REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.  7250    OF 2008 [ARISING OUT OF S.L.P. (CIVIL) NO. 1400 OF 2007]

BHARPUR SINGH & ORS.       … APPELLANTS

Versus

SHAMSHER SINGH      … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Leave granted.

2. Ram Devi,  the testatrix,  widow of Jiwan Singh resident  of Village

Gharuan,  Tehsil  Kharar,  District  Ropar,  Punjab,  whose  legal  heirs  and

representatives  are the appellants,  executed  a will  on or  about  30.3.1962

when  she  was  aged  about  75  years  of  age.   She  breathed  her  last  on

19.6.1990.   

To show the relationship between the parties, we may at the outset

notice the genealogical table.

Rattan Singh !

--------------------------------------------------------------------------             !                                                                                                ! Roop Singh Jodh Singh  

           !    ------------------------    !                             !

    ! Diwan Singh       !

Krishan Singh     !

Lal Singh ---------------------------    !                             ! Ran Singh         Harnam                            Singh

-------------------------------    !                            !    !                            !

   ! Jiwan Singh

Nagina Wariam Singh  

    !      !

  ! Ram Devi Manna Singh      !    !    !

------------------------------------------------------     !                  !                     !                     !

Shamsher Singh

Pritam Kaur Died

Basso Died

Gurdial Kaur @ Dialo  Defendant

Kakko  Defendant

Admittedly, the two surviving daughters of the testatrix, namely, Smt.

Gurdial Kaur alias Dialo and Smt. Kakko were married and had been living

at far away places.  Respondent being the beneficiary under the said Will

filed a suit  in the year 1993 against the appellants, inter alia,  praying for

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setting aside an order of mutation passed in their favour on the premise that

relying on or on the basis thereof, the appellants had threatened to alienate

the suit land and dispossess him therefrom.   

Plaintiff – Respondent in his plaint alleged that during the life time of

the testatrix, he used to look after her and in fact she expired in the house of

his daughter Iqbal Kaur.   

3. Admittedly, she had four daughters, out of whom the defendants were

alive but were disinherited by her in the said Will.  However, when an order

of mutation was passed in favour of appellants, the said suit was filed.   

4. Appellants  in  their  written  statement  denied  and  disputed  the

contentions raised by the plaintiff that Ram Devi used to be looked after by

the plaintiff.  According to them, no will had been executed by Ram Devi in

view of services rendered by him as alleged or at all.  According to them, as

Jiwan Singh, the husband of Ram Devi was murdered about 60 years back,

she lost  her  balance  of  mind and had not  been possessing  sound mental

faculties.  According to the defendants, she was being looked after by her

daughters.

5. The  learned  Subordinate  Judge,  1st Class,  Kharar,  in  view  of  the

pleadings of the parties, framed the following issues:

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“1. Whether the plaintiff is owner in possession of the suit land?

2. Whether  Smt.  Ram Devi  executed  a  legal and  valid  will  dated  30.3.1962  in  favour  of  the plaintiff, if so, its effect?

3. Whether the plaintiff has been mortgagee in possession  of  land  bearing  Kh/Kh.  No.  25/59 described in head note of the plaint?

4. If issue No. 3 is proved, whether equity of redemption has been extinguished?

5. Whether  plaintiff  is  entitled  to  decree  of permanent injunction prayed for?

6. Whether the plaintiff is estopped by his act and conduct to file the present suit?

7. Relief”

The learned trial judge held that ‘the plaintiff had failed to prove that

Ram Devi  executed  a  legal  and  valid  will  in  his  favour  out  of  sound

disposing mind.’   

Inter  alia,  opining  that  the  plaintiff  was  an  outsider,  it  was

furthermore held:

“Although  in  the  will  it  finds  mention  that  the legatee Shamsher Singh is nephew of husband of testatrix and that  Bijla  Singh father of Shamsher Singh helped testatrix  at  the time of marriage of her daughters, but the plaintiff in his pleadings has nowhere pleaded so, nor did any evidence in that regard.   Thus  these  contentions  in  the  will  are

