Chattisgarh High Court
Rambha Bai vs Vijay Kumar Verma on 22 August, 2025
1
2025:CGHC:42574
NAFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
SA No. 224 of 2022
Judgment Reserved on 04.08.2025
Judgment pronounced on 22.08.2025
1 - Rambha Bai W/o Khedu Ram Verma Aged About 70 Years R/o Village
Datrengi, Tahsil Bhatapara, District Baloda Bazar Bhatapara (C.G.)
2 - Dilip, S/o Khedu Ram Verma Aged About 55 Years R/o Village Datrengi,
Tahsil Bhatapara, District Baloda Bazar Bhatapara (C.G.)
3 - Anil, S/o Kheduram Verma, Aged About 50 Years R/o Village Datrengi, Tahsil
Bhatapara, District Baloda Bazar Bhatapara (C.G.)
4 - Purushottam S/o Kheduram Verma Aged About 48 Years R/o Village
Datrengi, Tahsil Bhatapara, District Baloda Bazar Bhatapara (C.G.)
... Appellants
versus
1 - Vijay Kumar Verma S/o Kheduram Verma, Aged About 62 Years R/o Village
Datrengi, Tahsil Bhatapara,district Baloda Bazar Bhatapara (C.G.)
2 - Vyasnarayan Verma, S/o Kheduram Verma Aged About 52 Years R/o Village
Datrengi, Tahsil Bhatapara,district Baloda Bazar Bhatapara (C.G.)
3 - Kaushal Bai, W/o Ravi Verma Aged About 40 Years R/o Village Bawali, Tahsil
Pathariya, District Mungeli (C.G.)
4 - Shanti Bai, W/o Kundan Verma Aged About 35 Years R/o Village Nipaniya,
Tahsil Bhatapara, District Baloda Bazar Bhatapara (C.G.)
2
5 - State Of Chhattisgarh, Through Collector, Baloda Bazar District Baloda Bazar
Bhatapara (C.G.)
... Respondents
{Cause title is taken from Case Information System}
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For Appellants : Mr. Bharat Lal Sahu, Advocate.
For Respondent No. 1 : Mr. Hemant Kesharwani, Advocate.
For Respondent No. 2 : Mr. Shobhit Koshta, Advocate.
For Respondents No. 3 & 4 : None present , though served.
For Respondent No. 5/State : Mr. Santosh Soni, Govt. Advocate.
—————————————————————————————————
Hon’ble Mr. Justice Naresh Kumar Chandravanshi
CAV Judgment
1. This is defendants’ Second Appeal filed under Section 100 of
CPC against the judgment and decree dated 08.02.2022, passed by 4 th
Upper District Judge, Balodabazar, at Bhatapara, in Civil Appeal
No. 04-A/2019, affirming the judgment and decree dated 30.11.2018
passed by Civil Judge, Class-I, Bhatapara, District Balodabazar, in Civil
Suit No. A/122/2014, whereby learned trial Court allowed the civil suit filed
by respondent No. 1/plaintiff by declaring his title on 1/8th share of suit
land directing the appellants/defendants to handover possession of the
same after partition of it. Vide aforesaid judgment, learned trial Court has
also allowed the counter-claim filed by respondent No. 2 / defendant
No. 3 – Vyasnarayan and granted the same decree in his favour, as has
been granted in favour of plaintiff.
