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Punjab-Haryana High Court
Ramesh Kumar @ Ramesh Chander Etc vs Ravi Kant @ Ravi Kumar Etc on 28 April, 2025
Neutral Citation No:=2025:PHHC:054019
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
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RSA-2667-2014 (O&M)
Reserved on: 22.04.2025
Pronounced on: 28.04.2025
RAMESH KUMAR ALIAS RAMESH CHANDER
AND ANOTHER . . . . APPELLANTS
Vs.
RAVI KANT ALIAS RAVI KUMAR AND OTHERS
. . . . RESPONDENTS
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CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
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Argued by: - Mr. Amit Jain, Sr. Advocate with
Mr. Anupam Mathur, Advocate, for the appellants.
Mr. Harsh Aggarwal, Advocate, for respondent No.1.
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DEEPAK GUPTA, J.
Suit for declaration with consequential relief of permanent
injunction regarding property in dispute filed by plaintiffs Ramesh Kumar
and another (appellants herein) was decreed by the trial Court of ld. Civil
Judge (Jr. Div.) Abohar vide judgment & decree dated 11.03.2013. However,
the appeal filed by contesting defendants No.1 Ravi Kant (respondent No.1
herein) was allowed by the First Appellate Court of Ld. Additional District
Judge, Fazilka vide his judgment dated 03.01.2014, thus dismissing the suit
of the plaintiffs.
2. Trial Court record was called. Same has been perused. In order
to avoid confusion, parties shall be referred as per their status before the
Trial Court.
3. It is undisputed that Sh. Parmanand was the owner of the
property in dispute detailed in the head note of the plaint. He died on
12.03.2005. He had four sons and three daughters. These seven children are
party to this litigation, as two of the brothers namely, Ramesh Kumar &
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Naresh Kumar (plaintiffs – appellants) filed the suit against their two other
brothers namely Ravi Kant & Vijay Kumar, and three sisters namely Krishana,
Santosh & Asha, who were impleaded as defendants N: 1 to 5.
4.1 According to the plaintiffs, during his lifetime, Sh. Parmanand
executed a Will dated 09.06.2004, which was registered on 22.06.2004,
through which he bequeathed his property to the two plaintiffs and
Defendant No. 2 Vijay. Based on this Will, the plaintiffs, along with
Defendant No. 2, claim to have become the rightful owners in possession of
the suit property. However, Defendant No. 1 Ravi Kant, is alleged to have
fraudulently prepared another Will dated 07.08.2004, purportedly executed
by Sh. Parmanand, in collusion with the alleged witnesses. On the basis of
this fabricated Will, defendant No. 1 succeeded in getting Mutation No.
1403 sanctioned in his name. The plaintiffs contend that this Will is forged,
was never executed by Sh. Parmanand during his lifetime, and was in fact
created after his death. Therefore, it holds no legal validity. The plaintiffs
prayed for decree of declaration affirming their ownership and possession of
the suit land, along with a decree of permanent injunction to restrain
defendant No. 1 from interfering with their possession, dispossessing them,
or alienating any portion of the property.
4.2 Only Defendant No. 1 Ravi Kant, contested the suit by filing a
written statement, as the other defendants chose not to contest. In his
defence, defendant No. 1 claimed that Sh. Parmanand had executed a
subsequent and final Will dated 07.08.2004, through which the property
was bequeathed solely in his favour. Based on this Will, the mutation of the
disputed land was sanctioned in his name by the Assistant Collector First
Grade, Abohar, after recording statements from both parties. He further
asserted that the Will dated 07.08.2004 revoked all previous Wills. Denying
the other allegations made by the plaintiffs, defendant No. 1 prayed for the
dismissal of the suit.
5. Necessary issues were framed. Evidence produced by the
parties was taken on record.
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executed valid Will dated 09.06.2000 (Ex.P4) and had got it registered on
22.06.2000. It was further found that the Will dated 07.08.2004 relied by
defendant No.1 was not proved. As such, he decreed the suit by way of the
judgment dated 11.03.2013.
