Punjab-Haryana High Court
(O&M) Kashmir Singh Etc vs Smt. Bheero @ Parkash Kaur Etc on 7 April, 2025
Neutral Citation No:=2025:PHHC:047704
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
****
RSA-559-1993 (O&M)
Reserved on: 02.04.2025
Pronounced on: 07.04.2025
Kashmir Singh and others
. . . . Appellants
Vs.
Smt. Bheero @ Prakash Kaur and others . . . . Respondents
CORAM: HON'BLE MR JUSTICE DEEPAK GUPTA
Argued by: - Mr. Baldev Raj Mahajan, Advocate, with
Ms. Nitika Geol and Ms. Harita Dhanda, Advocates,
for the appellants.
Mr. Maninder Singh Saini, for the respondents.
****
DEEPAK GUPTA, J.
Suit for joint possession of the suit property filed by the
plaintiffs-Smt. Bheero and her sister Smt. Kashmiro (contesting respondents
No.1 & 2 herein), was decreed by trial Court of ld. Sub Judge Ist Class, Taran
Taran vide judgment & decree dated 19.04.1990. The appeal filed by
contesting defendants No.1 to 7 (appellants herein) was dismissed by the
First Appellate Court of Ld. Additional District Judge, Amritsar vide his
judgment dated 28.10.1992.
2. It is against the aforesaid concurrent findings that the
defendants No.1 to 7 have approached this Court by way of the present
Regular Second Appeal.
3. 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.
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4. Undisputedly, three brothers namely Tara Singh, Chanan Singh
and Sadhu Singh were owners in possession of the suit property measuring
177 kanal 07 marla situated in village Rasulpur, Tehsil Tarn Taran, as per
details given in the plaint, in equal share. Chanan Singh died unmarried and
issueless on 20.05.1977. Plaintiffs are the daughters of Sadhu Singh;
whereas, defendants No.1 to 7 (appellants herein) are the widow and
children of Tara Singh.
5.1 The dispute pertains to the estate left behind by Chanan Singh.
The case of the plaintiffs i.e. daughters of Sadhu Singh is that after the death
of Chanan Singh, his estate was inherited by his two brothers namely Tara
Singh and Sadhu Singh. Both the brothers have since died and therefore,
plaintiffs being the successors-in-interest/daughters of Sadhu Singh are
entitled to 1/6th share each in the suit property. It is further the averment of
the plaintiffs that defendants No.1 & 2 – Kashmir Singh & Sukhdev Singh Ss/o
Tara Singh have got the mutation sanctioned in their favour on the basis of
alleged WILL of Chanan Singh in their favour.
5.2 Plaintiffs deny the factum and validity of the Will set up by
defendants No.1 & 2 and claimed that the said Will was forged and fictitious
document, by which plaintiffs are not bound. It is also alleged that Chanan
Singh (deceased) lacked testamentary capacity and was not competent to
execute the Will and therefore, after his death, his brother Sadhu Singh had
got 1/3 share, which after death of Sadhu Singh has been inherited by the
plaintiffs.
5.3 Defendants No.1 to 7 are the legal heirs of Tara Singh (another
brother of Chanan Singh); whereas, defendants No.8 to 16 (performa
respondent N: 3 to 11 herein) have been impleaded as party to the suit as
proforma defendants being co-sharers in the joint Khata.
5.4 On the basis of all the aforesaid averments, plaintiffs filed the
suit seeking joint possession of 1/6th share in the disputed property.
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6. Only defendants No.1 to 3 & 7 contested the suit. They pleaded
that during his life time, Chanan Singh had executed a registered Will dated
17.11.1976 bequeathing 2/3rd share in the suit property in favour of
defendant No.1-Kashmir Singh and 1/3rd share in favour of defendant No.2-
Sukhdev Singh. Mutation on the basis of the said Will was also sanctioned.
They controverted all other averments of the plaint and prayed for dismissal
of the suit.
7. In rejoinder, plaintiffs reiterated their claim.
8. Necessary issues were framed. Evidence produced by the
parties was taken on record.
9.1 Trial Court found that the Will dated 17.11.1976 (Ex.D1) relied
by the defendants was surrounded by the suspicious circumstances and so,
discarded the same. Suit was accordingly decreed on 19.04.1990 and
plaintiffs were held entitled for joint possession as owner of the suit land to
the extent of 1/6th share i.e. 1/2 share each out of 1/3rd share of Chanan
Singh in the total suit land.
