Madhya Pradesh High Court
Kailash Narayan Jaiswal vs Jai Prakash Jaiswal & Ors. on 15 January, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:3487
1 FA-222-2002
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 15th OF JANUARY, 2026
FIRST APPEAL No. 222 of 2002
KAILASH NARAYAN JAISWAL (dead) THROUGH LRs
Versus
JAI PRAKASH JAISWAL & ORS.
Appearance:
Shri Abhishek Singh Bhadauria, Advocate for LRs of appellant.
Shri N.K.Gupta, Senior Advocate with Shri Saket Sharma, Advocate
for respondent No.1
ORDER
This first appeal, under section 96 of CPC, has been filed against the judgment and decree dated 30/11/2002 passed by IV Additional District Judge, Gwalior in Civil Suit No. 16A/1999. by which suit filed by plaintiff Jai Prakash for declaration of title has been decreed.
2. Facts necessary for disposal of present appeal, in short, are that plaintiff/respondent No.1 Jai Prakash filed a suit for declaration of title by pleading inter alia that House No. 38/6, 609/1 (old 638/9) was recorded in the name of Shiv Mangal Prasad and Lakshman Prasad, both sons of Jagannath Prasad. Lakshman Prasad during his lifetime had executed a registered will dated 25/5/1974 in favor of his brother Shiv Mangal Prasad. Lakshman Prasad died on 5/11/1974 and after his death, Shiv Mangal Prasad became the exclusive owner of the property in dispute. Shiv Mangal Prasad, during Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 2 FA-222-2002 his lifetime, executed a registered Will dated 15/7/1985 in favor of Jai Prakash, Raman Prakash and Narendra Prakash. Thereafter, a Will dated 17/3/1988 was executed in favor of Jai Prakash and accordingly, it was claimed that after the death of Shiv Mangal Prasad on 26/4/1990, plaintiff Jai Prakash became the exclusive owner of the property in dispute. It was the case of the plaintiff that defendant No.1/appellant Kailash Narayan was in possession of the property in dispute in the capacity of tenant. Father of plaintiff had filed a suit for declaration of title and eviction against defendant No.1/appellant which is pending in the Court of IV Additional District Judge, Gwalior. After the death of Shiv Mangal Prasad, defendant No.1 filed an application for mutation of his name by pleading inter alia that Lakshman Prasad had executed a Will dated 26/5/1974 in his favor and therefore his name may be mutated. An objection was raised by the plaintiff by pleading inter alia that this Will dated 26/5/1974 is a forged and concocted document and also raised an objection that the Will dated 26/5/1974 never saw the light of the day till the application was filed for mutation. During the pendency of his objection, a reasonable apprehension had occurred in the mind of the plaintiff that because the inquiry officer is a good friend of defendant No.1, therefore, he may not get justice, therefore, he moved an application before Commissioner, Municipal Corporation, Gwalior for transfer of enquiry, but in spite of that, an ex-parte inquiry was conducted and the name of defendant No.1 was directed to be mutated in the revenue record, against which plaintiff had filed an appeal which was dismissed by order dated 13/2/1992 on the question of jurisdiction. Thus, the plaintiff has filed the present suit Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 3 FA-222-2002 for declaration of title, as well as, that he is entitled to get his name mutated in the revenue records and it was also prayed that the mutation done in favor of the defendant No.1 be also set aside and the Will dated 26/5/1974 be declared as concocted and a forged document.
3. Defendant/appellant Kailash Narayan filed his written statement. He denied the alleged Will executed by Lakshman Prasad in favor of Shiv Mangal . It was claimed that the Will purportedly executed by Lakshman Prasad in favor of Shiv Mangal is null and void. Ramkali Devi is the daughter of Lakshman Prasad whereas Lakshman Prasad is the elder brother of Shiv Mangal. It was further claimed that even if it is found that Lakshman Prasad had executed a Will in favor of Shiv Mangal, but still it was the byproduct of coercion, pressure, and harassment of Lakshman Prasad by Shiv Mangal Prasad. Since Lakshman Prasad was under the pressure of Shiv Mangal, therefore he had lost his capacity to decide, to think and was always under an apprehension and taking advantage of the same, Shiv Mangal got a Will executed behind the back of the defendant No.1 as well as Ramkali, who is the daughter of Lakshman Prasad. Since Lakshman Prasad was having a daughter, therefore there was no occasion for him to execute a Will in favor of his younger brother Shiv Mangal. Similarly, the Will dated 15/7/1985 executed by Shiv Mangal Prasad in favor of Jai Prakash, Ram Narayan and Narendra Prakash was also denied. It was also claimed that the said Will is a forged document. Similarly, the Will dated 17/3/1988 executed by Shiv Mangal Prasad in favor of the plaintiff was also denied. In special plea, it was claimed that the suit as framed and filed is not maintainable. The Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 4 FA-222-2002 plaintiff has not prayed for setting aside of any order passed by the Authorities of Municipal Corporation. It was also pleaded that daughter of Lakshman Prasad namely Ramkali Devi and wife and sons of Shiv Mangal Prasad are also necessary party, in absence of whom the suit is not maintainable. It was also claimed that plaintiff had filed a civil suit against defendant No.1 Kailash Narayan on the strength of a Will which has been registered as Civil Suit No. 50A/87 and is pending in the Court of IV District Judge, Gwalior and therefore, the judgment which will be passed in the said case will have the effect of res judicata and accordingly it was prayed that the present suit be kept in abeyance under section 10 of CPC.
4. The trial Court after framing issues and recording evidence decreed the suit.
5. Challenging the judgment and decree passed by the Court below, it is submitted by counsel for appellant that plaintiff has failed to prove that Lakshman Prasad had executed a Will in favor of his brother Shiv Mangal on 25/5/1974. It is further pleaded that the plaintiff has also failed to prove that Will dated 15/7/1985 was initially executed by Shiv Mangal Prasad in favor of Jai Prakash, Raman Prakash and Narendra Prakash and later on another will dated 17/3/88 was executed by Shiv Mangal in favor of the plaintiff. In fact, a Will dated 26/5/1974 was executed by Lakshman Prasad in favor of the defendant No.1. It is further submitted that admittedly appellant/defendant No.1 is in possession of the property in dispute, therefore, without asking for relief for possession, the suit filed by the plaintiff simplicitor for declaration of title was not maintainable in view of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 5 FA-222-2002 section 34 of Specific Relief Act 6 . Per contra, it is submitted by counsel for the respondent that the appellant on one hand has submitted that the Will dated 25/5/1974 executed by Lakshman Prasad in favor of Shiv Mangal was the byproduct of coercion, pressure and inability to understand the things, whereas it is also the case of appellant that on the very next date i.e. on 26/5/1974, Lakshman Prasad had executed a Will in favor of the appellant, which clearly shows that the defence that testator was not in a fit state of mind and he was under the pressure of the respondent No.1 is false. Shiv Mangal in his turn had executed a Will dated 17/3/1988 in favor of Jai Prakash and therefore by virtue of that Will, Jai Prakash has become the owner of the property in dispute and thus the trial court has rightly decreed the suit. Counsel for respondent No.1 has relied upon the judgment passed by Supreme Court in the case of Sridevi v. Jayaraja Shetty reported in ((2005)2 SCC 784), Meenakshiammal v. Chandrasekaran reported in (2005) 1 SCC 280 , Janki Narayan Bhoir v. Narayan Namdeo Kadam reported in (2003) 2 SCC 91 and Arunkumar v. Shriniwas reported in (2003) 6 SCC 98 .
