Ramesh Chand vs Reshamu Devi (Since Deceased) Through Lrs & Others

Rakesh Kainthla, J

The present appeal is directed against the judgment and decree dated 30.08.2000, passed by the learned District Judge, Hamirpur, H.P. (learned Appellate Court) vide which the judgment and decree dated 16.09.1993, passed by the learned Senior Sub Judge, Hamirpur, H.P. (learned Trial Court), were upheld. (The parties shall hereinafter be referred to in the same manner as they were arrayed before the learned trial Court for convenience).

Briefly stated, the facts giving rise to the present appeal are that the plaintiffs filed a civil suit before the learned Trial Court seeking possession of the suit land mentioned in the headnote of the plaint. It was asserted that the suit land was recorded in the name of Mangtu, son of Chhotu, predecessor-in-interest of the plaintiff and proforma defendants. He died on 13.10.1988. The pedigree table of the parties is as follows:

Pedigree Table

Defendant No.1 propounded a Will stated to have been executed by Mangtu. Mangtu was not in his sound disposing state of mind for three years before his death. He was aged 79-80 years at the time of his death. The plaintiff and pro forma defendants are entitled to inherit the estate of the deceased. Hence, the suit was filed to seek the relief mentioned above.

The suit was opposed by filing a written statement by defendant Nos. 1, 3 and 4, taking preliminary objections regarding lack of locus-standi, the suit being bad for non-joinder of necessary parties, and the plaintiffs being estopped to file the present suit by their act and conduct. The contents of the plaint were admitted to the extent that Mangat Ram was the owner in possession of the suit land and he had expired. It was asserted that the husband of plaintiff No.1 and father of plaintiff No.2 had shifted to Uttar Pradesh about 40-50 years ago. They purchased property and never visited the village. The defendants looked after Mangat Ram and provided him with all the amenities of life. Mangat Ram executed a Will on 4.10.1985 in favour of defendant No.1, his grandson, in his sound disposing state of mind. The plaintiffs are not entitled to the estate of the deceased. Hence, it was prayed that the suit be dismissed.

A separate written statement admitting the claim of the plaintiffs was filed by defendant Nos. 2 and 5.

A replication denying the contents of the written statement and affirming those of the plaint was filed.

The following issues were framed on 08.04.1991

Whether the plaintiffs are entitled for the relief of possession as alleged? OPP.

Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD

Whether the suit is not maintainable, and the plaintiffs have no cause of action as alleged? OPD.

Whether the plaintiffs are estopped from filing the present suit by their act and conduct as alleged? OPD.

Whether Sh. Mangat Ram deceased executed a valid Will on 04.10.1985 in favour of defendant No.1, if so its effect?OPD

If issue No.5 is proved in affirmative, whether the said will is the result of fraud, undue influence, etc., as alleged?OPP.

Relief.

The parties were called upon to produce the evidence, and plaintiff No. 1 examined herself (PW-1), Geeta Devi (PW-2), Joginder Pal (PW-3), Dhari Ram (PW-4) and Ishwar Dass (PW-5). Defendants examined defendant No.1 Ramesh Chand, Meena Kumari (DW-2), Goverdhan Lal (DW-3), Meena Kumari (DW-4), Satish Kumar (D-5), Sohru Ram (DW-6), Harnam Singh (DW-7), Meena Kumari (DW-8), L.R. Verma (DW-9) and Nikka Ram (DW-10).

The learned Trial Court held that the onus to prove the Will was upon the defendants, who had failed to produce the original will before the Court. The execution and attestation of the Will were shrouded in suspicious circumstances. No reason was provided for excluding the other legal heirs. The deceased Mangat Ram remained bedridden for 5 to 7 years before his death, and he could not have gone to Hamirpur for executing the Will; hence, the learned trial Court answered issue No.1 in the affirmative and issues Nos. 2 to 6 are in the negative and decreed the suit filed by the plaintiffs.

Being aggrieved by the judgment and decree passed by the learned trial Court, the defendant Ramesh Chand filed an appeal, which was decided by learned District Judge Hamirpur (learned appellate Court). The learned Appellate Court concurred with the findings recorded by the learned trial Court that the execution and attestation of the Will were shrouded in suspicious circumstances. Mangat Ram had not provided any reason for disinheriting the other legal heirs. The performance of the last rites after the death of the testator will not make the Will valid. The plea taken by the defendants that Ramesh Chand had served Mangat Ram was not supported by the contents of the Will, wherein no such reasons were provided for bequeathing the property in favour of defendant No.1. The deceased was bedridden and could not have visited Hamirpur for the execution and registration of the Will. Learned trial Court had rightly declined to rely upon the Will. There is no infirmity in the judgment and decree passed by the learned trial Court. Hence, the appeal was dismissed.

