Madhya Pradesh High Court
Rajkumar vs Vijay Singh on 28 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 28th OF JULY, 2025
SECOND APPEAL No. 2510 of 2024
RAJKUMAR
Versus
VIJAY SINGH AND OTHERS
Appearance:
Shri Rohit Bansal - Advocate for appellant.
Shri S.S. Dhakad- Advocate for respondent No.1/Caveator.
Shri Dilip Awasthi - Government Advocate for respondent No.10/State.
JUDGMENT
This Second Appeal, under Section 100 of CPC, has been filed against the
judgment and decree dated 29.08.2024 passed by II District Judge, Vidisha (M.P.) in
RCA No.22/2023 as well as judgment and decree dated 15.02.2023 passed by III
Civil Judge, Senior Division, Vidisha (M.P.) in RCS No.155-A/2018.
2. Appellant is the defendant who has lost his case from both the Courts below.
3. The facts, necessary for disposal of present appeal, in short, are that
plaintiffs/respondents filed a suit for declaration of title and permanent injunction
pleading inter alia that plaintiff No.1(a) Vijay Singh and plaintiff No.1(b) Prakash
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are the sons of late Ramprasad whereas plaintiffs No.2 to 8 are the legal
representatives of Balaram. Balaram has expired. It was alleged that disputed land
total area 0.784 hectare is situated at Village Gularkhedi, Tahsil Gulabganj, District
Vidisha. According to the plaintiffs, details of disputed land is mentioned in the
paragraph 2 of the plaint. In the said disputed property, Ram Prasad S/o Baldev
Prasad had share to the extent of 1.521 hectare and it was claimed that defendant
No.1 has wrongly got the Survey No.43/1/1 area 1.521 hectare recorded in his name
on the basis of a forged Will. Accordingly, Will on the basis of which defendant
No.1 has got his name mutated was challenged in the present suit. It was claimed
that on the basis of forged Will, defendant No.1 obtained an order of mutation dated
30.11.2015 in spite of objection by the plaintiffs. Thereafter, plaintiffs filed Appeal
No.34/Appeal/2015-16 which was dismissed by SDO, Gyaraspur on the question of
limitation. It was claimed that there was no reason for Ram Prasad to execute the
Will in favour of defendant No.1. It was alleged that on 02.11.2018 defendant No.1
came to the spot and started claiming that since his name has been mutated in the
revenue records, therefore, he would take possession of the property and would
alienate the same, whereas it was claim of plaintiffs that defendant No.1 has no right
or title.
Defendant No.1 filed his written statement and claimed that Ram Prasad had
executed the Will in favour of defendant No.1 and on the basis of said Will,
defendant No.1 has got his name mutated in the revenue records. It was pleaded that
plaintiffs are not in possession, therefore, suit without prayer for possession is not
maintainable. Further, the plaintiffs are neither legal representatives of Ramprasad
nor they are entitled to get their names mutated in the revenue records.
4. The Trial Court, after framing the issues and recording the evidence, decreed
the suit and it was held that plaintiffs are the owners and are in posession of Survey
No.43/1/1 area 1.521 hectares situated at Village Gulakhedi, Tahsil Gulabganj,
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District Vidisha and the defendant No.1 was permanently restrained from interfering
with the peaceful possession of plaintiffs.
5. Being aggrieved by judgment and decree passed by Trial Court, appellants
preferred an appeal which too has been dismissed by impugned order.
6. Challenging the judgment and decree passed by Courts below, it is submitted
by counsel for appellants that it is true that plaintiffs have not examined any
attesting witness in support of the Will (Ex.D/2), but attesting witnesses were
examined by plaintiffs in the mutation proceedings and, therefore, evidence led by
plaintiffs in the mutation proceedings may be considered to adjudicate the
correctness of Will and proposed the following substantial questions of law:-
“i) Whether, learned courts below have erred in decreeing the suit of
plaintiffs without considering the relevant documents and evidence on
record ?
ii) Whether, learned courts below have erred in granting a decree of
declaration of exclusive title contrary to the pleadings of plaintiffs
regarding jointness?
iii) Whether, learned courts below have erred in holding the WILL to be
forged despite the fact that the signature on the same has been admitted
by the plaintiffs ?
iv) Whether, the courts below have erred in comparing the signatures on
to themselves, exercising the jurisdiction of an exert though such an
exercise has been specifically prohibited by Hon’ble Apex Court?
v) Whether, learned courts below have erred in deciding the issue of
possession contrary to evidence of parties ?
vi) Whether, learned courts below have erred in granting the decree of
injunction contrary to the pleadings of plaintiffs ?
vii) Whether, learned courts below have erred in holding the WILL,
executed in favour of defendant to be not proved?
