
Singh (DW2), one of the attesting witness of Will dated 8/11/1995, Dr.
Satendra Singh (DW3), another attesting witness of Will dated 8/11/1995,
Col. Mahendra Singh (DW4) and Dr. Sunanda Dhenge (DW5) as
handwriting expert.
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
29. At the cost of repetition, it is once again clarified that when a
specific question was put to Brijendra (PW1)/ plaintiff as to whether he
can identify the signatures of his sister Shashi Singh and his brother-in-
law Satendra Singh, then he denied the same. He admitted that his sister
Shashi Singh and his brother-in-law Satendra Singh are literate persons.
From the affidavit of Satendra Singh (DW3), it is clear that he is a
Scientist and on the date of cross-examination, he was working as a Joint
Director. As already pointed out, the parties belong to a highly qualified
family where the testator had worked as a member of PSC apart from
adorning high administrative posts like Commissioner, Collector, etc.
Plaintiff Brijendra Singh (PW1) is a businessman. His attempt to claim
that he cannot identify the signatures of his sister and his brother-in-law,
clearly indicates that he was trying to avoid a situation where it can be
presumed that Will 8/11/1985 (Ex.D/1) was duly proved. Further,
Brijendra Singh (PW1) also could not collect courage to deny the
signatures of his father on Will dated 8/11/1985 (Ex.D/1) and he said that
the signatures appear to be of his father. Shashi Singh (DW2) and
Satendra Singh (DW3) have specifically stated that the Will dated
8/11/1985 (Ex.D/1) was executed by their father/father-in-law in their
presence and they had signed in presence of the testator. If Will dated
8/11/1985 (Ex.D/1) is read, then it is clear that it is very short and in
concise form. As already pointed out in Will dated 28/3/1998 (Ex.P/2), it
is specifically mentioned that the earlier Will was a short one and in
concise form. Therefore, it is clear that even in Will dated 28/3/1998
(Ex.P/2), there was a reference of a Will which was short and in concise
form.
NEUTRAL CITATION NO. 2026:MPHC-GWL:11212
30. Under these circumstances, it is held that defendants have proved
that Will dated 8/11/1985 (Ex.D/1) was executed by Datar Singh and that
was his last Will. By that will, Datar Singh had bequeathed all his
movable and immovable property to the defendant No.1. Since defendants
have not filed any counter-claim claiming a declaration that the Will dated
8/11/1985 (Ex.D/1) is the last Will, therefore no declaration is being given
in that regard.
31. For the reasons mentioned above, this Court is of considered
opinion that the trial Court committed material illegality by holding that
the Will dated 28/3/1998 (Ex.P/2) was executed by Datar Singh.
32. Accordingly, the judgment and decree dated 30/11/2006 passed by
Special Judge (Atrocities) and I Additional Judge to the Court of I
Additional District Judge, Gwalior in Civil Suit No.16A/2003, is hereby
set aside. The suit filed by the plaintiff is hereby dismissed.
33. No order as to costs.
(G.S.Ahluwalia)
Judge
(and)
