[Cites 16, Cited by 0]
Punjab-Haryana High Court
Raj Pal vs Rajeshawar Nd Ors on 16 December, 2025
RSA-1513-1992 (O&M) -:1:-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA-1513-1992 (O&M)
Reserved on :- 15.12.2025
Date of Pronouncement:-16.12.2025
Uploaded on:-16.12.2025
Raj Pal and another
... Appellants
Versus
Rameshwar (Deceased) through his LRs and others
... Respondents
****
CORAM: HON'BLE MR. JUSTICE VIRINDER AGGARWAL
Argued by :-
Mr. Vijay Kumar Jindal, Senior Advocate with
Mr. Yashvardhan Goyal, Advocate
for the appellants.
Mr. Ashish Aggarwal, Senior Advocate with
Mr. Vishal Pundir, Advocate
Mr. Saket Bhandari, Advocate
for respondents No.1 to 3.
****
VIRINDER AGGARWAL, J.
1. The appellants/plaintiffs, being aggrieved by the judgment and
decree dated 09.04.1992 passed by the learned District Judge, Ambala
whereby the well-reasoned judgment and decree dated 27.10.1988 of the
learned Sub-Judge II Class, Kurukshetra was unjustifiably overturned, most
respectfully invoke the appellate jurisdiction of this Court through the
present Regular Second Appeal (for short "RSA"). The appellants seek
restoration of the decree rightly granted by the Trial Court and appropriate
redress for the substantial miscarriage of justice that has resulted.
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1.1. It is most respectfully submitted that the impugned judgment
and decree are vitiated by manifest perversity, substantial errors of law, and a
fundamentally flawed appreciation of the evidentiary record, culminating in
a grave miscarriage of justice. The appellants therefore earnestly pray that
this Court be pleased to set aside the impugned judgment and decree and to
reinstate the lawful and well-reasoned decree rendered by the learned Trial
Court.
2. The circumstances precipitating the present appeal may be
succinctly stated thus:-
"The plaintiffs instituted a suit for possession of 110
kanals 19 marlas of agricultural land in village Kartarpur,
asserting succession to Shambhu Dayal, who died issue-less,
his wife and son having predeceased him. As his nearest
surviving collaterals who had cared for him and shared
residence with him, they claimed entitlement under his Will
dated 5.12.1982, whereby he bequeathed the Kartarpur
property to them and the Adiana property (District Saharanpur,
U.P.) to his brother's grandsons Adesh Kumar, Sudesh Kumar,
and Ashok Kumar. Although Shambhu Dayal had earlier
executed a registered Will dated 2.7.1976 in favour of the said
grandsons for both properties, he subsequently changed his
disposition. The defendants challenged the mutation based on
the 1982 Will, setting up rival Wills dated 4.7.1977 and
6.2.1980, on the basis of which the Kartarpur land was mutated
in their favour. This led to the present suit for possession."
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3. Upon service of summons, the defendants entered appearance.
Defendants No. 4 to 6 admitted the plaintiffs' claim before the learned Trial
Court and did not contest the claim preferred by their brothers, Raj Pal and
Amar Pal, before the Court.
3.1. The contesting defendants asserted that Shambhu Dayal had no
relationship with the plaintiffs and had never resided with them. They
claimed he lived jointly with them and, out of affection, executed a
registered Will dated 7.4.1977 bequeathing 90 kanals of his Kartarpur land
to them. They denied the Will dated 5.12.1982 relied on by the plaintiffs but
admitted the earlier Will dated 2.7.1976, under which Shambhu Dayal
devised his Adiana and Kartarpur properties to Adesh Kumar, Sudesh
Kumar, and Ashok Kumar. They further pleaded that Shambhu Dayal treated
defendants No. 1 and 2 as his sister's sons and defendant No. 3 as his
brother's son, as reflected in the 7.4.1977 Will, and sought dismissal of the
suit as false and frivolous with costs.
