[Cites 37, Cited by 0]
Madhya Pradesh High Court
Ranvijay Singh vs Sangram Singh on 16 March, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:9887
1 FA-229-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 16th OF MARCH, 2026
FIRST APPEAL No. 229 of 2022
RANVIJAY SINGH
Versus
SANGRAM SINGH AND OTHERS
Appearance:
Shri Harish Dixit - Senior Advocate with Ms. Ritika Choubey - Advocate for
appellant.
Shri Yashwant Rao Dixit - Proxy counsel on behalf of Shri Prashant Sharma
- Advocate for respondents No.1 & 2.
Shri C.P. Singh - Government Advocate for respondent No.3/State.
JUDGMENT
1. This first appeal has been filed against the judgment and decree
dated 21/01/2022 passed by Second District Judge, Gwalior, in RCSA
No.400015/2013, by which the suit filed by the appellant/plaintiff for
declaration of title and permanent injunction has been dismissed.
2 . The appellant is the plaintiff who has lost his case from the trial
Court.
3. For better understanding of the facts, this Court would like to
reproduce the family tree which was projected by the plaintiff in the plaint.
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Thakur Tej Singh Tomar
Smt. Laxmi Tomar
|
-------------------------------------------------------------------------
| | | |
Puran Singh Keshari Singh Subodh Singh Indra Pratap Singh
| | | |
| Chandramukhi | Yogendra Singh
| (widow) |
| (def. No.2) |
| | |
| Naveen S. Tomar (def. No.2) |
| |
| -----------------------------------
| | | |
| Suresh Vinod Govind
| Singh Singh Singh
|
|-----------------------------
| |
Sangram Singh Ranvijay
(Defendant No.1) (Plaintiff)
4. According to the plaintiff, the property originally belonged to
Thakur Tej Singh Tomar. He was survived by his four sons, namely Thakur
Puran Singh, Thakur Keshari Singh, Thakur Subodh Singh, and Thakur Indra
Pratap Singh. On the date of presentation of the suit, all the four sons of
Thakur Tej Singh Tomar were already dead. The plaintiff Ranvijay is one of
the sons of Thakur Puran Singh, whereas another son of Puran Singh,
namely, Sangram Singh is the defendant No. 1 and his son Naveen S. Tomar
was impleaded as defendant No.2 as legal representative of original
defendant No.2/Chandramukhi. Thakur Subodh Singh was survived by
Suresh Singh, Vinod Singh, and Govind Singh, whereas Thakur Indra Pratap
Singh was survived by Yogendra Singh but Suresh Singh, Vinod Singh,
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Govind Singh, and Yogendra Singh have not been impleaded as parties.
Thakur Keshari Singh also died prior to institution of the suit & was survived
by his widow, late Smt. Chandramukhi.
5. As per the plaint, Survey Nos. 15 to 24, 28 to 35, 38 to 41, 55, 72,
76, 88, 94, 137, 139, 141, 146, 145, 148, 149, 150, 151, 153, 157, 161, 164,
249 to 261, 271 to 278, total area 60 bigha, situated in Rampura, Tehsil and
District Gwalior, Survey Nos. 159, 161 to 164, 165 min, 181, 202, 1069,
1072 min, 1855, 3029, 3073, 3442, 3495, total area 6.694 hectares, situated
in Village Bhitarwar, Tehsil Bhitarwar, District Gwalior; and one building
and bada bearing old Municipal Nos. 41/264 and 41/611 situated in Kampoo
Lashkar, Gwalior, whose map is marked as 'A' and 'B'; and haveli and
agricultural land situated in village Mahua, Tehsil Ambah, District Morena,
are the disputed properties. According to the plaintiff, the aforesaid properties
belonged to Thakur Tej Singh Tomar, and accordingly all his legal
representatives have equal share in the property. It is the case of the plaintiff
that the plaintiff was an employee of the Water Resources Department and,
generally he was posted outside Gwalior in connection with his service, but
later on he retired from the post of Superintending Engineer and at present he
is residing in Gwalior. The plaintiff had blind faith on defendant No.1. Since
the plaintiff used to stay outside Gwalior city, therefore, for the care of the
property as well as for necessary action in the departments, defendant No.1
had obtained the signatures of the plaintiff on certain documents. Since
defendant No.1 was the real brother of the plaintiff, therefore, there was no
reason for the plaintiff to have any doubt on his honesty, and accordingly, the
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plaintiff executed a power of attorney and, under belief did not keep a copy
of the same. It was pleaded that just a few days back he received an
information that defendant No.1 has sold some property on behalf of the
plaintiff, but plaintiff has not been given the consideration amount, whereas
neither the plaintiff had authorized defendant No.1 to execute the sale deed
nor he has received any consideration amount. It was pleaded that the
plaintiff is trying to obtain specific information regarding that and, as soon as
