Himachal Pradesh High Court
Reserved On: 06.03.2026 vs Of on 9 April, 2026
2026:HHC:11128
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 105 of 2012
Reserved on: 06.03.2026
.
Date of Decision: 09.04.2026
Shiv Dayal & Anr ...Appellants.
Versus
of
Kanshi Ram & Anr. ...Respondents.
rt
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 Yes
For the Appellants : Mr R.K. Bawa, Senior Advocate,
with Mr Abhinav Thakur,
Advocate.
For the Respondents : Mr Bhupinder Gupta, Senior
Advocate, with Mr Harshit
Sharma, Advocate.
Rakesh Kainthla, Judge
The present appeal is directed against the judgment
dated 10.01.2012 passed by the learned Additional District Judge
(Fast Track Court), Mandi, District Mandi, H.P. (learned
Appellate Court) vide which the judgment and decree dated
30.11.2010 passed by learned Civil Judge (Junior Division)
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Chachiot at Gohar, Mandi, District Mandi, H.P. (learned Trial
Court) were set aside. (Parties shall hereinafter be referred to in the
.
same manner as they were arrayed before the learned Trial Court
for convenience.
2. Briefly stated, the facts giving rise to the present
of
appeal are that the plaintiffs filed a civil suit before the learned
Trial Court seeking a declaration that the Wills dated 20.03.2007
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and 11.04.2007 stated to have been executed by Dharam Chand
were null and void, which had no binding effect upon the
plaintiffs’ rights. A decree for possession was also sought in case
the defendants succeeded in forcibly dispossessing the
plaintiffs. A consequential relief of permanent prohibitory
injunction for restraining the defendants from interfering in the
suit land described in para 1 of the plaint was also sought.
3. It was asserted that the suit land was owned and
possessed by Dharam Chand, who was the plaintiffs’ cousin.
Purshottam, plaintiffs’ father, and Moti Ram, father of the
deceased Dharam Chand, were real brothers. The plaintiffs used
to look after Dharam Chand and supply him with all the
necessities of life. The defendants propounded two Wills dated
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20.03.2007 and 11.04.2007, stated to have been executed by
Dharam Chand in their favour. The plaintiffs, being a relative of
.
Dharam Chand, were entitled to inherit the suit land. The
plaintiffs are in possession of the suit land, and the defendants
threatened to interfere with his possession based on the Will.
Hence, the suit was filed to seek the relief mentioned above.
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4. The suit was opposed by filing a written statement
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admitting that Dharam Chand was the owner of the suit land.
The remaining contents of the plaint were denied on the merits.
It was asserted that Dharam Chand had executed two wills on
20.03.2007 and 11.04.2007 in the defendants’ favour voluntarily
in his free, sound and disposing state of mind in consideration
of the services provided by the defendants to him. The Will dated
20.03.2007 had a mistake in it, and Dharam Chand executed a
Will on 11.04.2007. The defendants remained in possession of
the suit land. Dharam Chand had also filed an application before
Tehsildar Thunag for taking action against the plaintiffs and
their family members regarding the unlawful interference with
his land. The suit was filed without any basis. Hence, it was
prayed that it be dismissed.
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5. No replication was filed.
6. The learned Trial Court framed the following issues
.
on 11.11.2008: –
1. Whether Dharam Chand was a relative of the
plaintiffs, being the son of their uncle Moti Ram, as
alleged? OPP.
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2. Whether Dharam Chand was looked after during his
life time by the plaintiffs, as alleged? OPP.
3. Whether the suit property was ancestral in nature?
4.
OPP.
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Whether the Wills dated 20.03.2007 and 11.04.2007
are a result of fraud, coercion, undue influence and
misrepresentation and are liable to be declared null
and void, as alleged? OPP.
5. Whether the plaintiff is also entitled to the relief of a
permanent prohibitory injunction as prayed for? OPP.
6. Whether the plaintiff in the alternative is entitled to
the relief of possession, as prayed for? OPP
7. Whether the Wills dated 20.03.2007 and 11.04.2007
were voluntarily executed got registered by Dharam
Chand of his free will and consent and out of love and
affection to the defendants? OPD
8. Whether the plaintiff has no cause of action and locus
standi to file the present suit? OPD
9. Whether the present suit has not been properly
valued for the purpose of court fees and jurisdiction?
OPD
10. Relief.
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7. The parties were called upon to produce the evidence,
and the plaintiff examined Ramesh Kumar (PW1) and Prem
.
Singh (PW2). The defendants examined Shobha Ram (DW1),
Satish Kumar (DW2), Jai Ram (DW3), Shiv Dayal (DW4), Daulat
Ram (DW5), and Hari Singh (DW6). Plaintiff examined Brij Lal
(RPW1) and Rajender Kumar (RPW2) in rebuttal.
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8. The learned Trial Court held that the execution and
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attestation of the Will were duly proved. The explanation
provided by the defendants that the second Will was executed to
rectify the clerical mistake in the first was acceptable. The
suspicious circumstances pointed out by the plaintiffs were duly
explained. The plaintiffs’ plea that they were in possession of
the suit land was also not established on the balance of
probability. Hence, the learned Trial Court answered issues Nos 1
and 7 in the affirmative, issue Nos. 2, 4, 5, & 6 in the negative,
issue No.3 partly in the affirmative and issue Nos. 8 and 9 as not
pressed, and dismissed the suit.
9. Being aggrieved by the judgment and decree passed
by the learned Trial Court, the plaintiffs filed an appeal, which
was decided by the learned Additional District Judge (Fast Track
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Court), Mandi, District Mandi, H.P. (learned Appellate Court).
Learned Appellate Court held that the conclusion of the learned
.
Trial Court regarding the due execution of the Will was not
sustainable. Satish Kumar (DW2), the scribe, Daulat Ram (DW5),
the marginal witness or Hari Singh (DW6), the identifier, did not
say that the witnesses to the Will had put their signatures in the
of
presence of Dharam Chand. Shiv Dayal (DW4) and Ganga Devi
(beneficiaries to the Will) were present at the time of the
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execution of the Will. They had also put their signatures on the
Will. No reason for excluding the natural heirs was assigned.
Mere registration of the Will does not make it valid. The
defendants had failed to remove the suspicious circumstances
surrounding the execution of the Will. Therefore, the judgment
and decree passed by the learned Trial Court were set aside, and
the suit was ordered to be decreed.
10. Being aggrieved by the judgment and decree passed
by the learned Appellate Court, the defendants/appellants have
filed the present appeal, which was admitted on the following
substantial questions of law on 12.06.2012: –
1. Whether the mere presence of the beneficiary at the
time of execution of the Will can be a ground to doubt::: Downloaded on – 09/04/2026 20:35:00 :::CIS
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2026:HHC:11128the testamentary capacity of the testatrix and
genuineness of the Will?
