NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS. 7587-7588 OF 2004

Mahesh Kumar (Dead) By L.Rs. … Appellants

versus

Vinod Kumar and others        … Respondents

J U D G M E N T

G. S. Singhvi, J.

1. These  appeals  are  directed  against  judgment  dated  22.7.2004  of  the  

learned Single Judge of the Madhya Pradesh High Court whereby he allowed  

the appeals filed by respondent No.1 – Vinod Kumar and respondent No.2 –  

Anand Kumar, set aside judgment and decree dated 21.11.2002 passed by II  

Additional District Judge (Fast Track), Harda (hereinafter described as the ‘trial  

Court’)  and  decreed  the  suit  filed  by  respondent  No.1  for  declaration,  

possession, permanent injunction and recovery of rent in respect of the share of  

Shri Harishankar (father of the appellant and respondent Nos.1 and 2) in the  

joint family property.  The learned Single Judge also declared that respondent  

1

No.2 shall be entitled to possession of his share in the suit property in terms of  

Will dated 9.6.1989 (Ex. P-1) executed by Shri Harishankar.     

2. For  the  sake  of  convenience,  the  parties  are  being  referred  to  as  the  

appellant and the respondents.   

3. Appellant  Mahesh  Kumar  who  is  now  represented  by  his  legal  

representatives, respondent Nos. 1 and 2 and their father were members of the  

joint family.  In 1965, respondent No.2 took his share and separated from the  

joint family.  After 20 years, another partition took place among the remaining  

members of the joint family.  In the second partition, respondent No.1 got 9.83  

acres land of village Nimchakhurd and a  house situated at Timarni Bazar.  The  

appellant got the other house situated at Timarni and cash and Shri Harishankar  

got land comprised in Khasra No.92/1, 92/2 and 92/9 situated at Timarni along  

with the bungalow constructed over it.

4. In 1995, respondent No.1 filed Civil Suit No.20A of 1995 and prayed for  

grant of a declaration that by virtue of registered Will dated 9.6.1989 executed  

by  Shri Harishankar, he had become sole owner of the property shown in red  

colour in the map annexed with the plaint and half portion in the shop situated  

2

in the bungalow.  He also prayed for grant of a decree of possession by alleging  

that after the death of father Shri Harishankar, he had asked the appellant to  

give shares to the brothers in terms of Will dated 9.6.1989 but latter declined to  

do so.  The last prayer made by respondent No.1 was that the appellant may be  

directed to pay him share in the arrears of rent of the Bungalow which was  

leased out to Firm Ramesh Chand Dinesh Kumar Agarwal.

5. In his written statement the appellant claimed that after the 2nd partition,  

the parents started living with him and he and his family was looking after  

them. According to the appellant his mother died in January, 1992 and after her  

death,  Shri  Harishankar  executed  Will  dated  10.2.1992  and  bequeathed  his  

share to him because he was looking after  the parents and took care of the  

mother till her death on 23.1.1992 (Ex. D-2).  He also pleaded that respondent  

Nos.1  and  2  were  not  given  anything  because  they  had  already  got  their  

respective shares in the joint family property.

6. In a separate written statement filed by him through his son Alok Kumar-

cum-special power of attorney, respondent No.2 denied that he had separated  

from the joint family in 1965 and taken his share.  Respondent No.2 pleaded  

that he is not bound by the partition which is said to have taken place in 1990  

3

between the appellant,  respondent No.1 and Shri  Harishankar and that he is  

entitled to one-third share in the agricultural land and other properties of the  

joint family.  However, he did not  file counter claim in support of his plea that  

he  was  entitled  to  one-third  share  in  what  he  described  as  the  joint  family  

property.  

7. Respondent No.1 amended the plaint more than once but did not seek a  

declaration  of  invalidity  qua  Will  dated  10.2.1992  on  the  ground  that  Shri  

Harishankar had executed the same under the influence of the appellant.

8. On the  pleadings  of  the  parties,  the  trial  Court  framed various  issues  

including the following:     

“(1)  Whether respondent No.2 had separated from the  joint family in 1965 by taking his share?  

(2) Whether the second partition took place 10 years  prior to the filing of suit by respondent No.1?

(3) Whether Shri Harishankar executed registered Will  dated  9.6.1989 and bequeathed  portion  of  his  share  to  respondent No.1?

(4) Whether  Shri  Harishankar  executed  Will  dated  10.2.1992?

4

(5) Whether  Will  dated 10.2.1992 was valid  and by  virtue of that Will Shri Harishankar bequeathed his share  to the appellant?

9. After analysing the pleadings of the parties and evidence produced by  

them, the trial Court dismissed the suit vide judgment dated 21.11.2002. The  

following are salient features of the findings recorded by the trial Court:

(1) Respondent No.2 had separated from the joint family  in 1965 by taking his share.  

