Madhya Pradesh High Court
Surendra Kumar vs Satendra Kumar on 14 November, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:29643
1 SA-192-2008
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 14 th OF NOVEMBER, 2025
SECOND APPEAL No. 192 of 2008
SURENDRA KUMAR (DIED) THR. LRS.
Versus
SATENDRA KUMAR
Appearance:
Mr. Prashant Sharma and Mr. Anand Vinod Bhardwaj - Advocate for L.Rs.
of appellant.
None for respondent.
ORDER
This second appeal under Section 100 of CPC has been filed against judgment and decree dated 30/11/2007 passed by Additional District Judge, Sironj, District Vidisha, in Civil Appeal No. 21-A/2006, as well as judgment and decree dated 09/05/2006 passed by Civil Judge, Class-I, Sironj, District Vidisha, in Civil Suit No. 6-A/2004.
2. Appellant is the defendant who has lost his case from both the courts below. Original defendant/appellant has expired and appeal is being prosecuted by his legal heirs.
3. The case of plaintiff/respondent, in short, was that House No. 128, which is a three-story building, is situated in Kathali Bazar, Sheela Mata Marg, Sironj. Five rooms, one latrine and bathroom are situated on the first floor which is being used by the plaintiff. Second floor of the house is being used by the defendant, whereas third floor of the house is in possession of Devendra Kumar, who is the brother of plaintiff and defendant. Plaintiff is looking after Devendra Kumar. The Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 2 SA-192-2008 roof over the third story is in joint possession of the parties. The house in question was the property of their father Sardarmal and it is a Joint Hindu Family Property of the plaintiff, defendant and their brothers Devendra Kumar, Mahendra Kumar and Narendra Kumar. After the death of Sardarmal, his daughters namely Kanta, Silochna, Sadhna and Aneeta also have share in the property and partition has not taken place. Sardarmal has died in the year 1970. It is the case of plaintiff that two shops, i.e., one shop situated on the ground floor and another shop situated in the basement, were also in the ownership of their father Sardarmal, and it was claimed that the shops have not been partitioned so far. The shop situated on the ground floor is in possession of the defendant and defendant is running a grocery shop, whereas plaintiff is running a grocery shop in the shop situated in the basement. It was further claimed that Sardarmal had two wives. His first wife was Gulab Bai from whom he was blessed with two sons and one daughter namely Rajendra Kumar, Virendra Kumar, and Shakun. Shakun has got married whereas Rajendra Kumar and Virendra Kumar were separated by giving a building situated in Bada Gher Mohalla near Kale Mahal. One more shop was situated in Sironj in which he was tenant and at present Virendra Kumar is running a grocery shop, and Sardarmal started residing with the plaintiff, defendant and their siblings and till his death he resided with them. The marriage of Sardarmal with the mother of plaintiff and defendant was second. At the time of death of Sardarmal, age of the plaintiff was about three to four years, and therefore, the documents pertaining to ownership of the building and shops are with the defendant. Sardarmal had got an electricity meter installed in the year 1961 in the shop as well as in the house and the electricity connection is still in his name. However, the defendant has got his name mutated in the revenue records in respect of the house and the shop. In spite Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 3 SA-192-2008 of the best efforts, Municipal Council, Sironj was not in a position to disclose on what basis name of defendant was mutated in respect of the shop and the house and even defendant is not disclosing any reason. On 03/01/2004, defendant extended a threat that after demolishing the shops, which are situated on the ground floor and the basement, he would reconstruct the shops, and thus, plaintiff got an apprehension that he would be dispossessed from the shop which is situated in the basement and the defendant would reconstruct the shop without there being any partition. Thus, the suit was filed for permanent injunction to the effect that unless and until the properties are partitioned amongst the legal representatives of Sardarmal, defendant be permanently restrained from changing the nature of the shops as well as from reconstructing the same and also be restrained from interfering with the peaceful possession of plaintiff over the shop situated in the basement.