2. Whether the learned lower Appellate Court erred in
.
holding that the Will was shrouded by the suspicious
circumstances, which suspicion was neither real,
germane or valid and, in fact, was fantasy of
doubting mind?
11. I have heard Mr R.K. Bawa, learned Senior Counsel,
of
assisted by Mr Abhinav Thakur, Advocate, for the appellants and
Mr Bhupinder Gupta, learned Senior Counsel, assisted by Mr
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Harshit Sharma, learned counsel for the respondents.
12. Mr R.K. Bawa, learned Senior counsel for the
appellants/defendants, submitted that the learned Appellate
Court erred in holding that due execution and attestation of the
Will were not proved. It is evident from the holistic readings of
the statements that the testator had put his signature on the
Will first, and thereafter, the attesting witnesses had put their
signatures. The mere presence of the beneficiary at the time of
the execution of the Will is not sufficient to invalidate it. Hence,
he prayed that the present appeal be allowed and the judgment
and order passed by the learned Appellate Court be set aside. He
relied upon Shashi Kumar Banerjee and others vs. Subodh Kumar
Banerjee, deceased, and after him his legal representatives and
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others 1963 SCC Online SC 114, Smt. Sushila Devi vs. Pandit Krishna
Kumar Missir and others 1971(3) SCC 146, Pushpavathi and others
.
vs. Chandraraja Kadamba and others (1973) 3 SCC 291, Rabindra
Nath Mukherjee and another vs. Panchanan Banerjee (dead) by
LRs and others. (1995) 4 SCC 459, Union of India and another vs.
S.S. Ranade (1995) 4 SCC 462, Ramabai Padmakar Patil (dead)
of
through LRs and others vs. Rukminibai Vishnu Vekhande and
others (2003) 8 SCC 537, Uma Devi Nambiar and others vs. T.C.
rt
Sidhan (dead) (2004) 2 SCC 321, Pentakota Satyanarayana and
others vs. Pentakota Seetharatnam and others (2005) 8 SCC 67,
Gurdev Kaur and others vs. Kaki and others (2007) 1 SCC 546, Jasbir
Singh v. Punjab & Sind Bank and others (2007) 1 SCC 566, Savithri
and others vs. Karthyayani Amma and others (2007) 11 SCC 621,
Mahesh Kumar (Dead) by LRs vs. Vinod Kumar and others (2012) 4
SCC 387, Leela Rajagopal and others vs. Kamala Menon Cocharan
and others (2014) 15 SCC 570, Ved Mitra Verma vs. Dharam Deo
Verma (2014) 15 SCC 578, Meena Pradhan and others vs. Kamla
Pradhan and Anr 2023INSC847, Smt. Kalo (since deceased) through
legal heirs Smt. Meera Devi and others vs. General Public and others
decided on 06.11.2019, Shakuntla Devi vs. Savitri Devi, AIR 1997 HP
43, Smt. Bhanumat Chouhan vs. Chetan Singh and others, AIR 1997
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HP 48, Pentakota Satyanarayana and others vs. Pentakota
Seetharatnam and others, AIR 2005 SC 4362, Bhikha Ram & Anr.
.
vs. Govind Ram & Ors. RSA No. 582 of 2004, decided on 22.03.2006,
United India Insurance Co. Ltd vs. Tilak Singh and Ors Civil Appeal
No. 2291 of 2000, decided on 04.04.2006, Gun Parkash and another
vs. Bhola Nath, AIR 1997 HP 27, Sukhjinder Kaur vs. Jaswant Singh,
of
AIR 1997 SC 3821 and Gurdial Singh vs. Rattan Kaur AIR 1996
Punjab and Haryana 265 in support of his submission.
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13. Mr Bhupinder Gupta, learned Senior Advocate for th
respondents, submitted that the propounder of the Will is
required to prove due execution and attestation of the Will by
examining the witnesses to establish that the testator had
signed the Will in the presence of the witnesses and the
witnesses had also signed the Will in the presence of the
testator. Such evidence was lacking in the present case. The
active participation by the beneficiary is a suspicious
circumstance and the learned Appellate Court was justified in
discarding the Will because of the suspicious circumstances
surrounding the execution of the Will. The learned Appellate
Court had taken a reasonable view while appreciating the
evidence, and this Court should not interfere with the findings
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of fact recorded by the learned Appellate Court while deciding
the Regular Second Appeal. Hence, he prayed that the present
.
appeal be dismissed. He relied upon Murthy & others vs. C.
Saradambal & others (2022) 3 SCC 209, Bharpur Singh & others vs.
Shamsher Singh (2009) 3 SCC 687, Shivakumar & others vs.
Sharanabasappa & others (2021) 11 SCC 277, Raj Kumari & others
of
vs. Surinder Pal Sharma (2021) 14 SCC 500, Mona Devi vs. Amba
Dutt Sharma & Anr. Latest HLJ 2013 (HP) 1142, Savithri & others vs.
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Karthyayani Amma & others (2007) 11 SCC 621 and Bal Krishan &
another vs. Shangri Devi & others, Latest HLJ 2008 (HP) 799, in
support of his submissions.
14. I have given considerable thought to the submissions
made at the bar and have gone through the records carefully.
Substantial Question of Law No.1:
15. Learned Appellate Court held that the beneficiaries
were present at the time of the execution of the Will, and that
was a suspicious circumstance. This finding cannot be
sustained. It was laid down by the Punjab & Haryana High Court
in Tirath Singh Versus Sajjan Singh 1997 (2) Civil Court Cases 299
(P&H) that the mere fact that the beneficiary accompanied the
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testator from the village and was present when the Will was
being scribed is no ground to make the execution of the Will
.
suspicious. It was held:
“Kartar Singh (D.W.3) also stated in his cross-
examination that when they started from the village, he,
Tirath Singh, Ralla, Harbhajan Singh, and Karnail Singh
were together. According to the learned counsel for theof
respondent, it clearly goes to show that Tirath Singh and
Karnail Singh appellants, had taken an active part in
getting the Will executed from Ralla in their favour. There
is no substance in this contention. It was not elicited from
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Gobind Parshad (D.W.2) and Kartar Singh (D.W.3) as to
how and in what manner Tirath Singh and Karnail Singhhad taken an active part in the execution of the Will, or
that Ralla was influenced by them to execute that Will in
their favour. The mere fact that at the time of scribing the
Will, they were present or that they had accompaniedRalla from the village to the Court compound where the
Will was scribed, is not sufficient to draw an inference
that they had exercised any undue influence on Ralla and,under the influence, Ralla had executed the Will in their
favour.”