(2) In the 2nd partition, which took place 10 years before  the filing of suit, respondent No.1 got 9.63 acres land in  village  Nimchakhurd  apart  from  the  house  situated  at  Timarni  Bazar,  the  appellant  got  the  house  situated  at  Timarni  (Ward  No.7)  apart  from  cash  and  Shri  Harishankar got land comprising in Khasra No.92/1, 92/2  and 92/9  situated  at  Timarni  apart  from the  bungalow  constructed on the land.

(3) Shri  Harishankar  executed  registered  Will  dated  9.6.1989  and  bequeathed  his  share  in  the  joint  family  property to his three sons.

(4) The second Will executed by Shri Harishankar on  10.2.1992  was  valid  and  in  terms  of  that  Will,  the  appellant acquired the testator’s share in the joint family  property.

(5)    In the absence of any challenge to the second Will,  respondent  Nos.1  and  2  were  not  entitled  to  anything  from the share of Shri Harishankar.

(6) Respondent No.2 was not entitled to anything from  the remaining joint family property because he had not  filed counter claim.   

5

10. Respondent No.1 challenged the judgment and decree of the trial  

Court by filing an appeal under Section 96 C.P.C., which was registered as First  

Appeal No.118 of 2003.  Respondent No.2 also filed separate appeal,  which  

was registered as First Appeal No.133 of 2003.  After hearing the counsel for  

the parties the learned Single Judge of the High Court framed the following  

questions:  

(1) Whether in a partition which took place 30  years  before  the  date  of  the  filing  of  the  suit,  defendant Anand Kumar got his share in the joint  family property?

(2) Whether  a  partition  took  place  among  Harishanker, Vinod Kumar and Mahesh Kumar ten  years before the filing of the suit?

(3) Whether  the  deceased  Hari  Shanker  executed  a  will  on  9.6.89  and  bequeathed  the  property owned by him, to his three sons?

       (4) Whether  on  10.2.92  Hari  

Shanker  executed  a  Will  superseding  the  earlier  Will dated 9.6.89 and bequeathed his property only  to defendant Mahesh Kumar?  

     11.  The  learned  Single  Judge  then  considered  the  rival  

contentions, scrutinize the record of the trial Court and answered question  

nos. 1, 2 and 3 in affirmative and, thereby, confirmed the findings recorded  

6

by the trial  Court that respondent No.2 had separated from the family in  

1965  and  taken  his  share  in  the  joint  family  property;  that  the  second  

partition  took  place  among  Shri  Harishankar,  respondent  No.1  and  the  

appellant 10 years before filing of the suit and each one of them got their  

respective shares and that Will dated 9.6.1989 was duly executed by Shri  

Harishankar.   The  learned  Single  Judge  then  proceeded  to  consider  the  

fourth question and held that even though respondent No.1 had admitted that  

Will dated 10.2.1992 (Exhibit D-2) bears the signatures of Shri Harishankar,  

the  same  cannot  be  treated  to  have  been  validly  executed  because  the  

mandatory  provision contained in Section 63(c)  of the Indian Succession  

Act,  1925  (for  short,  ‘the  1925  Act’)  had  not  been  complied  with.  The  

learned Single Judge referred to the statements of the attesting witnesses,  

viz., Sobhag Chand (DW-3) and Kailash Chand (DW-4) and observed:

“30. However, for certain other reasons, I am of  the  opinion that  the  Will  dated 10-2-92 is  not  a  validly attested document.  According to the case  of propounder of the Will, the Will was attested by  Sobhag Chand (DW-3) and Kailash Chand (DW-4)  but from the evidence of Sobhag Chand (DW-3), it  is clear that when he signed the Will other attesting  witness Kailash Chand was not present.  

Sobhag Chand in his deposition has stated thus:     

“Kailash Chand mere jaane ke kitne samay baad  aaya iski mujhe jaankaari nahi hai.”

7

The witness also states that:

“Mere hastakshar karne ke eek do minat baad hi   Harishankar ji ne hastakshar kiye the.”

 31. This  clearly  established  that  Hari  Shankar  signed the Will in presence of the witness and at  that  time  Kailash  was  not  present.  Thus,  Hari  shankar  did  not  put  his  signature  on the Will  in  presence of Kailash Chand.  Nor witness Kailash  Chand states that he received from the testator a  personal acknowledgement of his signature.  Thus,  from  the  evidence  of  Sobhag  Chand  it  is  established beyond any shadow of doubt that one  of the attesting witnesses, Kailash did not see the  testator signing the Will nor did he receive from  the  testator  a  personal  acknowledgement  of  signature.   Even if both the witnesses signed the  Will in the presence of the testator the Will cannot  be  said  to  be  properly  attested  as  both  the  witnesses did not see the testator signing the Will.  In the absence of proof that the testator signed the  Will in presence of both the attesting witnesses or  his acknowledgment was received, the Will cannot  be  said  to  be  duly  attested  as  the  imperative  condition under Clause (c) of Section 63 of the Act  has not been satisfied.  In order to prove the due  attestation of the Will, the propounder of the Will  had to prove that Sobhag Chand and Kailash the  two witnesses saw the testator signing the Will, but  in the present  case,  the propounder  has failed to  prove attestation of the Will,  the same cannot be  said to be validly attested Will.”      