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obviously contrary to factual position and it comes out  that  Shamsher  Singh  is  not  related  to  Ram Devi in any way.  The plaintiff did not lead even an iota of evidence to establish that he had been looking  after  and  serving  the  testatrix  till  her death.  Except  the  solitary  statement  of  plaintiff which is a self-serving, no other person from the village  came forward  to  support  the  plaintiff  on this  point.  PW4  Pritam  Singh  the  only  witness from village Ghruan examined by the plaintiff did not utter even a single word in that regard.  The plaintiff  did  not  produce  any  evidence  to  prove that he had joint ration card with Smt. Ram Devi and Ram Devi was having a vote at his address. The  contention  of  the  plaintiff  that  Ram  Devi expired  at  Rajpura  in  the  house  of  his  daughter Iqbal Kaur, does not make any sense since he is silent as to what Ram Devi was doing at the house of  his  daughter  at  that  time.   Furthermore,  the plaintiff  did not  examine Iqbal  Kaur  or  anybody else from Rajpura to establish that Ram Devi was putting up with Iqbal Kaur, widowed daughter of the plaintiff.  The plaintiff has nowhere pleaded in his  pleadings  that  Smt.  Ram  Devi  had  been residing with his daughter Iqbal Kaur at Rajpura and Iqbal Kaur has been looking her.  A perusal of the file goes to show that the plaintiff and prior to his father have been in possession of a portion of suit land as tenant and ever the remaining suit land as mortgagee.   If  relations  between the plaintiff, his father on one side and Ram Devi on other side were so cordial and the former had been looking after and serving the latter, there was no need for Ram Devi to mortgage a portion of suit land with them and  to  give  the  remaining  land  on  rent  to them.  That  goes to show that  relations  between them were professional and business type.  It cuts at the root of the case of plaintiff that he had been looking after and serving Ram Devi and Ram Devi executed  a  will  in  his  favour  out  of  love  and affection.”

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The  learned  Subordinate  Judge,  1st Class,  Kharar,  Punjab,  by  his

judgment and decree dated 24.8.1995 decided issue nos. 1 and 2 in favour

of the appellants.  The learned Judge granted a decree for declaration to the

effect  that  the  plaintiff-respondent  was  owner-in-possession  of  the  land

bearing Kh/Kh. No. 25/59 Kh. No. 1644(5-0), 1645 (3-0), 1646 (6-5), 1647

(6-5), 1648 (5-10) situated at village Gharuan as per Jamabandi of the year

1988-89 with the consequent relief of permanent injunction restraining the

defendants  -  appellants  from  alienating  that  part  of  the  land  in  suit.

However, other reliefs prayed for in the suit were not granted.   

6. Being  aggrieved  by  and  dissatisfied  therewith,  both  the  parties

preferred appeals thereagainst.

7. By reason of a judgment and order dated 1.10.1999, Appellate Court

held that the execution of the will must be held to have been proved and all

suspicious circumstances have been dispelled, stating:

“...the  only conclusion  that  can be drawn is  that will is a genuine document and was executed more than 28 years back by the deceased out of her own free will  and she never tried to cancel  the same. The fact that some land of the deceased was lying mortgaged with  the  father  of  the  plaintiff  in  the revenue record does not mean that there was only commercial relations between the parties. First of all,  the  original  mortgage deed has  not  come on

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the file to indicate whether plaintiff  or his father got  the  land  in  mortgage  or  whether  they purchased  the  mortgagee  rights  from  somebody else.  The fact that Shamsher Singh participated in the execution of  the will  itself  does not  indicate that he exercised any influence over deceased Ram Devi.  If it was so there was no reason as to why Ram Devi  did  not  get  it  cancelled  within  more than 28 years of her life after the execution. The defendants on the other hand have not proved any ration card or voter list as claimed by Dialo in her statement  on  oath,  to  indicate  that  the  deceased was  permanently  living  with  them.   In  the  will, complete details have been given.  It is mentioned that deceased has four daughters and two of them have already died.  If the plaintiff is a stranger, he will  not  know  this  fact.   The  will  is  always executed to deviate from the natural succession.  If the  deceased  wanted  that  her  daughter  would succeed her then there was no need to execute the will…”

The appellate court allowed both the appeals, stating:

“As a result  of  fore-going discussion,  the appeal titled as Dialo etc. Vs. Shamsher Singh No. 241 of 27.9.1995,  RT  No.  148/27.9.1995/27.2.1999  is accepted  as  issues  No.  3  and  4  are  decided  in favour of the defendants and against the plaintiff. The appeal titled as Shamsher Singh Vs. Dialo etc. No. 236/7.9.1995, RT No. 439/7.9.1995, 2.6.1999 is  also  accepted  on  account  of  my  findings  on issues No. 1 and 2 and 5.  As a result thereof, the suit of plaintiff is partly decreed and declaration is granted to the effect that he has become owner in possession  of  the  suit  land  fully  detailed  in  the head note of the plaint on the basis of registered will  Ex.  P2  dated  30.3.1962  executed  by  Ram

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Devi  widow  of  Jiwan  Singh.   Permanent injunction  is  also  granted  restraining  the defendants from alienating the suit property in any manner or interfering in the peaceful possession of the plaintiff in any manner.  Further, the suit qua relief on the basis of non-redumption of mortgagee rights is dismissed.”

