PIYUSH GANGASHANKAR VYAS vs JAGDISH GANGASHANKAR VYAS
- Court
- Gujarat High Court
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/FIRST APPEAL NO. 1202 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ILESH J. VORA sd/-
and
HONOURABLE MR. JUSTICE R. T. VACHHANI sd/-
==========================================================
Approved for Reporting Yes No
yes
==========================================================
PIYUSH GANGASHANKAR VYAS
Versus
JAGDISH GANGASHANKAR VYAS & ANR.
==========================================================
Appearance:
BIREN J PANCHAL(9300) for the Appellant(s) No. 1
MR PARTH S TOLIA(5617) for the Appellant(s) No. 1
MR RJ GOSWAMI(1102) for the Defendant(s) No. 1
MR SATYEN B RAWAL(1630) for the Defendant(s) No. 2
MRS KANAN R SHAH(3255) for the Defendant(s) No. 2
==========================================================
CORAM: HONOURABLE MR. JUSTICE ILESH J. VORA
and
HONOURABLE MR. JUSTICE R. T. VACHHANI
Date : 18/09/2026
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE R. T. VACHHANI)
1. The present appeal has been filed under Section 96 of the
Code of Civil Procedure, 1908 (for short, ‘CPC’) by the appellant –
the original plaintiff challenging the judgment and decree dated
13.08.2009 passed by the learned City Civil Judge, Court No.21,
Page 1 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
Ahmedabad in Civil Suit No.267/2008, whereby the learned
Judge was pleased to reject the suit on material particulars.
2. For the sake of brevity and convenience, parties are
referred to as per their original status before the learned Trial
Court.
3. Brief facts of the case are as under:
3.1 It is the case that the plaintiff and the defendants are the
real brothers and sons of Mr. Gangashankar Trikamji Vyas, who
was a teacher by profession and having property in Ahmedabad
in Paldi area at Bungalow No.10, Pinakin Society. Mr.
Gangashankar Trikamji Vyas (for short, ‘the deceased’) expired
on 24.10.1993 and prior to his death, he made a Will dated
08.06.1992 (vide Exh.19) and the said Will was notarized before
Notary Advocate Mr. C.D. Ghore. As per the Will, the plaintiff is
entitled for half of the share from the immovable property and
1/3rd share from the movable property. In the said Will, the
mother - Nirmalaben and the defendants have only right to
reside in the premises and that she was not entitled to sell,
mortgage, or gift the property. The said Nirmalaben, mother of
the plaintiff and the defendants expired on 15.02.2005 and as
per the Will, the defendant no.1, the eldest son of the deceased
was appointed as an executor and mediator of the Will.
3.2 It is further case that the defendant no.2 had got
transferred the property in his own name in collusion with the
office bearers of the society and he refused to give anything for
the said property. Thereafter, attempt for settlement was
Page 2 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
initiated with the family members and procedure was initiated
through Gujarat State Legal Services Authority, but defendant
no.2 did not give heed to the representation by the plaintiff.
3.3 Thereafter, the plaintiff had filed the suit, inter alia,
praying to claim for 1/3rd share in movable properties and one-
half share in immovable property, left by their father in
pursuance to Will dated 08.06.1992 (vide Exh.19). The plaintiff
had further prayed for compensation at the rate of Rs.4,000/-
per month for utilization of the property by the defendant no.2
and sought permanent injunction seeking to restrain the
defendant from selling, alienating, mortgaging, gifting or in any
way disposing of the said property.
3.4 On being served with the process before the learned Trial
Court, the defendant no.1 appeared and filed a written
statement at Exh.5 and conceded the claim of the plaintiff by
describing relationship of the parties to the suit, so also sighting
estimated value of the property in question, having been
assessed at a higher stage.