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viii) Whether, the judgment and decree passed by learned courts below
and findings recorded therein being based on non consideration of
evidence and pleadings and being based on wrong assumptions and
contrary to order 41 rule 31 and 20 rule 5 CPC, are sustainable?”
Before considering the question regarding correctness of Will, this Court
would like to consider the law governing the field of Will.
7. A Will may be surrounded by suspicious circumstances and burden is on
the propounder of the Will not only to prove the document but to remove all the
suspicious circumstances. The Supreme Court in the case of H. Venkatachala
Iyengar v. B.N. Thimmajamma and others reported in AIR 1959 SC 443 has
held as under:
“18. What is the true legal position in the matter of proof of
wills? It is well-known that the proof of wills presents a
recurring topic for decision in courts and there are a large
number of judicial pronouncements on the subject. The party
propounding a will or otherwise making a claim under a will is
no doubt seeking to prove a document and, in deciding how it
is to be proved, we must inevitably refer to the statutory
provisions which govern the proof of documents. Sections 67
and 68 of the Evidence Act are relevant for this purpose.
Under Section 67, if a document is alleged to be signed by any
person, the signature of the said person must be proved to be in
his handwriting, and for proving such a handwriting under
Sections 45 and 47 of the Act the opinions of experts and of
persons acquainted with the handwriting of the person
concerned are made relevant. Section 68 deals with the proof
of the execution of the document required by law to be
attested; and it provides that such a document shall not be used
as evidence until one attesting witness at least has been called
for the purpose of proving its execution. These provisions
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be satisfied by the party who relies on a document in a court of
law. Similarly, Sections 59 and 63 of the Indian Succession Act
are also relevant. Section 59 provides that every person of
sound mind, not being a minor, may dispose of his property by
will and the three illustrations to this section indicate what is
meant by the expression “a person of sound mind” in the
context. Section 63 requires that the testator shall sign or affix
his mark to the will or it shall be signed by some other person
in his presence and by his direction and that the signature or
mark shall be so made that it shall appear that it was intended
thereby to give effect to the writing as a will. This section also
requires that the will shall be attested by two or more
witnesses as prescribed. Thus the question as to whether the
will set up by the propounder is proved to be the last will of
the testator has to be decided in the light of these provisions.
Has the testator signed the will? Did he understand the nature
and effect of the dispositions in the will? Did he put his
signature to the will knowing what it contained? Stated
broadly it is the decision of these questions which determines
the nature of the finding on the question of the proof of wills.
It would prima facie be true to say that the will has to be
proved like any other document except as to the special
requirements of attestation prescribed by Section 63 of the
Indian Succession Act. As in the case of proof of other
documents so in the case of proof of wills it would be idle to
expect proof with mathematical certainty. The test to be
applied would be the usual test of the satisfaction of the
prudent mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike other
documents the will speaks from the death of the testator, and
so, when it is propounded or produced before a court, the
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whether it is his will or not; and this aspect naturally
introduces an element of solemnity in the decision of the
question as to whether the document propounded is proved to
be the last will and testament of the departed testator. Even so,
in dealing with the proof of wills the court will start on the
same enquiry as in the case of the proof of documents. The
propounder would be called upon to show by satisfactory
evidence that the will was signed by the testator, that the
testator at the relevant time was in a sound and disposing state
of mind, that he understood the nature and effect of the
dispositions and put his signature to the document of his own
free will. Ordinarily when the evidence adduced in support of
the will is disinterested, satisfactory and sufficient to prove the
sound and disposing state of the testator’s mind and his
signature as required by law, courts would be justified in
making a finding in favour of the propounder. In other words,
the onus on the propounder can be taken to be discharged on
proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the
will may be surrounded by suspicious circumstances. The
alleged signature of the testator may be very shaky and
doubtful and evidence in support of the propounder’s case that
the signature, in question is the signature of the testator may
not remove the doubt created by the appearance of the
signature; the condition of the testator’s mind may appear to be
very feeble and debilitated; and evidence adduced may not
succeed in removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made in the will may
appear to be unnatural, improbable or unfair in the light of
relevant circumstances; or, the will may otherwise indicate that
the said dispositions may not be the result of the testator’s free
will and mind. In such cases the court would naturally expect
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before the document is accepted as the last will of the testator.