4. The plaintiff filed a replication, denying the defendants'
assertions and reaffirming the averments made in the plaint. Upon a
thorough examination of the pleadings, documents, and submissions of both
parties, the Court framed the following issues for adjudication, with a view
to securing a precise and comprehensive determination of their respective
claims and defences, as set out below:-
1. Whether Shambhu Dayal (deceased) was the owner of the suit land?
OPP.
2. Whether the plaintiffs are the nearest surviving collaterals of
Shambhu Dayal deceased and were serving the deceased? OPP.
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3. Whether Shambhu Dayal deceasd executed any will dated 5.12.1982
in favour of plaintiffs and defendants No.4 to 6? If so, what is the
effect? OPP.
4. Whether Shambhu Dayal deceased executed any registered will dated
4.7.1977 and 6.2.1980 in favour of the defendant No.1 to 3? If so, to
what effect? OPD.
5. Whether defendant No.1 to 3 are related to Shambhu Dayal
deceased? OPD.
6. Whether the plaintiffs have got no locus standi to file the present suit?
OPD.
7. Whether the plaintiffs have property verified the plaintiff? OPD.
8. Whether the suit is not maintainable in the present form. OPD.
9. Whether the plaintiffs are estopped by their act and conduct to file the
present suit? OPD.
10. Whether the suit is not properly valued for the purpose of court fee
and jurisdiction? OPD,
11. Whether the suit is within time? OPD.
12. Whether the defendants have become owners of suit 1 property on
account of adverse possession? OPD.
13. Whether the suit is bad for mis-joinder and non- joinder of necessary
parties and causes of action? OPD.
14. Relief.
5. Both parties were afforded adequate and meaningful
opportunity to lead evidence in support of their respective claims. Upon
culmination of the trial and after hearing learned counsel for both sides, the
learned Senior Sub-Judge II Class, Kurukshetra proceeded to decree the suit
with following observation:-
"In light of the foregoing findings, the plaintiffs' suit stands decreed.
Defendants No. 1 to 3 shall deliver vacant possession of the suit land, as
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detailed in paragraph 1 of the plaint, on or before 15.12.1988. Mutation
No. 539, recorded in favour of the defendants, is hereby declared illegal,
void, and inoperative against the plaintiffs' rights. Given the particular
circumstances of the case, the parties shall bear their own costs."
6. Aggrieved by the judgment and decree, the
respondents/appellants preferred an appeal before the learned District Judge,
Ambala, who allowed the appeal and consequently dismissed the plaintiffs'
suit.
6.1. Dissenting from the findings of the learned First Appellate
Court, the appellants/plaintiffs instituted the present appeal. Upon
admission, notices were issued, whereafter contesting respondents No. 1 to 3
entered appearance and opposed the appeal. The records of the Courts below
were then requisitioned for comprehensive scrutiny and adjudication.
7. I have heard learned counsel for the parties and perused their
submissions in conjunction with the pleadings, evidence, and the findings
recorded by the learned Courts below. The record has been meticulously
examined to determine 'whether the impugned judgment and decree are
vitiated by any legal infirmity or error warranting interference by this
Court'?
8. The instant appeal raises the following 'quaestio juris
substantialis' for adjudication and determination before this Court:-
"i. Whether the First Appellate Court erred in holding that the Wills
dated 04.07.1977 and 06.02.1980 were duly proved and admissible
on record, notwithstanding the contentions of the appellants
challenging their execution and authenticity?
ii. Whether the Will dated 04.07.1977 can be considered properly
proved on record in the absence of any attesting witness to
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corroborate its execution and attestation, and if the First
Appellate Court committed error in holding otherwise?
iii. Whether the Will dated 05.12.1982 (Ex. P-1) has been duly proved
and established on record in accordance with the requirements of
law, and whether the findings of the lower courts in this regard
are sustainable"?
9. Learned counsel for the appellants/plaintiffs contended that the
learned First Appellate Court erred in its appreciation of both the pleadings
and the evidence on record in relation to the Wills dated 07.04.1977 (Ex.