4. Defendant, who is the real brother of plaintiff, filed his written statement and admitted that Sardarmal had died in the year 1970, but it was claimed that house number of the disputed property is 54 and not 128. It was also admitted that the disputed house is a three-story building. It was admitted that the shops in question were the properties of Sardarmal, but it was denied that after the death of Sardarmal, plaintiff, and other brothers and sisters have any share in the property. It was admitted that in the shop situated on the ground floor, defendant is running a grocery shop and it was also admitted that in the shop situated in the basement, plaintiff is running a grocery shop, but it was claimed that the plaintiff is running the grocery shop with the permission of the defendant and since it was not a joint property, therefore, there is no question of any partition. It was admitted that Sardarmal had performed two marriages. Rajendra Kumar, Virendra Kumar and Shakun Bai are the step-brothers and sister of the plaintiff and defendant. It was Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 4 SA-192-2008 admitted that at the time of death of Sardarmal, age of the plaintiff was three to four years. It was also admitted that their elder brother Mahendra Kumar has shifted to Bhopal and is residing there. It was also admitted that Narendra Kumar and Devendra Kumar have also shifted to Bhopal, but it was denied that his siblings have any share or interest in the property in dispute. It was claimed that after the death of Sardarmal, defendant became the sole owner of the property in dispute. In special plea, it was pleaded that on 01/01/1970, Sardarmal, in relation to the marriage work of his daughter Kanta Bai, sent the defendant to Vidisha. While going to Vidisha, defendant fell from a train, as a result, his right hand was amputated, and thus, Sardar Mal, out of his own volition and in the knowledge of other siblings, executed a Will in favour of defendant on 15/03/1970, and after the death of Sardarmal, defendant became the owner and in possession of the house as well as the shop on the basis of Will, and thus, it was claimed that plaintiff is not entitled for any relief as claimed by him.
5. The Trial Court, after framing issues and recording evidence, decreed the suit.
6. Defendant/appellant being aggrieved by the judgment and decree passed by the Trial Court preferred an appeal which too has been dismissed by the Appellate Court.
7. Challenging the judgments and decrees passed by the Courts below, it is submitted by counsel for appellant that appellant has proved that Sardarmal had executed a Will.
8. Heard learned counsel for appellant.
9. This second appeal was admitted by order dated 17.12.2018 on following substantial questions of law:
"(i) Whether the Courts below were justified in decreeing the suit filed Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 5 SA-192-2008 by the plaintiff only for injunction against the defendant without filing any suit seeking declaration/partition of the property which belongs to the father of plaintiffs and defendant and can it be maintainable?
(ii) Whether the will (ExD-1) filed by the defendant in his favour has rightly been disbelieved merely because one of the witness (Nirmal) has not been examined in the Court. However, the findings concurrently recorded by the Court are not perverse."
10. I.A. No. 18610/2017 has also been filed under Order 41 Rule 27 CPC. By this application, it is being contended by defendant/appellant that the property in dispute was purchased by his father Sardarmal and his brother Rajendra Kumar from Radharaman. It is the case of defendant that partition had taken place between Sardarmal and Rajendra Kumar and the property in dispute fell to the share of Sardarmal. It was further claimed that aforesaid documents are necessary for effective adjudication of this appeal.
11. Considered the submission made by counsel for appellant.
12. It was the case of plaintiff that the property belonged to Sardarmal and it was also admitted by the defendant that property belonged to Sardarmal. By filing additional documents, appellant wants to prove that the property was jointly purchased by Sardarmal and his brother Rajendra Kumar from Radharaman and later on partition took place between them and the property fell to the share of Sardarmal.
13. Since the question as to whether the property belonged to Sardarmal or not has not been disputed by any of the parties, therefore, the sale deed executed by Radharaman in favor of Sardarmal and his brother Rajendra Kumar is not essential for adjudication. However, by placing this document on record, appellant has given birth to a new controversy by submitting that the property was jointly purchased in the name of Sardarmal and Rajendra Kumar from Radharaman. Unless and until partition is proved between Sardarmal and Rajendra Kumar, and unless it is proved that the property fell to the share of Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 6 SA-192-2008 Sardarmal, neither the plaintiff nor the defendant can claim their right or title over the property in dispute.
