Rajkumar Satnami Vs Panna Lal Satnami

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2025:CGHC:60678

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 499 of 2016

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1 - Rajkumar Satnami S/o Resham Lal Satnami, Aged About 46 Years R/o Village Barpali, Tahsil Kasdol, Police Station Bilaigarh, District Baloda Bazar-Bhatapara, Chhattisgarh ................Defendant No.1, Chhattisgarh

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... Appellant(s)

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versus

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1 - Panna Lal Satnami S/o Resham Lal Satnami, Aged About 50 Years R/o Village Barpali, Tehsil Kasdol, Police Station Bilaigarh, District Baloda Bazar-Bhatapara, Chhattisgarh ................Plaintiff, Chhattisgarh

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2 - State Of Chhattisgarh, Through- Collector, Baloda Bazaar-Bhatapara, Chhattisgarh ...............Defendant No. 2, District : Balodabazar-Bhathapara, Chhattisgarh

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... Respondent(s)

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For Appellant(s)	: Mr. Shikhar Sharma, Advocate.
For Respondent(s)	: Mr. Kalpesh Ruparel, Panel Lawyer.

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Hon’ble Shri Justice Ravindra Kumar Agrawal, J.

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Judgment on Board

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12/12/2025

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The present second appeal has been filed by the defendant under Section 100 of the Code of Civil Procedure, 1908 against the impugned judgment and decree dated 07.09.2016 passed by learned First Additional District Judge, Balod Bazar, District Baloda Bazar-Bhatapara in Civil Appeal No. 19-

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A/2016, whereby the first appeal is dismissed and the judgment and decree dated 30.04.2013 passed by learned Civil Judge Class-I, Kasdol, District Baloda Bazar Bhatapara in Civil Suit No. 4-A/2013 has been affirmed.

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The present second appeal has been admitted on 17.07.2017 on the following substantial questions of law:

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1. “Whether the Courts below have erred in holding that the registered deed of Will dated 9.9.2010 (Ex.P-11) executed by Gurbari Bai in favour of Defendant No.1-Raj Kumar is a forged and fabricated one?”

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2. “Whether the Courts below were justified in holding that due execution, attestation and validity of the registered Will deed dated 9.9.2010 (Ex.P-11) was not duly established by Defendant No.1-Raj Kumar Satnami in accordance with law?”

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For the sake of convenience the status of the parties shown in the suit are being taken in the present appeal.

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The plaintiff had filed a civil suit for declaration of his title over the suit land total admeasuring 1.445 hectare situated at village Barapali, Patwari Halka No. 24, RI Circle Gidhauri, Tahsil Kasdol, District Baloda Bazar-Bhatapara and admeasuring 0.385 hectare situated at village Semra, Tahsil Kasdol, District Baloda Bazar-Bhatapara, partition and separate possession of the suit property and permanent injunction.

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The plaintiff had pleaded in his plaint that the suit property was owned by one Gurbari Bai who is the mother of the plaintiff as well as defendant no.1. Gurbari Bai has died on 08.02.2012. The plaintiff and defendant No.1 are having equal share over the suit property as per their succession and Gurbari Bai has orally partitioned the property in the year 2005, and given the shares of the parties and she was residing with the plaintiff and defendant No.1 from time to time. The parties are in possession of the respective shares of the property and cultivating as per their share. The property obtained by the plaintiff in his share has been shown in schedule-B annexed with the plaint. In the year 2010, when Gurbari Bai suffered from ailment, the defendant No.1 took her with him for her treatment and got will deed prepared on

