Madhya Pradesh High Court
Santosh Jain vs Subhashchandra Goyal on 17 February, 2026
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2026:MPHC-GWL:6195
1 SA-493-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
ON THE 17th OF FEBRUARY, 2026
SECOND APPEAL No. 493 of 2024
SANTOSH JAIN
Versus
SUBHASHCHANDRA GOYAL AND OTHERS
Appearance:
Mr. Dharmendra Dwivedi - Advocate for appellant.
Mr. Yogesh Chaturvedi - Advocate for respondents Nos. 1 and 2.
JUDGMENT
This second appeal under Section 100 of CPC has been filed against
judgment and decree dated 22/11/2023 passed by Fourth District Judge,
Guna in R.C.A. No. 110/2019, as well as judgment and decree dated
31/08/2019 passed by First Civil Judge Class-II, Guna in R.C.S.A. No.
170023/2013.
2. Appellant is the plaintiff who has lost his case from both the Courts
below.
3. The facts necessary for disposal of present appeal, in short, are that
appellant filed a suit for declaration of title and permanent injunction, as well
as for possession, by pleading inter alia that Chhoga Lal Jain was the
grandfather of plaintiff. Chhoga Lal Jain had three sons, namely Nannu Lal
Jain, Gattu Lal Jain and Mishri Lal Jain. Although Nannu Lal Jain was
married but he was not blessed with any child and he was residing in Talaiya
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Mohalla near Chandsi Gali. Nannu Lal Jain had executed a Will in favor of
plaintiff in respect of his property situated in Talaiya Mohalla. Gattu Lal Jain
in pursuance of the decree passed by the Court had purchased the disputed
property by a sale deed dated 04/05/1995 for a consideration amount of Rs.
13,250/-. Gattu Lal Jain was issueless, and therefore, Gattu Lal Jain and his
wife Gulab Bai had love and affection towards the plaintiff. Mother of
plaintiff had expired when he was 25 years of age, and accordingly, plaintiff
had started residing permanently with Gattu Lal Jain and his wife Gulab Bai.
Father of defendants, namely late Mintu Lal Goyal, was in possession of two
rooms situated on the second floor of the house of Gattu Lal Jain in the
capacity of tenant, and thereafter, one shop admeasuring 5 feet x 12 feet was
also let out to Mintu Lal Jain on rent. In 1987, Gattu Lal Jain got another
shop opened for the plaintiff, and in fact, plaintiff was purchasing the
material for both the shops, and he was also looking after the shop of Gattu
Lal Jain. At the time of death of Gattu Lal Jain, Mintu Lal was making
payment of monthly rent of Rs. 500/- for two rooms and Rs. 250/- for the
shop. In the remaining part of building, Gattu Lal Jain was running a
business of cloth. In the year 1993, shop of plaintiff, which was situated in
Hanuman Gali , got burned, and thereafter, plaintiff started sitting in the shop
of Gattu Lal Jain. On 30/01/1995, Gattu Lal Jain expired, and thereafter,
father of defendants started making payment of rent of Rs. 750/- to the father
of plaintiff. Thereafter, in order to look after his father, plaintiff was required
to close down the business of cloth, and accordingly, Mintu Lal took the
shop, in which the business of Gattu Lal Jain was going on, on rent and after
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removing the partition of tin shed enhanced the size of the shop, and
accordingly, started making payment of monthly rent at the rate of Rs.
1,000/- per month to the father of plaintiff. Father of plaintiff died on
14/01/1997, and thereafter, father of defendants, namely Mintu Lal, started
making payment of rent to the plaintiff. Plaintiff had also got married in the
disputed house, and after the marriage, even the wife of plaintiff started
residing with Gulab Bai. On 11/03/1999, Gulab Bai also expired and the last
rites were performed by appellant, and after the death of Gulab Bai, appellant
continued to reside in the part of house which has been shown in green color,
whereas wife of plaintiff was most of the time residing in her parental home
situated in Khurai. After the wife of plaintiff recovered from physical
ailment and daughter of plaintiff started going to school, then for the
purposes of education of his daughter, plaintiff shifted to Chaudhran Colony
near Christ School, Guna. In the year 2001, plaintiff requested the father of
defendants to enhance the rent, then it was informed by father of defendants
that condition of the shop is very poor and there is a leakage from the roof,
and in case if new roof is constructed, then he would enhance the rent. In the
month of December 2001, when plaintiff again demanded the rent from the
father of defendants then he informed that the yearly rent would be Rs.