PW5/1) and 06.02.1980 (Ex. DW4/1). It was submitted that these Wills were
not duly proved, as no attesting witness had corroborated the execution or
attestation of the Will Ex. DW5/1, and the original Will dated 06.02.1980,
the copy of which is Ex. DW4/1, was not placed or proved during the course
of the trial. It is an admitted position on record that the beneficiaries
Rameshwar, Puran Chand, and Parmesher, father of the third beneficiary
were present at the time of execution of Will Ex. DW4/A, and that one of the
attesting witnesses was closely related to the beneficiaries, thereby raising
questions regarding impartiality.
9.1. Learned counsel further submitted that the learned First
Appellate Court wrongly discarded the Will dated 05.12.1982 (Ex. P1) on the
ground that it was allegedly shrouded in suspicious circumstances, whereas
the Will had been duly proved as the last testamentary disposition of the
deceased Shambhu Dayal. It was emphasized that PW-1, Vikram Pal Gupta,
the scribe, and PW-2, Rikhi Ram, the attesting witness, had clearly and
credibly proved the execution of the Will by the testator Shambhu Dayal, as
well as its attestation. Furthermore, the evidence of PW-5 and PW-10, expert
finger-print witnesses, along with the FSL Madhuban report, conclusively
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demonstrated that the Will Ex. P1 bore the thumb impressions of Shambhu
Dayal.
9.2. Learned counsel submitted that the trial Court had rightly
concluded that the Will was valid and duly proved. Evidence on record
further established that at the time of making the Will, Shambhu Dayal was
of sound and disposing mind, and had, inter alia, nominated Amar Pal, one
of the plaintiffs and a beneficiary under the Will, in his account with Radur
Cane Growers Co-operative Society. Despite this, the learned Additional
District Judge erroneously set aside the Will on the ground that it was
shrouded in suspicious circumstances, without adequately considering settled
principles of law.
9.3. It was submitted that mere non-registration of a Will does not
constitute suspicious circumstances, nor does the non-mention of previous
Wills or disinheritance of certain legal heirs create any such presumption.
Wills are often executed precisely to alter the natural line of succession, and
such deviations cannot, by themselves, be regarded as suspicious. Learned
counsel placed reliance on the law laid down by the Hon'ble Apex Court in
Dhani Ram (deceased) through LRs & others vS. Shiv Singh, AIR 2023
SC 4787, where it was held that "mere registration does not sanctify a
document by attaching to it an irrebuttable presumption of validity," and
further relied upon V. Prabhakara vS. Basavaraj K (Dead) by LRs &
another, 2021(4) RCR (Civil) 534, wherein principles regarding the proof
and admissibility of Wills were elucidated, relevant portion of the same is as
under:-
"24. A testamentary court is not a court of suspicion but that of
conscience. It has to consider the relevant materials instead of adopting
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an ethical reasoning. A mere exclusion of either brother or sister per se
would not create a suspicion unless it is surrounded by other
circumstances creating an inference. In a case where a testatrix is
accompanied by the sister of the beneficiary of the Will and the said
document is attested by the brother, there is no room for any suspicion
when both of them have not raised any issue."
9.4. It was, therefore, contended that the impugned findings of the
Additional District Judge were contrary to law and the settled principles of
testamentary jurisprudence, and that the Will Ex. P1 ought to have been
upheld as the valid last testament of the deceased Shambhu Dayal.
9.5. In Atma Singh v. Smt. Guro and others, 1983 CurLJ 75, this
Court observed that in cases where a Will is not a document that is
compulsorily required to be registered under law, the mere fact of non-
registration cannot, in itself, give rise to any presumption of invalidity or
prejudice. The Court held that an unregistered Will remains fully admissible
and enforceable, provided it is otherwise duly executed and proved in
accordance with law.
