Sardari Lal vs Bishan Dass

REPORTABLE


2026 INSC 669
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL No.10990 OF 2016


SARDARI LAL …APPELLANT

VERSUS
BISHAN DASS & ORS. …RESPONDENTS


J U D G M E N T
MANOJ MISRA, J.


1. This is plaintiff’s appeal against the judgment and order
1
of the High Court of Himachal Pradesh at Shimla dated
18.07.2016 in Regular Second Appeal (for short, RSA)
No.475/2003, whereby, the second appeal of the
2
defendants was allowed and the judgment and decree
of the First Appellate Court, affirming the decree passed

1
The High Court
2
Respondents herein
Signature Not Verified
Digitally signed by
CHETAN ARORA
Date: 2026.07.06
13:50:27 IST
Reason:
Civil Appeal No.10990/2016 Page 1 of 80

by the Trial Court, was set aside and the suit was
dismissed.
The Suit
2. Predecessor-in-interest of the appellant, namely,
Bhambo Devi wife of Chhajju, instituted Civil Suit
3
No.51/1993 against Bishan Dass (Respondent No.1)
and Ram Singh, who is represented by his legal
4
representatives i.e., Respondent Nos.2 to 5 , for
declaring plaintiff the sole owner and in possession of
the suit schedule property left by her husband, late
Chhajju Ram. Plaintiff also sought the relief of
prohibitory injunction and, in the alternative, in the
event of being found dispossessed, possession.
3. Plaint, in short, states as follows: Chhajju, the plaintiff’s
husband, was an illiterate agriculturist; he was the sole
owner of the suit schedule property; he died intestate on
05.02.1992, leaving no issue; the plaintiff is his sole
heir; defendants have no right, title or interest over the
suit schedule property; yet, basis a forged will dated

3
For short, R-1
4
For short, R-2 to R-5
Civil Appeal No.10990/2016 Page 2 of 80

06.11.1974, the defendants got the revenue records
mutated in their favour vide mutation no.66 dated
14.08.1992; Chhajju never executed any will; the Will is
an act of fraud / undue influence and as such void;
besides, Chhajju had no reason to disinherit his wife
(i.e., the plaintiff); the plaintiff is in possession of the suit
schedule property; cause of action arose when the
defendants interfered in the possession of the plaintiff
based on the mutation, and again when the defendants
declined to admit the plaintiff’s right over the suit
schedule property.
4. Defendants contested the suit by claiming, ,
inter alia
that though Chhajju was the owner of the suit schedule
property, on 06.11.1974 he executed a registered will of
his entire movable and immovable properties in favour
of the defendants; the will was executed in a sound state
of mind, out of love and affection and as a reward for the
services rendered by them to the testator and the
plaintiff, and they are still rendering service to the
plaintiff by providing her food, residence and other
Civil Appeal No.10990/2016 Page 3 of 80

necessities of life; besides, the plaintiff was throughout
aware of the will and she raised no objection; in fact, the
suit has been instituted at the instigation of her
relatives, namely, Sri Ram Dass, Shri Surat Ram and
Lakhu Ram, who want to grab the property by hook or
crook; based on the will, mutation was sanctioned on
14.08.1992 in presence of the plaintiff, then the plaintiff
raised no objection, rather she admitted the will; hence,
the suit is liable to be dismissed.
Facts on which there was no dispute
5. A close look at the pleadings would reflect that there is
no challenge to the suit being instituted by the plaintiff
and there is no lis between the parties on the following
facts:
a) that the original owner of the suit schedule
property was Chhajju Ram, who was an illiterate
agriculturist; and
(b) Chhajju Ram died, leaving no issues, therefore
the plaintiff, in absence of a testamentary
Civil Appeal No.10990/2016 Page 4 of 80

disposition, would be the sole successor to the
estate of late Chhajju Ram.
Main Issue before the Trial Court & the Evidence led
6. As the impugned judgment is of reversal, we will look at
the main issue and the evidence led by the parties.
Though multiple issues were framed by the Trial Court,
the main issue was as regards execution of the will by
Chhajju Ram in favour of the defendants. To prove
execution of the will, the defendants produced three
witnesses, namely:
(i) Ram Singh -DW-1 (i.e., defendant no.2)
deposed that the property in suit was owned
and possessed by Chhajju Ram, who was his
paternal uncle. Chhajju had executed the
registered Will out of free will, during his
lifetime, on 06.11.1974, and he died in the
month of April 1992. Both, Chhajju and the
plaintiff were served by the defendants. Last
rites of Chhajju were performed by the
defendants. Even during the lifetime of
Civil Appeal No.10990/2016 Page 5 of 80

Chhajju, the land in the suit was cultivated
by the defendants as Chhajju had no issues
and after his death, the defendants are
owners and in possession of the suit land.
The plaintiff was not willing to institute the
suit; in fact, the suit has been instituted at
the instigation of Sant Ram and Lakhu.
During cross-examination, DW-1 admitted
that his father’s father is Sunder whereas
Chhajju’s father is Baisakhi; he also admitted
that when the Will was executed, he was a
student and his brother Bishan Dass was in
service. He, however, denied the suggestion
that Chhajju had a separate house. He also
denied the suggestion that the plaintiff has
been residing separately. He also denied the
suggestion that his father had got a forged
will prepared. He also denied the suggestion
that the plaintiff is in possession of the suit
land.
Civil Appeal No.10990/2016 Page 6 of 80

(ii) Hariram (DW-2) - Attesting witness to the
Will. DW-2 deposed that he had been the
Pradhan of Gram Panchayat Behri for about
20-25 years. He knew Chhajju personally.
Chhajju was in his senses when the Will was
scribed at his instance. The deed writer had
read over the Will to him and, thereafter,
Chajju had put his thumb impression in his
presence and at the insistence of Chhajju,
DW-2 had also signed as a witness. Besides,
one Jagdish Ram (i.e., the other attesting
witness) had also signed as a witness. He
stated that Chhajju had brought the Will to
the Tehsildar; they had accompanied Chhajju
for registration of the Will. He proved
attestation of the Will. He admitted that
Jagdish, the other attesting witness, is alive
and managing a shop. During cross
examination, he admitted that Chhajju was
illterate, though clever. He denied the
Civil Appeal No.10990/2016 Page 7 of 80

suggestion that he has deposed as a witness
in a number of cases. However, he admitted
of having deposed as a witness in case of one
Kartar Singh, which was about a will. He
denied the suggestion that he was a witness
in another case of one Shakti Singh. He,
however, admitted that Chhajju was
dependent on agriculture and used to
cultivate his land. He also admitted that he
had good relations with his wife i.e., the
plaintiff and that plaintiff used to attend to
the deceased. However, sometimes sons of
Natha (i.e., the defendants) used to prepare
meals for Chhajju. He also stated that one of
the sons of Natha (i.e., one of the beneficiaries
of the Will) at the time of execution of the Will
was aged between 8 and 10 years. He,
however, could not tell the age of the other
son of Natha. He also could not disclose as to
how many sisters Chhajju had. As regards
Civil Appeal No.10990/2016 Page 8 of 80

the day when the will was executed, he stated
that they had all assembled at the village and
from there they proceeded to Amb. The Will
was scribed by Somnath at the instruction of
Chhajju. He stated that judicial paper was
purchased by Chhajju from a stamp vendor.
He, however, denied the suggestion that
Natha (i.e., father of the defendants) was his
relative. He also denied the suggestion that
Chhajju was not known to him.
(iii) Shanti Lal (DW-3) – Examined to prove
signature of Som Nath i.e., the scribe of the
Will. DW-3 stated that Som Nath, who is now
dead, was his nephew. He used to sell stamp
paper. He saw Som Nath writing deeds and
is aware of his signatures. He stated that the
signature on the Will appears to be that of
Som Nath. In his cross examination, he
denied the suggestion that Som Nath was not
related to him.
Civil Appeal No.10990/2016 Page 9 of 80

Trial Court Finding / Observations
7. After considering the evidence led by the parties and
perusing the Will (Ex. DW-2/A), the Trial Court held as
follows:
“10. I have perused Will (Ex. DW2/A). Perusal of
which goes to show that when it was executed,
Chhajju had excluded plaintiff from succession on
the ground that she had sufficient ornaments and
cash and therefore nothing was required to be
given to her. This Will was executed in the year
1974 and is without details of value of ornaments
and cash. There being no details of property which
she had with her, exclusion cannot be said to be
bona fide, but smacks of suspicion in the
transaction. Had Chhajju intended to exclude the
plaintiff from his estate despite the fact that she
was having good relations with him and was
putting up with him, details of ornaments or cash
should have been given or some other provision for
her maintenance should have been made, but the
provisions disclosed in the will do not go to
establish that she was excluded on some genuine
grounds. Thus, this exclusion which remains
unexplained does not appeal to the conscience of
the court and is a suspicious circumstance qua
validity of the Will in question or its execution.
Perusal of this Will from its backside where
endorsement has been made by Sub-Registrar
makes it more suspicious. In place of name of
Chhajju Ram, firstly, name of someone else i.e.
Laxmi Kant Bassi had been written which has
thereafter been tampered and then Chhajju Ram
has been entered. This cutting does not bear
signatures of Sub-Registrar who had done the
cutting. Had the cutting been effected at the office
of Sub-Registrar, he ought to have put his initials
over this cutting. Name which has been cut seems
to be Laxmi Kant Bassi which after cutting has
been replaced by the name of Chhajju. Such
cutting is at three places. Endorsement has been
made by some official and not by Sub-Registrar
Civil Appeal No.10990/2016 Page 10 of 80

who appears to have put his signatures only at the
stamps affixed by the official concerned and seems
not have gone through the will. Had it been not
so, he must have made some proper endorsement.
Regarding this cutting and deletion of name is
again a suspicious circumstance which has not
been explained by anyone. To remove this doubt,
the then Sub-Registrar ought to have been
examined, but that has not been opted for…..nor
report from the office of Sub-Registrar has been
called as to who Laxmi Kant was and why this
cutting was made. Thus, as per perusal of record,
there are number of suspicions which are
emerging. Firstly, it is statement of defendant who
claimed that he was rendering services along with
his brother without explaining nature of those
services and as to what made them to go for these
services when he was a school student and his
parents were alive and they were joint with
Chhajju. It has not been pointed out as to whether
father of the defendants was also putting up with
Chhajju, if so, why, and in case it was so, as to
why complete details have not been provided.
Statement of DW2 and DW3 also create suspicion.
Another suspicious circumstance is exclusion of
plaintiff who was sole heir to have survived the
deceased and the most serious suspicious
circumstance is cutting made on the endorsement
made by Sub-Registrar Amb. All these suspicious
circumstances have not been explained and, I feel
that the will falls in the category of suspicious
documents. At the same time, there is nothing on
the file to suggest that there was any occasion for
Chhajju Ram to execute will in the year 1974
whereas he survived up to the year 1992. Thus,
taking into consideration all these suspicious
circumstances, the only conclusion which could be
reached at is that deceased Chhajju had not
executed a valid will of his estate on 06.11.1974 in
sound state of mind. Defendants have also not
been established to be in possession of suit land
on the basis of this will. The issue is disposed of
accordingly.”