8. The Second Appeal preferred by appellants herein was dismissed by

the High Court by reason of the impugned judgment, holding:

“The Will in question was executed on 30.3.1962 and the testator is said to have died on 19.6.1990. The fact that during this entire period, the testator did  not  have  any second thoughts  goes  to  show about  the  clarity  of  the  intention  of  the  testator. The  fact  that  it  was  registered  only  lends  more credence to the validity of the Will.  It is also in evidence  that  Gurdial  Kaur  and  Kako  were  not staying with  their  mother  and had not  supported her during her life time.  In their testimony, they have stated that they came to know about the death of  Ram  Devi  about  5  to  6  days  after  she  had expired.   In  fact,  all  the  defence witnesses  have admitted  this  fact.   This  is  a  reflection  and  a measure of  the relationship  of  Gurdial  Kaur  and Kako were having with their mother at the time of her death.  On the other hand, Ram Devi is said to have died in the house of Iqbal Kaur, daughter of the  plaintiff-respondent.   This  was  sufficient reason for the testator to have deprived the natural heirs of the right to succession.”

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9. Mr.  Neeraj  Kumar  Jain,  learned  counsel  appearing  on  behalf  of

appellants would submit:-

i. The first appellate court as also the High Court must be

held to have committed a serious error in arriving at the

aforementioned  findings  insofar  as  they  failed  to  take

into  consideration  that  the  respondent/plaintiff  did  not

produce  the  Will  before  the  Revenue  authorities  and

furthermore did not make any attempt to file a suit on the

basis thereof for a period of three years from the date of

death of the testatrix.

ii. The  plaintiff  had  not  been  able  to  prove  that  the

relationship between Ram Devi and her  daughters  was

strained.

iii. An agnate separated by five degrees cannot be said to be

a relation, which would be a sufficient ground for an old

lady to execute a will in his favour.

iv. No reason  has  been  assigned  as  to  why the  daughters

have been disinherited by the testratix.

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v. The  left  thumb  impression  of  the  testatrix  was  not

compared with her  left  thumb impression  appearing in

the  deed  of  mortgage  which  was  said  to  have  been

executed in favour of the plaintiff and, thus, no reliance

could have been placed thereupon.  

vi. The beneficiary of the will being mortgagees and tenants

coupled with other factors, it should have been held by

the  courts  below  that  the  Will  was  surrounded  by

suspicious circumstances.  

10. Mr. S.D. Sharma, learned Senior Counsel appearing on behalf of the

respondent, on the other hand, would contend:-

i. Shamsher  Singh  being  one  of  the  collaterals  and  he  having

been looking after Ram Devi, the testatrix, the execution of the

Will must be said to have been proved.   

ii. The  Will  being  a  registered  one,  its  genuineness  should  be

presumed.   The same in  any event  having been executed  on

30.3.1962,  its  execution  must  be  held  to  have  been  proved

being a document more than 30 years old.

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iii. The fact that the appellants, although daughters, came to know

about their  mother’s death six days after the same had taken

place,  evidently  shows  that  they  had  not  been  looking  after

their mother during her old days.

iv. Appellants have failed to prove that they had been maintaining

any relationship with their mother and at her old age she was

being looked after by them.

11. The legal  principles  in  regard to  proof of  a will  are  no longer  res

integra.  A will must be proved having regard to the provisions contained in

clause (c) of Section 63 of the Indian Succession Act, 1925 and Section 68

of the Indian Evidence Act, 1872, in terms whereof the propounder of a will

must  prove  its  execution  by  examining  one  or  more  attesting  witnesses.

Where,  however,  the validity of the Will  is  challenged on the ground of

fraud,  coercion or undue influence, the burden of proof would be on the

caveator.   In  a  case  where  the  Will  is  surrounded  by  suspicious

circumstances, it would not be treated as the last testamentary disposition of

the testator.   