10. Per contra, learned counsel for the respondents contended that
the learned First Appellate Court rightly concluded that the Wills Ex. PW5/1
and Ex. DW4/1 were duly proved on record. It was submitted that in
circumstances where one of the attesting witnesses has turned hostile and the
other has deceased, the law does not permit a hostile witness to dictate or
obstruct the rights of the parties. The learned counsel emphasized that, in
such cases, the Will can be proved by other admissible evidence, in
accordance with the provisions of Section 71 of the Indian Evidence Act,
1872.
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10.2. It was further argued that the original of Ex. DW4/1 was in the
possession of the appellant-plaintiff, having been handed over for the
purpose of sanctioning mutation. In these circumstances, proof of the Will by
way of secondary evidence, through the production of a certified copy of the
registered document, does not necessitate prior permission of the Court.
Reliance was placed on the decision of this Court in Hardev Singh (since
deceased) and another vs. State of Punjab and others, 2024 NCPHHC
68911, where it was held that there is no requirement under law to file a
separate application for permission to lead secondary evidence. Similar
principles have been affirmed by the Hon'ble Supreme Court in Dhanpat vs.
Sheoram (Deceased) through LRs and others, 2020 SCC Online SC 606,
and by this Court in Madan Lal vs. Shankar and others, 2021(2) PLR 130,
wherein it was reiterated that prior permission to lead secondary evidence is
not legally mandated.
10.3. Learned counsel further submitted that the mere presence of
beneficiaries at the time of execution of a Will does not, in itself, constitute
suspicious circumstances. He emphasized that Will Ex. DW4/1 contained
supplementary provisions for the disposition of property by Shambhu Dayal
in favor of the father of the appellants/plaintiffs, namely Soran, who was not
present at the time of execution of the Will, and that this fact does not
invalidate the testamentary document.
10.4. In contrast, Will Ex. P1 was correctly held to be shrouded in
suspicious circumstances, which the appellants/plaintiffs failed to dispel.
Consequently, the rejection of Will Ex. P1 by the First Appellate Court was
entirely justified. It was submitted that the findings and decree rendered by
the First Appellate Court are based on a proper appreciation of evidence and
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settled law and do not warrant any interference in the exercise of appellate or
revisional jurisdiction.
11. With regard to Will Ex. DW5/A dated 04.07.1977, the
defendant examined DW-5, Satish Chand, who is the son of the deceased
scribe of the Will. DW-5 deposed that the Will was scribed by his father and
confirmed that the document is in his father's handwriting. He further
testified that the execution of the Will had been duly recorded in the register
maintained by his father.
11.1. Bishamber Dass, DW-6, who is the son of one of the attesting
witnesses of the Will (now deceased), also testified, identifying the
signatures of his father on the Will and confirming that he was familiar with
his father's handwriting, being educated up to the middle level.
11.2. Jasmer Singh, the only attesting witness still alive, was
examined as DW-14. While he admitted his signatures on the Will, he did not
support the respondents/defendants' case and failed to corroborate the
execution and attestation of the Will.
11.3. Learned counsel for the respondents/defendants contended that,
under these circumstances, where the sole surviving attesting witness does
not support the case of the party seeking to prove the Will, the document may
nonetheless be proved by adducing other evidence in accordance with
Section 71 of the Indian Evidence Act, 1872. Section 71 of the Indian
Evidence Act, 1872, provides as follows:-
"71. Proof when attesting witness denies the execution.--If the
attesting witness denies or does not recollect the execution of the
document, its execution may be proved by other evidence."