Civil Appeal No.10990/2016 Page 11 of 80

8. After holding as above, the Trial Court proceeded to
decide the other issues. In respect of the issue as to
whether the plaintiff is the owner and in possession of
the suit property, the Trial Court held that though the
plaintiff did not appear as a witness, the site plan (Ex.
DW-1/A), which disclosed Abadi of the plaintiff, as per
spot position, was duly proved. Besides, Chajju’s
ownership of the house was not disputed; rather, it was
admitted by the defendants. Therefore, by virtue of
intestate succession, the plaintiff would be the owner in
possession thereof. The relevant observations of the Trial
Court are extracted below:
“Since defendants have not adduced any evidence or
even deposed clearly that suit land along with house
was put into their possession by deceased Chhajju
during his lifetime, I feel it cannot be presumed that
possession is with the defendants. Had the possession
been delivered, in that respect specific plea ought to
have been raised and evidence should have been
adduced, but defendants have failed to do so. The
revenue record is depicting Chhajju to be owner in
possession of suit land and after death of Chhajju
there being no evidence to this fact that possession
was taken by defendants at any stage out of free will of
the plaintiff or someone it was handed over at any later
stage. Thus, it cannot be presumed in any manner
that the defendants are in possession of the suit land.”

Civil Appeal No.10990/2016 Page 12 of 80

9. The Trial Court also considered Jamabandi entries and,
thereafter, observed:
“ As per the perusal of the Ex. P-1, copy of Jamabandi
for the year 1986-87, Chhajju has been recorded the
owner in possession and in the column of remarks, it
has been recorded that mutation on 14.08.1992 of the
estate of Chhajju had been attested in the favour of
defendants and, at the same time, in remarks column,
it has been recorded that redemption of mortgage by
State of HP has been done in the name of Bhambo
meaning thereby that the mortgage created by Chhajju
was redeemed by her and mutation was attested
accordingly. Had the possession been that of the
defendants, in that respect, some remarks ought to
have been given in this column, but perusal of entries
make it clear that earlier land was mortgaged with
State on account of loan taken by Chhajju and
thereafter, it was redeemed by plaintiff and in this
respect, mutation was also attested on 14.08.1992.
The same day, mutation was attested in the name of
defendants on the basis of Will. When both mutations
were attested at the same day, it was incumbent upon
the revenue authorities to make clear factum of
possession, but that has not been done. Same
authority had sanctioned mutation of succession in
favour of defendants and in the next mutation no.67
land has been mutated to have been redeemed by
plaintiff from the State of HP meaning thereby that title
came to plaintiff after death of her husband and she
got it redeemed and question of mutation in favour of
defendants does not arise and it ought to have been
decided by the revenue officer properly, but that has
not been done. Perusal of remarks column militates
against plea of possession which at that time is
claimed to be that of the defendants and even today
they claim to be in possession, but possession can be
presumed to be with the plaintiff. Ex. P-2, copy of
Jamabandi for the year 1989-90 again records
Chhajju to be the owner in possession. In remarks
column, it has been recorded that correction has been
ordered by the settlement authorities i.e. by Naib
Tehsildar. Again, note was given that decision qua Will
executed by Chhajju in favour of defendants is
pending. Thus, perusal of these documents goes to
Civil Appeal No.10990/2016 Page 13 of 80

establish that possession is that of the plaintiff.
Perusal of Ex. P-1/A goes to show that Smt. Bhambo
is in possession of house, which is adjoining to house
of defendants. There is nothing on record to rebut
contents of Ex. P-1/A. Thus, I feel that the site plan
Ex. P-1/A cannot be treated to be a wrong site plan.
Thus, the only conclusion which could be reached at
is that plaintiff is in possession of the suit land along
with house as owner.”

10. Based on the above findings, the Trial Court decreed the
suit, thereby declaring the plaintiff as owner in
possession of the suit schedule property, and issued
permanent prohibitory injunction restraining the
defendants from interfering with the possession of the
plaintiff over the suit property.
Impleadment of Appellant as Plaintiff’s L.R. in First
Appeal

11. Aggrieved by Trial Court’s decree, the defendants filed
Civil Appeal no.144/1996. During pendency of the
appeal, the original plaintiff died. One Prakash Chand,
who claimed to have succeeded to the estate of the
original plaintiff, got himself impleaded and accepted the
defendants’ case. However, on the next day, an
application for impleadment was filed by Sardari Lal (the
Civil Appeal No.10990/2016 Page 14 of 80

appellant herein) claiming himself to be the legal
representative of the deceased plaintiff. However, as the
appeal had already been disposed of, consequent to
acceptance of the defendants’ claim by Prakash Chand,
the prayer for impleadment was rejected. As a result,
Sardari Lal filed RSA No.295/2002 before the High
Court. The High Court, vide order dated 08.11.2002, set
aside the judgment and decree passed by the appellate
court, restored the appeal to its original number and
ordered for its fresh consideration. Thereafter, the first
appellate court heard parties on the issue as to who
could be considered the legal representative of the
original plaintiff and, vide order dated 14.08.2003,
allowed the application of Sardari Lal, thereby bringing
him on record as legal heir of the original plaintiff.
First Appellate Court’s Decision
12. Before the Appellate Court, one of the submissions on
behalf of the appellant was that no witness appeared on
behalf of the plaintiff to raise a doubt in respect of valid
execution of the Will and therefore, once the execution
Civil Appeal No.10990/2016 Page 15 of 80

of the Will was proved, there was no occasion to reject
the Will. The court also noticed another submission on
behalf of the defendants, which was that since the issue
of the Will being vitiated by fraud and undue influence
was decided in favour of the defendant, for want of
evidence led by the plaintiff, the Will ought to have been
accepted. Negating both the submissions, the first
appellate court held that will is a solemn document and
judicial conscience of the court must be satisfied as to
its execution, and where the will is shrouded in
suspicious circumstances, the propounder of the will
must explain the same and dispel the doubts.
13. The first appellate court, after considering the evidence
on record enumerated the suspicious circumstances for
its consideration, as under:
(i) The plaintiff, being the only legal heir
and legally wedded wife of the testator
was disinherited without any rhyme or
reason.
Civil Appeal No.10990/2016 Page 16 of 80

(ii) Relationship of the beneficiary as
nephew of the testator, mentioned in the
Will, was not made out.
(iii) Execution of the Will in the year 1974
itself creates a doubt when the testator
lived till the year 1992.
(iv) There is no witness of the Will from the
village of the testator.
(v) The unwarranted cuttings at the time of
registration of the Will remain
unexplained, and the cumulative effect
of all the above circumstances would
result in an inference that the Will is not
proved to be a valid document.
14. The first appellate court thereafter proceeded to discuss
each of the above circumstances separately. The reasons
recorded by the first appellate court for affirming the
trial court decree, and in discarding the Will, could be
summarized as under:
Civil Appeal No.10990/2016 Page 17 of 80

(i) No cogent reason, except a bald
statement in the Will that the testator
had made provisions for his wife in the
form of jewellery and cash, was
forthcoming to deprive the testator’s wife
of her right to succeed to the estate of
the deceased. DW-2, the marginal
witness of the Will, had deposed that so
long Chhajju Ram (i.e., the testator)
remained alive, he was looked after by
his wife. Thus, there was no plausible
reason to disinherit her. In absence of
any cogent reason to disinherit her, the
suspicious circumstance in that regard
remained unexplained.
(ii) Relationship of the testator with the
legatee as one of uncle and nephew was
not established. The witnesses had
failed to prove that there was any such
relationship between the testator and
Civil Appeal No.10990/2016 Page 18 of 80

the legatee. Moreover, it was noticed
that the beneficiary was a mere student
at the time of execution of the Will.
Therefore, the plea that the propounder
of the Will was taking care of the testator
at the time of its execution appears
doubtful. More so, when the testimony
of DW-2 discloses that the original
plaintiff i.e., wife of the testator had been
taking care of her husband till his last
breath. Thus, in the first appellate
court’s view, this too remained an
unexplained suspicious circumstance.
(iii) There was no good reason to execute the
Will in the year 1974 when the testator
was hale and hearty and had survived
up to 1992. Besides, there was nothing
on record to demonstrate that the
testator was not keeping good health, or
was in any manner dissatisfied with his
Civil Appeal No.10990/2016 Page 19 of 80

wife, or was so dependent on the
legatees for his living that he decided to
execute the Will in their favour.
Further, there was no evidence on
record to show that the testator, during
his lifetime, was provided any financial
assistance by the legatees, or that he
was residing with them in their house.
(iv) In respect of the witness to the Will not
being a resident of the village where the
testator resided, the first appellate court
observed that, admittedly, the marginal
witnesses to the Will were residents of
other village and there was no reason
shown as to why any member of
testator’s own village was not made a
witness to the Will. This, in the view of
the first appellate court, was a
suspicious circumstance, not
satisfactorily explained. The appellate
Civil Appeal No.10990/2016 Page 20 of 80

court also observed that though there is
no such rule of law or procedure that a
marginal witness should be from the
same village, the omission in that regard
generates suspicion in the peculiar facts
of the case.
(v) Though it is not a requirement of the law
that both the attesting witnesses must
be examined, in the facts of the case,
non-examination of the other witness,
though alive, raised a suspicion and,
therefore, required an explanation.
(vi) Cuttings at the back of the Will changed
the name of the person who presented/
executed the document from Laxmi Kant
to Chhajju Ram. Such cuttings had no
explanation. The first appellate court
noticed that there is no explanation for
cutting the father’s name of the testator.
Besides, the age was first mentioned as
Civil Appeal No.10990/2016 Page 21 of 80