[For the sake of convenience, parties would be referred to as per
their status shown in the plaint]
2. Facts of the case, in nutshell, as projected by plaintiff in his plaint,
are that both the parties are brothers and sisters (except defendant
3
No.1 – Rambhabai). Following genealogical tree would demonstrate the
relationship among the parties : –
[ksnw jke ¼e`r o”kZ 1989½
izFke iRuh f}rh; iRuh
dpjkckbZ ¼e`r o”kZ 1960½ jaHkk ckbZ
izfroknh dza 01fot;dqekj ¼iq=½
oknhfnyhi vfuy C;klukjk;.k iq:”kksRre
izfroknh izfroknh izfroknh izfroknh[Subsequently name of Kailash Bai & Shanti Bai were also added as
defendants No. 7 & 8, respectively, stating them to be daughter of
Kheduram Verma]
2.1 It is averred by the plaintiff that after death of first wife, Kheduram got
married with second wife – Rambha Bai. Kheduram was having title and
possession over the land bearing Khasra Nos. 26/1 (wrongly mentioned as
36/1), 169/1, 405/1, 429, 420/1, 430/13, area 0.243 hectare, 0.012 hectare,
0.283 hectare 0.085 hectare, 1.66 hectare & 0.405 hectare, respectively . He
(Kheduram) was also having possession over Abadi land bearing Khasra No.
868/11, area 0.085 hectare (hereinafter referred to as ‘suit land’). Kheduram
died on 27.06.1989. Thereafter, dispute erupted between plaintiff and
defendants in respect of suit land, to which on 21.01.1996, a settlement was
made by village Panchayat with the consent of both the parties, but violating
the terms of settlement, defendants deleted name of plaintiff- Vijay Kumar
from the revenue record and forcefully constructed house on the suit land
bearing Khasra No. 868 / 11. Being son of late Khedu Ram, the plaintiff is
entitled to get 1/4th share of suit land and also entitled to get partition and
possession on his share. The plaintiff has denied the averments made by
4defendants No. 2, 4 & 5 that late Kheduram had executed Will dated 4.7.1988
in their favour, as he has no right to execute Will in respect of suit land and if
there is any such Will, then it is false and fabricated, hence it does not confer
any exclusive title to them.
3. Respondents / defendants No. 1, 2, 4 & 5 filed their joint written
statement stating inter alia that their father late Khedu Ram Verma had
partitioned his land between the sons of his both the wives and kept the suit
land (except Khasra No. 868/11) with him in his share. After that partition,
plaintiff and defendant Nos. 2 to 5 were having possession in their respective
shares and Khedu Ram was in possession over the suit land. The plaintiff
had filed an application for partition before Tahsildar, Bhatapara, which was
rejected and against which, no appeal was filed by the plaintiff, hence, that
order has attained finality. It has further been averred by the defendants that
late Khedu Ram had bequeathed the suit land in favour of defendants No. 2, 4
& 5 vide registered Will dated 4.7.1988, therefore, plaintiff and defendant No.
3 have no right over the suit land, hence, civil suit filed by the plaintiff is liable
to be rejected.
4. Defendant No. 3- Vyasnarayan has also filed separate written statement
alongwith counter claim seeking relief, as has been sought for by plaintiff in
his plaint.
5. Subsequently, Kailash Bai & Shanti Bai were also impleaded as
defendants No. 7 & 8, respectively in the civil suit, but they have not filed any
written statement on their behalf.
6. On the basis of pleading of both the parties, learned trial Court framed
as many as six issues and three issues on the counter claim filed by
defendant No. 3. It also recorded evidence adduced by the parties and after
5
appreciation of the same, learned trial Court held that, since defendants No.
2, 4 & 5 have failed to prove the genuineness of valid execution & attestation
of Will dated 4.7.1988 (Ex.D-7) by late Khedu Ram, therefore, it do not vest
absolute title only to defendants No. 2, 4 & 5 namely Dilip, Anil &
Purushottam, rather by partly allowing the civil suit and counter claim filed by
defendant No. 3 – Vyasnarayan, held that since late Khedu Ram Verma was
absolute owner of the suit land, defendant No.1 – Smt. Rambha Bai is his
widow and other defendants are his sons and daughters, therefore, plaintiff
and defendant No. 3 alongwith other defendants are entitled to get 1 / 8 th
share each by getting partition effected of the same.
7. Defendants No. 1, 2, 4, 5, 7 & 8 preferred first appeal against the
judgment & decree passed by the trial Court. First appellate Court vide its
impugned judgment & decree dismissed the first appeal by affirming the
judgment & decree passed by the trial Court.