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09.09.2010. Gurbari Bai was an illiterate lady and she has never executed any will in favour of the defendant No.1 and the alleged will deed dated 09.09.2010 is a forged document. For the last 3 years of her death, she continually suffered by ailment and physically and mentally not sound. Taking advantage of her physical and mental status, the defendant No.1 has got executed will deed on 09.09.2010. After death of Gurbari Bai, the defendant No.1 has filed an application before the Tahsildar Kasdol for mutation of his name in the revenue records on the basis of said will and when the plaintiff came to know about the said will, he raised objection before the Tahsildar and pleaded that the said will is forged and fabricated. The attesting witnesses to that will have also filed their affidavit before the Tahsildar that they did not know about execution of any will deed in favour of the defendant No.1 and they signed the document on the apprehension that it was a power of attorney. Despite their objection the Tahsildar Kasdol has passed the order on 24.12.2012 allowed the application of defendant No.1 and ordered for mutation of his name in the revenue records which gives cause of action to the plaintiff to file the present suit. He claimed title over half share of property of Gurbari Bai and claiming partition and separate possession over the same. 6. The defendant No.1 contested the claim of the plaintiff and filed his written statement, denied the plaint averment and pleaded that on 09.09.2010 his mother Gurbari Bai had executed the registered will deed in his favour and on the basis of said will deed his name has also been mutated in the revenue records, therefore, the plaintiff has no right or title over the suit property. It is also pleaded that there was no family partition or arrangement by Gurbari Bai during her life time with respect to the suit property. Had it been the property of Gurbari Bai was partitioned, she could not have executed registered will in his favour. The will deed was duly registered by the Registrar and its authenticity cannot be doubted, therefore, at the time of registration of will deed, Gurbari Bai was fully aware about execution of will and mentally and

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physically sound. There was no allurement or misconception in execution of will deed in favour of the defendant No.1, therefore, the plaintiff has no right or title over the suit property and the suit is liable to be dismissed.

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Based on the pleadings of the parties, learned trial Court has framed the issues particularly the issue No.4 as to whether the will deed dated 09.09.2010 is forged and fabricated?

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In support of their claim the plaintiff has examined himself as PW-1, Puniram PW-2, Pramod Kumar PW-3, Jagatram Nirala PW-4, Ramayan Nirala PW-5, Sona Bai PW-6 and relied upon the documents Ex.P/1, which is the ordersheet of the Nayab Tahsildar Kasdol, Ex.P/2 to Ex.P/7 are the revenue documents of Khasrapanshala and Kishtbandi, Ex.P/8 is the statement of Pramod Sahu made before the Tahsildar Kasdol, Ex.P/9 is the affidavit of Puniram, Ex.P/10 is the affidavit of Pramod Kumar, Ex.P/11 is the copy of will deed dated 09.09.2010. The defendants have examined Rajkumar Satnami DW-1, Sona Bai DW-2, Jaldhar Prasad Sahu DW-3, S. B. Shiv Parihar DW-4 and he relied upon the document Ex.D/1, which is the original deed of will dated 09.09.2010.

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After appreciation of oral as well as documentary evidence led by the parties, the learned trial Court has held that the will deed dated 09.09.2010 is a forged document and it was not the executed by Gurbari Bai and its execution has not been proved by the defendant No.1 and since the plaintiff and defendant No.1 are brothers and legal heirs of late Gurbari Bai, the trial Court has held that the plaintiff is entitled for half share of the suit property shown in schedule-A annexed with the plaint.

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The judgment and decree passed by learned trial Court was challenged by the defendant No.1 before the first appellate Court, which has been dismissed vide its judgment and decree dated 07.09.2016, which is under challenge in the present second appeal.

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The present second appeal has been admitted on the substantial question of law which has been set out in the earlier paragraph of this judgment.

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Learned counsel appearing for the appellant would submit that the judgment and decree passed by learned trial Court as well as first appellate Court is erroneous on the facts and law as the DW-3 Jaldhar Prasad Sahu, who is the scribe of the said will deed Ex.P/11 and Ex.D/1, has duly proved its execution. The DW-4 is the sub-Registrar has also proved the due execution and registration of the said will deed Ex.P/11 and Ex.D/1, and it was executed by Gurbari Bai on 09.09.2010. He would also submit that the registration of the will itself removed all the suspicious circumstances and even if the attesting witnesses have not supported its execution, the evidence of DW-3 and DW-4 cannot be ignored. He would also submit that at the time of examination of the witnesses, the witnesses to the will, Pramod Kumar and Puniram were won over by the plaintiff who deposed in his favour and not completely supported the execution of the will whereas they did not deny that it was not executed, but only said that they signed the document on the apprehension that it was a power of attorney, therefore, the execution of the document, putting the signature of the witnesses as well as the executant of the will is found proved which was duly verified by the subRegistrar DW-4 also and the will deed was registered.