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12. This Court in H. Venkatachala Iyengar vs. B.N. Thimmajamma [AIR

1959  SC 443] opined  that  the  fact  that  the  propounder  took  interest  in

execution  of  the  Will  is  one  of  the  factors  which  should  be  taken  into

consideration for determination of due execution of the Will.  It was also

held that one of the important features which distinguishes Will from other

documents is that the Will speaks from the date of death of the testator, and

so, when it is propounded or produced before a court, the testator who has

already departed the world cannot say whether it is his will or not; and this

aspect naturally introduces an element of solemnity in the decision of the

question as to whether the document propounded is proved to be the last

will and testament of the departed testator.    

It was also held that the propounder of will must prove:  

(i) that  the  Will  was  signed  by  the  testator  in  a  sound  and

disposing  state  of  mind  duly  understanding  the  nature  and

effect of disposition and he put his signature on the document

of his own free will, and  

(ii) when  the  evidence  adduced  in  support  of  the  Will  is

disinterested, satisfactory and sufficient to prove the sound and

disposing state of testator’s mind and his signature as required

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by law, Courts would be justified in making a finding in favour

of propounder, and  

(iii) If  a  Will  is  challenged  as  surrounded  by  suspicious

circumstances, all such legitimate doubts have to be removed

by  cogent,  satisfactory  and  sufficient  evidence  to  dispel

suspicion.  

In  other  words,  the  onus  on  the  propounder  can  be  taken  to  be

discharged on proof of the essential facts indicated therein.  

It was moreover held:-

“20. There may, however, be cases in which the execution  of  the  will  may  be  surrounded  by suspicious circumstances. The alleged signature of the testator  may be very shaky and doubtful and evidence in support of the propounder's case that the  signature  in  question  is  the  signature  of  the testator may not remove the doubt created by the appearance of the signature;  the condition of the testator's  mind may appear to be very feeble and debilitated;  and  evidence  adduced  may  not succeed in removing the legitimate doubt as to the mental  capacity  of  the  testator;  the  dispositions made  in  the  will  may  appear  to  be  unnatural, improbable  or  unfair  in  the  light  of  relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the court  would  naturally  expect  that  all  legitimate suspicions  should  be completely removed before the  document  is  accepted  as  the  last  will  of  the

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testator.  The  presence  of  such  suspicious circumstances  naturally tends  to  make the initial onus  very  heavy;  and,  unless  it  is  satisfactorily discharged, courts would be reluctant to treat the document as the last will of the testator. It is true that,  if  a  caveat  is  filed  alleging  the  exercise  of undue influence,  fraud or  coercion  in  respect  of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without  such  pleas  circumstances  may  raise  a doubt as to whether the testator was acting of his own free will  in  executing  the will,  and in  such circumstances,  it  would  be  a  part  of  the  initial onus to remove any such legitimate doubts in the matter.”  

13. This Court in Niranjan Umeshchandra Joshi vs. Mrudula Jyoti Rao &

ors. [2006 (14) SCALE 186], held:

“33. The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having  a  sound  disposition  of  mind  and understood  the  nature  and  effect  thereof.  If sufficient  evidence  in  this  behalf  is  brought  on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In  the  case  of  proof  of  Will,  a  signature  of  a testator  alone  would  not  prove  the  execution thereof, if his mind may appear to be very feeble and  debilitated.  However,  if  a  defence  of  fraud, coercion or undue influence is raised, the burden would  be  on  the  caveator.  [See  Madhukar  D.

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Shende v.  Tarabai Shedage (2002) 2 SCC 85 and Sridevi and Ors. v. Jayaraja Shetty and Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.  

34. There  are  several  circumstances  which would have been held to be described (sic) by this Court as suspicious circumstances:

(i) When  a  doubt  is  created  in  regard  to  the condition of mind of the testator despite his signature on the Will;

(ii) When  the  disposition  appears  to  be unnatural or wholly unfair in the light of the relevant circumstances;

(iii) Where propounder himself takes prominent part in the execution of Will which confers on him substantial benefit.

[See  H.  Venkatachala  Iyengar v.  B.N. Thimmajamma and  Ors. AIR  1959  SC 443  and Management Committee T.K. Ghosh's Academy v. T.C. Palit and Ors. AIR 1974 SC 1495]”

14. Respondent was a mortgagee of the lands belonging to the testatrix.

He is also said to be the tenant in respect of some of the properties of the

testatrix.  It has not been shown that she was an educated lady.  She had put

her left thumb impression.  In the aforementioned situation, the question,

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which  should  have  been  posed,  was  as  to  whether  she  could  have  an

independent advice in the matter.  For the purpose of proof of will, it would

be necessary to consider what was the fact situation prevailing in the year

1962.  Even assuming the subsequent  event,  viz.,  the appellants  had not

been looking after their mother as has been inferred from the fact that they

received the news of her death only six days after her death took place, is

true, the same, in our opinion, would be of not much significance.   