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12. The Hon'ble Apex Court, in V. Kalyanswamy (Deceased) by
LRs and another v. L. Bakthavatsalam (Deceased) by LRs and others,
2020 (3) R.C.R. (Civil) 404, held that the rights and entitlement of a legatee
under a Will cannot be made to depend entirely upon the testimony or
cooperation of the attesting witnesses. In paragraph 70 of the judgment, the
Court observed that the fate of a legatee cannot be left to the whim or
convenience of an attesting witness, and that the law permits the proof of a
testamentary document by alternative or corroborative evidence in
appropriate circumstances, ensuring that the testamentary intentions of the
deceased are given effect to in accordance with law and in para No.70
Hon'ble Apex Court has held as under:-
"70. We are of the view that Section 69 of the Evidence Act manifests a
departure from the requirement embodied in Section 68 of the
Evidence Act. In the case of a Will, which is required to be
executed in the mode provided in section 63 of the Indian
Succession Act, when there is an attesting witness available. the
Will is to be proved by examining him. He must not only prove that
the attestation was done by him but he must also prove the
attestation by the other attesting witness. This is, no doubt, subject
to the situation which is contemplated in Section 71 of the
Evidence Act which allows other evidence to be adduced in proof
of the Will among other documents where the attesting witness
denies or does not recollect the execution of the Will or the other
document. In other words, the fate of the transferee of a legatee
under a document, which is required by law to be attested, is not
placed at the mercy of the attesting witness and the law enables
proof to be effected of the document despite denial of the
execution of the document by the attesting witness."
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13. On a careful consideration of the evidence, it is apparent that the
only attesting witness who was alive was examined by the defendants, yet he
failed to prove the execution and attestation of the Will. In such
circumstances, the provisions of Section 71 of the Indian Evidence Act,
1872, mandate that other admissible evidence must be taken into account to
establish the validity of the document.
13.1. In the present case, the original Will dated 04.07.1977 (Ex.
DW5/1) was produced before the Court and proved to have been scribed by
the father of DW-5, Satish Chand, who testified to the authenticity of his
father's handwriting and confirmed the relevant entry in the register
maintained by his father. Additionally, DW-6, the son of another deceased
attesting witness, identified the signature of his father on the Will and
testified regarding its attestation. In light of the foregoing, Will Ex. DW5/1,
being a duly registered document, was correctly held by the learned First
Appellate Court to be proved on record in accordance with Section 71 of the
Indian Evidence Act.
13.2. As regards Will Ex. DW4/1 dated 06.02.1980, the original was
not produced in Court. The appellants contend that the absence of the
original renders the Will unproved. However, the respondents/defendants
examined Puran Chand (DW-11), who deposed that the original Will was
handed over to Soran, the father of the appellants, for the purpose of
sanctioning mutation. Such a transfer of the original Will is neither unnatural
nor suspicious, as the Will conferred upon Soran a share in the property in
addition to the dispositions made by the testator, Shambhu Dayal in earlier
Will Ex.DW5/1. Notably, Soran did not appear in the witness-box to
controvert this assertion.
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13.3. Given that the original Will was in the possession of the
opposite party and the opposing party denied its execution, the respondents
were justified in proving the Will by way of secondary evidence. Consistent
with the judgments cited by the respondents' counsel, there was no
requirement to seek prior permission of the Court to lead secondary
evidence. Accordingly, the certified copy of the Will (Ex. DW4/1) was duly
proved through the testimonies of the attesting witnesses, Munni Lal and
Hari Singh, as well as the scribe, Raghbir Chand Gupta.
13.4. The appellants further contended that the presence of
beneficiaries, Rameshwar, Puran Chand, and Parmeshwar (father of one of
the beneficiaries) at the time of execution of Will Ex. DW4/1 raised a
presumption of suspicious circumstances. This contention, however, is
legally untenable. As held by the Hon'ble Apex Court in V. Prabhakara
(supra), mere presence of beneficiaries at the execution of a Will does not
constitute suspicious circumstances.
13.5. Reliance is also placed upon the decision of this Court in
Harnek Singh v. Sukhdev Singh, 2001(4) RCR (Civil) 411, wherein it was
held in paragraph 12 that the presence of beneficiaries during the execution
of a Will is not, per se, a ground to doubt its validity and in para No.12, this
Court has held as under:-
"xxxxx
The registered will should be given more weightage once it is
established that the property was non-ancestral in the hands of the
testator who was in a sound and disposing mind. The presence of a
beneficiary by the side of the testator per se is no ground to hold that the
testator was not in a position to form a rational view.