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He would also submit that the Tahsildar Kasdol after due appreciation of material available before him has passed the order of mutation in favour of the defendant No.1 on the basis of said will. There is sufficient evidence in the record to prove due execution of the will in favour of defendant No.1, yet the learned trial Court as well as first appellate Court held that the will Ex.P/11 and Ex.D/1 is a forged document and has not been executed by Gurbari Bai in favour of the defendant No.1. The impugned judgment and decree passed by learned Courts below, suffers from perversity and illegality and the same are liable to be set aside.

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Per contra, learned counsel appearing for the Respondent No.1 supported the impugned judgment and decree passed by learned trial Court as well as first appellate Court and would submit that as per the settled law laid down by the Hon’ble Supreme Court, will has to be proved by examining the attesting witnesses and in the present case the attesting witnesses have clearly deposed that on the apprehension of execution of the power of attorney, they signed the deed, however it was not a power of attorney but it is a will deed, therefore, there is sufficient evidence to hold that the alleged will deed Ex.P/11 and Ex.D/1 is a forged and fabricated document and it was obtained by the defendant No.1 by fraud and misrepresentation of the facts. He would further submits that the executant of the will Gurbari Bai was not in physical and mental sound state and was not able to understand the nature of the document, therefore, the consideration of both the Courts below are justified and there is no merits in the appeal and the same is liable to be dismissed.

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I have heard learned counsel for the parties and perused the record of the trial Court.

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It is not in dispute between the parties that the plaintiff as well as defendant No.1 are the real brothers and Gurbari Bai is their mother. It is the claim of the plaintiff that their mother Gurbari Bai has partitioned the property and schedule-B property was obtained by plaintiff schedule-C property was obtained by the defendant No.1, whereas the claim of the defendant No.1 is that their mother Gurbari Bai had executed a will on 09.09.2010 in his favour and he is the title and possession holder of the entire suit property. The two position emerges in the case that if the defendant No.1 able to prove the testamentary succession, the natural succession would decline the right of the plaintiff and if the defendant No.1 failed to prove the testamentary succession, the property would devolve under the natural succession as provided under Section 8 of the Hindu Succession Act, 1956. Since the

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defendant No.1 is claiming that he is the propounder of the will dated 09.09.2010 executed by his mother Gurbari Bai, it is burden lies upon him to prove the due execution of will in his favour.

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In the matter of Surendra Pal and Others vs. Dr. (Mrs.) Saraswati Arora and Another 1974 (2) SCC 600¹ , the Hon’ble Supreme Court has held that the guidelines regarding the nature and extent of burden of proof on the propounder of a will held that propounder has to show that the will was signed by the 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; and 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. It was further held that in cases where the propounder has himself taken a prominent part in execution of a will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence.

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So far as the proof of due execution of will, by the catena of decisions, the Hon’ble Supreme Court has laid down the principles under which a will can be proved by the propounder.

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The manner to execute and its proof of will has been provided under Section 63 of Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, 1972, it is necessary to notice here the provisions of Section 63 of Indian Succession Act, and Section 68 of the Indian Evidence Act.

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Section 63 of the Act of 1925 provides as under:

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“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:-

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(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.

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1 1974 (2) SCC 600

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(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.

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(c) The will shall be attested by two ormore 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 acknowledgement 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.”

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Section 68 of the Evidence Act, 1872 provides as under:

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“ 68. Proof of execution of document required by law to be attested .—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, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

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Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.”

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As per the provisions of Section 63 of the Succession Act, 1925 for due execution of a will ( 1 ) the testator should sign or affix his mark to the will; ( 2 ) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will; ( 3 ) the will should be attested by two or more witnesses; and ( 4 ) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.

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The above-stated provision of attestation of will under Section 63(c) of the Succession Act, 1925 by two or more witnesses has been held to be mandatory by Their Lordships of the Supreme Court in the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam² .

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By the aforesaid provision, a document required by law to be attested to have its execution proved by at least one of the attesting witnesses if alive and it is subject to process of the court conducting the proceedings

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2 (2003) 2 SCC 91

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involved and is capable of giving evidence. However, proviso to Section 68 of the Evidence Act, 1872 is not available in case of will.