9.2 The Appellate Court endorsed the above findings, while
dismissing the appeal filed by the defendants No.1 to 7 on 28.10.1992.
10.1 Assailing the aforesaid concurrent findings, it is argued by ld.
Senior Advocate appearing for the appellants-defendants that Will (Ex.D1)
relied by the defendants is a registered document. Sadhu Singh, Numberdar
of the village, and Bakshish Singh s/o Deva Singh are the attesting witnesses
to the said Will. One of the attesting witnesses namely Sadhu Singh
examined as DW2 has proved due execution of the said Will by Chanan
Singh. His testimony could not be impeached regarding the execution of the
Will. On the death of Chanan Singh on 20.05.1977, mutation in favour of
defendants No.1 and 2 was sanctioned on the basis of said Will.
10.2 It is pointed out that at that time, Tara Singh & Sadhu Singh i.e.
two brothers of Chanan Singh were very much alive but they never
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challenged either the validity of the Will or the mutation sanctioned on the
basis of that Will in favour of defendants No.1 & 2, despite the fact that Tara
Singh remained alive till 1982; whereas, Sadhu Singh, the father of the
plaintiffs, died on 13.01.1984. Learned counsel contends that since during
his lifetime Sadhu Singh never assailed the validity of the Will, therefore, it
does not lie in the mouth of children of Sadhu Singh i.e., the plaintiffs to
plead that no Will had been executed by Chanan Singh.
10.3 Learned Senior Advocate submits further that both the Courts
below have made out the case for discarding the Will on the basis of
suspicious circumstances despite the fact that plaintiffs had not pleaded any
suspicious circumstances surrounding the Will. Ld. Sr. Advocate has relied
upon Derek A.C. Lobo Vs. Ulric M.A. Lobo (Dead) by LRs and others, 2024
(2) RCR (Civil) 873, wherein it has been held by Hon’ble Supreme Court that
a party challenging the execution of a Will as suspicious must plead the
suspicious circumstances and then only the propounder would legally be
bound to remove those suspicious circumstances. Learned counsel has then
drawn attention to the pleadings of the parties so as to contend that neither
in the plaint nor in the replication, plaintiffs pleaded any suspicious
circumstances surrounding the Will and as such, the Courts below at their
own could not hold the Will to be surrounded by suspicious circumstances.
10.4 Learned Senior Advocate further contends that the mere
exclusion of certain relatives, such as Chanan Singh’s brothers, nephews &
nieces, in favour of only two nephews does not, by itself, render the Will
suspicious. The very purpose of a Will is to alter the natural line of
succession, and Chanan Singh’s decision to favor two specific nephews does
not constitute a suspicious circumstance.
10.5 With these submissions, ld. Senior Advocate prayed for setting
aside the impugned judgments and decrees as passed by the Courts below
and to dismiss the suit filed by the plaintiffs-respondents, by accepting this
appeal.
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11. Refuting the aforesaid contentions, it is argued by ld. counsel
for the respondents-plaintiffs that High Court has limited scope to interfere
in the concurrent findings of the Courts below. Learned Counsel contends
that findings of facts as recorded by the Courts below being concurrent,
there is no scope to interfere therein by this High Court. It is also contended
that by appreciating the evidence on record, simply because other view is
possible comparing to the view taken by the Courts below, that cannot be a
reason so as to upset the concurrent findings of the Courts below. With
these submissions, learned counsel prayed for dismissal of the appeal.
12. This Court has considered submissions of both the sides and
has appraised the record carefully.
13. As per the admitted position, Chanan Singh died unmarried and
issueless. At that time, he had two brothers Tara Singh and Sadhu Singh,
who were alive and so, in natural course of succession, the estate of Chanan
Singh would have been inherited by said brothers Tara Singh and Sadhu
Singh being his class II (entry 2) legal heirs as per Hindu Succession Act. Had
brothers of Chanan Singh pre-deceased him, then in natural succession, suit
property would have gone to plaintiffs & defendants N: 1 to 6, being
brother’s sons and brother’s daughter’s daughters i.e., Class II (entry 4) legal
heirs. However, in this case, on the death of Chanan Singh, the mutation
regarding his estate was sanctioned in favour of defendants No.1 and 2 on
the basis of Will dated 17.11.1976. Later on, both Tara Singh as well as
Sadhu Singh expired and have been succeeded by their respective legal
heirs. Plaintiffs are the daughters of Sadhu Singh, who have claimed
succession of the suit property on the basis of natural succession, whereas
defendants No.1 & 2 have set up a Will dated 17.11.1976. Courts below
have discarded the Will and decreed the suit on the basis of natural
succession.
