whether the will of one Smt. Nagammanni was validly executed, and whether the same was duly proved by the respondent no.1 and another (original plaintiffs). - whether a learned Judge of the High Court of Karnataka was right in interfering in Second Appeal, into the concurrent findings of the Trial Court and the Lower Appellate Court in exercise of High Court’s powers under Section 100 of Code of Civil Procedure.- A Will, has to be executed in the manner required by S 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness. Section 71 of the Evidence Act is another connected section “which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances”, as observed by this Court in paragraph 11 of Janki Narayan Bhoir Vs. Narayan Namdeo Kadam reported in 2003 (2) SCC 91 and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted. At the same time, as held in that very judgment the section cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Succession Act to present in evidence a witness, though alive and available. - we do hold that the plaintiffs/respondents had proved that Smt. Nagammanni had duly executed a will on 24.10.1943 in favour of the plaintiffs, and bequeathed the suit properties to them. She got the will registered on the very next day. The finding of the Trial Court as well as the First Appellate Court on issue no.2 was clearly erroneous. The learned Judge of the High Court was right in holding that the findings of the Trial and Appellate Court, though concurrent, were bad in law and perverse and contrary to the evidence on record. The second appeal was, therefore, rightly allowed by him. Accordingly, we dismiss the present civil appeal. The Suit No.32 of 1975 filed by the respondents in the Court of Principal Civil Judge at Mandya in Karnataka will stand decreed. They are hereby granted a declaration of their title to the suit property, and for a permanent injunction restraining the defendants from interfering with their possession thereof. In case their possession has been in any way disturbed, they will be entitled to recover the possession of the concerned property, with future mesne profits. In the facts of the present case, however, we do not order any costs. ………..

