Ganpat (Died) through LRs Vs Mohitram and Anr.

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2025:CGHC:51222

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AFR

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HIGH COURT OF CHHATTISGARH AT BILASPUR

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SA No. 87 of 2014

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1 - Ganpat (Died) Through Lrs As Per Hon'ble Court Order Dated 27.07.2023

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1.1 - Suresh Kumar Yadav Son Of Gayacharan Yadav Aged About 34 Years Resident Of Village - Jetha, Tehsil - Sakti, District - Janjgir -Champa, Chhattisgarh.

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--- Appellants

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versus

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1 – Mohitram, S/o. Bodhiram Aged About 53 Years R/o Gudhwa, P.S. And Tah. Sakti, Distt. Janjgir-Champa C.G., Chhattisgarh

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2 - State Of Chhattisgarh Thru- The Collector, Janjgir-Champa, Distt. JanjgirChampa C.G.,

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--- Respondents

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____________________________________________________________ For Appellants : Ms. Meena Shashtri, Advocate For Respondent No.1 : Mr. Sachin Nidhi with Mr. Anjay Mishra, Advocates For Respondent No.2/State : Mr. Neeraj Sharma, Dy.A.G.

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Hon'ble Shri Justice Parth Prateem Sahu

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Judgment On Board

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14/10/2025

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Learned counsel for appellants submits that she has moved an application under Order 6 Rule 17 of C.P.C. for amending the plaint. She contended that inadvertently in the plaint, appellants/plaintiff could

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BALRAM PRASAD DEWANGAN Digitally signed by BALRAM PRASAD DEWANGAN Date: 2025.11.04 16:47:52 +0530

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not plead the fact that the entire property recorded in name of Dokara, his father in law and father of testator, Anand Kunwar has been gifted in joint name of Anand Kunwar and plaintiff vide its gift deed dated 13.03.1975. She contended that as the entire property of Dokara was gifted to them, both of them became joint owner, therefore, will executed by Anand Kunwar on 19.06.2005 was not a valid document, therefore, she want to amend the plaint in paragraph No.8 as Para 8.A that late Anand Kunwar has not succeeded the property from his late father Dokara in fact Anand Kunwar received the same from Dokara by way of gift deed dated 13.03.1975, therefore, the property was self acquired property of plaintiff, and late Anand Kunwar and plaintiff is legal heir of late Anand Kunwar and successor of property.

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Prayer made in the application under Order 6 Rule 17 C.P.C. is opposed by learned counsel for respondent.

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I have heard learned counsel for parties on the application under Order 6 Rule 17 C.P.C.

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At this stage learned counsel for appellant/plaintiff would submit that she also filed an application under order 41 Rule 27 of C.P.C. to take the registered gift deed dated 13.03.1975 as additional evidence annexing copy of gift deed.

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Suit was filed by appellant/plaintiff on 04.07.2011. The fact of execution of gift deed was not pleaded by plaintiff in plaint in specific terms, nor made any statement before the trial Court in his evidence or have submitted any application seeking amendment before the First Appellate court. The judgment and decree of learned trial Court is

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dated 30.04.2013 and the Appellate Court judgment is dated 07.12.2013. Application for amendment U/o. 6 Rule 17 CPC seeking amendment in plaint was filed on 30.12.2014.

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In the pleading made in the application under Order 6 Rule 17 of C.P.C. except mentioning that there was clerical mistake, no other reason has been assigned. The provision under Order 6 Rule 17 C.P.C. came to be amended in the year 2002 and according to the proviso to Order 6 Rule 17 of C.P.C. it is envisaged that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to conclusion that in-spite of due diligence, the party could not have raised the matter before commencement of trial. In the body of the application U/o. 6 Rule 17 of C.P.C., no such averment is made by appellants/plaintiffs, therefore, there is no fulfillment of requirement of the proviso under Order 6 Rule 17 of C.P.C. while seeking amendment in the plaint at the stage of second appeal.