The presence of such suspicious circumstances naturally tends
to make the initial onus very heavy; and, unless it is
satisfactorily discharged, courts would be reluctant to treat the
document as the last will of the testator. It is true that, if a
caveat is filed alleging the exercise of undue influence, fraud
or coercion in respect of the execution of the will propounded,
such pleas may have to be proved by the caveators; but, even
without such pleas circumstances may raise a doubt as to
whether the testator was acting of his own free will in
executing the will, and in such circumstances, it would be a
part of the initial onus to remove any such legitimate doubts in
the matter.
21. Apart from the suspicious circumstances to which we have
just referred, in some cases the wills propounded disclose
another infirmity. Propounders themselves take a prominent
part in the execution of the wills which confer on them
substantial benefits. If it is shown that the propounder has
taken a prominent part in the execution of the will and has
received substantial benefit under it, that itself is generally
treated as a suspicious circumstance attending the execution of
the will and the propounder is required to remove the said
suspicion by clear and satisfactory evidence. It is in connection
with wills that present such suspicious circumstances that
decisions of English courts often mention the test of the
satisfaction of judicial conscience. It may be that the reference
to judicial conscience in this connection is a heritage from
similar observations made by ecclesiastical courts in England
when they exercised jurisdiction with reference to wills; but
any objection to the use of the word “conscience” in this
context would, in our opinion, be purely technical and
academic, if not pedantic. The test merely emphasizes that, in
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before the court is the last will of the testator, the court is
deciding a solemn question and it must be fully satisfied that it
had been validly executed by the testator who is no longer
alive.
22. It is obvious that for deciding material questions of fact
which arise in applications for probate or in actions on wills,
no hard and fast or inflexible rules can be laid down for the
appreciation of the evidence. It may, however, be stated
generally that a propounder of the will has to prove the due
and valid execution of the will and that if there are any
suspicious circumstances surrounding the execution of the will
the propounder must remove the said suspicions from the mind
of the court by cogent and satisfactory evidence. It is hardly
necessary to add that the result of the application of these two
general and broad principles would always depend upon the
facts and circumstances of each case and on the nature and
quality of the evidence adduced by the parties. It is quite true
that, as observed by Lord Du Parcq
in Harmes v. Hinkson [(1946) 50 CWN 895] “where a will is
charged with suspicion, the rules enjoin a reasonable
scepticism, not an obdurate persistence in disbelief. They do
not demand from the Judge, even in circumstances of grave
suspicion, a resolute and impenetrable incredulity. He is never
required to close his mind to the truth”. It would sound
platitudinous to say so, but it is nevertheless true that in
discovering truth even in such cases the judicial mind must
always be open though vigilant, cautious and circumspect.
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29. According to the decisions in Fulton v. Andrew [(1875) LR
7 HL 448] “those who take a benefit under a will, and have
been instrumental in preparing or obtaining it, have thrown
upon them the onus of showing the righteousness of theSignature Not Verified
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transaction”. “There is however no unyielding rule of law
(especially where the ingredient of fraud enters into the case)
that, when it has been proved that a testator, competent in
mind, has had a will read over to him, and has thereupon
executed it, all further enquiry is shut out”. In this case, the
Lord Chancellor, Lord Cairns, has cited with approval the
well-known observations of Baron Parke in the case
of Barry v. Butlin [(1838) 2 Moo PC 480, 482] . The two rules
of law set out by Baron Parke are:”first, that the onus
probandi lies in every case upon the party propounding a will;
and he must satisfy the conscience of the court that the
instrument so propounded is the last will of a free and capable
testator”; “the second is, that, if a party writes or prepares a
will under which he takes a benefit, that is a circumstance that
ought generally to excite the suspicion of the court and calls
upon it to be vigilant and zealous in examining the evidence in
support of the instrument in favour of which it ought not to
pronounce unless the suspicion is removed, and it is judicially
satisfied that the paper propounded does express the true will
of the deceased”. It is hardly necessary to add that the
statement of these two rules has now attained the status of a
classic on the subject and it is cited by all text books on wills.
The will propounded in this case was directed to be tried at the
Assizes by the Court of Probate. It was tried on six issues. The
first four issues referred to the sound and disposing state of the
testator’s mind and the fifth to his knowledge and approval of
the contents of the will. The sixth was whether the testator
knew and approved of the residuary clause; and by this last
clause the propounders of the will were made the residuary
legatees and were appointed executors. Evidence was led at
the trial and the Judge asked the opinion of the jurors on every
one of the issues. The jurors found in favour of the
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opponents on the sixth. It appears that no leave to set aside the
verdict and enter judgment for the propounders
notwithstanding the verdict on the sixth issue was reserved;
but when the case came before the Court of Probate a rule was
obtained to set aside the verdict generally and have a new trial
or to set aside the verdict on the sixth issue for misdirection. It
was in dealing with the merits of the finding on the sixth issue
that the true legal position came to be considered by the House
of Lords. The result of the decision was that the rule obtained
for a new trial was discharged, the order of the Court of
Probate of the whole will was reversed and the matter was
remitted to the Court of Probate to do what was right with
regard to the qualified probate of the will.
