VINODCHANDRA MANILAL PATEL SINCE DECD HIS HEIRS & L.RS. vs MULCHANDBHAI MANILAL PATEL SINCE DECD THR.HIS HEIRS &L.RS
- Court
- Gujarat High Court
C/FA/1721/2004 CAV JUDGMENT DATED: 08/07/2026
Reserved On : 17/06/2026
Pronounced On : 08/07/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1721 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J. C. DOSHI
==========================================================
Approved for Reporting Yes No
Yes
==========================================================
VINODCHANDRA MANILAL PATEL SINCE DECD HIS HEIRS & L.RS. &
ORS.
Versus
MULCHANDBHAI MANILAL PATEL SINCE DECD THR.HIS HEIRS &L.RS &
ORS.
==========================================================
Appearance:
DEV D PATEL(8264) for the Appellant(s) No. 1.1,1.2,1.3
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES
for the Defendant(s) No. 1
MR PREMAL R JOSHI(1327) for the Defendant(s) No.
2.1.1,2.1.2,2.1.3,2.2,2.3,2.4
MR SI NANAVATI, SR. ADVOCATE WITH MR SANJIV DAVE FOR
NANAVATI & NANAVATI(1933) for the Defendant(s) No. 6
SERVED BY RPAD (N) for the Defendant(s) No. 1.2.1,1.2.2,1.2.3
==========================================================
CORAM: HONOURABLE MR. JUSTICE J. C. DOSHI
CAV JUDGMENT
1. The first appeal under section 96 of the Civil Procedure
Code 1908 (for short ‘CPC’ ) at the behest of plaintiff challenges
the judgment and decree dated 29.11.2002 passed by learned
City Civil Court, Ahmedabad in Civil Suit No. 3877 of 1988 by
which the plaintiff’s suit was dismissed.
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2. Facts borne out from impugned judgment reads as under :
-
2.1. Plaintiff – Vinodchandra Manilal Patel, defendant no.1-
Dr.Mulchand Manilal Patel, defendant no.2 – Navinchandra
Manilal Patel, defendant no.3 – Rameshchandra Manilal Patel,
defendant no.5 - Jyotikaben Patel and defendant no.6 –
Vimlaben Patel are siblings. Defendant no.4 – Santokben Manilal
Patel is mother. Deceased Manilal Patel was father of the parties.
According to plaintiff, pending suit, defendant no.2 –
Navinchandra expired and survived by defendant no.2.1 to 2.4
who are legal representatives. According to plaintiff, parties to
the suit are member of Hindu Undivided Family, headed by
Karta deceased Manilal Girdharbhai Patel. It is further case of
the plaintiff that deceased Manilal was Government servant and
retired from the post of Deputy Collector. It is case of plaintiff
that in addition to his personal salary, the deceased had income
from ancestral agricultural land situated within the sim of
Village Chandkheda. It is also case of plaintiff that said
agricultural land constitutes ancestral property belonging to the
undivided HUF. Deceased – Manilal purchased movable and
immovable property from income received from ancestral
property, particulars, of which are pleaded in para 1 to 6 of the
plaint.
2.2. It is pleaded that since movable and immovable properties
were purchased from the income of agricultural land, it becomes
HUF property and plaintiff being member of HUF has undivided
share in the said properties. The Plaintiff further pleaded that
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deceased Manilal has made testamentary disposition by Will. It
is further pleaded that however, twelve months prior to his
demise, health of the deceased had severely deteriorated,
resulting in loss of memory. At the relevant time of the alleged
execution of Will, deceased was not in sound disposing mind and
lacked the capacity to understand the nature of his action.
2.3. Taking undue advantage of the physical ailment and
mental illness of the deceased, Defendant Nos. 1 to 3 got
executed Will. The plaintiff states that the said Will is a
fabricated, forged, and not binding to the plaintiff. Therefore,
plaintiff has filed suit seeking partition of the suit properties by
metes and bounds and for the cancellation and setting aside of
the alleged Will of the deceased.
3. On being served, defendant no.1 filed written statement.
Apart from denying suit of the plaintiff in toto, defendant no.1
denied status of suit property consists of HUF and also denied
existence of HUF of deceased Manibhai. It is denied that the
suit properties were acquired through the joint income or
nucleus of the alleged HUF. It is stated that the deceased
Manibhai in sound disposing mind, duly executed his Last Will
dated 09.02.1988, thereby declaring his intention to partition
the properties. Following his demise, the properties were
distributed among his legal heirs by way of testamentary
disposition. Under the terms of the said Will, the Plaintiff got life
time interest in the subject property, Defendant No. 5
(Jyotikaben) was similarly granted a life interest of a specific
portion, whereas absolute title devolved upon the remaining legal
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heirs. Defendant No. 1 denied the allegation that the said Will is
forged, fabricated, or otherwise void. On the strength of these
averments, Defendant No. 1 prayed to dismiss the suit.
4. Identical defence was raised by defendant no.2 by filing
written statement at Exh.69. In addition, it is claimed by
defendant no.2 that he is exclusive owner of ground floor of
Bungalow No.5, Patidar Society, Ahmedabad and defendant no.3
is held to be joint owner of open land situated near gate of said
bungalow and thus, plaintiff has no right to claim relief of
partition.
5. Defendants No. 3 to 6 contested the suit by filing a joint
Written Statement at Exhibit 26, contending that the Plaintiff
had failed to contribute any income or funds toward the
acquisition of the suit property. They stated that Bungalow No.
5, situated in Patidar Society, Ahmedabad, was purchased solely
from the independent and self-acquired income of the deceased;
the Plaintiff has no legal right or locus standi to claim the relief
of partition. Furthermore, it is contended that the Plaintiff has
been residing separately since the year 1957. It is submitted that
the Plaintiff has never contributed to the household or family
expenses, nor has he contributed toward any property purchases
or made by the family or to the deceased for the acquisition of
the suit property or any other asset.
5.1. Upon aforesaid averments, it is submitted to dismiss the
suit.
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6. The learned Trial Court framed the issues at Exhibit 34,
recorded and appreciated the evidence adduced by both the
parties, and upon hearing the arguments of both sides was
pleased to dismiss the suit vide the impugned judgment and
decree dated 29.11.2002.
7. Being aggrieved by and dissatisfied with the said dismissal,
the Appellant/Plaintiff has preferred the present first appeal.
8. Learned advocate Mr. Dev Patel for appellant-Plaintiff,
having read entire impugned judgment and taking this Court
through the evidence on record, submitted that the learned Trial
Court grossly erred in appreciating oral and documentary
evidence adduced by the parties. It is further submitted that
instead of evaluating the evidence in its entirety and on its face
value, the learned Trial Court selectively read certain portions
thereof to dismiss the suit. It is contended that the evidence on
record unequivocally establishes that the agricultural land at
Chandkheda was jointly held by the deceased and his brother. It
is submitted that a legitimate legal presumption can be drawn
that the deceased, Manibhai, derived a substantial income from
the said agricultural land. It is further submitted that the
evidence on record demonstrate existence of the Hindu
Undivided Family (HUF) of the late Manibhai. It is also submitted
that since the Plaintiff successfully established the existence of a
sufficient HUF nucleus, a legal presumption arises that
Bungalow No. 5, Patidar Society, was acquired utilizing joint
HUF funds. The learned counsel further submitted that the
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learned Trial Court failed to appreciate the evidentiary value of
the partition deed produced at Exhibit 76, which pertains to the
immovable property situated at Kailashnagar Society, viz. sub-
plot No. 218-3, admeasuring 403 square yards. The said
partition deed is between Mulchand Manilal Patel, Manilal
Girdhardas Patel, Vinodchandra Patel, Navinchandra Patel, and
Rameshchandra Patel. It is submitted that Exhibit 76 contains
unambiguous recitals declaring that the parties are members of
an HUF and hold joint properties. Furthermore, it explicitly
recites that the Kailashnagar property was purchased from the
joint HUF nucleus by the father, Manibhai, along with
Prahladbhai. It is submitted that PW-1 (Dr. Mulchandbhai) at
Exhibit 75, during his cross-examination, explicitly admitted
that Bungalow No. 5, Patidar Society, was acquired in the
identical manner as immovable property at Kailashnagar Society.