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Hon’ble Supreme Court in case of M. Revanna v. Anjanamma, (2019) 4 SCC 332, while considering the prayer for amendment at belated stage observed thus :-

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“7. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order 6 Rule 17 CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on

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the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money.

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8. As mentioned supra, the suit was filed in the year 1993 and at that point of time, Defendants 4 to 6 were not made parties to the suit. Plaintiffs 1 to 5 and Defendants 1 to 3 were the only parties. They had filed a joint memorandum for the dismissal of the suit on 22-4-1993, which was within one or two months of the filing of the suit. The compromise petition came to be rightly dismissed by the High Court in RFA No. 297 of 1994. In the compromise petition, curiously, it was noted that the joint family properties were divided by metes and bounds in the year 1972. If the partition had really taken place in the year 1972 and was acted upon as per the Panchayat Parikath, then Plaintiffs 1 to 5 would not have filed a suit for partition and separate possession in the year 1993. Be that as it may, it is clear from records that the suit was being prolonged on one pretext or the other by Plaintiffs 1 to 5 and ultimately, the application for amendment of the plaint came to be filed on 1-9-2008. By that time, the evidence of both the parties had been recorded and the matter was listed for final hearing before the trial court. If there indeed was a partition of the joint family properties earlier, nothing prevented Plaintiffs 1 to 5 from making the necessary application for the amendment of the plaint earlier. So also, nothing prevented them from making the necessary averment in

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the plaint itself, inasmuch as the suit was filed in the year 1993. Even according to Plaintiffs 1 to 5, they came to know about the compromise in the year 1993 itself. Thus, there is no explanation by them as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. Though, even when Plaintiffs 1 to 5 came to know about the partition deed dated 18-5-1972 (Panchayat Parikath) on 22-4-1993, they kept quiet without filing an application for amendment of the plaint within a reasonable time. On the contrary, they proceeded to cross-examine PW 1 thoroughly and took more than five years' time to get the examination of PW 2 completed, and only thereafter filed an application seeking amendment of the plaint on 1-9-2008, that too when the suit was posted for final arguments. As mentioned supra, the suit itself is for partition and separate possession. Now, by virtue of the application for amendment of pleadings, Plaintiffs 1 to 5 want to plead that the partition had already taken place in the year 1972 and they are not interested to pursue the suit. Per contra, Plaintiff 6 Respondent 1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all.

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9. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiffs 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff 6 Respondent 1 herein.”

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Perusal of the contents of gift deed and the properties mentioned therein would show that property mentioned by the appellant/plaintiff in the plaint to be almost different property and therefore also the amendment sought on the ground that the gift deed was executed with respect to the property, subject matter of the suit is not tenable.

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For the foregoing discussion and further considering that there is no pleading, satisfying the requirement of proviso to Order 6 Rule 17 of C.P.C. I am not inclined to accept the application for amendment filed by the appellant/plaintiff in this second appeal proceeding seeking amendment of plaint. Accordingly, application U/o. 6 Rule 17 of C.P.C. is dismissed.

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Now I will proceed to hear the parties on admission of this appeal.

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This second appeal U/s.100 of C.P.C. is filed by appellant/plaintiff questioning legality and sustainability of the impugned judgment and decree dated 07.12.2013, passed in Civil Appeal No.11-A/2013, whereby, learned 1^st Additional District Judge, Sakti, District – JanjgirChampa (C.G.) dismissed the appeal filed by appellant/plaintiff, upholding the judgment and decree dated 30.04.2013, in Civil Suit No.24-A/2011 wherein learned Civil Judge Class -1, Sakti, District – Janjgir-Champa dismissed the suit of appellant/plaintiff.

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For the sake of convenience, the parties will be referred to according to their respective status before the Trial Court.