7. Heard the learned counsel for the parties.
8. Before considering the factual matrix, this Court would like to consider the law governing the field of Will.
9. Will may be surrounded by suspicious circumstances, and burden is on the propounder of the Will not only to prove the document but to remove all the suspicious circumstances. The Supreme Court in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma and others reported in AIR Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 6 FA-222-2002 1959 SC 443 has held as under:
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487
7 FA-222-2002 would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word "conscience" in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 8 FA-222-2002 question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
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29. According to the decisions in Fulton v. Andrew [(1875) LR 7 HL 448] "those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction". "There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out". In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin [(1838) 2 Moo PC 480, 482] . The two rules of law set out by Baron Parke are:"first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator"; "the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased". It is hardly necessary to add that the statement of these two rules has now attained the status of a classic on the subject and it is cited by all text books on wills. The will propounded in this case was directed to be tried at the Assizes by the Court of Probate. It was tried on six issues. The first four issues referred to the sound and disposing state of the testator's mind and the fifth to his knowledge and approval of the contents of the will. The sixth was whether the testator knew and approved of the residuary clause; and by this last clause the propounders of the will were made the residuary legatees and were appointed executors. Evidence was led at the trial and the Judge asked the opinion of the jurors on every one Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 9 FA-222-2002 of the issues. The jurors found in favour of the propounders on the first five issues and in favour of the opponents on the sixth. It appears that no leave to set aside the verdict and enter judgment for the propounders notwithstanding the verdict on the sixth issue was reserved; but when the case came before the Court of Probate a rule was obtained to set aside the verdict generally and have a new trial or to set aside the verdict on the sixth issue for misdirection. It was in dealing with the merits of the finding on the sixth issue that the true legal position came to be considered by the House of Lords. The result of the decision was that the rule obtained for a new trial was discharged, the order of the Court of Probate of the whole will was reversed and the matter was remitted to the Court of Probate to do what was right with regard to the qualified probate of the will.
30. The same principle was emphasized by the Privy Council in Vellasawmy Servai v. Sivaraman Servai [(1929) LR 57 IA 96] where it was held that, where a will is propounded by the chief beneficiary under it, who has taken a leading part in giving instructions for its preparation and in procuring its execution, probate should not be granted unless the evidence removes suspicion and clearly proves that the testator approved the will.
31. In Sarat Kumari Bibi v. Sakhi Chand [(1928) LR 56 IA 62] the Privy Council made it clear that "the principle which requires the propounder to remove suspicions from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the court that the instrument propounded is the last will of the testator". This view is supported by the observations made by Lindley and Davey, L. JJ., in Tyrrell v. Painton [(1894) P 151, 157, 159] . "The rule in Barry v. Butlin [(1838) 2 Moo PC 480, 482] , Fulton v. Andrew [(1875) LR 7 HL 448] and Brown v. Fisher [(1890) 63 LT 465] , said Lindley, L.J., "is not in my mind confined to the single case in which the will is prepared by or on the instructions of the person taking large benefits under it but extends to all cases in which circumstances exist which excite the suspicions of the court".
32. In Rash Mohini Dasi v. Umesh Chunder Biswas [(1898) LR 25 IA 109] it appeared that though the will was fairly simple and not very long the making of it was from first to last the doing of Khetter, the manager and trusted adviser of the alleged testator. No previous or independent intention of making a will was shown and the evidence that the testator understood the business in which his adviser engaged him was not sufficient to justify the grant of probate. In this case the application for probate made by the widow of Mohim Chunder Biswas was opposed on the ground that the testator was not in a sound and disposing state of mind at the material time and he could not have understood the nature and effect of its contents. The will had been admitted to the probate by the District Judge but the High Court had reversed the said order. In confirming the view of the High Court the Privy Council made the observations to which we have just referred.
33. The case of Shama Charn Kundu v. Khettromoni Dasi [(1899) ILR 27 Cal 522] on the other hand, was the case of a will the execution of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 10 FA-222-2002 which was held to be not surrounded by any suspicious circumstances. Shama Charn, the propounder of the will, claimed to be the adopted son of the testator. He and three others were appointed executors of the will. The testator left no natural son but two daughters and his widow. By his will the adopted son obtained substantial benefit. The probate of the will with the exception of the last paragraph was granted to Shama Charn by the trial Judge; but, on appeal the application for probate was dismissed by the High Court on the ground that the suspicions attending on the execution of the will had not been satisfactorily removed by Shama Charn. The matter was then taken before the Privy Council; and Their Lordships held that, since the adoption of Shama Charn was proved, the fact that he took part in the execution of the will and obtained benefit under it cannot be regarded as a suspicious circumstance so as to attract the rule laid down by Lindley, L.J., in Tyrrell v. Painton [(1894) P 151, 157, 159] . In Bai Gungabai v. Bhugwandas Valji [(1905) ILR 29 Bom 530] the Privy Council had to deal with a will which was admitted to probate by the first court, but on appeal the order was varied by excluding therefrom certain passages which referred to the deed-poll executed on the same day by the testator and to the remuneration of the solicitor who prepared the will and was appointed an executor and trustee thereof. The Privy Council held that "the onus was on the solicitor to satisfy the court that the passages omitted expressed the true will of the deceased and that the court should be diligent and zealous in examining the evidence in its support, but that on a consideration of the whole of the evidence (as to which no rule of law prescribed the particular kind required) and of the circumstances of the case the onus was discharged". In dealing with the question as to whether the testator was aware that the passages excluded by the appeal court from the probate formed part of the instrument, the Privy Council examined the evidence bearing on the point and the probabilities. In conclusion Their Lordships differed from the view of the appeal court that there had been a complete failure of the proof that the deed-poll correctly represented the intentions of the testator or that he understood or approved of its contents and so they thought that there were no grounds for excluding from the probate the passages in the will which referred to that deed. They, however, observed that it would no doubt have been more prudent and business-like to have obtained the services of some independent witnesses who might have been trusted to see that the testator fully understood what he was doing and to have secured independent evidence that clause 26 in particular was called to the testator's attention. Even so, Their Lordships expressly added that in coming to the conclusion which they had done they must not be understood as throwing the slightest doubt on the principles laid down in Fulton v. Andrew [(1875) LR 7 HL 448] and other similar cases referred to in the argument."