3.5 The defendant no.2 filed a written statement vide Exh.24
and contested the claim of the plaintiff and denied all the
statements and allegations made by the plaintiff against the
defendants stating that the claim raised by the plaintiff is barred
by misjoinder and non-joinder of necessary parties as the claim
is barred by law of limitation while questioning the jurisdiction of
the Court to deal with the suit as the same is also barred under
the provisions of the Gujarat Co-operative Societies Act, 1961. It
is further contended by the defendant no.2 in his written
Page 3 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
statement that the plaintiff has never taken care of his parents
and that their father had executed will dated 26.11.1987 (vide
Exh.104), wherein the nomination runs in the name of Mr.
Jagdishbhai – defendant no.1 and subsequently, the said
nomination came to be cancelled and replaced by the name of
defendant no.2. The defendant no.2 vide pursis/application at
Exh.16 dated 18.08.2008 did produce certain documents along
with the impugned Will dated 12.06.1986 (vide Exh.85).
3.6 It is further case that on the demise of their father, the
defendant no.2 became the occupier and full owner of the suit
premises in question. It is contended that the defendant no.1
was residing at Baroda and in around 1985, the deceased –
father helped defendant no.1 so as to purchase the flat at
Baroda. It is further contended that their mother had also
executed Will on 20.06.1987 and contended that the entire Will
dated 08.06.1992 (vide Exh.19) has been got up and concocted
and thereby contended the execution thereof is in-proper form. It
is further contended that the said will does not bear the
signature of the deceased – father. More so, efforts have been
made by defendant no.2 while calling upon the plaintiff to accept
the amount towards the share fall in his favour, but the plaintiff
refused the same and approached the Legal Services Authority
ventilating his grievances, where the efforts for conciliation have
been made between the parties, which ultimately turned into
futile exercise.
3.7 The Will in question was dated 08.06.1992 and the same
was notarized before the Notary Advocate Mr. C.D. Ghore, who
Page 4 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
was examined on oath. However, the learned Judge came to the
conclusion that since the plaintiff has not examined any of the
attesting witnesses, the said notarized Will dated 08.06.1992 is
held not proved in accordance with law and the Will dated
12.06.1986 is the only Will, which is executed in accordance
with law and is proved as the attesting witness is examined.
Accordingly, the learned Trial Court Judge rejected the suit of
the plaintiff.
3.8 Being aggrieved, the plaintiff has preferred this appeal
praying to quash and set aside the impugned judgment and
decree dated 13.08.2009 passed by the learned City Civil Judge,
Court No.21, Ahmedabad in Civil Suit No.267 of 2008.
4. We have heard the Learned Counsels for the respective
parties and carefully examined the material documentary
evidence adduced before the learned Civil Court.
5. Submissions made by learned Counsel for the appellant
are as under:
5.1 It is submitted by learned Counsel for the appellant that
the learned Trial Court Judge has grossly erred in coming to the
conclusion that the Will dated 08.06.1992 (vide Exh.19) is not
found proved as either of the witnesses have not been examined
despite the Will dated 08.06.1992 being duly produced and
executed by the attesting witnesses as also notarized before the
notary advocate Mr. C.D. Ghore, who also has been examined.
In support thereof, the notary advocate has also produced the
original register of the year 1992 and submitted photo-copy of
Page 5 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
the same and the notary has specifically deposed that late Shree
Gangashankar Trikamji Vyas has duly signed the Will before
him. Therefore, the learned Trial Court ought to have accepted
the Will dated 08.06.1992.