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1071 OF 2006
M.B. Ramesh (D) By LRS. …Appellants
Versus
K.M. Veeraje Urs (D) By LRS. & Ors. …Respondents
J U D G E M E N T
H.L. Gokhale J.
This Civil Appeal raises the question as to
 whether
the will of one Smt. Nagammanni was validly executed, and
whether the same was duly proved by the respondent no.1
and another (original plaintiffs). 
There is one more connected
issue raised in this appeal as to
whether a learned Judge of
the High Court of Karnataka was right in interfering in Second
Appeal, into the concurrent findings of the Trial Court and the
Page 2
Lower Appellate Court in exercise of High Court’s powers
under Section 100 of Code of Civil Procedure.
Facts leading to this Civil Appeal are as follows:-
2. The respondent no.1 and another, the original
plaintiffs are the sons of a cousin of one Smt. Nagammanni
who died on 21.11.1970. It is claimed by them that she left
behind a will executed way back on 24.10.1943, and
registered with the Sub-Registrar at Mysore, on 25.10.1943.
The original plaintiffs claimed that through the said will she
has bequeathed her property in their favour. The property
referred in the will is her ancestral property. The property of
late Smt. Nagammanni consisted of 11 parcels of dry land
situated in village Mallinathpuram, and 2 parcels of wet land
situated in village Kaggalli, both in taluk Mallavalli in district
Mandya, State of Karnatka. Out of these 11 parcels of dry
land those at Sl. Nos.2, 5 and 10 (from the list referred in the
plaint) were not covered in the will.
3. It was the case of the original plaintiffs that they
were in possession of these parcels of land, and their
possession was sought to be disturbed by the appellant herein
2Page 3
(original defendant no.1 and others). Smt. Nagammanni is
the widow of one C. Basavaraje Urs, whereas the appellant is
the son of this C. Basavaraje Urs from his second wife. After
the death of Smt. Nagammanni, the plaintiffs, as well as the
defendants, applied for entering their names in the revenue
records as the owners of the concerned lands. The Mutation
Registrar however passed an order on 29.3.1971, in favour of
the defendants. The plaintiffs preferred an appeal against the
same to the Assistant Commissioner Mandya. However, when
they found that taking advantage of the said order the
defendant No 1 was trying to disturb their possession over the
suit properties, they were required to file a suit, on the basis
of the will, which they filed in the Court of Principal Civil Judge
at Mandya, and which was numbered as Suit No.32 of 1975.
They prayed for a declaration of their title to the suit property,
and for a permanent injunction restraining the defendants
from interfering with their possession thereof. Alternatively,
they prayed that in case it is held that they were not in
possession, a decree be granted for recovery of possession of
the property with future mesne profits.
3Page 4
4. The suit was contested by the defendants, the
appellant herein, by contending that Smt. Nagammanni was
not the owner of the suit property, and in any case the will
relied upon by the respondents was not a valid one. It was
additionally submitted that the relations of Smt. Nagammanni
and the appellant were cordial, and the claimed will must
have been revoked, which revocation was being suppressed
by the respondents.
5. The learned trial judge raised in all ten issues. The
first out of these issues was whether the plaintiffs proved that
the suit property rightly belonged to Smt. Nagammanni, and
the learned Judge answered it in the affirmative. This finding
has not been disturbed by the fist appellate court, nor
seriously contested in the present Civil Appeal also. It is the
second issue framed by the trial judge which is the crucial
one, namely, whether the plaintiffs prove that Smt.
Nagammanni executed a registered will dated 24.10.1943 in
favour of the plaintiffs, and bequeathed the suit properties to
them.
4Page 5
6. The plaintiff no.1 (PW-1) examined himself in
support of his case. He examined three more witnesses in
support, out of whom the second witness P. Basavaraje Urs
(PW-2) is the most relevant one. The defendants examined
three witnesses though nothing much turns on their evidence.
Documentary evidence was also produced by both the
parties, which has been considered by the courts below. The
respondent no.1/plaintiff identified the signatures made by
Smt. Nagammanni at two different places on the will (exhibit
P-3). Those signatures were marked as P-3 (a) and P-3(d).
While cross-examining him, the appellant produced two inland
letters written by Smt. Nagammanni to claim that their
relations had become cordial, but it must also be noted that
therein she had claimed her maintenance amount from the
appellant.
The respondent no.1 identified the signatures of
Smt. Nagammanni on those two letters, and they were
marked as Exhibits D4 and D5. 
Theses signatures were clearly
comparable with her signatures on the will. 
This was
accepted by the learned trial judge by observing that “on a
comparison of the signatures I find there is some force in this
5Page 6
contention. The signatures tally”. This finding of the trial
judge is neither disturbed by the first appellate court nor by
the High Court.
7. The next witness on behalf of the respondent