16. This Court also held in Leela v. Drumti Devi, 2000 SCC
OnLine HP 20 = AIR 2000 HP 7 that the mere presence of the
beneficiary or his accompanying the testator will not establish
the exercise of undue influence in the execution of the Will. It
was held:
“Otherwise, also, the presence of the beneficiary or such
beneficiary accompanying the testator for the execution
of a Will would not show that undue influence was
exercised by the beneficiary in the execution of the Will.
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The Will was registered on the same day, and the
endorsement of the Sub-Registrar shows that the
contents of the Will were read over and explained to Shri.
Dilu by the Sub-Registrar, who admitted the contents to
be correct. It is now well settled that the mere presence of
the beneficiary or their accompanying the testator would
not show the exercise of undue influence in the executionof the Will (See Tirath Singh v. Sajjan Singh (Died) through
his LRs. 1998 (1) SLJ 232). In Gun Parkash v. Bhola Nath, AIR
1997 Him Pra 27, the Will was scribed in the presence ofof
family members of the beneficiary. The testator was an
old lady, and her natural heirs were deprived by her. In
this context, it was observed :
“No doubt, the presence of the family members of
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the defendants has been stated to be there by the
plaintiff’s witnesses, but that by itself will notmake the Will suspicious unless something more
than that is established. The Will in question in the
instant case is registered, and the deceased was
identified by an Advocate before the Sub-Registrar.
Simply because the testator was an old lady and
natural heirs have been deprived by her is not by
itself a suspicious circumstance to discard thesame…….”
23. It may be remembered that deceased testator Shri Dilu
was living at the relevant time with defendant No. 1, and
there is nothing unnatural in the defendant, the
beneficiary, being present at the time of execution of the
Will.
17. Similarly, it was held in Kartar Chand Versus Mathura
Dass 2004 Latest HLJ 105 that the mere fact that the beneficiary
was accompanying the testatrix, who was at an advanced age, is
not a suspicious circumstance. It was held:
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“10. This Court in Smt. Leela alias Bali Devi (supra), relying
upon Tirath Singh and others v. Sajjan Singh (Died) through
his L.Rs. and others, 1998(1) S.LJ. 232 and Gun Parkash and.
another v. Bhola Nath, AIR 1997 H.P 27, held that the fact
that the beneficiary accompanied the testator for the
execution of a Will would not show that undue influence
was exercised by the beneficiary in the execution of the
Will. The presence of the family members of the
beneficiary in itself will not make the Will suspicious
unless something more than that is established. Simply
of
because the testatrix was an old lady, suffering from
tuberculosis, and the fact that her natural heirs were
deprived in itself will not be a suspicious circumstance to
discard the Will.”
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18. Hon’ble Supreme Court also held in Sridevi v. Jayaraja
Shetty, (2005) 2 SCC 784: 2005 SCC OnLine SC 186 that mere
presence at the time of the execution of the Will does not show
the active participation by the beneficiary. It was observed at
page 791:
“16. Counsel for the appellants argued that Respondent 13
had taken a prominent part in the execution of the Will,
as he was present in the house at the time of the allegedexecution of the Will. We do not find any merit in this
submission. Apart from establishing his presence in the
house, no other part is attributed to Respondent 13
regarding the execution of the Will. Mere presence in the
house would not prove that he had taken a prominent
part in the execution of the Will. Moreover, both attesting
witnesses have also stated that the daughters were also
present in the house at the time of execution of the Will.
The attesting witnesses were not questioned regarding
the presence of the daughters at the time of the execution
of the Will in the cross-examination. The presence of the
daughters in the house at the time of execution of the Will::: Downloaded on – 09/04/2026 20:35:00 :::CIS
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2026:HHC:11128itself dispels any doubt about the so-called role which
Respondent 13 had played in the execution of the Will.
They have not even stepped into the witness box to say as.
to what sort of role was played by Respondent 13 in the
execution of the Will.”
19. In the present case, nobody deposed that the
beneficiary had prevailed over the testator. Satish Kumar (DW2)
stated in his cross-examination that Shiv Dayal (DW4) and
of
Ganga Devi were sitting beside him. He voluntarily stated that
all the persons were sitting with him at the time of writing the
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Will. Thus, it cannot be said that there was any active
participation, and the learned Appellate Court erred in holding
that the mere presence of the beneficiary at the time of the
execution of the Will was sufficient to invalidate it. In Bal
Krishan (supra), the propounder had taken an active
participation in the execution of the Will, and the cited
judgment does not apply to the facts of the present case. Hence,
the substantial question of law No.1 is answered accordingly.
Substantial Questions of Law No.2: –
20. The law relating to the execution of the Will was
explained by the Hon’ble Supreme Court in Meena Pradhan v.
Kamla Pradhan, (2023) 9 SCC 734: (2023) 4 SCC (Civ) 449 as
under:
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“10.1. The court has to consider two aspects: firstly,
that the will is executed by the testator, and secondly,
that it was the last will executed by him.
.
10.2. It is not required to be proved with mathematical
accuracy, but the test of satisfaction of the prudent
mind has to be applied.
10.3. A will is required to fulfil all the formalities
required under Section 63 of the Succession Act, that is
to say:
of
(a) 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 the said
signature or affixation shall show that it was
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intended to give effect to the writing as a will;
(b) It is mandatory to get it attested by two or more
witnesses, though no particular form of attestation
is necessary;
(c) Each of the attesting witnesses must have 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 hasreceived from the testator a personal
acknowledgement of such signatures;
(d) Each of the attesting witnesses shall sign the
will in the presence of the testator; however, the
presence of all witnesses at the same time is notrequired.
10.4. For the purpose of proving the execution of the
will, at least one of the attesting witnesses, who is
alive, subject to the process of court, and capable of
giving evidence, shall be examined;
10.5. The attesting witness should speak not only about
the testator’s signatures but also that each of the
witnesses had signed the will in the presence of the
testator;
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10.6. If one attesting witness can prove the execution
of the will, the examination of other attesting
witnesses can be dispensed with;
.
10.7. Where one attesting witness examined to prove
the will fails to prove its due execution, then the other
available attesting witness has to be called to
supplement his evidence;
10.8. Whenever there exists any suspicion as to the
execution of the will, it is the responsibility of the
propounder to remove all legitimate suspicions before
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it can be accepted as the testator’s last will. In such
cases, the initial onus on the propounder becomes
heavier;
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10.9. The test of judicial conscience has evolved for
dealing with those cases where the execution of the
will is surrounded by suspicious circumstances. It
requires consideration of factors such as awareness of
the testator as to the content as well as the
consequences, nature and effect of the dispositions in
the will; a sound, certain and disposing state of mind
and memory of the testator at the time of execution;
the testator executed the will while acting on his own
free will;
10.10. One who alleges fraud, fabrication, undue
influence, etc., has to prove the same. However, even
in the absence of such allegations, if there are
circumstances giving rise to doubt, then it becomes
the duty of the propounder to dispel such suspicious
circumstances by giving a cogent and convincing
explanation.