30. The same principle was emphasized by the Privy Council
in Vellasawmy Servai v. Sivaraman Servai [(1929) LR 57 IA
96] where it was held that, where a will is propounded by the
chief beneficiary under it, who has taken a leading part in
giving instructions for its preparation and in procuring its
execution, probate should not be granted unless the evidence
removes suspicion and clearly proves that the testator
approved the will.
31. In Sarat Kumari Bibi v. Sakhi Chand [(1928) LR 56 IA 62]
the Privy Council made it clear that “the principle which
requires the propounder to remove suspicions from the mind of
the Court is not confined only to cases where the propounder
takes part in the execution of the will and receives benefit
under it. There may be other suspicious circumstances
attending on the execution of the will and even in such cases it
is the duty of the propounder to remove all clouds and satisfy
the conscience of the court that the instrument propounded is
the last will of the testator”. This view is supported by the
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in Tyrrell v. Painton [(1894) P 151, 157, 159] . “The rule
in Barry v. Butlin [(1838) 2 Moo PC 480,
482] , Fulton v. Andrew [(1875) LR 7 HL 448]
and Brown v. Fisher [(1890) 63 LT 465] , said Lindley, L.J.,
“is not in my mind confined to the single case in which the
will is prepared by or on the instructions of the person taking
large benefits under it but extends to all cases in which
circumstances exist which excite the suspicions of the court”.
32. In Rash Mohini Dasi v. Umesh Chunder Biswas [(1898)
LR 25 IA 109] it appeared that though the will was fairly
simple and not very long the making of it was from first to last
the doing of Khetter, the manager and trusted adviser of the
alleged testator. No previous or independent intention of
making a will was shown and the evidence that the testator
understood the business in which his adviser engaged him was
not sufficient to justify the grant of probate. In this case the
application for probate made by the widow of Mohim Chunder
Biswas was opposed on the ground that the testator was not in
a sound and disposing state of mind at the material time and he
could not have understood the nature and effect of its contents.
The will had been admitted to the probate by the District Judge
but the High Court had reversed the said order. In confirming
the view of the High Court the Privy Council made the
observations to which we have just referred.
33. The case of Shama Charn Kundu v. Khettromoni
Dasi [(1899) ILR 27 Cal 522] on the other hand, was the case
of a will the execution of which was held to be not surrounded
by any suspicious circumstances. Shama Charn, the
propounder of the will, claimed to be the adopted son of the
testator. He and three others were appointed executors of the
will. The testator left no natural son but two daughters and his
widow. By his will the adopted son obtained substantial
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benefit. The probate of the will with the exception of the last
paragraph was granted to Shama Charn by the trial Judge; but,
on appeal the application for probate was dismissed by the
High Court on the ground that the suspicions attending on the
execution of the will had not been satisfactorily removed by
Shama Charn. The matter was then taken before the Privy
Council; and Their Lordships held that, since the adoption of
Shama Charn was proved, the fact that he took part in the
execution of the will and obtained benefit under it cannot be
regarded as a suspicious circumstance so as to attract the rule
laid down by Lindley, L.J., in Tyrrell v. Painton [(1894) P 151,
157, 159] . In Bai Gungabai v. Bhugwandas Valji [(1905) ILR
29 Bom 530] the Privy Council had to deal with a will which
was admitted to probate by the first court, but on appeal the
order was varied by excluding therefrom certain passages
which referred to the deed-poll executed on the same day by
the testator and to the remuneration of the solicitor who
prepared the will and was appointed an executor and trustee
thereof. The Privy Council held that “the onus was on the
solicitor to satisfy the court that the passages omitted
expressed the true will of the deceased and that the court
should be diligent and zealous in examining the evidence in its
support, but that on a consideration of the whole of the
evidence (as to which no rule of law prescribed the particular
kind required) and of the circumstances of the case the onus
was discharged”. In dealing with the question as to whether the
testator was aware that the passages excluded by the appeal
court from the probate formed part of the instrument, the Privy
Council examined the evidence bearing on the point and the
probabilities. In conclusion Their Lordships differed from the
view of the appeal court that there had been a complete failure
of the proof that the deed-poll correctly represented the
intentions of the testator or that he understood or approved of
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its contents and so they thought that there were no grounds for
excluding from the probate the passages in the will which
referred to that deed. They, however, observed that it would no
doubt have been more prudent and business-like to have
obtained the services of some independent witnesses who
might have been trusted to see that the testator fully
understood what he was doing and to have secured
independent evidence that clause 26 in particular was called to
the testator’s attention. Even so, Their Lordships expressly
added that in coming to the conclusion which they had done
they must not be understood as throwing the slightest doubt on
the principles laid down in Fulton v. Andrew [(1875) LR 7 HL
448] and other similar cases referred to in the argument.”