Being aggrieved by the judgments and decrees passed by learned Courts below, the defendant has filed the present appeal, which was admitted on the following substantial question of law on 22.12.2000:

Whether the two Courts below have misread and mis-appreicated the evidence coming on record with regard to the execution of the Will?

I have heard Mr S.D. Gill, learned counsel for the appellant/defendant, and Mr Rahul Gathania, learned counsel for respondents No.1(a), 1(b), 2, 6(a) to 6(c).

Mr S.D. Gill, learned counsel for the appellant/defendant, submitted that the learned Courts below erred in holding that the execution and attestation of the Will were shrouded in suspicious circumstances. It was duly proved on record that the predecessor-in-interest of the plaintiff had left the village for Uttar Pradesh and settled there. The plaintiffs and their predecessor never visited the village. They did not take care of Mangat Ram. Mangat Ram had executed a Will in favour of defendant No.1 after being satisfied by the services provided by the defendants. Hence, he prayed that the present appeal be allowed and judgments and decrees passed by the learned Courts below be set aside.

Mr Rahul Gathania, learned counsel for respondents No.1(a), 1(b), 2, 6(a) to 6(c), submitted that the learned Courts below have concurrently held that execution and attestation of the Will were shrouded by suspicious circumstances. This is a pure finding of facts and should not be interfered with while deciding a regular second appeal. Hence, he prayed that the present appeal be dismissed. He relied upon the judgment of the Hon'ble Supreme Court in Kala Devi vs. Jagdish Chand (2019) 11 SCC 618 in support of his submission.

I have given a considerable thought to the submission made at the bar and have gone through the records carefully.

Substantial question of law

The law relating to the execution of the Will was explained by the Hon'ble Supreme Court in Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734: (2023) 4 SCC (Civ) 449 as under:

"10.1. The court has to consider two aspects: firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him.

10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:

(a) The testator shall sign or affix his mark to the will, or it shall be signed by some other person in his presence and by his direction, and the said signature or affixation shall show that it was intended to give effect to the writing as a will;

(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of such signatures;

(d) Each of the attesting witnesses shall sign the will in the presence of the testator; however, the presence of all witnesses at the same time is not required.

10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

10.5. The attesting witness should speak not only about the testator's signatures but also that each of the witnesses had signed the will in the presence of the testator;

10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;

10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator's last will. In such cases, the initial onus on the propounder becomes heavier;

10.9. The test of judicial conscience has evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires consideration of factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; a sound, certain and disposing state of mind and memory of the testator at the time of execution; the testator executed the will while acting on his own free will;

10.10. One who alleges fraud, fabrication, undue influence, etc., has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.

10.11. Suspicious circumstances must be "real, germane and valid" and not merely "the fantasy of the doubting mind [Shivakumar v. Sharanabasappa [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ]". Whether a particular feature would qualify as "suspicious" would depend on the facts and circumstances of each case. Any circumstance raising suspicion, legitimate in nature, would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc."

This position was reiterated in Gurdial Singh v. Jagir Kaur, 2025 SCC OnLine SC 1466, wherein it was observed:

"11. A Will has to be proved like any other document subject to the requirements of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1872, that is, examination of at least one of the attesting witnesses. However, unlike other documents, when a Will is propounded, its maker is no longer in the land of the living. This casts a solemn duty on the Court to ascertain whether the Will propounded had been duly proved. Onus lies on the propounder not only to prove due execution but to dispel from the mind of the court all suspicious circumstances which cast doubt on the free disposing mind of the testator. Only when the propounder dispels the suspicious circumstances and satisfies the conscience of the court that the testator had duly executed the Will out of his free volition without coercion or undue influence, would the Will be accepted as genuine. In Smt. Jaswant Kaur v. Smt. Amrit Kaur (1977) 1 SCC 369, this Court, referring to H. Venkatachala Iyengar v. B.N. Thimmajamma 1959 Supp (1) SCR 426, enumerated the principles relating to proof of Will:-

"10. ***** **** **** ****

"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.

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.

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 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.

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.

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.

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

The Court further held:-

"9. In cases where the execution of a will is shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What, generally, is an adversary 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 led by the propounder of the will is such as to satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such satisfaction unless the party which sets up the will offers a cogent and convincing explanation of the suspicious circumstances surrounding the making of the will."

