Anil Kumar Srivastava and Another Vs Smt. Uma Sriwastava and Another

Neutral Citation No. - 2025:AHC-LKO:22542

Court No. - 5

Case :- SECOND APPEAL No. - 77 of 2025

Appellant :- Anil Kumar Srivastava And Another Respondent :- Smt. Uma Sriwastava And Another Counsel for Appellant :- Shradha Mishra,Virendra Mishra Counsel for Respondent :- Ankur Gupta,Pooja Singh

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Hon'ble Abdul Moin,J.

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1 . Heard Shri Virendra Mishra, learned counsel for the appellants and Shri M.E. Khan as well as Shri Ankur Gupta, learned counsel appearing for the respondents.

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2 . The instant second appeal has been filed raising a challenge to the judgment and decree dated 22.05.2024 passed by the learned Judge Small Cause/ Civil Division (Senior Division), Sitapur whereby the learned trial court vide judgment and order dated 22.05.2024 has allowed the suit filed by the respondents herein for setting aside the will dated 22.11.1999 as well as the judgment passed by first appellate court vide the judgment and order dated 18.03.2025 by which it has dismissed the first appeal filed by the appellants herein and the judgment of the learned trial court has been upheld.

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3 . Bereft of unnecessary details facts of the case as set forth by the learned counsel for the appellants are that one Shri Prabhakar Prakash Srivastava had executed a registered will dated 22.11.1999. A copy of the will has been filed along with the appeal (Page-174). The will had been executed in favour of his nephews despite the fact that the wife and son of Shri Prabhakar Prakash Srivastava were very much alive namely Smt Uma Srivastava and Shri Aman Srivastava. Nephews are Shri Anil Kumar Srivastava and Shri Atul Kumar Srivastava, the appellants herein.

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4 . Shri Prabhakar Prakash Srivastava died on 12.07.2008.

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5 . In the year 1999, the wife and son of Shri Prabhakar Prakash

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Srivastava filed a suit for cancellation of the will deed on various grounds including the ground as set forth in para 4 of the suit (Page182 of the appeal) wherein it was indicated that the brother of Shri Prabhakar Prakash Srivastava namely Shri Diwakar was a very clever person and in order to take over the properties of Shri Prabhakar Prakash Srivastava, he made Shri Prabhakar Prakash Srivastava a habitual drunkard so much so that on account of being addicted to drinks, his physical and mental health deteriorated to the extent that whatever amount was earned by the wife (Smt Uma Srivastava) was also taken away in order to sustain his drinking and thus he was not having mental capacity at the time of the execution of the will dated 22.11.1999 to have executed the will in favour of his nephews to the extent of excluding his wife and son, the plaintiffs, before the trial court.

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6 . Learned trial court framed various issues of which issue no.1 (Para 5 of the judgment of the learned trial court) was as to whether the registered will dated 22.11.1999 merits to be cancelled on the basis of the facts and grounds taken in the plaint.

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7 . Learned trial court while deciding the Issue No.1 was of the view that the very fact that while executing the will, Shri Prabhakar Prakash Srivastava had stated that his wife had left him and that he is not having any son or daughter is itself a ground to indicate the suspicious circumstances prevailing at the time of execution of will which would be a ground for cancellation of the will.

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8 . Learned trial court has also indicated in its order that no reason emerged from perusal of the will executed by Shri Prabhakar Prakash Srivastava as to why he was excluding his real son which all have been taken to be grounds by the learned trial court for cancellation of the said will. In turn, the learned appellate court has upheld the judgment of the learned trial court while dismissing the appeal filed by the appellants herein.

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9 . Learned counsel for the appellants while raising a challenge to the judgments has argued on the basis of judgment of the Hon'ble Supreme Court in the case of Siddu Venkappa Devadiga vs Smt. Rangu S. Devadiga & Ors . : AIR 1977 SC 890 that a decision of a case cannot be based on the grounds outside the plea of the parties to urge that once the specific ground was not taken by the plaintiff before the learned trial court consequently the learned trial court could not have gone beyond the said grounds and to have set aside the will.