8. Being aggrieved & dissatisfied with the same, appellants/ defendants
No. 1, 2, 4 & 5 have preferred second appeal questioning the same.
9. This appeal has been admitted for hearing on the following
substantial question of law :-
“Whether the finding of the Courts below disbelieving the
due execution, attestation and validity of the deed of Will
dated 04.07.1988 (Ex.D.-7) executed by Kheduram in
favour of his sons, namely, Dilip (Defendant No. 2), Anil
(Defendant No. 4) and Purushottam (Defendant No. 5) by
disbelieving its attesting witness, namely, Kartik Ram (DW-
3) and thereby held that it was not executed in accordance
with the provision prescribed under Section 63 of the Indian
6Succession Act, 1925 and under Section 68 of the Indian
Evidence Act, 1872, is perverse ?
10. Learned counsel for the appellants / defendants would submit that
father of defendants namely late Khedu Ram Verma, during his life time, had
partitioned his land between his son of both the wives and his own. In that
partition, Khedu Ram had kept suit land in his share. In his life time, he
possessed the same and cultivated also. Since suit land was of the share of
Khedu Ram, therefore, he was having absolute right over it. It is further
contended that late Khedu Ram had executed registered will dated 4.7.1988
[certified copy (Ex.D-7)] in respect of suit land in favour of defendants No. 2, 4
& 5. On the basis of that Will, the suit land has been recorded in their name in
the revenue record. Though, plaintiff and defendant No. 3 – Vyasnarayan are
also sons of Khedu Ram, but being absolute owner, Khedu Ram had absolute
right to give his suit land to any son by depriving his other sons. Since by
registered Will deed, he gave suit land to defendants No. 2, 4 & 5, therefore,
plaintiff and defendant No. 3 have no right at all on the suit land. Learned
counsel further submits that execution of Will has been proved by
propounder / beneficiary of the Will by examining one attesting witness
namely Kartik Ram Verma (DW-3) as provided in Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian Evidence Act. Said
attesting witness has specifically stated in his deposition that late Khedu Ram
verma had got executed Will (Ex.D-7) in favour of Dilip, Anil and Purushottam
and Khedu Ram had also put his signature on the Will in his presence.
Attesting witness has also deposed that he had also put his signature on the
Will and, thus, execution & attestation of Will has been duly proved by
aforesaid attesting witnesses, despite that learned trial Court as well as first
appellate Court has declined to accept genuineness of the Will only on the
7
basis of trivial grounds, which is perverse & illegal, hence, he prayed that
appeal may be allowed by setting aside judgment & decree passed by both
the courts below dismissing the civil suit filed by plaintiff and counter claim
filed by defendant No. 3 – Vyasnarayan.
11. Per contra, learned counsel appearing for respondents No. 1 & 2 would
support the judgment & decree passed by both the courts below. They further
submit that since there is concurrent finding of the both the courts below and
no any valid ground has been raised by appellants/defendants to interfere
with the same, hence, the appeal may be dismissed.
12. I have heard learned counsel for the parties and perused the judgment
& decree impugned, including record of both the courts below with utmost
circumspection.
13. Undisputedly, defendant No. 1- Smt. Rambha Bai is wife of late Khedu
Ram Verma and plaintiff and defendants No. 2 to 5 and 7 & 8 are sons and
daughters of late Khedu Ram. From the oral & documentary evidence
available on record, it is also found proved that suit land (except Khasra No.
868/11) was recorded in the name of late Khedu Ram Verma in the revenue
record. Generally being class-I heir of late Khedu Ram Verma, plaintiff and
defendants are entitled to get equal share in the suit land in view of provisions
contained in Section 8 of the Hindu Succession Act, 1956.