8. The Supreme Court in the case of Surendra Pal and others v. Dr. (Mrs.)
Saraswati Arora and another, reported in (1974) 2 SCC 600 has held that
propounder has to show that the Will was signed by testator, that he was at the
relevant time in a sound disposing state of mind, that he understood the nature
and effect of the dispositions, that he put his signature to the testament of his own
free Will, that he has signed it in the presence of the two witnesses who attested it
in his presence and in the presence of each other. Once these elements are
established, the onus which rests on the propounder is discharged. Furthermore,
there may be cases in which the execution of the Will itself is surrounded by
suspicious circumstances, such as, where the signature is doubtful, the testator is
of feeble mind or is overawed by powerful minds interested in getting his
property, or where in the light of relevant circumstances the dispositions appears
to be the unnatural, improbable and unfair, or where there are other reasons for
doubting that the dispositions of the Will are not the result of testator’s free Will
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and mind. It has also been held that in all such cases where there may be
legitimate suspicious circumstances those must be reviewed and satisfactorily
explained before the Will is accepted and the onus is always on the propounder to
explain them to the satisfaction of the Court before it could be accepted as
genuine.
9. The Supreme Court in the case of Gorantla Thataiah v. Thotakura
Venkata Subbaiah and others, reported in AIR 1968 SC 1332 has held as it is
for those who propound the Will to prove the same.
10. The Supreme Court in the case of Murthy and others v. C. Saradambal
and others, reported in (2022) 3 SCC 209 has held that intention of testator to
make testament must be proved, and propounder of Will must examine one or
more attesting witnesses and remove all suspicious circumstances with regard to
execution of Will. It has been held as under:
“31. One of the celebrated decisions of this Court on proof of a
will, in H. Venkatachala Iyengar v. B.N. Thimmajamma [H.
Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443]
is in H. Venkatachala Iyengar v. B.N. Thimmajamma, wherein this
Court has clearly distinguished the nature of proof required for a
testament as opposed to any other document. The relevant portion
of the said judgment reads as under: (AIR p. 451, para 18)“18. … The party propounding a will or otherwise making a
claim under a will is no doubt seeking to prove a document
and, in deciding how it is to be proved, we must inevitably
refer to the statutory provisions which govern the proof of
documents. Sections 67 and 68 of the Evidence Act are
relevant for this purpose. Under Section 67, if a document is
alleged to be signed by any person, the signature of the said
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proving such a handwriting under Sections 45 and 47 of the
Act the opinions of experts and of persons acquainted with the
handwriting of the person concerned are made relevant.
Section 68 deals with the proof of the execution of the
document required by law to be attested; and it provides that
such a document shall not be used as evidence until one
attesting witness at least has been called for the purpose of
proving its execution. These provisions prescribe the
requirements and the nature of proof which must be satisfied
by the party who relies on a document in a court of law.
Similarly, Sections 59 and 63 of the Succession Act are also
relevant. Section 59 provides that every person of sound mind,
not being a minor, may dispose of his property by will and the
three illustrations to this section indicate what is meant by the
expression “a person of sound mind” in the context. Section 63
requires that the testator shall sign or affix his mark to the will
or it shall be signed by some other person in his presence and
by his direction and that the signature or mark shall be so
made that it shall appear that it was intended thereby to give
effect to the writing as a will. This section also requires that
the will shall be attested by two or more witnesses as
prescribed. Thus, the question as to whether the will set up by
the propounder is proved to be the last will of the testator has
to be decided in the light of these provisions. Has the testator
signed the will? Did he understand the nature and effect of the
dispositions in the will? Did he put his signature to the will
knowing what it contained? Stated broadly it is the decision of
these questions which determines the nature of the finding on
the question of the proof of wills. It would prima facie be true
to say that the will has to be proved like any other document
except as to the special requirements of attestation prescribed
by Section 63 of the Indian Succession Act. As in the case of
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would be idle to expect proof with mathematical certainty. The
test to be applied would be the usual test of the satisfaction of
the prudent mind in such matters.”