14. There are mainly two aspects to be considered by the court, as
and when a WILL is set up. First is proof of due execution of the Will in
accordance with law and the onus to prove the said execution is upon the
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propounder. Once the valid execution of Will as per law is proved, then
comes the next aspect, as to whether the Will is surrounded by any
suspicious circumstances. In case, the first aspect i.e., due execution of the
WILL is not proved, there is no need to look into or consider the other
aspect i.e., suspicious circumstances.
15. In this case, perusal of the Will (Ex.D1) would reveal that it is a
registered document, whereby Chanan Singh bequeathed his estate in
favour of his two nephews namely Kashmir Singh and Sukhdev Singh i.e.
defendants No.1 & 2 to the extent of 2/3 and 1/3 share respectively, making
it clear that none else will be entitled for the same. The said Will dated
17.11.1976 was duly registered in the office of Sub Registrar, Taran Taran on
the same day i.e. 17.11.1976. The will is attested by two attesting witnesses
namely Sadhu Singh, Nambardar, Rasulpur, and Bakshish s/o Deva Singh,
also resident of Rasulpur i.e. the same place, where Chanan Singh used to
reside.
16. Let us consider the first aspect, as to ‘whether the execution of
the Will dated 17.11.1976 (Ex.D1) is proved or not?’. It may be noted that as
per legal position, 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:
(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.
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(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.”
17. 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.”
18. The conjoint reading of above provisions make 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
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
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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.
19. 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.
20. In the light of abovesaid legal position, it is required to be seen
as to whether the due execution of the Will dated 17.11.1976 set up by
defendants, has been proved in this case or not.
21. In the present case, in order to prove the due execution of Will
Ex.D1, defendants examined one of the attesting witnesses namely Sadhu
Singh, Numberdar as DW1. In his statement, Sadhu Singh testified that
Chanan Singh had executed the Will in favour of Kashmir Singh and Sukhdev
Singh in the sound disposing state of mind and on his own accord; that the
Will was read-over by the scribe to the parties and after admitting the same
to be correct, Chanan Singh signed the same in his (Sadhu Singh’s) presence
and also in the presence of Bakshish Singh and the scribe. He further
testified that Sahib Singh had scribed the Will, who has since expired;
whereas, other witness Bakshish Singh had also expired. DW1 Sadhu Singh
testified further that Will was also got registered by Chanan Singh, where all
of them appeared before the Sub-Registrar and where again, Chanan Singh
signed the Will and the attesting witnesses also affixed their
signatures/thumb impressions. He also proved endorsement Ex.DW1/A in
this regard and stated that Sub-Registrar had also explained the Will. This
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witness was cross-examined by counsel for the plaintiffs at length, but
nothing material could be elicited so as to discredit him.
22. Though the witness – DW1 Sadhu Singh pleaded ignorance as
to whether Chanan Singh had sustained injury in his hip bone about six
months prior to his death, but clearly stated that at the time of the Will and
also at the time of his death, Chanan Singh was in his sound disposing state
of mind and was an abled bodied person.
23. Perusal of the impugned judgments passed by the Courts below
would reveal that no clear cut finding has been given regarding the due
execution of the Will on the basis of aforesaid statement of DW1 Sadhu
Singh and rather, the Will has been discarded by noticing certain suspicious
circumstances and discrepancies in the statement of witnesses, inasmuch as
DW2-Kashmir, one of the defendants and beneficiary of the Will had stated
in his cross-examination that Chanan Singh had sustained hip bone injury
about six months prior to his death but clarifying that there was no fracture
and that there was injury only on the muscles. He had also stated that
Chanan Singh could walk with the help of stick at that time. On the other
hand, DW1 had stated that Chanan Singh could walk without the help of the
stick. It is also the observation of the trial Court that signature on the first
and second page of the Will of Chanan Singh differed. It is by noticing these
discrepancies and that the other natural heirs had been ignored and were
not mentioned in the Will, the Courts below ignored the Will.