xxxxxx"
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14. It is well settled that the mere presence of beneficiaries at the
time of execution of a Will does not, by itself, constitute suspicious
circumstances. In the present case, an additional and significant factor further
negates any such inference. Ex. DW4/A represents a supplementary Will to
Ex. DW5/1. While Ex. DW5/1, executed on 04.07.1977, already made
dispositions in favor of Rameshwar and Puran Chand etc., Will Ex. DW4/1,
executed on 06.02.1980, provided for a supplementary disposition in favor of
Soran, the father of the appellants, who was a relative of the testator,
Shambhu Dayal. Notably, Soran, the sole beneficiary under Ex. DW4/1, was
not present at the time of its execution, and the individuals present
Rameshwar, Puran Chand and son of Parmeshwar were not beneficiaries
under this particular Will, as their interests had already been addressed in Ex.
DW5/1.
14.1. With regard to Will Ex. P1, it was duly proved on record through
the examination of PW-1, Vikram Pal Gupta, the scribe, and PW-2, Rikhi
Ram, one of the attesting witnesses, who testified to the proper execution and
attestation of the Will. Further corroboration was provided by the
appellants/plaintiffs themselves through the reports of handwriting experts,
PW-5 and PW-10, which confirmed that the Will contained the thumb
impressions of Shambhu Dayal. The report of the FSL, Madhuban, was also
placed on record, further establishing that the Will bore the thumb
impressions of the testator.
14.2. Despite this, the learned First Appellate Court discarded Will
Ex. P1 on the ground that it was shrouded in suspicious circumstances.
However, the appellants/plaintiffs have failed to rebut the suspicious
circumstance, and no credible evidence has been produced to dispel the
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circumstance. The learned First Appellate Court has recorded its findings
with regard to suspicious circumstances in para No.7 of the impugned
judgment, which is reproduced as under:-
"7. Coming to the last Will Ex.P.1 dated 5.12.1980 set up by the
plaintiffs which forms the basis of their suit is on unregistered
document. It was scribed by Vikram Pal Gupta an Ex-Clerk of
Advocate who subsequently took to deed writing. He appeared as
PM-1 and admitted that he did not known Shambhu Dayal
personally. The document is attested by two witnesses Rikhi Ram
and Shiv Charan. Out of them only Rikhi Ram was examined wd
thout any mention for non examining Shiv Charan. Rikhi Ram a
Retired Head Constable appearing as PW-2 had deposed about
the execution of the Will Ex.Pl by Shambhu Dayal The suspicious
circumstances attached to the will are as follows:-
1) There is no mention in the will about the execution of the
earlier wills;
11) While three earlier wills are registered the Will Ex.P.1 was
not got registered in spite of the fact that it was executed at
the Sub Tehsil Headquarter Nukkar District Saharanpur,
where Tehsildar-cum- Sub-Registrar holds his officer
III) No mention was made in the will for change in mind of
testator in depriving Rameshwar, Puran and Lajpat to
whom Shambu Dayal had decided to give by way of will
major chunk of his agricultural holding at village
Kartarpur'
IV) No reason has been given as to thy change was being
brought about as regards the beneficiaries in variance to
the earlier Wills;
AND
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v) The will was never presented for registration though
Shambhu Dayal lived for more than six months after
execution of the alleged Will."
15. The Hon'ble Apex Court has laid down authoritative guidelines
regarding the evidentiary requirements for proving a valid Will in Meena
Pardhan and others v. Kamla Pradhan and another, 2023 (9) SCC 734.