5.2 It is further contended by learned Counsel for the appellant
that the Will dated 12.06.1986 (vide Exh.85) produced by the
defendant no.2 does not fulfill the required criteria and
submitted that the Will dated 12.06.1986 is utterly a doubtful
Will as neither the names of the witnesses have been stated in
its proper form nor does the document bears the signatures of
the said witnesses. More so, the said Will dated 12.06.1986 has
neither been notarized nor been registered before the competent
authority and that the last page of the said Will appears to bear
the signature of the deceased – father, instead at every page of
the said Will which is required to be signed by the concerned
deceased – father. Not only that, the said aspect has also been
duly confirmed by the defendant no.2 in his written statement by
way of pursis vide Exh.24 that the Will dated 26.11.1987 (vide
Exh.104) is the only Will signed and executed by the father,
however, the said stance had promptly been changed by the
defendant no.2 by producing the Will dated 12.06.1986 (vide
Exh.85), after realizing that some illegality had been committed
and therefore, to absolve from the said liability, the Will dated
12.06.1986 had been submitted after delayed period of 11
months. It is further submitted that even several correspondence
have been made during the lifetime of the father so as to fulfill
his last wish as described in the Will dated 08.06.1992 (Exh.19).
Page 6 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
5.3 It is further submitted by learned Counsel for the appellant
that though the Will dated 26.11.1987 (Exh.104) was executed
after a short span of the Will dated 12.06.1986 (Exh.85), which
was produced by the defendant no.2, not a single reference has
been made of the previous Will dated 12.06.1986. Therefore, it is
submitted that in view of the aforesaid and considering the
issues pertinent to the family of the parties to the proceedings,
the deceased - father had been constrained to execute the Will
dated 08.06.1992 (Exh.19), which came to be duly notarized
before the notary advocate and that the learned Judge of the
Trial Court has committed grave error by discarding and not
believing the questioned Will 08.06.1992, despite the same
having been duly proved.
5.4 It is further submitted by learned Counsel for the appellant
that even the defendant no.1, on whose custody the Will in
question dated 08.06.1992 (Exh.19) has been produced, has also
admitted the factum of the execution of the Will by the father
and that the learned Trial Court Judge has committed error in
not believing the version of the defendant no.1. Thus, it is
submitted that instead of calling upon the plaintiff to prove the
execution of the Will dated 08.06.1992 by examining the
attesting witnesses, the learned Judge of the Trial Court has
committed an error by straightaway rejecting the claim of the
plaintiff and accepting the Will dated 12.06.1986 (vide Exh.85)
followed by the directions to give effect to the same.
5.5 Learned Counsel for the appellant has placed reliance
upon the judgment of the Hon’ble Tripura High Court which
Page 7 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
reads as under:
(A) Dulal Baidya vs. Anil Sarkar (Dey); Jagadish
Sarkar (Dey); Parimal Sarkar (Dey)@ Bishweshar
Sarkar (Dey), reported in 2024 LawSuit(TR) 338.
5.6 Upon aforesaid submissions, learned Counsel for the
appellant submitted to allow this appeal.
6. Submissions made by learned Counsels for the respondent
are as under:
6.1 Per contra, learned Counsels for the respondents
submitted that though subsequent to the disposal of the suit,
several grounds have been agitated by the appellant herein, one
of which has been raised so as to show his readiness and
willingness to examine the attesting witnesses, however, it is
made clear that the said contentions seems to have been raised
solely for the purpose of raising the same instead of producing
any such material with regard to availability of the said attesting
witnesses. Not only that, no such efforts have been made by the
appellant before the learned Judge of the Trial Court to get the
said attesting witnesses examined to get the signatures of the
propounder deceased – father identified. Therefore, the same
appears to be mere efforts without their being any substance.
6.2 Further, learned Advocates for the respondents while citing
written statement at Exh.24 has contended that the suit filed by
the plaintiff is barred by mis-joinder and non-joinder of parties
and hit by law of limitation and provisions under the Gujarat Co-
operative Societies Act. It is contended that there is no cause of
Page 8 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
action and the Court lacks the jurisdiction to try the suit. It is
contended by the defendant no.2 that the deceased – father
executed a valid Will on 26.11.1987 (vide Exh.104) and that the
nomination for the property was originally by the name of
Jagdishbhai and the mother, but was later canceled by inserting
defendant no.2’s name, who upon the father’s death, became the
full owner and lawful occupier. He also contended that their
mother had executed a Will dated 20.07.1997 and he denied the
validity of the deceased – father’s alleged Will dated 08.07.1992
(vide Exh.19), stating that it does not bear the deceased –
father’s signature and must be referred for an expert opinion.