no.1/plaintiff was one P. Basavaraje Urs (PW-2). He was
working as a Patel (Village Officer) at village Mallinathpuram,
in district Mandya, at the relevant time. He is an
attesting witness to the will. He produced land revenue
receipts containing his signatures, which were marked as
Exhibits P7 to P14 and P19. He proved his own signature on
the will by comparing it with his signatures on these Exhibits
P7 to P14 and P19. He stated in his cross-examination that,
apart from him, two other persons were attesting witnesses,
namely, M. Mallaraje Urs and Sampat Iyanger. However, by
the time his evidence was being recorded in November 1978,
both of them had passed away. He stated that he could
identify the hand writing and signature of M. Mallaraje Urs.
The signature of M. Mallaraje Urs on the will was marked as
Exhibit P3 (h). He also identified the signatures of Smt.
Nagammanni on the will i.e. P3 (a) and P3 (d). He stated that
6Page 7
she signed the will in his presence and he also signed the
same in her presence. This part of the evidence of PW1 and
PW-2 has remained undisturbed. Thus, it can be safely said
that Smt. Nagammanni has executed the will (Exhibit P3)
which also bears the signatures of PW-2 P. Basavaraje Urs,
and one M. Mallaraje Urs. 
8. The appellants tried to dispute the validity of the
will by drawing attention of the Court to various
circumstances. They disputed the presence of P. Basavaraje
Urs at the time of signing of the will by asking him questions
as to when did he come down to Mysore on that day from
Mallinathpuram, and what did he do on that date. The
learned trial judge, as well as the judge of the first appellate
court, has been impressed by some of the discrepancies in
this behalf appearing in his statement, and which were
highlighted by the appellant. The fact, however, remains that
PW-2 was giving his deposition some 35 years subsequent to
the execution of the will, and therefore not much credence
can be given to such discrepancies in his evidence. It was
also submitted on behalf of the appellant that it was not clear
7Page 8
as to how and when the will was discovered by the
respondents/plaintiffs herein. Further, much emphasis was
laid on the fact that when the will was made by Smt.
Nagammanni, she was just about 40 years of age, and still
described herself in the will as old and infirm. It was also
contended that it was surprising that though the will was
made some 35 years ago, the respondents/plaintiffs did not
know anything about it until the death of Smt. Nagammanni.
As far as the writing of the will is concerned, certain doubts
were raised by pointing out that the writing was not so very
continuous, and the signatures thereon appeared to have
been adjusted. The evidence of PW-2 was also sought to be
assailed by contending that he was an interested witness. It
was pointed out, for that purpose, that in an earlier suit,
arising out of a mortgage of a property of Smt. Nagammanni,
he had feigned ignorance about the place where the will was
written or the persons who were present at that time.
9. As far as this objection is concerned, it must be
stated and cannot be denied that in the earlier suit, PW2 had
very much deposed that he was an attesting witness to the
8Page 9
will. Similarly, about Smt. Nagammani describing herself as an
old person, it must be noted that what she had stated was
that she was getting old. Such a statement by a person will
always depend upon the perception of the person concerned
about the condition of his or her health. It appears that, in
view of her strained relations with her husband, she wanted
her property to be protected, and wanted to make a provision
that it should devolve on her relatives. It is another matter
that she lived long, thereafter. Similarly, there is no substance
in the plea of the defendant No 1 that his relations with Smt.
Nagammani had become cordial and she must have revoked
the will. If that was so, he would have surely produced such a
document of revocation. Similarly, no issue can be made out
of the production and reliance on the will, some 35 years
subsequent to its execution. There is no dispute about Smt.
Nagammani’s signature on the will, and her wishes are clear.
It is only when the properties bequeathed under the will had
to be protected, that the will was required to be produced and
relied upon. A will is required to be acted upon, only after the
testator passes away, and in the instant case immediately
9Page 10
when the occasion arose, the will was produced and relied
upon. In the circumstances, we do not find much force in any
of these objections.
10. As against these discrepancies in the evidence of
PW-2, it was emphasized on behalf of the respondent
no.1/plaintiff that C. Basavaraje Urs, the husband of Smt.
Nagammanni had earlier filed a suit against her, claiming
these very properties as his own properties and that suit
came to be dismissed, which finding was confirmed in appeal.
It was also pointed out that the appellant was the son of C.
Basavaraje Urs from his second wife, and was required to pay
maintenance to Smt. Nagammanni, as required by a Court
order. It was also submitted by the plaintiffs that the will was
a document which was more than 30 years old, and under
Section 90 of Evidence Act, the Court is expected to presume
that the signature in every part of the document is in the