10.11. Suspicious circumstances must be “real,
germane and valid” and not merely “the fantasy of the
doubting mind [Shivakumar v. Sharanabasappa
[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ]”.
Whether a particular feature would qualify as
“suspicious” would depend on the facts and
circumstances of each case. Any circumstance raising
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suspicion, legitimate in nature, would qualify as a
suspicious circumstance, for example, a shaky
signature, a feeble mind, an unfair and unjust
.
disposition of property, the propounder himself taking
a leading part in the making of the will under which he
receives a substantial benefit, etc.”
21. This position was reiterated in Gurdial Singh v.
Jagir Kaur, 2025 SCC OnLine SC 1466, wherein it was
of
observed:
“11. A Will has to be proved like any other document
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subject to the requirements of Section 63 of the Indian
Succession Act, 1925 and Section 68 of the IndianEvidence Act, 1872, that is, examination of at least one of
the attesting witnesses. However, unlike other
documents, when a Will is propounded, its maker is no
longer in the land of the living. This casts a solemn dutyon the Court to ascertain whether the Will propounded
had been duly proved. Onus lies on the propounder not
only to prove due execution but to dispel from the mind ofthe court all suspicious circumstances which cast doubt
on the free disposing mind of the testator. Only when thepropounder dispels the suspicious circumstances and
satisfies the conscience of the court that the testator had
duly executed the Will out of his free volition withoutcoercion or undue influence, would the Will be accepted
as genuine. In Smt. Jaswant Kaur v. Smt. Amrit Kaur (1977)
1 SCC 369, this Court, referring to H. Venkatachala Iyengar
v. B.N. Thimmajamma 1959 Supp (1) SCR 426, enumerated
the principles relating to proof of Will:–
“10. ***** **** **** ****
“1. Stated generally, a will has to be proved like
any other document, the test to be applied being
the usual test of the satisfaction of the prudent
mind in such matters. As in the case of proof of::: Downloaded on – 09/04/2026 20:35:00 :::CIS
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2026:HHC:11128other documents, so in the case of proof of wills,
one cannot insist on proof with mathematical
certainty.
.
2. Since Section 63 of the Succession Act requires
a will to be attested, it cannot be used as
evidence until, as required by Section 68 of the
Evidence Act, one attesting witness at least hasbeen called for the purpose of proving its
execution, if there be an attesting witness alive,
and subject to the process of the court andof
capable of giving evidence.
3. Unlike other documents, the will speaks from
the death of the testator, and therefore, the
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maker of the will is never available for deposing
as to the circumstances in which the will came to
be executed. This aspect introduces an elementof solemnity in the decision of the question
whether the document propounded is proved to
be the last will and testament of the testator.
Normally, the onus which lies on the
propounder can be taken to be discharged on
proof of the essential facts which go into themaking of the will.
4. Cases in which the execution of the will is
surrounded by suspicious circumstances stand
on a different footing. A shaky signature, a
feeble mind, an unfair and unjust disposition ofproperty, the propounder himself taking a
leading part in the making of the will under
which he receives a substantial benefit and such
other circumstances raise suspicion about the
execution of the will. That suspicion cannot be
removed by the mere assertion of the
propounder that the will bears the signature of
the testator or that the testator was in a sound
and disposing state of mind and memory at the
time when the will was made, or that those like
the wife and children of the testator who would::: Downloaded on – 09/04/2026 20:35:00 :::CIS
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were disinherited because the testator might
have had his own reasons for excluding them.
.
The presence of suspicious circumstances makes
the initial onus heavier and, therefore, in cases
where the circumstances attendant upon the
execution of the will excites the suspicion of thecourt, the propounder must remove all
legitimate suspicions before the document can
be accepted as the last will of the testator.
of
5. It is in connection with wills, the execution of
which is surrounded by suspicious
circumstances, that the test of satisfaction of the
judicial conscience has been evolved. That test
rt emphasises that in determining the question as
to whether an instrument produced before thecourt is the last will of the testator, the court is
called upon to decide a solemn question, and by
reason of suspicious circumstances, the court
has to be satisfied fully that the will has beenvalidly executed by the testator.
6. If a caveator alleges fraud, undue influence,
coercion, etc., in regard to the execution of the
will, such pleas have to be proved by him, buteven in the absence of such pleas, the very
circumstances surrounding the execution of the
will may raise a doubt as to whether the testatorwas acting of his own free will. And then it is a
part of the initial onus of the propounder to
remove all reasonable doubts in the matter.”
The Court further held: —
“9. In cases where the execution of a will is
shrouded in suspicion, its proof ceases to be a
simple lis between the plaintiff and the defendant.
What, generally, is an adversary proceeding
becomes in such cases a matter of the court’s
conscience, and then the true question which arises::: Downloaded on – 09/04/2026 20:35:00 :::CIS
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2026:HHC:11128for consideration is whether the evidence led by the
propounder of the will is such as to satisfy the
conscience of the court that the will was duly.
executed by the testator. It is impossible to reach
such satisfaction unless the party which sets up the
will offers a cogent and convincing explanation of
the suspicious circumstances surrounding themaking of the will.”
12. Similarly, in Ram Piari v. Bhagwant (1993) 3 SCC 364,
this Court held that when suspicious circumstance exists,
of
Courts should not be swayed by the due execution of the
Will alone:
“3. ………………. Unfortunately, none of the courts paid
rt
any attention to these, probably because they were
swayed with due execution even when this Court in
Venkatachaliah case [AIR 1959 SC 443: 1959 Supp (1) SCR426] had held that, proof of signature raises a
presumption about knowledge, but the existence of
suspicious circumstances rebuts it…………….”
13. There is no cavil when suspicious circumstances exist
and have not been repelled to the satisfaction of the
Court, the Court would not be justified in holding that the
Will is genuine since the signatures have been duly
proved and the Will is registered. (AIR 1962 SC 567).