32. In fact, the legal principles with regard to the proof of a will
are no longer res integra. Section 63 of the Succession Act, 1925
and Section 68 of the Evidence Act, 1872, are relevant in this
regard. The propounder of the will must examine one or more
attesting witnesses and the onus is placed on the propounder to
remove all suspicious circumstances with regard to the execution
of the will.
33. In the abovenoted case, this Court has stated that the following
three aspects must be proved by a propounder: (Bharpur Singh
case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 :
(2009) 1 SCC (Civ) 934] , SCC p. 696, para 16)
“16. … (i) that the will was signed by the testator in a sound
and disposing state of mind duly understanding the nature
and effect of disposition and he put his signature on the
document of his own free will, and
(ii) when the evidence adduced in support of the will is
disinterested, satisfactory and sufficient to prove the sound
and disposing state of the testator’s mind and his signature
as required by law, courts would be justified in making a
finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be
removed by cogent, satisfactory and sufficient evidence to
dispel suspicion. In other words, the onus on the propounder
can be taken to be discharged on proof of the essential facts
indicated therein.”
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34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur,
(1977) 1 SCC 369] , this Court pointed out that when a will is
allegedly shrouded in suspicion, its proof ceases to be a simple lis
between the plaintiff and the defendant. What generally is an
adversarial proceeding, becomes in such cases, a matter of the
court’s conscience and then, the true question which arises for
consideration is, whether, the evidence let in by the propounder of
the will is such as would satisfy the conscience of the court that
the will was duly executed by the testator. It is impossible to reach
such a satisfaction unless the party which sets up the will offers
cogent and convincing explanation with regard to any suspicious
circumstance surrounding the making of the will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur
Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ)
934] , this Court has narrated a few suspicious circumstance, as
being illustrative but not exhaustive, in the following manner:
(SCC p. 699, para 23)
“23. Suspicious circumstances like the following may be
found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and
doubtful or not appear to be his usual signature.
(ii) The condition of the testator’s mind may be very
feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or
unfair in the light of relevant circumstances like exclusion
of or absence of adequate provisions for the natural heirs
without any reason.
(iv) The dispositions may not appear to be the result of
the testator’s free will and mind.
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(v) The propounder takes a prominent part in the
execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.”
36. It was further observed in Shamsher Singh case [Bharpur
Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ)
934] that the circumstances narrated hereinbefore are not
exhaustive. Subject to offering of a reasonable explanation,
existence thereof must be taken into consideration for the purpose
of arriving at a finding as to whether the execution of the will had
been duly proved or not. It may be true that the will was a
registered one, but the same by itself would not mean that the
statutory requirements of proving the will need not be complied
with.
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti
Rao [Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006)
13 SCC 433] , in paras 34 to 37, this Court has observed as under:
(SCC pp. 447-48)
“34. There are several circumstances which would have been
held to be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of
mind of the testator despite his signature on the will;
(ii) When the disposition appears to be unnatural or
wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the
execution of will which confers on him substantial
benefit.
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***
35. We may not delve deep into the decisions cited at the Bar
as the question has recently been considered by this Court
in B. Venkatamuni v. C.J. Ayodhya Ram Singh [B.
Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC
449] , wherein this Court has held that the court must satisfy
its conscience as regards due execution of the will by the
testator and the court would not refuse to probe deeper into the
matter only because the signature of the propounder on the
will is otherwise proved.
36. The proof of a will is required not as a ground of reading
the document but to afford the Judge reasonable assurance of it
as being what it purports to be.
37. We may, however, hasten to add that there exists a
distinction where suspicions are well founded and the cases
where there are only suspicions alone. Existence of suspicious
circumstances alone may not be sufficient. The court may not
start with a suspicion and it should not close its mind to find
the truth. A resolute and impenetrable incredulity is not
demanded from the Judge even if there exist circumstances of
grave suspicion.”
38. This Court in Anil Kak v. Sharada Raje [Anil Kak v. Sharada
Raje, (2008) 7 SCC 695] , held as under: (Bharpur Singh
case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 :
(2009) 1 SCC (Civ) 934] , SCC p. 698, para 20)
“20. This Court in Anil Kak v. Sharada Raje [Anil
Kak v. Sharada Raje, (2008) 7 SCC 695] opined that the court
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circumstances plays an important role, holding: (SCC p. 714,
paras 52-55)’52. Whereas execution of any other document can be
proved by proving the writings of the document or the
contents of it as also the execution thereof, in the event
there exists suspicious circumstances the party seeking to
obtain probate and/or letters of administration with a copy
of the will annexed must also adduce evidence to the
satisfaction of the court before it can be accepted as
genuine.