hand writing of the person concerned, and that the document
was duly executed.
11. The trial court accepted the submissions on behalf
of the appellant herein, and held that the plaintiffs had failed
10Page 11
to prove the will since it had not come in the evidence of PW-2
that Smt. Nagammanni had executed the will in the presence
of the second witness M. Mallaraje Urs, or that this M.
Mallaraje Urs had also signed the will in her presence. Thus,
the requirement of Section 63 (c) of the Indian Succession
Act, 1925 (‘Succession Act’ for short) was not fulfilled viz. that
two or more witnesses have to see the testator sign or affix
his mark to the will, and each of the witnesses have also to
sign the will in the presence of the testator. The Court,
therefore, decided issue no.2 against the plaintiffs and
dismissed the suit. The first appellate Court also took the
same view in Regular Appeal No. 30 of 1989, and dismissed
the appeal filed by the respondents herein.
12. The respondent/plaintiff thereafter filed a second
appeal bearing R.S.A No. 546 of 1996, wherein, a learned
Single Judge of the High Court framed the question of law in
the following words:-
“Whether the concurrent findings of the
Appellate Court that the plaintiff have not proved
the will is bad in law and the finding in that regard
is perverse and contrary to the evidence on
record?”
11Page 12
The learned Single Judge decided the said question of law in
favour of the respondents-original plaintiffs by his impugned
judgment and order dated 23.1.2004, which has led to the
present appeal by special leave. When the special leave
petition came up for consideration on 11.10.2004, this court
issued notice and directed that the status-quo as then
obtaining be maintained. Leave to appeal was granted
thereafter on 6.2.2006. We may note that an attempt was
made to settle the dispute by referring it to mediation, but
that has not succeeded.
Consideration of the submissions of the rival
parties:
13. The first submission on behalf of the appellant has
been that the learned judge of the high Court has erred by
framing the question of law, in the manner in which he has. It
was submitted that when the trial court and the first appellate
court have given a concurrent finding about the invalidity of
the will, it was a finding of fact, and the High Court could not
have disturbed the finding of fact by framing a question of law
as to whether the finding was bad in law, and perverse or
12Page 13
contrary to the evidence on record. Reliance was placed, in
this behalf, on the observations of this Court in Narayanan
Rajendran Vs. Lekshmy Sarojini reported in 2009 (5) SCC
264. That apart, it was submitted that in any case, the
findings of the Courts below could not in any way be
categorized as perverse, since they were not contrary to the
evidence on record.
14. We may, however, note in this behalf that as held
by a Constitution bench of this Court in Chunilal Mehta Vs.
Century Spinning and Manufacturing Company reported
in AIR 1962 SC 1314, it is well settled that the construction
of a document of title or of a document which is the
foundation of the rights of parties, necessarily raises a
question of law. That apart, as held by a bench of three
judges in Santosh Hazari Vs. Purushottam Tiwari
reported in 2001 (3) SCC 179, whether a particular question
is a substantial question of law or not, depends on the facts
and circumstances of each case. When the execution of the
will of Smt. Nagammanni and construction thereof was the
subject matter of consideration, the framing of the question of
13Page 14
law cannot be faulted. Recently, in Union of India Vs.
Ibrahim Uddin reported in 2012 (8) SCC 148, this Court
referred to various previous judgments in this behalf and
clarified the legal position in the following words:-
“67. There is no prohibition to entertain a
second appeal even on question of fact, provided
the Court is satisfied that the findings of the courts
below were vitiated by non-consideration of
relevant evidence or by showing erroneous
approach to the matter and findings recorded in
the court below are perverse.”
15. At the same time we cannot accept the submission
on behalf of the respondents as well that merely because the
will was more than 30 years old, a presumption under Section
90 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short)
ought to be drawn that the document has been duly executed
and attested by the persons by whom it purports to have
been executed and attested. As held by this Court in
Bharpur Singh Vs. Shamsher Singh reported in 2009 (3)
SCC 687, a presumption regarding documents 30 years old
does not apply to a will. A will has to be proved in terms of
Section 63 (c) of the Succession Act read with Section 68 of
the Evidence Act. 
14Page 15
16. That takes us to the crucial issue involved in the
present case, viz. with respect to the validity and proving of
the concerned will.
A Will, has to be executed in the manner
required by S 63 of the Succession Act.
 Section 68 of the
Evidence Act requires the will to be proved by examining at
least one attesting witness. 
Section 71 of the Evidence Act is
another connected section “which is permissive and an
enabling section permitting a party to lead other evidence in
certain circumstances”, as observed by this Court in