the information is received, a separate proceeding shall be initiated for the
said purposes. It was pleaded that defendants No.1 and 2 are trying to alienate
the disputed properties without partition by metes and bounds. It was claimed
that since the properties are unpartitioned properties, therefore, the
defendants have no right to alienate any part of the property without getting it
partitioned. Accordingly, the plaintiff sent a notice dated 28/05/2010 to
defendant No.1 not to alienate the property to an outsider and also expressed
his right of pre-emption to defendant No.1. However, defendant No. 1
managed to return the said notice. Thus, it was pleaded that defendant No.1 is
out and out to alienate the property without getting it partitioned by metes
and bounds, and accordingly the suit was filed for declaration that the
defendants be restrained from alienating the property without getting it
partitioned by metes and bounds. It was also pleaded that the plaintiff has a
right of pre-emption; therefore, the defendants be restrained from alienating
the property to any stranger and a permanent injunction was also sought
against the defendants that unless and until the property is partitioned by
metes and bounds, they will not alienate the same.
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6. The defendant No.1 & original defendant No.2 Chandramukhi filed
their written statement. It was admitted that although the properties originally
belonged to Thakur Tej Singh Tomar, but it was claimed that mutually on
25/01/1983, a partition had taken place and a written partition deed was also
registered, and accordingly the names of the co-sharers were mutated in the
revenue records as per the partition. All the four sons of Thakur Tej Singh
Tomar had equal share to the extent of 1/4th. It was claimed that most of the
properties which were originally owned by Thakur Tej Singh Tomar have
already been partitioned by mutual settlement dated 25.01.1983 and all the
co-sharers are in possession of their respective shares, which also
includes house No.41/264 and 41/611 and the agricultural land situated in
Bhitarwar. In the remaining unpartitioned property, every legal
representatives of Thakur Tej Singh Tomar has 1/4th share. It was denied that
defendant No.1 had got prepared the power of attorney and had obtained the
signatures of the plaintiff on the same to take care of the property and to
perform necessary action in the Government offices. It was pleaded that in
fact the plaintiff had executed the power of attorney in favour of defendant
No.1 out of his own volition, and the right to alienate the property was also
given to defendant No.1 and accordingly defendant No.1 discharged his
duties. The original copy of power of attorney is still in possession of the
plaintiff. It was also claimed that the consideration amount received from sale
of the property was duly paid to the plaintiff in accordance with his share. It
was denied that plaintiff has recently come to know that defendant No.1 has
alienated the property. It was claimed that the family branches of plaintiff and
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the original defendant No.2 are different and, therefore, the provisions of
Hindu Succession Act are not applicable to defendant No.2. It was further
submitted that a partition had already taken place during the lifetime of the
husband of defendant No.2 which was also signed by defendant No.1 in the
capacity of power of attorney holder of the plaintiff. The original defendant
No.2 is the only legal heir of late Shri Keshari Singh and, therefore, she has
every right to transfer or alienate the property which came to her share. It
was further denied that the defendants would execute the sale deed in
violation of Section 22 of the Hindu Succession Act. It was claimed that the
ancestral property was already partitioned during the lifetime of husband of
defendant No.2 and acknowledgment of partition was also got registered on
25.01.1983, and accordingly, all the co-sharers are in possession of the
property in accordance with their share.
7. In view of the written statement filed by the defendants, the plaintiff
amended his plaint and denied that the property was ever partitioned. It was
further pleaded that defendant No.1 has not clarified that which property has
been sold by him to whom and for how much consideration. It was claimed
that the property situated in Dwarkapuri District Gwalior was constructed by
the plaintiff out of his own personal income.
8 . After the written statement was filed on 25.10.2010, the original
defendant No.2 expired and accordingly her legal representative Shri Naveen
S. Tomar was impleaded by order dated 27.03.2012 passed by the trial
Court on the basis of one Will.