6.2 However, reversing the aforesaid finding, ld. First Appellate
Court in the appeal filed by defendant No.1, held that earlier Will dated
09.06.2000 had been revoked by Sh. Parmanand by virtue of the last Will
dated 07.08.2000. The First Appellate Court further found that the said Will
was also subject matter of dispute between the Revenue Authorities, who
had found the same to be duly proved. Ld. First Appellate Court also held
that merely because Sh. Parmanand and defendant No.1-Ravi Kant were
under litigation at the relevant time, could not be a reason to discard the
Will nor the same could be taken as a suspicious circumstance. With these
findings, the ld. First Appellate Court set aside the judgment and decree
passed by the trial Court and dismissed the suit by accepting the appeal of
defendant No.1 vide his judgment dated 03.01.2014.
7.1 Assailing the reversal of the trial court’s well-reasoned
judgment, learned Senior Advocate for the appellants-Plaintiffs contends
that the First Appellate Court erred in setting aside a decision that was
based on sound reasoning. He emphasizes that the validity of the Will dated
09.06.2000, registered on 22.06.2000, was duly established through the
testimony of one of the attesting witnesses – Harish Kataria (PW3).
Additionally, the Will was scribed by the late Sh. Firangi Lal Midha, whose
son Sh. Deepak Midha (PW2), appeared as a witness and produced the
original register containing the entries related to the execution and
registration of the Will. These entries were proved as Ex.P2 and Ex.P3. It is
further submitted that the second attesting witness – Sh. Parvesh Sachdeva,
had passed away, a fact confirmed in the testimony of PW3. There was no
plausible ground to disregard the Will, especially considering that defendant
No.1, in his written statement, did not dispute its execution. Instead, he
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claimed that it stood revoked by the subsequent unregistered Will dated
07.08.2004.
7.2 The learned Senior Advocate then questioned the credibility of
the later Will (Ex.D1), relied upon by defendant No.1, which was allegedly
attested by Uttam Chand (DW2) and Prem Chand Gupta (DW4). Both these
witnesses admitted under cross-examination that they did not know the
testator personally, although they were familiar with the beneficiary, Ravi
Kant, for a long time. Moreover, neither they nor Ravi Kant (DW3) could
even name the scribe of the Will, raising serious doubts about its
authenticity.
7.3 Finally, he argued that the later Will makes no mention of the
earlier registered Will dated 22.06.2000. A vague statement suggesting that
any previous Will stands revoked cannot, by itself, be deemed a valid
revocation of the earlier registered document.
7.4 Learned Senior Advocate further highlights the history of
prolonged litigation between Ravi Kant and his father Sh. Parmanand. He
draws attention to the judgments & decrees Ex.P6 and Ex.P7, which show
that as early as 1993, Sh. Parmanand and others had challenged a decree
secured by Ravi Kant on the ground of fraud. This suit was decreed in 2006,
with the court holding that Ravi Kant had indeed obtained the earlier decree
through fraudulent means. The appeal filed by Ravi Kant against this
decision was also dismissed, as evidenced by Ex.P8. Additionally, in 1995,
Ravi Kant had instituted another suit seeking declaration against his father
and others, which too was dismissed vide Ex.P10. In light of this acrimonious
litigation history, the learned Senior Advocate argues that it is highly
implausible for Sh. Parmanand to have executed the Will (Ex.D1) in Ravi
Kant’s favour. This significant and suspicious circumstance, he asserts, was
erroneously overlooked by the First Appellate Court.
7.5 The learned Senior Advocate also clarifies the legal position,
submitting that mutation proceedings or orders passed by Revenue
Authorities have no bearing on the question of the Will’s validity. He
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contends that such administrative actions cannot be relied upon by a Civil
Court for determining the genuineness of a testamentary document.
7.6 In support of his contentions, Ld. counsel has relied upon H.V.
Nirmala Vs. R. Sharmila, 2018 (2) RCR (Civil) 40; Bhagwan Kaur Vs.
Malwinder Singh, 2009 (4) RCR (Civil) 732; Balbir Wati Vs. Jagbir Singh
Arora, 1993 (1) RRR 11; Abhey Chand Vs. Smt. Bimla Devi, 2006(4) RCR
(Civil) 802; B. Venkatamuni Vs. C.J. Ayodhya Ram Singh, 2007(1) RCR (Civil)
277; Mahila Bajrangi Vs. Badribai, 2003 (2) SCC 464; and Jagjit Singh Vs.
Divisional Commissioner, Patiala, 2012 (13) RCR (Civil) 96.