10. The Supreme Court in the case of Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another , reported in (1974) 2 SCC 600 , has held that propounder has to show that the Will was signed by testator, that he was Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 11 FA-222-2002 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, 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. Furthermore, 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 relevant circumstances the dispositions appears to be the unnatural, improbable and unfair, or where there are other reasons for doubting that the dispositions of the Will are not the result of testator's free Will and mind. It has also been held that in all such cases where there may be legitimate suspicious circumstances those must be reviewed and satisfactorily explained before the Will is accepted and the onus is always on the propounder to explain them to the satisfaction of the Court before it could be accepted as genuine.
11. The Supreme Court in the case of Gorantla Thataiah v. Thotakura Venkata Subbaiah and others , reported in AIR 1968 SC 1332 , has held as it is for those who propound the Will to prove the same.
12. The Supreme Court in the case of Murthy and others v. C. Saradambal and others, reported in (2022) 3 SCC 209 , has held that intention of testator to make testament must be proved, and propounder of Will must examine one or more attesting witnesses and remove all suspicious Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 12 FA-222-2002 circumstances with regard to execution of Will. It has been held as under:
" 31. One of the celebrated decisions of this Court on proof of a will, in H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443] is in H. Venkatachala Iyengar v. B.N. Thimmajamma, wherein this Court has clearly distinguished the nature of proof required for a testament as opposed to any other document. The relevant portion of the said judgment reads as under: (AIR p. 451, para 18) "18. ... The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus, the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
32. In fact, the legal principles with regard to the proof of a will are no longer res integra. Section 63 of the Succession Act, 1925 and Section 68 Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 13 FA-222-2002 of the Evidence Act, 1872, are relevant in this regard. The propounder of the will must examine one or more attesting witnesses and the onus is placed on the propounder to remove all suspicious circumstances with regard to the execution of the will.
33. In the abovenoted case, this Court has stated that the following three aspects must be proved by a propounder: (Bharpur Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 696, para 16) "16. ... (i) that the will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free will, and
(ii) when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by suspicious circumstances, all such legitimate doubts have to be removed by cogent, satisfactory and sufficient evidence to dispel suspicion. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts indicated therein."
34. In Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369] , this Court pointed out that when a will is allegedly shrouded in suspicion, its proof ceases to be a simple lis between the plaintiff and the defendant. What generally is an adversarial 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 let in by the propounder of the will is such as would satisfy the conscience of the court that the will was duly executed by the testator. It is impossible to reach such a satisfaction unless the party which sets up the will offers cogent and convincing explanation with regard to any suspicious circumstance surrounding the making of the will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , this Court has narrated a few suspicious circumstance, as being illustrative but not exhaustive, in the following manner: (SCC p. 699, para 23) "23. Suspicious circumstances like the following may be found to be surrounded in the execution of the will:
(i) The signature of the testator may be very shaky and doubtful or not appear to be his usual signature.
(ii) The condition of the testator's mind may be very feeble and debilitated at the relevant time.
(iii) The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like exclusion of or absence of adequate provisions for the natural heirs without any reason.
(iv) The dispositions may not appear to be the result of the testator's free will and mind.
(v) The propounder takes a prominent part in the execution of the will.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31
NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 14 FA-222-2002
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the day for long.
(viii) Incorrect recitals of essential facts."
36. It was further observed in Shamsher Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] that the circumstances narrated hereinbefore are not exhaustive. Subject to offering of a reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had been duly proved or not. It may be true that the will was a registered one, but the same by itself would not mean that the statutory requirements of proving the will need not be complied with.
37. In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, (2006) 13 SCC 433] , in paras 34 to 37, this Court has observed as under: (SCC pp. 447-48) "34. There are several circumstances which would have been held to be described by this Court as suspicious circumstances:
(i) when a doubt is created in regard to the condition of mind of the testator despite his signature on the will;
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances;
(iii) where propounder himself takes prominent part in the execution of will which confers on him substantial benefit.
***
35. We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B. Venkatamuni v. C.J. Ayodhya Ram Singh [B. Venkatamuni v. C.J. Ayodhya Ram Singh, (2006) 13 SCC 449] , wherein this Court has held that the court must satisfy its conscience as regards due execution of the will by the testator and the court would not refuse to probe deeper into the matter only because the signature of the propounder on the will is otherwise proved.
36. The proof of a will is required not as a ground of reading the document but to afford the Judge reasonable assurance of it as being what it purports to be.
37. We may, however, hasten to add that there exists a distinction where suspicions are well founded and the cases where there are only suspicions alone. Existence of suspicious circumstances alone may not be sufficient. The court may not start with a suspicion and it should not close its mind to find the truth. A resolute and impenetrable incredulity is not demanded from the Judge even if there exist circumstances of grave suspicion."
38. This Court in Anil Kak v. Sharada Raje [Anil Kak v. Sharada Raje, (2008) 7 SCC 695] , held as under: (Bharpur Singh case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1 SCC (Civ) 934] , SCC p. 698, para 20) "20. This Court in Anil Kak v. Sharada Raje [Anil Kak v. Sharada Raje, (2008) 7 SCC 695] opined that the court is required to adopt a rational approach and is furthermore required to satisfy its conscience as existence of suspicious circumstances plays an important role, holding: (SCC p. 714, paras 52-55) '52. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 15 FA-222-2002 also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/or letters of administration with a copy of the will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
54. It may be true that deprivation of a due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a will.
55. Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation.' "
39. Similarly, in Leela Rajagopal v. Kamala Menon Cocharan [Leela Rajagopal v. Kamala Menon Cocharan, (2014) 15 SCC 570 : (2015) 4 SCC (Civ) 267] , this Court opined as under: (SCC p. 576, para 13) "13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us."
13. Similar law has been laid down by Supreme Court in the case of Dhanpat v. Sheo Ram (Deceased) through legal representatives and others , reported in (2020) 16 SCC 209 , and in the case of V. Kalyanaswamy (Dead) by legal representatives and another v. L. Bakthavatsalam (Dead) by legal representatives and others, reported in (2021) 16 SCC 543 .