24. I am afraid that approach of the Courts below was absolutely
erroneous. There is a gap of approximately six months during the execution
& registration of the Will dated 17.11.1976 and the date of death of Chanan
Singh, which is 20.05.1977. Even if it be assumed that Chanan Singh had
sustained some injury in the hip bone about six months prior to his death, it
does not mean that he was not in sound disposing state of mind so as to
execute the Will. Testimony to that effect as made by DW1 Sadhu Singh
could not be impeached in any manner, nor any evidence to the contrary
was produced by the plaintiffs
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25. The observation of the trial Court that signature on the first and
second page of the Will of Chanan Singh differed, is also based upon
conjectures in the absence of any cogent evidence to that effect and in the
absence of the examination of any handwriting and finger print expert by
the plaintiffs, who were opposing the Will.
26. Hon’ble Supreme Court has observed in O. Bharathan Vs. K.
Sudhakaran and another, 1996 AIR (Supreme Court) 1140 that when Court
takes upon itself the hazardous task of adjudicating upon the genuineness,
authenticity of the signature in question, even without assistance of a skilled
and trained person, whose services could have been easily availed of,
though there is no legal bar for the Judge to use his own eyes to compare
the disputed writing, but the Judge is not right in ignoring the question
administered by the Apex Court to the Courts to be adopted in State Vs.
Pali Ram, AIR 1979 Supreme Court 14. In K.R. Aravindakshan Nair Vs. M/s
Essen Bhankers, Pathanamthitta and another, 2007(4) RCR (Civil) 214, it
has been held by Kerala High Court that though there is no bar for the Court
to compare the admitted signature/writings with the disputed
signatures/writings and come to its own conclusion, it would be more
prudent to require the opinion of an expert and that Court should not have
ventured to form an opinion merely because Section 73 of the Evidence Act
enables the Courts to compare the signatures.
27. In the aforesaid circumstances, there was no reason
whatsoever to ignore the testimony of DW1-Sadhu Singh, one of the
attesting witnesses of the Will, who proved due and valid execution of the
Will by Chanan Singh as per the requirements of the law. The other attesting
witness and scribe had already expired, as per his testimony. As per law,
though a Will is required to be attested by two witnesses, but in order to
prove the same, examination of only one of them is required, which has
been done in this case by the propounder of the Will i.e. defendants. As
such, the finding of the Courts below to the effect that validity of Will is not
proved, is hereby reversed.
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28. Coming to the second aspect, as to whether Will Ex.D1 is
surrounded by any suspicious circumstances, it is important to take note of
the legal position to the effect that a party alleging that a Will is suspicious,
must specifically plead those circumstances. Only then does the onus shift
to the propounder to dispel them.
29. Reference can be made to Derek A.C. Lobo (supra), wherein it
has been held by Hon’ble Supreme Court that the party challenging
execution of a Will as suspicious must plead the suspicious circumstances
and then only the propounder would be legally bound to remove these
suspicious circumstances. It will be relevant to reproduce the observations
made by Hon’ble Supreme Court in this regard, which read as under: –
“15. Now, we will refer to the cited suspicious circumstances. In the light of
the decision in Gurdial Kaur & Ors. v. Kartar Kaur & Ors., (1998) 4 SCC 384
there can be no doubt with respect to the position that when suspicious
circumstances exist about the valid execution of a Will, it is the duty of the
person seeking declaration about the validity of the Will to dispel such
suspicious circumstances. In this context, we think it not inappropriate to
refer to a decision of the High Court of Madhya Pradesh, in Nathia Bai and
Ors. v. Gangaram and Ors. (2010) 1 MPLJ 140, with which we agree,
rendered relying on the decisions of this Court in Meenakshiammal (Dead)
through Lrs. And others v. Chandrasekharan and Another, (2005) 1 SCC
280 and in P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar, AIR
1995 SC 1852, that a party challenging the execution of a Will as suspicious
must plead the suspicious circumstances and then only the propounder
would legally be bound to remove these suspicious circumstances.
In Nathia Bai’s case it was held thus:-
“11. The Will is required to be proved just like any other document by
adducing the additional evidence to prove the ingredients as envisaged
under Section 63(c) of the Succession Act by examining the attesting
witness according to Section 68 of the Evidence Act. It is also well settled
that the propounder of the Will is required to prove the Will by removing
all suspicious circumstances. Thus, if suspicious circumstances would havePage 11 of 21
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been pleaded by the defendants, then only the plaintiffs, who are the
propounder of the Will, were legally bound to remove those suspicious
circumstances. The contestant opposing the Will, according to me, was
required to bring the material on record so that the Will can be said to be
a suspicious document and in that event the onus would shift back on the
propounder of the Will to satisfy the Court by adducing positive evidence
that the Will is not suspicious…….