50 years and later zero was crossed to
make it 55. These cuttings raised a
serious doubt as regards the valid
execution of the Will, particularly when
there was no explanation for those
cuttings coming from any of the
witnesses examined by the propounder
of the Will. According to the first
appellate court, the propounder was
required to at least get the Sub
Registrar, in whose presence the Will
was registered, examined, or to examine
the clerk in whose presence and
handwriting the certificate of
registration was endorsed. Based on the
aforesaid analysis, the court concluded
that there was some ‘ hanky-panky ’ in
the execution of the Will. The relevant
observations of the first appellate court
in this regard are found in paragraph 19
Civil Appeal No.10990/2016 Page 22 of 80

of its judgment, which is reproduced
below:
“19. The close scrutiny of the back
of Will Ext. DW-2/A goes to show
that there are cuttings at least on 7-
8 places. Suffice it to say it does not
appeal to reason that the entire
process of registration qua the Will
was effected in the name of Laxmi
Kant and later on name of Chhajju
was incorporated by cutting the
name of Laxmi Kant. Even with
respect to the presentation of the
Will there is name of Laxmi Kant
aged 50 years and the contents of
the Will were also stated to have
been read over to said Laxmi Kant.
Though Hari Ram, one of the
marginal witness, stated that
thumb marks were put by Chhajju
Ram in his presence at the time of
the registration of the Will, but if
that be so why name of Laxmi Kant
Bassi was mentioned on both the
places as well as qua the
presentation of the said Will. As
pointed out earlier the discrepancy
thus could have been explained
either by the Sub-Registrar or by
the marginal witnesses to the Will
Hari Ram and Jagdish Ram. As
regard Hari Ram DW-2, I have
pointed out that he has failed to
utter even a single word in his
examination-in-chief in this regard
and the other marginal witness of
the Will Jagdish Ram despite his
availability was not examined which
thus raises a material doubt in the
valid execution of the Will. Apart
from, be it stated even the scribe of
the Will could not be examined as
he had died by then and in his place
DW-3 Shanti Lal was examined.
Civil Appeal No.10990/2016 Page 23 of 80

Thus, I have purposely mentioned
as the scribe of the will could have
thrown light qua the valid execution
of the Will more so qua the
discrepancy noted. The fact that the
Sub Registrar had merely appended
his signatures on a stamp which
goes to show that the thumb
impressions as well as the
signatures are taken in his presence
rather goes to postulate that the
attestation of the will as such was
done by the Sub-Registrar in a most
casual and mechanical manner. In
case there had been due application
of mind at the time of attestation of
the Will by the Sub Registrar, he
would have noticed discrepancy qua
the cuttings effected and to initial
the same. Needless to say in the
absence of any initials of the Sub
Registrar on the cuttings so
effected, and for want of positive
evidence with respect to the said
cuttings being effected at the time of
its registration, possibility cannot
be ruled out that these cuttings
were made conveniently at a later
time or the testator had not at all
appeared before the Sub Registrar
when the said registration was
done. At the cost of repetition be it
stated there remains every
possibility that a person of the
name of Laxmi Kant Bassi might
have appeared before the Sub
Registrar and afterwards in order to
show that the Will was registered
and got executed by the testator
Chhajju Ram these cuttings were
effected or else there would have
been no reason for not appending a
note qua the said cuttings and to
have initialed duly by the Sub
Registrar. Consequently, the said
circumstance which was also dealt
with at length by the ld. trial court
Civil Appeal No.10990/2016 Page 24 of 80

and was rightly held to be
suspicious one in the valid
execution of the will thus is proved
to be so and is reaffirmed by this
court accordingly.”

15. Predicated on the observations and findings delineated
above, the first appellate court concluded that the
propounder has failed to discharge its onus to explain
the suspicious circumstances and dispel the doubts
shrouding the valid execution of the Will. In
consequence, the Will was discarded and the trial court
decree was affirmed.
High Court’s View in Second Appeal
16. Aggrieved by the judgment and decree of the two courts
below, the defendants preferred a second appeal before
the High Court. The High Court framed the following
substantial question of law for its consideration:
“Whether the suspicious circumstances relied
upon by two courts below in declaring the
impugned will Ex. DW-2/A as invalid are
suspicious circumstances surrounding the
execution of said Will, and, if so, whether the
suspicious circumstances had been
satisfactorily explained?”

17. The High Court set aside the judgment and decree
passed by the courts below and dismissed the suit. In its
Civil Appeal No.10990/2016 Page 25 of 80

judgment, the High Court observed that though other
attesting witness was not examined, DW-2, as an
attesting witness, proved the execution of the will. It was
observed that the requirement of the law is not that both
attesting witnesses must be examined. Besides, the
mere fact that the attesting witness/ witnesses is/ are
not from the same village is not a ground to discard his/
their testimony, particularly when no evidence was led
by the plaintiff to discredit the testimony of the witness.
The High Court also observed that the testator is free to
choose his witnesses and if he reposes trust in a
particular witness, his testimony cannot be discredited
merely on the ground that he resides in some village
other than where the testator resides. According to the
High Court, the attesting witness produced had proved
5
due execution of the Will in terms of Section 63 of the

5
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)The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and
by his direction.
(b)The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall
appear that it was intended thereby to give effect to the writing as a Will.
(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

Civil Appeal No.10990/2016 Page 26 of 80

Succession Act. Besides, once attestation and execution
of the will was proved by DW-2, cuttings existing on the
back of the Will, even if they remained uninitialed by the
Registering Officer would not discredit the testimony of
the attesting witness so as to disprove the due execution
of the Will, more particularly, when there appears no
cutting on the front page of the will. The High Court
further observed that the trial court and the first
appellate court should not have laid much emphasis on
absence of details of the service allegedly rendered by the
legatees to the testator which constituted a motive for
execution of the Will.
18. In a nutshell, the High Court took the view that when
attestation of the Will is duly proved by the attesting
witness, the execution of the Will would stand proved,
and the Will, being a registered document, ought not to
have been discarded for the reasons assigned by the
courts below.

the testator a personal acknowledgement of his signature or mark, or 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.

Civil Appeal No.10990/2016 Page 27 of 80

19. Aggrieved by the judgment and order passed by the High
Court, the legal representative of the plaintiff is in appeal
before us.
20. We have heard Ms. Radhika Gautam, learned counsel
for the appellant; and Shri Rajesh Gupta, learned
counsel for the respondents.
Submissions on behalf of the Appellant
21. Learned counsel for the appellant submitted as follows:
(i) Plaintiff’s case that the suit schedule property
was that of Chhajju Ram and on his death, the
plaintiff, as his widow, was the sole surviving legal
heir is not denied in the written statement. Once
those basic facts are admitted, they stand proved,
and therefore, no evidence was required from the
plaintiff’s side. Besides, there is no claim that there
are other class one heirs of the deceased. In such
circumstances, even if no witness of fact was
examined by the plaintiff, merely on that ground,
the suit cannot be defeated.
Civil Appeal No.10990/2016 Page 28 of 80

(ii) As far as execution of the Will is concerned, the
burden of proof lay on its propounder. Besides, a
will being a solemn document, its execution must
be proved to the satisfaction of the court’s judicial
conscience. Here, the Will was shrouded in
suspicious circumstances such as:
(a) there being no reason for the testator
either to execute a will in favour of the
defendants or to disinherit his own wife
who had been with the testator
throughout, taking care of him;
(b) there being no reason to execute a will
in 1974 when the testator was hale and
hearty and there was no moral
obligation to recompense the legatees;
(c) the legatees could not have served the
testator when the Will was executed and
therefore, there was no basis to
recompense them for their services
rendered to the testator;
Civil Appeal No.10990/2016 Page 29 of 80

(d) neither of the witnesses to the Will were
residents of the village where the
testator resided nor were persons of his
confidence, therefore, absence of
explanation as to why they were chosen
to witness its execution raises doubt
about the Will;
(e) the back page of the Will, where the
Registrar had made an endorsement,
had cuttings to the extent that the name
of the presenter/ executor of the
document stood changed, and such
changes were not initialled, in such
circumstances, the benefit of certificate
of registration is not available.
(iii) Whether execution of the Will had been duly
proved and/or the Will is genuine, is a
question of fact. Likewise, the existence of
suspicious circumstances and their
explanation are essentially a question of fact.
Civil Appeal No.10990/2016 Page 30 of 80

Once the trial court and the first Appellate
court enlisted those suspicious
circumstances and, after discussing them in
detail, found them not satisfactorily explained
to the satisfaction of the court’s conscience,
the finding so returned was not amenable to
interference in exercise of the power under
Section 100 of the Code of Civil Procedure,
6
1908 .

(iv) The High Court exceeded its jurisdiction by
overturning well considered findings of facts
returned by the trial court and the first
appellate court and, therefore, the High
Court’s order is liable to be set aside.
22. In support of her submissions, learned counsel for the
appellant relied on the following precedents:
(a) H. Venkatachala Iyengar v. B.N.
7
Thimmajamma & Ors. ;
(b) Sir Chunilal V. Mehta and Sons Ltd. v. Century
8
Spinning and Manufacturing Co. Ltd. ;

6
CPC
7
1959 Supp (1) SCR 426: AIR 1959 SC 443: 1958 SCC OnLine SC 31
8
1962 Supp (3) SCR 549: AIR 1962 SC 1314: 1962 SCC OnLine SC 57
Civil Appeal No.10990/2016 Page 31 of 80

(c) Rani Purnima Debi & Anr. v. Kumar
9
Khagendra Narayan Deb & Anr. ;
(d) Kondiba Dagadu Kadam v. Savitribai Sopan
10
Gujar & Ors. ;
11
(e) Veerayee Ammal v. Seeni Ammal ;
(f) Rur Singh (Dead) Thru LRs & Ors. v. Bachan
12
Kaur ;
13
(g) Kavita Kanwar v. Pamela Mehta & Ors. ;
(h) Shivakumar & Ors. v. Sharanabasappa &
14
Ors. ; and
(i) Meena Pradhan & Ors. v. Kamla Pradhan &
15
Anr.