7.7 With all the above submissions, Ld. senior advocate prayed for
setting aside the judgment as passed by the First Appellate Court and to
restore the judgment of the trial Court, by accepting this Appeal.
8.1 On the other hand, learned Senior Advocate appearing for
contesting respondent No.1 (defendant No.1) argues that the plaintiffs, in
their pleadings, failed to allege any specific suspicious circumstances
surrounding the Will dated 07.08.2004. He submits that unless such
suspicions are expressly pleaded, the burden does not shift to the
propounder to clarify or dispel them.
8.2 He further contends that the Will dated 07.08.2004 (Ex.D1) was
the last testament of Sh. Parmanand and stands duly proved through the
depositions of both attesting witnesses – DW2 and DW4. Even the plaintiff,
he urges, acknowledged this document as the final Will of the testator. The
presence of the beneficiary at the time of execution or the inability of the
witnesses to name the scribe, he argues, are not valid grounds to reject the
Will.
8.3 Lastly, the learned counsel asserts that the existence of prior
litigation between the testator and defendant No.1 does not, by itself,
invalidate the Will. He points out that the disputes were not limited to
Parmanand and defendant No.1 alone but involved other parties as well,
and thus, cannot be treated as conclusive evidence against the execution of
the Will.
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Mritunyoy Sett Vs. Jadunath Basak, 2011(2) RCR (Civil) 894; Baj Singh vs.
Nikko 2021 (4) RCR (Civil) 410; Randhir Singh Vs. Jasdev Singh, 2019(2) PLR
597; Sohan Singh Vs. Preet Kamal Singh, 2014(87) RCR (Civil) 354; and
Madhukar D. Shende Vs. Tarabai Aba Shedage, 2002(1) RCR (Civil) 724.
8.5 With these submissions, ld. advocate prays for dismissal of the
appeal.
9. This Court has considered submissions of both the sides and
appraised the record carefully.
10. Both the parties have propounded their respective Wills of Shri
Parmanand. Whereas the plaintiffs have propounded Will dated 09.06.2000
duly registered before Sub Registrar, Shri Ganga Nagar on 22.06.2000; on the
other hand, the defendant Ravi Kant has relied upon an unregistered Will
dated 07.08.2004. In case the legality and validity of the Will dated
07.08.2004 relied by the defendant is proved, obviously, the earlier Will
dated 09.06.2000, even if registered, will have no value, as it is the later Will,
which is to prevail. On the other hand, if the Will dated 07.08.2004 is not
proved and the Will dated 09.06.2000 is proved, then the plaintiffs will get
the property as per the said Will. In case, none of the Wills are proved, the
parties to the suit will get the property as per natural succession of Sh.
Parmanand. In these circumstances, it is required to be seen as to which of
the Will stands proved.
11. The mode of proving a WILL does not ordinarily differ from that
of proving any other document except as to the special requirement of
attestation prescribed in the case of a WILL by Section 63 of the Indian
Succession Act, which reads as under:-
“63. Execution of unprivileged wills. – Every testator, not being a soldier
employed in an expedition or engaged in actual warfare) or an airman so
employed or engaged or a mariner at sea, shall execute his will according to
the following rules:
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(a) The testator shall sign or shall affix his mark to the will, or it shall be
signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person
signing for him, shall be so placed that it shall appear that it was intended
thereby to give effect to the writing as a will.
(c ) The will shall be attested by two or more witnesses, each of whom has
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 his signature
or mark, or of the signature of such other person; and each of the witnesses
shall sign the will in the presence of the testator but it shall not be necessary
that more than one witness be present at the same time and no particular
form of attestation shall be necessary.”
12. Apart from above, Section 68 of the Evidence Act is quite
relevant regarding proving the execution of a Will. This reads as under:
“68. Proof of execution of document required by law to be attested. — If a
document is required by law to be attested, it shall not be used as evidence
until one attesting witness at least has been called for the purpose of
proving its execution, if there be an attesting witness alive, and subject to
the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof
of the execution of any document, not being a will, which has been
registered in accordance with the provisions of the Indian Registration Act,
1908 (16 of 1908), unless its execution by the person by whom it purports to
have been executed is specifically denied.”
