Madhya Pradesh High Court
Rovindra Singh vs Smt.Murti Bai on 16 July, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
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S.A.No.254/2011
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 16th OF JULY, 2025
SECOND APPEAL No. 254 of 2011
ROVINDRA SINGH AND OTHERS
Versus
SMT.MURTI BAI AND OTHERS
Appearance:
Shri Navnidhi Parharya - Advocate for appellants.
Shri Abhishek Singh Bhadauria - Advocate for respondent No.1.
Shri S.S. Kushwaha - Government Advocaet for State.
ORDER
Heard on the question of admission.
2. This Second Appeal, under Section 100 of CPC, has been filed against the
judgment and decree dated 26.11.2010 passed by Additional Judge to the Court of
I Additional District Judge, Datia 3in Civil Appeal No.36-A/2008 as well as
judgment and decree dated 10.09.2008 passed by Additional Judge, Bhander to
the Court of First Civil Judge, Class II, Datia in Civil Appeal No.18-A/2005.
3. The facts necessary for disposal of the present appeal, in short, are that Smt.
Murti Bai/respondent filed a suit for declaration of title and permanent injunction.
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4. It is the case of plaintiff that her husband Late Mohan Lal had half share in
Survey Nos.207, 213, 214, 219 Min., 263 Min., 283 Min., 287 Min., 289, 379,
383, 510, 525 total area 10.44 hectares situated at Village Pyaval, Tahsil Bhander,
District Datia. Husband of plaintiff expired on 20.07.2001 without executing any
Will. Plaintiff is the sole legal representative as plaintiff and Mohan Lal had no
issue. After the death of Mohan Lal, plaintiff being the sole owner is in exclusive
possession of the property in dispute. Dayaram is the brother of Mohan Lal who
has also expired. The defendant No.1 is the son of Sumitra who is the daughter of
Dayaram and defendants No.2 to 5 are the daughters of Dayaram. Mahipal Singh
is the father of defendant No.1 who is clever and shrewd person. After the death
Mohan Lal, Mahipal Singh prepared a forged Will in favour of defendants No.1 to
5 and on the basis of same, he made an application before Tahsildar for mutation.
As soon as the plaintiffs came to know about the said proceedings, she appeared
and raised objection that she is the sole owner of the land in dispute. However, by
ignoring the objection, Tahsildar by order dated 20.07.2005 accepted the mutation
in favour of defendants No.1 to 5. It was claimed that Will dated 12.07.2001 is a
forged document which was never executed by Mohan Lal. Mohan Lal was
suffering from cancer and had lost his memory about one month prior to
execution of the said Will. Mohan Lal expired on 20.07.2001 in Jhansi Nursing
Home. He never went to Bhander for execution of Will and thus, the suit was
filed for declaration.
5. The defendants filed their written statements and claimed that Mohan Lal
has executed the Will on 12.07.2001 and in fact, deceased Mohan Lal had
performed the marriage of mother of defendant No.1. It was claimed that after the
death of Mohan Lal, defendants are in possession of the land which was
bequeathed to them by Mohan Lal. It was claimed that Will was executed by
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Mohan Lal on 12.07.2001 out of his own volition. It was denied that Mohan Lal
had lost his memory. It was admitted that Mohan Lal had expired on 20.07.2001.
6. The Trial Court after framing issues and recording the evidence decreed the
suit and it was held that defendants/appellants have failed to prove execution of
Will.
7. Being aggrieved by judgment and decree passed by Trial Court, appellants
preferred an appeal which too has been dismissed by Court below.
8. Challenging the judgment and decree passed by Courts below, it is
submitted by counsel for appellants that both the Courts blow have committed
material illegality by holding that defendants have failed to prove the execution of
Will and proposed the following substantial questions of law:-
“1. Whether the Learned Courts below urged in law in
passing the judgment and decree dated 26.11.2010 and
10.09.2008 without meet out the reasons?
2. Whether the Learned Courts below has committed
an error in shifting the burden upon the defendants for
proving the will in dispute, whereas the defendants have
already proved the will by leading cogent evidence
thereafter hevey burden is on the plaintiff to prove the
will to be forged?
3. Whether the Learned Courts below were justified
in passing the impugned judgment and Decree especially
the defendant has proved that he got the will executed
and the same was also proved and after the death of
Mohanlal he is in cultivating & peaceful possession of
the propery in question?
4. That, the provisions of Section 73 of the evidence
act should have been invoked in the present case by the
learned trial, In absence of the same, whether the
findings recorded by the learned trial court are
sustainable?
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5. Whether the Learned Courts below were justified
in passing the impugned judgment and decree in the facts
and circumstances of the case.”
9. Heard learned counsel for the appellants.
10. Before considering the merits of the case, this Court would like to consider
the law governing the field of Will.
11. 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
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 Indian Succession Act
are also relevant. Section 59 provides that every person ofSignature Not Verified
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S.A.No.254/2011sound 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 testator who has
already departed the world cannot say 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 theSignature Not Verified
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S.A.No.254/2011document 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
that all legitimate suspicions should be completely removed
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 discloseSignature Not Verified
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S.A.No.254/2011another 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 determining the
question as to whether an instrument produced 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
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S.A.No.254/2011suspicion, 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.