Submissions on behalf of the Respondents
23. On behalf of the respondents, it was submitted:
(i) The testator and his wife (i.e., the plaintiff)
were a childless couple. They used to reside in a
common village house with the defendants, who
used to serve and take care of them, and also
cultivate their fields. Though Chhajju is distantly
related to the defendants, he was given affection
as an elderly figure and therefore, Chhajju
decided to execute a Will in their favour. Mere

9
(1962) 3 SCR 195: AIR 1962 SC 567: 1961 SCC OnLine SC 89
10
(1999) 3 SCC 722
11
(2002) 1 SCC 134
12
(2009) 11 SCC 1
13
(2021) 11 SCC 209
14
(2021) 11 SCC 277
15
(2023) 9 SCC 734
Civil Appeal No.10990/2016 Page 32 of 80

disinheritance of near and dear ones is not
sufficient to discard an otherwise validly
executed Will.
(ii) Plaint has self-contradictory pleas. At one
place, the Will is called a bogus document, and
at another, it is claimed to be a result of fraud,
undue influence and importunity. To
substantiate the plea of fraud, undue influence
and importunity, no evidence has been led. As
far as execution of the Will is concerned, it is
proved by the attesting witness. Therefore, there
was no justification for the trial court and the
first appellate court to discard the Will. Hence,
the High Court was justified in reversing the
decision of the courts below.
(iii) Plaintiff had examined only one witness i.e.,
PW-1, who is a formal witness, to prove the site
plan. His evidence is otherwise of no use. In the
circumstances, there is no evidence to doubt the
execution of the Will. Besides, there is no proper
Civil Appeal No.10990/2016 Page 33 of 80

cross examination to discredit the testimony of
DW-2 regarding execution of the Will.
(iv) Cuttings on the back side of the Will would
have no material bearing as the Will is recorded
on the front page, which has no cuttings and it
bears the thumb impression of the testator as
well as signatures of the attesting witness.
Therefore, execution of the Will, which is not a
compulsorily registerable document, cannot be
doubted merely because those cuttings were not
initialled by the Sub-Registrar at the time of
registration.
(v) The High Court while exercising powers
under Section 100 of CPC did not exceed its
jurisdiction as the question whether suspicious
circumstances exist, and/or are duly explained,
is a mixed question of law and fact. Likewise, if
the burden of proof is placed on a wrong party,
the second appellate court can always interfere.
In such circumstances, since the two courts
Civil Appeal No.10990/2016 Page 34 of 80

below had erred in placing burden of proof on the
defendants, when due execution of the Will was
proved as per Section 63 of the Succession Act,
the High Court was justified in reversing the
lower courts’ verdict.
24. In support of his submissions, learned counsel for the
respondent relied on the following precedents:
(a) Madhukar D. Shende v. Tarabai Aba
16
Shedage ;
17
(b) Sridevi & Ors. v. Jayaraja Shetty & Ors. ;
18
(c) Mohd. Yunus v. Gurubux Singh ;
(d) Krishna Mohan Kul & Anr. v. Pratima Maity &
19
Ors. ;
(e) Sebastiao Luis Fernandes (Dead) Thru LRs. &
20
Ors. v. K.V.P. Shastri (Dead) Thru LRs & Ors. ;
and
21
(f) Hafazat Hussain v. Abdul Majeed & Ors.
Issues
25. Upon consideration of the submissions and perusal of
the record, in our view, the following issues arise for our
consideration:

16
(2002) 2 SCC 85
17
(2005) 2 SCC 784
18
1995 Supp (1) SCC 418
19
(2004) 9 SCC 468
20
(2013) 15 SCC 161
21
(2001) 7 SCC 189
Civil Appeal No.10990/2016 Page 35 of 80

1. Whether the pleadings of the plaintiff were
deficient and self-contradictory as to lay a proper
challenge to the Will? If so, its consequence?
2. Whether non-examination of the plaintiff, or
any witness of fact on its behalf, was sufficient to
dismiss the suit?
3. Whether there were suspicious
circumstances shrouding the execution of the Will?
If so, whether those suspicious circumstances were
explained, and doubts dispelled, to the satisfaction
of the Court’s conscience?
4. Whether the High Court exceeded its
jurisdiction under Section 100 of CPC in interfering
with the concurrent findings of fact of the two
courts that the Will was shrouded in suspicious
circumstances which its propounder failed to
explain so as to dispel the doubts about its valid
execution to the satisfaction of the Court’s judicial
conscience?

Civil Appeal No.10990/2016 Page 36 of 80

Discussion/ Analysis
26. Before we take up the issues for discussion, a general
survey of the law regarding proof of Wills would be
necessary.
Law regarding proof of Wills
27. In Rani Purnima Debi (supra), a three-Judge Bench of
this Court, after considering another three-Judge Bench
decision rendered in H. Venkatachala Iyengar (supra),
summarized the law as under: The mode of proving a
Will does not ordinarily differ from that of proving any
other document except as to the special requirement of
attestation prescribed in the case of a will by Section 63
of the Indian Succession Act, and its mode of proof as
prescribed in Section 68 of the Indian Evidence Act,
22
1872 . The onus of proving the Will is on the
propounder and in the absence of suspicious
circumstances surrounding the execution of the will,
proof of testamentary capacity and signature of the
testator as required by law is sufficient to discharge the

22
See also: Bhagwan Kaur v. Kartar Kaur & Ors., (1994) 5 SCC 135, paragraph 4
Civil Appeal No.10990/2016 Page 37 of 80

onus. Where, however, there are suspicious
circumstances, the onus would be on the propounder to
explain them to the satisfaction of the court before the
Will could be accepted as genuine. If the caveator alleges
undue influence, fraud or coercion, the onus is on him
to prove the same. Even where there are no such pleas,
but the circumstances give rise to doubts, it is for the
propounder to satisfy the conscience of the court. The
suspicious circumstances might be as to: (a) the alleged
signature of the testator; (b) the condition of the
testator’s mind; (c) the dispositions made in the Will,
which may appear unnatural, improbable or unfair in
the light of relevant circumstances; or the Will might
otherwise indicate that the said dispositions might not
be the result of the testator’s free will and mind; and (d)
the propounder taking a prominent part in the execution
of the Will which confers substantial benefits upon him.
If the propounder succeeds in removing the suspicious
circumstances, the court would grant probate, even if
Civil Appeal No.10990/2016 Page 38 of 80

the will might be unnatural and might cut off, wholly or
23
in part, near relations .
24
28. In Smt Jaswant Kaur v. Smt. Amrit Kaur , a three-
Judge Bench decision of this Court, it was 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.”
(Emphasis supplied)

29. In Kalyan Singh, London Trained Cutter, Johri
25
Bazar, Jaipur v. Smt. Chhoti and Ors. , a three-
Judge Bench of this Court held:
“20. …a will is one of the most solemn documents known to law.
The executant of the will cannot be called to deny the execution
or to explain the circumstances in which it was executed. It is,
therefore, essential that trustworthy and unimpeachable evidence
should be produced before the court to establish genuineness and
authenticity of the will. It must be stated that the factum of
execution and validity of the will cannot be determined merely by
considering the evidence produced by the propounder. In order to
judge the credibility of witnesses and disengage the truth from
falsehood the court is not confined only to their testimony and
demeanor. It would be open to the court to consider
circumstances brought out in the evidence or which appear from
the nature and contents of the documents itself. It would be also

23
See also: Constitution Bench decision of this Court in Shashi Kumar Banerjee & Ors. v. Subodh Kumar Banerjee
(since deceased) through LRs & Ors., AIR 1964 SC 529: 1963 SCC OnLine SC 114, paragraph 5
24
(1977) 1 SCC 369
25
(1990) 1 SCC 266
Civil Appeal No.10990/2016 Page 39 of 80

open to the court to look into surrounding circumstances as well
as inherent improbabilities of the case to reach a proper
conclusion on the nature of the evidence adduced by the party.”
(Emphasis supplied)

What could be considered ‘suspicious circumstance’

30. Elaborating upon as to what could be considered
‘suspicious circumstance’ in the context of a will, in
Shivakumar (supra) , a three- Judge Bench of this
Court held:
“12.6. A circumstance is “suspicious” when it is not
normal or is “not normally expected in a normal
situation or is not expected of a normal person”. As
put by this Court, the suspicious features must be
“real, germane and valid” and not merely the “fantasy
of the doubting mind”.
12.7. As to whether any particular feature or a set of
features qualify as “suspicious” would depend on the
facts and circumstances of each case. A shaky or
doubtful signature; a feeble or uncertain mind of the
testator; an unfair disposition of property; an unjust
exclusion of the legal heirs and particularly the
dependents; an active or leading part in making of the
will by the beneficiary thereunder etcetera are some
of the circumstances which may give rise to
suspicion. These circumstances above noted are only
illustrative and by no means exhaustive because
there could be any circumstance or set of
circumstances which may give rise to a legitimate
suspicion about the execution of the will. On the other
hand, any of the circumstances qualifying as being
suspicious could be legitimately explained by the
propounder. However, such suspicion or suspicions
cannot be removed by mere proof and sound and
disposing state of mind of the testator and his
signature coupled with the proof of attestation.
12.8. The test of satisfaction of the judicial conscience
comes into operation when a document propounded
as the will of the testator is surrounded by suspicious
Civil Appeal No.10990/2016 Page 40 of 80

circumstance(s). While applying such test, the court
would address itself to the solemn questions as to
whether the testator had signed the will while being
aware of its contents and after understanding nature
and effect of the dispositions in the will.
12.9. In the ultimate analysis, where the execution of
a will is shrouded in suspicion, it is a matter
essentially of the judicial conscience of the court and
the party which sets up the will has to offer cogent
and convincing explanation of the suspicious
circumstances surrounding will.”
(Emphasis supplied)

26
31. In Lilian Coelho & Ors. v. Myra Philomena Coalho ,
while laying stress on the obligation of the propounder
to explain the suspicious circumstances so as to satisfy
the conscience of the Court, it was observed:
“ 13. At the same time, if it is taken that the learned Single Judge
had only recorded that the plaintiff had succeeded in proving the
execution in terms of the provisions under Section 63 of the
Succession Act, 1925 and Section 68 of the Evidence Act, 1872 in
the light of well-nigh settled position of law, it would be open to
the court to consider, rather, it is the irrecusable duty of the Court
in case the objector raises suspicious circumstances, to call upon
the propounder to remove such suspicious circumstances to
satisfy its conscience.”