14. The Supreme Court in the case of Bharpur Singh and others v. Shamsher Singh, reported in (2009) 3 SCC 687 , has held that it may be true that Will was a registered one, but the same by itself would not mean that the statutory requirements of proving the Will need not be complied with. In Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 16 FA-222-2002 terms of Section 63(c), Succession Act, 1925 and Section 68, Evidence Act, 1872, the propounder of a Will must prove its execution by examining one or more attesting witnesses and propounder of Will must prove that the Will was signed by the testator in a sound and disposing state of mind duly understanding the nature and effect of disposition and he put his signature on the document of his own free Will.
15. The Supreme Court in the case of Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao and others , reported in (2006) 13 SCC 433 , has held that mere proof that testator had signed the Will is not enough. It has also to be proved that testator has signed out of his free will having a sound disposition of mind and not a feeble and debilitated mind, understanding well the nature and effect thereof. The Court will also not refuse to probe deeper in the matter merely because propounder's signature on the Will is proved. Similar law has been laid down by Supreme Court in the cases of Savithri and others v. Karthyayani Amma and others, reported in (2007) 11 SCC 621 , Balathandayutham and another v. Ezhilarasan , reported in (2010) 5 SCC 770 , Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others, reported in (2005) 8 SCC 67 and Meenakshiammal (Dead) through legal representatives and others v. Chandrasekaran and another , reported in (2005) 1 SCC 280 .
16. In order to understand the controversy, the claim of the parties can be summarized as under:-
Plaintiff's case
(i) On 25/5/1974, Lakshman Prasad executed a Will in favor of Shiv Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487
17 FA-222-2002 Mangal Prasad in respect of his share.
(ii) Lakshman Prasad died on 5/11/1974.
(iii) Shiv Mangal Prasad executed a Will dated 15/7/1985 in favor of respondent No.1 Jai Prakash, Raman Prakash and Narendra Prakash.
(iv) On 17/3/1988 Shiv Mangal Prasad executed another Will in favor of plaintiff Jai Prakash.
Defendant's case
(i) On 26/5/1974, Lakshman Prasad executed a Will in favor of defendant No.1/appellant Shri Kailash Narayan.
Will dated 25/5/1974 purportedly executed by Lakshman Prasad in favor of Shiv Mangal Prasad.
17. Plaintiff Jai Prakash Jaiswal examined himself as PW1, Brijmohan Das Maheshwari (PW2), Purushottam Yadvanshi (PW3) and Parashuram Bhadani (PW4), whereas defendant No.1 Kailash Narayan Jaiswal (DW1) examined himself apart from Shantaram Moghe (DW2) and Balasaheb Surange (DW3). According to Jai Prakash Jaiswal (PW1), the house in dispute was originally owned by Mulchand. By the sale deed (Ex.P/1) Mulchand alienated the house to Shiv Mangal Prasad and Lakshman Prasad jointly. Lakshman Prasad had executed a Will in favor of Shiv Mangal Prasad and at the time of registration of Will, Brijmohan, Lakshman, Shiv Mangal, Kailash Narayan, Babulal and one more person of the locality were present and Registrar had verified from Lakshman Prasad as to whether he is ready to execute the Will which was accepted by him and accordingly Will (Ex.P/3) was registered on 25/5/1974. The scribe of the will Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 18 FA-222-2002 was Brijmohan and after carrying out writing work, all of them had gone to the Office of registrar. Lakshman Prasad had signed the Will in presence of Registrar and thereafter Babulal and another attesting witness had put their signatures and at that time appellant was also present. He further stated that he can identify the signatures of Lakshmam Prasad and registered Will (Ex.P/3) contains the signature of Lakshman Prasad which are at A to A place whereas the signatures of Babulal are at B to B. He has also stated that he cannot identify the signature of the another attesting witness. Admittedly the plaintiff did not examine any attesting witness to prove the execution of Will dated 25/5/1974. purportedly by Lakshmi Prasad in favor of Lakshmi Shiv Mangal Prasad.
18. Plaintiff has examined Brijmohandas Maheshwari (PW2) who claims himself to be the scribe of Will dated 25/5/1974. This witness has stated that the Will dated 25/5/1974 (Ex.P/3) was written by him on the dictations of Lakshman Prasad. At the time of execution of Will, the testator was old and infirm but he was physically fit. The Will was in respect of a property situated Faujdar Mohalla, Jhulelal Mandir, Dana Oli, Lashkar. After the will was typed, it was read over by him to Lakshman Prasad and thereafter Lakshman Prasad accepted the same and put his signatures and thereafter the witnesses put their signatures and the scribe also put his signatures. He also identified the signatures of Lakshman Prasad, Babulal and Ishwar Das. The Will dated 25/5/1974 (Ex.P/3) was thereafter got registered. In cross-examination, this witness has stated that three signatures were obtained on the Will in his presence, whereas at two places Lakshman Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 19 FA-222-2002 Prasad had signed the Will in front of Registrar. At the time of execution of Will, Lakshman Prasad was 85 to 87 years of age but it was denied that he had lost his capacity to think good or bad. He admitted that although it is written in the Will that Laxman Prasad was ill but claimed that his mental faculty was fit.
19. Plaintiff did not examine any attesting witness in support of Will dated 25/5/1974, purportedly executed by Lakshman Prasad in favor of Shiv Mangal Prasad. For construction of Will, the intention of testator is to be given primary importance and it can be gathered from the recitals in the Wills, surrounding circumstances described from the Will, underlying scheme of the disposition made under the Will, as well as the reason for making bequest therein. The Will must be construed objectively and the conclusion must be deduced by a rational process of reasoning. Similarly, merely because the legal heir has been bypassed, cannot be the sole reason for doubting the veracity of Will, although it may be a suspicious circumstance. In absence of suspicious circumstances, a proof of testamentary capacity and signature of testator is sufficient to discharge the onus of proving the execution of Will. However, in the case of suspicious circumstances, the onus is on the propounder to explain such circumstances to the satisfaction of the Court before it is accepted as genuine. The suspicion must be such as is inherent in transaction itself and not the doubt that may arise from conflict of testimony which becomes apparent on investigation of transaction. So far as undue influence, fraud or collusion is concerned, the burden is on the person making such allegations and mere presence of Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 20 FA-222-2002 motive and opportunity for the same are not enough.
20. The Supreme Court in the case of Balathandayutham v. Ezhilarasan reported in (2010) 5 SCC 770 has held as under:-
"14. When a will is surrounded by suspicious circumstances, the person propounding the will has a very heavy burden to discharge. This has been authoritatively explained by this Court in H. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443] . P.B. Gajendragadkar, J. (as His Lordship then was) in para 20 of the judgment, speaking for the three-Judge Bench in H. Venkatachala [AIR 1959 SC 443] held that in a case where the testator's mind is feeble and he is debilitated and there is not sufficient evidence as to the mental capacity of the testator or where the deposition in the will is unnatural, improbable or unfair in the light of the circumstances or it appears that the bequest in the will is not the result of the testator's free will and mind, the court may consider that the will in question is encircled by suspicious circumstances.