53. As an order granting probate is a judgment in rem, the
court must also satisfy its conscience before it passes an
order.
54. It may be true that deprivation of a due share by
(sic to) the natural heir by itself may not be held to be a
suspicious circumstance but it is one of the factors which
is taken into consideration by the courts before granting
probate of a will.
55. Unlike other documents, even animus attestandi is a
necessary ingredient for proving the attestation.’ ”
39. Similarly, in Leela Rajagopal v. Kamala Menon
Cocharan [Leela Rajagopal v. Kamala Menon Cocharan, (2014)
15 SCC 570 : (2015) 4 SCC (Civ) 267] , this Court opined as
under: (SCC p. 576, para 13)“13. A will may have certain features and may have been
executed in certain circumstances which may appear to
be somewhat unnatural. Such unusual features appearing
in a will or the unnatural circumstances surrounding its
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the court on the basis of such scrutiny; the cumulative
effect of the unusual features and circumstances which
would weigh with the court in the determination
required to be made by it. The judicial verdict, in the last
resort, will be on the basis of a consideration of all the
unusual features and suspicious circumstances put
together and not on the impact of any single feature that
may be found in a will or a singular circumstance that
may appear from the process leading to its execution or
registration. This, is the essence of the repeated
pronouncements made by this Court on the subject
including the decisions referred to and relied upon
before us.”
11. Similar law has been laid down by Supreme Court in the case of Dhanpat
v. Sheo Ram (Deceased) through legal representatives and others, reported in
(2020) 16 SCC 209 and in the case of V. Kalyanaswamy (Dead) by legal
representatives and another v. L. Bakthavatsalam (Dead) by legal
representatives and others, reported in (2021) 16 SCC 543.
12 The Supreme Court in the case of Bharpur Singh and others v. Shamsher
Singh, reported in (2009) 3 SCC 687 has held that it may be true that Will was a
registered one, but the same by itself would not mean that the statutory
requirements of proving the Will need not be complied with. In terms of Section
63(c), Succession Act, 1925 and Section 68, Evidence Act, 1872, the propounder
of a Will must prove its execution by examining one or more attesting witnesses
and propounder of Will must prove that the Will was signed by the testator in a
sound and disposing state of mind duly understanding the nature and effect of
disposition and he put his signature on the document of his own free Will.
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13. The Supreme Court in the case of Niranjan Umeshchandra Joshi v.
Mrudula Jyoti Rao and others, reported in (2006) 13 SCC 433 has held that
mere proof that testator had signed the Will is not enough. It has also to be
proved that testator has signed out of his free will having a sound disposition of
mind and not a feeble and debilitated mind, understanding well the nature and
effect thereof. The Court will also not refuse to probe deeper in the matter merely
because propounder’s signature on the Will is proved. Similar law has been laid
down by Supreme Court in the cases of Savithri and others v. Karthyayani
Amma and others, reported in (2007) 11 SCC 621, Balathandayutham and
another v. Ezhilarasan, reported in (2010) 5 SCC 770, Pentakota
Satyanarayana and others v. Pentakota Seetharatnam and others, reported in
(2005) 8 SCC 67 and Meenakshiammal (Dead) through legal representatives
and others v. Chandrasekaran and another, reported in (2005) 1 SCC 280.
14. If the facts and circumstances of the case are considered, then it is clear that
defendant/appellant has not examined any attesting witness to prove execution of
Will. Defendant/appellant Rajkumar has examined himself as DW-1. Admittedly,
Raj Kumar Kushwaha (DW1) was not the attesting witness. This witness also
admitted that total area 14.721 hectares of land situtated in Village Gularkhedi was
the joint property of Ram Prasad, Sukhlal, Damrulal, Pannalal, Paramanand Meera
Bai and Phool Bai were the co-owners. He was unable to disclose that which co-
owner was in possession of which area of land of the undivided joint hindu family
property. He claimed that after year 2017 he came in possession of Arazi No.43/1/1
area 7.25 Bigha of land. He further admitted that he has not filed any document of
partition. He admitted that Will was executed in respect of undivided property. He
admitted that it is nowhere mentioned in the Will that Survey No.43/1/1 is
bequeathed to propounder/Rajkumar (DW1). In paragraph 10 of the cross-
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examination he admitted that about 7-8 years back he was told by Sukhlal and
Paramanand that Ram Prasad had executed the Will (Ex.D/2) in his favour. Thus, it
is clear that Will was never executed by Ram Prasad in the presence of this witness.