Similarly, in Ram Piari v. Bhagwant (1993) 3 SCC 364, this Court held that when suspicious circumstances exist, Courts should not be swayed by the due execution of the Will alone:

"3. ...................Unfortunately, none of the courts paid any attention to these, probably because they were swayed with due execution even when this Court in Venkatachaliah case [AIR 1959 SC 443: 1959 Supp (1) SCR 426] had held that, proof of signature raises a presumption about knowledge, but the existence of suspicious circumstances rebuts it "

There is no cavil when suspicious circumstances exist and have not been repelled to the satisfaction of the Court, the Court would not be justified in holding that the Will is genuine since the signatures have been duly proved and the Will is registered. (AIR 1962 SC 567).

A similar view was taken in Kala Devi (supra), and it is not necessary to refer to it to avoid repetition of the principle.

The original Will was not produced before the Court, and its certified copy (Ext.DW-2/A), issued by the Sub-Registrar Hamirpur, was brought on record. It is a handwritten copy and does not contain the signatures or the thumb impression of the testator or the witnesses.

The Will (Ext.DW-2/A) reads that Mangat Ram had executed a Will in favour of Kalasho Devi and Ramesh Chand on 02.07.1982, which was being revoked by him, and a fresh Will was being executed in favour of his grandson Ramesh Chand, who would be entitled to inherit the estate.

Learned Courts below had rightly pointed out that no reason was assigned for disinheriting Kalasho Devi, in whose favour the earlier Will was executed. It is true that a Will is executed to disinherit some of the legal heirs, and the mere exclusion of the legal heirs is not a valid reason to doubt the execution of the Will. But, where no reason was assigned for disinheritance, the Will becomes shrouded in suspicious circumstances. It was laid down by the Supreme Court in Gurdial Singh v. Jagir Kaur, 2025 SCC OnLine SC 1466, that when the Will was silent regarding the reason for the disinheritance of the legal heirs, it is to be treated as a suspicious circumstance:

"16. We are conscious that deprivation of a natural heir, by itself, may not amount to a suspicious circumstance because the whole idea behind the execution of the Will is to interfere with the normal line of succession [(1995) 4 SCC 459, (2004) 2 SCC 321 and 1995 Supp (2) SCC 664]. However, in Ram Piari v. Bhagwant (1990) 3 SCC 364 this Court held prudence requires reason for denying the benefit of inheritance to natural heirs and an absence of it, though not invalidating the Will in all cases, shrouds the disposition with suspicion as it does not give inkling to the mind of the testator to enable the court to judge that the disposition was a voluntary act [(1990) 3 SCC 364, Para 2].

The Will was attested by Satish Kumar (DW-5), Lambardar Bajuri and Sohru Ram (DW-6). Satish Kumar (DW-5) admitted in his cross-examination that Sohru Ram is the father-in-law of Ramesh. Mangat Ram and Sohru had called him (Satish Kumar). The Will was already written at the time of his arrival.

Statement of this witness shows that Sohru Ram (DW-6) is related to the beneficiary, and he (Sohru Ram) had called witness Satish Kumar, which shows his active participation in the execution of the Will. Significantly, the Will was not written in the presence of Satish Kumar. There is no requirement that the Will should have been written in the presence of an attesting witness, but when the Will has conferred a benefit upon the beneficiary to the exclusion of other legal heirs and is witnessed by a relative of the beneficiary, there must be some independent evidence regarding the voluntary nature of the disposition.

Goverdhan Lal (DW-3) stated that he had written the Will as per the wishes of Mangat Ram. He stated in his cross-examination that he did not know that Mangat Ram had told him that he had other heirs in whose favour the Will was to be executed. He did not remember that Mangat Ram had left after writing the Will and returned after some time. He did not know that Ramesh Kumar and his father were present. The legal heirs were talking to each other, but he could not say what was being discussed.

The statement of this witness is highly unsatisfactory. He could not say that Mangat Ram had mentioned his other legal heirs and a desire to execute a Will in their favour. This denial for want of knowledge falsifies his statement in the examination in chief that the Will was written as per the wishes of the deceased. His testimony that legal heirs were present and discussed the matter amongst themselves shows that Mangat Ram was not alone, and the inference drawn by the learned Courts below that the Will was not voluntarily executed cannot be faulted.

Sohru Ram (DW-6) stated that Mangat Ram had got a Will executed in favour of Ramesh Kumar. The document writer read over and explained the Will to Mangat Ram, who acknowledged its correctness and put his signature on the Will. He and Satish put their signatures on the Will. He stated in his cross-examination that Garib Dass and his wife used to reside in Uttar Pradesh. He was illiterate and could not identify the disputed Will. Mangat Ram had brought the Lambardar from Bhota. He denied that he had accompanied Mangat Ram to call the Lambardar. He could not tell the time taken to write the Will.