**** **** ****
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 the
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
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S.A.No.254/2011propounders 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 propounders on the
first five issues and in favour of the 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
observations made by Lindley and Davey, L. JJ.,
in Tyrrell v. Painton [(1894) P 151, 157, 159] . “The ruleSignature Not Verified
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S.A.No.254/2011in 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 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
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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 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.”
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12. 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
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.
13. 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.
14. 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
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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 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 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 ofSignature Not Verified
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S.A.No.254/2011the 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.”
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
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S.A.No.254/2011suspicion. 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 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.
(v) The propounder takes a prominent part in the
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S.A.No.254/2011execution 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.
***
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] ,
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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
is required to adopt a rational approach and is furthermore
required to satisfy its conscience as existence of suspicious
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
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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
execution will definitely 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.”
15. 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
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representatives and another v. L. Bakthavatsalam (Dead) by legal
representatives and others, reported in (2021) 16 SCC 543.
16. 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.
17. 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.
18. If the facts of this case are considered in the light of law laid down by
Supreme Court as mentioned above, then it is clear that propounder of Will has
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failed to remove all the suspecious circumstances which are attached to the
disputed Will. Mahipal Singh (DW-1) has stated that Mohan Lal had come to
execute the Will alongwith witness. Will was typed in Tahsil Bhander but could
not point out that who had typed the Will. Advocate Zahid had notarized the Will
and had returned the Will to Mohan Lal. Thus, this witness has not stated that who
had typed the Will, he has also not stated that the Will was read out to Mohan Lal,
he has not stated about mental and physical condition of Mohan Lal.
19. Rajaram (DW-2), who is the atttesting witness, has stated that he had gone
to market and for driking water, he went to Tahsil Office where he met with
Mohan Lal who took this witness along with him. He was informed by Mohan
Lal that the document is Will and therefore, he should sign on it. The document
was signed by Mohan Lal, thereafter it was signed by Santosh and thereafter it
was signed by this witness, but he was unable to state as to who had typed the
Will. He had further stated that after signing the Will, he went back to his house.
20. Santosh (DW-3) is also attesting witness of Will. He has stated that
Siddiqui Advocate had written the Will but he could not point out the name of
typist. After Will was drafted, it was signed by Mohan Lal. Thereafter, it was
signed by two advocates, then it was signed by Rajaram and at the end it was
signed by him. This witness was unable to depose that on which paper the Will
was typed. He was unable to point out as to whether stamp paper was purchased
in his presence or not? He stated that he had signed Will in the presence of typist
and not in the presence of Notary. He stated that photograph of Mohan Lal was
affixed on the Will, thereafter he disowned the aforesaid statement and claimed
that he does not remember as to whether the photograph was affixed or not? He
was unable to state as to whether Will was handed over to Munnalal or Mahipal.
21. Zahiduddin Siddiqui (DW-4) is the notary. He stated that attestator as well
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as the attesting witnesses had signed in his presence at time of execution of Will.
22. None of the witnesses have stated about the physical and mental medical
condition of Mohan Lal. Admittedly Mohan Lal expired after 8 days of execution
of aforesaid Will (Ex.D/1). Will was purportedly executed on 12.07.2001 and
admittedly Mohan Lal died on 20.07.2001. The death certificate of Mohan Lal has
been filed by defendants themselves as Ex.D/2. According to the death certificate,
Mohan Lal was hospitalized on 18.07.2001 at 5:50 pm and he expired on
20.07.2001 at 6:45 pm. Mohan Lal had breathed his last at Nirmal Hospital
Jhansi. It was admitted by Mahipal (DW-1) that Mohan Lal was suffering from
T.B. and was a cancer patient. He was suffering from cancer for last one year.
Thus, it is clear that health condition of Mohan Lal was very poor and he died
within 8 days from the date of execution of Will. Except Zahiduddin Siddiqui
(DW-4) nobody had staed that after the Will was typed, it was read over to Mohan
Lal. Nobody has disclosed the name of person who had typed the Will. Nobody
has disclosed the name of person who had dictated the Will. Nobody has stated
that contents of Will were understood and accepted by Mohan Lal. Rajaram (DW-
2) has stated that initially Mohan Lal signed the Will, thereafter it was signed by
Santosh and thereafter, it was signed by Rajaram whereas Santosh (DW3) has
stated that after Mohan Lal signed the Will, then two Advocates signed the Will,
then Rajaram signed the Will and thereafter, Santosh signed the Will.
23. Both the Courts below have given a concurrent finding of facts that
defendants/appellants have failed to prove the execution of Will. This Court has
also independently gone through the evidence led by the parties and has found
that defendants have failed to remove all the suspecious circumstances which are
attached to Will and have also failed to prove that Will was executed. It is well
established principle of law that even if the finding of facts are found to be
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erroneous, still this Court in exercise of power under Section 100 of CPC cannot
interfere with the said findings until and unless they are perverse. No perversity
could be pointed out by counsel for appellants.
24. Accordingly, no substantial questions of law arises in the present appeal. Ex
consequenti, judgment and decree dated 26.11.2010 passed by Additional Judge
to the Court of First Additional District Judge, Datia in Civil Appeal No.36-
A/2008 as well as judgment and decree dated 10.09.2008 passed by Additional
Judge, Bhander to the Court of First Civil Judge, Class II, Datia in Civil Appeal
No.18-A/2005 are affirmed. Second appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
Rashid
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