22. A similar view was taken in Savithri (supra), Mona
Devi (supra), Raj Kumari (supra), Shivakumar (supra), Bharpur
Singh (supra), Murthy (supra), Shashi Kumar (supra),
Pushpavathi (supra), Ramabai Padmakar Patil (dead) through
LRs(supra), Pentakota Satyanarayana (supra), Gurdev Kaur
(supra), Mahesh Kumar (Dead) by LRs (supra), Kalo Devi (since
deceased) (surpa), Shakuntla Devi (supra) and Gun Parkash
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2026:HHC:11128
(supra). Therefore, it is not necessary to refer to each judgment
and quote the relevant paragraphs.
.
23. Learned Appellate Court held that the Will was
shrouded in suspicious circumstances. In this regard, it is to be
noticed that the plaintiff had not pleaded the suspicious
of
circumstances. It was laid down by the Hon’ble Delhi High
Court in S. Amarjit Singh v. State, 1998 SCC OnLine Del 398 = AIR
rt
1999 Delhi 33, that the suspicious circumstances have to be
pleaded and proved; those cannot be urged for the first time
before the Appellate court. It was observed: –
“10. I agree with the contention of Mr Mariaputham
that suspicious circumstances ought to have been
pleaded and urged. Those cannot be pleaded or urgedfor the first time before the appellate Court specially
when the foundation of such a suspicious circumstancewas not laid before the Probate Court nor pleaded
otherwise Supreme Court in the case of P.P.K. Gopalan
Nambiar v. Balakrishnan Nambiar reported in 1995 Supp(2) SCC 664 : (AIR 1995 SC 1852) observed that any
suspicious circumstance ought to be urged by the
objector should be pleaded and proved. Without such
pleading and proof, it cannot be taken into
consideration. A similar view was expressed by the
Apex Court in the case of Trojan and Co. Ltd. v. Nagappa
Chettiar reported in 1953 SCR 789: (AIR 1953 SC 235), as
well as in the case of Srivenkataramana Devaru v. State
of Mysore reported in 1958 SCR 895 : (AIR 1958 SC 255 at
p. 263, para 14) where the Apex Court laid down the law
as such :
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2026:HHC:11128
“The object of requiring a party to put forward
his pleas in the pleadings is to enable the
opposite party to controvert them and to adduce.
evidence in support of his case. And it would be
neither legal nor just to refer to evidence
adduced with reference to a matter which was
actually in issue and on the basis of thatevidence, to come to a finding on a matter which
was not in issue, and decide the rights of the
parties on the basis of that finding. We haveof
accordingly declined to entertain this
contention.”
11. In this view of the matter, this Court is not
inclined to entertain such of suspicious circumstances,
rt
which were neither pleaded nor proved before the
probate Court…”
24. Therefore, it was impermissible for the learned
Appellate Court to hold that the Will was shrouded by suspicious
circumstances in the absence of any pleading. Further, the
suspicious circumstances pointed out were the presence of the
beneficiaries at the time of the execution of the Will and the
exclusion of the natural heirs. It has already been found above
that the presence of the beneficiary at the time of the execution
of the Will is not a suspicious circumstance. It was laid down by
the Hon’ble Supreme Court in Rabindra Nath Mukherjee v.
Panchanan Banerjee, (1995) 4 SCC 459, that the exclusion of the
natural heir is not a suspicious circumstance because the whole
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2026:HHC:11128
idea behind executing the Will is to interfere with the natural
line of succession. It was observed at page 461:
.
“4. As to the first circumstance, we would observe that
this should not raise any suspicion, because the whole
idea behind the execution of a will is to interfere with thenormal line of succession. So natural heirs would be
debarred in every case of will; of course, it may be that in
some cases they are fully debarred and in others onlyof
partially….”
25. This position was reiterated in Uma Devi Nambiar v.
T.C. Sidhan, (2004) 2 SCC 321: 2003 SCC OnLine SC 1371, wherein it
rt
was observed at page 333:
“6. A Will is executed to alter the ordinary mode of
succession, and by the very nature of things, it is bound toresult in either reducing or depriving the share of natural
heirs. If a person intends his property to pass to his
natural heirs, there is no necessity at all of executing a
Will…..It has been held that if the propounder succeeds inremoving the suspicious circumstance, the court has to
give effect to the Will, even if the Will might be unnatural
in the sense that it has cut off wholly or in part near
relations. (See Pushpavathi v. Chandraraja Kadamba[(1973) 3 SCC 291: AIR 1972 SC 2492].) In Rabindra Nath
Mukherjee v. Panchanan Banerjee [(1995) 4 SCC 459], it
was observed that the circumstance of deprivation of
natural heirs should not raise any suspicion because the
whole idea behind the execution of the Will is to interfere
with the normal line of succession, and so, natural heirs
would be debarred in every case of a Will. Of course, it
may be that in some cases they are fully debarred and in
some cases partly.”
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2026:HHC:11128
26. Therefore, the Will cannot be said to be suspicious
simply because of the exclusion of the natural heirs.
.
27. Learned Trial Court further held that the due
attestation of the Will was not proved because the witnesses had
not stated that they had signed the Will in the presence of the
of
testator, which was necessary. This finding cannot be sustained.
It was laid down by the Hon’ble Punjab and Haryana High Court
rt
in Gauri v. Munshi Ram, 1955 SCC OnLine Punj 114: ILR (1956) 1
P&H 157 that even if the witness had not specifically deposed
that the testator had put his signatures in the presence of the
witnesses but it is apparent from the circumstances that
witnesses and the testator were present at the same time,
compliance of Section 63(c) of Indian Succession Act was duly
proved. It was observed at page 160:
“On the question of whether the requirements of section
63 of the Indian Succession Act were complied with, Mr
Pandit cited three rulings of this Court, Onkar Pershad v.
Jagdish Pershad, etc. [ 1951 P.L.R. 81.], Gian Chand, etc. v.
Surrinder Kumar, etc. [ 1951 P.L.R. 251.] and Rura Ram v.