14. Question of partition was never raised by any of the parties. Even the defendant has not moved any application for amendment in his written statement, thereby taking plea with regard to the documents which are sought to be filed along with I.A. No. 18610/2017. If the factum of joint purchase of property by Sardarmal and Rajendra Kumar, and the partition between Sardarmal and Rajendra Kumar are taken into consideration, then it will completely change the very nature of the suit. Therefore, by keeping the rights of Rajendra Kumar and his legal representatives open, I.A. No. 18610/2017 is hereby rejected .
15. It is made clear that since Rajendra Kumar or his legal representatives are not a party to the suit, therefore, in case if they stake their claim over the property in dispute, then this judgment will not come in their way because this judgment is a judgment in personam and not a judgment in rem.
16. Both the Courts below have given a concurrent finding of fact that the defendant has failed to prove the execution of Will in his favor. Will may be surrounded by suspicious circumstances and the 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 7 SA-192-2008 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 8 SA-192-2008 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 9 SA-192-2008 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 10 SA-192-2008 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 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.
Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PMNEUTRAL CITATION NO. 2025:MPHC-GWL:29643 11 SA-192-2008 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."
17. 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 12 SA-192-2008 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.
18. 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.
19. 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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 13 SA-192-2008 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 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."
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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.
(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.
*** Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 15 SA-192-2008
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 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 16 SA-192-2008 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."
20. 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 .
21. 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 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.
22. 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 Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 17 SA-192-2008 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 .
23. Surendra Kumar (DW-2) in paragraph 4 of his examination-in-chief, filed in the form of affidavit under Order 18 Rule 4 CPC, has specifically stated that he had got a Will executed by Sardarmal Ji and it was in the knowledge of the other legal heirs. The relevant part of paragraph four reads as under:
"4 ...उ कारण वश वo सरदारमल जी ने वे छा से तथा उनके अ य उ रािधका रय क जानकार म दनांक 15/3/1970 को उ मकान एवं दक ु ान के संबंध म एक वसीयतनामा मेने प म िलखवाया था।."
The use of word " मेने " in paragraph 4 clearly shows that defendant wanted to communicate that he had got this Will executed from Sardarmal.
24. Defendant had also examined Nathulal (DW-3) who claimed himself to be one of the attesting witnesses of the Will. In paragraph 11 of his cross- examination, he has specifically stated that Will, Exhibit D-1, contains his signature at B to B and he had signed the Will, Exhibit D-1, in the house of Sardarmal. It was stated by him that while he was passing in front of the house of Sardarmal, he was called by him. It was around 4:00 p.m. Shantilal, Advocate, had come at a later stage. Nirmal Kumar had gone to bring Shantilal. The draft of Will, Exhibit D-1, was brought by Shantilal from his office. Then all of them joined in the house of Sardarmal, and thereafter, they went back to their work. Thereafter, he said that all of them had signed the Will, Exhibit D-1, in the office of Shantilal and the documents were merely shown in the house of Sardarmal whereas the document was already signed in the office of Shantilal. Thus, in Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 18 SA-192-2008 paragraph 11, Nathulal (DW-3) has taken two contradictory stands, i.e., when he was passing in front of the house of Sardarmal, he was called by Sardarmal, and he signed the Will, and later on, Shantilal, Advocate, also came there. Then again he stated the Will, Exhibit D-1 was brought by Shantilal. Thereafter, again he stated that the Will was signed in the office of Shantilal. Thereafter, he stated that Sardarmal ji had taken him to the office of Shantilal, Advocate, and at that time, he was going to the market. He stated that they stayed in the office of Shantilal, Advocate for a period of half an hour and the draft was already prepared. The draft was read over and thereafter he had signed. After completing the writing work in the Office of Shantilal, Advocate, they went to the house of Sardarmal where it was read.