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In the matter of Girja Datt Singh v. Gangotri Datt Singh³ Their Lordships

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of the Supreme Court have held that in order to prove the due attestation of will, the propounder of will has to prove that ‘A’ and ‘B’, the two witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator. Their Lordships while considering Section 68 of the Evidence Act, 1872 further held that from the mere signature of two persons appearing at the foot of the endorsement of registration of will it cannot be presumed that they had appended their signature to the document as an attesting witness or can be construed to have done so in their capacity as attesting witness. It was pertinently observed as under:

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“In order to prove the due attestation of the will Ex. A36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A23 and Ex. A36 from Gonda to Tarabganj for reasons best known to themselves.”

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“One could not presume from the mere signature of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri.”

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In the matter of H. Venkatchala Iyengar v. B. N. Thimmajamma and

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others⁴ the Supreme Court speaking through Gajendragadkar, J., elaborately laid down the principles relating to the nature and standard of evidence required to prove a will. It was held as under:

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3 AIR 1955 SC 346

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4 AIR 1959 SC 443

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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 63 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 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 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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The principle laid down in the above-stated judgment has been followed

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with approval in Smt. Jaswant Kaur v. Smt Amrit Kaur and others⁵ ,

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5 (1977) 1 SCC 369

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Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another⁶ , Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others⁷ and Jagdish Chandra Sharma (supra).

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In the matter of Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal Representatives and another⁸ , the Supreme Court has again reiterated the need of proving the attestation of will in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872.

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In Surendra Pal (supra), the Supreme Court while restating the guidelines regarding the nature and extent of burden of proof on the propounder of a will held that propounder has to show that the will was signed by the 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; and 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. It was further held that in cases where the propounder has himself taken a prominent part in execution of a will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence.

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The Supreme Court in Yumnam Ongbi Tampha Ibema Devi (supra) has clearly held that the attestation of will is not an empty formality. Highlighting the importance of attestation of Will it was held it means signing a document for the purpose of testifying of the signatures of the executant. The attesting witness should put his signature on the will animo attestandi and it was held as under:

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6 (1974) 2 SCC 600

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7 (2009) 4 SCC 780

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8 (2017) 1 SCC 257

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“13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.”

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In Janki Narayan Bhoir (supra), the Supreme Court while considering

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Section 63(c) of Succession Act, 1925 and Section 68 of the Evidence Act, 1872 held that mere proof of signature of the testator on the will was not sufficient, the attestation thereof is also to be proved as required by Section 63(c) of the Act Succession Act, 1925. It was observed as under :

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“10.Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until 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 an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63 although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attention of a will by him and the other attesting witness in order to prove there was due

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execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.”

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The principle of law laid down in Janki Narayan Bhoir (supra) has been

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followed with approval in Jagdish Chandra Sharma (supra) by which it was held as under:

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“52. While dwelling on the respective prescripts of Section 63 of the Act and Sections 68 and 71 of Act 1872 visàvis a document required by law to be compulsorily attested, it was held Janki Narayan Bhoir (supra) that if an attesting witness is alive and is capable of giving evidence and is subject to the process of the Court, he/she has to be necessarily examined before such document can be used in evidence. It was expounded that on a combined reading of Section 63 of the Act and Section 68 of the 1872 Act, it was apparent that mere proof of signature of the testator on the Will was not sufficient and that attestation thereof was also to be proved as required by Section 63 (c) of the Act. It was, however, emphasised that though Section 68 of the 1872 Act permits proof of a document compulsorily required to be attested by one attesting witness, he/she should be in a position to prove the execution thereof and if it is a Will, in terms of Section 63 (c) of the Act, viz., attestation by two attesting witnesses in the manner as contemplated therein. It was exposited that if the attesting witness examined besides his attestation does not prove the requirement of the attestation of the Will by the other witness, his testimony would fall short of attestation of the Will by at least two witnesses for the simple reason that the execution of the Will does not merely mean signing of it by the testator but connotes fulfilling the proof of all formalities required Under Section 63 of the Act. It was held that where the attesting witness examined to prove the Will Under Section 68 of 1872 Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects.”

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Similarly, in Gopal Swaroop (supra), it has been held as under:

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“21. That brings us to the third requirement, namely, that the will must be attested by two or more witnesses each of whom has seen the testator signing and affixing his mark to the will or has seen some other person signing in the presence and by the direction of the testator. ...”