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Facts relevant for disposal of this appeal are that plaintiff – Ganpat filed a civil suit for declaration of tile and possession in respect of the suit land situated at village Gadhwa, Old P.C. No.1, present P.C. No.2,

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Tahsil – Sakti bearing Khasra No.-41/1, 54/1, 74/1, 88/2, 111, 241/1, Joint Khasra No.-243/1, 245/1, 246, 256/2, 280/1, 262/1 admeasuring 0.31, 0.12, 0.25, 0.12, 0.60, 0.08 acres, and joint land area 0.32, 0.05, 0.83, and 0.15 acres respectively. In 11 khasra total area of land is 3.61 acres., It was pleaded that the aforesaid lands were owned and possessed by Anand Kunwar, daughter of Dokra. Anand Kunwar sold some of the land to various individuals during her lifetime, and purchasers are currently in possession of those land. The suit land belonged to Anand Kunwar, wife of the plaintiff. Anand Kunwar inherited the suit land from her father Dokra. Plaintiff is sole heir of Anand Kunwar. She died in May 2009. Defendant No. 1 has no title or right on the suit land, however, he recorded his name in revenue records in collusion with the revenue officials. The alleged will dated 19/06/05 said to be executed by Anand Kunwar is forged and fabricated, no will was executed by Anand Kunwar in favour of defendant No.1 as there is no thumb impression of Aanand Kunwar on the will. It was pleaded that Anand Kunwar was 75 years old and was seriously ill at the time of execution of disputed will. Defendant No.1 illegally got recorded the suit land in his name during lifetime of Anand Kunwar, which does not grant any ownership right to defendant No.1.

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Defendant No. 1 filed written statement denying plaint allegation. It was pleaded that plaintiff has filed the suit based on false, fictitious, and fabricated grounds. Anand Kunwar, having no issue, resided with defendant No. 1 and was pleased with the care and attention provided by the defendant, executed a will in his favor on 19/06/2005. After death of Anand Kunwar, suit land was recorded in name of defendant

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No. 1 in the revenue record and since then he is cultivating the suit land. It was further pleaded that Anand Kunwar inherited the property from her father, and therefore, her husband, plaintiff, does not have any right under the Hindu Succession Act 1956 and prays for dismissal of the suit.

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Learned trial Court based on the pleadings made by respective parties framed as many as five issues for consideration and upon appreciation of pleadings, oral and documentary evidence, dismissed the suit. Judgment and decree of learned trial Court was assailed by appellant/plaintiff before First Appellate Court in an appeal filed U/s. 96 of the C.PC., which was also dismissed by the impugned judgment and decree affirming judgment and decree passed by learned trial Court. Judgment and decree passed by learned First Appellate Court is under challenge in this appeal.

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Learned counsel for appellant/plaintiff would submit that the plaintiff in the plaint sought relief for declaration of title and possession and further declaration that mutation of name of defendant No.1 is illegal and without title and relief of possession after eviction of defendant No.1 from the suit property. In the pleadings there is specific averments made in para -6 that the will said to be executed on 19.06.2005 is forged and fabricated document. At the time of execution of the will, testator Anand Kunwar was old and infirm aged about 75 years and she was not physically and mentally fit. She was not having ability to think and understand the facts. Both the Courts below have recorded a finding that will said to be executed dated 19.06.2005 is validly proved in terms of Section 63 of the Hindu

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Succession Act, 1956 which in view of the evidence available on record is perverse. In support of his contention, she read over the deposition of Rama (D.W.-2) and Shyamlal (D.W.-4) and would submit that the witnesses have accepted that testator Anand Kunwar was ill as she suffered paralyses, which itself is sufficient to show that testator was not in a fit state of mind to execute the will.

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Submission of learned counsel for the appellant is opposed by learned counsel for defendant No1 and would submit that the learned both the Courts below upon appreciation of the documentary and oral evidence brought on record by respective parties have rightly concluded that the will has been proved by defendant in accordance with law. There is concurrent finding of both the Courts below in this regard. He contended that submission of learned counsel for appellants that the finding recorded by the learned both the Courts below are perverse to the evidence available on record is not sustainable. He also read over the evidence of Rama (DW.-2), Shyamlal (DW-4) attesting witnesses to the will as also the evidence of Mattu (DW.-3), the scribe, to contend that from the evidence of witnesses it is apparent that the will was proved to be executed in accordance with the provisions under Section 63 (3) (C) of the Indian Succession Act, 1925 (In short ‘the Act of 1925’).