The provisions of Section 90 of the Indian Evidence Act keeping in

view the nature of proof required for proving a Will have no application.  A

Will  must  be  proved  in  terms  of  the  provisions  of  Section  63(c)  of  the

Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act,

1872.  In the event the provisions thereof cannot be complied with, the other

provisions  contained  therein,  namely,  Sections  69  and  70  of  the  Indian

Evidence  Act  providing  for  exceptions  in  relation  thereto  would  be

attracted.  Compliance with statutory requirements for proving an ordinary

document  is  not  sufficient,  as  Section  68  of  the  Indian  Evidence  Act

postulates  that  execution must  be proved by at  least  one of  the attesting

witness,  if  an attesting witness  is  alive and subject  to the process of  the

Court  and  capable  of  giving  evidence.   {See  B.  Venkatamuni  vs.  C.J.

Ayodhya Ram Singh & ors. [(2006) 13 SCC 449]}  

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15. This Court  in  Anil Kak  vs.  Kumari Sharada Raje & ors. [(2008) 7

SCC 695] opined that court is required to adopt a rational approach and is

furthermore  required  to  satisfy  its  conscience  as  existence  of  suspicious

circumstances play an important role, holding:

“52.  Whereas  execution  of  any  other  document can  be  proved  by  proving  the  writings  of  the document  or  the  contents  of  it  as  also  the execution  thereof,  in  the  event  there  exists suspicious  circumstances  the  party  seeking  to obtain  probate  and/  or  letters  of  administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.

53. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.

54. It  may  be  true  that  deprivation  of  a  due share by (sic to) the natural heir by itself may not be held to be a suspicious circumstance but it  is one  of  the  factors  which  is  taken  into consideration  by  the  courts  before  granting probate of a Will.  

55. Unlike  other  documents,  even  animus attestandi is a necessary ingredient for proving the attestation.”

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Unfortunately, the first appellate court as also the High court did not

advert to these aspects of the matter.  

16. We may notice that in Jaswant Kaur vs. Amrit Kaur     &     ors.   [(1977) 1

SCC 369] this Court pointed out that when the Will is allegedly shrouded in

suspicion,  its  proof  ceases  to  be  a  simple  lis  between  the  plaintiff  and

defendant.   An adversarial  proceeding in such cases becomes a matter  of

Court’s conscience and propounder of the Will has to remove all suspicious

circumstances to satisfy that Will was duly executed by testator wherefor

cogent and convincing explanation of suspicious circumstances shrouding

the making of Will must be offered.  

17. Suspicious  circumstances  like  the  following  may  be  found  to  be

surrounded in the execution of the Will:

i. The signature of the testator may be very shaky and doubtful or

not appear to be his usual signature.   

ii. The condition of the testator’s  mind may be very feeble and

debilitated at the relevant time.  

iii. The disposition may be unnatural, improbable or unfair in the

light of relevant circumstances like exclusion of or absence of

adequate provisions for the natural heirs without any reason.

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iv. The  dispositions  may  not  appear  to  be  the  result  of  the

testator’s free will and mind.

v. The propounder takes a prominent part in the execution of the

Will.  

vi. The testator used to sign blank papers.  

vii. The Will did not see the light of the day for long.  

viii. Incorrect recitals of essential facts.

18. The circumstances narrated hereinbefore are not exhaustive.  Subject

to  offer  of  reasonable  explanation,  existence  thereof  must  be  taken  into

consideration  for  the  purpose  of  arriving  at  a  finding  as  to  whether  the

execution of the Will had duly been proved or not.   

It may be true that the Will was a registered one, but the same by

itself would not mean that the statutory requirements of proving the Will

need not be complied with.  

19. We, therefore, keeping in view the peculiar facts and circumstances

of this  case,  are of  the opinion that  the  impugned judgment of the High

Court as also the first appellate court should be set aside and the matter be

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directed  to  be  considered  afresh  in  the  light  of  the  observations  made

hereinbefore by the first appellate court.  It is ordered accordingly.   

The  appeal  is  allowed  with  the  aforementioned  observations  and

directions.  However, in the facts and circumstances of the case, there shall

be no order as to costs.  

……………….…..………….J. [S.B. Sinha]

..………………..……………J. [Cyriac Joseph]

New Delhi; December 12, 2008

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