9. The written statement was also amended and it was claimed that on
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03.08.1993, late Kesari Singh had executed a Will in favour of his wife,
according to which the defendant No.2 would remain owner of the property
in dispute during her lifetime, and thereafter Naveen S. Tomar i.e. son of
defendant No.1 would become the owner of the property in dispute.
Furthermore, the defendant No.2 by way of abundant caution also executed a
Will in favour of Naveen S. Tomar on 31.05.2010 which was got registered
on 13.09.2010. It was also pleaded that the suit filed by the plaintiff is not
maintainable in light of Sections 38 and 41 of the Specific Relief Act because
the plaintiff himself has not claimed for any partition. It was further pleaded
that the original defendant No.2 had executed a sale deed in favour of one
Subhdra Bai in respect of property situated in Khalasipura Sindhe ki Chawni.
Similarly, plaintiff, defendant No.1 - Sangram and their mother Janakdulari
had also executed sale deed in respect of a part of some property to Abhay
Jain by registered sale deed dated 26.03.1991, therefore, it is clear that the
parties have acted upon the partition. It was further amended that defendant
No.2 in her lifetime had executed a Will dated 31.05.2010 but by mistake the
second and the last page of the Will were not signed, therefore by way of
abundant caution another Will dated 17.10.2011 was executed by defendant
No.2 in favour of Naveen S. Tomar which was got registered on 18.10.2011.
Thus, according to the defendant, late late Keshari Singh had executed a Will
dated 03/08/1993 in favour of his wife, with a stipulation that she would
remain owner of the same during her lifetime and thereafter Naveen S.Tomar
would become the owner. Defendant No.2 also executed a Will dated
31.05.2010 which was got registered on 13.09.2010 in favour of Naveen S.
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Tomar. Since the second and last page of Will remained unsigned therefore
by way of abundant caution, the defendant No.2 also executed another Will
dated 17.10.2011 in favour of Naveen S. Tomar which was got registered on
18.10.2011.
10. Therefore, it is clear that the defendants had relied upon three
Wills, i.e. dated 03.08.1993 executed by late Keshari Singh in favour of
defendant No.2 with stipulation that after her death, Naveen S. Tomar would
become the owner as well as two Wills i.e., dated 31.05.2010 which was got
registered on 13.09.2010 as well as Will dated 17.10.2011 which was got
registered on 18.10.2011 executed by Smt. Chandramukhi/original defendant
No.2 in favour of Naveen S. Tomar.
11. Thereafter, the plaintiff also amended the plaint and disputed the
Wills executed by Keshari Singh in favour of his wife and by defendant No.2
in favour of Naveen S. Tomar. However, the relief clause was not amended
and the Will dated dated 03.08.1993 executed by late Keshari Singh in favour
of defendant No.2 with a stipulation that after her death Naveen S. Tomar
would become the owner as well as the Will dated 31.05.2010 which was got
registered on 13.09.2010 and Will dated 17.10.2011 which was got registered
on 18.10.2011 executed by Chandramukhi/defendant No.2 in favour of
Naveen S. Tomar were not challenged.
12. The plaintiff examined Smt. Arti Goyal (PW-1), Ranvijay Singh
(PW-2), Yogendra Singh Tomar (PW-3) and Girdhari Singh Tomar (PW-4)
and produced Exhibit P-1 to P-8, whereas the defendants examined Sangram
Singh (DW-1), Govind Singh Tomar (DW-2) and Naveen S. Tomar (DW-3)
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and produced Exhibit D-1 to D-7.
13. The trial Court, after framing issues and recording evidence,
dismissed the suit by holding that the properties mentioned in paragraph 2(i),
(ii), (iii) of the plaint were not undivided Hindu family property and all the
legal representatives of Thakur Tej Singh Tomar were not the co-owners and
in possession of the said property. The claim of the plaintiff that the
defendant No.1 has sold the property by misusing the power of attorney on
his behalf was not found to be proved. It was also held that the plaintiff has
failed to prove that the defendant No.1 has no right to alienate building and
Mahua Koti situated in Bada, as well as the land situated in Bhitarwar,
without getting it partitioned by metes and bounds. All other issues were also
not found to be proved and it was also held that the Will dated 17/10/2011
was prepared fraudulently in order to avoid the legal complications of
discrepancies in Will dated 31/5/2010.