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I have heard learned counsel for parties and perused records of both the Courts below.

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It is not in dispute that the parties to the suit are Hindus governed by Mitakshara Hindu Law. The suit land belonged to father of Anand Kunwar, who inherited it from her father in succession. The original

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plaintiff, Ganpat, is the husband of Anand Kunwar and Anand Kunwar died issueless.

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Perusal of the record reveals that the plaintiff has claimed ownership of the suit land as husband and sole legal heir of deceased Anand Kunwar, who had inherited suit land from her father, Dokara. The defendant, however, got the suit land recorded in his name on the basis of a Will said to be executed by Anand Kunwar during her lifetime in lieu of the care and attention provided by him. The plaintiff denied the execution of Will and pleaded that it is forged and fabricated.

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To prove his case, original plaintiff has produced certified copy of Khasra Panchshala of the suit land from 1983-84 to 1986-87 as (Ex.P.1), certified copy of B-1 Kishtbandi Khatauni of year 1992-93 as (Ex.P.2), certified copy of Khasra Panchshala of year 1993-94 to 1996-97 (Ex.P.-3), certified copy of B-1 Kishtbandi Khatauni of year 2000-01 (Ex.P.-4), certified copy of B-1 Kishtbandi Khatauni of year (2010-11 Ex.P.-5), certified copy of Khasra Panchshala of year 2002-03 to 200607 (Ex.P.-6) and certified copy of B-1 Kishtbandi Khatauni of year 2001-2002 of account of defendant No.1 (Ex.P.-7) and certified copy of the mutation register (Ex.P.-8).

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Plaintiff Ganpat (PW-1) in his evidence stated that Anand Kunwar was his wife, and they lived a happy married life for 4–5 years in his native village, Navagaon. Anand Kunwar was only daughter of Dokra, who later brought them to his village, Gudhwa. Since then, Ganpat and his wife resided in Gudhwa, where he cultivated and occupied land of Dokra. After death of Dokra, Ganpat performed all last rites, including

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cremation. He stated that the suit land, inherited by Anand Kunwar from her father, passed to him as her sole legal heir upon her death. He further stated that defendant No. 1 has no title or right over the suit land. Statement of plaintiff is supported by Maha Singh (PW-2) and Krishna Bai (PW-4).

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To prove the execution of Will by Anand Kunwar, defendant No.1 produced original Will dated 19.06.2005, which is exhibited as (Ex.D1) and also examined himself as (D.W.-1) and Rama as (D.W.-2), Mattu Lal Yadav as (D.W.-3) and Shyamlal as (D.W.-4). Rama (D.W.2) and Shyamlal (D.W.-4) are attesting witness to the Will and Mattu (D.W.-4) is scribe of the Will.

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Mohit Ram (D.W.-1) in his evidence has deposed that after the death of Dokra, Anand Kunwar became owner and possessor of the suit land as his legal heir. Anand Kunwar was childless, due to which she lived with him and pleased with his care and attention, executed a Will in his favour on 19/06/2005 in presence of witnesses and also proved the Will (Ex.D-1).

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Rama (D.W.-2), is attesting witness to the Will, supported the testimony of the defendant Mohitram (D.W.-1). He deposed that Anand Kunwar, being pleased with the care and attention given by Mohitram, executed a Will in his favour in presence of this witness. He further stated that the Will was written in his presence and at that time Jairam and the scribe, Mattu, were also present. Mattu drafted the Will as per instructions of Anand Kunwar. After the Will was prepared, it was read out to Anand Kunwar. Upon finding it correctly drafted, she affixed her thumb impression on it and thereafter Mohitram also signed. Rama

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testified that at the time of execution, Anand Kunwar was in good health, mentally sound, and fully capable of understanding and making decisions. He further stated that after signature of Anand Kunwar and Mohitram, he and other witnesses also signed the Will. This witness acknowledged his signature on A to A part of the Will (Ex.D-1).