15. Going by this test, as we must, we find that both the wills, Ext. B-19 and Ext. B-20 are surrounded by suspicious circumstances. The ratio in H. Venkatachala [AIR 1959 SC 443] is that in such a situation the Court "would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts will be reluctant to treat the document as the last will of the testator." (See AIR p. 452, para 20.) Following the aforesaid principle, this Court is constrained to hold that the appellants did not succeed in discharging its onus of removing the suspicious circumstances surrounding Exts. B-19 and B-20. As such there is no reason for us to find any error in the judgment of the High Court.
16. Insofar as the execution of the will is concerned, under Section 63 of the Succession Act, 1925 it has to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence, and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.
17. Section 68 of the Evidence Act, 1872 further provides that if a document is required by law to be attested it shall not be used as an evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487
21 FA-222-2002 witness alive, and subject to the process of the court is capable of giving evidence. There is a proviso under Section 68 but we are not concerned with the proviso here.
18. Commenting on these provisions, this Court in H. Venkatachala [AIR 1959 SC 443] laid down that Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as an evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. It was further held that Section 63 of the Succession Act requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. (See AIR p. 451, para 18.)
19. The law, thus, laid down in H. Venkatachala [AIR 1959 SC 443] is still holding field and this Court has followed the same in various other judgments. (See Madhukar D. Shende v. Tarabai Aba Shedage [(2002) 2 SCC 85] , Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [(2006) 13 SCC 433] and Savithri v. Karthyayani Amma [(2007) 11 SCC 621] .)"
21. The Supreme Court in the case of N. Kamalam v. Ayyasamy reported in (2001) 7 SCC 503 has held as under:-
"3. Turning on to the former expression onus probandi , it is now a fairly well-settled principle that the same lies in every case upon the party propounding the will and may satisfy the court's conscience that the instrument as propounded is the last will of a free and capable testator, meaning thereby obviously, that the testator at the time when he subscribed his signature on to the will had a sound and disposing state of mind and memory and ordinarily, however, the onus is discharged as regards the due execution of the will if the propounder leads evidence to show that the will bears the signature and mark of the testator and that the will is duly attested. This attestation however, shall have to be in accordance with Section 68 of the Evidence Act which requires that if a document is required by law to be attested, it shall not be used as evidence until at least one attesting witness has been called for the purpose of proving its execution and the same is so however, in the event of there being an attesting witness alive and capable of giving the evidence. The law is also equally well settled that in the event of there being circumstances surrounding the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 22 FA-222-2002 execution of the will shrouded in suspicion, it is the duty paramount on the part of the propounder to remove that suspicion by leading satisfactory evidence.
5. As regards the true legal position in the matter of proof of wills, we rather feel tempted to incorporate the succinct expression of law, in extenso, even though rather longish in nature, by Gajendragadkar, J. in the case of H. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443 : 1959 Supp (1) SCR 426] . The learned Judge had the following to state: (AIR p. 451, para
18) "It is well known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or other-wise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents.
Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression 'a person of sound mind' in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 23 FA-222-2002 any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
20. Turning attention on to the second count on which very great emphasis has been placed viz. the scribe also can discharge the function of attesting witness and since the scribe has subscribed his signatures on to the will, the lacuna if any, of not having the evidence of the attesting witnesses stands rectified and both learned trial Judge and the High Court were in error in not placing reliance thereon. Section 63 of the Indian Succession Act as noticed hereinbefore read with Section 68 of the Evidence Act and Section 3 of the Transfer of Property Act makes a mandatory obligation to have the document attested and evidence of such attestation be made available before the court at the time of the trial.
21. The factual score depicts that the will in question has been written by one Arunachalam who was examined as PW 5. The will stands attested by one D. Subbayya and the second attestor being P. Govindaraju, two signatures said to have been subscribed by the above-named two persons and the same appear in the body of the will as attestors but no attempt has been made to examine either of the persons. Incidentally, no summons were even taken out for the purpose of such an examination of the attesting witnesses. Section 68 of the Evidence Act as noticed above, requiring a document to be attested must be proved by calling at least one of the attesting witnesses. While it is true that there are existing certain exceptions, to wit: failure to find after honest and diligent search but there is no evidence whatsoever on record so as to justify such a conclusion presently. Significantly, the English law though seems to be at variance with the principles of law prevalent in this country, but a perusal of Section 9 of the Wills Act, as amended by the Administration of Justice Act, 1982 does not depict a contra rule or law. Section 9 of the Wills Act, 1837 (as amended) provides as below:
"9. No will shall be valid unless --
(a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction;
and (b ) it appears that the testator intended by his signature to give effect to the will; and
(c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d ) each witness either--
(i) attests and signs the will; or
(ii) acknowledges his signature, Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 24 FA-222-2002 in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary."
22. As regards the requirement of attestation, Halsbury's Laws of England has the following to state:
"The testator's signature must be made or acknowledged by him in the presence of two or more witnesses present at the same time. Each witness must then either attest and sign the will or acknowledge his signature, in the testator's presence. The testator's complete signature must be made or acknowledged when both the attesting witnesses are actually present at the same time and each witness must attest and sign, or acknowledge, his signature after the testator's signature has been so made or acknowledged. Although it is not essential for the attesting witnesses to sign in the presence of each other, it is usual for them to do so. Each witness should be able to say with truth that he knew that the testator had signed the document but it is not necessary that the witness should know that it is the testator's will. There is, however, no sufficient acknowledgement unless the witnesses either saw or had the opportunity of seeing the signature, even though the testator expressly states that the paper to be attested is his will or that his signature is inside the will." (Halsbury's Laws of England: 4th Edn., Vol. 50, para 312)
23. It is in this context reference may be made to Williams on Wills wherein it has been stated vis-à-vis position of attestation in a will as below:
"Section 9(e) does not specify where the witnesses are to sign (f), and the signatures may therefore be placed on any part of the will, if it is clear that they were placed there with the intention of attesting the signature of the testator (g ). The attestation may be on the sheet next to where the testator has signed, i.e. overleaf (h ), or on separate sheet so long as it is attached (i). Where the will is signed on more than one sheet, it seems that the signature on the last sheet should be duly attested but the decisions on the point are not uniform (j). It is clear, however, that no part of the will which is shown to be Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 25 FA-222-2002 written after attestation is valid (k )."