Munshi Ram and others [ 1950 P.L.R. 413.]. In all these
cases, the view taken was that if the attesting witness of a
will does not, in explicit terms, say that the testator
signed the will in his presence and that he affixed his
attesting signature in the presence of the testator, then
the evidence of the witness is worthless in so far as the
proof of the will is concerned. This, with great respect to::: Downloaded on – 09/04/2026 20:35:00 :::CIS
25
2026:HHC:11128the Honourable Judges, is a wholly erroneous view. The
law requires that the provisions of section 63 of the
Indian Succession Act should be complied with. This.
compliance can be proved either by means of oral
evidence or in any other manner. Section 63 does not lay
down how the fact of compliance is to be proved. The
question of proof is a wholly different matter. Where awitness comes before the Court and narrates his story,
the Court must satisfy itself what that story proves, and
even if a witness does not in explicit terms say that heof
signed the will in the testator’s presence and that the
testator signed in his presence, the Court may come to the
conclusion that this is what the witness meant. The
question of proof is dealt with in section 3 of the Indian
rt
Evidence Act. A fact may be proved by direct evidence or
by secondary evidence, by oral evidence or bydocumentary evidence or merely by circumstantial
evidence. A witness may, owing to inadvertence, omit to
say that the testator signed in his presence, although this
fact may be clearly discernible from the story which hehas narrated on oath. I am constrained to say, though not
without a great deal of reluctance, that the learned Judges
appear to have confused the factum of compliance withthe provisions of section 63 with the proof of such
factum. I do not think it can be laid down that a witnessmust use certain words before his evidence can be
accepted as proof of a certain fact. The witnesses in the
present case say that the will was drawn up and executedin their presence, and they signed the will as attesting
witnesses. There was no cross-examination to show that
the attestation took place at a different time and place,
and, therefore, it cannot be held that the evidence of the
witnesses does not prove the factum of compliance. The
question of whether a certain fact has or has not been
proved depends not upon the exact words used by a
witness but upon the evidence given by the witnesses as a
whole and the impression this evidence leaves on the
mind of a prudent man. Upon going through the evidence
of these witnesses, I have no doubt whatsoever in my::: Downloaded on – 09/04/2026 20:35:00 :::CIS
26
2026:HHC:11128mind that these witnesses were present when the testator
executed the will, and they attested the will in his
presence. The entire transaction took place at one time.
and place, and there was no question of the witnesses
being absent when the testator signed it or the testator
being absent when the witnesses signed it. The
circumstances clearly indicate that the proceedings lasteda short time and took place in the presence of everyone
concerned.
A recent decision of their Lordships of the Supreme Court
of
places this matter beyond all doubt. It was held in Naresh
Charan v. Paresh Charan [ A.I.R. 1955 S.C. 363.] —
“It cannot be laid down as a matter of law that
rt
because the witnesses did not state in
examination-in-chief that they signed the will in
the presence of the testator, there was no dueattestation. It will depend on the circumstances
elicited in evidence whether the attesting witnesses
signed in the presence of the testator. This is a purequestion of fact depending on the appreciation of
evidence.”
Certain remarks in Williams on Wills, Volume I, page 66,
based upon a number of English decisions, would appear
to go even further, although in point of fact, these
remarks merely amount to this that the due execution of a
will must be proved like any other fact and in some cases,
presumptions may be made where such presumptions
arise in law. Williams observes–
“If a will, on the face of it, appears to be duly
executed, the presumption is in favour of due
execution, applying the principle omnia
praesumuntur rite esse acta. If the witnesses are
entirely ignorant of the details of the execution, the
presumption is the same.”
I would therefore hold that there was full
compliance with the provisions of section 63,
Indian Succession Act.”
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28. It was held in Naresh Charan Das Gupta v. Paresh
Charan Das Gupta, (1954) 2 SCC 800: 1954 SCC OnLine SC 56 that
.
where the testator and the witnesses gathered, they would have
been present till the time the matter was finished. It was
observed at page 807:
of
“13. It was also argued for the appellant that there was no
proof that the will was duly attested as required by
Section 63 of the Indian Succession Act, and that it should
therefore be held to be void. PWs 1 and 2 are the two
rt
attestors, and they stated in examination-in-chief that
the testator signed the will in their presence and that theyattested his signature. They did not add that they signed
the will in the presence of the testator. Now, the
contention is that in the absence of such evidence, it must
be held that there was no due attestation. Both the courtsbelow have held against the appellant on this contention.
The learned Judges of the High Court were of the opinion
that as the execution and attestation took place at one
sitting at the residence of PW 1, where the testator and
the witnesses has assembled by appointment, they must
all of them have been present until the matter was
finished, and as the witnesses were not cross-examined
on the question of attestation, it could properly be
inferred that there was due attestation. It cannot be laid
down as a matter of law that because the witnesses did
not state in examination-in-chief that they signed the
will in the presence of the testator, there was no due
attestation. It will depend on the circumstances elicited in
evidence whether the attesting witnesses signed in the
presence of the testator. This is a pure question of fact,
depending on the appreciation of evidence. The finding of
the court below that the will was duly attested is based on
a consideration of all the materials and must be accepted.
Indeed, it is stated in the judgment of the Additional
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2026:HHC:11128
District Judge that “the fact of due execution and
attestation of the will was not challenged on behalf of the
caveator at the time of the hearing of the suit”. This
.
contention of the appellant must also be rejected.
29. It was held in Dhruba Sahu v. Paramananda Sahu,
1982 SCC OnLine Ori 83: AIR 1983 Ori 24 that omission to state the
fact that the witness had signed in the presence of the executant
of
is not material when both the executant and the witness were
present at the same time, and the transaction had concluded in
rt
one sitting. It was observed:
“7. Section 68 of the Evidence Act provides that if a
document is required by law to be attested, it shall not be
used as evidence until one attesting witness at least has
been called for the purpose of proving its execution ifthere be an attesting witness alive and subject to the
process of the Court and capable of giving evidence. This
Section contains a proviso that it shall not be necessary tocall an attesting witness in proof of the execution of any
document not being a will which has been registered inaccordance with the provisions of the Registration Act,
1908, unless its execution by the person by whom it
purports to have been executed is specifically denied.
Execution of the deed of gift having been specifically
denied, the proviso does not apply to the present case.”
30. In M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490:
(2013) 3 SCC (Civ) 576: 2013 SCC OnLine SC 417, the witness had
not deposed specifically that the testator had put his signature
in the presence of the marginal witnesses. It was contended that
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29
2026:HHC:11128the will was not proved to have been duly executed. Rebutting
this contention, the Hon’ble Supreme Court held at page 503:
.
“24. In the present case, we may note that in Para 21 of
his cross-examination, P. Basavaraje Urs has, in terms,
stated, “Mr Mallaraje Urs and Smt Nagammanni, myselfand one Sampat Iyanger were present while writing the
will”. One Mr Narayanmurti was also present. In Para 22,
he has stated that Narayanmurti had written Ext. 3 (will)of
in his own handwriting continuously. The fact that M.
Mallaraje Urs was present at the time of execution of the
will is not contested by the defendants by putting it to PW
2 that M. Mallaraje Urs was not present when the will was
rt
executed. As held by a Division Bench of the Calcutta High
Court in a matter concerning a will, in para 10 of A.E.G.Carapiet v. A.Y. Derderian [AIR 1961 Cal 359]: (AIR p. 362)
“10. … Wherever the opponent has declined to avail
himself of the opportunity to put his essential andmaterial case in cross-examination, it must follow
that he believed that the testimony given could not be
disputed at all. … It is a rule of essential justice.”