6.3 It is the further contention of the defendant no.2 that he
had called upon the plaintiff for acceptance of the amount of
share, but the plaintiff refused before filing an application with
the Legal Services Authority and that defendant no.2 remains
ready and willing to pay that amount to the plaintiff.
6.4 In support of their submissions, learned Counsels for the
respondents have placed reliance on the following judgments:
(A) Lilian Coelho & Ors. vs. Myra Philomean Coalho, reported
in 2025 (0) AIR(SC) 518;
(B) Beni Chand (Since Dead) now by L.Rs., vs. Smt. Kamla
Kunwar and Others., reported in AIR 1977 SC 63;
(C) Shashi Kumar Banerjee and Others, vs. Subodh Kumar
Banerjee since deceased and after him his legal
representatives and others, reported in 1964 (0) AIR (SC)
529;
(D) Yumnam Ongbi Tampha Ibemma Dev vs. Yumnam
Page 9 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
Joykumar Singh & Others, reported in 2009 76 AIC 25;
(E) Janki Narayan Bhoir vs. Narayan Namdeo Kadam, reported
in 2003 (1) SCC 297;
(F) Vijyaben Vashram vs. State of Gujarat & Ors., reported in
(1988) 2 GLR 1412.
6.5 Upon aforesaid submissions, learned Advocates for the
respondents submitted to reject this appeal.
7. The relevancy of the law and proposition laid down in
aforesaid decisions relied upon by the learned Counsels
appearing for the respective parties would be dealt at appropriate
stage.
8. Having heard learned Counsels for the respective parties
and having considered the materials placed on record so also the
conclusions arrived at by the learned Judge of the Trial Court,
the entire crux of the case solely rests on the disputed Will dated
08.06.1992 (vide Exh.19) as claimed to have been executed by
the father of the parties to the suit, namely, Mr. Gangashankar
Trikamji Vyas. Therefore, the relevancy of the same is required to
be examined on the touchstone are on the preponderance of
probabilities.
9. It is to be noted that apart from the disputed Will dated
08.06.1992 (vide Exh.19), three other Wills i.e. Will dated
26.11.1987 (vide Exh.104), Will dated 12.06.1986 (vide Exh.85)
and Will dated 01.03.1980 (vide Exh.84), have been produced
and reference of which has been made by the parties and has
been dealt with by the learned Judge of the Trial Court, however,
Page 10 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
considering the claim of the plaintiff which otherwise rests on
the Will dated 08.06.1992 (vide Exh.19), the moot question
which requires to be considered is whether the Will dated
08.06.1992 has been duly executed rather proved by the plaintiff
in consonance with the provisions of Section 63 of the Indian
Succession Act, 1925 as well as Section 68 of the Indian
Evidence Act, 1872?
10. To deal with the aforesaid issue, the said provisions for the
sake of brevity and convenience are required to be reproduced,
which are as follows :
“Section 63 in The Indian Succession Act,
1925:
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
Page 11 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
from the testator a personal
acknowledgment 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.
Section 68 in The Indian Evidence Act,
1872:
Proof of execution of document required
by law to be attested.
If a document is required by law to be
attested, it shall not be used as evidence
until one attesting witness at least has
been called for the purpose of proving its
execution, if there be an attesting witness
alive, and subject to the process of the
Court and capable of giving evidence :
[Provided that it shall not be necessary to
call an attesting witness in proof of the
execution of any document, not being a
Will, which has been registered in
accordance with the provisions of the
Indian Registration Act, 1908 (XVI of
1908), unless its execution by the person
by whom it purports to have been
executed is specifically denied.] [Inserted
by Act 31 of 1926, Section 2.]”…
11. While applying the aforesaid provisions to the facts of the
case on hand, the proof of execution of the Will is a former factor
required to be considered beyond suspicious circumstances
before coming to the conclusion that the Will is genuine. It is
also pertinent to note that while considering the Will in question,
if a Will is found not legally executed owing to the failure to
Page 12 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
follow the prescribed procedure, then there would not be need to
look into the question whether it is shrouded with the suspicious
circumstances. It is also pertinent to note that even if the Will is
genuine, it rests upon the jurisdiction of the Court to hold that it
is not worthy to act upon as being shrouded with the suspicious
circumstances, when propounder failed to remove such
circumstances to the satisfaction of the Court.