14. Challenging the judgment and decree passed by the trial Court, it is
submitted by counsel for appellant that the Court below has wrongly held that
the defendant has proved the execution of Will by Smt. Chandramukhi in his
favor. It is submitted that, in fact, no Will was executed by Chandramukhi
and, since she had died without any issue, therefore, the property would be
inherited by the legal heirs in accordance with Section 15 of Hindu
Succession Act, and accordingly, the property of the deceased Chandramukhi
would go to the legal heirs of her husband, and therefore, the property left by
Chandramukhi would be inherited by plaintiff to the extent of his share.
15. Per contra, counsel for respondents No.1 & 2 has supported the
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findings recorded by the Court below.
16. Heard learned counsel for the parties.
17. Although, in the original suit, multiple reliefs were sought by
plaintiff and he had also claimed that the entire property of Tej Singh Tomar
is an undivided property, but during the course of arguments, counsel for
appellant confined his arguments only to the share of Chandramukhi as well
as the Wills executed Keshari Singh (Exh. D-1) and Chandramukhi, (Exh. D-
2 and D-6).
18. Now, the question for consideration is as to whether
Chandramukhi had ever executed a Will in favor of Naveen S. Tomar or the
property left by Chandramukhi has to be shared by her legal heirs as per the
provisions of Section 15 of Hindu Succession Act.
19. Before considering the aforesaid three Wills, this Court would like
to make it clear that during the course of arguments, the plaintiff has given up
his claim that all the properties had remained unpartitioned and has confined
his arguments to the share of Keshari Singh which was inherited by
Chandramukhi.
20. The plaintiff has not disclosed in his plaint that five daughters of
Thakur Tej Singh Tomar were also the legal representatives and in the family
tree, those five daughters have not been disclosed. In view of Section 6 of
Hindu Succession Act and in the light of the judgment passed by Supreme
Court int the case of Vineeta Sharma Vs. Rakesh Sharma And Others ,
reported in (2020) 9 SCC 1 , it is held that even the daughters have a right
from their birth.
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21. The plaintiff has relied upon an acknowledgement of partition
Exhibit P-1 (c), according to which Thakur Tej Singh expired on 14/6/1975,
whereas his wife had already predeceased him, and in the month of
December 1975, a family settlement had taken place and five daughters of
Tej Singh Tomar had refused to take any share in the property. However, the
plaintiff has not filed any registered relinquishment deed. Even the sisters
have not signed the acknowledgment of Partition Ex.P-1(c). Even the sisters
were not impleaded as defendants in the suit. Even their existence was also
not disclosed in the plaint.
22. Even the plaintiff has not disclosed in his plaint that some of the
property was mutually partitioned in the year 1975, and the
acknowledgement of the same was got registered on 25/1/1983, [Exhibit P-1
(c)], although it was the case of the defendants that a mutual partition of most
of the properties had taken place by a written partition deed dated 25/1/1983.
Since the plaintiff himself has filed a copy of the written acknowledgement
of partition, therefore, it is clear that the plaintiff has not approached the civil
Court with clean hands and he also suppressed material facts from his plaint.
23. Be that whatever it may be.
24. Since the plaintiff has confined his arguments to the share of late
Keshari Singh, and in view of the admitted facts that the property in dispute
originally belonged to Thakur Tej Singh Tomar, therefore, it is clear that all
his legal representatives have equal share in the property. It appears that all
the four sons are claiming 1/4th share, whereas the five daughters of Tej
Singh Tomar were neither given anything, nor they were impleaded as parties
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to the suit.
2 5 . Furthermore, according to the defendant, Keshari Singh had
executed a Will in favor of his wife Chandramukhi on 3/8/1993, with a
stipulation that she would remain the owner of the property in dispute during
her lifetime and thereafter Naveen S. Tomar would become the owner.
Divakar Singh Bhadoriya and Surendra Singh Bhadoriya were the attesting
witnesses of the Will executed by Keshari Singh. They have not been
examined by the defendants. As already pointed out, the defendants had
examined only three witnesses, namely Sangram Singh (DW-1), Govind
Singh Tomar (DW-2) and Naveen S. Tomar (DW-3).