Therefore, considering evidence on record, it indicates that
Bungalow No. 5, Patidar Society, constitutes joint HUF property,
thereby entitling the Plaintiff to a decree for partition and
separate possession of his share from undivided property.
8.1. Learned advocate Mr. Dev Patel for the Appellant-Plaintiff
in regards to proposition of Hindu Undivided Family (HUF)
nucleus property, relied upon the foundational judgment of the
Privy Council in the case of Appalaswami v.
Suryanarayanamurti [AIR 1947 PC 189] . Learned advocate
Mr. Patel submitted that except the Plaintiff, all other legal heirs
of the deceased got share under the purported Will of the late
Manibhai. It is further argued that the terms of the Will
completely fail to specify any justification as to why the Plaintiff
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was excluded from the testamentary disposition. It is submitted
that deprivation of natural heir though alone does not invalidate
the Will but in absence of any recorded reason for such
disinheritance gives rise to suspicious circumstances
surrounding its execution. For this contention, he has relied on
judgment of Hon’ble Apex Court in the case of Smt. Jaswant
Kaur v/s. Smt. Amrit Kaur [1977 (1) SCC 360] , whereby,
Hon’ble Apex Court referred to earlier judgment in the case of
H.Venkatachala Iyengar v/s. B.N. Thimmaljamma [1959
Suppl (1) SCR 426] reiterated in recent judgment in the case of
Gurdial Singh (Dead) Through Lr. v/s. Jagir Kaur (Dead)
[2025 (0) INSC 866].
8.2. In view of above submissions, learned advocate Mr.Patel
submitted that this Court may allow the appeal and set aside
impugned judgment and decree and grant relief claimed by the
plaintiff.
9. Per contra, Mr. S.I. Nanavati, learned Senior Counsel,
assisted by Mr. Sanjiv Dave, learned advocate for the
respondent, supports the impugned judgment. It is submitted
that the plaintiff, during the cross-examination of the defense
witness, put forth a suggestion that the immovable property
situated at Bungalow No. 5, Patidar Society, is the self-acquired
property of the deceased. This admission on the part of the
plaintiff, introduced by way of a suggestion in cross-
examination, is sufficient to demonstrate that the plaintiff has
no case. It is further submitted that, except pleadings, the
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plaintiff has failed to produce any supportive documentary
evidence to establish that Bungalow No. 5, Patidar Society, was
purchased from the joint family nucleus or that it constitutes
Hindu Undivided Family (HUF) property. It is submitted that the
mere existence of a joint family does not presume that property
purchased by the Karta becomes HUF property; such property
may be the personal property of the purchaser. It is submitted
that the person claiming property to be a joint family is under
heavy burden to prove that the self-acquired property was
blended into the HUF. It is submitted that in the present case,
plaintiff has failed to discharge his burden. It is submitted that
although the defendant did not claim any right under the Will
before the court below, but they have proved the same to be the
last Will of the deceased executed in a sound and disposing state
of mind by leading the evidence of the attesting witness at
Exhibit 85. It is further submitted that as against this evidence
on record, the plaintiff has not led any evidence to prove that the
Will is shrouded by suspicious circumstances or it is doubtful. It
is submitted that the judgment relied upon by the appellant in
Gurdial Singh (supra) runs contrary to his own submissions, as
the Hon’ble Apex Court therein held that the mere deprivation of
a natural heir does not invalidate a Will. Therefore, it is
submitted that the appellant-plaintiff has failed to prove their
case before the learned Trial Court, and there is no material on
record which compel this Court to take a different view.
9.1. Upon above submissions, it is submitted to dismiss the
appeal.
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10. Regard being had to rival submissions of learned advocates
for the parties, seminal question arise for consideration in this
appeal is whether plaintiff has successfully proved that suit
properties are joint Hindu family property?, if said question is
proved in affirmative, then whether plaintiff proves that deceased
Manibhai had no right to dispose of the property by way of
testamentary disposition? Question also arise whether,
defendant proves that purported Will of deceased is last Will and
executed in sound disposing state of mind ?
11. Heard learned advocates for both the sides and perused
Record and proceeding as well.
12. From the pleadings, learned Trial Court has framed
following issues at Exh.34 :-
“(1) Whether the plaintiff proves that the suit properties are
the properties of joint ownership of the parties and that he
has undivided share in the said properties ?
(2) Whether the defendants prove that the deceased
Manibhai Patel in his sound disposing state of mind
executed a Will on 09.02.1988 and divided the properties
among is heirs as per his desire ?
(3) Whether the plaintiff is entitled to partition of suit
properties and possession of his respective share ?
(4) Whether the plaintiff is entitled to the declaration
sought ?
(5) What order and decree ?”
13. Issue nos.1,3 and 4 is answered in negative, whereas,
issue no.2 is answered in affirmative and thereafter, disposed of
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suit finally in aforesaid terms.
14. First issue framed by the learned Trial Court relates to
dispute between the parties. Plaintiff claims that suit properties
consisting of Bunglow No.5, Patidar Society and plot of
Kailashnagar, Ahmedabad is joint HUF property, wherein, he
has undivided share in the said property. It is also contended
that father of plaintiff has purchased the properties in his name
in the year 1954, by utilizing his income derived from
agricultural land, in addition to his personal salary. It is also
contended that income received from ancestral property i.e.
agricultural establish joint family nucleus and immovable
property purchased from such nucleus retains character of HUF
property regardless of title.
15. Learned Trial Court in para 17 to 25 decided issue no.1.
Findings of learned Trial Court reads as under :-
“17. ISSUE NO.1: The plaintiff has come out case that the
suit properties are the properties of joint ownership and he
has undivided share in the said properties and though it is
the the plaintiff that the deceased Manibhai had also
acquired movable properties and the description of which is
also given in plaint ext.1 and in Schedule annexed to the
plaint, from the evidence adduced by the parties it appears
that particulars no are given so far as movable properties
are partition in respect of two immovable only i.e. (i)
Bungalow No.5 in Patidar Society. Ellisbridge, Ahmedabad;
and (ii) Plot of Kailashnagar, Navrangpura, Ahmedabad.