24. Incidentally, be it noted that though no special form of the attestation clause is essential, there are two well-recognised forms of this clause showing that the requirements of the statute have been complied with and one of them should always be used to avoid any difficulty in securing a grant.
25. The requirement of attestation presently in the country is statutory in nature, as noticed hereinbefore, and cannot as such be done away with, under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor shall have to be assessed in its proper perspective but that does not however mean and imply non-compliance with a statutory requirement. The intention of the attestor and its paramount importance cannot thwart the statutory requirement. No doubt the scribe has subscribed his signature but a scribe in accordance with common English parlance means and implies the person who writes the document. Significantly, however, in England the King's Secretary is popularly known as Scribaregis. Be that as it may, in common parlance an attribute of scribe as a mere writer as noted above, does not stretch the matter further. In the contextual facts, while the writer did, in fact, subscribe his signature but the same does not underrate the statutory requirement of attestation as more fully described hereinbefore. True it is, that strenuous submissions have been made in support of the appeal that "attesting witnesses" have no other role to play but to subscribe their signatures in order to prove the genuineness of the will and that in fact, when the scribe signs the will, the same can be read as attestation. Needless to record, however, that the scribe Arunachalam was examined and it is on this score the learned advocate contended that the evidence of an attestor thus can be said to be on record so as to make the document namely the "will" in the instant case thus otherwise in accordance with law.
26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of the same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, requiring attestation (admittedly in the case of a will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe. The Full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons v. Rahilna Bi [AIR 1962 Mad 111 : (1962) 1 MLJ 78 (FB)] wherein Ramachandra Iyer, J. speaking for the Full Bench in his inimitable style and upon reliance on Lord Campbell's observation in Burdett v. Spilsbury [(1842-43) 10 Cl & F 340 : 8 ER 772] has the following to state pertaining to the meaning to be attributed to the word "attestation": (AIR pp. 113-14, paras 3-4) "(3) ... The definition of the term 'attested' which is almost identical with that contained in Section 63(c) of the Indian Succession Act, has been the result of an amendment introduced by Act 27 of 1926. Prior to that amendment it was held by this Court that the word 'attested' was used only in the narrow sense of the attesting witness being present at the Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 26 FA-222-2002 time of execution. In Shamu Patter v. Abdul Kadir Ravuthan [ILR (1912) 35 Mad 607 : 39 IA 218 (PC)] the Privy Council accepted the view of this Court that attestation of a mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that a mere acknowledgement of his signature by the executant to the attesting witness would not be sufficient. The amending Act 27 of 1926 modified the definition of the term in the Transfer of Property Act so as to make a person who merely obtains an acknowledgement of execution and affixed his signature to the document as a witness, an attestor. It will be noticed that although Section 3 purports to define the word 'attested' it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose of the Act; the word 'attest' is used as a part of the definition itself. It is, therefore, necessary first to ascertain the meaning of the word 'attest' independent of the statute and adopt it in the light of the extended or qualified meaning given herein. The word 'attest' means, according to the Shorter Oxford Dictionary 'to bear witness to, to affirm the truth of genuineness of, testify, certify'.
I n Burdett v. Spilsbury [(1842-43) 10 Cl & F 340 : 8 ER 772] Lord Campbell observed at p. 417:
'What is the meaning of an attesting witness to a deed? Why, it is a witness who has seen the deed executed, and who signs it as a witness.' The Lord Chancellor stated, 'the party who sees the will executed is in fact a witness to it, if he subscribes as a witness, he is then an attesting witness'.
The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign. Further, attestation being an act of a witness, i.e., to testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended by Act 27 of 1926. Before that amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution.
(4) After the amendment of Section 3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487
27 FA-222-2002 from the executant a personal acknowledgement of his signature, mark etc. Thus of the two significant requirements of the term 'attest', namely, ( 1 ) that the attestor should witness the execution, which implies his presence, then, and (2 ) that he should certify or vouch for the execution by subscribing his name as a witness, which implies a consciousness and an intention to attest, the amending Act modified only the first; the result is that a person can be an attesting witness, even if he had not witnessed the actual execution, by merely receiving personal acknowledgement from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter requirement, namely, certifying execution which implies that the attesting witness had the animus to attest."
27. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance with the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and we also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependent on the fact situation. The learned Judge as noticed above has himself recorded that there are two significant requirements of the term "attest" viz. that the attestor should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not but depict otherwise. The scribe's presence cannot be doubted but the issue is not what it is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise -- this issue unfortunately, we are not in a position to lend concurrence with. The will as produced, records the following at p. 4 thereof: (p. 106 of the paper-book) "Witnesses LTI of Masanae Gowder sd/-
1. T. Subbiya, S/o Veerai Gowder, 25/298, Thomas Street, Coimbatore.
sd/-
2. B. Govindaraju, S/o S. Balagurumurthy Chettiar, 25/250, Rangai Gowder Street, Coimbatore.
sd/-
Arunachalam"
The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 28 FA-222-2002 transposed in favour of the writer, rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed in the document itself -- this is again, however, not the situation existing presently in the matter under consideration. Some grievance was made before this Court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available."
22. A Coordinate Bench of this Court in the case of Noorbaksh Khan Vs. Salim Khan and others reported in 2014 (3) MPLJ 542, has held as under:-
"6. For a valid 'Will' in terms of section 63 of Succession Act (39 of 1925), it is to be attested by two witnesses. Further, to prove factum of execution of 'Will', in terms of section 68 of the Evidence Act, it is to be proved at least by one of the attesting witnesses.
7. Section 3 of the Transfer of Property Act defines the word "attested" and the meaning of the definition clause is well explained by the Hon'ble Apex Court reported in AIR 1969 SC 1147, M. L. Abdul Jabbar Sahib vs. H. V. Venkata Sastri and Sons to the following effect:
"8. It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of valid attestation under section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is as scribe or an identifier or a registering officer, he is not an attesting witness."
8. In AIR 2001 SC 2802, N. Kamalam (dead) and another vs. Ayyaswamy and another , Hon'ble Supreme Court has again elaborately and lucidly explained the scope, meaning and consequences of attestation in the context of factum of execution of 'Will'. Significant requirements are found to be two fold; (1) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 29 FA-222-2002 that, the attesting witness should witness the execution which implies his presence and (2) that, he should certify or mark for execution by subscribing his name as a witness; which implies a conscious intention to attest, i.e., attesting witness as animus to attest.
9. Subscribing of signatures on the 'Will' by the scribe cannot be equated with the signatures of attesting witnesses as signatures of the attesting witnesses are for a specific purpose of having witnessed the execution and for fulfilment of the statutory requirements.