(Underline Supplied)
In the decision in Meenakshiammal’s case (supra), it was held in
paragraphs 19 and 20 thus:-
“19. In the case of Chinmoyee Saha v. Debendra Lal Saha, AIR 1985 Cal
349 it has been held that if the propounder takes a prominent part in the
execution of the will, which confers a substantial benefit on him, the
propounder is required to remove the doubts by clear and satisfactory
evidence. Once the propounder proves that the will was signed by the
testator, that he was at the relevant time in a sound disposing state of
mind, that he understood the nature and effect of the disposition and put
his signature out of his own free will, and that he signed it in presence of
the witnesses who attested it in his presence, the onus, which rests on the
propounder, is discharged and when allegation of undue influence, fraud
or coercion is made by the caveator, the onus is on the caveator to prove
the same.
20. In the case of Ryali Kameswara Rao v. Bendapudi Suryaprakasarao,
AIR 1962 AP 178, this Court while discussing the provisions of Section 63
of the Succession Act, 1925, has held that the suspicion alleged must be
one inherent in the transaction itself and not the doubt that may arise
from conflict of testimony which becomes apparent on an investigation of
the transaction. That suspicious circumstances cannot be defined
precisely. They cannot be enumerated exhaustively. They must depend
upon the facts of each case. When a question arises as to whether a will is
genuine or forged, normally the fact that nothing can be said against the
reasonable nature of its provisions will be a strong and material element
in favour of the probabilities of the will. Whether a will has been executed
by the testator in a sound and disposing state of mind is purely a question
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disclosed and the nature and quality of the evidence adduced. When the
will is alleged to have been executed under undue influence, the onus of
proving undue influence is upon the person making such allegation and
mere presence of motive and opportunity are not enough.
(Underline supplied)
The decision in Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC
85, in so far as it is relevant, reads thus:
“8. The requirement of proof of a will is the same as any other document
excepting that the evidence tendered in proof of a will should additionally
satisfy the requirement of Section 63 of the Evidence Act, 1872. If after
considering the matters before it, that is, the facts and circumstances as
emanating from the material available on record of a given case, the court
either believes that the will was duly executed by the testator or considers
the existence of such fact so probable that any prudent person ought,
under the circumstances of that particular case, to act upon the
supposition that the will was duly executed by the testator, then the
factum of execution of will shall be said to have been proved. The delicate
structure of proof framed by a judicially trained mind cannot stand on
week foundation nor survive any inherent defects therein but at the same
time ought not to be permitted to be demolished by wayward pelting of
stones of suspicion and supposition by wayfarers and waylayers. What
was told by Baron Alderson to the jury in R. v. Hodge may be apposite to
some extent:
‘The mind is apt to take a pleasure in adapting circumstances to one
another and even in straining them a little, if need be, to force them to
form parts of one connected whole, and the more ingenious the mind of
the individual, the more likely was it, considering such matters, to
overreach and mislead itself, to supply some little link that is wanting, to
take for granted some fact consistent with its previous theories and
necessary to render them complete.’The conscience of the court has to be satisfied by the propounder of will
adducing evidence so as to dispel any suspicions or unnatural
circumstances attaching to a will provided that there is something
unnatural or suspicious about the will. The law of evidence does not
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them to demolish a fact otherwise proved by legal and convincing
evidence. Well-founded suspicion may be a ground for closer scrutiny of
evidence but suspicion alone cannot form the foundation of a judicial
verdict – positive or negative.
9. It is well-settled that one who propounds a will must establish the
competence of the testator to make the will at the time when it was
executed. The onus is discharged by the propounder adducing prima facie
evidence proving the competence of the testator and execution of the will
in the manner contemplated by law. The contestant opposing the will may
bring material on record meeting such prima facie case in which event the
onus would shift back on the propounder to satisfy the court affirmatively
that the testator did know well the contents of the will and in sound
disposing capacity executed the same. The factors, such as the will being a
natural one or being registered or executed in such circumstances and
ambience, as would leave no room for suspicion, assume significance. If
there is nothing unnatural about the transaction and the evidence
adduced satisfies the requirement of proving a will, the court would not
return a finding of ‘not proved’ merely on account of certain assumed
suspicion or supposition. Who are the persons propounding and
supporting a will as against the person disputing the will and the pleadings
of the parties would be relevant and of significance.