14. It is claim of defendants No. 2, 4 & 5 that since suit land was fallen in
share of late Khedu Ram Verma in partition effected between him and his
sons, therefore, status of suit land was his self acquired property, as such, he
had bequeathed the suit land in favour of defendants No. 2, 4 & 5 namely,
Dilip, Anil & Purushottam, respectively vide registered Will dated 4.7.1988
8
[certified copy (Ex.D-7)], but this claim of defendants No. 2, 4 & 5 has not
accepted by both the courts below. Thus, their claim of exclusive title over the
suit land except Khasra No. 868/11 is based on alleged Will executed by late
Khedu Ram in their favour.
15. It is trite law that, if any person claimed his title over the land /
immovable property on the basis of Will, then it is liability of such person /
propounder to prove that alleged Will was executed by testator in accordance
with provisions contained in Section 63 of the Indian Succession Act, 1925 read
with Section 68 of the Evidence Act, 1872, which are reproduced below :-
16. ‘Section 63 of the Act of 1925′ provides as under:-
“63. Execution of unprivileged Wills.–Every
testator, not being a Soldier employed in an
expedition or engaged in actual welfare, or
an airman so employed or engaged, or a
mariner at set, 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.
(c) The will shall be attested by two or
more witnesses, each of whom has
9seen 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. ‘Section 68 of the Evidence Act, 1872′ provides 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 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. Thus, to say will has been duly executed the requirements mentioned in
clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied
with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be
10
signed by some other person in his presence and by his direction; (b) that the
signature or mark of the testator, or the signature of the person signing at his
direction, has to appear at a place from which it could appear that by that mark or
signature the document is intended to have effect as a will; (c) the most important
point involve in this appeal, is that the will has to be attested by two or more
witnesses and each of these witnesses must have seen the testator sign or affix
his mark to the Will, or must have seen some other person sign the Will in the
presence and by the direction of the testator, or must have received from the
testator a personal acknowledgement of signature or mark, or of the signature of
such other person, and each of the witnesses has to sign the Will in the presence
of the testator.
19. It is thus clear that one of the requirements of due execution of will is its
attestation by two or more witnesses which is mandatory.
20. Section 68 of Evidence Act speaks of as to how a document required by
law to be attested can be proved. According to the said Section, a document
required by law to be attested 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 an evidence. It flows from this Section that if there be an attesting
witness alive capable of giving evidence and subject to the process of the Court,
has to be necessarily examined before the document required by law to be
attested can be used in an evidence.
21. On a combined reading of Section 63 of the Succession Act with Section 68
of the Evidence Act, it appears that a person propounding the will has got to
prove that the will was duly and validly executed. That cannot be done by simply
proving that the signature on the will was that of the testator but must also prove
11
that attestations were also made properly as required by clause (c) of Section 63
of the Succession Act. It is true that Section 68 of Evidence Act does not say that
both or all the attesting witnesses must be examined. But at least one attesting
witness has to be called for proving due execution of the Will as envisaged in
Section 63. Although Section 63 of the Succession Act requires that a will has to
be attested at least by two witnesses, Section 68 of the Evidence Act provides
that a document, which is required by law to be attested, shall not be used as
evidence until one attesting witness at least has been examined for the purpose
of proving its due execution if such witness is alive and capable of giving
evidence and subject to the process of the Court. In a way, Section 68 gives a
concession to those who want to prove and establish a will in a Court of law by
examining at least one attesting witness even though will has to be attested at
least by two witnesses mandatorily under Section 63 of the Succession Act. But
what is significant and to be noted is that, the one attesting witness examined
should be in a position to prove the execution of a will. To put in other words, if
one attesting witness can prove execution of the will in terms of clause (c) of
Section 63, viz., attestation by two attesting witnesses in the manner
contemplated therein, the examination of other attesting witness can be
dispensed with. The one attesting witness examined, in his evidence has to
satisfy the attestation of a will by him and the other attesting witness in order to
prove there was due execution of the will. If the attesting witness examined
besides his attestation does not, in his evidence, satisfy the requirements of
attestation of the will by other witness also it falls short of attestation of will at
least by two witnesses for the simple reason that the execution of the will does
not merely mean the signing of it by the testator but it means fulfilling and proof of
all the formalities required under Section 63 of the Succession Act. Where one
attesting witness examined to prove the will under Section 68 of the Evidence Act
12
fails to prove the due execution of the will then the other available attesting
witness has to be called to supplement his evidence to make it complete in all
respects. Where one attesting witness is examined and he fails to prove the
attestation of the will by the other witness there will be deficiency in meeting the
mandatory requirements of Section 68 of the Evidence Act.