paragraph 11 of Janki Narayan Bhoir Vs. Narayan
Namdeo Kadam reported in 2003 (2) SCC 91 and in a way
reduces the rigour of the mandatory provision of Section 68.
As held in that judgment Section 71 is meant to lend
assistance and come to the rescue of a party who had done
his best, but would otherwise be let down if other means of
proving due execution by other evidence are not permitted.
At the same time, as held in that very judgment the section
cannot be read to absolve a party of his obligation under
Section 68 of the Evidence Act read with Section 63 of the
Succession Act to present in evidence a witness, though alive
15Page 16
and available. 
The relevant provisions of these three
sections read as follows:
”Section 63 of the Succession Act
"63. Execution of unprivileged wills.- Every
testator, not being a soldier employed in an
expedition or engaged in actual warfare, or an
airman so employed or engaged, or a mariner at
sea, shall execute his will according to the
following rules:-
(a) .....
(b) .....
(c) The will shall be attested by two or more
witnesses, each of whom has 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 his
signature or mark, or of the signature of such
other person; and each of the witnesses shall sign
the will in the presence of the testator, but it shall
not be necessary that more than one witness be
present at the same time, and no particular form
of attestation shall be necessary."
Section 68 of the Evidence Act
"68. Proof of execution of document required
by law to be attested.- If a document is required
by law to be attested, it shall not be used as
evidence until one attesting witness at least has
been called for the purpose of proving it's
execution, if there be an attesting witness alive,
and subject to the process of the Court and
capable of giving evidence..."
Section 71 of the Evidence Act
16Page 17
"71. Proof when attesting witness denies the
execution.- If the attesting witness denies or does
not recollect the execution of the document, its
execution may be proved by other evidence."
17. In the present matter, there is no dispute that the
requirement of Section 68 of the Evidence Act is satisfied,
since one attesting witness i.e. PW-2 was called for the
purpose of proving the execution of the will, and he has
deposed to that effect. The question, however, arises as to
whether the will itself could be said to have been executed in
the manner required by law, namely, as per Section 63 (c) of
the Succession Act. PW-2 has stated that he has signed the
will in the presence of Smt. Nagammanni, and she has also
signed the will in his presence. It is however contended that
his evidence is silent on the issue as to whether Smt.
Nagammanni executed the will in the presence of M. Mallaraje
Urs, and whether M. Mallaraje Urs also signed as attesting
witness in the presence of Smt. Nagammanni. Section 63 (c)
of the Succession Act very much lays down the requirement of
a valid and enforceable will that it shall be attested by two or
more witnesses, each of whom has seen the testator sign or
affix his mark to the will, and each of the witnesses has
17Page 18
signed the will in the presence of the testator. As held by a
bench of three judges of this Court (per Gajendragadkar J, as
he then was) way back in
R. Venkatachala Iyengar Vs. B N. Thimmajamma
reported in AIR 1959 SC 443, that a will has to be proved
like any other document except that evidence tendered in
proof of a will should additionally satisfy the requirement of
Section 63 of the Succession Act, apart from the one under
Section 68 of the Evidence Act.
18. The propositions laid down in Venkatachala
Iyengar (supra) have been followed and explained in
another judgment of a bench of three Judges in Smt. Jaswant
Kaur Vs. Smt Amrit Kaur, reported in AIR 1977 SC 74,
wherein the law has been crystallized by Y.V. Chandrachud J
(as he then was), into the following propositions:-
“10. There is a long line of decisions bearing
on the nature and standard of evidence required
to prove a will. Those decisions have been
reviewed in an elaborate judgment of this Court in
R. Venkatachala Iyengar v. B.N. Thirnmajamma
and Ors. [1959] Su. 1 S.C.R. 426. The Court,
speaking through Gajendragadkar J., laid down in
that case the following propositions :-
18Page 19
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 63 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 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
19Page 20
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 circumstance
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. And
then it is a part of the initial onus of the
propounder to remove all reasonable doubts in
the matter.”
19. In Janki Narayan Bhoir (supra), this Court has
explained the inter-relation between Section 63 (c) of the
20Page 21
Succession Act, 1925 and Section 68 and 71 of the Evidence
Act, 1872. In that matter only one attesting witness to the
will was examined to prove the will, but he had not stated in
his deposition that the other attesting witness had attested
the will in his presence. The other attesting witness, though
alive and available, was not examined. The Court noted the
relevant facts in para 5 of the judgment (as reported in SCC)
as follows:-
“Prabhakar Sinkar, the attesting witness, in
his deposition stated that he did not know whether