The Court has observed and elucidated the principles to be followed for
establishing the execution, attestation, and admissibility of a testamentary
document, emphasizing the necessity of credible corroborative evidence in
circumstances where attesting witnesses are unavailable, hostile, or otherwise
unable to testify. The relevant portion of the judgment reads as follows:-
"10. Relying on H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959
Supp (1) SCR 426 (3Judge Bench), Bhagwan Kaur v. Kartar Kaur,
(1994) 5 SCC 135 (3Judge Bench), Janki Narayan Bhoir v. Narayan
Namdeo Kadam, (2003) 2 SCC 91(2Judge Bench) Yumnam Ongbi
Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780
(3Judge Bench) and Shivakumar v. Sharanabasappa, (2021) 11 SCC
277 (3Judge Bench), we can deduce/infer the following principles
required for proving the validity and execution of the Will:
i. The court has to consider two aspects: firstly, that the Will is executed by
the testator, and secondly, that it was the last Will executed by him;
ii. It is not required to be proved with mathematical accuracy, but the test of
satisfaction of the prudent mind has to be applied.
iii. A Will is required to fulfil all the formalities required under Section 63 of
the Succession Act, that is to say:
(a) 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
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and the said signature or affixation shall show that it was intended
to give effect to the writing as a Will;
(b) It is mandatory to get it attested by two or more witnesses, though
no particular form of attestation is necessary;
(c) Each of the attesting witnesses must have seen the testator sign or
affix his mark to the Will or has seen some other person sign the
Will, in the presence and by the direction of the testator, or has
received from the testator a personal acknowledgment of such
signatures;
(d) Each of the attesting witnesses shall sign the Will in the presence of
the testator, however, the presence of all witnesses at the same time
is not required;
iv. For the purpose of proving the execution of the Will, at least one of the
attesting witnesses, who is alive, subject to the process of court, and
capable of giving evidence, shall be examined;
v. The attesting witness should speak not only about the testator's signatures
but also that each of the witnesses had signed the will in the presence of the
testator;
vi. If one attesting witness can prove the execution of the Will, the
examination of other attesting witnesses can be dispensed with;
vii. Where one attesting witness examined to prove the Will fails to prove its
due execution, then the other available attesting witness has to be called to
supplement his evidence;
viii. Whenever there exists any suspicion as to the execution of the Will, it is the
responsibility of the propounder to remove all legitimate suspicions before
it can be accepted as the testator's last Will. In such cases, the initial onus
on the propounder becomes heavier.
ix. The test of judicial conscience has been evolved for dealing with those
cases where the execution of the Will is surrounded by suspicious
circumstances. It requires to consider factors such as awareness of the
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testator as to the content as well as the consequences, nature and effect of
the dispositions in the Will; sound, certain and disposing state of mind and
memory of the testator at the time of execution; testator executed the Will
while acting on his own free Will;
x. One who alleges fraud, fabrication, undue influence et cetera has to prove
the same. However, even in the absence of such allegations, if there are
circumstances giving rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious circumstances by giving a cogent and
convincing explanation.
xi. Suspicious circumstances must be 'real, germane and valid' and not merely
'the fantasy of the doubting mind' 1. Whether a particular feature would
qualify as 'suspicious' would depend on the facts and circumstances of
each case. Any circumstance raising suspicion legitimate in nature would
qualify as a suspicious circumstance for example, a shaky signature, a
feeble mind, an unfair and unjust disposition of property, the propounder
himself taking a leading part in the making of the Will under which he
receives a substantial benefit, etc."
16. With regard to the concept of "suspicious circumstances" in the
context of testamentary documents, the Hon'ble Apex Court has
comprehensively examined and defined the same in Gurdial Singh
(Deceased) through LRs v. Jagir Kaur (Deceased) and Another, 2025
INSC 866. The Court elucidated the factors that may render a Will
surrounded by suspicious circumstances, while also clarifying the evidentiary
thresholds required to substantiate such a claim. The relevant observations of
the Court are extracted as follows:-
"14. This brings us to the next issue i.e. what are the suspicious
circumstances which may vitiate the disposition. In Indu Bala Bose &
Ors. vs. Manindra Chandra Bose & Anr.6 the Court held any and
every circumstance is not a "suspicious" circumstance. "8. Needless
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to say that any and every circumstance is not a "suspicious"
circumstance. A circumstance would be "suspicious" when it is not
normal or is not normally expected in a normal situation or is not
expected of a normal person." The Court quoted the Privy Council's
elucidation in Hames v. Hinkson 7 of suspicious circumstances as
follows:
"17 ...............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 was again reiterated in PPK
Gopalan Nambier vs. PPK Balakrishnan Nambiar & Ors.8 that
suspected features should not be mere fantasies of a doubting mind.