22. In the matter Murthy & Ors. v. C. Saradambal & Ors. 1, their Lordships
of the Supreme Court while considering one of the celebrated decision in the
case of H. Venkatachala Iyengar v. B.N. Thimmajamma 2 has observed as
under :-
“32. In fact, the legal principles with regard to the proof of
a will are no longer res integra. Section 63 of the Indian
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 above noted 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 be1 (2022) 3 SCC 290
2 AIR 1959 SC 443
13justified in making a finding in favour of propounder,
and
(iii) if a will is challenged as surrounded by suspicious
circumstances, all such legitimate doubts have to be
removed by cogent, satisfactory and sufficient
evidence to dispel suspicion. In other words, the onus
on the propounder can be taken to be discharged on
proof of the essential facts indicated therein.”
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit
Kaur, (1977) 1 SCC 369] , this Court pointed out that when
a will is allegedly shrouded in suspicion, its proof ceases to
be a simple lis between the plaintiff and the defendant.
What generally is an adversarial proceeding, becomes in
such cases, a matter of the court’s conscience and then,
the true question which arises for consideration is,
whether, the evidence let in by the propounder of the will is
such as would satisfy the conscience of the court that the
will was duly executed by the testator. It is impossible to
reach such a satisfaction unless the party which sets up
the will offers cogent and convincing explanation with
regard to any suspicious circumstance surrounding the
making of the will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v.
Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ)
934] , this Court has narrated a few suspicious
circumstance, as being illustrative but not exhaustive, in
the following manner: (SCC p. 699, para 23)
“23. Suspicious circumstances like the following may
be found to be 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
14exclusion of or absence of adequate provisions for the
natural heirs without any reason.
(iv) The dispositions may not appear to be the result
of the testator’s free will and mind.
(v) The propounder takes a prominent part in the
execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts.”
36. It was further observed in Shamsher Singh case
[Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 :
(2009) 1 SCC (Civ) 934] that the circumstances narrated
hereinbefore are not exhaustive. Subject to offering of a
reasonable explanation, existence thereof must be taken
into consideration for the purpose of arriving at a finding as
to whether the execution of the will had been duly proved
or not. It may be true that the will was a registered one, but
the same by itself would not mean that the statutory
requirements of proving the will need not be complied with.
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao
[Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao,
(2006) 13 SCC 433] , in paras 34 to 37, this Court has
observed as under: (SCC pp. 447-48)
“34. There are several circumstances which would
have been held to be described by this Court as
suspicious circumstances:
(i) when a doubt is created in regard to the condition
of mind of the testator despite his signature on the
will;
(ii) When the disposition appears to be unnatural or
wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in
the execution of will which confers on him substantial
benefit.
***
15
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 [Ed.: Para 37 corrected vide Official Corrigendum
No. F.3/Ed.B.J./86/2007 dated 5-12-2007.] . 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.”
39. Similarly, in Leela Rajagopal v. Kamala Menon
Cocharan [Leela Rajagopal v. Kamala Menon Cocharan,
(2014) 15 SCC 570 : (2015) 4 SCC (Civ) 267] , this Court
opined as under: (SCC p. 576, para 13)
“13. A will may have certain features and may have
been executed in certain circumstances which may
appear to be somewhat unnatural. Such unusual
features appearing in a will or the unnatural
circumstances surrounding its execution will definitely
16
justify a close scrutiny before the same can be
accepted. It is the overall assessment of the court on
the basis of such scrutiny; the cumulative effect of the
unusual features and circumstances which would
weigh with the court in the determination required to
be made by it. The judicial verdict, in the last resort,
will be on the basis of a consideration of all the
unusual features and suspicious circumstances put
together and not on the impact of any single feature
that may be found in a will or a singular circumstance
that may appear from the process leading to its
execution or registration. This, is the essence of the
repeated pronouncements made by this Court on the
subject including the decisions referred to and relied
upon before us.”