the other attesting witness Ramkrishna Wagle was
present in the house of the respondent at the time
of execution of the will. He also stated that he did
not remember as to whether himself and Raikar
were present when he put his signature. He did
not see the witness Wagle at that time; he did not
identify the person who had put the thumb
impression on the will. The scribe Raikar in his
evidence stated that he wrote the will and he also
stated that he signed on the will deed as a scribe.
He further stated that the attesting witnesses,
namely, Wagle and Prabhakar Sinkar are alive.”
On this background, the Court held at the end of the para 6 of
the judgment that “it is true that although a will is required to
be attested by two witnesses it could be proved by examining
one of the attesting witnesses as per Section 68 of the Indian
21Page 22
Evidence Act”, but it also noted in paragraph 9 that “that one
of the requirements of due execution of a will is its attestation
by two or more witnesses, which is mandatory.” In
paragraphs 11 and 12 of the judgment, the Court noted the
relevance of Section 71 of the Evidence Act by stating that
“aid of Section 71 can be taken only when the attesting
witnesses who have been called, deny or fail to recollect the
execution of the document to prove it by other evidence.”
“Section 71 has no application when the one attesting
witness, who alone has been summoned, has failed to prove
the execution of the will and the other attesting witness
though available has not been examined.” In the facts of the
case, therefore, the Court held that attestation of the will as
required by Section 63 of the Succession Act was not
established which was equally necessary.
20. In the present case, we may note that in para 21 of
his cross examination, P. Basavaraje Urs has in terms stated,
“Mr. Mallaraje Urs and Smt. Nagammanni, myself and one
Sampat Iyanger were present while writing the will.” One Mr.
Narayanmurti was also present. In para 22 he has stated that
22Page 23
Narayanmurti had written Exhibit 3 (will) in his own
handwriting continuously. The fact that M.Mallaraje Urs was
present at the time of execution of the will is not contested by
the defendants by putting it to PW2 that M. Mallaraje Urs was
not present when the will was executed. As held by a Division
Bench of the Calcutta High Court in a matter concerning a will,
in para 10 of A.E.G. Carapiet Vs. A.Y. Derderian reported
in [AIR 1961 Calcutta 359],….”Wherever the opponent has
declined to avail himself of the opportunity to put his
essential and material case in cross-examination, it must
follow that he believed that the testimony given could not be
disputed at all. It is a rule of essential justice”. As noted
earlier the will was executed on 24.10.1943 in the office of
the advocate Shri Subha Rao situated at Mysore, and was
registered on the very next day at Mysore. The fact that the
will is signed by Smt. Nagammanni in the presence of PW2 on
24.10.1943 has been proved, that PW2 signed in her presence
has also been proved. Can the signing of the will by Smt.
Nagammanni in the presence of M. Mallaraje Urs and his
signing in her presence as well not be inferred from the above
23Page 24
facts on record? In our view, in the facts of the present case,
the omission on the part of PW2 to specifically state that the
signature of M. Mallaraje Urs on the will (which he identified)
was placed in the presence of Smt. Nagammani, and that her
signature (which he identified) was also placed in the
presence of M. Mallaraje Urs, can be said to be a facet of not
recollecting about the same. This deficiency can be taken care
of by looking to the other evidence of attendant
circumstances placed on record, which is permissible under
Section 71 of the Evidence Act.
21. The issue of validity of the will in the present case
will have to be considered in the context of these facts. It is
true that in the case at hand, there is no specific statement by
PW2 that he had seen the other attesting witness sign the will
in the presence of the testator, but he has stated that the
other witness had also signed the document. He has proved
his signature, and on the top of it he has also stated in the
Cross examination that the other witness (Mr. Mallaraje Urs),
Smt. Nagammani, himself and one Sampat Iyanger and the
writer of the will were all present while writing the will on
24Page 25
24.10.1943 which was registered on the very next day. This
statement by implication and inference will have to be held as
proving the required attestation by the other witness. This
statement alongwith the attendant circumstances placed on
record would certainly constitute proving of the will by other
evidence as permitted by Section 71 of the Evidence Act.
22. While drawing the appropriate inference in a matter
like this, a Court cannot disregard the evidence on the
attendant circumstances brought on record. In this context,
we may profitably refer to the observations of a Division
Bench of the Assam High Court in Mahalaxmi Bank Limited
Vs. Kamkhyalal Goenka reported in [AIR 1958 Assam 56],
which was a case concerning the claim of the appellant bank
for certain amounts based on the execution of a mortgage
deed. The execution thereof was being disputed by the
respondents, amongst other pleas, by contending that the