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The statement of Rama (D.W.-2) is supported by another attesting witness to the Will, Shyamlal (D.W.-4), as well as by the scribe of the Will, Mattulal Yadav (D.W.-3). Mattulal Yadav (D.W.-3) stated that he prepared the Will as per instructions of Anand Kunwar and acknowledge his signatures on B to B part and C to C on the reverse side of the document. Similarly, Shyamlal (D.W.-4), an attesting witness, acknowledge his signature on E to E part of the Will (Ex.D-1) during his testimony.

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Defendant Mohitram (D.W.-1), attesting witnesses Rama (D.W.-2) and Shyamlal (D.W.-4), and the scribe of the Will, Mattulal Yadav (D.W.-3), were cross-examined at length on behalf of plaintiff. However, nothing adverse has come on record, so as to make their statements unreliable. All of them clearly stated that Anand Kunwar, being happy with the care and attention given by Mohitram, executed the Will in his favour on 19/06/2005 in their presence. Their statements remained consistent and unshaken throughout the cross-examination, and no contradictions or discrepancies have been pointed out that would challenge the credibility or reliability of their testimony.

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Section 63 of the Act of 1925 and Section 68 of the Evidence Act spell out the essential requirements of wills, and their proof, in a court of law. Relevant portion of Section 63 of the Act reads as under:-

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" 63 . Execution of unprivileged wills .--Every testator, not being a soldier employed in an expedition nor 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) - (b) * * *

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(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 Test Case 30/1989 Page 14 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."

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Section 68 of the Evidence Act reads thus:

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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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A bare reading of Section 63 (c) of the Act of 1925 makes it clear that the Will shall be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark to the Will. There is a further requirement that the witnesses have to sign the Will in presence of the testator. Section 68 of the Evidence Act states that

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such a document cannot be used as evidence till at least one attesting witness is called for the purpose of proving its execution, (if there such an attesting witness is alive), and subject to the process of the court and capable of giving evidence. Such witness has to be examined. before the document can be used in an evidence. A combined reading of Section 63 of the Act of 1925 with Section 68 of the Evidence Act, reveals that the propounder of a will has to prove that the will was duly and validly executed. That can be done by not merely by proving the testator's signature on the will, but also establishing that attestations were made properly as required by Section 63 (c) of the Act of 1925.

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Legal principles regarding proof of a Will have been indicated by Hon’ble Supreme Court in case of H. Venktachala Iyengar vs. B.N. Thimmajamma , reported in AIR 1959 SC 443 , which are as under:-

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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

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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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In case of Yumnam Ongbi Tampha Ibema Devi vs Yumnam

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Joykumar Singh and others , reported in (2009) 4 SCC 780 Hon’ble Supreme Court has discussed the requirements of a valid will and observed thus:-

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“13.As per provisions of Section 63 of the Succession Act, for the due execution of a Will:

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(1) the testator should sign or affix his mark to the Will;

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(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;

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(3) the Will should be attested by two or more witnesses, and

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(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 presence of the testator.

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In case of M.B. Ramesh (Dead) by LR’s vs. K.M. Veerajee Urs

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(Dead) by LR’s and others , reported in (2013) 7 SCC 490 , Hon’ble Supreme Court has held thus:-

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“20. In the present matter, there is no dispute that the requirement of Section 68 of the Evidence Act is satisfied, since one attesting witness i.e. PW-2 was called for the purpose of proving the execution of the will, and he has deposed to that effect. The question, however, arises as to whether the will itself could be said to have been executed in the manner required by law, namely, as per Section 63 (c) of the Succession Act. PW-2 has stated that

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he has signed the will in the presence of Smt. Nagammanni, and she has also signed the will in his presence. It is however contended that his evidence is silent on the issue as to whether Smt. Nagammanni executed the will in the presence of M. Mallaraje Urs, and whether M. Mallaraje Urs also signed as attesting witness in the presence of Smt. Nagammanni. Section 63 (c) of the Succession Act very much lays down the requirement of a valid and enforceable will that it shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will, and each of the witnesses has signed the will in the presence of the testator. As held by a bench of three judges of this Court (per Gajendragadkar J, as he then was) way back in R. Venkatachala Iyengar Vs. B N. Thimmajamma reported in AIR 1959 SC 443, that a will has to be proved like any other document except that evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Succession Act, apart from the one under Section 68 of the Evidence Act.”