18,000/- and after adjusting the amount of Rs. 12,000/- towards the grocery
which was purchased by Gulab Bai, remaining rent of Rs. 6,000/- was
outstanding which has been utilized for repairing the roof and walls of the
shop. Accordingly, plaintiff did not dispute the said information. However, it
was submitted that thereafter during his lifetime, father of defendants
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continued to pay rent to plaintiff and he died in the month of January 2009,
and thereafter, defendants started making payment of rent to the plaintiff.
Plaint was further amended to the effect that at the time of filing of suit, the
construction work on the disputed plot was going on and the earth was being
dug for the purposes of construction of basement and during the pendency of
the suit, defendants have raised pillars and have constructed up to the second
floor, and accordingly, it was claimed that plaintiff is suffering a loss of Rs.
5,000/- as he is not in a position to utilize the building in its original form. It
was further pleaded that on 05/09/2012, plaintiff received a registered
envelope from Panna Lal Patel. Panna Lal Patel had sent a Will executed by
Gattu Lal. In the letter, Panna Lal had informed that Gattu Lal had left his
Will with him but he unfortunately forgot the same and now he has
recovered the same from the old papers and since the Will is for the purposes
of plaintiff, therefore, he is sending the same to plaintiff. In the month of
September 2012, when plaintiff went to the office of Municipal Council,
Guna for the purposes of depositing the taxes as well as for mutation, then he
found that defendants had kept the plaintiff in dark by regularly making
payment of rent but they have got the property transferred in their name on
the basis of a forged Will purportedly executed by Gulab Bai. When plaintiff
scolded the defendants, then they started shouting at plaintiff. Thereafter,
defendants also started demolishing rear portion of the building and even two
rooms, which were originally let out to defendants, were also demolished
and possession of plaintiff was also illegally taken. Thus, it was claimed that
it has become necessary for plaintiff to file the suit for declaration of title on
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the ground that property in dispute was the self-acquired property of Gattu
Lal and plaintiff is the legal heir of Gattu Lal. After the death of Gattu Lal,
no mutation was done in favor of his widow Gulab Bai. Plaintiff is the owner
of property in dispute by virtue of Will dated 15/02/1995 executed by Gattu
Lal in his favor, and therefore, documents of defendants are null and void.
The Municipal Council, Guna has also mutated the name of defendants
without there being any probate in favor of defendants, and accordingly, suit
was filed for declaration of title, permanent injunction and possession.
4. Defendants filed their written statement and denied the so-called
Will executed in favor of plaintiff. It was claimed that defendants are the
owners by virtue of Will executed by Gulab Bai. Defendants were never
inducted as tenant nor they had ever paid any rent, but on 18/04/1995, widow
of Gattu Lal Jain had executed a Will in favor of defendants and on the basis
of said Will, names of defendants were recorded in the record of the
Municipal Council. In the year 2010, he obtained a building permission and
only on the basis of said building permission, house has been constructed,
and accordingly, it is prayed that the suit be dismissed.
5. The Trial Court, after framing issues and recording evidence,
dismissed the suit filed by plaintiff by holding that plaintiff has failed to
prove that Will was executed by Gattu Lal in favor of plaintiff.
6. Being aggrieved by judgment and decree passed by the Trial Court,
appellant preferred an appeal, which too has been dismissed by impugned
judgment and decree dated 22/11/2023, passed by Fourth District Judge,
Guna in R.C.A. No. 110/2019.
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7. Challenging the judgments and decrees passed by the Courts below,
it is submitted by counsel for appellant that appellant has duly proved that
the Will was executed by Gattu Lal Jain in his favor, and accordingly,
submitted that the Courts below committed a material illegality by
dismissing the suit as well as appeal. Accordingly, appellant has proposed the
following substantial questions of law:
“(i) Whether the judgments and decrees passed by both the courts
below suffer from perversity of findings,
misreading of evidence and wrongapplication of law?
(ii) Whether the learned trial court is justified in not admitting the
documentary evidence produced by the appellant?
(iii) Whether both the learned courts below arejustified in disbelieving
plaintiff evidence without proper application of law?
(iv) Whether the learned trial court is justified in ignoring the fact that
respondents have not proved the execution of Will in their favor?
(v) Whether Late Gulab Bai had any right to execute the Will only on
the basis of expectation of succession of the property in dispute?
(vi) Whether Late Gulab Bai had anyright to execute the Will when
there was already a Will executed by her husbandin favour of
appellant?
(vii) Any other substantial question of law which may be deemedfit by
this Hon’ble Court.”
8. Heard learned counsel for parties.
9. It is well established principle of law that party propounding a Will
or otherwise making a claim under a Will is under obligation to prove the
document. Unlike other documents, Will is a document which speaks from
the death of testator and the testator, who has already migrated to the other
world cannot appear and depose as to whether he has executed such
document or not? The propounder is required to show by satisfactory
evidence that Will was signed by testator, that testator at the relevant time
was in a sound and disposing state of mind, that he understood the nature
and effect of dispositions and had put his signature on the document of his
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own volition. Furthermore, if the Will is surrounded by suspicious
circumstances, then burden is on the propounder of the Will not only to
prove the document but to remove all the suspicious circumstances.