same was by a purdahnashin lady, and the same was not
done in the presence of witnesses. Though the evidence of
the plaintiff was not so categorical, looking to the totality of
the evidence on record, the Court held that the execution of
25Page 26
the mortgage had been duly proved. While arriving at that
inference, the Division Bench observed:-
“11………It was, therefore, incumbent on the
plaintiff to prove its execution and attestation
according to law. It must be conceded that the
witnesses required to prove attestation has (sic)
not categorically stated that he and the other
attesting witnesses put their signatures (after
having seen the execution of the document) in the
presence of the executants. Nevertheless, the
fact that they actually did so can be easily
gathered from the circumstances disclosed in the
evidence. It appears that the execution and
registration of the document all took place at
about the same time in the house of the
defendants. The witnesses not only saw the
executants put their signatures on the document,
but that they also saw the document being
explained to the lady by the husband as also by
the registering officer.
They also saw the executants admit receipt
of the consideration, which was paid in their
presence. As all this happened at the same time,
it can be legitimately inferred that the witnesses
also put their signatures in the presence of the
executants after having seen them signing the
instrument………
………There is no suggestion here that the
execution and attestation was not done at the
same sitting. In fact, the definite evidence here is
that the execution and registration took place at
the same time. It is, therefore, almost certain that
the witnesses must have signed the document in
the presence of the executants…….”
26Page 27
23. The approach to be adopted in matters concerning
wills has been elucidated in a decision on a first appeal by a
Division Bench of Bombay High Court in Vishnu
Ramkrishana Vs. Nathu Vithal reported in [AIR 1949
Bombay 266]. In that matter, the respondent Nathu was the
beneficiary of the will. The appellant filed a suit claiming
possession of the property which was bequeathed in favour of
Nathu, by the testatrix Gangabai. The suit was defended on
the basis of the will, and it came to be dismissed, as the will
was held to be duly proved. In appeal it was submitted that
the dismissal of the suit was erroneous, because the will was
not proved to have been executed in the manner in which it is
required to be, under Section 63 of Indian Succession Act.
The High Court was of the view that if at all there was any
deficiency, it was because of not examining more than one
witness, though it was not convinced that the testatrix
Gangabai had not executed the will. The Court remanded the
matter for additional evidence under its powers under Order
41 Rule 27 CPC. The observations of Chagla C.J., sitting in the
Division Bench with Gajendragadkar J. (as he then was in
27Page 28
Bombay High Court) in paragraph 15 of the judgment are
relevant for our purpose:-
“15……… We are dealing with the case of a
will and we must approach the problem as a Court
of Conscience. It is for us to be satisfied
whether
the document put forward is the last will and
testament of Gangabai. If we find that the
wishes of the testatrix are likely to be
defeated or thwarted merely by reason of
want of some technicality, we as a Court of
Conscience would not permit such a thing to
happen. We have not heard Mr. Dharap on the
other point; but assuming that Gangabai had a
sound and disposing mind and that she wanted to
dispose of her property as she in fact has done,
the mere fact that the propounders of the will
were negligent – and grossly negligent in not
complying with the requirements of S.63 and
proving the will as they ought to have should not
deter us from calling for the necessary evidence in
order to satisfy ourselves whether the will was
duly executed or not………..”
(emphasis
supplied)
24. As stated by this Court also in R. Venkatachala
Iyengar and Smt. Jaswant Kaur (both supra), while
arriving at the finding as to
whether the will was duly
executed, the Court must satisfy its conscience having regard
to the totality of circumstances. The Court’s role in matters
concerning the wills is limited to examining whether the
28Page 29
instrument propounded as the last will of the deceased is or is
not that by the testator, and whether it is the product of the
free and sound disposing mind [as observed by this Court in
paragraph 77 of Gurdev Kaur Vs. Kaki reported in 2006 (1)
SCC 546].
In the present matter, there is no dispute about
these factors.
The issue raised in the present matter was with
respect to the due execution of the will, and what we find is
that the same was decided by the trial Court, as well as by the
first appellate Court on the basis of an erroneous
interpretation of the evidence on record regarding the
circumstances attendant to the execution of the will.
 The
property mentioned in the will is admittedly ancestral
property of Smt. Nagammanni. She had to face a litigation,
initiated by her husband, to retain her title and possession
over this property. 
Besides, she could get the amounts for
her maintenance from her husband only after a court battle,
and thereafter also she had to enter into a correspondence
with the appellant to get those amounts from time to time.