26. Sangram Singh Tomar (DW-1) has stated that Keshri Singh had
executed a Will in favor of Chandramukhi which is Exhibit D-1, and it
contains the signature of Keshari Singh as well as the photographs. He has
not stated anything about the signatures of the attesting witnesses Divakar
and Surendra Singh. The defendants have not examined any witness to
identify the signatures of Divakar and Surendra Singh. Even Sangram Singh
(DW-1) has not stated that the attesting witnesses Divakar and Surendra
Singh are no more or their whereabouts are not known.
2 7 . Although Govind Singh Tomar (DW-2) has claimed that Will
executed by Keshari Singh Ex. D-1 bears the signature of Keshari Singh at
'B' to 'B', whereas it also bears the signatures of Divakar Singh and Surendra
Singh at 'C' to 'C' and 'D' to 'D' respectively, but in paragraph 12 of his cross-
examination, he has stated that he does not know the name of the father of
Divakar Singh. He also stated that he does not know the whereabouts of
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Divakar Singh. He also does not know as to whether he has expired or not,
but somewhere he had heard that he had expired. He further claimed that
Divakar Singh was working in an office of Registrar at the time of execution
of Will (Ex. D-1), but he was not in a position to disclose that what was the
business/profession of Surendra Singh Bhadoriya. He further admitted that he
is not in possession of any document containing the signatures of Surendra
Singh Bhadoriya. He also admitted that he is not possession of any document
containing the signatures of Divakar Singh. Admittedly, Govind Singh
Tomar is not related either to Divakar Singh or to Surendra Singh Bhadoriya,
and he had not stated that he had ever seen Divakar Singh or Surendra Singh
signing any document. He has also admitted that he is not in possession of
any document containing the admitted signatures of Surendra Singh and
Divakar Singh. Therefore, it is clear that Govind Singh Tomar had failed to
prove that he was well acquainted with the signatures of Divakar Singh and
Surendra Singh Bhadoriya. Thus, his claim in his evidence that the Will
purportedly executed by Keshari Singh Exhibit D-1, contains the signatures
of Divakar Singh and Surendra Singh Bhadoriya cannot be relied upon and
hence it is rejected.
28. It is a well-established principle of law that the Will has to be
proved by examining one of the attesting witnesses, as provided under
Sections 63 and 68 of the Indian Succession Act and merely because a Will is
a registered one, cannot be treated as proved.
29. The Supreme Court in the case of Leela & Ors.
Vs. Muruganantham & Ors., decided on 02.01.2025 in Civil Appeal
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No.7578/2023 has held as under :
"20. There can be no doubt with respect to the manner in
which execution of a Will is to be proved. In the light of
plethora of decisions including the decisions in Moturu
Nalini Kanth v. Gainedi Kaliprasad (Dead, through Lrs.)
and in Derek AC Lobo's case (supra) this position is well
settled that mere registration of a Will would not attach
to it a stamp of validity and it must still be proved in
terms of the legal mandates under the provisions of
Section 63 of the Indian Succession Act and Section 68
of the Evidence Act. It is not the case of the appellant
that the Will dated 06.04.1990 is a registered one."
30. Therefore, even if Will executed by Keshari Singh (Ex.D-1) is a
registered Will, still it cannot be held that it was properly proved in
accordance with Sections 63 and 68 of Indian Succession Act. However,
there is another aspect of the matter which cannot be lost sight of.
Chandramukhi was the wife of Keshari Singh and, therefore, even in absence
of Will, Chandramukhi would inherit the property which belonged to the
share of Keshari Singh. Therefore, so far as the right of Chandramukhi is
concerned, it would remain protected whether the Will dated 3/8/1993,
(Exhibit D-1), is proved in accordance with law or not, but in the Will dated
3/8/1993, (Ex. D-1), executed by Keshari Singh, it was also mentioned that
after the death of his wife, his nephew Naveen S. Tomar would become the
owner. Therefore, by virtue of Will dated 3/8/1993, (Ex. D-1), executed by
Keshari Singh, Naveen S. Tomar would not acquire any right or title and only
Chandramukhi would inherit the share of Keshari Singh.
31. Now, the next question for consideration is as to whether the
defendants have proved the execution of Will dated 17/10/2011 (Ex. D-2),
and Will dated 31/5/2010, (Ex. D-6) executed by Chandramukhi in favour of
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Naveen S. Tomar or not ?