(Underline supplied)
In the decision in P.P.K. Gopalan Nambiar‘s case (supra), this Court held in
paragraph 4 thus:-
“4. On appeal, the sub-ordinate Judge has given various reasons to accept
the validity of the will. One of the reasons is that it is a registered will and
the endorsement by the Registrar would show that the testator was in a
sound disposing state of mind and that it was executed out of her free will
and that, therefore, the discrepancy in the evidence of DW 2, an attestor
does not vitiate the validity of the will. On appeal, the learned Single Judge
without going into the evidence, has stated in one sentence that he agrees
with the reasoning of the trial court and does not agree with the
reasoning of the appellate court. We are at a loss to appreciate the view
taken by the learned Judge. The High Court also stated that the whole of
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circumstance. It is difficult to accept the reasoning of the learned Judge.
Admittedly, the will was executed and registered on 1-11- 55 and she died
8 years thereafter in the year 1963. When the appellant had propounded
the will in his written statement, nothing prevented either the respondent
or any of the contesting defendants to file a rejoinder i.e. additional
written statement with leave of the court under Order 8, Rule 9 pleading
the invalidity of the will propounded by the appellant. Nothing has been
stated in the pleadings. Even in the evidence when the appellant was
examined as DW 1 and his attestation was as DW 2, nothing was stated
with regard to the alleged pressure said to have been brought about by
the appellant to execute the will. In the cross-examination by the first
respondent, no attempt was even made to doubt the correctness of the
Will.
5. Under these circumstances, the suspicion which excited the mind
of the District Munsif is without any basis and he picked them from his hat
without fact-foundation. The Subordinate Judge had rightly considered all
the circumstances and upheld the will. The High Court, without examining
the evidence, by merely extracting legal position set out by various
decisions of this Court has upset the finding of the fact recorded by the
Subordinate Judge in one sentence. 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.”
(Underline supplied)
16. In the light of the aforesaid decisions, it can be safely said that once the
burden to prove is discharged by the propounder in terms of Section 63 of
the Succession Act and Section 68 of the Evidence Act, and by adducing
prima facie evidence proving the competence of the testator, the onus is
on the contestant opposing to show prima facie the existence of suspicious
circumstances so as to shift the onus on the propounder to dispel them.
Without knowing the circumstances, which according to the contestant
opposing are suspicious, how will the propounder be able to dispel them
and to convince the court about its genuineness and validity. We are saying
that the contestant opposing the Will has to raise surrounding suspicious
circumstances specifically and not vaguely or in a general manner. A case of
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well-founded suspicion has to exist to cause shifting of onus back to the
propounder once he discharged his burden to prove the execution of the
Will. We may hasten to add that we shall not be understood to have held
that failure of the party/parties to plead suspicious circumstances would
automatically make the court to take a Will as validly proved even where
the circumstance(s) raising doubt is inherent in the document. Certainly, in
such circumstances the propounder has to convince the court and dispel
such suspicious circumstances.”
30. It is, thus, evident from the legal position as elucidated above
that while the propounder is legally bound to address and dispel suspicious
circumstances, this obligation arises only when such concerns are
specifically pleaded by the contesting party. The objector must clearly
articulate the suspicious circumstances, rather than relying on vague or
general assertions. A well-founded suspicion must exist to shift the onus
back to the propounder after they have initially proved the execution of the
Will. However, the absence of specific pleadings does not automatically
validate the Will, if the document itself contains inherent suspicious
features. In such cases, the propounder must still satisfy the court and dispel
the doubts arising from the document’s content. Importantly, the suspicion
must stem from the Will itself, not merely from conflicting testimony that
emerges during its examination.
31.1 In the present case, pleadings of the parties would reveal that
no suspicious circumstances were pleaded by the plaintiffs-respondents.
31.2 In this regard, para No.5 of the plaint is as under: –
‘That defendant No.1 and 2 allege that Shri Chanan Singh executed a Will in
their favour which facts is denied. In case any Will is produced or proved on
the record, the same is illegal false and fictitious documents. The plaintiffs
are not bound by the said Will. Shri Chanan Singh died intestate. He lacked
testamentary capacity. He was not competent to execute any Will.’31.3 In response to the aforesaid pleading of the plaintiffs,
defendants pleaded in their written statement as under: –
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‘4. That para No4. of the plaint in admitted correct to the extent that
Chanan Singh died on 20-5-77. Rest of the para is denied. Chanan Singh in
his life time, in a sound disposing mind of his own free will executed a valid
registered will in favour of defendants Kashmir Singh, Sukhdev Singh, who
are the nephews of Chanan Singh. They used to serve him and because of
the services rendered by them, out of love and affection Chanan Singh
bequeathed his estate in favour of Kashmir Singh and Sukhdev Singh and
mutation respect of the estate of Chanan Singh has also been sanctioned in
favour of answering defendants. All other allegations in this para are wrong
and incorrect.