The appellant is her stepson whereas the respondents are
sons of her cousin. She would definitely desire that her
29Page 30
ancestral property protected by her in a litigation with her
husband does not go to a stepson, but would rather go to the
relatives on her side.
We cannot ignore this context while
examining the validity of the will.
25. In view of the above factual and legal position,
 we
do hold that 
the plaintiffs/respondents had proved that Smt.
Nagammanni had duly executed a will on 24.10.1943 in
favour of the plaintiffs, and bequeathed the suit properties to
them. 
She got the will registered on the very next day. 
The
finding of the Trial Court as well as the First Appellate Court
on issue no.2 was clearly erroneous. 
The learned Judge of the
High Court was right in holding that the findings of the Trial
and Appellate Court, though concurrent, were bad in law and
perverse and contrary to the evidence on record. 
The second
appeal was, therefore, rightly allowed by him. 
Accordingly,
we dismiss the present civil appeal. 
The Suit No.32 of 1975
filed by the respondents in the Court of Principal Civil Judge at
Mandya in Karnataka will stand decreed. 
They are hereby
granted a declaration of their title to the suit property, and for
a permanent injunction restraining the defendants from
30Page 31
interfering with their possession thereof. In case their
possession has been in any way disturbed, they will be
entitled to recover the possession of the concerned property,
with future mesne profits. In the facts of the present case,
however, we do not order any costs. 
 ………..
………………………..J.
[ H.L. Gokhale ]
…………………………………..J.
[ Ranjana Prakash Desai ]
New Delhi
Dated : May 03, 2013
31

GENUINENESS OF THE WILL - PARTITION= 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.

                                                1

                                                                       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


                                               2



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


                                                  3



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


                                                 4



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?


                                             5



             (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.


                                                6





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


                                                 7



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."


                                              8



             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


                                                   9



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


                                               10



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.


                                                 11



(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,


                                               12



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


                                                13



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


                                               14



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


                                                  15



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


                                                  16



       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.


                                                   17



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


                                          18



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


                                                19



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)


                                                 20





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


                                         21



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.


                                                    22



        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."


                                                  23



                                                                 (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


                                                  24



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


                                              25



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.


                                                 26



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.


                                                 27



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


                                                 28



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


                                                29



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


                                                  30



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,


                   31



March 13, 2012.