32. If a document is registered one, then generally it is presumed to
have been properly executed because it is expected that the Sub-Registrar
must have performed his duties in accordance with law. The Will dated
31/5/2010, (Ex. D-6), was got registered on 13/9/2010, but one thing is clear
that the last page of the Will, i.e. internal page No.4 of the Will, Ex. D-6,
does not contain the signatures of the testator, namely Smt. Chandramukhi.
Thus, it appears that Sub-Registrar has not performed its duties in accordance
with law and did not obtain the signatures of Chandramukhi on the Will in
his presence. If Will, (Ex. D-6), was already executed on 31/5/2010 and it
was also signed by Chandramukhi on the same date, then it is clear that the
original Will was not signed by Chandramukhi in presence of the Sub-
Registrar. This fact is also supported by the fact that the signatures of
Chandramukhi on the first three pages of the Will, Ex. D-6, were made by a
pen of blue ink, whereas on the date of registration of the Will,
Chandramukhi had signed on the reverse side of document by a pen of black
ink. There is no endorsement by the Sub-Registrar that the contents of the
Will were read out to the testator or the Sub-Registrar had ever verified from
the testator as to whether she had voluntarily signed the Will or not.
33. Similarly, it appears that when defendant No.1 and his son Naveen
S. Tomar realized that a material defect has been left in the Will dated
31/5/2010, (Ex. D-6), which was got registered on 13/9/2010, then another
Will was once again prepared. This Will (Ex.D-2) was also typed and
executed on 17/10/2011, but it was got registered on 18/10/2011. In Will (Ex.
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D-2), it is mentioned that earlier she had executed a Will on 31/5/2010, which
was got registered on 13/9/2010, but the second and the last page of the said
Will remained unsigned and, therefore, the fresh Will is being executed on
17/10/2011.
34. If the Will dated 31/5/2010 (Ex. D-6), is seen, then it appears that
the second page of the said Will contains the signatures of Chandramukhi.
Therefore, the declaration made by Chandramukhi in her will dated
17/10/2011 (Ex. D-2), that the second page of the earlier Will dated
31/5/2010 had remained unsigned is incorrect. According to Will, Exhibit D-
2, the age of the testator was 85 years.
35. Now, the only question for consideration is as to whether Naveen
S. Tomar has duly proved the execution of Will dated 17/10/2011 (Ex.D-2),
which was got registered on 18/10/2011 or not ?
36. The defendant has examined Govind Singh Tomar (DW-2), who
was one of the attesting witnesses.
37. Govind Singh Tomar (DW-2) has admitted that Chandramukhi had
died in the year 2011, either in the month of October or November. When a
specific question was put to him that Chandramukhi had died on 15/10/2011,
then he admitted that she died in the month of October is possible, but he
claimed that he was not in the city of Gwalior at the time of her death and,
therefore, he did not attend her funeral. He admitted that at the time of her
death, Chandramukhi was about 85 to 86 years of age. In paragraph No.14 of
his cross-examination, he admitted that when he went to the room of
Chandramukhi on an information given by his wife that he has been
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summoned by Chandramukhi, the other attesting witness Madho Singh, was
already there. He further stated that when he went to the room of
Chandramukhi, then Chandramukhi gave the old Will to him to read it out
and told that because the last page of the Will has remained unsigned,
therefore, a new Will has been executed without any amendment.
Accordingly, she instructed him to sign the Will. Thereafter, he signed the
Will. Madho Singh signed after the Will was duly signed by this witness,
whereas the Will was already signed by Chandramukhi prior to their
signatures. He further admitted that the new Will (Ex. D-2), was not typed in
his presence. He was also not in a position to disclose as to who had typed
the Will. He stated that the contents of the new Will were drafted by one Jain,
Advocate, but it was not done in his presence. He was not in a position to
disclose as to whether the contents of the new Will were prepared by
Advocate Jain either in his office or in the room of the testator,
Chandramukhi. On whose instruction Shri Jain, Advocate, had prepared the
contents of the Will was also not known to this witness. He also expressed his
ignorance as to whether the contents of the Will were prepared by Advocate
Jain at the instance of defendant No.1 or at the instance of Naveen S. Tomar.
He also admitted that he does not know that who had drafted the contents of
the old Will (Ex. D-6). He again stated that when he went to Chandramukhi,
then he found that the old Will (Ex. D-6), was already there and was typed.