23. In the case of Meena Pradhan & others v. Kamla Pradhan &
Another3, Hon’ble Supreme Court, considering its various judgments on
the principles required to be proved with regard to the validity of execution
of Will, has observed in para 10 & 11 as under;-
10. Relying on H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. Venkatachala Iyengar v. B.N.
Thimmajamma, 1958 SCC OnLine SC 31 : 1959 Supp (1)
SCR 426 : AIR 1959 SC 443] (three-Judge Bench),
Bhagwan Kaur v. Kartar Kaur [Bhagwan Kaur v. Kartar
Kaur, (1994) 5 SCC 135] (three-Judge Bench), Janki
Narayan Bhoir v. Narayan Namdeo Kadam [Janki Narayan
Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91] (two-
Judge Bench), Yumnam Ongbi Tampha Ibema Devi v.
Yumnam Joykumar Singh [Yumnam Ongbi Tampha Ibema
Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780 :
(2009) 2 SCC (Civ) 348] (three-Judge Bench) and
Shivakumar v. Sharanabasappa [Shivakumar v.
3 (2023) 9 SCC 734
17
Sharanabasappa, (2021) 11 SCC 277] (three-Judge
Bench), we can deduce/infer the following principles
required for proving the validity and execution of the will:
10.1. The court has to consider two aspects : firstly, that
the will is executed by the testator, and secondly, that it
was the last will executed by him;
10.2. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent mind
has to be applied.
10.3. A will is required to fulfil all the formalities required
under Section 63 of the Succession Act, that is to say:
(a) The testator shall sign or affix his mark to the will or it
shall be signed by some other person in his presence and
by his direction and the said signature or affixation shall
show that it was intended to give effect to the writing as a
will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation is
necessary;
(c) Each of the attesting witnesses must have seen the
testator sign or affix his mark to the will or has seen some
other person sign the will, in the presence and by the
direction of the testator, or has received from the testator a
personal acknowledgment of such signatures;
(d) Each of the attesting witnesses shall sign the will in the
presence of the testator, however, the presence of all
witnesses at the same time is not required;
10.4. For the purpose of proving the execution of the will,
at least one of the attesting witnesses, who is alive,
subject to the process of court, and capable of giving
evidence, shall be examined;
10.5. The attesting witness should speak not only about
the testator’s signatures but also that each of the
witnesses had signed the will in the presence of the
testator;
18
10.6. If one attesting witness can prove the execution of
the will, the examination of other attesting witnesses can
be dispensed with;
10.7. Where one attesting witness examined to prove the
will fails to prove its due execution, then the other
available attesting witness has to be called to supplement
his evidence;
10.8. Whenever there exists any suspicion as to the
execution of the will, it is the responsibility of the
propounder to remove all legitimate suspicions before it
can be accepted as the testator’s last will. In such cases,
the initial onus on the propounder becomes heavier.
10.9. The test of judicial conscience has been evolved for
dealing with those cases where the execution of the will is
surrounded by suspicious circumstances. It requires to
consider factors such as awareness of the testator as to
the content as well as the consequences, nature and
effect of the dispositions in the will; sound, certain and
disposing state of mind and memory of the testator at the
time of execution; testator executed the will while acting
on his own free will;
10.10. One who alleges fraud, fabrication, undue influence
et cetera has to prove the same. However, even in the
absence of such allegations, if there are circumstances
giving rise to doubt, then it becomes the duty of the
propounder to dispel such suspicious circumstances by
giving a cogent and convincing explanation.