13. The conjoint reading of above provisions makes it quite clear
that at least one out of the two attesting witnesses must be called to prove
due execution of the WILL. Further, it is required for the attesting witness to
prove that he had seen the testator sign or affix his mark to the WILL in his
presence; or that he received from the testator a personal acknowledgment
of his signature or mark of the signature of such other person and each of
the witnesses shall sign the WILL in the presence of testator. Reliance can be
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placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam 2006(1)
C.C.C.563, wherein it has been held by Hon’ble Supreme Court that to prove
due execution of Will, attesting witness must state that each of the two
witnesses has seen the executor sign or affix his mark to the instrument or
has seen some other person sign the instrument in his presence and by the
direction of the execution. Witness should further state that each of the
attesting witness signed the instrument in the presence of the executant.
Hon’ble Supreme Court held that these are the ingredients of attestation
and they have to be proved by the witnesses.
14. Further, it is the settled proposition of law that it is the
propounder of the Will, who has to prove its due execution. Besides, mere
proving the signatures of the testator on the Will is not sufficient. Reference
in this regard can be made to Ganpat Vs. Siri Chand 1992(1) LJR 252 and
Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003(2) LJR 646, wherein
it has been held that due and valid execution of the Will cannot be proved
by simply proving that the signatures on the Will was that of the testator. It
must be proved that attestations were also made properly as required by
clause (c) of Section 63 of the Succession Act, 1925.
15. In the light of abovesaid legal position, it is required to be seen
as to whether the due execution of the Will by any of the attesting witnesses
of the Will, has been proved in this case.
16. The plaintiffs have placed reliance upon the Will dated
09.06.2000, which was duly registered with the office of the Sub Registrar on
22.06.2000. The said Will is purported to have been scribed by Sh. Firangi Lal
Midha, Deed Writer, and attested by two attesting witnesses, namely Sh.
Harish Kataria and Sh. Parvesh Sachdeva. In order to prove the due
execution of the said Will, the plaintiffs examined one of the attesting
witnesses, Sh. Harish Kataria, as PW3, who deposed that he was well-
acquainted with the deceased testator, Sh. Parmanand, and that the Will in
question was scribed by Sh. Firangi Lal Midha in his presence and in the
presence of the other attesting witness. He further stated that the scribe
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had read over and explained the contents of the Will to Sh. Parmanand, who
thereafter signed the same in the presence of both attesting witnesses. PW3
categorically stated that the Will was signed/thumb-marked by the testator
and attesting witnesses in each other’s presence and that all of them
appeared before the Sub Registrar on 22.06.2000 for registration. He also
confirmed that the other attesting witness, Sh. Parvesh Sachdeva, has since
passed away.
17. The testimony of PW3 is duly corroborated by the deposition of
PW2 Sh. Deepak Midha son of the deceased scribe Sh. Firangi Lal Midha.
PW2 produced the original register maintained by his late father, which
contains the relevant entries dated 09.06.2000 and 22.06.2000, evidencing
the execution and registration of the said Will. Copies of these entries were
exhibited as Ex.P2 and Ex.P3, respectively. He also placed on record the
death certificate of his father as Ex.P5. PW2 identified the signature and
stamp of his late father on the original Will, which was produced by Sh.
Gurjant Singh Kanungo from the mutation file, and on the register entries
Ex.P2 and Ex.P3. The certified copy of the Will was marked as Ex.P4.
18. Both PW2 and PW3 were subjected to lengthy and detailed
cross-examination, but nothing material could be elicited to discredit their
testimonies or to cast doubt on the due execution of the Will.
19. Further, it is pertinent to note that in the written statement
filed by defendant no.1, the primary plea is that the Will dated 09.06.2000
stands revoked by a subsequent Will dated 07.08.2004. This clearly implies
an implied admission by the defendant of the execution and registration of
the Will dated 09.06.2000 (Ex.P4) by the testator, Sh. Parmanand.
20. Learned counsel for the respondent/defendant has failed to
point out any suspicious circumstances surrounding the execution of the
Will dated 09.06.2000. Moreover, the defendant has not challenged the
legality or validity of the said Will in specific terms and has merely taken a
plea of revocation.
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21. In view of the evidence on record and the absence of any
suspicious circumstances, this Court is of the considered opinion that the
plaintiffs have successfully proved the due execution, legality, and validity of
the Will dated 09.06.2000, which was registered with the Sub Registrar on
22.06.2000, the certified copy of which is Ex.P4.