(underlining is ours)

12. The learned Single Judge then also referred to some discrepancies in  

the statements of the appellant and the attesting witnesses and held that the  

8

appellant failed to discharge the onus of proving that Will dated 10.2.1992  

was duly executed by Shri Harishankar and was attested as per the mandate  

of Section 63(c) of the 1925 Act.  

13. The learned Single Judge then enumerated the following reasons for  

coming to the conclusion that the execution of Will dated 10.2.1992 was  

suspicious and the testator had not acted of his own free will:

(1) The Will was prepared by Shri S. K. Agrawal, Advocate in his office  

in  the  presence  of  Shri  Harishankar  and  some  witnesses  including  Bal  

Kishan (father in law of the appellant) and his son (brother in law of the  

appellant) and  there was no reason for Shri Harishankar to have taken the  

document to the house of Bal Kishan.  

(2) Both the attesting witnesses were chance witnesses.  Sobhag Chand  

(DW-3) was not called by anybody and there was no reason for him to have  

gone to the house of Bal Kishan.  Kailash Chand (DW-4) was called by  

Vishnu  Prasad  S/o  Bal  Kishan  but  the  appellant  gave  out  that  both  the  

witnesses came to meet his father.

(3) Kailash Chand (DW-4) lives at a distance of four furlong from the  

house  of  Bal  Kishan and there  was  no  reason why other  persons  of  the  

9

community who were living in the vicinity of Bal Kishan’s house were not  

called to attest the Will.

(4) There were material contradictions in the statements of the appellant  

and the attesting witnesses.  

(5) The Advocate, who drafted the Will was asked to sign the document  

after the executant (Shri Harishankar) and the two attesting witnesses had  

signed the same.

(6) The  possibility  that  the  signatures  of  Shri  Harishankar  and  the  

attesting witnesses were obtained on blank paper and, thereafter, the draft  

was prepared by Shri S. K. Agrawal, Advocate cannot be ruled out because  

his signature appear on the left side at the bottom of the document in the  

margin.

(7) Will dated 10.2.1992 does not make a mention of the first Will and  

general  statement  made  therein  that  the  testator  was  cancelling  the  

previously executed Will, if any, did not amount to revocation of Will dated  

9.6.1989.

(8) While the first Will was registered, the executant did not bother to get  

the second Will registered.   

10

(9) There was no reason for Shri  Harishankar to have given his entire  

share to the appellant only on the ground that he had served him and his wife  

during their old age.   

(10) The appellant had himself taken active part in the execution of the  

second Will. The tenor of the statement of the appellant is indicative of the  

extra interest taken by him in the execution of the second Will.  

(11) Shri Harishankar had executed the second Will at the persuasion of  

the appellant and thus there was every reason to think that he had influenced  

the executant.          

14. Shri S. B. Sanyal, learned senior counsel appearing for the appellant  

argued that the trial Court had correctly analysed the pleadings and evidence  

of the parties for coming to the conclusion that the appellant had succeeded  

in  proving  that  Will  dated  10.2.1992  was  validly  executed  by  Shri  

Harishankar  and  the  learned  Single  Judge  of  the  High  Court  committed  

grave error by setting aside the well reasoned findings recorded by the trial  

Court on this issue.  Shri Sanyal emphasised that the learned Single Judge  

misread the statement of Sobhag Chand (DW-3) and erroneously observed  

that  he had signed the Will  as  a  witness  even before  the  executant  Shri  

Harishankar had signed the same and that the evidence of the other witness,  

11

namely, Kailash Chand (DW-4) was liable to be discarded because he had  

not signed the Will in the presence of Sobhag Chand (DW-3).  Shri Sanyal  

submitted that in terms of Section 63(c) of the 1925 Act, attestation of the  

Will by one witness is sufficient and Will dated 10.2.1992 cannot be treated  

invalid  merely  because  the  two  attesting  witnesses  may  not  have  

simultaneously appended their signatures or that Kailash Chand (DW-4) was  

not  present  when Sobhag Chand (DW-3) had attested the Will.   Learned  

senior counsel further argued that the exclusion of some of the heirs cannot  

be a ground for presuming that the Will dated 10.2.1992 was not genuine.  