18. The plaintiff Vinod Manibhai Patel deposition ext.63 has
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stated that the bungalow No.5 situated in Patidar Society,
Ellisbridge. to be purchased in the year 1954 for a
consideration of Rs.14,250-00 and that the consideration
has bean paid from the income of agricultural lands situated
in the sim village Chandkheda and which came to
partitioned between the deceased Mantial Girdharbhai Patel
and his brother or brothers on or about 18-1-1949 and after
the partition of agricultural lands, his deceased father was
receiving income independently of the lands fallen to his
share and that income was Rs.4,000-00 annually and he
has also stated that the plot situated in Kailashnagar also
came to be purchased from the income of agriculture, but
except his bare words, there is nothing on the record to
substantiate his say that the properties said above came to
be purchased from the income of agriculture and at last in
para-7 of his deposition he has admitted that (it is in
Gujarati, for better understanding, it is translated in English)
:-
“I do not possess any documentary evidence to show
the income derived from the lands.”
and in the same paragraph he also admitted that (it is in
Gujarati, for better understanding, it is translated in
English):-
“There is no written evidence to show that the money
for the bungalow was paid out of agricultural income.”
and therefore, in view of that bara statement of the plaintiff,
it cannot be said that the bungalow situated in Patidar
Society came to be purchased from the income of agriculture
and on fram the contrary, the wil executed by the deceased
dated 9-2-1988 ext.85 it is Manibhai Patel the present was
his to prove clear that the bungalow in Patidar Society self-
acquired property and at the time of giving my finding on the
issue No.2 I would show that the deceased in his sound
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disposing state of mind had given that bungalow to his other
heirs and on that date controversy was not in picture at all
and therefore, the plaintiff has failed to show or the
bungalow No.5 situated in Patidar Society came to be
purchased from the income of agriculture and it may also be
noted that in plaint ext.1 a case has been put forth that the
bungalow in Patidar Society came to be purchased from the
salary of his deceased father, sale of agricultural lands,
income from agriculture and as that as that from the well
amount he paid from his Income to his deceased father and
at the time of recording evidence. case has been given up
and it has been stated that the bungalow in Patidar Society
came to be purchased from the income of agriculture and
when he was confronted on that say, he has admitted that
(it is in Gujarati, for better understanding, it is translated in
English): -
“I possess evidence showing that I have paid amounts
to my father, but the same has not been produced in
this suit.”
19. Now regarding the plot of Kailashnagar also, it is the
case of the plaintiff that the said property also came to be
purchased from the income of agriculture. sufficient to note
that by writing dated 8-10-1969 ext.09 the plaintiff has
relinquished his right, interest in the said property and the
plaintiff to now not entitled to claim partition in respect of
that that ext.76 dated property and it is not his say 8-10-
1969 does not bear his signature.
20. Shri G.K.Patel, learned advocate appearing for the
plaintiff, drew my attention to the deposition of defendant
No.1 viz. Kulchandbhai Patel recorded at ext.75 and argued
that the witness has in unequivocal words stated that (para-
5 ext.75) (it is in Gujarati, for better understanding, it is
translated in English)" -
“It is true that my father had purchased the bungalow
in Patidar Society in the same manner as he had
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purchased the plot in Kailashnagar Co-operative
Housing Society. ”
but the deposition of the witness requires to be read as a
whole and by plucking one sentence here there, cannot be
said that by relying on that say the case of the plaintiff
stands proved.
21. Shri G.K.Patel, learned advocate appearing for the
plaintiff, has referred to and relied on the reported decision
of the Hon'ble Apex Court in the case of K.V.
Narayanaswami Iyer v/s K.V.Ramakrishna Iyer AIR 1965
SC 280 wherein it has been held as under:-
"Where in fact at the date of acquisition of a particular
property sufficient nucleus for acquiring it, the property In
the name of any member of that joint family should be
presumed to be acquired from out of the family funds and so
to form part of the joint family property unless the contrary is
shown."
By the question in the case on hand is whether it is proved
by the plaintiff or that there is any iota of evidence on the
record to show from the agriculture the suit properties came
to be acquired and as pointed out earlier, the plaintiff
himself admitted that he has no documentary evidence to
show the income from agricultural and in view of that
admission, it cannot be presumed that consideration for
purchasing bungalow has been paid from the income of
agriculture and therefore, the decision cited at the Bar
assistance to the case of the plaintiff.
22. Shri G.K.Patel, learned advocate for the case plaintiff,
then referred to and relied on the reported decision of the
Hon'ble Allahabad High Court in the of Mangal Singh /s
Harkesh AIR 1958 Allahabad 42 wherein it has been held
as under:-
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"The general rule which is common to Mitakshara and Daya
Bhag both appears to be that whatever may be the extent of
contribution the acquiring member himself out of his self-
acquired fund, if he takes the aid of any portion of joint or
ancestral property in acquiring the property. however small
that aid may be, acquired assumes the character of joint
family the property so property and cannot self-acquisition.
be claimed The extent of his contribution or that of the fantly
fund is famaterial. If any help is taken from the family
property it is enough to make the self-acquired property,
property of family”
But the foremost question in the present case is whether it is
proved by the plaintiff (except his oral words) that
assistance of income from agriculture for acquiring the suit
properties was taken and at the cost of repetition it may be
stated that he has very frankly conceded that he has
nothing to show that or that he has no evidence to show the
income from agriculture and secondly, he has also admitted
that he has no evidence to show that consideration for
purchasing bungalow has been paid from the income of
agriculture and it should be noted that in the case of a joint
family the existence of a mere raise a nucleus is not enough
to presumption that all properties possessed by its various
members are joint.. The presumption arises only if the
nucleus is substantial and is such that its yield could
provide in whole or at any rate in considerable part of the
money necessary for acquiring the property in question.
23. Shry G.K.Patel, learned advocate appearing for the
plaintiff, then referred to and relied upon the decision of the
Hon'ble Apex Court in the case of Hatlappa Giri Hallappa
Betgeri v/s R.Yellappagouda Patil AIR 1953 SC 900 wherein
it has been held as under:-
"Where the manager of a joint Hindu family acquired certain
properties in his own name and there was sufficient nucleus
of joint family property out of which those properties might
have been acquired and apart from those properties the
manager had no other source of income, presumption
properties arises that the acquired properties were the
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properties of the joint Family. Unless that presumption was
rebutted, it must prevail,"
But first of all, it may be noted that except bare words of the
plaintiff, there is nothing on the record to show that there
was sufficient Income or nucleus agriculture and it appears
from the record that till 1949 the income from agriculture
came to be divided between the deceased father of the
plaintiff and his brother and the bungalow came to be
purchased in 1954 and the most important fact in our case
was that the deceased father of the plaintiff was a
government servant and retired as a Deputy Collector and
therefore, it cannot be said that he (deceased father of
plaintiff) had no other sources of income and therefore, the
decision cited at bar is of no avail to the case of the plaintiff.
24. Shri G.K.Patel, learned advocate appearing for then
referred to and relied upon the reported decision of the
Hon'ble Orissa High Court reported in the case of Gavala
Ankamma v/a Gaval Muhalaxmi AIR 1988 Orissa 160
wherein it has been held as under:-
"In a suit for partition of HUF property the Initial burden of
proving the same to be the Joint family properties the
plaintiff could successfully discharge such initial burden by
showing that the Joint family had a nucleus for purchasing
the suit properties and where it was shown that the only
occupation of the defendant was Cultivation of his ancestral
family lands and besides the ancestral lands he had no
other Independent sources of income by the relevant date,
the burden of proving that the lands dispute purchased were
self-acquisition would shift on the defendant."
But in our case, as said repeatedly, the plaintiff has failed to
show that there was sufficient income from the agriculture
and secondly, he also failed to prove that consideration for
purchasing bungalow had been paid from the income of
agriculture and the deceased father of the plaintiff was a
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government servant and re Deputy Collector and till partition
of agricultural lands between the plaintiff's father and his
father (1949) the agricultural lands were administered by
the plaintiff's uncle and even thereafter also there is no
evidence on record to show that who were administering the
land and the income derived, etc. etc. and in fact the plaintiff
was duty-bound to adduce evidence in that respect as well
as on the point that whether there was any facility for
Irrigation and whether the deceased was taking three yields
in a year, etc. etc. and in absence of this evidence his
statement that there Rs.4,000-00 annually from agriculture
cannot be accepted as true version.
25. For my foregoing reasons, the plaintiff has failed to
prove that the suit properties are Joint ownership of the
parties and that he has undivided share in the said
properties and the issue No.1 is, therefore, answered in the
negative accordingly.”
16. Before I proceed to examine aforesaid finding of learned
Trial Court to deny plaintiff’s claim, let me refer judgment of
Hon’ble Apex Court in the case of D.S. Lakshmaiah v/s. L.