He denied that Mangat Ram had not visited Hamirpur and that some person had impersonated him.

The statement of this witness shows that he is not making the correct statement. He stated that he had not gone to call Satish, which is contrary to the statement of Satish, who stated that Mangat Ram and Sohru Ram had called him. He is a relative of the beneficiary, and his statement is required to be seen with due care and caution.

Ramesh Chand (DW-1) stated in his cross-examination that Mangat Ram was bedridden. He admitted that Mangat Ram remained ill for 4-5 years. He used to take care of Mangat Ram and maintain his hygiene. His statement shows that Mangat Ram was not in a condition to answer the call of nature and was dependent upon Ramesh Chand. This condition persisted for 4-5 years before his death. Mangat Ram died in the year 1988. The Will was stated to have been executed in the year 1985. Therefore, in these circumstances, the Courts below were justified in doubting the capacity of Mangat Ram to execute the Will.

Therefore, both the learned Courts below had rightly held that the execution and attestation of the Will were shrouded in suspicious circumstances. This was a pure finding of fact returned on the basis of the evidence on record. It was laid down by the Hon'ble Supreme Court in Kashibai v. Parwatibai, (1995) 6 SCC 213, that it is not permissible for the High Court to interfere with the findings of fact related to the execution of the Will while hearing the second appeal. It was observed: -

"11...... In the present case, the trial court, after a close scrutiny and analysis of the evidence of Defendant 1, Smt. Parvati Bai, VirBhadra, Sheikh Nabi, Shivraj and Gyanoba Patil, who are witnesses to the Will, recorded the finding that none of them deposed that Lachiram had signed the said Will before them and they had attested it. None of them, except Sheikh Nabi, even deposed as to when the talk about the execution of Will was held. The witness, Sheikh Nabi, however, deposed that the talk about the Will also took place at the time of the talk about the adoption. But this witness too did not depose that deceased Lachiram had signed the alleged Will in his presence. In the absence of such evidence, it is difficult to accept that the execution of the alleged Will was proved in accordance with law as required by Section 68 of the Evidence Act, read with Section 63 of the Indian Succession Act and Section 3 of the Transfer of Property Act. It may be true, as observed by the High Court, that the law does not emphasise that the witness must use the language of the section to prove the requisite merits thereof, but it is also not permissible to assume something which is required by law to be specifically proved. The High Court simply assumed that Lachiram must have put his signature on the Will Deed in the presence of the attesting witness, Sheikh Nabi, simply because the Deed of Adoption is admitted by the witness to have been executed on the same day. The High Court committed a serious error in making the observations that the broad parameters of Nabi's evidence would show that Lachiram executed the Will in his presence, that he signed the Will, being part of the execution of the testament, and this evidence, in its correct background, would go to show that what was required under Section 63 has been carried out in the execution of the Will. With respect to the High Court, we may say that these findings of the High Court are clearly based on assumptions and surmises and are totally against the weight of the evidence on record. The trial court, on a close and thorough analysis of the entire evidence, came to a proper conclusion that the Will has not been proved in accordance with the law which finding has been further affirmed by the lower appellate court after an independent reappraisal of the entire evidence with which we find ourselves in agreement as there was hardly any scope or a valid reason for the High Court to interfere with.

Further, it may not be out of place to mention that sub-section (1) of Section 100 of the Code of Civil Procedure explicitly provides that an appeal shall lie to the High Court from every decree passed in appeal by any court subordinate to the High Court if the High Court is satisfied that the case involves a substantial question of law. Sub-section (4) of Section 100 provides that when the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. But surprisingly enough, the High Court seems to have ignored these provisions and proposed to reappreciate the evidence and interfere with the findings of fact without even formulating any question of law. It has been the consistent view of this Court that there is no jurisdiction to entertain a second appeal on the ground of an erroneous finding of fact, based on an appreciation of the relevant evidence. There is a catena of decisions in support of this view. Having regard to all the facts and circumstances of the present case discussed above, we are satisfied that there was no justification for the High Court to interfere with the well-reasoned findings of the two courts below. Consequently, this appeal must succeed." (Emphasis supplied).

Therefore, it is impermissible for the Court to interfere with the pure finding of facts. Even otherwise, there is no perversity in the judgments and decrees passed by learned Courts below, and this substantial question of law is answered accordingly.

Final Order

In view of the above, the present appeal fails, and it is dismissed, so also the pending applications, if any.

31 The record of the learned Courts below be returned along with a copy of this judgment.