He pointed out that in the first Will also Shri Harishankar had not given any  

share to his wife and the daughters but that was not taken as a ground for not  

treating the same to be genuine.  Shri Sanyal submitted that non-registration  

of  the  second  Will  was  not  relevant  because  the  law  does  not  require  

registration of the Will.  In support of his submissions, Shri Sanyal relied  

upon the judgments of this Court in Uma Devi Nambiar v. T. C. Sidhan  

(2004) 2 SCC 321, Sridevi v. Jayaraja Shetty (2005) 2 SCC 784, Pentakota  

Satyanarayana v. Pentakota Seetharatnam (2005) 8 SCC 67.

15. Shri Sudhir Chandra, learned senior counsel appearing for respondent  

No.1  supported  the  impugned  judgment  and  argued  that  learned  Single  

12

Judge rightly decreed the suit because the finding recorded by the trial Court  

on the  issue of  validity  of  Will  dated 10.2.1992 was ex-facie  erroneous.  

Learned senior counsel submitted that depositions of Sobhag Chand (DW-3)  

and  Kailash  Chand  (DW-4)  were  full  of  contradictions  and  the  learned  

Single  Judge  rightly  took  cognizance  of  the  same  for  coming  to  the  

conclusion that the Will was not attested as per the requirement of Section  

63(c) of the 1925 Act.  Shri Sudhir Chandra pointed out that while the first  

Will executed by Shri Harishankar on 9.6.1989 was signed him on each page  

and was duly registered at Harda, the second Will was signed only on the  

last  page  and  was  not  registered.   He  then  argued  that  even  though  

respondent No. 1 admitted that signatures on Will dated 10.2.1992 were that  

of his father Shri Harishankar, this cannot by itself lead to an inference that  

the  Will  was  duly  executed  and  was  genuine.  Learned  senior  counsel  

emphasised that onus of proving due execution of the Will is always on the  

propounder and when there are suspicious circumstances, he is duty bound  

to remove the same.  Shri Sudhir Chandra also pointed out that the attesting  

witnesses were not independent persons and this by itself was sufficient to  

give rise to a serious suspicion about the genuineness of the Will and the  

learned Single Judge rightly discarded their testimony because the same was  

contrary to the statement made by the appellant. He submitted that active  

13

participation of the appellant, who was the sole beneficiary of the Will, was  

rightly relied upon the learned Single Judge for holding that the execution of  

Will dated 10.2.1992 was highly suspect.  In support of his arguments, Shri  

Sudhir Chandra relied upon the judgments in H. Venkatachala Iyengar v. B.  

N. Thimmajamma (1959) Supp. 1 SCR 426, Rani Purnima Devi v. Kumar  

Khagendra  Narayan  Dev  (1962)  3  SCR  195,  Ramchandra  Rambux  v.  

Champabai (1964) 6 SCR 814,  Moonga Devi v. Radha Ballabh (1973) 2  

SCC 112, Surendra Pal v. Dr. (Mrs.) Saraswati Arora (1974) 2 SCC 600,  

Seth Beni Chand (since dead) now by Lrs. v. Kamla Kunwar (1976) 4 SCC  

554, Niranjan Umeshchandra Joshi v. Mrudula Jyoti  Rao (2006) 13 SCC  

433, Lalitaben Jayantilal  Popat v. Pragnaben Jamnadas Kataria (2008) 15  

SCC 365, S.  R.  Srinivasa  v.  S.  Padmavathamma (2010) 5 SCC 274 and  

Balathandayutham v. Ezhilarasan (2010) 5 SCC 770.         

16. Before  dealing  with  the  respective  arguments,  we  consider  it  

necessary to mention that after the death of Shri Harishankar, the appellant  

and respondent No. 1 had filed separate applications for mutation of their  

name  in  respect  of  land  bearing  Khasra  No.92/1  Raqba  1-63  acres  and  

converted land bearing Khasra  Nos.  92/2 and 92/9 Raqba 0-35 acres.  In  

support of his claim respondent No. 1 produced Will dated 9.6.1989 and the  

appellant produced Will dated 10.2.1992. By an order dated 31.12.1996, the  

14

Tehsildar sanctioned mutation in favour of respondent No. 1. That order was  

set aside by Sub-Divisional Officer, Harda, who remanded the case to the  

Tehsildar  for  reinvestigation.  The  appellate  order  was  set  aside  by  

Additional Commissioner, Hoshangabad Division by observing that the Will  

produced  by  the  appellant  was  suspicious.  The  revisional  order  was  

challenged  by the  appellant  by  filing  a  petition  under  Section  50  of  the  

Madhya Pradesh Land Revenue Code, 1959. After examining the record and  

considering the arguments made before him, the Administrative Member of  

the Revenue Board, Madhya Pradesh vide his order dated 21.7.2000 allowed  

the petition and directed that the mutation be done in accordance with Will  

dated 10.2.1992. This is evinced from paragraph 5 of order dated 21.7.2000,  

the relevant portion of which is extracted below:

“The  Will  dated  9.6.1989  is  the  registered  Will  and  its  witnesses  have  also  been  examined.  Therefore,  there  is  no  doubt in its validity. The statements were also taken of the two  witnesses of the Will dated 10.2.1992. That although the same  is  not  registered  but  there  is  no  doubt  in  its  existence.  The  signature done by Hari Shankar in the Will dated 10.2.1992 has  been proved by the witness Salig Ram. That it has come in the  evidence that Hari Shankar were 5 brothers and that he received  50 acres of and house in partition.  That in between the three  sons of Hari Shankar the partition had already taken place. It  has been a long time since Anand Kumar had separated himself  and Vinod Kumar separated himself in the year 1984-85. The  said fact has also come in the evidence. That on the said fact no  dispute  has arisen by any party.  The said fact  has also been  accepted  by  Vinod  Kumar.  The  present  dispute  is  only  in  

15

respect  of  the  1-98  acres  of  land  in  village  Timarni  and  on  which  the  house  has  also  been  built.  That  any  person  can  execute the Will number of times during his life span and under  these  circumstances  the  Will  which  has  been  executed  last  would be taken into account.  The suspicion or  doubt can be  raised if the Will is executed in favour of the third party from  outside  and  not  in  favour  of  the  natural  legal  heirs  of  the  deceased. But in case the priority is given only to some of the  natural legal heirs in comparison to the other natural legal heirs  then only on this very reason the Will cannot be held as been  invalid. That when for once the Will date 10.2.1992 has been  proved and there is no doubt on the part  of the testator Hari  Shankar in executing the same then under those circumstances  there  left  no  importance  in  the  old  Will  and  the  proceeding  would be initiated in accordance with the new Will. That the  fact of the new Will been executed on account of bad behaviour  on the part of Vinod Kumar and Anand Kumar or it has been  executed on account of the death of the wife of Hari Shankar  would  not  affect  the  existence  of  the  Will.  Accordingly,  the  order dated 31.12.1996 of the Trial Court and the order dated  30.5.1998 of the Additional Commissioner are set aside. The  mutation proceedings would be done in accordance with the last  Will dated 10.2.1992 of the deceased.”

     (underlining is ours)

The aforesaid order acquired finality because the same was not challenged  

by respondent No.1 by filing a petition under Article 226 or Article 227 of  

the Constitution.

17. The other important fact which needs to be noticed is that the suit fild  

by  the  appellant  for  eviction  of  the  tenant,  i.e.,  Firm  Ramesh  Chandra  

Dinesh Kumar Agrawal was decreed by the trial Court and possession of the  

suit premises was handed over to the appellant.  In that suit, respondent No.  

16

1 had sought his impleadment as party but his prayer was declined by the  

trial  Court  and  the  revision  filed  against  the  trial  Court’s  order  was  

dismissed by the High Court.

18. We  shall  now  consider  whether  the  appellant  had  succeeded  in  

discharging  the  onus  of  proving  that  Will  dated  10.2.1992  was  validly  

executed. For deciding this question it will be useful to notice some of the  

precedents  in  which  this  Court  had  considered  the  mode  and manner  of  

proving a Will. In one of the earliest judgments in H. Venkatachala Iyengar  

v.  B.  N.  Thimmajamma  (supra),  the  three  Judge  Bench  noticed  the  

provisions of Sections 45, 47, 67 and 68 of the Indian Evidence Act, 1872  

and Sections 59 and 63 of the 1925 Act and observed:  

“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  

17

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.

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 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.

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  

18

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.

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  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.”

(emphasis supplied)

19

19. The ratio of  H. Venkatachala Iyengar’s case was relied upon  or referred  

to in Rani Purnima Devi v. Kumar Khagendra Narayan Dev (supra),  Shashi  

Kumar Banerjee v. Subodh Kumar Banerjee AIR 1964 SC 529, Surendra Pal v.  

Dr. (Mrs.) Saraswati Arora (supra), Seth Beni Chand (since dead) now by Lrs.  

v. Kamla Kunwar (supra), Uma Devi Nambiar v. T.C. Sidhan (supra), Sridevi v.  

Jayaraja  Shetty  (supra),  Niranjan Umeshchandra  Joshi  v.  Mrudula Jyoti  Rao  

(supra) and S. R. Srinivasa v. S. Padmavathamma (supra).  In Jaswant Kaur v.  

Amrit Kaur, (1977) 1 SCC 369 the Court analysed the ratio in H. Venkatachala  

Iyengar’s case and culled out the following propositions: -

“1. Stated generally,  a  will  has to be proved like any other  document,  the  test  to  be  applied  being  the  usual  test  of  the  satisfaction of the prudent mind in such matters. As in the case  of proof of other documents, so in the case of proof of wills,  one cannot insist on proof with mathematical certainty.