12. To say differently, the execution of the Will is formerly
required to be proved beyond a shadow of doubt and to establish
the factum rather the genuineness of the Will, the following
criteria are required to be proved:
“1) To establish and prove the will to be
valid, it should be attested by two or more
witnesses;
2) And propounder thereof, atleast should
examine one attesting witness to prove the
Will;
3) The attesting witness should not only
speak about the testator’s signatures
having been affixed to the Will, but also
has to speak that each of the attesting
witnesses had signed the Will in presence
of the testator.”
13. Since the provision of Section 68 of the Indian Evidence
Act, 1872 speaks of as to how a document required by law to be
attested can be proved, a document required by law to be
attested shall not be used as evidence until one attesting witness
atleast has been examined for proving its execution. It is also
pertinent to note that if any witness is alive and is capable of
Page 13 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
giving evidence, is to be examined before the documents required
in law to be attested can be used as evidence.
14. Thus, the combined reading of provision of Section 63 of
the Indian Succession Act, 1925 read with Section 68 of the
Indian Evidence Act, 1871 makes it abundantly clear that a
person propounding the Will has to get it proved that the Will
was duly and validly executed and the same cannot be done by
simply proving the signatures on the Will, that was of the
testator, but must also be proved that attestations were also
made properly as per the requirement of provision of Section 63
of the Indian Succession Act, 1925.
15. While applying the aforesaid propositions to the facts of
case on hand, it is not in dispute that not a single attesting
witness has been examined by the plaintiff. Simply by examining
the notary advocate, who only notarized document in question,
cannot be equated with the attesting witnesses, who are to be
examined to prove execution of the valid Will. It is also required
to be placed on record that notary advocate – person can at the
most depose as to the notarization of the documents, and not
with regard to the attestations of the execution of the documents
in question by the testator.
16. Though during the course of appeal, one of the grounds
has been agitated by the appellant that he may be permitted to
adduce the additional evidence by calling upon the attesting
witnesses to prove the execution of the Will, it is required to be
made clear that the said contention appears to have been raised
only for the purpose of raising it. As such, nothing sort of any
Page 14 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
material substance has been placed on record as to the
particulars of the attesting witnesses nor any such efforts ever
since have been made by the appellant – plaintiff before the
learned Trial Court, who in-turn, was constrained to hold that
despite the repeated opportunities, the plaintiff failed to examine
the attesting witnesses and by merely examining itself and
notary advocate, it would not conclude the execution of the valid
Will.
17. In context to the aforesaid issues, the provisions of Section
71 of the Indian Evidence Act, 1872, which are in the nature of
extending safeguards to the mandatory provisions of Section 68
of the Indian Evidence Act and to meet with the situations where
it is not possible to prove the execution of the Will by calling
attesting witnesses, though alive and if the attesting witnesses
denies or does not recollect the execution of the Will, the
execution of the Will is to be proved by other cogent evidence.
Therefore, provision of Section 71 of the Indian Evidence Act
comes to the aid to meet with such claims. Thus, if the attesting
witness does not turn-up then also execution of the Will can be
proved by other evidence, however, as discussed herein-above,
no efforts appears to have been made by the appellant and even
in absence thereof, the execution of the Will as required in
Clause (c) of Section 63 of the Indian Succession Act, 1925,
cannot be said that Will is proved as per provision of Section 68
of the Indian Evidence Act, 1872, which in-fact lacks in claim
raised by the appellant.