25. A specific question was put to this witness that in the earlier part of paragraph 11, it was stated by him that while he was passing in front of the house of Sardarmal, he was called. He replied that the aforesaid statement is not wrong but it is correct. In paragraph 14, earlier he stated that the Will, Exhibit D-1, was typed in his presence but immediately thereafter, he resiled from his statement and claimed that the Will was not typed in his presence. He stated that Surendra had taken the draft for getting it typed. The draft was prepared by Shantilal, Advocate, in his handwriting and at that time his clerk was not present. He could not explain that how in paragraph 3 of his examination-in-chief it has been mentioned that the Will was got typed by Shantilal, Advocate. He could not explain the said anamoly. He further stated in paragraph 15 that while the draft of Will, Exhibit D-1, was being written, they were waiting in the office of Shantilal Ji and he had signed the Will, Exhibit D-1, with the pen of Shantilal Ji.
26. Thus, it is clear that Nathulal (DW-3) has created a serious doubt about Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 19 SA-192-2008 his presence, about the place of execution of Will, and about the manner of execution of Will. Nathulal, in his evidence, has not stated that Sardarmal Ji was in a fit state of mind and was under no pressure. In paragraph 19 of his cross- examination, Nathulal (DW-3) has further stated that he does not know where the draft of Will, Exhibit D-1, was signed.
27. Thus, the attesting witness Nathulal (DW-3) has failed to remove all suspicious circumstances and has failed to prove that the Will was voluntarily signed by Sardarmal and has also failed to prove where the Will, Exhibit D-1, was signed. He has also failed to prove that how and why he went to the house of Sardarmal. He has also failed to prove that the Will was signed by Sardarmal in his presence, and that he had signed in the presence of Sardarmal. It is a well- settled principle of law that it is for the propounder of the Will to remove all the suspicious circumstances. This Court has also independently considered the evidence which has been led by defendant and has come to the conclusion that the defendant has failed to prove that the Will was executed by Sardarmal in his favor. Even otherwise, the Supreme Court in the case of Angadi Chandranna vs. Shankar and others, decided on 22/04/2025 in Civil Appeal No. 5401/2025 (Arising out of SLP (C) No. 6799 of 2022) has held as under:
"12. Before delving into the facts of the case, this court in Jaichand (supra) expressed its anguish at the High Court for not understanding the scope of Section 100 CPC, which limits intervention only to cases where a substantial question of law exists, and clarified that the High Court can go into the findings of facts under Section 103 CPC only under certain circumstances, as stated in the following passages:
"23. We are thoroughly disappointed with the manner in which the High Court framed the so-called substantial question of law. By any stretch of imagination, it cannot be termed even a question of law far from being a substantial question of law. How many times the Apex Court should keep explaining the scope of a second appeal Under Section 100 of the Code of Civil Procedure and how a substantial question of law should be framed? We may once again explain the well-settled Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 20 SA-192-2008 principles governing the scope of a second appeal Under Section 100 of the Code of Civil Procedure.
24. In Navaneethammal v. Arjuna Chetty reported in MANU/SC/2077/1996 : 1998: INSC: 349 : AIR 1996 S.C. 3521, it was held by this Court that the High Court should not reappreciate the evidence to reach another possible view in order to set aside the findings of fact arrived at by the first appellate Court.
25. In Kshitish Chandra Purkait v. Santosh Kumar Purkait reported in MANU/SC/0647/1997 : 1997:INSC:487 : (1997) 5 S.C.C. 438), this Court held that in the Second Appeal, the High Court should be satisfied that the case involves a substantial question of law and not mere question of law.