5. That para No.5. of the plaint is wrong and incorrect. Reply to this
para No.4. of the plaint may also be read as a part of reply to this para.
Chanan Singh in his life time in a sound disposing mind of his own free will,
executed a valid registered will in favour of the answering defendants. Itis
wrong to suggest that Chanan Singh did not execute a valid registered will.
The same has also been implemented in the revenue record after his death.
The plaintiff did not challenge the will. They are also estopped by their act
and conducts from challenging the same. It is wrong to suggest that Chanan
Singh lacked testamentary. Rest of the para is denied.’
31.4 The corresponding response to the plaintiffs in the rejoinder, is
as under: –
‘4. That para No. 4 of the written statement is denied being wrong and
incorrect and that of the plaint is correct and affirmed. It is denied that Shri
Chanan Singh executed any registered will dated 16.11.1976 in favour of
Kashmir Singh and Sukhdev Singh. It is further denied that Shri Chanan
Singh had sound disposing mind and a free will before his death. Shri
Chanan Singh was incompetent to execute any will. The land in dispute was
an ancestral property in the hands of Shri Chanan Singh, he had no right to
bequeath his property in favour of defendants No. 1 and 2. It is further
denied that he had any love and affection towards defendants No. 1 and 2.
In case any will is produced or proved on the record the same is false and
factitious documents. Rest of the para is denied being wrong and incorrect.
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5. That para No.5 of the written statement is denied being wrong and
incorrect and that of the plaint is correct and affirmed, it is further
submitted that para No. 4 of the replication be read as part of this para.’
32. It is, thus, clear from the aforesaid pleadings that except the
denial of execution of the WILL by Chanan Singh and his competency to
execute the WILL, or that he was not in disposing state of mind, no
suspicious circumstance had been pleaded by the plaintiffs.
33. As far as the disposing state of mind of the Chanan Singh at the
time of execution of the Will is concerned, it has already been observed that
the same is duly proved on record by the testimony of one of the attesting
witnesses to the WILL Ex.D1 i.e., DW1-Sadhu Singh and the plaintiffs could
not rebut this evidence by way of cogent evidence. Simply because Chanan
Singh had sustained some injuries on his hip six months prior to his death,
could not be a reason to infer that he was not having the sound disposing
state of mind, especially when Sadhu Singh DW1 candidly stated that till the
time of his death, Chanan Singh was having sound disposing state of mind.
34. Although, there was no pleading about any suspicious
circumstance, but the First Appellate Court observed as suspicious
circumstance that other natural legal heirs have been ignored by the
testator Chanan Singh.
35. As has been noticed earlier that at the time, when Chanan
Singh died, he had two living brothers Tara Singh and Sadhu Singh, who
would have succeeded him being Class-II legal heirs in the natural course of
succession, in the absence of any Class-I legal heir, as Chanan Singh had died
unmarried and issueless. Tara Singh had six children – defendants N: 1 to 6;
whereas, Sadhu Singh had two children – plaintiffs. Instead of preferring his
two brothers, who were alive at that time; or all the nephews/nieces, in
case Chanan Singh preferred two nephews Karishma Singh and Sukhdev
Singh i.e. defendant No.1& 2, it cannot be stated to be suspicious
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circumstances. The whole purpose of executing a Will is to disturb the
natural line of succession.
36. In Ramabai Padmakar Patil (D) through Lrs & Ors. Vs.
Rukminibai Vishnu Vekhande & Ors, 2003(3) Civil Court Cases 0592, it has
been held by Hon’ble Supreme Court that suspicion means doubt,
conjecture or mistrust. Simply because lesser share has been given or a
natural heir has been deprived, this by itself, without anything more is not a
suspicious circumstance especially in a case where the bequest is made in
favour of an offspring.
37. In Bhajan Kaur Vs. Harjit Singh, 2010 (48) RCR Civil) 73, it has
been held by this Court that it is not uncommon in the northern part of this
country that agriculturists had the tendency to pass on their property in
favour of their male lineal descendants and in the absence of male lineal
descendants, even in favour of male collaterals in preference to the
daughters so as to keep the property within family.