10.11. Suspicious circumstances must be “real, germane
and valid” and not merely “the fantasy of the doubting
mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC
277] “. Whether a particular feature would qualify as
“suspicious” would depend on the facts and circumstances
of each case. Any circumstance raising suspicion
19
legitimate in nature would qualify as a suspicious
circumstance, for example, a shaky signature, a feeble
mind, an unfair and unjust disposition of property, the
propounder himself taking a leading part in the making of
the will under which he receives a substantial benefit, etc.
11. In short, apart from statutory compliance, broadly it
has to be proved that : (a) the testator signed the will out
of his own free will, (b) at the time of execution he had a
sound state of mind, (c) he was aware of the nature and
effect thereof and (d) the will was not executed under any
suspicious circumstances.
24. Very recently, in the matter of Metpalli Lasum Bai (since
dead) and others Vs. Metapalli Muthaith (D) by legal representatives 4,
their Lordships of the Supreme Court has held that Will is a registered
document and, thus, there is presumption regarding genuineness thereof.
Therefore, burden would lie on the party, who disputed its existence to
establish that it was not executed in the manner as alleged or that there
were suspicious circumstances, which made the same doubtful.
25. Prior to raising such presumption, propounder of the Will is
prima facie bound to prove genuineness of the Will in the manner as has
been provided in Section 63 of the Indian Succession Act, 1925 read with
Section 68 of the Evidence Act, as has been observed in the case of
Murthy & others (supra) and Meena Pradhan & others (supra).
26. Applying the ratio of law laid down by the Supreme Court in afore-
cited case (s) to the facts of instant case, it is quite apparent that
defendants No. 2, 4 and 5 are claiming their absolute right over the suit
4 Civil Appeal (S) No. 5921 of 2015 & Civil Appeal (S) 5922 of 2015, decided on 21st July, 2025
20
land on the basis of Will dated 4.7. 1988 (Ex.D-7) executed by late Khedu
Ram Verma in their favour, but neither they have filed original Will
allegedly executed by late Khedu Ram Verma nor defendant – Dilip
(DW-1), who is one of the propounder / beneficiary of the Will, has stated
in his deposition that why original Will has not been filed & proved. Even
he has not authenticated that document Ex.D-7, which is said to be
certified copy of the said Will. Rather Ex.D-7, which is said to be certified
copy of said Will has been authenticated by defendant No. 8 – Shanti Bai,
who is not propounder / beneficiary of the Will.
27. Perusal of B. (1) of Kistbandi Khatouni of the year 1994-95 (Ex.P-2)
would show that earlier after death of Khedu Ram Verma, suit land was
recorded in the name of plaintiff and defendants No. 1 to 5 in compliance
of Namantaran Order No. 7 dated 26.6.1990, if alleged Will was executed
by Khedu Ram Verma in favour of defendants No. 2, 4 & 5, then question
arises as to why, while that Namantaran (QkSrh vkns’k) they had not disclosed
about the execution of alleged Will, rather it seems that based on that will,
defendants No. 2, 4 & 5 recorded their names in the revenue record of the
suit land in the year 1994-95 i.e. after 5 – 6 years from the date of death of
Khedu Ram Verma, who died on 27.06.1989, thus, it is found that they
keep the Will in dark for more than 5-6 years, even after death of Khedu
Ram without getting it acted upon.
28. Ex.D-7 is said to be certified copy of alleged Will of late Khedu
Ram Verma, in which, he has put his thumb impression. Only attesting
witness Kartik Ram has also stated in his cross-examination that Khedu
Ram Verma had put his thumb impression on the Will in his presence,
21
whereas, defendant – Dilip (DW-1) has admitted in his cross-examination
that his father late Khedu Ram was educated person and of a reputed
family.