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Reverting to the facts of the present case in the light of principles of law

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rendered by the Hon’ble Supreme Court in the above cited judgments qua

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execution and attestation of will by a testatrix the following factual position would emerges on the face on record for its consideration.

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A . The testatrix Gurbari Bai is said to have executed a registered will in support of her property in favour of the defendant No.1 namely Rajkumar on 09.09.2010 Ex.P/11 and Ex.D/1.

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B. The will dated 09.09.2010 is said to have been attested by two witnesses namely Puniram PW-2 and Pramod Kumar PW-3 and scribed DW-3 Jaldhar Prasad Sahu.

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The attesting witness of the alleged will PW-2 Puniram has stated in Para- 2 and 3 of his examination in chief that on 09.09.2010 when he and Pramod came to Kasdol Court in hearing of a case, the defendant No.1 took him to sign a power of attorney as the witness, and near Tahsil Office, Kasdol, obtained their signature in a deed. He and Pramod Kumar had not signed any document in presence of Gurbari Bai, neither Gurbari Bai called them nor she executed any will in their presence. On the day when he signed the document he has not seen Gurbari Bai there.

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Para - 2 & 3 of the evidence of this witness is relevant to be reproduced here:

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“2 यह कि� कि�ाሪ� 09.09.2010 �� रा�ज��मा�रा सताሪ�मा� ቛኋ�रा� जब मा� एवं� ्ቚमा�� व्यवंह�रा न्य�य�लय �सडो�ल पे�शी� मा� आय� थे� त� मा�ሺኌ#तय�र ा �मा� �� स्त�वं�ज मा� गवं�ह बत&रा हस्त�्ቌरा �र ा � �� लिलए मा�झे� एवं� ्ቚमा�� व्यवंह�रा न्य�य�लय �� पे�स ब�ल�ाሪ� आय� थे� औरा हमा� तहस�ल ऑकि,स �सडो�ल �� पे�स ल� ज��रा ए� �स्त�वं�ज पेरा मा�रा� एवं� ्ቚमा�� मा�रा �� हस्त�्ቌरा लिलय� थे�। 3. यह कि� मा� एवं� ्ቚमा�� मा�रा ग�रूवं�रा� ब�ई �� समा्ቌ कि�स� भी� �स्त�वं�ज पेरा हस्त�्ቌरा ाሪह1 कि�य� ह2 ाሪ� ह� ग�रूब�ई कि�स� भी� �स्त�वं�ज पेरा हस्त�्ቌरा �र ा � ह�त� ब�ल�य� थे� ग�रूवं�रा� ब�ई मा�रा� समा्ቌ ��ई वंस�यताሪ�मा� किाሪष्पे�कि�त ाሪह1 �4 ह2 ाሪ ह� कि�स� वंस�यताሪ�मा� �� स्त�वं�ज पेरा मा�रा� समा्ቌ अं�ग6ठा� लग�ई ह2। लिजस समाय मा� हस्त�्ቌरा कि�य� उस समाय ग�रूवं�रा� ब�ई उपेሺኌस्थेत ाሪह1 थे�। मा� लिजस कि�ाሪ �स्तखत कि�य� ह:; उस कि�ाሪ उस समाय ग�रूवं�रा� ब�ई �� ख� भी� ाሪह1 ह:;।"

¶110

In cross-examination he remained firm in saying that on the apprehension of

¶111

power of attorney, he signed the document on the instance of defendant

¶112

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¶113

No.1. He was acquainted with power of attorney and will deed. He denied that he put his signature in any will deed.

¶114

PW-3, Pramod Kumar is another attesting witness to the will deed Ex.P/11 and Ex.D/1. He too have deposed the similar version as PW-2 Puniram has given and Para- 2 & 3 of his examination-in-chief is also reproduced hereinbelow which is as under:

¶115

“2 यह कि� कि�ाሪ� 09.09.2010 �� रा�ज��मा�रा सताሪ�मा� ቛኋ�रा� जब मा� एवं� पे�ाሪ�रा�मा व्यवंह�रा न्य�य�लय �सडो�ल पे�शी� मा� आय� थे� त� मा�ሺኌ#तय�र ा �मा� �� स्त�वं�ज मा� गवं�ह बत&रा हस्त�्ቌरा �र ा � �� लिलए मा�झे� एवं� पे�ाሪ�रा�मा �� व्यवंह�रा न्य�य�लय �� पे�स ब�ल�ाሪ� आय� थे� औरा हमा� तहस�ल ऑकि,स �सडो�ल �� पे�स ल� ज��रा ए� �स्त�वं�ज पेरा मा�रा� एवं� पे�ाሪ�रा�मा �� हस्त�्ቌरा लिलय� थे�।