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(emphasis supplied)

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34. In Jagdish Chand Sharma vs. Narain Singh Saini (dead) through LRs and others , reported in (2015) 8 SCC 615 , it was observed thus:-

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“52.While dwelling on the respective prescripts of Section 63 of the Act and Section 68 and 71 of Act 1872 vis-à-vis a document required by law to be compulsorily attested, it was held 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

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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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(emphasis supplied)

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Recently, the Hon’ble Supreme Court while interpreting Section 63 (c)

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of the Act of 1925 in Civil Appeal No.13192/2024 (Gopal Krishan & ors vs Daulat Ram & ors), decided on 2.1.2025, has observed thus:-

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“8. The requisites for proving of a Will are well established. They were recently reiterated in a Judgment of this Court in Meena Pradhan and others vs Kamla Pradhan and another. See also Shivkumar and others v. Sharanabasappa and others. The principle as summarized by the former are reproduced as below:-

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“…10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him;

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10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.

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10.3. A will is required to fulfill all the formalities required under Section 63 of the Succession Act, that is to say:

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(a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will;

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(b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;

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(c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;

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(d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required;

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10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;

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10.5. The attesting witness should speak not only about the testator’s signatures but also that each of the witnesses had signed the will in the presence of the testator;

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10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;

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10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;

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10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator’s last will. In such cases, the initial onus on the propounder becomes heavier; (2023) 9 SCC 734 (2021) 11 SCC 277

¶123

10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will;

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10.10. One who alleges fraud, fabrication, undue influence etcetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation;

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10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ”. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.”

¶127

One of the argument advanced by learned counsel for appellant is that Anand Kumar (Testator) was ill and not in a position to execute Will. As this plea is raised by appellant, it is the burden upon him to prove the ground raised.

¶128

Upon perusal of the material on record and in light of the law laid down by the Hon’ble Supreme Court in the aforementioned decisions interpreting Section 63 of the Indian Succession Act, 1925, it is apparent that Smt. Anand Kunwar executed a Will in favour of Defendant No. 1 on 19.06.2005 while being of sound mind and fully competent to make such decision. Both attesting witnesses to the Will, namely Rama (D.W.-2) and Shyamlal (D.W.-4), have been examined. They have deposed that Smt. Anand Kunwar, being satisfied with the care and attention extended to her by Mohitram, executed the Will in his favour in their presence. Will was drafted by Mattu in accordance with the instructions of Smt. Anand Kunwar, thereafter read over to her, and thereafter she affixed her thumb impression thereon in their

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presence, after which Mohitram also signed the document. The attesting witnesses have affirmed their signatures on the Will and also made statement that at the time of execution, Smt. Anand Kunwar was in good health, mentally sound, and fully capable of understanding and making decisions. The scribe, Mattu (D.W.-3), has corroborated these facts. In view of the foregoing evidence, the Courts below have correctly concluded that the Will executed by Smt. Anand Kunwar was duly executed in accordance with law and is valid.

¶131

So far as the submission of learned counsel for appellant/plaintiff that the plaintiff/husband has full right and ownership over the property of his wife after her death, is concerned, it is admitted fact that Anand Kunwar inherited the suit property from her father in succession and she died issueless, therefore, plaintiff being husband of Anand Kunwar would not inherit the suit land. As per Section 15 of Hindu Succession Act, 1956, if a Hindu woman dies intestate, her property shall devolve in accordance with the provisions of Section 16 of the Hindu Succession Act, 1956, however, where a Hindu woman has left a valid Will, her property shall be disposed of as per terms and conditions of Will.