38. In the present case, Chanan Singh did not have offspring of his
own. He preferred two of his nephews instead of brothers or other
nephews/nieces and as such, this in itself cannot be considered as
suspicious circumstance.
39. In view of above discussion, it is held that there was no cogent
evidence to come to the conclusion that Will was surrounded by any
suspicious circumstance. Though plaintiffs – the opponents of the Will had
not pleaded about the suspicious circumstances, still the defendants/
propounder of the Will were able to satisfy the conscious of the Court to
dispel the alleged suspicious circumstances.
40. As such, the findings of the Courts below is hereby reversed and
it is held that by virtue of Will dated 17.11.1976 (Ex.D1) of Chanan Singh,
defendants No.1 & 2 had become owner of the estate of Chanan Singh in
the suit property to the extent of 2/3 & 1/3 share, respectively as per the
contents of the WILL.
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41. It is also important to notice that impugned WILL was executed
on 17.11.1976 and after the death of Chanan Singh on 20.05.1977, mutation
based on the WILL, was sanctioned in favour of defendants N: 1 & 2, without
any objection by two living brothers – Tara Singh & Sadhu Singh of Chanan
Singh, who would have succeeded to the estate of Chanan Singh in natural
course. Tara Singh remained alive till 1982; whereas, Sadhu Singh, the father
of the plaintiffs, died on 13.01.1984. During their lifetime, they never
assailed the validity of the Will. On the death of Sadhu Singh, mutation N:
1966 of his estate was sanctioned in favour of his daughters – plaintiffs, as
reflected in Jamabandi for the year 1983-84 Ex.P5 in the remarks column. In
the absence of any pleading to the contrary, it is apparent that plaintiffs
were well aware of the WILL since date of its execution or at least since the
time of sanction of mutation in favour of defendants N: 1 & 2 on the death
of Chanan Singh on 20.05.1977. However, present suit was brought by the
plaintiffs on 10.06.1988, alleging the WILL to be not binding on them.
Apparently, suit is also barred by limitation.
42. Coming to the contention raised by Ld. counsel for the
respondents that High Court should not interfere in the concurrent findings
of facts, it has no merit. No doubt that High Court has limited scope to
interfere in the concurrent findings of facts recorded by the Courts below,
but the High Court is well within its power to see that there is no illegality or
perversity in the findings.
43. In RSA-4958-2012 titled as Lakhpat Rai & Others vs. J.D Gupta
& Others, decided on 14.10.2024, after referring to various precedents of
Hon’ble Supreme Court including Avtar Singh & ors. v. Bimla Devi & ors.
(2021) 13 SCC 816; Shivali Enterprises v. Godawari 2022 SCC Online SC
1211; Municipal Committee, Hoshiarpur v. Punjab State Electricity Board
2010 (13) SCC 2016; and Kashmir Singh vs. Harnam Singh 2008 AIR
Supreme Court 1749, it has been held by this court as under:
“60. To conclude, legal principles, which can be culled out are that
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Courts below but it is not an absolute rule. There are some exceptions for
interference by the High Court, when it is found that:
When finding of fact by the Courts below is vitiated by non
consideration of material evidence or erroneous approach.
The Courts have drawn wrong inferences from the proved
facts by applying the law erroneously.
The Courts have wrongly cast the burden of proof.
When decision is based upon no evidence, which would mean
that not only there is total dearth of evidence but also, where
if the evidence taken as a whole, is not reasonably capable of
supporting the finding.
When the judgment of the final Court of fact is based on
misinterpretation of documentary evidence or on
consideration of inadmissible evidence or ignoring material
evidence.”
44. In view of the above exceptions, a review of the evidence of
this case reveals that the courts below drew incorrect inferences by
misapplying the law. Their judgments are based on misinterpretation of
documentary evidence, reliance on inadmissible material, and omission of
crucial evidence. Overall, the findings are not reasonably supported by the
evidence on record. As such, the contention of the learned counsel for the
contesting respondents against interference with the concurrent findings is
without merit and is accordingly rejected.
45. On account of the entire discussion as above, present appeal is
hereby accepted. Judgments and decrees as passed by the Courts below are
hereby set aside. The suit, as filed by the plaintiffs-respondents herein, is
hereby dismissed, leaving the parties to bear their own costs.
(DEEPAK GUPTA)
07.04.2025 JUDGE
Vivek
Whether speaking/reasoned? Yes
Whether reportable? Yes
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