10. The scribe appends his signatures on the 'Will' as scribe. He is not a witness to the 'Will' but a mere writer of the 'Will'. The element of the animus to attest is missing, i.e., intention to attest is missing. His signatures are only for the purpose of authenticating that he was a scribe of the 'Will'.
11. In view of the aforesaid enunciation of law holding the field, the evidence of the scribe, P.W.2, Jai Babu in the case in hand cannot substitute for that of attesting witnesses.
12. Even otherwise, upon perusal of the deposition of P.W.2, Jai Babu, in the opinion of this Court, it is worth discredit for the reasons:
(a) According to him, late Noor Mohammad by the alleged 'Will' dated 5-2-1987 had bequeathed the house by the aforesaid 'Will' in favour of his wife, Gulshanbi whereas on perusal of exhibit P/2C, the same is passed to be only in respect of the suit property, i.e., agricultural land admeasuring 0.408 hectare falling in Survey No. 52 situated in village Kasba Range Mungawali reflects falsity or ignorance of the substance of the 'Will' in his deposition; and
(b) On criminal charges of having prepared a document fraudulently, he was prosecuted and convicted and sentenced though he states that he was acquitted by the Appellate Court.
13. As such, deposition of P.W.2, Jai Babu cannot be substituted to that of attesting witnesses and the 'Will' cannot be said to have been proved. His deposition leads to suspicion as regards not only factum of its execution but also contents thereof."
23. Thus, it is clear that the evidence of scribe cannot be equated with the evidence of attesting witness. The purpose of attesting witness is to prove the execution of Will by two witnesses before whom the Will was executed, whereas the purpose of signature by the scribe is that he has written the Will. The requirement of attestation is the requirement of statute and it cannot be equated with that of the scribe. As per Section 63 of Indian Succession Act, Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 30 FA-222-2002 the Will has to be proved by examining one of the attesting witnesses. If the attesting witnesses are not alive, then their signatures can be proved by examining a person who can identify the signatures of the attesting witnesses.
24. In the present case, admittedly the plaintiff has not examined any attesting witness or anyone who can identify the signatures of the attesting witnesses on Will dated 25/5/1974. He has merely examined Brijmohan, who is the scribe of the Will. As already held by the Supreme Court in the case of N. Kamalam (supra), the evidence of a scribe cannot be equated with the evidence of the attesting witness. Therefore, it is held that the plaintiff Jai Prakash has failed to prove the execution of Will dated 25/5/1974 purportedly executed by Lakshman Prasad in favor of Shiv Mangal Prasad.
25. There is another aspect of the matter which cannot be lost sight of. The plaintiff has admitted that at the time of execution and registration of Will dated 25/5/1974, he was present. Thus, the propounder of the Will had taken an active role in the execution of the Will. This circumstance also creates a suspicion as to the genuineness of the Will dated 25/5/1974.
26. The Supreme Court in the case of Kavita Kanwar v. Pamela Mehta reported in (2021) 11 SCC 209 has held as under:-
24.8. We need not multiply the references to all and other decisions cited at the Bar, which essentially proceed on the aforesaid principles while applying the same in the given set of facts and circumstances. Suffice would be to point out that in a recent decision in Shivakumar v. Sharanabasappa [Shivakumar v. Sharanabasappa , (2021) 11 SCC 277] , this Court, after traversing through the relevant decisions, has summarised the principles governing the adjudicatory process concerning proof of a will as follows : (SCC pp. 309-10, para 12) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 31 FA-222-2002 "12. ... 12.1. Ordinarily, a will has to be proved like any other document; the test to be applied being the usual test of the satisfaction of the prudent mind. Alike the principles governing the proof of other documents, in the case of will too, the proof with mathematical accuracy is not to be insisted upon.
12.2. Since as per Section 63 of the Succession Act, a will is required to be attested, it cannot be used as evidence until at least one attesting witness has been called for the purpose of proving its execution, if there be an attesting witness alive and capable of giving evidence.
12.3. The unique feature of a will is that it speaks from the death of the testator and, therefore, the maker thereof is not available for deposing about the circumstances in which the same was executed. This introduces an element of solemnity in the decision of the question as to whether the document propounded is the last will of the testator. The initial onus, naturally, lies on the propounder but the same can be taken to have been primarily discharged on proof of the essential facts which go into the making of a will.
12.4. The case in which the execution of the will is surrounded by suspicious circumstances stands on a different footing. The presence of suspicious circumstances makes the onus heavier on the propounder and, therefore, in cases where the circumstances attendant upon the execution of the document give rise to suspicion, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
12.5. If a person challenging the will alleges fabrication or alleges fraud, undue influence, coercion et cetera in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may give rise to the doubt or as to whether the will had indeed been executed by the testator and/or as to whether the testator was acting of his own free will. In such eventuality, it is again a part of the initial onus of the propounder to remove all reasonable doubts in the matter.
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 dependants; an active or leading part in making of the will by the beneficiary thereunder et cetera are some of the circumstances which may give rise to suspicion.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31
NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 32 FA-222-2002 The circumstances abovenoted are only illustrative and by no means exhaustive because there could be any circumstance or set of circumstances which may give rise to 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 of 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 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 the 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 the will."
(Underline supplied)
27. The Supreme Court in the case of Chinu Rani Ghosh versus Subhash Ghosh and others, decided on 11 December 2024 in SLP (Civil) No. 23721 of 2022, has held as under, "21. In the matter of proof of Wills, it is necessary to rely on the dictum of this Court speaking through Gajendragadker, J. in H. Venkatachala Iyengar vs. B.N. Thimmajamma, AIR 1959 SC 443 of which Paragraphs 18 to 23 can be usefully extracted as under:
"18. What is the true legal position in the matter of proof of wills? It is well-known that the proof of wills presents a recurring topic for decision in courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose. Under Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be in his handwriting, and for proving such a handwriting under Sections 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 33 FA-222-2002 law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a court of law. Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 34 FA-222-2002 and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature, in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred, in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 35 FA-222-2002 "conscience" in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson [(1946) 50 CWN 895] "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth". It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilant, cautious and circumspect.