2. Since Section 63 of the Succession Act requires a will to be  attested,  it  cannot  be  used  as  evidence  until,  as  required  by  Section 68 of the Evidence Act, 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.

3. Unlike other documents, the will speaks from the death of the  testator and therefore the maker of the will is never available  for deposing as to the circumstances in which the will came to  be executed. This aspect introduces an element of solemnity in  the decision of the question whether the document propounded  

20

is  proved  to  be  the  last  will  and  testament  of  the  testator.  Normally, the onus which lies on the propounder can be taken  to be discharged on proof of the essential facts which go into  the making of the will.

4. Cases in which the execution of the will is surrounded by  suspicious circumstances stand on a different footing. 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  and  such  other  circumstances  raise  suspicion  about  the  execution of the will. That suspicion cannot be removed by the  mere  assertion  of  the  propounder  that  the  will  bears  the  signature of the testator or that the testator was in a sound and  disposing state of mind and memory at the time when the will  was made, or that those like the wife and children of the testator  who would normally receive their due share in his estate were  disinherited  because  the  testator  might  have  had  his  own  reasons  for  excluding  them.  The  presence  of  suspicious  circumstances makes the initial onus heavier and therefore, in  cases where the circumstances attendant upon the execution of  the will excite the suspicion of the court, the propounder must  remove all  legitimate  suspicions before the document can be  accepted as the last will of the testator.

5.  It  is  in  connection  with  wills,  the  execution  of  which  is  surrounded  by  suspicious  circumstances  that  the  test  of  satisfaction of the judicial conscience has been evolved. That  test emphasises that in determining the question as to whether  an instrument produced before the court is the last will of the  testator, the court is called upon to decide a solemn question  and by reason of suspicious circumstances the court has to be  satisfied fully  that  the  will  has been validly  executed by the  testator.

6. If a caveator alleges fraud, undue influence, coercion etc. in  regard to the execution of the will, such pleas have to be proved  by  him,  but  even  in  the  absence  of  such  pleas,  the  very  circumstances surrounding the execution of the will may raise a  doubt as to whether the testator was acting of his own free will.  

21

And then it is a part of the initial  onus of the propounder to  remove all reasonable doubts in the matter.”

20. In Uma Devi Nambiar v. T.C. Sidhan (supra), the Court held that active  

participation of the propounder /  beneficiary in the execution of the Will  or  

exclusion of the natural heirs cannot lead to an inference that the Will was not  

genuine. Some of the observations made in that case are extracted below:  

“A Will is executed to alter the ordinary mode of succession  and by the very nature of things, it is bound to result in either  reducing  or  depriving  the  share  of  natural  heirs.  If  a  person  intends  his  property  to  pass  to  his  natural  heirs,  there  is  no  necessity at all of executing a Will. It is true that a propounder  of  the  Will  has  to  remove  all  suspicious  circumstances.  Suspicion means doubt, conjecture or mistrust. But the fact that  natural  heirs  have either been excluded or a lesser share has  been given to them, by itself without anything more, cannot be  held to be a suspicious circumstance especially in a case where  the bequest has been made in favour of an offspring. As held in  P.P.K. Gopalan Nambiar v. P.P.K. Balakrishnan Nambiar it is  the  duty  of  the  propounder  of  the  Will  to  remove  all  the  suspected features, but there must be real, germane and valid  suspicious features and not fantasy of the doubting mind. It has  been  held  that  if  the  propounder  succeeds  in  removing  the  suspicious circumstance, the court has to give effect to the Will,  even if the Will might be unnatural in the sense that it has cut  off  wholly  or  in  part  near  relations.  (See  Pushpavathi  v.  Chandraraja  Kadamba.)  In  Rabindra  Nath  Mukherjee  v.  Panchanan Banerjee it  was observed that the circumstance of  deprivation  of  natural  heirs  should  not  raise  any  suspicion  because  the  whole  idea  behind  execution  of  the  Will  is  to  interfere with the normal line of succession and so, natural heirs  would be debarred in every case of Will. Of course, it may be  that in some cases they are fully debarred and in some cases  partly.”

22

(emphasis supplied)

The  same  view  was  reiterated  in  Pentakota  Satyanarayana  v.  Pentakota  

Seetharatnam (supra).

21. In the light of the above, it is to be seen whether the appellant succeeded  

in proving that  Shri Harishankar had executed Will  dated 10.2.1992 and the  

same was duly attested as per the mandate of Section 63(c) of the 1925 Act.  