32. Survey of judicial precedents makes it clear that the
burden to prove the Will lies on its propounder. Besides,
the exercise of proving the Will is not confined to proving
its execution in terms of Section 63 of the Succession

26
(2025) 2 SCC 633
Civil Appeal No.10990/2016 Page 41 of 80

Act by the mode prescribed by Section 68 of the Evidence
Act. This is just the first step in that exercise. The
exercise is complete when the propounder satisfies the
Court’s conscience that the testator had signed the Will
with free will, being aware of its contents, and after
understanding the nature and effect of the dispositions
in the Will. And, if there are suspicious circumstances
raising doubts about the Will, it is the duty of the
propounder to explain those suspicious circumstances
to dispel the doubts and satisfy the Court’s conscience.
As to what would be considered a ‘suspicious
circumstance’ depends on the facts and circumstances
of each case. Broadly, any circumstance, or set of
circumstances, which gives rise to a legitimate suspicion
about the valid execution of the Will could be considered
a suspicious circumstance. However, those suspicions
must not be a figment of imagination or fantasy of a
doubting mind.

Civil Appeal No.10990/2016 Page 42 of 80

Issue Nos.1 & 2
33. As issues 1 & 2 are interrelated, we propose to address
them together.
34. Plaintiff’s suit is essentially for declaration that she is
the sole owner in possession of the suit schedule
property being the only surviving class I heir of her late
husband who, admittedly, was the sole owner thereof.
Other reliefs such as for permanent prohibitory
injunction and declaration that mutation entry is void
are ancillary.
35. For seeking such relief(s), the plaintiff, inter alia , pleaded
that she is the lawfully wedded wife of Chhajju i.e., the
sole owner of the suit schedule property; Chhajju died
intestate, issueless, leaving the plaintiff as his sole Class
I heir; the defendants had obtained mutation behind her
back by setting up a will of Chhajju; the said Will is
bogus, Chhajju had never executed any Will; and that
the Will is an outcome of fraud, undue influence and
importunity.
Civil Appeal No.10990/2016 Page 43 of 80

36. The plea that the Will is an outcome of fraud, undue
influence, etc. is in addition to the main pleas that
Chhajjju never executed any will, and the Will set up is
bogus. The respondents, however, latched on to this
alternative/ additional plea of the plaintiff to submit
that,- (a) it is inconsistent with the plea that no will was
executed, and amounts to admitting execution of the
Will; and (b) once execution of the Will is admitted, the
burden to prove that the Will is an outcome of fraud,
undue influence, etc. lies on the plaintiff and since the
plaintiff neither examined herself nor any witness on its
behalf to prove fraud, undue influence, etc., the suit had
to fail.
37. In our view, the aforesaid argument on behalf of the
respondents is misconceived for the following reasons:
(i) A plaintiff may rely upon different rights
alternatively and there is nothing in the Code of
Civil Procedure to prevent a party from making two
Civil Appeal No.10990/2016 Page 44 of 80

or more inconsistent sets of allegations for claiming
27
relief thereunder in the alternative .
(ii) A plea in the alternative to assail the Will on
grounds of fraud, undue influence, etc., without
admitting that the Will was signed or executed by
the testator, does not amount to admitting
execution of the Will by the testator because to
constitute an admission, the statement must be
28
clear, unequivocal and unconditional .
(iii) Before a statement in a pleading is construed
as an admission of a fact in issue, the pleading
must be read in its entirety to find out whether the
statement is unequivocal, unambiguous and
unconditional regarding that fact in issue. A plea
in the alternative, to raise a doubt about the Will,
cannot, on its own, be construed as an admission
regarding execution of the Will by the testator
particularly when there exists a categoric plea that
the Will was never executed by the testator.

27
Srinivas Ram Kumar Firm v. Mahabir Prasad & Ors., 1951 SCC 136, paragraph 12
28
Vikrant Kapila & Anr. v. Pankaja Panda & Ors., (2024) 18 SCC 695, paragraph 32.
Civil Appeal No.10990/2016 Page 45 of 80

(iv) Non-examination of the plaintiff, or any other
witness of fact on its behalf, by itself, is not
sufficient to dismiss the present suit for the
following reasons:
(a) Suit is based on intestate succession to the
estate of her late husband.
(b) Plaintiff’s plea that she is the legally
wedded wife of late Chhajju who was the
exclusive owner of the suit schedule property
and that the plaintiff is his sole surviving
class I heir is not traversed in the written
statement. Therefore, those facts stand
admitted by ‘doctrine of non-traverse’
29
enshrined in Order VIII Rule 5 of CPC .
30
(c) Facts admitted need not be proved.

29
Order VIII Rule 5 (1)
Specific denial.- (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication,
or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under
disability:
Provided that the court main its discretion require any fact so admitted to be proved otherwise than by such
admission.
30
Section 58 of the Indian Evidence Act, 1872 :
Facts admitted need not be proved.- No fact need to be proved in any proceeding which the parties thereto or
their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their
hands, or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the court may, in its discretion, require the facts admitted to be proved otherwise than by such
admissions.
Civil Appeal No.10990/2016 Page 46 of 80

Therefore, non-examination of a witness
would not make a material difference.
(d) In the circumstances, to deprive the
plaintiff of her right to the suit schedule
property, testamentary disposition set up by
the defendants had to be proved. Burden to
prove execution of a testamentary disposition
lies on its propounder. No doubt, burden to
prove fraud, undue influence, etc. vitiating
execution of the Will lies on the plaintiff/
challenger of the Will. However, failure to lead
evidence in that regard by the plaintiff is not
sufficient to defeat the suit because, in any
case, the propounder of the Will would have
to prove due execution of the Will. If due
execution of the Will is not proved, the
plaintiff would be entitled to the relief sought
based on the admitted case.
(e) In the present case, the plaintiff had
challenged the execution of the Will,
Civil Appeal No.10990/2016 Page 47 of 80

therefore, the burden to prove due execution
of the Will lay on its propounder regardless of
their being no evidence to substantiate the
alternative plea of fraud, undue influence,
etc. taken in the plaint.
We, therefore, do not find any reason to dismiss the
plaintiff’s suit merely on the ground that there were
inconsistent pleas in the plaint and that neither she, nor
any witness of fact on her behalf, entered the witness
box. Issue Nos.1 & 2 are decided in the above terms.
Issue No.3
38. Proof of will is not just an exercise to prove the signature
of the testator on the Will and its attestation in terms of
Section 63 of the Succession Act; rather it is an exercise
to satisfy the Court’s conscience that the testator had
signed the Will with free will being aware of its contents
and after understanding the nature and effect of the
dispositions in the Will. Where there are suspicious
circumstances regarding the execution of the Will, the
propounder must explain those circumstances and
Civil Appeal No.10990/2016 Page 48 of 80

dispel all reasonable doubts regarding its execution.
Judicial pronouncements have left the phrase
‘suspicious circumstances’ open-ended so as to
encompass any circumstance which creates doubt about
the Will being expression of the free will of the testator,
though it would not include a figment of imagination or
fantasy of a doubting mind. Such doubt may arise from
a shaky or doubtful signature of the testator; a feeble or
uncertain mind of the testator; an unfair disposition of
property; an unjust exclusion of the legal heirs,
particularly the dependents; active or leading part
played by the beneficiary in making of the will etcetera.
39. In Kalyan Singh (supra), this Court went to the extent
of observing that the factum of execution and validity of
the will cannot be determined merely by considering the
evidence produced by its propounder. To assess the
credibility of witnesses and disengage the truth from
falsehood, it is open to the court to consider
circumstances brought out in the evidence or which
appear from the nature and contents of the documents
Civil Appeal No.10990/2016 Page 49 of 80

itself. It would also be open to the court to look into the
surrounding circumstances as well as inherent
improbabilities of the case to reach a proper conclusion.
40. In that light, we shall consider the suspicious
circumstances considered by the first appellate court to
discard the Will set up by the defendant-respondents.
The first appellate court found: (a) no cogent reason for
the testator to disinherit his wife who had been, all
throughout, taking care of him; besides, the reason
mentioned in the will that she had been well provided
with jewellery and cash appeared flimsy; (b) no cogent
reason for the testator to bequeath property in favour of
the beneficiaries, and the reasons mentioned in the Will,
namely, that the beneficiaries had served the testator for
long and were nephews of the testator, were found not
correct by the evidence on record; (c) no cogent reason
for the testator to execute the Will in 1974 when
admittedly he lived up to 1992; (d) attesting witnesses
were not of the village where the testator resided;
besides, out of the two surviving witnesses, only one was
Civil Appeal No.10990/2016 Page 50 of 80

examined; and (e) the execution of the Will by Chhajju
was doubtful inasmuch as at the back of the Will, where
the sub-registrar had made his endorsement, the
testator’s name, at multiple places, was mentioned
Laxmi Kant, and Chhajju’s name was entered by cutting
the name of Laxmi Kant but such cuttings were not
initialled by the sub-registrar. Besides, there was no
explanation for such cuttings and overall the evidence
did not inspire confidence that the will was duly
executed.
Circumstance of Disinheriting the wife
41. The circumstance of disinheriting a wife may or may not
be considered suspicious. It all depends on the facts of
a case. Ordinarily, where beneficiaries under the Will are
other class I heirs of the testator, such as son or
daughter, a bequest made in their favour by depriving
the wife, by itself, may not raise suspicion as the testator
may be contemplating arranging his estate for the future
with the hope that those beneficiaries would take care of
his wife. But disinheriting a wife, who had all throughout
Civil Appeal No.10990/2016 Page 51 of 80

been with the testator and had cordial relations with
him, in favour of a stranger, or a distant relative, raises
suspicion, thereby creating a doubt whether the Will is
free expression of will of the testator made with full
understanding of the disposition made therein.
42. In the present case, the beneficiaries under the Will are
not the natural heirs of the testator. Therefore, on the
face of it, the disposition appears abnormal and creates
doubt. In such circumstances, to satisfy the judicial
conscience of the Court that the Will is an expression of
free will of the testator and has been executed with full
understanding of the nature of disposition made therein,
an explanation was required. The explanation offered in
the Will is two-fold. One, that the testator’s wife had
jewellery and sufficient cash for her living; and, second,
the testator had no issues, and the legatees had not only
been looking after his estate but also providing food and
clothes to him and his wife, therefore, to recompense
them, the bequest was made so that the testator did not
carry a burden on his conscience.
Civil Appeal No.10990/2016 Page 52 of 80