"5 ...............It is trite that it is the duty of the propounder of the will
to prove the will and to remove all the suspected features. But there
must be real, germane and valid suspicious features and not fantasy
of the doubting mind."
17. In the light of settled legal principles, the question that arises for
consideration is whether the learned First Appellate Court was justified in
concluding that Will Ex. P1 is surrounded by suspicious circumstances, and
whether the appellants/plaintiffs failed to dispel such circumstances. It is a
well-established principle of law that an unregistered Will is valid and its
non-registration, in itself, does not give rise to any suspicion. The law
recognizes numerous instances where courts have preferred a subsequent
unregistered Will over an earlier registered Will, and mere non-registration
cannot, in isolation, render a Will suspicious. Similarly, the exclusion of
certain relatives from inheritance or the absence of recorded reasons for such
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exclusion does not constitute suspicious circumstances when considered in
isolation.
17.1. However, these factors when examined cumulatively and in the
context of the facts and circumstances of the particular case, as only then can
they assume the character of suspicious circumstances. In the present case, it
is undisputed that the testator, Shambhu Dayal, executed a registered Will on
02.04.1976, the dispositions under which, in respect of property situated at
Village Adiana, are not disputed in the present suit and is not subject matter
of the instant proceedings. Subsequently, Shambhu Dayal executed two
further registered Wills Ex. DW5/1 on 04.07.1977 and Ex. DW4/1 on
06.02.1980, which were duly proved on record.
17.2. The Will propounded by the appellants/plaintiffs, Ex. P1,
executed on 05.12.1982, is unregistered and was executed at a Tehsil
complex, where the office of the Sub-Registrar is located. Given that
Shambhu Dayal was fully aware of the significance of registering Wills, as
evidenced by his earlier registration of three prior Wills, the execution of Ex.
P1 without registration in such circumstances raises a legitimate presumption
of suspicious circumstances particularly when Will was alleged to be
executed in the complex having office of Sub-Registrar.
17.3. The learned Trial Court's observation that Shambhu Dayal was
of a fluctuating mind is also misplaced, as Ex. DW4/1 is not inconsistent
with Ex. DW5/1 but rather a continuance thereof, a supplementary Will.
Furthermore, Ex. DW4/1 itself refers to the execution of the earlier Will,
establishing a consistent testamentary intent. In these circumstances, if
Shambhu Dayal intended to alter the inheritance pattern and disinherit
defendants No. 1 to 3 through Ex. P1, he ought to have provided reasons for
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such disinheritance and recorded about the cancellation of the earlier
registered Wills (Ex. DW4/1 and Ex. DW5/1). The failure to do so lends
further weight to the conclusion that Ex. P1 is shrouded in suspicious
circumstances.
17.4. In view of the above, both Wills Ex. DW5/1 and Ex. DW4/1
stand duly proved on record through primary and secondary evidence, and
the contentions raised by the appellants regarding suspicious circumstances
or non-production of originals are without merit.
17.5. The onus was upon the appellants/plaintiffs to dispel all such
suspicious circumstances surrounding Will Ex. P1. In light of the failure to
discharge this burden, the learned First Appellate Court rightly rejected Ex.
P1.
17.6. In view of the foregoing discussion and the settled principles of
testamentary law, no merit is found in the instant appeal, which is,
accordingly, dismissed.
18. In consequence of the final adjudication of the principal matter,
all pending miscellaneous applications, if any, which arise out of, or are
ancillary to, the present proceedings, shall stand disposed of by necessary
implication. In view of the conclusions reached herein, no separate or
independent orders are required in respect of such applications, as their
adjudication has become wholly infructuous.
( VIRINDER AGGARWAL)
16.12.2025 JUDGE
Gaurav Sorot
Whether reasoned / speaking? Yes / No
Whether reportable? Yes / No
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