22. In his statement filed in the form of affidavit under Order XVIII Rule 4  

Code of Civil Procedure the appellant categorically stated that respondent No. 1  

separated from the joint family in 1985 and got a house at Timarni apart from  

10 acres land situated at Village Nimacha. The appellant further stated that his  

father  and  respondent  No.  1  were  running  Anand  Medical  stores  as  a  

partnership  which was  dissolved  and the medical  store  was  handed over  to  

respondent No. 1; that after dissolution of the partnership, he started a shop of  

seeds,  fertilizer  and pesticides and he and his  wife and daughter  served the  

parents till their death. According to the appellant, after the death of the mother,  

his  father-in-law had invited his family members including the father for “dehli   

chudane” ceremony and at that time his father got prepared Will and signed the  

same in the presence of witnesses,  who also appended their  signatures.  The  

appellant  also  stated  that  he  was  paying  nazul  tax,  house  tax,  rent,  etc.,  in  

23

respect of 2 acres land and the bungalow. He also stated that the Revenue Board  

had passed order for mutation of his name and that in furtherance of the decree  

passed in the eviction suit, he obtained possession of the bungalow from the  

tenant.  Along  with  the  affidavit,  the  appellant  produced  several  documents  

including  the  receipts  showing  payment  of  the  rent  and  various  taxes  and  

conversion of a portion of the agricultural land. He also produced copies of the  

judgment and order passed by the Civil Court and the Revenue Board.

23. The appellant was subjected to lengthy cross-examination by the counsel  

for respondent Nos. 1 and 2. In reply to one of the questions put by the counsel  

for respondent No. 1, the appellant stated that there was a partition in 1985 in  

which respondent No. 1 was given 10 acres land at Nimacha and house situated  

at Gandhi Chowk, Timarni. In response to another question, the appellant stated  

that his father had put signatures on Exhibit D-2 in his presence and that his  

father and others did not sign on the first page because the writing was not  

complete.  The  appellant  also  stated  that  Kailash  Chand  (DW-4)  had signed  

before Sobhag Chand and Sh. S.K. Agarwal had signed after his father and two  

witnesses had signed the Will. In reply to the question put by the counsel for  

respondent No. 2, the appellant stated that till 1965 all the brothers and parents  

lived together and, thereafter, respondent No. 2 separated from the joint family.  

In reply to another  question,  the appellant  gave out  that  Sobhag Chand and  

24

Kailash Chand are neither related to his father nor are they his friends but knew  

him and they used to visit his in-laws. The appellant also stated that his father  

had told the witnesses that he had executed Will because he was happy with the  

services rendered by the appellant and his wife. The appellant gave out that the  

two attesting witnesses do not belong to his caste and the houses of the persons  

belonging to his caste are at a distance from his in-laws house.

24. The evidence of Sobhag Chand (DW-3) and Kailash Chand (DW-4) was  

also  filed  in  the  form  of  affidavits.  They  categorically  stated  that  Shri  

Harishankar  had  read  out  the  Will  in  their  presence  and  they  appended  

signatures after Shri Harishankar had signed the same. The attesting witnesses  

were cross-examined at length about the time of their attesting the Will. Sobhag  

Chand  denied  the  suggestion  that  he  had  signed  the  Will  before  Shri  

Harishankar had signed the same. He expresses his ignorance about the time  

when Kailash Chand had come. He also expressed his ignorance as to after how  

much time Kailash Chand came to the house of Bal Kishan. Although, there is  

some  difference  about  the  point  of  time  when  the  two  attesting  witnesses  

appended  their  signatures  on  the  Will  but  both  have  stood  gruelling  cross-

examination  on  the  factum  of  their  having  signed  as  witnesses  after  the  

executant, viz., Shri Harishankar had signed the Will in their presence and that  

too after reading out the same.  

25

25. From what we have noted above, it is clear that the appellant succeeded  

in discharging the onus of proving that the Will dated 10.2.1992 had in fact  

been executed by Shri Harishankar and he had signed the same in the presence  

of the attesting witnesses who also appended their signatures in his presence.  

The fact that Shri Harishankar was in a sound state of health (physically and  

mentally)  is  established  from  the  statement  of  respondent  No.2  who  

categorically denied the suggestion that the mental and physical condition of his  

father deteriorated 5-6 months prior to his death or that he had lost his mental  

balance.  In his statement, respondent No.1 did not suggest that the physical and  

mental health of his father was not good at the time of execution of Will dated  

10.2.1992.  Not only this, he made the following important admissions:

i) The  parents  were  living  with  the  appellant  and  during  the  illness  of  

mother the appellant’s wife used to look after her.

ii) The expenses  incurred  in  the  funeral  of  the  mother  were  paid by the  

appellant.

iii) The Board of  Revenue decided the case  of  mutation in favour of  the  

appellant and he did not challenge the order of the Board of Revenue.

iv) Shri S.K. Agarwal is related to him and he was his counsel before the  

Board of Revenue.

26

v) The application for impleadment filed by him in the suit instituted by the  

appellant against the tenant was dismissed by the trial Court and the order of the  

trial Court was upheld by the High Court.

vi) That  the  appellant  was  paying  municipal  tax  /  nazul  tax  and  rent  in  

respect of the property which fell to the share of Shri Harishankar.