As noted earlier, the will was executed on 24-10-1943 in
the office of Advocate Shri Subha Rao situated at Mysore,
and was registered on the very next day at Mysore. The
fact that the will is signed by Smt Nagammanni in the
presence of PW 2 on 24-10-1943 has been proved, and
that PW 2 signed in her presence has also been proved.
Can the signing of the will by Smt Nagammanni in the
presence of M. Mallaraje Urs and his signing in her
presence as well not be inferred from the above facts on
record? In our view, in the facts of the present case, the
omission on the part of PW 2 to specifically state that the
signature of M. Mallaraje Urs on the will (which he
identified) was placed in the presence of Smt
Nagammani, and that her signature (which he identified)
was also placed in the presence of M. Mallaraje Urs, can be
said to be a facet of not recollecting about the same. This
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2026:HHC:11128
deficiency can be taken care of by looking to the other
evidence of attendant circumstances placed on record,
which is permissible under Section 71 of the Evidence Act.
.
25. The issue of the validity of the will in the present case
will have to be considered in the context of these facts. It
is true that in the case at hand, there is no specific
statement by PW 2 that he had seen the other attesting
witness sign the will in the presence of the testatrix, but
he has stated that the other witness had also signed the
document. He has proved his signature, and on top of it,
of
he has also stated in the cross-examination that the other
witness (Mr Mallaraje Urs), Smt Nagammani, himself and
one Sampat Iyanger and the writer of the will were all
present while writing the will on 24-10-1943, which was
rt
registered on the very next day. This statement, by
implication and inference, will have to be held as proving
the required attestation by the other witness. This
statement, along with the attendant circumstances
placed on record, would certainly constitute proof of the
will by other evidence as permitted by Section 71 of the
Evidence Act.
26. While drawing the appropriate inference in a matter
like this, a court cannot disregard the evidence on the
attendant circumstances brought on record. In this
context, we may profitably refer to the observations of a
Division Bench of the Assam High Court in Mahaluxmi
Bank Ltd. v. Kamakhyalal Goenka [AIR 1958 Ass 56], which
was a case concerning the claim of the appellant Bank for
certain amounts based on the execution of a mortgage
deed. The execution thereof was being disputed by the
respondents, amongst other pleas, by contending that the
same was by a purdahnashin lady, and the same was not
done in the presence of witnesses. Though the evidence of
the plaintiff was not so categorical, looking to the totality
of the evidence on record, the Court held that the
execution of the mortgage had been duly proved. While
arriving at that inference, the Division Bench observed:
(AIR p. 62, para 11)
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31
2026:HHC:11128“11. … It was, therefore, incumbent on the plaintiff to
prove its execution and attestation according to law. It
must be conceded that the witnesses required to prove.
attestation has (sic) not categorically stated that he
and the other attesting witnesses put their signatures
(after having seen the execution of the document) in
the presence of the executants. Nevertheless, the fact
that they actually did so can be easily gathered from
the circumstances disclosed in the evidence. It appears
that the execution and registration of the document all
of
took place at about the same time in the house of the
defendants. The witnesses not only saw the executants
put their signatures on the document, but that they
also saw the document being explained to the lady by
rt
the husband, as well as by the registering officer.
They also saw the executants admit receipt of the
consideration, which was paid in their presence. As all
this happened at the same time, it can be legitimately
inferred that the witnesses also put their signatures in
the presence of the executants after having seen them
sign the instrument. …
… There is no suggestion here that the execution and
attestation was not done at the same sitting. In fact,
the definite evidence here is that the execution and
registration took place at the same time. It is,
therefore, almost certain that the witnesses must have
signed the document in the presence of the
executants.”
27. The approach to be adopted in matters concerning
wills has been elucidated in a decision on a first appeal by
a Division Bench of the Bombay High Court in Vishnu
Ramkrishna v. Nathu Vithal [AIR 1949 Bom 266]. In that
matter, the respondent Nathu was the beneficiary of the
will. The appellant filed a suit claiming possession of the
property, which was bequeathed in favour of Nathu by the
testatrix Gangabai. The suit was defended on the basis of
the will, and it came to be dismissed, as the will was held
to be duly proved. In appeal, it was submitted that the
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2026:HHC:11128
dismissal of the suit was erroneous because the will was
not proved to have been executed in the manner in which
it is required to be under Section 63 of the Succession Act.
.
The High Court was of the view that if at all there was any
deficiency, it was because of not examining more than
one witness, though it was not convinced that the
testatrix Gangabai had not executed the will. The Court
remanded the matter for additional evidence under its
powers under Order 41 Rule 27 CPC. The observations of
Chagla, C.J., sitting in the Division Bench with
of
Gajendragadkar, J. (as he then was in the Bombay High
Court) in para 15 of the judgment are relevant for our
purpose: (AIR pp. 270-71)
“15. … We are dealing with the case of a will, and we
rt
must approach the problem as a court of conscience. It
is for us to be satisfied whether the document put
forward is the last will and testament of Gangabai. If
we find that the wishes of the testatrix are likely to be
defeated or thwarted merely by reason of want of some
technicality, we, as a court of conscience, would not
permit such a thing to happen. We have not heard Mr
Dharap on the other point; but assuming that
Gangabai had a sound and disposing mind and that she
wanted to dispose of her property as she in fact has
done, the mere fact that the propounders of the will
were negligent–and grossly negligent–in not
complying with the requirements of Section 63 and
proving the will as they ought to have, should not
deter us from calling for the necessary evidence in
order to satisfy ourselves whether the will was duly
executed or not.” (emphasis supplied)
31. Therefore, in view of the binding precedents of the
Hon’ble Supreme Court, the totality of the circumstances has to
be seen to determine whether the will was executed in terms of
Section 63(c) of the Indian Succession Act or not and the court is
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2026:HHC:11128
not guided by the words used by the witnesses. If it can be
inferred from the evidence on record that the witnesses and
.
testator were present at one place where the will was written and
signed, it can be inferred that they had signed in the presence of
the testator in the absence of any evidence that the witness or
the testator had left the spot without completing the
of
transaction.
32.
rt
In the present case, Satish Kumar (DW2) stated in his
examination-in-chief that he had read over and explained the
Will to Dharam Chand, who signed it. Hari Singh (DW6), Prem
Singh (PW2) and Daulat Ram were present at the time of the
signatures. Daulat Ram (DW5) stated that the Will was written
by the Document Writer Satish Kumar (DW2) as per the wishes
of the testator in his presence. Dharam Chand put the signatures
in his presence. Lambardar put the signatures as an identifier,
and the witnesses signed the Will. Hari Singh (DW6) stated in his
examination-in-chief that Dharam Chand got the Will written
from the Document Writer, Satish Kumar (DW2), who read over
and explained the Will to Dharam Chand. Dharam Chand
admitted the Will to be correct and put his signature. Thereafter,
he and the witnesses signed, and all of them went to the Sub
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2026:HHC:11128
Registrar. Therefore, the statements of the witnesses show that
the testator, the identifier and the witnesses were present at the
.
time of the execution of the Will. The testator, Dharam Chand,
signed first, and the witnesses put their signatures afterwards.