Balasubramanyam [(2003) 10 SCC 310] , whereby, Hon’ble Apex
Court denied to presume property of HUF because of existence of
joint family with specific finding that burden to prove the
property to be joint lies on the person who asserts so. Relevant
para 18 reads as under :-
“18. The legal principle, therefore, is that there is no
presumption of a property being joint family property only on
account of existence of a joint Hindu family. The one who
asserts has to prove that the property is a joint family
property. If, however, the person so asserting proves that
there was nucleus with which the joint family property could
be acquired, there would be presumption of the property
being joint and the onus would shift on the person who
claims it to be self-acquired property to prove that he
purchased the property with his own funds and not out of
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joint family nucleus that was available.”
17. Worthy reference can be made to judgment in the case of
Gurdial Singh (supra), in para 10 to 18, Hon’ble Apex Court
referred sleeve of previous judgment and held as under :-
“10. Per contra, Mr. Arun Bhardwaj, learned Senior Counsel
submitted 1st respondent was the lawfully wedded wife of
Maya Singh. Relationship between the couple was good as
would be evidenced from 1 st respondent’s deposition that
she was living with Maya Singh till his death. The Trial
Court glossed over this evidence and came to a perverse
finding that she had not served Maya Singh. While relations
between the couple were good, appellant disputed 1st
respondent’s status as the wife of Maya Singh. Non-mention
of 1st respondent’s name and the reasons for her
disinheritance in the Will must be viewed from this sinister
design of the appellant. His effort not only to disinherit the
1st respondent but also to deny her the very status as his
wife is eloquent in the omission of her status as wife in the
Will. Viewed from this perspective, the tenor of the Will
demonstrates the masked voice and intention of the
appellant and not the free disposing mind of the testator.
Courts below erred in applying the correct legal principles
and erroneously held that this suspicious circumstance did
not vitiate the Will.
Proof of Will: Legal Principles
11. A Will has to be proved like any other document subject
to the requirements of Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian Evidence Act, 1872,
that is examination of at least of one of the attesting
witnesses. However, unlike other documents, when a Will is
propounded, its maker is no longer in the land of living. This
casts a solemn duty on the Court to ascertain whether the
Will propounded had been duly proved. Onus lies on the
propounder not only to prove due execution but dispel from
the mind of the court, all suspicious circumstances which
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cast doubt on the free disposing mind of the testator. Only
when the propounder dispels the suspicious circumstances
and satisfies the conscience of the court that the testator
had duly executed the Will out of his free volition without
coercion or undue influence, would the Will be accepted as
genuine. In Smt. Jaswant Kaur v. Smt. Amrit Kaur and
others 2, this Court referring to H. Venkatachala Iyengar vs.
B.N. Thimmajamma & Ors.3 enumerated the principles
relating to proof of Will:
“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 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
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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. And then it is a part of the initial onus of
the propounder to remove all reasonable doubts in the
matter.”
The Court further held :
“9. In cases where the execution of a will is shrouded in
suspicion, its proof ceases to be a simple lis between the
plaintiff and the defendant. What, generally, is an adversary
proceeding becomes in such cases a matter of the court's
conscience and then the true question which arises for
consideration is whether the evidence led by the propounder
of the will is such as to satisfy the conscience of the court
that the will was duly executed by the testator. It is
impossible to reach such satisfaction unless the party which
sets up the will offers a cogent and convincing explanation of
the suspicious circumstances surrounding the making of the
will.”
12. Similarly in Ram Piari vs. Bhagwant & Ors.4 this Court
held when suspicious circumstance exists, Courts should not
be swayed by due execution of the Will alone:
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“3. ……………….Unfortunately none of the courts paid any
attention to these probably because they were swayed with
due execution even when this Court in Venkatachaliah case
[AIR 1959 SC 443 : 1959 Supp 1 SCR 426] had held that,
proof of signature raises a presumption about knowledge but
the existence of suspicious circumstances rebuts
it…………….”
13. There is no cavil when suspicious circumstances exist
and have not been repelled to the satisfaction of the Court,
the Court would not be justified in holding that the Will is
genuine since the signatures have been duly proved and the
Will is registered one5. Parameters to ascertain ‘suspicious
circumstances’ vitiating a Will.
14. This brings us to the next issue i.e. what are the
suspicious circumstances which may vitiate the disposition.
In Indu Bala Bose & Ors. vs. Manindra Chandra Bose &
Anr.6 the Court held any and every circumstance is not a
“suspicious” circumstance.
“8. Needless to say that any and every circumstance is not a
“suspicious” circumstance. A circumstance would be
“suspicious” when it is not normal or is not normally
expected in a normal situation or is not expected of a normal
person.”
The Court quoted the Privy Council’s elucidation in Hames v.
Hinkson 7 of suspicious circumstances as follows:
“17……………where a Will is charged with suspicion, the
rules enjoin a reasonable scepticism, not an obdurate
persistence in disbelief. They do not demand from the Judge,
even in circumstances of grave suspicion, a resolute and
impenetrable incredulity. He is never required to close his
mind to the truth.”
It was again reiterated in PPK Gopalan Nambier vs. PPK
Balakrishnan Nambiar & Ors.8 that suspected features
should not be mere fantasies of a doubting mind.
“5……………It is trite that it is the duty of the propounder of
the will to prove the will and to remove all the suspected
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features. But there must be real, germane and valid
suspicious features and not fantasy of the doubting mind.”
15. It is from this prism, we need to examine whether the
High Court was justified in reversing the concurrent findings
of the Trial Court and the appellate court and holding the
Will was vitiated due to existence of suspicious
circumstances.
Findings of the Trial Court Trial Court dealt with this issue in
the following manner:
“As discussed above, defendant No. 1 is the widow of Maya
Singh deceased. In Smt. Bhagya Wati Jain’s case (supra) it
was held that deprivation of legal heir from succession may
be one of the suspicious circumstances along with other but
that by itself is not sufficient ground to raise presumption
against the Will. Admittedly, defendant No. 1, who is widow
of Maya Singh, has been disinherited. Statement of Jagir
Kaur defendant No. 1 who appeared as DW3 reads as
follow: “I was married with Maya Singh, I lived with Maya
Singh as his wife till his death. We took Guirpal Singh as our
adopted son. He is the son of my sister. At the time of
adoption Gurwas distributed. Maya Singh was in service
and I draw pension. We are in possession of the land in suit.
Maya Singh never told me having executed a Will in favour
of the plaintiff. He was not on speaking terms with the
plaintiff. I reside in the house of Maya Singh”.
Jagir kaur has no where stated that the served Maya Singh
during his life time. That she actually resided with Maya
Singh on the day the Will was executed i.e. on 16.5.91. She
is again silent whether she performed the last rites of Maya
Singh. In the circumstances if Maya Singh did not mention
about her in the Will the same is not required to be explained
by the plaintiff. No doubt Arjan Singh and Naranjan Singh
have stated that last rites were performed by the defendant
No. 1. But their statements are to corroborate the statement
of the defendant No. 1 and when the defendant No. 1 herself
is silent about the service rendered to Maya Singh,
statement of Arjan Singh and Naranjan Singh did not prove
that Maya Singh was actually served and lived with
defendant No. 1. As stated above there is nothing against
Surinder Kumar and Chanan Singh PWs who proved the due
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execution of the Will by Maya Singh and if the widow had
been deprived, of the Will cannot be discarded on this sole
ground.”