43. There is no rule of law that a will must assign reasons
for the bequest. But where reasons are provided in the
Will, the Court may consider whether those reasons are
truthful or just moonshine, put forth only to justify the
preparation of the Will. If they are found not truthful, it
may raise a doubt as to whether the testator executed
the Will with free will and full understanding of the
nature and effect of the disposition made therein.
44. In the present case, the explanation offered for the
disposition has been found to be untenable by the first
appellate court for the following reasons: (a) cash and
jewellery with wife is no ground to disinherit her, more
so, when its extent is not disclosed; (b) site plan on
record depicts that the testator and his wife resided
together, separate from the legatees; (c) the evidence on
record indicated that the testator had a caring wife who
took care of the testator till his death; and (d) the
legatees were not in a position to serve the testator and
his wife on or about the date of the alleged execution of
the Will as one of them had to remain out of station in
Civil Appeal No.10990/2016 Page 53 of 80

connection with his service and the other was too young,
just a student. Besides, the statement in the Will that
legatees were the nephews of the testator could not be
substantiated by the respondents. Importantly, the
correctness of these reasons recorded by the first
appellate court have not been doubted by the High
Court. Though, the High Court was of the view that these
reasons do not have a material bearing on the validity of
the Will as its execution was duly proved by the attesting
witness.
45. In our view, the first appellate court, for the reasons
recorded by it, was justified in holding that
disinheritance of the testator’s wife while making a
disposition in favour of the defendant-respondents, who
were not close relatives, was a suspicious circumstance
which remained unexplained.
46. At this stage, we propose to consider the decision of this
Court in Madhukar D. Shende (supra) cited by the
learned counsel for the respondent(s). In that case, a
two-Judge Bench of this Court was dealing with an
Civil Appeal No.10990/2016 Page 54 of 80

appeal where the plaintiff’s suit based on a Will was
dismissed by all three courts below, holding the Will to
be shrouded in suspicion. The question before this Court
was whether the approach of the courts below in holding
the Will not proved was vitiated by error of law. The High
Court had summarized the suspicious circumstances
centering around the execution of the Will, as under: (a)
at the time of execution of the Will, the testator was aged
80 years and there was no medical evidence to show that
the testator had a sound mind; (b) the Will was executed
on 22.09.1963 and within two days thereafter, on
24.09.1963, the testator expired; (c) the sub-registrar
went to the house of the testator for registration of the
Will though his office was situated only half a furlong
away from the residence of the testator and no reason
was assigned as to why the testator could not have gone
to the office of the sub-registrar if the testator was in a
sound mental and physical state; (d) the plaintiff i.e.,
beneficiary under the Will, was not examined and his
son, who was examined in evidence was not a witness to
Civil Appeal No.10990/2016 Page 55 of 80

the execution of the Will; and (e) the two attesting
witnesses to the Will, examined in court, were
classmates of the beneficiaries’ son. In that context, this
Court surveyed the evidence and while discarding the
findings of the courts below reasoned thus:
“10. The factum of will having been executed by
Bhagubai in favour of Chingubai, the sister's
daughter, bequeathing the suit property is specifically
alleged in the plaint. In the written statement
excepting for a bare dial, there is no other pleading
raised questioning the sane disposing capacity of
Bhagubai at the time of execution of the will. It is true
that the plaintiff Chingubai did not appear in the
witness box but that is because she was indisposed.
Her son has appeared in the witness box. The two
attesting witnesses on account of being known to
Chingubai's son, being his classmates, were known to
the family, and therefore, were natural witnesses to
be called to attest to the execution of the will. On
account of their acquaintance with the family, they
could have naturally known and identified the
executant. Merely because of being classmates they
would be interested in obliging their classmate’s
mother so as to benefit her and go to the extent of
falsely deposing is too far-fetched an inference to
draw. The contents of the will, coupled with oral
evidence, show that for the last 25/30 years,
Chingubai had taken care of Bhagubai and it was due
to love and affection of Bhagubai for Chingubai that
the former was bequeathing her properties in favor of
Chingubai. Chingubai is none other than Bhagubai’s
sister's daughter and probably the only heir. There is
nothing to suggest that Bhagubai had anyone else
than Chingubai who could be closer heir or relation
of Bhagubai and with whom Bhagubai could have
spent her last days. No other relation of Bhagubai,
who would have succeeded to the estate of Bhagubai
if the will would not have been there, has come
forward to dispute or to object to the will. The
Civil Appeal No.10990/2016 Page 56 of 80

challenge is thrown by a stranger to the family and
one who has trespassed upon the property.


15. Other reasonings of the trial court and the first
appellate court, for holding the will not proved, too, to
say the least, verge on absurdity. Bhagubai died a day
after the execution and registration of the will. There
is nothing to show that Bhagubai was physically or
mentally incapacitated from executing the will. On the
one hand, the courts below have questioned the
propriety of the sub registrar having come to the
house of Bhagubai for registering the will on the
ground as to why Bhagubai could not have gone to
the office of the registrar on an assumption that she
was fit to do so and yet the mental capacity of
Bhagubai to execute the will has been doubted. The
two attesting witnesses have been held to be
interested on the ground of their being class fellows
of Chingubai’s son and on the other hand, it has been
doubted whether they would have known and
identified the executant. There is nothing to doubt the
mental and physical capacity of Bhagubai but the
same has been suspected because of ‘complete
absence of any medical evidence, of a doctor which
would show that the testator was in a sound and
disposing state of mind’. There is no rule of law or of
evidence which requires a doctor to be kept present
when a will is executed. In short, the courts below
have allowed their findings to be influenced by such
suspicion and conjectures as have no foundation in
the evidence and have no relevance in the facts and
circumstances of the case and unwittingly allowed
their process of judicial thinking to be vitiated by
irrelevant reasonings and considerations. The
weighty factor that the factum of execution of the will
by Bhagubai was being denied by a rank trespasser
without raising any specific pleadings and the fact
that no relation of Bhagubai has chosen to lay a
challenge to the will, have been simply overlooked. In
our opinion the High Court ought not to have
sustained such a perverse finding which would result
in the property of a rightful owner being lost to a
trespasser.”
. (Emphasis supplied)
Civil Appeal No.10990/2016 Page 57 of 80

47. While holding so, in Madhukar D. Shende (supra), on
the law regarding proof of will, this Court observed as
under:
“8. The requirement of proof of a will is the same as
any other document excepting that the evidence
tendered in proof of a will should additionally satisfy
the requirement of Section 63 of the Indian
Succession Act, 1925 and Section 68 of the Indian
Evidence Act, 1872. If after considering the matters
before it, that is, the facts and circumstances as
emanating from the material available on record of a
given case, the court either believes that the will was
duly executed by the testator or considers the
existence of such fact so probable that any prudent
person ought, under the circumstances of that
particular case, to act upon the supposition that the
will was duly executed by the testator, then the
factum of execution of will shall be said to have been
proved. The delicate structure of proof framed by a
judicially trained mind cannot stand on weak
foundation nor survive any inherent defects therein
but at the same time ought not to be permitted to be
demolished by wayward pelting of stones of suspicion
and supposition by wayfarers and waylayers. What
was told by Baron Alderson to the jury
in R. v. Hodge [(1838) 2 Lewis CC 227] may be
apposite to some extent:
“The mind was apt to take a pleasure in adapting
circumstances to one another and even in straining
them a little, if need be, to force them to form parts of
one connected whole, and the more ingenuous the
mind of the individual, the more likely was it,
considering such matters, to overreach and mislead
itself, to supply some little link that is wanting, to take
for granted some fact consistent with its previous
theories and necessary to render them complete.”
The conscience of the court has to be satisfied by the
propounder of will adducing evidence so as to dispel
any suspicions or unnatural circumstances attaching
to a will provided that there is something unnatural
or suspicious about the will. The law of evidence does
not permit conjecture or suspicion having the place of
Civil Appeal No.10990/2016 Page 58 of 80

legal proof nor permit them to demolish a fact
otherwise proved by legal and convincing evidence.
Well-founded suspicion may be a ground for closer
scrutiny of evidence but suspicion alone cannot form
the foundation of a judicial verdict — positive or
negative.