22. Coming to the Will relied by the defendant, he has propounded
an unregistered Will dated 07.08.2004, which is typed in Hindi script. The
said document does not disclose the name of the typist or scribe, nor does it
bear any signature or seal of the scribe. The Will purports to have been
attested by two witnesses: Sh. Uttam Chand and Dr. Prem Parkash Gupta.
23. In order to prove the said Will, the defendant examined both
the attesting witnesses, namely, Sh. Uttam Chand as DW2 and Dr. Prem
Parkash Gupta as DW4. While both these witnesses, in their examination-in-
chief, supported the defendant’s case by stating that Sh. Parmanand had
executed the Will dated 07.08.2004 voluntarily and had thereby revoked the
earlier Will, their respective cross-examinations significantly undermine the
credibility of their testimonies and cast serious doubt on the due execution
of the Will Ex.D1.
24. DW2 Uttam Chand admitted during cross-examination that he
is a property dealer and had assisted the defendant, Sh. Ravi Kant, in
purchasing certain plots, for which he had received commission. Though the
Will is in Hindi, DW2 categorically stated that he is unable to read Hindi. He
further deposed that at the time of execution of the Will, only the
beneficiary, Ravi Kant, was present, and none of the other family members
of Sh. Parmanand were present. He admitted that he had only signed the
Will and was unaware of who had actually scribed it. He was also ignorant of
whether the Will was presented before the Tehsildar and was completely
unaware of its contents. In such circumstances, the assertion of DW2 that
the contents of the Will were read over and explained to the testator and
the witnesses loses all credibility.
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25. Likewise, DW4 Dr. Prem Parkash Gupta, in his cross-
examination, admitted that he did not know the name or address of the
scribe, who had typed the Will and had never met him before. He confirmed
that the typist had not appended any name, seal, or signature on the Will.
Though he is a resident of Abohar, he claimed to have gone to Ganga Nagar
on 07.08.2004 to sign the Will. He admitted being a friend of the defendant
Ravi Kant and acknowledged that he only knew Sh. Parmanand as the father
of his friend.
26. Further, DW3 Ravi Kant, the beneficiary of the Will, also
admitted in his deposition that he does not know the name of the scribe and
that he was present at the time of scribing of the Will.
27. A cumulative assessment of the testimonies of DW2, DW3, and
DW4 reveals that none of them is able to disclose the identity of the scribe
of the alleged Will Ex.D1. The Will bears no name, signature, or seal of the
scribe. It further emerges that the sole beneficiary, Ravi Kant, was present
during the execution of the Will, and both the attesting witnesses are closely
acquainted with him. These facts, taken together, give rise to serious doubts
about the authenticity and voluntariness of the alleged Will.
28. Additionally, a perusal of Ex.D1 indicates that while it contains a
vague statement to the effect that any previous Will stands revoked, there is
no specific reference to the earlier Will dated 09.06.2000, registered on
22.06.2000 (Ex.P4). The absence of any explicit revocation of the registered
Will further weakens the defendant’s claim regarding the execution of a
subsequent valid Will.
29. This Court is guided by the settled principles laid down in
judicial precedents concerning competing Wills, particularly when one is
registered and the other is not. In Bhagwan Kaur v. Malwinder Singh
(supra), this Court held that though registration of a Will is not compulsory
under law, it significantly bolsters the presumption of its genuineness. In
that case, the subsequent unregistered Will was found to be clouded by
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suspicious circumstances and was rightly ignored in favour of the earlier
registered Will. Similarly, in H.V. Nirmala v. R. Sharmila (supra), the Hon’ble
Supreme Court reiterated that when a registered Will is duly proved through
reliable evidence, it must be preferred, especially when the alleged later Will
does not even refer to the existence or revocation of the earlier Will. The
Court emphasized that a subsequent Will should clearly express an intention
to revoke a previous one, failing which, its validity is doubtful. In Balbir Wati
v. Jagbir Singh Arora (supra), this court observed that when a person has
already executed a registered Will, it is normally expected that a subsequent
Will, intended to override it, should also be registered. Non-registration of
such subsequent Will raises a presumption of suspicion, and the burden lies
squarely on the propounder to dispel the same through convincing and
satisfactory evidence.