The transaction had taken place in one sitting, and a mere
discrepancy in the cross-examination will not make the
of
execution and attestation of the Will suspicious.
33.
rt
The plaintiffs examined Brij Lal (RPW1) and Rajender
Kumar (RPW2) to prove that the mental condition of the
deceased was not proper before this death. However, the
plaintiff had never pleaded that the deceased was of an unsound
state of mind. Ramesh Chand (PW1) only stated that Dharam
Chand was ill before his death and never stated anything about
his state of mind. Brij Lal (RPW1) admitted in his cross-
examination that he was related to the plaintiff, and he cannot
be said to be an independent person. He also admitted that he
had met Dharam Chand 2-3 times, and he was talking normally.
He has not given any instance to show that the mental capacity
of Dharam Chand was impaired. He is not an expert, and his
testimony cannot be said to be sufficient to prove that Dharam
Chand was not of a sound disposing state of mind.
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2026:HHC:11128
34. Rajender Kumar (RPW2) only stated that Dharam
Chand was talkative and was not of sound disposing state of
.
mind. Merely because a person was talkative cannot lead to an
inference that he was not in a sound disposing state of mind.
Therefore, these statements were not sufficient to make the
mental capacity of a testator suspect.
of
35. The Will was registered. It was laid down in Gurpal
rt
Singh vs. Darshan Singh 1998 1 SLJ 774 that where the Will was
registered by the testator on the same day, the burden is upon
the other person to show that the deceased was not of a sound
disposing state of mind. It was observed:
“……The Will Ext. D3 is a registered document. From
this, a presumption arises that the testator of a Willwas having a sound disposing mind at the time of
making the Will and it was executed by him,
especially when there is no evidence to show that at
the time of execution of the Will, Phuman Singh wassuffering from any mental ailment…….”
36. A similar view was taken by this Court in Tirath
Singh Versus Sajjan Singh 1988 (1) S.L.J. 232, wherein it was
observed:
“The Will was registered on December 13, 1972. It
carries the endorsement of the Sub-Registrar.
Harbhajan Singh Lambardar and Kartar Singh (DW.3),
attesting witnesses of the Will, were also present at::: Downloaded on – 09/04/2026 20:35:00 :::CIS
36
2026:HHC:11128that time. The Sub-Registrar certified that the Will
was read over to Ralla, who admitted the contents of
it as correct, and then he thumb-marked the same.
.
From this, it has to be presumed that at the time of
registration of the Will, Ralla was having a sound
disposing mind, and it was executed by him while in
his full senses. From the mere fact that the testator ofthe Will, namely Ralla, was of advanced age, “no
presumption can be drawn that he did not having
sound disposing mind. Therefore, the contention inof
that respect is repelled.”
37. It was laid down in Ashok Baury v. State, 2021 SCC
OnLine Del 1248= 2021 (279) DLT 561 that there is a presumption
rt
in favour of sanity and the burden lies on the person who
challenges it to prove that the person was insane. It was
observed:
“8. Soundness of mind, for contracting, is defined in
Section 12 of the Indian Contract Act, 1872 and which inmy view would have application in the matter of
soundness of mind requisite for making a Will as well. Asper the said provision, (i) a person is said to be of sound
mind, if, at the time of the making of the contract, he iscapable of understanding it and of forming a rational
judgment as to its effect upon his interests; (ii) a person
who is usually of unsound mind, but occasionally of
sound mind, may make a contract when he is of sound
mind; and, (iii) a person who is usually of sound mind,
but occasionally of unsound mind, may not make a
contract when he is of unsound mind.
9. As would be obvious from the above, a common thread
is found to run between Section 12 of the Contract Act and
Section 59 of the Indian Succession Act.
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2026:HHC:11128
10. Chapter VII, titled “Of the Burden of Proof”, of Part III
titled “Production and Effect of Evidence”, of the
Evidence Act deals with the issue with which this Court is.
concerned herewith. Per Section 101 thereunder,
whosoever desires any Court to give judgment as to any
legal right or liability dependent on the existence of facts,
which he asserts, must prove that those facts exist. Sincethe propounder of a Will, as per Section 59 of the Indian
Succession Act, is required to prove that the testator at
the time of the making of the Will was of sound mind, theof
burden of proof would be on the propounder. However,
that would be so where none is opposing the Will
propounded, and the Will has to be proved for the
satisfaction of the Court. However when a document
rt
propounded as a Will is contested, what would be
required to be proved is only what is in issue and only ifthe party disputing the document propounded as a Will
disputes/controverts that the testator/testatrix, at the
time of making the Will was of sound mind, would
soundness of mind be in issue and required to be proved.
However, if the soundness of mind is not specifically
denied, then, as per the Rules aforesaid contained in
Order VIII Rule 5 of the CPC, soundness of mind shall bedeemed to have been admitted. In the event of denial of
the soundness of mind, the question as herein arises, onwhom the onus should be, whether on the propounder or
the opposite party, arises.
11. Section 114 under the aforesaid Chapter VII of Part III
of the Evidence Act enables the Court to presume the
existence of any fact which it thinks likely to have
happened, regard being had to the common course of
natural events, human conduct and public and private
business, in their relation to the facts of the case.
12. The common course of natural events and human
conduct is soundness of mind and unsoundness of mind,
an aberration. If a testator/testatrix has led a normal life,
and performed day-to-day functions in the normal
course of human conduct, the presumption under Section::: Downloaded on – 09/04/2026 20:35:00 :::CIS
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2026:HHC:11128114 would be of soundness rather than unsoundness of
mind.”
38. The plaintiffs’ evidence was not sufficient to rebut
.
the presumption of sanity, and the learned Appellate Court erred
in holding that the Will was shrouded by suspicious
circumstances, and the substantial questions of law are
of
answered accordingly.
Final Order:
39.
rt
In view of the above, the present appeal is allowed,
and the judgment and decree passed by the learned First
Appellate Court are ordered to be set aside, and the judgment
and decree passed by the learned Trial Court are ordered to be
restored.
40. The present appeal stands disposed of and so are the
pending miscellaneous application(s) if any.
(Rakesh Kainthla)
Judge
9th April, 2026
(Nikita)
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