9. It is well settled that one who propounds a will
must establish the competence of the testator to make
the will at the time when it was executed. The onus is
discharged by the propounder adducing prima facie
evidence proving the competence of the testator and
execution of the will in the manner contemplated by
law. The contestant opposing the will may bring
material on record meeting such prima facie case in
which event the onus would shift back on the
propounder to satisfy the court affirmatively that the
testator did know well the contents of the will and in
sound disposing capacity executed the same. The
factors, such as the will being a natural one or being
registered or executed in such circumstances and
ambience, as would leave no room for suspicion,
assume significance. If there is nothing unnatural
about the transaction and the evidence adduced
satisfies the requirement of proving a will, the court
would not return a finding of “not proved” merely on
account of certain assumed suspicion or supposition.
Who are the persons propounding and supporting a
will as against the person disputing the will and the
pleadings of the parties would be relevant and of
significance.”
(Emphasis supplied)

48. Relying on the observations of this Court in Madhukar
D. Shende (supra), learned counsel for the respondents
strenuously argued that since the respondents had
examined the attesting witness of the Will to prove its
execution by the testator, the burden shifted on the
plaintiff to prove that its execution was vitiated by fraud,
Civil Appeal No.10990/2016 Page 59 of 80

undue influence, etc. and, since no witness of fact was
examined by the plaintiff, that burden was not
discharged; therefore, the High Court was justified in
overturning the decision of the two courts below.
49. We do not find much substance in the aforesaid
submission. Firstly, because, the law is consistent that
where there are suspicious circumstances shrouding the
execution of the Will, the propounder of the Will must
explain those circumstances to satisfy the judicial
conscience of the Court and, secondly, in Madhukar D.
Shende (supra) , the legatee was none other than the
sister’s daughter of the testator and probably the only
heir of the testator. Besides, no challenge was laid to
the Will by any of the heirs of the testator. There, in fact,
the challenger was a stranger and a trespasser to the
property left by the testator. In such circumstances, the
Court observed that suspicious circumstances enlisted
by the High Court were imaginary and, consequently,
the Will which was proved by the attesting witnesses was
liable to be accepted.
Civil Appeal No.10990/2016 Page 60 of 80

50. In the present case, the testator is an illiterate
agriculturist who could only thumb-mark a document.
The challenge to the Will is by the only surviving class I
heir of the testator, namely, his wife, and the legatee
happens to be a non-relative. Therefore, here, the
bequest appears unnatural and pinches the Court’s
conscience. As a result, the Court needed to be
circumspect and cautious in testing the evidence led by
the propounder to find out whether the Will was
executed by the testator with free will and full
understanding of the nature of dispositions being made
by him.
51. The other decision relied by the respondent is rendered
by this Court in Sridevi v. Jayaraj Shetty (supra),
where this Court reiterated the settled legal position as
under:
11. The onus to prove the will is on the
propounder and in the absence of suspicious
circumstances surrounding the execution of the
will, proof of testamentary capacity and proof of
the signature of the testator, as required by law,
need be sufficient to discharge the onus. Where
there are suspicious circumstances, the onus
would again be on the propounder to explain
them to the satisfaction of the court before the
Civil Appeal No.10990/2016 Page 61 of 80

Will can be accepted as genuine. Proof in either
case cannot be mathematically precise and
certain and should be one of satisfaction of a
prudent mind in such matters. In case the
person contesting the will alleges undue
influence, fraud or coercion, the onus will be on
him to prove the same. As to what are suspicious
circumstances has to be judged in the facts and
circumstances of each particular case.”
(Emphasis supplied)

52. In Sridevi (supra), by the will in question, the testator
had bequeathed certain properties in favour of his two
sons and had given other heirs the right to receive
compensation of properties which had vested in the
State Government. In that context, while upholding the
Will, it was observed:
“15. … It is not a case where the father had
deprived his other children totally from
inheritance. Reasons for unequal distribution
have been given in the will itself. This had been
done by him to balance the equitable distribution
of the properties in favor of all his children.”

53. The facts in Sridevi (supra) are in stark contrast with
the present case. Here, the sole Class I heir, namely, the
wife of the testator, has been completely deprived of her
right to succeed to the estate of her husband by the Will
which is in favour of non-relative(s). This, being an
unnatural disposition raises suspicion and, therefore,
solicited an explanation from the propounder of the Will.
Civil Appeal No.10990/2016 Page 62 of 80

Execution of Will in 1974
54. Though the first appellate court found execution of the
Will in 1974 a suspicious circumstance because the
testator survived till 1992, in our view, the timing of
executing a will is the prerogative of the testator and,
therefore, timing of its execution may by itself not be a
ground to doubt the Will. However, here the timing
assumes importance when considered in conjunction
with other circumstances such as disinheritance of a
caring wife who had many years to live. Because when a
person has a dependent with whom he has no grudge,
and that dependent has many years to live, there is a
high probability that some arrangement would be made
in the testamentary disposition for that dependent
before bequeathing the estate to a person who is under
no legal obligation to take care of the testator’s
dependent. Therefore, in our view, though the timing of
execution of the Will on its own might not be sufficient
to doubt the Will, it becomes a factor in conjunction with
Civil Appeal No.10990/2016 Page 63 of 80

the other circumstances to doubt valid execution of the
Will.
Attesting witness not resident of the village
55. While considering the circumstance that the attesting
witnesses were not residents of the village of the testator,
the first appellate court accepted the legal position that
there is no requirement of law that a marginal witness
to a will must be from the same village to which the
testator belongs. This view, according to us, is correct.
However, in the opinion of the first appellate court, this
was an important circumstance when considered along
with other circumstances of the case. In our view, choice
of an attesting witness depends on multiple factors. If
the testator wishes to secret the Will from his natural
heirs, who are being deprived by the disposition, he may
choose a person in whom he could repose confidence,
and such person may be a resident of some place out of
the influence of the testator’s natural heirs. There may
also be a situation where the testator may choose one or
more of his natural heirs or relatives to the exclusion of
Civil Appeal No.10990/2016 Page 64 of 80

others to bequeath his property, yet he may choose those
excluded to be a witness to the Will to obviate a dispute
in the future. Therefore, nothing turns on the choice of
an attesting witness or the place of residence of an
attesting witness unless it is shown that that witness
has been chosen deliberately to prepare a bogus will, or
that the witness does not know the testator/ executant.
56. In the present case, nothing could be elicited from the
attesting witness to show that he did not know the
testator or that he was the beneficiaries’ pocket witness.
Therefore, in our view, the place of residence of the
attesting witness was not a material circumstance, and
to this extent, the first appellate court was not justified
in raising suspicion.
Cuttings on the Will
57. Both the trial court and the first appellate court found
cuttings on the Will a suspicious circumstance of a grave
nature, which demolished the execution of the Will by
the testator. It is for this reason we had called for the
original records. The Will is executed on a ‘ Himachal
Civil Appeal No.10990/2016 Page 65 of 80

Government Judicial Paper ’. The front page of the same
bears a hand-written will carrying a thumb mark,
alleged to be of “Chhajju”, the testator, and signatures
of Jagdish and Hari Ram, the two attesting witnesses.
What is interesting is the back of the Will, which bears
endorsement of the Sub-Registrar before whom the Will
was presented for registration. At the back of the Will,
the name of the person who presented the Will, as
‘Vasiyat Karta ’ i.e., the testator, is mentioned as Laxmi
Kant Basi. However, name of Laxmi Kant Basi has been
cut at multiple places and by hand ‘Chhajju’ is written.
What is important is that there are no
initials/endorsements of the Sub Registrar over any of
the cuttings. This creates an impression that the cutting
was done after the Sub Registrar had made his
endorsement. The first appellate court, in paragraph 19
of its judgment, took this circumstance as indicative of
the Will being presented by Laxmi Kant for registration
and, later, name of ‘Chhajju’ was added by interpolation.
Civil Appeal No.10990/2016 Page 66 of 80

58. The argument on behalf of the respondent is that there
is no cutting in the body of the Will. The cutting is only
at the back page of the Will. Since the front page of the
Will does not have any cutting and it bears thumb
impression of the testator as also signatures of the
attesting witnesses, the execution of the Will cannot be
doubted merely on the ground that cuttings/ overwriting
at the back of the Will have not been initialed by the Sub-
Registrar. Besides, registration of a will is optional, and
the Will, the original of which was produced, has been
proved in terms of Section 63 of the Succession Act by
examining the attesting witness as is required by Section
68 of the Evidence Act. It is argued that a duly registered
will cannot be obliterated by a faulty registration.
59. No doubt, a will is not a compulsorily registerable
document. Registration of a will is optional. Execution of
the Will and its registration are two separate events
unless they are so inextricably linked to each other that
if one is not proved, the other would fail automatically.
Therefore, to test the aforesaid submission, we have
Civil Appeal No.10990/2016 Page 67 of 80

carefully read the testimony of DW-2 Hari Ram i.e., the
attesting witness, and have carefully examined the
original will which is part of the record as Ex. DW-2/ A.
60. According to DW-2, the Will was prepared on a paper
purchased by Chhajju from a stamp vendor; after
purchase of the paper, the Will was scribed by Som Nath,
the deed writer, at the instructions of Chhajju, and the
same was read over to Chhajju; whereafter, Chhajju put
his thumb impression on it in the presence of the two
witnesses, and the two witnesses signed the Will in
Chhajju’s presence. Thereafter, Chhajju took the Will to
the Tehsildar (i.e., the Sub Registrar) for registration;
where again, the Will was read over to Chhajju; he
endorsed the Will by putting his thumb mark on the Will
and there, the witnesses again signed the Will.
61. During cross-examination, DW-2 admitted that Chhajju
was illiterate, though clever. According to respondents,
Chhajju had thumb-marked the Will. These two
circumstances indicate that Chhajju himself could not
have read and understood the contents of the Will unless
Civil Appeal No.10990/2016 Page 68 of 80

it was read over and explained to him. Now, comes the
crucial question. If the will was drafted as per the
instructions of Chhajju, would it contain facts that are
incorrect to his knowledge? If it would not, could it be
said that Chhajju executed the Will after fully
understanding the nature of the dispositions made
therein.
62. There are two material statements in the Will which have
been found incorrect, namely, that the beneficiaries are
the testator’s nephews and that the testator resides with
them, and that they had been providing food and
clothing to the testator and his wife. Both these
statements were found incorrect, in as much as, (a) there
is no worthwhile evidence to show that the legatees’
father and the testator were brothers or close relatives;
and (b) DW-2 admitted that the testator had his own
separate house. Besides, the site plan proved by PW-1
disclosed that the testator and the so-called
beneficiaries had separate residences. Moreover, DW-2
Civil Appeal No.10990/2016 Page 69 of 80