¶132

Hon’ble Supreme Court in case of Bhagat Ram v. Teja Singh, (1999) 4 SCC 86 observed thus :-

¶133

“6. On a perusal of the two sub-sections we find that their spheres are very clearly marked out. So far as sub-section (1) is concerned, it covers the properties of a female Hindu dying intestate. Sub-section (2) starts with the words “Notwithstanding anything contained in sub-section (1)”. In other words, what falls within the sphere of sub-section (2),

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sub-section (1) will not apply. We find that Section 15(2)( a ) uses the words “any property inherited by a female Hindu from her father or mother”. Thus property inherited by a female Hindu from her father and mother is carved out from a female Hindu dying intestate. In other words any property of a female Hindu, if inherited by her from her father or mother would not fall under sub-section (1) of Section 15. Thus, property of a female Hindu can be classified under two heads: every property of a female Hindu dying intestate is a general class by itself covering all the properties but sub-section (2) excludes out of the aforesaid properties the property inherited by her from her father or mother.

¶136

8. In the present case, it is not in dispute that both Indro and Santi inherited this property from their mother, hence they inherited this property as females from their mother. Thus on the facts of this case succession clearly falls under sub-section (2). Hence, we have no hesitation to hold that on the facts of this case, the property would devolve after the death of Santi not on the heirs of her predeceased husband but would devolve on Indro. This legal principle has wrongly been decided by all the courts below including the High Court.”

¶137

40. In case of V. Dandapani Chettiar v. Balasubramanian Chettiar, (2003) 6 SCC 633, Hon’ble Supreme Court has held as under :-

¶138

9. The above section propounds a definite and uniform scheme of succession to the property of a female Hindu who dies intestate after the commencement of the Act. This section groups the heirs of a female intestate into five categories described as Entries ( a ) to ( e ) and specified in sub-section (1). Two exceptions, both of the same nature are engrafted by sub-section (2) on the otherwise uniform

¶139

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order of succession prescribed by sub-section (1). The two exceptions are that if the female dies without leaving any issue, then ( 1 ) in respect of the property inherited by her from her father or mother, that property will devolve not according to the order laid down in the five Entries ( a ) to ( e ), but upon the heirs of the father; and ( 2 ) in respect of the property inherited by her from her husband or father-in-law, it will devolve not according to the order laid down in the five Entries ( a ) to ( e ) of sub-section (1) but upon the heirs of the husband. The two exceptions mentioned above are confined to the property “inherited” from the father, mother, husband and father-in-law of the female Hindu and do not affect the property acquired by her by gift or by device under a Will of any of them. The present Section 15 has to be read in conjunction with Section 16 which evolves a new and uniform order of succession to her property and regulates the manner of its distribution. In other words, the order of succession in case of property inherited by her from her father or mother, its operation is confined to the case of dying without leaving a son, a daughter or children of any predeceased son or daughter.

¶141

10. Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a predeceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2)( a ). If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section 15(2)( b ). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including the

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children of any predeceased son or daughter, then the property would devolve upon the heirs of her father. Result would be — if the property is inherited by a female from her father or her mother, neither her husband nor his heirs would get such property, but it would revert back to the heirs of her father.

¶144

17. It will be seen from the facts of the present case that Rajathiammal had inherited the property from her mother, the section applicable will be Section 15(2) of the Act, according to which the properties will go to the heirs of her father and, therefore, the appellant-plaintiff and Respondents 2-9/Defendants 2-9 who are the sons and daughters of Rajathiammal's father, Venugopal Chettiar, through his third wife Nagalakshmi would be entitled to the suit properties. Therefore, the case put forward by the first defendant and other contesting defendants that Rajathiammal inherited the properties not from her mother but also from her grandmother and great-grandmother, and, therefore, Section 15(1) of the Act would only apply, cannot at all be countenanced.”

¶145

Learned trial Court upon appreciating of evidence have recorded a finding that plaintiffs failed to prove their case and dismissed the suit, which is affirmed by learned First Appellate Court. There is concurrent finding recorded by both the Courts.