Findings of the First Appellate Court
First Appellate Court upheld the findings of the Trial
Court holding:
“From this catena of judicial pronouncements there can
be no manner of doubt that mere deprivation of a legal;
heir or mere non mention of such legal heir’s name in
the testamentary disposition, in itself, does not
invalidate the will. A careful perusal of the will would
reveal that the same purport to beat the signatures of
testator Maya Singh (since deceased) in English. It is an
admitted case of the parties that Maya Singh had been
serving as a Havaldar in the Army and had retired from
Military service which implies that he was an educated
person. The will in dispute is a registered document on
which the signatures of the testator or of the attesting
witnesses have not been challenged by Jagir Kaur.
There is nothing on the record, if Maya Singh was
suffering from any mental incapacity to execute the will.
The written statement of Jagir Kaur is quite silent with
regards to the fact that Maya Singh was not in sound
state of disposing mind. She has alleged that Maya
Singh deceased was suffering from paralysis for the
last more than 10 months before his death. Assuming it
to be so, he might had been treated upon. Evidence
regarding his treatment could have been produced by
Jagir Kaur. There is no such evidence to the effect that
he was paralytic without there being evidence, this plea
remains unsubstantiated. Jagir Kaur, appearing as
DW3 stated in her cross examination that Maya Singh
had executed a will in her favour. She has not set up
the same in her written statement nor produced the
sesame on record for the reasons best known to her.
Therefore, an adverse inference can be drawn to the
effect that no valid will has been executed by Maya
Singh deceased in her favour. Further, there is no
allegation from the side of Jagir Kaur defendant that the
marginal witnesses of the will Ex. P. 1 or the Sub
Registrar by whom the same was registered were in
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collusion with the legatee Gurdial Singh. There is no
gain saying the fact that Jagir Kaur is drawing pension
of Maya Singh being his widow. Ex. P. 7, is the certified
copy of the order dated 29.9.1994 which purport to
have been handed down by Commissioner (Appeals)
Jalandhar Division. In its concluding paragraph, it has
been mentioned that the petitioner (referring to Gurdial
Singh) has explained that respondent No. 1 (referring to
Jagir Kaur) was given the entire money left by the
deceased (Maya Singh) and she was also entitled to get
pension. My be that due to adjustment of pension and
other deposits, Maya Singh had deprived Jagir Kaur of
her state in the will and for that he did not think it
proper to make reference to her in the disputed will.”
Findings of the High Court
High Court reversed these findings and held as under:
“The complete silence on the part of the executant qua
his wife, while executing the Will, renders the will a
suspicious document and leads to the inference that the
same had not been executed by the executant of his free
disposing mind. Rather it leads to the inference that the
propounder of the Will might have influenced the
executant to execute the Will in his favour. In these
circumstances, the Courts below erred in holding that
the Will dated 16.5.1991 was a genuine document.”
Analysis
16. We are conscious that deprivation of a natural heir,
by itself, may not amount to a suspicious circumstance
because the whole idea behind the execution of the Will
is to interfere with the normal line of succession.9
However, in Ram Piari (supra), this Court held prudence
requires reason for denying the benefit of inheritance to
natural heirs and an absence of it, though not
invalidating the Will in all cases, shrouds the
disposition with suspicion as it does not give inkling to
the mind of the testator to enable the court to judge that
the disposition was a voluntary act.10
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17. It was rightly indicated in Leela Rajagopal vs.
Kamala Menon Cocharan11 when unusual features
appear in a Will or unnatural circumstances surround
its execution, the Court must undertake a close scrutiny
and make an overall assessment of the unusual
circumstances before accepting the Will. The Court held
as follows:
“13. A will may have certain features and may have
been executed in certain circumstances which may
appear to be somewhat unnatural. Such unusual
features appearing in a will or the unnatural
circumstances surrounding its execution will definitely
justify a close scrutiny before the same can be accepted.
It is the overall assessment of the court on the basis of
such scrutiny; the cumulative effect of the unusual
features and circumstances which would weigh with
the court in the determination required to be made by it.
The judicial verdict, in the last resort, will be on the
basis of a consideration of all the unusual features and
suspicious circumstances put together and not on the
impact of any single feature that may be found in a will
or a singular circumstance that may appear from the
process leading to its execution or registration. This, is
the essence of the repeated pronouncements made by
this Court on the subject including the decisions referred
to and relied upon before us.”
18. What boils down from this discussion is that suspicious
circumstance i.e. non mention of the status of wife or the
reason for her disinheritance in the Will ought not to be
examined in insolation but in the light of all attending
circumstances of the case. It would be argued that proof of
signatures on the Will and its registration dispels such
suspicious circumstance. On a first blush, this submission
appears to be attractive till one delves further into the
peculiar and unique circumstances of the case.”
18. Yet in the judgment in the case of Angadi Chandranna
v/s. Shankar [2025 LiveLaw (SC) 494] , Hon’ble Apex Court
referred to proposition that upon partition of joint Hindu family
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property, shares allotted to co-parceners become their self
acquired property with absolute rights to sell, transfer or
bequeath. It is also held that only because joint family exists, no
presumption can be drawn that property was purchased from
nucleus. Para 13 and 19 reads as under :-
“13. Further, it is a settled principle of law that there is no
presumption of a property being joint family property only on
account of existence of a joint Hindu family. The one who
asserts has to prove that the property is a joint family
property. If, however, the person so asserting proves that
there was nucleus with which the joint family property could
be acquired, then there would be presumption of the
property being joint and the onus would shift on the person
who claims it to be self-acquired property to prove that he
purchased the property with his own funds and not out of
joint family nucleus that was available. That apart, while
considering the term ‘nucleus’ it should always be borne in
mind that such nucleus has to be established as a matter of
fact and the existence of such nucleus cannot normally be
presumed or assumed on probabilities. This Court in
R.Deivanai Ammal (Died) v. G. Meenakshi Ammal12 , dealt
with the concept of Hindu Law, ancestral property and the
nucleus existing therein. The relevant paragraphs are
extracted below for ready reference:
“13. First let us consider the nature of the suit properties,
namely, self-acquired properties of late Ganapathy
Moopanar or ancestral properties and whether any nucleus
was available to purchase the properties. Under the Hindu
Law it is only when a person alleging that the property is
ancestral property proves that there was a nucleus by
means of which other property may have been acquired, that
the burden is shifted on the party alleging self-acquisitions
to prove that the property was acquired without any aid
from the family estate. In other words the mere existence of
a nucleus however small or insignificant is not enough. It
should be shown to be of such a character as could
reasonably be expected to lead to the acquisition of the
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property alleged to be part of the joint family property.
Where the doctrine of blending is invoked against a person
having income at his disposal and acquiring property, the
reasonable presumption to make is that he had the income
at his absolute disposal unless there is evidence to the
contrary. If a coparcener desires to establish that a property
in the name of a female member of the family or in the name
of the manager himself has to be accepted and treated as
property acquired from the joint family nucleus, it is
absolutely essential that such a coparcener should not only
barely plead the same, but also establish the existence of
such a joint family fund or nucleus. Even if the joint family
nucleus is so established, the prescription that the accretions
made by the manager or the purchases made by him should
be deemed to be from and out of such a nucleus does not
arise, if there is no proof that such nucleus of the joint family
is not an income-yielding apparatus. The proof required is
very strict and the burden is on the person who sets up a
case that the property in the name of a female member of the
family or in the name of the manager or any other
coparcener is to be treated as joint family property. There
should be proof of the availability of such surplus income or
joint family nucleus on the date of such acquisitions or
purchases. The same is the principle even in the cases
where moneys were advanced on mortgages over
immoveable properties. The onus is not on the acquirer to
prove that the property standing in his name was purchased
from joint family funds. That may be so, in the case of a
manager of a joint family, but not so in the case of all
coparceners. For a greater reason it is not so in the case of
female members.