¶116

यह कि� मा� एवं� पे�ाሪ�रा�मा ग�रुब�रा� ब�ई �� समा्ቌ कि�स� भी� �स्त�वं�ज पेरा हस्त�्ቌरा ाሪह1 कि�य� ह2 ाሪ� ह� ग�रूब�ई कि�स� भी� �स्त�वं�ज पेरा हस्त�्ቌरा �र ा � ह�त� ब�ल�य� थे� ग�रुब�रा� ब�ई मा�रा� समा्ቌ ��ई वंस�यताሪ�मा� किाሪष्पे�कि�त ाሪह1 �4 ह2 ाሪ ह� कि�स� वंस�यताሪ�मा� �� स्त�वं�ज पेरा मा�रा� समा्ቌ अं�ग6ठा� लग�ई ह2। लिजस समाय मा� हस्त�्ቌरा कि�य� उस समाय ग�रूवं�रा� ब�ई उपेሺኌस्थेत ाሪह1 थे�। मा� लिजस कि�ाሪ �स्तखत कि�य� ह:; उस कि�ाሪ उस समाय ग�रूवं�रा� ब�ई �� ख� भी� ाሪह1 ह:;।"

¶117

In cross-examination he too have denied that Gurbari Bai had executed a will

¶118

in Registration Office. He also stated that in the year 2010, when he came to Tahsil Court in date of hearing of a case, Rajkumar took him to sign in a power of attorney and then he signed the deed. He also stated that Gurbari Bai was not there when he signed the deed. He denied that he signed any will deed.

¶119

The two attesting witnesses are the prime witnesses to prove the due execution of will as provided under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act. As per the law laid down by the Hon’ble Supreme Court in a catena of decisions, and Section 63 of the Indian Succession Act, 1925 it is the requirement that testator should sign or affix his/her mark to the will, the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to writing as a will, the each of the witnesses must have seen the testator signing or affixing his/her mark to the will and each of them should sign the

¶120

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will in the presence of the testator. All the ingredients are missing in the present case and both the attesting witnesses PW-2 Puniram and PW-3 Pramod Kumar have not supported the due execution of the will.

¶122

The defendant No.1 has relied upon the evidence of DW-3 Jaldhar Prasad Sahu who is the scribe of the will, who stated that on 09.09.2010, he scribed the will on the instance of Gurbari Bai and get it registered, Pramod and Puniram were the witnesses to the will. In cross-examination he admitted that the defendant No.1 Rajkumar came to him and asked to draft a will in the name of his mother Gurbari Bai and after taking the details, he drafted the will Ex.D/1. He also admitted that Rajkumar informed him that his mother is usually suffering from ailment and the name of two witnesses Pramod and Puniram was also disclosed by him. He also admitted that at the time when the deed Ex.D/1 was prepared, only Rajkumar was there on the spot. He also admitted that Gurbari Bai, Pramod Kumar and Rajkumar, Puniram has not signed over the deed Ex.D/1 in his presence and he also admitted that he has not inquired anything for preparation of the will deed from Gurbari Bai and after preparing the deed Ex.D/1, he handed over the deed to defendant No.1.

¶123

From the evidence of this witness also there is absolutely non-compliance of the requirement of Section 63 of the Indian Succession Act, 1925 and Section 68 of Indian Evidence Act, 1972. Even otherwise the scribe cannot be considered to be the attesting witnesses of the will as has been laid down by Hon’ble Supreme Court in the matter of M. L. Abdul Jabbar Sahib vs. M.

¶124

V. Venkata Sastri & Sons and Others 1969 (1) SCC 573 , the Hon’ble Supreme Court has held in Para -7, 8, 9 and 10 that:

¶125

“7. Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words:

¶126

'Attested' in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has

¶127

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received from the executant a personal acknowledg-ment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the exe-cutant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attes-tation shall be necessary."

¶129

It is to be noticed that the word "attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness. should have put his signature animo attestandi, that is, for the purpose of e attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.