30. Thus, the settled legal position is that while registration of a
Will is not mandatory, it strongly supports its authenticity. A subsequent
unregistered Will, especially one not mentioning the earlier registered Will,
is inherently suspicious and the onus lies heavily on the propounder of such
a subsequent Will to remove all doubts and prove its validity.
31. In the present case, the earlier Will dated 09.06.2000 is
registered and has been proved in accordance with law. The later Will dated
07.08.2004 is unregistered, does not mention the prior Will, and is fraught
with multiple suspicious circumstances. In light of the principles enunciated
in the aforementioned authorities, this Court finds no reason to discard the
earlier registered Will in favour of the subsequent unregistered and
suspicious one.
32. Still further, apart from the fact that the legal and valid
execution of the Will dated 07.08.2004 (Ex.D1) has not been duly proved by
the testimonies of DW2 and DW4–who have been found unreliable–this
Court finds merit in the submission of the learned Senior Counsel for the
appellants, who has rightly pointed out several strong suspicious
circumstances surrounding the said Will.
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33. The most glaring suspicious circumstance arises from the
documented history of strained relations between the testator Sh.
Parmanand, and the beneficiary, defendant No.1–Ravi Kant. As evidenced
on record, the parties were involved in protracted and hostile litigation over
a span of nearly two decades. Notably, Sh. Parmanand had instituted a suit
in 1993 against defendant No.1, seeking a declaration that a decree dated
01.10.1993 was null and void on grounds of fraud. That suit was decreed in
2006 in favour of Parmanand, as seen in judgment Ex.P6. The appeal
preferred by defendant No.1 was dismissed by the Appellate Court on
08.10.2008 (Ex.P8). Furthermore, another suit was filed by defendant No.1
against his father and the present appellants in 1995, which too was
dismissed vide judgment dated 14.02.2011 (Ex.P10 and Ex.P11). This
sustained adversarial litigation continued from 1993 until even after the
death of the testator in 2005, which makes it highly improbable and
unnatural that Sh. Parmanand would, in 2004, execute a Will in favour of
defendant No.1.
34. Additionally, it is of significant relevance that the earlier Will
dated 09.06.2000 was not only validly executed but was also registered on
22.06.2000. However, the alleged subsequent Will dated 07.08.2004
contains no reference to the earlier registered Will. The absence of any
express revocation or mention of the prior Will is another material
suspicious circumstance, which casts serious doubt on the genuineness of
Ex.D1.
35. The First Appellate Court appears to have placed undue
reliance upon observations made by the Revenue Authorities in the course
of mutation proceedings to arrive at a finding that the Will dated 07.08.2004
stood proved. This approach is legally unsustainable. It is a settled position
of law that mutation proceedings are summary in nature and do not
adjudicate upon title or the legality of testamentary documents. Moreover,
it stands brought on record by the learned Senior Counsel for the appellants
that the mutation order was under challenge before the Financial
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Commissioner, and the operation of the order passed by the Commissioner
affirming the Assistant Collector’s decision had been stayed vide order dated
19.02.2013 (Ex.P12). Thus, reliance by the First Appellate Court on such
proceedings is misplaced.
36. Ld. Advocate for the respondent has sought to place reliance on
Randhir Singh v. Jasdev Singh, wherein this Court held that the propounder
of a Will is required to prove its execution and dispel all surrounding
suspicious circumstances, and that minor inconsistencies pointed out by
objectors do not suffice to discredit a valid Will.
37. However, the facts of the present case are clearly
distinguishable. Here, the suspicious circumstances are neither minor nor
trivial–they strike at the very root of the validity of the Will. Moreover,
while the Will dated 07.08.2004 is said to be the last Will of Parmanand,
who passed away on 12.03.2005, no explanation has been offered as to why
this Will, unlike the earlier one, was not registered. In the backdrop of his
prior registered Will (Ex.P4), the failure to register the subsequent Will,
especially when the testator lived for several months thereafter, further
enhances the cloud of suspicion surrounding its execution–though it is once
again clarified that registration is not mandatory, its absence, in the present
factual matrix, assumes evidentiary significance.