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10 . Reliance has also been placed on the judgment of the Hon'ble Supreme Court in the case of Rabindra Nath Mukherjee & Anr vs Panchanan Banerjee (Dead) By Lrs. & Ors : 1995 (4) SCC 459 to argue that the whole idea behind execution of the will is to interfere with the normal line of succession and that natural heirs would be debarred in every case of will. He has submitted that the reasonable grounds, in fact, have been indicated as to why the registered will was executed by Shri Prabhakar Prakash Srivastava by excluding his wife and son and for willing his property in favour of his nephews, which aspect of the matter has not been considered by the learned trial court while allowing the suit filed by the plaintiffs.

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11 . No other ground has been argued.

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12 . On the other hand, Shri M.E. Khan, learned counsel appearing for the respondents has argued that specific ground on which will was being challenged was raised by the plaintiffs as emerges from perusal of para 4 of the plaint Shri Prabhakar Prakash Srivastava not being in his full senses while executing the said will which aspect of the matter has been considered by the learned trial court. Also, while examining the will the learned trial court was of the view that once in the will itself, Shri Prabhakar Prakash Srivastava has indicated that he is not having real son or daughter while the facts are otherwise inasmuch as plaintiff No.2 is real son of Shri Prabhakar Prakash Srivastava consequently the learned trial court was of the view that suspicious

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circumstances have in fact emerged for cancellation of the will and consequently has allowed the suit filed by the plaintiffs and set aside the will and thus, no error has been committed by the learned trial court while passing the impugned order.

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13 . Learned counsel for the respondents has also placed reliance on the judgment of the Hon'ble Supreme Court in the case of Smt Jaswant Kaur vs Smt. Amrit Kaur & Ors : (1977) AIR (SC) 74 to contend that the Hon'ble Supreme Court has elaborated from a long light of line of decisions the nature and standard of evidence required to prove a will of which one of the grounds which would prevail on the learned trial court in which the veracity of the execution of the will has been raised would be a shaky signature, a feeble mind, and unfair and unjust dispositions of the property would all be attendant circumstances to excite the suspicion of the court about the suspicious nature of will.

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14 . Shri M.E. Khan, learned counsel appearing for the respondents has also argued that in the written statement which has been filed by the appellants herein/defendants before the learned trial court (Page193 of the Appeal), the defendants have indicated that Shri Prabhakar Prakash Srivastava was not having a son which indicates that even the propounder of the will was hand in gloves with the beneficiary of the will which was executed by Shri Prabhakar Prakash Srivastava which all indicate of Shri Prabhakar Prakash Srivastava being of an unsound mind and being a habitual drunkard.

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15 . Heard learned counsel for the parties and perused the record.

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16 . From the arguments as raised by the learned counsel for the parties and perusal of the record, it emerges that one Shri Prabhakar Prakash Srivastava, the husband of respondent No.1 and father of respondent No.2 herein had executed a registered will dated 22.11.1999. The will indicated that his wife had left him and that he

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did not have any son or daughter. He willed his property to his nephews, the appellants herein. Shri Prabhakar Prakash Srivastava died on 12.07.2008.

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17 . The respondents herein-plaintiffs filed a suit in the year 1999 praying for cancellation of the will deed on various grounds including the grounds as set forth in paras 4 to 6 of the suit wherein it was indicated that the brother of Shri Prabhakar Prakash Srivastava namely Shri Diwakar was a very clever person and in order to take over the property of Shri Prabhakar Prakash Srivastava, he made him a habitual drunkard so much so on account of being addicted to drinking, his physical and mental health deteriorated. Thereafter, despite not having mental capacity at the time of execution of the will, he executed the will in favour of his nephews to the extent of excluding his wife and son.

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18 . Learned trial court framed an Issue No.1 which was as to whether the registered will dated 22.11.1999 merits to be cancelled on the basis of facts and ground taken in the plaint.

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19 . Learned trial court while deciding issue no.1 was of the firm view that the very fact that while executing the will Shri Prabhakar Prakash Srivastava had stated that his wife had left him and that he was not having any son or daughter is itself a ground to indicate the suspicious circumstances prevailing at the time of execution of the will, which would be a valid ground for cancellation of the will and consequently allowed the suit vide impugned judgment dated 22.05.2024.