He further admitted that the handwritten contents from 'F' to 'F' were already
written and they were not written in his presence. Although he tried to
explain that the contents of the earlier Will were dictated by Chandramukhi,
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but he admitted that the aforesaid contents were never dictated by
Chandramukhi to Advocate in his presence. When a specific question was
put to this witness as to when Chandramukhi had signed the Will (Ex. D-6),
then he gave an evasive reply that she was a very respectable lady for them,
therefore they did not verify as to when she had signed the Will, and they had
signed the Will as witnesses under the orders of Chandramukhi. Thus, it is
clear that Govind Singh Tomar (DW-2) has failed to prove that who dictated
the contents of Wills Exhibit D-6 and Exhibit D-2, as well as from where the
Will was got typed. It is also not his case that the Will was read over and
understood by Chandramukhi in his presence. It is not the case of Govind
Singh Tomar (DW-2) that Chandramukhi had signed the Will in his presence
and thereafter these witnesses had signed the Will.
38. Furthermore, there is another important aspect of the matter which
cannot be lost sight of. When a specific question was put to Govind Singh
Tomar (DW-2) that Chandramukhi Tomar had died on 15/10/2011, then he
did not deny the said fact but he admitted that she had died in the month of
October 2011. The second Will (Ex. D-2), is dated 17/10/2011, which was
got registered on 18/10/2011. If the suggestion which was given to Govind
Singh Tomar is considered, then it is clear that Chandramukhi Tomar had
already expired prior to the execution of the second Will, (Ex. D-2), or even
otherwise, it is clear that she died within a few days, i.e. less than a month,
after the execution of the second Will.
39. Chandramukhi was an old and infirm lady aged about 85 to 86
years, who was either already dead on the date of execution of the second
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Will (Ex. D-2), or she died just a few days after the execution of the second
Will. Therefore, it is clear that the defendants have failed to prove that she
was in a fit state of mind.
40. It is a well-established principle of law that in order to prove the
execution of a Will, all the suspicious circumstances which are attached to
the Will are to be removed by the propounder of the Will.
41. 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
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other document except as to the special requirements of attestation
prescribed by Section 63 of the Indian Succession Act. As in the case of
proof of other documents so in the case of proof of wills it would be idle to
expect proof with mathematical certainty. The test to be applied would be
the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills
from other documents. Unlike other documents the will speaks from the
death of the testator, and so, when it is propounded or produced before a
court, the testator who has already departed the world cannot say whether
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
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propounder has taken a prominent part in the execution of the will and has
received substantial benefit under it, that itself is generally treated as a
suspicious circumstance attending the execution of the will and the
propounder is required to remove the said suspicion by clear and
satisfactory evidence. It is in connection with wills that present such
suspicious circumstances that decisions of English courts often mention the
test of the satisfaction of judicial conscience. It may be that the reference to
judicial conscience in this connection is a heritage from similar
observations made by ecclesiastical courts in England when they 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
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excite the suspicion of the court and calls upon it to be vigilant and zealous
in examining the evidence in support of the instrument in favour of which
it ought not to pronounce unless the suspicion is removed, and it is
judicially satisfied that the paper propounded does express the true will of
the deceased". It is hardly necessary to add that the statement of these two
rules has now attained the status of a classic on the subject and it is cited
by all text books on wills. The will propounded in this case was directed to
be tried at the Assizes by the Court of Probate. It was tried on six issues.
The first four issues referred to the sound and disposing state of the
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
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the making of it was from first to last the doing of Khetter, the manager
and trusted adviser of the alleged testator. No previous or independent
intention of making a will was shown and the evidence that the testator
understood the business in which his adviser engaged him was not
sufficient to justify the grant of probate. In this case the application for
probate made by the widow of Mohim Chunder Biswas was opposed on
the ground that the testator was not in a sound and disposing state of mind
at the material time and he could not have understood the nature and effect
of its contents. The will had been admitted to the probate by the District
Judge but the High Court had reversed the said order. In confirming the
view of the High Court the Privy Council made the observations to which
we have just referred.
33. The case of Shama Charn Kundu v. Khettromoni Dasi [(1899) ILR
27 Cal 522] on the other hand, was the case of a will the execution of
which was held to be not surrounded by any suspicious circumstances.
Shama Charn, the propounder of the will, claimed to be the adopted son of
the testator. He and three 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
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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."
42. 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.