In Paragraph 28, he further admitted that the scribe of the Will namely Ramcharan
Lal Shrivastava is still alive and he generally meets with him. He further admitted
that he never verified from Ramcharan Lal as to whether any Will was executed in
his favour or not? He further admitted that in the mutation proceedings which were
initiated by Chironjibai, the existence of Will was not mentioned upto 30.11.2015.
15. Sukhlal (DW-2) is one of the attesting witnesses. He has merely stated in his
examination-in-chief that Ram Prasad had executed a Will in favour of defendant
No.1. He further claimed that Scribe of Will was Ramsharan. However this witness
never disclosed that who had drafted the Will. Whether Will was ever read out to
Ram Prasad? What was the mental condition of Ram Prasad ? Whether Ram Prasad
was hale and hearty, has also not been mentioned by this witness. Whether Will was
executed by Ram Prasad out of his own volition, has also not been stated by this
witness. Although counsel for appellant tried to submit that since no question was
put to this witness in the cross-examination, therefore, it has to be presumed that
Ram Prasad had executed Will out of his own volition without any pressure or
influence and he was a fit state of mind, but said statement made by counsel for
appellant cannot be accepted. If a witness has not stated something in his
examination-in-chief, then defendants are not obliged to examine the witness in
relation to the fact which has not been disclosed by him in his examination in chief.
16. Faced with such a situation, counsel for appellant submitted that statement of
Sukhlal (DW2) which was recorded in the mutation proceedings may be considered.
The aforesaid contention made by counsel for appellants cannot be considered for
the reason that the evidence of a witness recorded in another case cannot be read in
the present case specifically when the witness had appeared and deposed in the
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present case also. Furthermore, in the light of judgment passed by the Supreme
Court in the case of Jitendra Singh Vs. State of Madhya Pradesh by order dated
6.9.2021 passed in SLP (Civil) No.13146/2021, a Division Bench of this court in
the case of Hariprasad Bairagi Vs. Radheshyam and Others, reported in 2022 (1)
MPLJ 414, this Court in the case of Anand Kumar Jain and Another Vs.
Chandra Kumar Jain and Others passed in MP No.4458/2023 decided on 16th of
February, 2024, as well as, Full Bench of this Court in the case of Anand
Chaudhary vs. State of M.P. and Others, decided on 14.02.2025 in
W.P.No.3499/2022 (Jabalpur), it is clear that where the Will is a disputed one,
then revenue Authorities have no jurisdiction to decide the genuineness of Will. In
the present case, parties had already filed objection with regard to the correctness of
the Will, therefore, even otherwise revenue Authorities had no jurisdiction to decide
the genuineness of the Will. Thus, it is clear that mutation of name of defendant
No.1 on the basis of Will by revenue Authorities was without jurisdiction and thus,
it was nullity. For that reason also the evidence given by Sukhlal (DW-2) in the
mutation proceedings cannot be read.
17. Furthermore, appellant has admitted that scribe of Will is alive and he
generally meets him, but for the reasons best known to the appellant, scribe of the
Will was not examined by appellant. Even otherwise, appellant has admitted in his
evidence that he never verified from the scribe of Will as to whether Ram Prasad
had executed a Will in his favour or not? Furthermore, it is clear that survey number
of the property which was intended to be bequeathed by Ram Prasad was also not
mentioned in the Will and the Will was executed in respect of undivided property.
18. Under these circumstances, this Court is of considered opinion that appellant
has failed to remove all the suspicious circumstances which are attached to the Will.
Both the Courts below have given concurrent findings of fact that appellant has
failed to prove execution of Will (Ex.D/2). It is well established principle of law that
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this Court in exercise of powers under Section 100 of CPC cannot be interfered with
the concurrent findings of fact even if they are erroneous. Unless and until, the
concurrent findings of fact recorded by Courts below are perverse, they cannot be
interfered with by this Court. Furthermore, this Court has also independently
considered the evidence led by appellant and has found that defendant/appellant has
miserably failed in establishing the genuineness of Will.
19. Accordingly, no substantial questions of law arises in the present appeal. Ex
consequenti, judgment and decree 29.08.2024 passed by II District Judge, Vidisha
(M.P.) in RCA No.22/2023 as well as judgment and decree dated 15.02.2023 passed
by III Civil Judge, Senior Division, Vidisha (M.P.) in RCS No.155-A/2018 are,
hereby, affirmed.
20. Appeal fails and is, hereby, hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
(and)
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