19. As reiterated above, after the joint family property has
been distributed in accordance with law, it ceases to be joint
family properties and the shares of the respective parties
become their self-acquired properties. Hence, the suit
property acquired by Defendant No.1 became his self-
acquired property, on being sold by his brother
Thippeswamy to him, vide sale deed dated 16.10.1989. It is
the contention of the plaintiffs that the suit property was
purchased by Defendant No.1 using family nucleus and
thus, should be considered as ancestral property. Whereas,
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the defence raised was that Defendant No.1 acquired the
suit property with the aid of his own funds and loan
obtained from DW3- Narasimhamurthy. DW1-
Chandrashekar clearly stated in his deposition that
Defendant No.1 obtained a loan from DW3, out of which, he
purchased the suit property and that he repaid the loan
amount through a sale deed executed in respect of 4 acres of
land to DW3 and out of the balance amount, he performed
his daughter’s marriage. It was also stated by DW1 that
apart from the suit property, Defendant No.1 had various
lands and a house as well. DW2 Lakshmanappa stated in
his evidence that he had signed the partition deed (Ex. P1)
executed among Defendant No.1 and his brothers in 1986;
and he denied the payment of Rs.10,000/- to the share of
Defendant No.1. He further deposed that Thippeswamy,
elder brother of Defendant No.1, residing in Bangalore, sold
his share to Defendant No.1 as he was unable to look after
the same. His evidence also establishes that Defendant No.1
obtained loan from DW3 and he sold his land to him for
repayment of the said loan in 1993 by executing a sale deed
(Ex. D1), in which, DW2 was a witness; and at that time, the
wife and children of Defendant No.1 were present. DW3 -
Narasimhamurthy in his evidence, stated that Defendant
No.1 obtained loan from him for purchase of land of his
brother, in October 1989 and he repaid the same by selling
his 4 acres of land to him in 1993; and at the time of
execution of sale deed by Defendant No.1 to DW3, his wife
and children were present. It is the evidence of DW4 -
Linganna that Defendant No.1 executed a sale deed in
favour of DW3 in respect of 4 acres of land, for the
repayment of loan borrowed by him and DW4 was the
witness to the said document. He also categorically stated
that Defendant No.1 had purchased about 7 acres of land,
after obtaining loan from DW3 and prior to the execution of
sale deed in favour of DW3. It is categorically stated in the
sale deed dated 11.03.1993 that the suit property was a
self-acquired property of Defendant No.1. The sale deed
(Ex.P2) does not anywhere disclose that the suit property
purchased by Defendant No.1 was ancestral property or
was purchased from the income received from the joint
family property, except for a mere reference to the partition
deed (Ex. P1), which according to us, is not sufficient to come
to a conclusion that the properties allotted to the share of
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Defendant No.1 should also be treated as joint family
properties, and no evidence was let in by the plaintiffs to
prove that the other properties allotted to Defendant No.1
yielded income and that it was only from that entire income
that the suit property was purchased. No records have been
produced in this regard. Though PW2 stated that during the
partition, all the three brothers were allotted Rs.10,000/-
each, there was no recital to that effect in the partition deed
(Ex. P1) and hence, it cannot be believed. It is well
established that the contents in a document would prevail
over any contrary oral evidence. Regarding the contention
that Mallamma had sold her property in order to help
Defendant No.1 to purchase the suit property, except the
statement of PW2, there is no evidence in this regard.
Further, the said Mallamma was not examined and the sale
deed executed by her was not produced to substantiate the
same. It is also clear from the depositions on the defendants’
side that Defendant No.1 was not having any bad habits
and his wife and children were present, at the time of
execution of the sale deed. Whereas, there were
inconsistencies in the statements of PW1 and PW2 in
demonstrating that the suit property was an ancestral
property. The mere existence of sons and daughters in a
joint Hindu family does not make the father's separate or
self- acquired property as joint family property. It was also
the claim of the defendants that Defendant No.1 performed
the marriage of his daughter with the funds received as sale
consideration, which according to us, is the role of a Kartha,
and therefore, has to be treated as act of necessity and
duty. This fact has not been objected to by the plaintiffs.”
19. Coming back to facts of the case, the plaintiff has been
examined as first witness vide Exhibit 58 (Page no. 101 of the
paper book). After asserting that bunglow no.5, Patidar society
is purchased from joint property derived from income of
ancestral land, in cross examination, he has admitted that he
has no evidence be it oral or documentary to show that his
father has purchased bunglow no.5 from nucleus of joint
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property. He has further admitted that substantial addition has
been made in said bunglow purchased by father, but denied that
the suggestion that expenses has been incurred by father. He
has further admitted that he has documentary evidence to show
that he has contributed to his father in additional construction
in Bunglow. However, no documents are produced. The plaintiff
admitted that the ancestral land was managed by his Uncle, who
maintained expenses and retained the entire agricultural yield.
The plaintiff further admitted that he has been residing
separately from his father since the year 1957. It is further
admitted that he is ready to produce documentary evidence to
show that open plot at Kailashnagar, was purchased from
income of agricultural land. It is also stated that he is ready to
produce such evidence within one month, however, no such
evidence is produced during trial. It is also admitted that he has
received Rs.1 lakh as his share from the sale of the ancestral
agricultural land. Apart from this evidence, the plaintiff led no
other evidence to substantiate his claim.
20. Learned advocate Mr. Dev Patel for the plaintiff, heavily
relied upon two documentary evidence: firstly, the Will of the
deceased at page No.63 to prove the existence of a Hindu
Undivided Family (HUF); and secondly, the partition deed at
page No.93 executed between Manibhai Patel and others. It was
submitted that the parties hold shares in the undivided property
of the deceased Manibhai and that Plot No.218 paiki–3,
Kailashnagar was purchased utilizing the common nucleus of
the joint family. Relying on the admission of DW-1, wherein it
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was stated that Bunglow No. 5 was purchased in the same
manner as the plot in Kailashnagar, it is submitted that upon a
conjoint reading of the evidence, it establish that Bunglow No. 5,
Patidar Society, was purchased out of the nucleus of the
undivided HUF. The argument, at first blush seems attractive
but remains unsubstantial and fails to establish the plaintiff's
case. In the Will of the deceased, it is stated in no uncertain
terms that he had not purchased the property from joint funds;
rather, he stated that he received sale consideration from
disposing of certain ancestral property, and stated that he had
already distributed said consideration among his sons and
daughters. Therefore, it is unworthy to say that the deceased
had mentioned in his Will that Bunglow No. 5 was purchased
from the joint family nucleus. On the contrary, the testator
clearly affirmed that plot at Kailashnagar and Bunglow No. 5
were purchased from his independent income, thereby it is his
self-acquired property.
21. Insofar as the partition deed upon which the learned
advocate for the appellant relied heavily is concerned, it is
noticeable that the appellant is not a party to the said deed. This
deed was executed by Manilal Patel, Vinodchandra Patel,
Navinchandra Patel, and Rameshchandra Patel in favor of
Mulchandbhai Manilal Patel. By this deed, the former
relinquished their rights from plot in Kailashnagar. The recitals
in the deed indicate that this plot was purchased jointly by the
father, Manilal Patel, and his brother, Prahladbhai Patel, and
later came to the share of Manilal Patel. The three brothers of
the appellant, namely Vinodchandra, Navinchandra, and
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Rameshchandra, stated that they have an undivided share in the
said plot. This deed was executed on 08.10.1969. The appellant
at no point in time raised a contention that he has an undivided
share in plot at Kailashnagar. The appellant never questioned
the execution of the said deed during his lifetime, and his claim
of having an undivided share in plot at Kailashnagar. In this
way, the appellant, having accepted the partition deed, cannot
refer to it to infer that like plot at Kailashnagar, Bungalow no. 5
was also purchased from HUF funds and that the appellant has
an undivided share in the HUF. The submission of the appellant
that he has an undivided share in Bungalow no. 5 is tarnished
by his own cross-examination of DW-2 at Exhibit 83, which is
discussed in a later part of the judgment. Thus, the findings set
to rest that the appellant, besides oral submissions, has nothing
on record to establish that he has an undivided share in
Bungalow no. 5, inasmuch as Bungalow no. 5 was not proved to
be purchased in the same manner as plot at Kailashnagar.