26. In Dnyanoba Bhaurao Shemade v. Maroti Bhaurao Marnor reported in MANU/SC/0058/1999 : 1999 (2) S.C.C. 471, this Court held:
Keeping in view the amendment made in 1976, the High Court can exercise its jurisdiction Under Section 100, Code of Civil Procedure only on the basis of substantial questions of law which are to be framed at the time of admission of the Second Appeal and the Second Appeal has to be heard and decided only on the basis of such duly framed substantial questions of law. A judgment rendered by the High Court Under Section 100 Code of Civil Procedure without following the aforesaid procedure cannot be sustained.
27. This Court in Kondira Dagadu Kadam v. Savitribai Sopan Gujar reported in MANU/SC/0278/1999 : 1999:INSC:192 : AIR 1999 S.C. 2213 held:
The High Court cannot substitute its opinion for the opinion of the first appellate Court unless it is found that the conclusions drawn by the lower appellate Court were erroneous being contrary to the mandatory provisions of law applicable or its settled position on the basis of pronouncements made by the Apex Court, or was based upon inadmissible evidence or arrived at without evidence.
28. It is thus clear that Under Section 100, Code of Civil Procedure, the High Court cannot interfere with the findings of fact arrived at by the first Appellate Court which is the final Court of facts except in such cases where such findings were erroneous being contrary to the mandatory provisions of law, or its settled position on the basis of the pronouncement made by the Apex Court or based upon inadmissible evidence or without evidence.
29. The High Court in the Second Appeal can interfere with the findings of the trial Court on the ground of failure on the part of the trial as well as the first appellate Court, as the case may be, when such findings are either recorded without proper construction of the documents or failure to follow the decisions of this Court and acted on assumption not supported by evidence. Under Section 103, Code of Civil Procedure, the High Court has got power to determine the issue of fact. The Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 21 SA-192-2008 Section lays down:
Power of High Court to determine issue of fact: In any Second Appeal, the High Court may, if the evidence on the record is sufficient to determine any issue necessary for the disposal of the appeal,-
(a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or
(b) Which has been wrongly determined by such Court or Courts by reason of a decision on such question of law as is referred to in Section 100.
30. In Bhagwan Sharma v. Bani Ghosh reported in MANU/SC/0094/1993 : AIR 1993 S.C. 398, this Court held:
The High Court was certainly entitled to go into the question as to whether the findings of fact recorded by the first appellate court which was the final court of fact were vitiated in the eye of law on account of non-consideration of admissible evidence of vital nature. But, after setting aside the findings of fact on that ground the Court had either to remand the matter to the first appellate Court for a rehearing of the first appeal and decision in accordance with law after taking into consideration the entire relevant evidence on the records, or in the alternative to decide the case finally in accordance with the provisions of Section 103(b). ...... If in an appropriate case the High Court decides to follow the second course, it must hear the parties fully with reference to the entire evidence on the records relevant to the issue in question and this is possible if only a proper paper book is prepared for hearing of facts and notice is given to the parties. The grounds which may be available in support of a plea that the finding of fact by the court below is vitiated in law does not by itself lead to the further conclusion that a contrary finding has to be finally arrived at on the disputed issue. On a reappraisal of the entire evidence the ultimate conclusion may go in favour of either party and it cannot be prejudged.
31. In the case of Hero Vinoth v. Seshammal reported in MANU/SC/2774/2006 : 2006:INSC:305 : (2006) 5 SCC 545 this Court explained the concept in the following words:
It must be tested whether the question is of general public importance or whether it directly and substantially affects the rights of the parties. Or whether it is not finally decided, or not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law.
32. It is not that the High Courts are not well-versed with the principles governing Section 100 of the Code of Civil Procedure. It is only the casual and callous approach on the part of the courts to apply the correct principles of law to the facts of the case that leads to passing of vulnerable orders like the one Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 22 SA-192-2008 on hand."