¶146

Supreme Court in its various decisions has made it clear that a second appeal can be dismissed at the admission stage if substantial question of law does not arise in a given case. In case of C. Doddanarayana Reddy (Dead) by L.Rs. and Ors. Vs. C. Jayarama Reddy (Dead) by L.Rs. and Ors. (2020) 4 SCC 659, Hon’ble Supreme Court has observed and concluded thus:-

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“25. The question as to whether a substantial question of law arises, has been a subject-matter of interpretation by this Court. In the judgment in Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan13, it was held that findings of the fact could not have been interfered within the second appeal. This Court held as under: (SCC pp. 347-48, paras 12-15)

¶149

“12. This Court had repeatedly held that the power of the High Court to interfere in second appeal under Section 100 CPC is limited solely to decide a substantial question of law, if at all the same arises in the case. It has deprecated the practice of the High Court routinely interfering in pure findings of fact reached by the courts below without coming to the conclusion that the said finding of fact is either perverse or not based on material on record.

¶150

13. In Ramanuja Naidu v. Vs. Kanniah Naidu (1996) 3 SCC 392, this Court held : (SCC 393)

¶151

‘It is now well settled that concurrent findings of fact of trial court and first appellate court cannot be interfered with by the High Court in exercise of its jurisdiction under Section 100 of the Civil Procedure Code. The Single Judge of the High Court totally misconceived his jurisdiction in deciding the second appeal under Section 100 of the Code in the way he did.'.

¶152

14. In Navaneethammal v. Arjuna Chetty (1996) 6 SCC 166, this Court held: (SCC p. 166)

¶153

‘Interference with the concurrent findings of the courts below by the High Court under Section 100 CPC must be avoided unless warranted by compelling reasons. In any case, the High Court is not expected to reappreciate the evidence just to replace the findings of the lower courts. ... Even assuming that another view is possible on a reappreciation of the same evidence, that should not have been done by the High Court as it cannot be said that the view taken by the first appellate court was based on no material.'

¶154

15. And again in Taliparamba Education Society v. Moothedath c Mallisseri Illath M.N. (1997) 4 SCC 484, this Court held: (SCC p. 486, para 5)

¶155

'5.... The High Court was grossly in error in trenching upon the appreciation of evidence under

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Section 100 CPC and recording reverse finding of fact, which is impermissible.' "

¶158

29. The learned High Court has not satisfied the tests laid down in the aforesaid judgments. Both the courts, the trial court and the learned first appellate court, have examined the school leaving certificate and returned a finding that the date of birth does not stand proved from such certificate. May be the High Court could have taken a different view acting as a trial court but once,two courts have returned a finding which is not based upon any misreading of material documents, nor is recorded against any provision of law, and neither can it be said that any Judge acting judicially and reasonably could not have reached such a finding, then, the High Court cannot be said to have erred. Resultantly, no substantial question of law arose for consideration before the High Court.

¶159

30. Thus, we find that the High Court erred in law in interfering with the finding of fact recorded by the trial court as affirmed by the first appellate court. The findings of fact cannot be interfered with in a second appeal unless, the findings are perverse. The High Court could not have interfered with the findings of fact.”

¶160

In case of State of Rajasthan and Ors. Vs. Shiv Dayal and Ors. (2019) 8 SCC 637 Hon’ble Supreme Court has observed and concluded thus:-

¶161

“16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (See observation made by learned Judge, Vivian Bose, J., as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar [Rajeshwar Vishwanath Mamidwar Vs. Dashrath Narayan Chilwelkar, 1942 SCC OnLine MP 26 : AIR 1943 Nag 117].

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17. In our opinion, if any one or more ground, as mentioned above, is made out in an appropriate case on the basis of the pleading and evidence, such ground will constitute substantial question of law within the meaning of Section 100 of the Code.”

¶164

In the instant case, in the light of the above discussion and decisions of Hon’ble Supreme Court, this Court is of the view that no substantial question of law. Hence, this second appeal is dismissed at admission stage.

¶165

Decree be drawn accordingly.

¶166

Sd/(Parth Prateem Sahu) Judge

¶167

Balram

Ganpat (Died) through LRs v. Mohitram and Anr.

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Ganpat (Died) through LRs v. Mohitram and Anr.

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