¶130

8. "In every case the Court must be satisfied that the names were written animo attestandi", see Jarman on Wills, 8th Edn., p. 137. Evidence is admissible to show whether the witness had the intention to attest. "The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not," see Theobald on Wills, 12th Edn., p. 129. In Girja Datt v. Gangotrf, the Court held that the two persons who had identi-fied the testator at the time of the registration of the will and had appended 9 their signatures at the foot of the endorsement by the sub-Registrar, were not attesting witnesses as their signatures were not put "animo attestandi". In Abinash Chandra Bidvanidhi Bhattacharya v. Dasarath Malo it was held that a person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". In Shiam Sunder Singh v. Jagannath Singh, the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees.

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9. The Indian Registration Act, 1908, lays down a detailed procedure for registration of documents. The registering officer is under a duty to enquire whether the document is executed by the person by whom it purports to have been executed and to satisfy himself as to the identity of the executant, [Section 34(3)]. He can register the document if he is satisfied about the identity of the person executing the document and if that person admits execution. [Section 35(1)]. The signatures of the executant and of every person examined with reference to the document are endorsed on the document (Section 58). The registering officer is required to affix the date and his signature to the endorsements (Section 59). Prima facie, the register-ing officer puts his signature on the document in discharge of his statutory duty under Section 59 and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature.

¶132

10. The evidence does not show that the registering officer D.W. Kittoo put his signature on the document with the intention of attesting it. Nor is it proved that he signed the document in the presence of the executant. In these circumstances he cannot be regarded as an attesting witness, see Sunder Bahadur Singh v. Behari Singh. Likewise the identifying

¶133

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witnesses Sankaranarayana and Kaki Abdul Aziz put their signatures on the document to authenticate the fact that they had identified the executant. It is not shown that they put their signatures for the purpose of attesting the document. They cannot, therefore, be regarded as attesting witnesses.”

¶135

The same proposition have also been laid down by the Hon'ble Supreme Court in the case of "S.R. Srinivasa v. 5. Padmavathamma", 2010 (5) SCC 274, "N. Kamalam (Dead) and Another v. Ayyasamy and Another", 2001 (7) SCC 503, that the scribe, who did not have intent to attest, cannot be the attesting witness to the Will. His evidence could not displace the statutory requirement to prove the will by examining at least one attesting witness.

¶136

Another argument raised by the learned counsel for the appellant is that the Will Ex.P-11 and D-1 is a registered document, and they carry the genuineness of the document. Ex. P-11 and D-1 are the same documents and Ex. P-11 is relied on by the plaintiff, and D-1 is relied on by Defendant No. 1. Even if the attesting witnesses are not fully supported in their due execution, in view of the D.W. 3 Jaldhar Prasad Sahu (scribe) and D.W. 4 S.B. Singh Parihar (sub-registrar), they duly proved the execution and registration of the Will deed.

¶137

Recently, in the case of "Leela and Others v. Muruganantham and Others", 2025 (4) SCC 289, the Hon'ble Supreme Court has held that mere registration of the Will would not attach to it a stamp of validity, and it must still be proved as required by the law. In para 22, it has been held that:-

¶138

“ 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 and in Derek A.C. Lobo case 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.”

¶139

In the case of "S.R.Srinivasa", (supra) and "Dhani Ran (Died) through

¶140

L.R's and Others v. Shiv Singh" 2023 SCC OnLine SC 1263 , the effect of

¶141

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registration of a Will deed and requirement of its proof is considered by the Hon'ble Supreme Court.

¶143

In the light of the facts and evidence available in the case, the aforesaid law laid down by the Hon’ble Supreme Court, it is quite vivid that the defendant No.1 has failed to discharge his burden to prove that Gurbari Bai had executed a will in his favour on 09.09.2010. When the attesting witnesses have denied the due execution of will, it cannot be said that the said will deed dated 09.09.2010 is genuinely executed document by Gurbari Bai, and in contrast, it can be held that the learned trial Court as well as first appellate Court has rightly considered that the alleged will deed dated 09.09.2010 Ex.P/11 and Ex.D/1 is not executed by Gurbari Bai and it is a forged and fabricated document and the defendant No.1 has failed to prove its due execution, attestation and validity in accordance with law.

¶144