12.1. In the present case, in our view, the so-called substantial question of law framed by the High Court does not qualify to be a substantial question of law, rather the exercise of the High Court is a venture into the findings of the First Appellant Court by re-appreciation of evidence. It is settled law that the High Court can go into the findings of facts only if the First Appellate Court has failed to look into the law or evidence or considered inadmissible evidence or without evidence. Section 103 permits the High Court to go into the facts only when the courts below have not determined or rendered any finding on a crucial fact, despite evidence already available on record or after deciding the substantial question of law, the facts of a particular case demand re-determination. For the second limb of Section 103 to apply, there must first be a decision on the substantial question of law, to which the facts must be applied, to determine the issue in dispute. When the First Appellate Court in exercise of its jurisdiction has considered the entire evidence and rendered a finding, the High Court cannot re-appreciate the evidence just because another view is possible, when the view taken by the First Appellate Court is plausible and does not suffer from vice in law. When the determination of the High Court is only by way of re-appreciation of the existing evidence, without there being any legal question to be answered, it would be axiomatic that not even a question of law is involved, much less a substantial one. It will be useful to refer to another judgment of this Court in Chandrabhan (Deceased) through L.Rs & Ors. v. Saraswati & Ors.11, wherein it was held as follows:
"33. The principles relating to Section 100 of the Code of Civil Procedure relevant for this case may be summarised thus:
(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law.
Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
(ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents and involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
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(iii) The general Rule is that the High Court will not interfere with findings of facts arrived at by the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where (i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof. When we refer to "decision based on no evidence", it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.
34. In this case, it cannot be said that the First Appellate Court acted on no evidence. The Respondents in their Second Appeal before the High Court did not advert to any material evidence that had been ignored by the First Appellate Court. The Respondents also could not show that any wrong inference had been drawn by the First Appellate Court from proved facts by applying the law erroneously.
35. In this case, as observed above, evidence had been adduced on behalf of the Original Plaintiff as well as the Defendants. The First Appellate Court analysed the evidence carefully and in effect found that the Trial Court had erred in its analysis of evidence and given undue importance to discrepancies and inconsistencies, which were not really material, overlooking the time gap of 34 years that had elapsed since the date of the adoption. There was no such infirmity in the reasoning of the First Appellate Court which called for interference.
36. Right of appeal is not automatic. Right of appeal is conferred by statute. When statute confers a limited right of appeal restricted only to cases which involve substantial questions of law, it is not open to this Court to sit in appeal over the factual findings arrived at by the First Appellate Court."
12.2. In the present case, the First Appellate Court analyzed the entire oral evidence adduced by both parties, as well as the documentary evidence relied upon by either side, and dismissed the suit. The authority to re- consider the evidence is available only to the First Appellate Court under Section 96 and not to the High Court in exercise of its authority under Section 100, unless the case falls under the exceptional circumstances provided under Section 103. While so, the re-appreciation of the entire evidence, including the contents of the exhibits, reliance on and wrongful identification of a different property and treating the same to be the suit property actually in dispute to prescribe another view without any substantial question of law, only illustrate the callousness of the High Court in applying the settled principles. Therefore, the High Court erred in setting aside the judgment and decree of the First Appellate Court. "
28. Counsel for appellant could not point out any perversity in the concurrent findings of fact recorded by both the Courts below.
29. No other argument was advanced by counsel for appellant.Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM
NEUTRAL CITATION NO. 2025:MPHC-GWL:29643 24 SA-192-2008 Accordingly, both the substantial questions of law, which had been framed in the present appeal, are answered in the negative. Thus, it is held that all the legal representatives of Sardarmal have equal share and the appellants are not the exclusive owners.
30. Consequently, judgment and decree dated 30/11/2007 passed by Additional District Judge, Sironj, District Vidisha, in Civil Appeal No. 21- A/2006, as well as judgment and decree dated 09/05/2006 passed by Civil Judge, Class-I, Sironj, District Vidisha, in Civil Suit No. 6-A/2004, are hereby affirmed.
31. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA) JUDGE AKS Signature Not Verified Signed by: ALOK KUMAR Signing time: 20-11-2025 05:24:28 PM