Page 15 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
18. At this juncture, it would be relevant to refer to Section 71
of the Indian Evidence Act, 1872, which reads as under:
Section 71 in The Indian Evidence Act, 1872 :
..."71. Proof when attesting witness denies
the execution.- If the attesting witness
denies or does not recollect the execution
of the document, its execution may be
proved by other evidence.”
To say will has been duly executed the
requirements mentioned in clauses (a), (b)
and (c) of Section 63 of the Succession Act
are to be complied with i.e., (a) the testator
has to sign or affix his mark to the will, or
it has got to be signed by some other
person in his presence and by his
direction; (b) that the signature or mark of
the testator, or the signature of the person
signing at his direction, has to appear at a
place from which it could appear that by
that mark or signature the document is
intended to have effect as a will; (c) the
most important point with which we are
presently concerned in this appeal, is that
the will has to be attested by two or more
witnesses and each of these witnesses
must have seen the testator sign or affix
his mark to the Will, or must have seen
some other person sign the Will in the
presence and by the direction of the
testator, or must have received from the
testator a personal acknowledgment of
signature or mark, or of the signature of
such other person, and each of the
witnesses has to sign the Will in the
presence of the testator.”...
19. It is pertinent to note that the whole case of the plaintiff, as
discussed in aforesaid, rests solely on the Will dated 08.06.1992
Page 16 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
(vide Exh.19), however, some other Wills alleged to have been
executed by the deceased having been placed on record and the
learned Judge of the Trial Court has also placed its findings on
the aforesaid issue, which has no nexus so far as relief as sought
by the plaintiff is concerned. Two of the Wills i.e. Will dated
01.03.1980 (vide Exh.84) and Will dated 26.11.1987 (vide
Exh.104), have not been considered to be duly proved by either
of the parties to the proceedings, and the Will dated 12.06.1986
(vide Exh.85) has been considered to be duly proved by the
learned Judge of the Civil Court, while partly allowing the suit of
the plaintiff.
20. The Will dated 12.06.1986 (vide Exh.85) having been held
to be duly proved as original signatures of the testator and of the
two witnesses have been held to be proved in compliance of the
provision of Section 63 of the Indian Succession Act, 1925, and
also found to have support of one of the attesting witness – Mr.
Dinesh Manilal Patel, who deposed at Exh.103. Though this
witness has been extensively cross-examined by the plaintiff,
however, nothing sort of any such adverse or contrary could be
carved out. On the contrary, as held by the learned Judge of the
Civil Court, that this witness has specifically stated that the
deceased had signed and affixed the date with his own
handwriting and thereby, holding that the said Will has been
duly proved in conformity with the legislative intent as contained
in the aforesaid provisions of Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian Evidence Act, 1872.
Page 17 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
21. In context to the case of Vijyaben Vashram vs. State of
Gujarat & Ors., (supra) wherein it is held by the Division Bench
of the Hon’ble Gujarat High Court that burden of proof rests on
the propounder of the Will to establish its execution and
attestation. It must be proved that the testator was in a sound
disposing state of mind, that he signed the document believing it
to be his Will and if suspicious circumstances surround the Will,
those suspicions must be removed. However, the said is not an
issue so far as the case on hand is concerned. Both the parties
duly endorsed the propositions laid down in the aforesaid case,
however, the same is not applicable to the facts of the case on
hand.
22. In the case of Lilian Coelho & Ors. vs. Myra Philomean
Coalho, (supra) wherein the Hon’ble Supreme Court has
established that suspicious circumstances have to be taken into
consideration before declaring a Will genuine, clarifying that if a
Will fails to follow prescribed procedures, examining suspicious
circumstances becomes unnecessary altogether. Further, it is
held that even if a Will appears to be genuine, the Court retains
full jurisdiction to reject it, if it remains shrouded in suspicious
circumstances when propounder failed to remove such
suspicious circumstances to satisfaction of Court.