38. Learned counsel for the respondent has contended that PW1–
plaintiff Ramesh Kumar–admitted in his testimony that the Will dated
07.08.2004 was the last Will of Sh. Parmanand, and that this constitutes a
valid admission proving the Will’s validity. Ld. Counsel relied upon
Mritunyoy Sett v. Jadunath Basak (supra), wherein the Hon’ble Supreme
Court observed that an admission made by a party in a court of law
constitutes a valid and relevant piece of evidence and may be relied upon in
other proceedings. Since such an admission emanates from the person
against whom it is sought to be used, it is regarded as the best form of
evidence.
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39. This court finds the above contention to be devoid of merit. To
determine whether a statement amounts to an admission that can be used
against the person making it, the testimony must be read in its entirety.
Upon analysis of the testimony of PW1 Ramesh Kumar, it becomes apparent
that he only acknowledged the existence of the Will dated 07.08.2004
presented by defendant Ravi Kant before the Revenue Authorities during
the mutation proceedings. He clarified that both parties had produced their
respective Wills and that the Assistant Collector First Grade had sanctioned
the mutation based on the Will presented by Ravi Kant. However, nowhere
in his deposition did he admit that the said Will was legally and validly
executed by Sh. Parmanand. Merely referring to the Will dated 07.08.2004
as the ‘last Will’ does not constitute an admission of its legality or validity.
Accordingly, the argument raised by the respondents’ counsel regarding the
alleged admission lacks merit and cannot be accepted.
40. The question as to whether suspicious circumstances
surrounding a Will must be pleaded has also been addressed in judicial
precedents. In Baj Singh and others v. Nikko @ Jasvir Kaur (supra), this
Court emphasized the requirement of foundational pleadings to challenge a
Will on the ground of suspicious circumstances. It was held that:
“It would not be appropriate for the Court to address the argument with
regard to suspicious circumstances of the registered Will particularly when
the pleadings and the evidence are totally lacking to prove the same. The
party who wishes to assail the correctness of the registered Will on the
ground of suspicious circumstances is required to lay a foundation in the
pleadings itself and thereafter, lead material evidence to prove the same.
The other party who has propounded the Will cannot be taken by surprise
at a later stage.”
The Court further observed that while pleadings should be concise in
accordance with the Code of Civil Procedure, 1908, any party asserting a
positive fact must include it in their pleadings and substantiate it through
evidence. If this procedure is not followed, the propounder of the Will may
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be seriously prejudiced. The Court would confront the propounder with any
suspicious circumstances not so pleaded only if such circumstances are
visibly apparent and shockingly suspicious on the face of the record.
41. However, in B. Venkatamuni v. C.J. Ayodhya Ram Singh
(supra), the Hon’ble Supreme Court held that mere compliance with legal
formalities in the execution of a Will does not by itself prove its validity.
When there are suspicious circumstances surrounding a Will, the onus lies
on the propounder to dispel such doubts with cogent and convincing
evidence. The Court emphasized that the conscience of the Court must be
satisfied based on the totality of circumstances. The Supreme Court held
that once the propounder of a registered Will has discharged the initial
burden of proving its execution, the burden shifts to the contestant to bring
on record credible material creating doubt. Upon the contestant doing so,
the burden shifts back to the propounder to affirmatively satisfy the Court
that the testator knew the contents of the Will and executed it in a sound
and disposing state of mind.
42. Thus, while suspicious circumstances are generally expected to
be pleaded and substantiated with evidence, even when such circumstances
are not specifically pleaded, the Court retains its duty to evaluate the
totality of facts and satisfy its conscience before upholding the validity of a
Will, particularly where the circumstances surrounding its execution raise
reasonable doubts.
43. In view of the entire foregoing discussion, the judgment and
decree passed by the First Appellate Court are hereby set aside. It is
concluded that the defendant Ravi Kant–respondent herein–has failed to
establish the due execution and genuineness of the Will dated 07.08.2004,
which is enveloped in grave suspicious circumstances that remain
unexplained. Conversely, the Will dated 09.06.2000, duly registered on
22.06.2000 with the Sub-Registrar, stands proved on record and there exists
no cogent reason to disregard its authenticity.
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44. Consequently, the judgment of the Trial Court is restored, and
the suit is decreed in favour of the appellants – plaintiffs. Present appeal is
accepted accordingly. Each party shall bear their own costs.
(DEEPAK GUPTA)
28.04.2025 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether reportable? Yes
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