43. The Supreme Court in the case of Gorantla Thataiah v. Thotakura
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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.
44. 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 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
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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 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
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surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful
or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and
debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in
the light of relevant circumstances like exclusion of or absence
of adequate provisions for the 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."
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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 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."
45. 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
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29 FA-229-2022
representatives and others, reported in (2021) 16 SCC 543 .
46. 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.
47. 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)
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30 FA-229-2022
1 SCC 280.
48. Under these circumstances, it is held that defendant No.1, and
defendant No.2 who was impleaded as legal representative of Chandramukhi
on the strength of the Will, have failed to prove that the Wills (Ex. D-6) and
(Ex. D-2), were ever executed by Chandramukhi in favour of Naveen S.
Tomar. Therefore, it is held that Chandramukhi died without executing any
Will.
49. Now, the next question for consideration is that who will inherit
the property left by Chandramukhi.
50. Section 15 of the Hindu Succession Act reads as under :
15. General rules of succession in the case of female Hindus. -- (1)
The property of a female Hindu dying intestate shall devolve
according to the rules set out in section 16,--
(a) firstly, upon the sons and daughters (including the children of
any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1),--
(a) any property inherited by a female Hindu from her father or
mother shall devolve, in the absence of any son or daughter of the
deceased (including the children of any pre-deceased son or
daughter) not upon the other heirs referred to in sub-section (1) in
the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or
from her father-in-law shall devolve, in the absence of any son or
daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred to in
sub-section (1) in the order specified therein, but upon the heirs of
the husband."
51. Thus, on the death of a Hindu woman dying intestate, first of all,
her property would go to her husband and sons and daughters and since, in
the present case, her husband had already expired and she was issueless, and
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31 FA-229-2022
therefore the property would go to the legal heirs of her husband.
52. In the present case, Thakur Tej Singh Tomar had nine children,
i.e., Puran Singh, Keshari Singh, Subodh Singh and Inder Pratap Singh.
Unfortunately, the parties have suppressed the material facts and the names
of five daughters of Tej Singh Tomar have not been disclosed, but the said
fact is mentioned in the acknowledgement of family settlement, [Exhibit P-
1(c)]. Since the daughters of Tej Singh Tomar will also have equal share in
the light of Section 6 of the Hindu Succession Act, as well as in the light of
the judgment of the Hon'ble Supreme Court in the case of Vineeta Sharma
(supra), therefore it is held that the legal representatives of Thakur Puran
Singh, legal representatives of Subodh Singh and legal representatives of
Inder Pratap Singh, as well as the five daughters of Tej Singh Tomar, will
have equal share in the property left by Chandramukhi and the entire
property would not be inherited either by defendant No.1 or defendant No.2
or even the plaintiff.
53. Accordingly, it is directed that whatever property was left by
Chandramukhi will be distributed amongst her legal representatives in
accordance with Section 15 of the Hindu Succession Act, and even the
daughters of late Tej Singh Tomar will also have their share in the property.
54. So far as the share of five daughters of Tej Singh Tomar in the
remaining property is concerned, unfortunately, two brothers, who are
fighting with each other over the property, have not impleaded the daughters
of Tej Singh Tomar as parties.
5 5 . From plain reading of acknowledgement of family settlement,
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32 FA-229-2022
which was got registered on 25/1/1983, [Exhibit P-1(c)], it is clear that it
does not contain the signatures of the five daughters of Thakur Tej Singh
Tomar. No written and registered relinquishment deed executed by the five
daughters of Thakur Tej Singh Tomar has been placed on record. Since the
five daughters of Thakur Tej Singh Tomar have not been impleaded as
parties in the present case and they have also not filed any application under
Order 1 Rule 10 CPC, therefore, it is held that the written acknowledgement
of partition, [Exhibit P-1 (c)], will not be binding on the five daughters of Tej
Singh Tomar and they are granted liberty that, if they so desire, they can file a
suit for partition and possession of their share in the entire property of
Thakur Tej Singh Tomar.
56. Accordingly,the judgment and decree dated 21/01/2022 passed by
the Second District Judge, Gwalior, in RCSA No.400015/2013 is hereby set-
aside.
57. The appeal succeeds and is allowed to the extent mentioned in Para
53 of the judgment.
58. Decree be drawn accordingly.
(G. S. AHLUWALIA)
JUDGE
Aman