23. Similar findings are observed in the case of Beni Chand
(Since Dead) now by L.Rs., vs. Smt. Kamla Kunwar and Others.,
(supra) and in the case of Shashi Kumar Banerjee and Others,
vs. Subodh Kumar Banerjee since deceased and after him his
legal representatives and others, (supra).
Page 18 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
24. Further, in the case of Yumnam Ongbi Tampha Ibemma
Dev vs. Yumnam Joykumar Singh & Others, (supra) wherein it is
held by the Hon’ble Supreme Court that a Will to be valid should
be attested by two or more witnesses and Propounder thereof
should examine one attesting witness to prove a Will and that
the attesting witness should speak not only about testator’s
signature of affixing his mark to Will, but also that each of
witnesses had signed the Will in presence of testator. Relevant
findings of the judgment in para nos. 7 and 9 are as under:
...“7. The attestation of the Will in the
manner stated above is not an empty
formality. It means signing a document for
the purpose of testifying of the signatures
of the executant. The attested witness
should put his signature on the Will animo
attestandi. It is not necessary that more
than one witness be present at the same
time and no particular form of attestation
is necessary.
Since a Will is required by law to be
attested, execution has to be proved in the
manner laid down in section and the
Evidence Act which requires that at least
one attesting witness has to be examined
for the purpose of proving the execution of
such a document. Therefore, having
regards to the provisions of Section 68 of
the Evidence Act and Section 63 of the
Succession Act, a Will to be valid should
be attested by two or more witnesses in the
manner provided therein and the
propounder thereof should examine one
attesting witness to prove the will. The
attesting witness should speak not only
about the testator's signature or affixing
his mark to the will but also that each of
Page 19 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
the witnesses had signed the will in the
presence of the testator.
…. ….. …..
9. In B. Venkatamuni v. C.J. Ayodhya Ram
Singh [2006(13) SCC 449], it was observed
as follows:
"15. It is, however, well settled that
compliance with statutory requirements
itself is not sufficient as would appear from
the discussions hereinafter made.
16. The approach of the Division Bench of
the High Court did not address itself the
right question. It took an erroneous
approach to the issue as would appear
from the decision of this Court in Surendra
Pal v. Dr. Saraswati Arora [1974(2) SCC
600] whereupon again Mr V. Balachandran
himself placed reliance, wherein the law
was stated in the following terms: (SCC p.
605, para 7) "7. The propounder has to
show that the will was signed by the
testator; that he was at the relevant time
in a sound disposing state of mind, that he
understood the nature and effect of the
dispositions, that he put his signature to
the testament of his own free will and that
he has signed it in the presence of the two
witnesses who attested it in his presence
and in the presence of each other. Once
these elements are established, the onus
which rests on the propounder is
discharged. But there may be cases in
which the execution of the will itself is
surrounded by suspicious circumstances,
such as, where the signature is doubtful,
the testator is of feeble mind or is
overawed by powerful minds interested in
getting his property, or where in the light
of the relevant circumstances the
Page 20 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
dispositions appear to be unnatural,
improbable and unfair, or where there are
other reasons for doubting that the
dispositions of the will are not the result of
the testator's free will and mind. In all
such cases where there may be legitimate
suspicious circumstances those must be
reviewed and satisfactorily explained
before the will is accepted. Again in cases
where the propounder has himself taken a
prominent part in the execution of the will
which confers on him substantial benefit
that is itself one of the suspicious
circumstances which he must remove by
clear and satisfactory evidence. After all,
ultimately it is the conscience of the court
that has to be satisfied, as such the nature
and quality of proof must be
commensurate with the need to satisfy
that conscience and remove any suspicion
which a reasonable man may, in the
relevant circumstances of the case,
entertain." ...