22. At this juncture, worthy reference is made to deposition of
DW-2 Ramesh Patel at Exh.83. In the cross examination by the
appellant, suggestion was put that father has purchased two
properties viz. one Bungalow no.5 and plot at Kailashnagar from
his own income. This suggestion put by the plaintiff in cross
examination has been accepted by the witness. Para 4 of the
deposition in which suggestion has been put clinch the entire
issue. It reads as under (it is in Gujarati, for better
understanding it is translated in English) :-
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“4.. It is true that my father had acquired two immovable
properties in Ahmedabad city, which are the bungalow in
Patidar Society and the plot in Kailashnagar, and both the
said properties were acquired out of his own self-earned
income. I have information as to how and when the plot in
Kailashnagar was purchased. My father had purchased the
plot in Kailashnagar in the year 1948, and my father had
purchased the said plot benami (in the name of another
person). It is true that it was decided to allot the plot
situated at Kailashnagar to Moolchandbhai in the partial
partition. It is not true that my father had given Rs. 15,000/-
to Moolchandbhai for the construction over the plot in
Kailashnagar”.
23. Some more suggestion put by learned advocate
Mr.Acharaya to DW-2 in cross-examination are also material. In
para 2, it is asked that whether land of 50 vigha in Chandkheda
was ancestral property. It was further asked that whether father
was keeping account of income received from farming, in reply it
was explained that Uncle was keeping account. It is further
admitted that agricultural land were divided amongst brother,
father and Uncle in the year 1949 and after receiving share of 25
vigha land, this land has become self acquired property of
deceased father Manilal. Thus, it is settled that if any property
is purchased by father from income received from 25 vigha land,
is self acquired property. Para 2 reads as under (it is in Gujarati,
for better understanding, it is translated in English ) :-
“2... It is true that we are originally natives of Chandkheda.
It is true that our ancestral land measuring around 50
Bighas was situated within the limits of Chandkheda, and
the said lands were agricultural lands. It is not true that my
father used to keep the yield earned from the agricultural
income, but I say that my paternal uncle used to keep it. The
partition of the agricultural lands took place among my
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father's brothers in the year 1949, and 25 Bighas of land
came to my father's share. It is true that after the year 1949,
my father used to get the said lands cultivated. I am not
aware of the fact as to whether my father maintained the
accounts of the agricultural income.”
24. It is pertinent to note that the plaintiff had been living
separately from his father since year 1957. During the lifetime of
his father, the plaintiff at no point claimed any right or claimed
any share in Bungalow No. 5, Patidar Society, or in the plot
situated at Kailashnagar Society. It was only after the execution
of the Will in the year 1988, and subsequent to the demise of his
father, plaintiff approached the Court contending that Bungalow
No. 5 in Patidar Society and the plot in Kailashnagar Society
respectively were purchased utilizing income derived from
ancestral land.
25. At this juncture, it is material to recall that the deceased
father Manilal in his life time served as a Deputy Collector,
having regular salary, and also received post-retirement benefits
following his superannuation. All these shows that deceased
father Manilal had sufficient self acquired means to purchase
property. According to this Court, the plaintiff has failed to
discharge the burden of proving that Bungalow No. 5, Patidar
Society, was purchased from the nucleus of the Hindu Undivided
Family (HUF). The learned advocate for the plaintiff, Mr. Dev
Patel, could not point any other evidence on record to
substantiate such a contention.
26. The next contention raised by the plaintiff is that the Will
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executed by the father is surrounded by suspicious
circumstances on the ground that the plaintiff, being real son,
was excluded from the testamentary disposition. In support of
this argument, reliance was placed on the judgment in Gurdial
Singh (supra) . Needless to state, this judgment supports the case
of the defendant rather than that of the plaintiff.
27. In the present case, the plaintiff has not been deprived of
his right. The plaintiff has been given life time interest to reside
on the first floor of Bungalow No. 5, alongside his married sister,
Jyotikaben, who resides on the ground floor. Both the plaintiff
and his spouse are permitted to occupy Bungalow No. 5 until
their death. Therefore, the submission that the plaintiff has been
entirely excluded from inheritance under the testamentary
disposition is misconceived and unacceptable.
28. Issue No. 2, framed by the learned Trial Court, pertains to
whether the deceased, Manilal Patel, was in a sound disposing
state of mind when he executed the Will dated 09.02.1988,
thereby distributing the properties among his heirs in
accordance of his wish. The learned Trial Court dealt with and
discussed the said issue comprehensively in paragraphs 26 to 29
of judgment, which read as under:
“26. ISSUE NO.2: The defendants on the other hand
propounded will of the deceased Manibhai Patel ext.85
dated 9-2-1968 alleging that the deceased in a sound
disposing state of mind executed the will and divided his
self-acquired properties as per his desire under the said will.
The question as to whether the will set up by the propounder
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was executed by the testator has to be decided in light of the
provisions of Sections 59 and 63 of tho Succession Act and
Sections 67, 68, 45 and 47 of the Evidence Act as held by
the Supreme H.Venkatachala Iyengar v/s
B.N.Thimmajamma AIR 1959 SC 443. It was held by the
Supreme Court that in dealing with the proof of wills, the
court will start on the same enquiry as in the case of the
proof of documents and 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. It was
held that 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. It
was further held that there may, however, be cases in which
the execution of the will may be surrounded by suspicious
circumstances. The alleged signature of the testator may be
very shaky and doubtful and evidence in support of the
propounder's case that the signature, in question is the
signature of the testator may not remove the doubt created
by the appearance of the signature; the condition of the
testator's mind may appear to be very feeble and debilitated;
and evidence adduced may not succeed in removing the
legitimate doubt as to the mental capacity of the testator; the
dispositions made in the will may appear to be unnatural,
improbable or unfair in the light of relevant circumstances;
or, the will may otherwise indicate that the said dispositions
may not be the result of the testator's free will and mind. In
such cases the court would naturally expect that all
legitimate suspicions should be completely removed before
the document is accepted as the last will of the testator. The
presence of such suspicious circumstances naturally tends
to make the initial onus very heavy; and, unless it is
satisfactorily discharged, courts would be reluctant to treat
the document as the last will of the testator. The Supreme
Court also held that once that Will was executed with due
solemnities by a person of competent understanding and
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apparently a free agent, the burden of proving that it was
executed under undue influence is on the party who alleges
it.
27. In context of the provisions of Section 63 of the
Succession Act laying down the mode of execution of will, it
would be necessary to refer to the provisions of Section 68 of
the Evidence Act. Under that provision, if a document is
required by law to be attested, it shall not be used as
evidence until one attesting witness atleast has been called
for the purpose of proving its execution.