23. It is in the light of these general considerations that we must decide whether the appellant is justified in contending that the finding of the High Court against him on the question of the valid execution of the will is justified or not. It may be conceded in favour of the appellant that his allegation that Lakshmamma has put her signatures on the will at five places is proved; that no doubt is a point in his favour. It may also be taken as proved that Respondent 1 has failed to prove that Lakshmamma was unconscious at the time when the will is alleged to have been executed. It is true she was an old woman of 64 years and had been ailing for some time before the will was executed. She was not able to get up and leave the bed. In fact she could sit up in bed with some difficulty and was so weak that she had to pass stools in bed. However, the appellant is entitled to argue that, on the evidence, the sound and disposing state of mind of Lakshmamma is proved. Mr Iyengar, for the appellant, has strongly urged before us that, since these facts are established, the court must presume the valid execution of the will and in support of his contention he has invited our attention to the relevant statements on the point in the text Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 36 FA-222-2002 books dealing with the subject. Jarman on Wills [Jarman on Wills-- Vol. I, 8th Edn., p. 50] says that "the general rule is 'that the onus probandi lies in every case upon the party propounding a will and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator'". He adds that, "if a will is rational on the face of it, and appears to be duly executed, it is presumed, in the absence of evidence to the contrary, to be valid". Similarly, Williams on Executors and Administrators [Williams on Executors and Administors-- Vol. I, 13th Edn., p. 92] has observed that, "generally speaking, where there is proof of signature, everything else is implied till the contrary is proved; and evidence of the will having been read over to the testator or of instructions having been given is not necessary". On the other hand, Mr Viswanatha Sastri, for Respondent 1, contends that the statements on which the appellant has relied refer to wills which are free from any suspicions and they cannot be invoked where the execution of the will is surrounded by suspicious circumstances. In this connection, it may be pertinent to point out that, in the same text books, we find another rule specifically mentioned.
"Although the rule of Roman Law", it is observed in Williams, "that 'Qui se scripsit haeredem' could take no benefit under a will does not prevail in the law of England, yet, where the person who prepares the instrument, or conducts its execution, is himself benefited by its dispositions, that is a circumstance which ought generally to excite the suspicion of the court, and calls on it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce, unless the suspicion is removed, and it is judicially satisfied that the paper does express the true will of the deceased"
[Williams on Executors and Administrators, Vol. I, 13th Edn., p. 93]"
(Underline supplied) .
28. Thus, where the propounder plays a prominent role in execution of Will and gets a substantial benefit out of it, then that by itself creates a suspicion which is required to be removed by leading cogent evidence. In the present case, the respondent/plaintiff Jai Prakash was all the time present at the time of execution of Will dated 25/5/1974. Therefore, it is proved that he had also played an important and prominent role in execution of the Will. Thus, on that ground also, the Will becomes suspicious.Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31
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37 FA-222-2002
29. Furthermore, Lakshman Prasad had his daughter Ramakali. Why she was bypassed has also not been explained by the plaintiff. Thus, it is clear that the plaintiff has failed to prove that Will dated 25/5/1974 was executed by Lakshman Prasad in favor of Shiv Mangal.
Whether plaintiff has proved that Will dated 15/7/1985 was executed by Shiv Mangal Prasad in favor of Jai Prakash, Raman Prakash and Narendra Prakash?
30. Although the discussion in that regard is immaterial because once this Court has come to a conclusion that the plaintiff has failed to prove that any Will was executed by Lakshman Prasad in favor of Shiv Mangal Prasad, then it is clear that Shiv Mangal Prasad will not become the owner of the share of Lakshman Prasad and the share of Lakshman Prasad would be inherited by his legal heir. However, it is also made clear that no witness, no scribe, nothing of any sort was examined by the plaintiff to prove that Shiv Mangal had ever executed a Will dated 15/7/1985 in favor of Jai Prakash, Raman Prakash and Narendra Prakash.
Whether Will dated 17/3/1988 purportedly executed by Shiv Mangal Prasad in favor of Jai Prakash was found proved or not?
31. As already pointed out, the plaintiff has failed to prove that Lakshman Prasad had executed a Will in respect of his share in favor of Shiv Mangal Prasad. Therefore, in absence of Will the share of Lakshman Prasad will go to his daughter Ramkali and not to Shiv Mangal Prasad. Therefore, even if it is found that Shiv Mangal Prasad had executed a Will dated 17/3/1988 in favor of the plaintiff, still that Will would not confer any right Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 38 FA-222-2002 or title upon the plaintiff. The plaintiff has examined Purshottam Yaduvanshi (PW-3), to prove the Will dated 17/3/1988 (Ex. P/9).
32. Plaintiff Jai Prakash (PW1), in paragraph 4 of his examination-in- chief has stated that Will (Ex. P/9) was executed in favor of him only because his father wanted to get the house in question vacated from the appellant. and since he could not succeed, therefore he informed the plaintiff that either he should keep the same after getting it vacated from Kailash Narayan/appellant or should give it to his brother or should construct a Dharamshala. Thus, it is clear from paragraph 4 of the examination-in-chief of plaintiff that the intention behind executing the Will dated 17/3/1988 ( Ex. P/9), was not to give the property to the plaintiff, but it was with the intention to get the suit premises vacated from the appellant. He further stated that Shiv Mangal had also filed a suit for eviction, which was dismissed for want of Court-fees. He further admitted that after Civil Suit No. 50-A/1987 was dismissed, proceedings were initiated for restoration of the said proceedings, but the same was dismissed vide Ex. D/5.
33. Be that whatever it may be.
34. Since plaintiff has failed to prove that Lakshman Prasad had executed a Will in favor of Shiv Mangal, therefore Shiv Mangal Prasad never became the owner of the share of Lakshman Prasad and whether he had executed a Will dated 17/3/1988 (Ex. P/9), in favor of the plaintiff or not will not assume any importance. Thus, a detailed discussion with regard to the genuineness of Will dated 17/3/1988 (Ex. P/9), is not required.
35. Under these circumstances, this Court is of the considered opinion Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31 NEUTRAL CITATION NO. 2026:MPHC-GWL:3487 39 FA-222-2002 that the trial Court committed a material illegality by decreeing the suit filed by Jai Prakash. Under these circumstances, it is held that since Jai Prakash/plaintiff has failed to prove that Will dated 25/5/1974 was executed by Lakshman Prasad in favor of Shiv Mangal, therefore Shiv Mangal did not acquire any right or title in the share of Lakshman Prasad. Under these circumstances, Shiv Mangal had no right or title to execute a Will in respect of the share of Lakshman Prasad in the property in dispute. In fact, the legal heirs of Lakshman Prasad would inherit the share of Lakshman Prasad.
36. Although appellant has also claimed his title on the basis of Will executed by Shiv Mangal Prasad, but that cannot be considered for the reason that appellant had not filed any counter-claim. Thus, the suit filed by the plaintiff is hereby dismissed. The judgment and decree dated 30/11/2002 passed by IV Additional District Judge, Gwalior in Civil Suit No. 16A/1999, is hereby set aside.
37. The appeal succeeds and is, hereby, allowed.
(G. S. AHLUWALIA) JUDGE (and) Signature Not Verified Signed by: ANAND SHRIVASTAVA Signing time: 28-01-2026 18:43:31