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20 . Upon a challenge being raised to the said judgment by the appellants herein, learned appellate court vide judgment dated 18.03.2025 dismissed the appeal and affirmed the judgment passed by the learned trial court and hence the appeal.

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21 . Raising a challenge to both the judgments, the argument of the

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learned counsel for the appellants is that learned trial court has gone beyond the grounds as were stated by the plaintiffs in the plaint which could not have been done by the learned trial court considering the judgment of the Hon'ble Supreme Court in the case of Siddu Venkappa Devadiga (supra).

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22 . Aforesaid argument is found to be patently fallacious considering that the specific grounds had been taken by the plaintiffs as emerges from a perusal of paras 4 to 6 of the suit indicating that the real brother of Shri Prabhakar Prakash Srivastava had made him into a habitual drunkard, which resulted in deterioration of his physical and mental health to the extent that at the time of execution of the will dated 22.11.1999 he cannot be said to be in his full mental capacity and has executed the will in favor of his nephew by excluding his wife and son.

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23 . A perusal of the will would indicate that although Shri Prabhakar Prakash Srivastava has indicated that his wife had left him shortly after his marriage but he categorically stated in the will that he does not have any son or daughter. There is no dispute that the respondent No.2 herein namely Shri Aman Srivastava is the real son of Shri Prabhakar Prakash Srivastava and thus indicating this in the will itself indicates about the mental incapacity of Shri Prabhakar Prakash Srivastava while executing the will which has correctly been appreciated by the learned trial court.

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24 . In this regard, it would be apt to refer to the judgment of Hon'ble Supreme Court in the case of Smt Jaswant Kaur (supra) wherein the Hon'ble Supreme Court has held as under:-

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"10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in R. Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443 : 1959 Supp 1 SCR 426] . The Court, speaking through

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Gajendragadkar, J., laid down in that case the following propositions :

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“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 other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

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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 has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

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3. Unlike other documents, the will speaks from the death of the testator and therefore the 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 element of 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 the making of the will.

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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 of property, 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 normally receive their due share in his estate 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

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excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

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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 emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is

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called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

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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, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was 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.”

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(Emphasized by me)

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25 . From perusal of the aforesaid judgment, it clearly emerges that of the various propositions that have been enunciated by the Hon'ble Supreme Court in the aforesaid judgment pertaining to nature and standard of evidence required to prove a will, one of them is where execution of will can be said to be surrounded by suspicious circumstance would be where there is either a shaky signature, a feeble mind or an unfair and unjust disposition of the property and where the propounder himself takes a leading part in the making of the will under which he receives a substantial benefit and such other circumstances which raise suspicion about the execution of the will. Exclusion of wife and children of the testator would also be a suspicious circumstance.

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26 . When the averments made in the will are seen in the context of the written statement that had been filed by the appellants herein-

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defendants in the trial court, it emerges that the defendants had also indicated that the plaintiff No.2 (Shri Aman Srivastava) is not the son of Shri Prabhakar Prakash Srivastava. The propounders of the will are the nephews of Shri Prabhakar Prakash Srivastava and the wife and the real son of Shri Prabhakar Prakash Srivastava have been excluded in the will to the extent of willing the property to his nephews, propounders who are also supporting erroneous statement made in the will of Shri Prabhakar Prakash Srivastava not having a son, which are all suspicious circumstances, which validly prevailed on the learned trial court in setting aside the will in question.

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27 . So far as judgment of the Hon'ble Supreme Court in the case of Rabindra Nath Mukherjee (supra) that the whole idea behind execution of the will is to interfere with the normal line of succession, suffice is to state that there cannot be any dispute to the aforesaid proposition of law as laid down by the Hon'ble Supreme Court yet the reasons should emerge as to why the wife and the real son of the executor of the will are being excluded, which are strangely missing from the will as has been executed by Shri Prabhakar Prakash Srivastava.

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28 . Keeping in view the aforesaid discussion, no case for interference is made out. The appeal is dismissed accordingly.

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Order Date :- 22.4.2025 prateek

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Digitally signed by :- PRATEEK ARORA High Court of Judicature at Allahabad, Lucknow Bench

Anil Kumar Srivastava and Another v. Smt. Uma Sriwastava and Another

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Anil Kumar Srivastava and Another v. Smt. Uma Sriwastava and Another

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