10. 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 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.
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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
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
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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 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.
**** **** ****
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 twoSignature Not Verified
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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
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
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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. 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
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similar cases referred to in the argument.”
11. 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 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.
12. 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.
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13. 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 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
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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.”
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.
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(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.
***
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.
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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 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.”
14. 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
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representatives and others, reported in (2021) 16 SCC 543 .
15. 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.
16. The Supreme Court in the case of Niranjan Umeshchandra Joshi
v. Mrudula Jyoti Rao and others , reported in (2006) 13 SCC 433 , has held
that mere proof that testator had signed the Will is not enough. It has also to
be proved that testator has signed out of his free will having a sound
disposition of mind and not a feeble and debilitated mind, understanding well
the nature and effect thereof. The Court will also not refuse to probe deeper
in the matter merely because propounder’s signature on the Will is proved.
Similar law has been laid down by Supreme Court in the cases of Savithri
and others v. Karthyayani Amma and others, reported in (2007) 11 SCC 621 ,
Balathandayutham and another v. Ezhilarasan , reported in (2010) 5 SCC
770 , Pentakota Satyanarayana and others v. Pentakota Seetharatnam and
others, reported in (2005) 8 SCC 67 and Meenakshiammal (Dead) through
legal representatives and others v. Chandrasekaran and another , reported in
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(2005) 1 SCC 280 .
17. The Supreme Court in the case of Leela and Others v.
Muruganantham and Others, reported in (2025) 4 SCC 289 , has held as
under:
“22. There can be no doubt with respect to the manner in which execution
of a will is to be proved. In the light of plethora of decisions including the
decisions in Moturu Nalini Kanth v. Gainedi Kaliprasad [Moturu Nalini
Kanth v. Gainedi Kaliprasad, (2024) 16 SCC 78 : 2023 SCC OnLine SC
1488 : 2023 INSC 1004] and in Derek A.C. Lobo case [Derek A.C. Lobo
v. Ulric M.A. Lobo, (2024) 15 SCC 202 : 2023 SCC OnLine SC 1893 :
2023 INSC 1093] this position is well settled that mere registration of a
will would not attach to it a stamp of validity and it must still be proved in
terms of the legal mandates under the provisions of Section 63 of the
Succession Act and Section 68 of the Evidence Act. It is not the case of
the appellant that the will dated 6-4-1990 is a registered one.
23. Now, Section 63 of the Succession Act reads thus:
“63. Execution of unprivileged wills.–Every testator, not being a
soldier employed in an expedition or engaged in actual warfare, [or
an airman so employed or engaged], or a mariner at sea, shall
execute his will according to the following rules–
(a) The testator shall sign or shall affix his mark to the will,
or it shall be signed by some other person in his presence and
by his direction.
(b) The signature or mark of the testator, or the signature of
the person signing for him, shall be so placed that it shall
appear that it was intended thereby to give effect to the writing
as a will.
(c) The will shall be attested by two or more witnesses, each
of whom has seen the testator sign or affix his mark to the will
or has seen some other person sign the will, in the presence
and by the direction of the testator, or has received from the
testator a personal acknowledgment of his signature or mark,
or of the signature of such other person; and each of the
witnesses shall sign the will in the presence of the testator, but
it shall not be necessary that more than one witness be present
at the same time, and no particular form of attestation shall be
necessary.”
24. Section 68 of the Evidence Act makes it clear that at least one attesting
witness has to be examined to prove execution of a will. It is true that in
the case at hand DW 2 was the attesting witness who was examined in
Court. Therefore, the question is whether they had deposed to the effect
that the will in question was executed in accordance with sub-rules (a) to
(c) thereunder.
25. The trial court rightly held that the propounder of the will has to
establish by satisfactory evidence that the will was signed by the testator,
that the testator at the relevant time was in a sound disposing state of mind
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and that he understood the nature and effect of the dispositions and put his
signature out of his own free will.”
18. Thus, it is clear that in order to prove the genuineness of the Will
and to remove all the suspicious circumstances, the Will has to be proved in
accordance with the provisions of Sections 63 and 68 of the Indian
Succession Act coupled with the fact that the testator was of sound mind as
well as he was hale and hearty and he had executed the Will out of his own
volition without any coercion or pressure.