admitted that Chhajju’s wife had been taking care of
him.
63. Once the aforesaid circumstance is considered in
conjunction with the circumstance that the testator was
an illiterate agriculturist, the whole perception about the
Will changes. In our view, illiteracy of the testator
coupled with incorrect statements in the Will raises a
serious doubt as to whether the testator executed the
Will after fully understanding its content. In such
circumstances, registration of the Will with proper
endorsement of the Sub-Registrar would have been of
some help to the propounder, but there are cuttings at
the back of the Will where endorsement of the Sub-
Registrar is recorded and there is no initial of the Sub-
Registrar against those cuttings, which make things
worse for the propounder.
64. At this stage, we may have a look at the relevant
provisions of the Registration Act, 1908. Section 32
describes the persons who may present documents for
registration. Section 34 (3) enjoins upon the registering
Civil Appeal No.10990/2016 Page 70 of 80

officer a duty to enquire whether, or not, such document
was executed by the person(s) by whom it purports to
have been executed. Clause (b) of sub-section (3) of
Section 34 requires the registering officer to satisfy
himself as to the identity of the persons appearing before
him and alleging that they have executed the document.
Section 35 provides that if all persons executing the
document appear personally before the registering
officer and are personally known to him, or if he be
otherwise satisfied that they are persons they represent
themselves to be, and if they all admit the execution of
the document, the registering officer shall register the
document as directed in Sections 58 to 61. Section 52
casts a duty on the registering officer to, inter alia ,
ensure that the signature of every person presenting a
document for registration is endorsed on the document
at the time of its presentation. Section 58 requires that
on every document admitted to registration, inter alia ,
following particulars shall be endorsed: (a) signature of
every person admitting the execution of the document,
Civil Appeal No.10990/2016 Page 71 of 80

(b) signature of every person examined in reference to
such document; and (c) any payment of money or
delivery of goods made in the presence of the registering
officer in reference to the execution of the document, and
any admission of receipt of consideration, in whole or in
part, made in his presence in reference to such
execution. Section 59 provides that the registering
officer shall affix the date and his signature to all
endorsements made under Sections 52 and 58, relating
to the same document and made in his presence on the
same day. Section 60, inter alia , provides that after the
procedure contemplated in Sections 34, 35, 58 and 59
as applicable to any document presented for registration
has been complied with, the registering officer shall
endorse thereon a certificate containing the word
‘registered’. Sub-section (2) of Section 60 provides that
such certificate shall be signed, sealed and dated by the
registering officer, and shall then be admissible for the
purpose of proving that the document has been duly
registered in the manner provided under the Act, and
Civil Appeal No.10990/2016 Page 72 of 80

that the facts mentioned in the endorsement referred to
in Section 59 have occurred as therein mentioned.
Section 2(5) defines ‘endorsement’ and ‘endorsed’. It
states ‘endorsement’ and ‘endorsed’ include and apply to
any entry in writing by registering officer on a rider or
covering slip to any document tendered for registration
under this Act.
65. A reading of the relevant provisions of the Registration
Act would make it clear that the executant of a document
or his agent or representative or assignee can alone
present a document for registration. Further, the
document so presented must be duly endorsed by the
presenter, and the registering officer would have to not
only enquire whether or not such document was
executed by the persons by whom it purports to have
been executed but also satisfy himself as to the identity
of the persons appearing before him and alleging that
they have executed the document. In the context of the
aforesaid provisions, when we see the endorsement at
the back of the Will before us, we find that the executant
Civil Appeal No.10990/2016 Page 73 of 80

of the Will was mentioned ‘Laxmi Kant Bassi’, though,
later, this name was struck off and replaced by ‘Chhajju’.
When was it struck off and who struck it off is not clear
from the evidence. Most importantly, there is no initial
or signature against the name of ‘Chhajju’. In such
circumstances, it cannot be said with certainty that
while issuing the certificate of registration, the
registering officer followed the requisite procedure as
contemplated under the Registration Act. In
consequence, the benefit of the presumption that the
Will was read out to ‘Chhajju’ by the registering officer
or that Chhajju admitted execution of the Will before the
registering officer is not available. Therefore, to this
extent, the uninitialed cuttings at the back of the Will
assume importance because it deprives the propounder
of the Will the benefit of its registration which would
have otherwise raised a presumption that the contents
of the Will were read over to its executant. In effect, the
doubt as regards valid execution of the Will by Chhajju
Civil Appeal No.10990/2016 Page 74 of 80

arising from suspicious circumstances dealt with above
is not dispelled by the registration of the Will.
66. We, therefore, summarize our analysis on Issue No.3 as
follows:
(a) Chhajju i.e., the testator was an illiterate person,
therefore, the burden was heavy on the propounder of
the Will to satisfy the judicial conscience of the Court
that the Will was executed by the testator with free will
and full understanding of its contents.
(b) Disposition in favour of the respondents, who were
not close relatives, while disinheriting the widow i.e.,
the sole Class I heir of the testator, was unnatural and
raised suspicion and, therefore, the Court had to be
circumspect while testing the evidence led by the
propounder of the Will to satisfy its conscience as to
whether the Will was executed by the testator with free
will and full understanding of the nature and effect of
the dispositions made therein.
(c) Based on the evidence led by the propounder of the
Will, the first appellate court found that the
Civil Appeal No.10990/2016 Page 75 of 80

explanation offered in the Will to disinherit the sole
Class I heir (i.e., the wife of the testator) was incorrect.
This essentially is a finding on a question of fact.
(d) Incorrect statement in the Will, alleged to be scribed
on the instructions of the testator, coupled with the fact
that the testator was an illiterate person, who could
only use his thumb impression to execute a document,
raises serious doubt as to whether the Will was
executed by the testator with free will and full
understanding of the nature and effect of the
dispositions made therein. This doubt could not be
dispelled by registration of the document because of
uninitialed cuttings at the back of the Will which raises
a serious doubt as to who presented the Will for its
registration.
(e) In a nutshell, there were suspicious
circumstances shrouding the execution of the Will
which remained unexplained by its propounder to
dispel the doubts regarding its valid execution by the
testator. Once that is the position, the finding of the
Civil Appeal No.10990/2016 Page 76 of 80

first appellate court discarding the Will as one which
fails to satisfy its judicial conscience, is a finding which
cannot be said to be perverse or irrational. Issue No.3
is decided accordingly.
Issue No.4
67. In H. Venkatachala Iyengar (supra) , this Court had
observed that what circumstances would be regarded as
suspicious cannot be precisely defined or exhaustively
enumerated. More so, that inevitably is a question of
fact. Similar view is taken by this Court in Lalitaben
Jayantilal Popat v. Pragnaben Jamnadas Kataria &
31
Ors.
68. In Mansinghrao Yeshwant Rao Patil & Ors. v.
32
Ramchandra Govindrao Patil & Ors. a three-Judge
Bench of this Court had observed that use of time-
honored phrases like “the conscience of the Court being
satisfied” cannot convert a question of fact into one of
law. The relevant observations are extracted below:
“7. … The use of time-honored phrases like “the
conscience of the Court being satisfied” cannot

31
(2008) 15 SCC 365, paragraph 20
32
(1954) 1 SCC 688: 1954 SCC OnLine SC 96
Civil Appeal No.10990/2016 Page 77 of 80

convert a question of fact into one of law. The
phrase is only a rule of prudence and is nothing
more than a picturesque way of saying that when
the legal heirs to property are being divested in
whole, or in part, of their inheritance by a man
who is no longer available for examination as a
witness great caution should be employed before
upholding such an act. But despite all this the
question remains one of fact.”

69. Where, however, a court of fact rejects the Will by taking
into consideration such circumstances as suspicious,
which are figments of imagination or fantasy of a
doubting mind and are not real or germane to the valid
execution of the Will, a question of law may arise, and
the decision may be interfered with in a second appeal,
like in Madhukar D. Shende (supra) . Similarly, if the
decision of a court of fact is vitiated by an erroneous
approach in law, like placing onus to establish
allegations of fraud, undue influence etc. on the
caveator, the Court may interfere with the finding of fact.
70. However, here, as we have discussed above, the testator
was an illiterate agriculturist, who could just thumb-
mark a document, and the Will deprived his sole Class I
heir in favour of persons who were not his close relatives,
and the Will contained incorrect recitals qua (a)
Civil Appeal No.10990/2016 Page 78 of 80

relationship of legatee(s) with the testator and (b) the
testator’s food and lodging with the legatees. All these
circumstances put together raised a serious doubt that
the Will was executed by the testator with free will and
full understanding of the nature and effect of the
dispositions made therein. In that context, if the judicial
conscience of a final court of fact is not satisfied about
the valid execution of the Will, it raises no substantial
question of law for the second appellate court to interfere
with the findings returned by the first appellate court.
We are, therefore, of the considered view that the High
Court exceeded its jurisdiction under Section 100 of CPC
in interfering with a well-reasoned order of the first
appellate court. Issue No.4 is decided in the aforesaid
terms.
Conclusion & Order
71. Having regard to our conclusions on the issues
discussed above, we hold that the Will was rightly
discarded by the first appellate court and the trial court.
Therefore, taking into consideration the finding of the
Civil Appeal No.10990/2016 Page 79 of 80

trial court and the first appellate court that the plaintiff
was in possession, which remain undisturbed by the
High Court, in our view, the decree passed by the trial
court as affirmed by the first appellate court was not
liable to be interfered with in exercise of powers under
Section 100 of CPC. Consequently, the appeal is allowed.
The impugned judgment and order of the High Court is
set aside. The decree passed by the trial court as
affirmed by the first appellate court is affirmed. There is
no order as to costs.
72. All pending applications, if any, shall stand disposed of.


…................................ J.
(Manoj Misra)


................................... J.
(K.V. Viswanathan)
New Delhi;
July 06, 2026
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