25. Most recently, in Pazhanathal (Dead) through LRs & Ors. v.
Alamathal (Dead) through LRs & Ors., 2026 LiveLaw (SC) 813,
the Hon'ble Supreme Court has authoritatively reiterated that
Section 69 of the Evidence Act is not a route of convenience
available to a propounder who simply prefers not to produce the
attesting witnesses; it is a narrow statutory exception that is
triggered only once the propounder has satisfactorily
demonstrated that no attesting witness can be produced to prove
the Will under Section 68 – whether by reason of death,
untraceability despite diligent search, or being beyond the
process of the Court. The Hon’ble Apex Court held that mere
non-production of an attesting witness, without proof of genuine
unavailability, does not shift the mode of proof away from
Page 21 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
Section 68, and that even where Section 69 is properly attracted,
proof of handwriting alone does not resolve the distinct inquiry
into testamentary validity, which must still be assessed
cumulatively rather than by examining each circumstance in
isolation.
26. The proposition laid down in Pazhanathal (supra) applies
with full force to the case on hand, and indeed forecloses the
plaintiff's case more emphatically than even the law as it stood
at the time of the impugned judgment. The plaintiff has neither
examined any attesting witness under Section 68, nor has he
placed on record any death certificate, evidence of untraceability,
or record of a genuine attempt at service so as to invoke Section
69, nor has he shown that an attesting witness, once called,
denied or failed to recollect execution so as to invoke Section 71.
The bare assertion, raised for the first time in appeal, that the
appellant is 'ready and willing' to examine attesting witnesses if
permitted, is precisely the kind of unsubstantiated assertion that
the Hon'ble Supreme Court has cautioned against treating as a
substitute for the statutory gateway of proof. Examination of the
notary advocate alone, as held by the Hon’ble Supreme Court
does not meet the requirement, since a notary, like a scribe or a
sub-registrar, is not an attesting witness in the absence of
independent proof of animus attestandi.
27. Thus, in a nutshell, the claims raised by the plaintiff –
appellant which solely rests on the Will dated 08.06.1992 (vide
Exh.19), however, the learned Judge of the Trial Court, while
discussing other Wills as produced before it, considered the Will
Page 22 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
dated 12.06.1986 (vide Exh.85), and thereby partly allowed the
suit of the plaintiff – appellant, irrespective of the claim having
not been raised qua the Will duly proved in conformity with the
provisions of Section 63 of the Indian Succession Act, 1925 and
Section 68 of the Indian Evidence Act, 1872 does not warrant
any interference. It is also pertinent to note that the said relief
has not been confronted or contested by the respondents,
instead thereof having been duly conceded, as reflects from the
submissions advanced by the respondents so also by not
challenging the aforesaid order.
28. For the foregoing reasons, and in light of the settled law as
reiterated and fortified by the latest decisions of the Hon'ble
Supreme Court noticed hereinabove, this Court finds no
infirmity in the finding of the learned Trial Court that the Will
dated 08.06.1992 (vide Exh.19) was not proved in accordance
with law, for want of examination of any attesting witness and
for want of any material establishing genuine unavailability of
such witnesses so as to invoke Section 69 or Section 71 of the
Indian Evidence Act, 1872.
29. In view of the foregoing discussion, the present appeal
stands dismissed. Interim relief granted earlier, if any, stands
vacated.
30. The impugned judgment and decree dated 13.08.2009
passed by the learned City Civil Judge, Court No.21, Ahmedabad
in Civil Suit No.267/2008 stands confirmed.
Page 23 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026
C/FA/113 pt202/2010 (GJHC240438802010) JUDGMENT DATED:
18/09/2026
31. Record and proceeding be sent back to the concerned
Court forthwith.
sd/-
(ILESH J. VORA,J)
sd/-
(R. T. VACHHANI, J)
PARMAR KRISH
Page 24 of 24
Uploaded by PARMAR KRISH JAYESH(HC02348) on Fri Sep 18 2026 Downloaded on : Fri Sep 18 15:47:06 IST 2026