28. Now in the above context, it may be stated that the
defendants have examined attested witness of the will
ext.85 dated 9-2-1988 one Lilavatiben Bababhai Patel who
1s/was residing in bungalow No.5/A of the same Society
and before discussion of her oral testimony, it may be stated
that she happens to be simply a neighbour and not a relative
of the deceased himself and she stated in her deposition
that before his death the deceased Manibhai was keeping
good health and she also stated that when the deceased
had executed a will she was called by the deceased
Manibhai at his bungalow and she also stated that
Manibhai had asked her to sign in the Will as an attested
witness and she also stated that the deceased Manibhai
had first signed in the will in English language and
thereafter Vimlaben and she signed in the will and against
that, it is the day of the plaintiff that before execution of the
questioned will ext.85 dated 9-2-1968 the deceased had
undergone the operation of cataract and that the deceased
was unable to see or that he had no vision at all, but the
witness has categorically denied all the suggestions put to
her in her cross-examination regarding sound and disposing
state of mind and his health and she also stated that the
deceased had no problem at all in respect of health and nor
there was problem of Parkinson's and because of advanced
age of the deceased if any servant was employed to look
after him, it cannot be said that at the relevant time he was
not in a sound and disposing state of mind and that he was
unable to understand the nature and effect of his
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dispositions and except bare suggestions, there is no tota of
evidence to show that by taking undue advantage of the
indifferent health of the deceased the defendants got
executed a will ext.85 dated 9-2-1986 and in fact there is no
evidence on record to show that at what point of time the
deceased had undergone the operation of cataract and the
Hon'ble Apex Court in the case of Nareshchandra Dasgupta
v/s Pareshchandra Dasgupta AIR 1955 SC 363 has held
that it is elementary law that it is not every influence which
is brought to bear testator that can be characterized as
'undue'. On a open to a person to plead his case before the
testator and to persuade him to make a disposition in his
favour and if the testator retains his mental capacity and
there no alement of fraud of coercion, the will cannot be
attacked on the ground of undue influence. Much has been
argued on the point that witness Lilavatiben in her
deposition Ext.84 has admitted that she has not read the
will Exh.85 before signing it, but is settled proposition of law
that as an attested witness she is not expected to know the
contents of the will.
29. Much concentration has also been placed on fact that the
deceased Manibhai had undergone the operation of cataract
and therefore, he was unable to read or that he completely,
lost vision. But as stated above and as it appears from the
deposition of Lilavatiben Exh.84, it is clear that at the time of
executing the will the deceased Manibhai was possessing
good health.
30. For foregoing reasons, the issue No.2 is answered in the
affirmative accordingly.”
29. The attesting witness to the Will, viz. Lilavatiben, was
examined at Exhibit 84 and has duly proved the execution of the
Will. Apt to note that the defendants did not propound the Will
to claim any right before the Court, but it is produced in defence.
However, they have successfully discharged the statutory bur-
den of proof by leading the evidence of Lilavatiben, satisfying the
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requirements of Section 63 of the Indian Succession Act, 1925,
read with Section 68 of the Indian Evidence Act, 1872.
30. According to this Court, the learned Trial Court has
appreciated and examined the evidence in its true perspective in
background of the pleadings and issues framed and therefore,
this Court does not find any reason or justifiable ground to
interfere with the impugned judgment and decree.
31. At this juncture, worthy reference is made to judgment of
Hon’ble Apex Court in the case of Laliteshwar Prasad Singh &
Ors vs S.P.Srivastava [(2017) 2 SCC 415] , wherein, it is held
that when appellate court concurs with the finding of learned
trial Court, it is not required to restate the reasons to confirm
the findigns of learned Trial Court. Relevant para 13 and 14
reads as under :-
“13. An appellate court is the final court of facts. The
judgment of the appellate court must therefore reflect court’s
application of mind and record its findings supported by
reasons. The law relating to powers and duties of the first
appellate court is well fortified by the legal provisions and
judicial pronouncements. Considering the nature and scope
of duty of first appellate court, in Vinod Kumar v. Gangadhar
(2015) 1 SCC 391, it was held as under:-
“12. In Santosh Hazari v. Purushottam Tiwari (2001) 3
SCC 179, this Court held as under: (SCC pp. 188-89,
para 15) “15. … The appellate court has jurisdiction to
reverse or affirm the findings of the trial court. First
appeal is a valuable right of the parties and unless
restricted by law, the whole case is therein open for
rehearing both on questions of fact and law. The
judgment of the appellate court must, therefore, reflect
its conscious application of mind and record findings
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supported by reasons, on all the issues arising along
with the contentions put forth, and pressed by the
parties for decision of the appellate court. … while
reversing a finding of fact the appellate court must come
into close quarters with the reasoning assigned by the
trial court and then assign its own reasons for arriving
at a different finding. This would satisfy the court
hearing a further appeal that the first appellate court
had discharged the duty expected of it.” The above view
has been followed by a three-Judge Bench decision of
this Court in Madhukar v. Sangram (2001) 4 SCC 756,
wherein it was reiterated that sitting as a court of first
appeal, it is the duty of the High Court to deal with all
the issues and the evidence led by the parties before
recording its findings.
13. In H.K.N. Swami v. Irshad Basith (2005) 10 SCC 243,
this Court stated as under: (SCC p. 244, para 3) “3. The first
appeal has to be decided on facts as well as on law. In the
first appeal parties have the right to be heard both on
questions of law as also on facts and the first appellate
court is required to address itself to all issues and decide the
case by giving reasons. Unfortunately, the High Court, in the
present case has not recorded any finding either on facts or
on law. Sitting as the first appellate court it was the duty of
the High Court to deal with all the issues and the evidence
led by the parties before recording the finding regarding
title.”
14. Again in Jagannath v. Arulappa (2005) 12 SCC 303,
while considering the scope of Section 96 of the Code of Civil
Procedure, 1908, this Court observed as follows: (SCC p.
303, para 2)
15. Again in B.V. Nagesh v. H.V. Sreenivasa Murthy (2010)
13 SCC 530, this Court taking note of all the earlier
judgments of this Court reiterated the aforementioned
principle with these words: (SCC pp. 530-31, paras 3-5) “3.
How the regular first appeal is to be disposed of by the
appellate court/High Court has been considered by this
Court in various decisions. Order 41 CPC deals with appeals
from original decrees. Among the various rules, Rule 31
mandates that the judgment of the appellate court shall
state:
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(a) the points for determination;
(b) the decision thereon;
(c) the reasons for the decision; and
(d) where the decree appealed from is reversed or
varied, the relief to which the appellant is entitled.
4. The appellate court has jurisdiction to reverse or affirm
the findings of the trial court. The first appeal is a valuable
right of the parties and unless restricted by law, the whole
case is therein open for rehearing both on questions of fact
and law. The judgment of the appellate court must,
therefore, reflect its conscious application of mind and record
findings supported by reasons, on all the issues arising
along with the contentions put forth, and pressed by the
parties for decision of the appellate court. Sitting as a court
of first appeal, it was the duty of the High Court to deal with
all the issues and the evidence led by the parties before
recording its findings. The first appeal is a valuable right
and the parties have a right to be heard both on questions of
law and on facts and the judgment in the first appeal must
address itself to all the issues of law and fact and decide it
by giving reasons in support of the findings. ( Vide Santosh
Hazari v. Purushottam Tiwari (2001) 3 SCC 179, SCC p.
188, para 15 and Madhukar v. Sangram (2001) 4 SCC 756
SCC p. 758, para 5.)
5. In view of the above salutary principles, on going through
the impugned judgment, we feel that the High Court has
failed to discharge the obligation placed on it as a first
appellate court. In our view, the judgment under appeal is
cryptic and none of the relevant aspects have even been
noticed. The appeal has been decided in an unsatisfactory
manner. Our careful perusal of the judgment in the regular
first appeal shows that it falls short of considerations which
are expected from the court of first appeal. Accordingly,
without going into the merits of the claim of both parties, we
set aside the impugned judgment and decree of the High
Court and remand the regular first appeal to the High Court
for its fresh disposal in accordance with law.”
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32. In view of above, the appeal fails and accordingly, it is
dismissed. Impugned judgment and decree is confirmed. Decree
to be drawn accordingly. Interim relief granted earlier, if any,
stands vacated. Record and proceedings, if any, be send back to
learned Trial Court.
(J. C. DOSHI,J)
SATISH
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