26. Thus, even from the statement of respondent No.1 it is established that  

the Will (Exhibit D-2) was signed by his father Shri Harishankar and on the  

strength  of  Exhibit  D-2  the  appellant  had  succeeded  before  the  Board  of  

Revenue and the Civil Court.

27. The issue which remains to be examined is whether the High Court was  

justified in coming to the conclusion that the execution of Will dated 10.2.1992  

was shrouded with suspicion and the appellant failed to dispel the suspicion. At  

the  outset,  we  deem it  necessary  to  observe  that  the  learned  Single  Judge  

misread the statement of Sobhag Chand (DW-3) and recorded something which  

does not appear in his statement. While Sobhag Chand categorically stated that  

he had signed as the witness after Shri Harishankar had signed the Will,  the  

portion  of  his  statement  extracted  in  the  impugned  judgment  gives  an  

impression that the witnesses had signed even before the executant had signed  

the Will. Another patent error committed by the learned Single Judge is that he  

27

decided the  issue relating  to  validity  of  the  Will  by assuming that  both the  

attesting  witnesses  were  required  to  append  their  signatures  simultaneously.  

Section 63(c) of the 1925 Act does not contain any such requirement and it is  

settled law that examination of one of the attesting witnesses is sufficient. Not  

only this, while recording an adverse finding on this issue, the learned Single  

Judge omitted to consider the categorical statements made by DW-3 and DW-4  

that the testator had read out and signed the Will in their presence and thereafter  

they had appended their signatures.  

28. The other reasons enumerated by the learned Single Judge for holding  

that  the  execution  of  Will  was  highly  suspicious  are  based  on  mere  

surmises/conjectures. The observation of the learned Single Judge that the  

possibility  of  obtaining  signatures  of  Shri  Harishankar  and  attesting  

witnesses on blank paper and preparation of the draft by Shri S. K. Agarwal,  

Advocate on pre-signed papers does not find even a semblance of support  

from the pleadings and evidence of the parties.  If respondent No.1 wanted  

to show that the Will was drafted by the advocate after Shri Harishankar and  

attesting witnesses had signed blank papers, he could have examined or at  

least summoned Shri S. K. Agarwal, Advocate, who had represented him  

before the Board of Revenue. On being examined before or by the Court,  

Shri S. K. Agarwal could have testified whether he had prepared the Will on  

28

pre-signed papers.  However, the fact of the matter is that it was neither the  

pleaded case of respondent No. 1 nor any evidence was produced by him to  

prove that Shri Harishankar and the attesting witnesses had signed the blank  

papers and, thereafter, Shri S.K. Agarwal prepared the Will.   

29. The mere fact that Kailash Chand lives at a distance of about four  

furlong from the house of Bal Kishan (father in law of the appellant) has no  

bearing on the issue relating to validity of the Will nor the non-examination  

of the persons belonging to the same community has got any relevance.  The  

absence of a categorical recital in Will dated 10.2.1992 that the earlier Will  

was cancelled is also not relevant because once the execution of the second  

Will  is  held  as  duly  proved,  the  earlier  Will  automatically  becomes  

redundant because the second Will represents the last wish of the testator.  

30. The fact that the appellant was present at the time of execution of Will  

dated 10.2.1992 and that the testator did not give anything to respondent Nos. 1  

and 2 from his share in the joint family property are not decisive of the issue  

relating to genuineness or validity of the Will. The evidence produced by the  

parties unmistakably show that respondent No. 2 had separated from the family  

in 1965 after taking his share and respondent No. 1 also got his share in the 2nd  

partition which took place in 1985. Neither of them bothered to look after the  

29

parents  in  their  old  age.  The  attitude  of  respondent  Nos.  1  and  2  left  Shri  

Harishankar and his wife with no choice but to live with the appellant, who  

along with his wife and children took care of the old parents and looked after  

them during their illness. Therefore, there was nothing unnatural or unusual in  

the decision of Shri Harishankar to give his share in the joint family property to  

the appellant. Any person of ordinary prudence would have adopted the same  

course and would not have given anything to the ungrateful children from his /  

her share in the property.

31. In view of the above discussion, we hold that the learned Single Judge  

was clearly  in error in reversing the well-reasoned finding recorded by the trial  

Court on the issues of execution of Will dated 10.2.1992 by Shri Harishankar  

and its  genuineness and validity.  Consequently,  the appeals  are allowed,  the  

impugned  judgement  is  set  aside  and  the  one  passed  by  the  trial  Court  is  

restored. The parties are left to bear their own costs.

…..……….....……..….………………….…J.    [G.S. SINGHVI]

…………..………..….………………….…J.     [SUDHANSU JYOTI MUKHOPADHAYA]

New Delhi,

30

March 13, 2012.

31