19. The Will in question, which has been relied upon by plaintiff, is
Exhibit P/7. This Will is a typed Will and is an unregistered and unnotarized
Will. This Will is executed on plain paper. According to this Will, Ram
Sevak and Khalid Ali were the attesting witnesses. Plaintiff has examined
Ram Sevak and Khalid Ali as PW-3 and PW-4, respectively. Both the
witnesses have stated that on 15/02/1994, they were going to the house of
Khalid Ali as there was some function in his house. On the way, they saw
that Gattu Lal was sitting with a typist. The witnesses inquired from Gattu
Lal as to what matter he is getting typed, then he informed that he is
executing a Will in favor of plaintiff. He also informed that he is now 75
years old and he has no idea about length of his life. He also informed that
since the mother of plaintiff had expired, therefore, he has started residing
with him. Accordingly, he also treats the plaintiff as his son, and even
otherwise, there is no difference between a nephew and a son. Accordingly,
these witnesses asked Gattu Lal that he may get the Will executed and in
case if any help is required then he may inform them. Then it was informed
by Gattu Lal that his Will is ready and he would sign the Will in the presence
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of witnesses and the witnesses should also sign the Will in his presence, and
accordingly, Gattu Lal, after reading the front and reverse side of the Will,
put his signatures, thereafter witnesses signed on the Will and went to the
house of Khalid Ali.
20. From the evidence of Ram Sevak (PW-3), it is clear that he has not
stated about the mental condition of Gattu Lal. This witness further stated
that they cannot identify the typist and even if said typist comes in front of
them, even then they cannot identify him. This witness further stated that
Will was signed in the shop of the typist, whereas Khalid Ali (PW-4) has
stated that the Will was not signed in any shop but was signed in the
premises of the Tehsil office. Even this witness has stated that he cannot
identify the typist but claimed that the typist was an old person. This witness
has also not stated that Gattu Lal was in a fit state of mind. He further stated
that when he reached on the spot, the Will was already typed.
21. Ramu Dhakad (PW-2) has stated that his father’s name was Panna
Lal and he used to stay in the house of Gattu Lal for one or two days.
Sometimes Gattu Lal also used to visit his house. Gattu Lal had given one
paper to his father. His father had sent the said paper to plaintiff by post. He
further claimed that letter Exhibit P/8 contains the signature of his father
Panna Lal. In cross-examination, he admitted that letter Exhibit P/8 was not
written by him. However, he also could not explain that who had written it,
and stated that his father might be knowing about that. This witness was also
unable to say as to whether letter Exhibit P/8 is in the handwriting of his
father or not. However, he admitted that he can identify the handwriting of
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his father. In paragraph 4 of his cross-examination, he further admitted that
letter Exhibit P/8 and envelope Exhibit P/9 are not in the handwriting of his
father. Thus, it is clear that Ramu Dhakad (PW-2) has clearly stated that
letter Exhibit P/8, by which it is alleged that Panna Lal had sent the Will to
plaintiff, is not in the handwriting of Panna Lal. Therefore, contention of
plaintiff that on one day he received a copy of Will along with a letter of
Panna Lal could not be proved by plaintiff as the letter Exhibit P/8 and
envelope Exhibit P/9 are not in the handwriting of Panna Lal.
22. This Court has already held that both the attesting witnesses could
not prove that Gattu Lal had executed a Will in favor of plaintiff out of his
own volition and without any coercion or pressure or at the time of execution
of Will, Gattu Lal was in a fit state of mind.
23. Since the source of receipt of Will as claimed by plaintiff could not
be proved by him coupled with the fact that plaintiff has failed to remove all
the suspicious circumstances, which are attached to Will Exhibit P/7 as well
as in view of the fact that this Court in exercise of power under Section 100
of CPC cannot interfere with concurrent findings of fact unless and until they
are shown to be perverse and in the present case no perversity could be
pointed out by counsel for appellant, no case is made out to warrant
interference. 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
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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
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.
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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
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.
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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 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,Signature Not Verified
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NEUTRAL CITATION NO. 2026:MPHC-GWL:619525 SA-493-2024
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.
(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
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26 SA-493-2024
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.”
24. Considering the totality of facts and circumstances of the case, this
Court is of considered opinion that no illegality was committed by both the
courts below by dismissing the suit as well as appeal filed by appellant.
25. Accordingly, judgment and decree dated 22/11/2023 passed by
Fourth District Judge, Guna in R.C.A. No. 110/2019, as well as judgment
and decree dated 31/08/2019 passed by First Civil Judge Class-II, Guna in
R.C.S.A. No. 170023/2013, are hereby affirmed.
26. Appeal fails and is hereby dismissed.
(G. S. AHLUWALIA)
JUDGE
AKS
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Signed by: ALOK KUMAR
Signing time: 20-02-2026
17:42:03