29. Sundar Ram Verma (DW-2), who is cousin brother of late Khedu
Ram Verma, has also admitted that they are old Malugujar and he has
also admitted that Khedu Ram was educated person and he put his
signature on the documents. Shanti Bai (DW-4), who is daughter of late
Khedu Ram Verma, has also admitted in her cross-examination that his
father used to do all the paper works as per his requirement by his own
hand. Thus, from the aforesaid evidence, it is very well proved that late
Khedu Ram Verma was educated person, he used to do his paper works
in his own writing and also put his signature on the documents. But
alleged Will (Ex.D-7) does not contain his signature, rather it contents his
thumb impression. Attesting witness Kartik Ram Verma (DW-3) has also
stated that Khedu Ram Verma had put his thumb impression on the Will in
his presence, but neither he nor Dilip Kumar (DW-1) have stated in their
deposition that when Khedu Ram Verma was educated person, then why
he did not put his signature on the Will and under which circumstances,
instead of signing the Will, he put his thumb impression, whereas, sole
attesting witness Kartik Ram Verma (DW-3) has stated in his deposition
that while execution of alleged Will, Khedu Ram was perfectly healthy
person. If it is so, then why instead of putting his signature on the Will, put
his thumb impression. This is grave suspicion surrounded the Will.
30. Kartik Ram Verma (DW-3) is said to be only attesting witness of
alleged Will, but while his deposition, neither certified copy of the Will
22
(Ex.D-7) was authenticated from his deposition nor his signature on it, has
been shown and authenticated / proved by defendants, therefore, it cannot
be said that alleged Will (Ex.D-7) has been duly proved by Kartik Ram
Verma (DW-3).
31. Dilip Kumar (DW-1) is propounder of the Will and Kartik Ram Verma
(DW-3) is attesting witness of the Will, but they have not stated that who is
the second attesting witness of the Will (Ex.D-7). It has also not been
proved that why second attesting witness [Himitram /not clear] has not
been examined and whether he is alive or not. Though as per Section 68
of the Evidence Act, 1872, one attesting witness of the Will can prove the
Will, but one attesting witness examined, in his evidence, has to satisfy the
attestation of Will by him and the other attesting witness in order to prove
that there was due execution of the Will. If the attesting witness examined
besides his attestation does not satisfy the requirement of attestation of
the Will by other witness also it falls short of attestation of the will at least
by two witnesses for the reason that the execution of Will does not merely
mean the signing of it by testator, but it means fulfilling and proof of all the
formalities required under Section 63 of the Indian Succession Act, 1925.
32. In the instant case, since second attesting witness has not been
examined, therefore, in view of above facts, it cannot be said that
execution of the Will in terms of clause (c) of Section 63 of the Act, 1925,
viz, attestation by two attesting witnesses in the manner contemplated
therein, has been proved. Therefore, merely on the basis of vague
statement of sole attesting witness – Kartik Ram (DW-3) that late Khedu
Ram had executed Will (Ex.D-7) of the suit property in favour of
23
defendants No. 2, 4 & 5 cannot held to be proved as per the provisions of
Section 63 of the Indian Succession Act. Moreover, there are various
suspicious circumstances surrounded the Will i.e. (i) original Will has not
been filed & proved (ii) The Will did not see the light of the day for four –
five years (iii) when Testator Khedu Ram Verma was educated person,
then why he did not put his signature on the Will and under which
circumstances, he put his thumb impression on the Will
33. In view of the foregoing discussion, it is found that learned trial Court
as well as first appellate Court has not erred in law in not relying the
genuineness of Will (Ex.D-7) holding that execution of Will has not been
proved in accordance with law. Consequently, judgment & decree passed
by the trial court as well as first appellate Court is upheld and the second
appeal filed by appellants / defendants deserved to be dismissed.
34. Accordingly, substantial question of law is answered in favour of
plaintiff and against the defendants No. 1, 2, 4 & 5. Consequently, second
appeal fails and is hereby dismissed. No cost (s).
35. A decree be drawn up accordingly.
36. Pending application (s), if any, also stands disposed of.
Sd/-
(Naresh Kumar Chandravanshi)
Judge
Digitally signed
AMIT by AMIT
KUMAR DUBEY
KUMAR Date:
DUBEY 2025.08.23
11:27:37 +0530