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C.R. Nos. 87/2018 & 70/2018

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

CIVIL REVISION NO. 87 OF 2018

[Order Reserved on : 15.09.2023]

[Order Delivered on : 06.10.2023]

1.Bahura, W/o Late Mahadev Das, aged about 51 years,

2.Lala Das, S/o Late Mahadev Das, aged about 36 years,

3.Dipak Das, S/o Late Mahadev Das, aged about 26 years,

4.Dinesh Das, S/o Late Mahadev Das, aged about 21 years,

5.Sarojni, D/o Late Mahadev Das, aged about 27 years,

6.Rajni, D/o Late Mahadev Das, aged about 22 years,

All above are residents of Village Pipra, Tahsil Nawagarh,

presently Village Sonthi, Tahsil Champa, District Janjgir-

Champa (C.G.)

... Applicant(s)

Versus

1.Darasram, S/o Shivlal, aged about 55 years,

2.Afisar Das, S/o Chhedi Das, aged about 50 years,

3.Manejar Das, S/o Chhedi Das, aged about 48 years,

4.Parwati, D/o Chhedi Das, aged about 57 years,

5.Bhuru Das, S/o Chhedu Das, aged about 67 years,

6.Padum Das, S/o Chhedu Das, aged about 55 years,

7.Shanti Bai (since died and stands deleted in compliance of

Court Order dated 25-11-2022).

All above are residents of Village Pipra, Tahsil Nawagarh,

District Janjgir-Champa (C.G.)

8.Aam Janta whosoever is interested.

... Non-applicant(s)

AND

CIVIL REVISION NO. 70 OF 2018

1.Bahura, W/o Late Mahadev Das, aged about 51 years,

2.Lala Das, S/o Late Mahadev Das, aged about 36 years,

3.Dipak Das, S/o Late Mahadev Das, aged about 26 years,

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C.R. Nos. 87/2018 & 70/2018

4.Dinesh Das, S/o Late Mahadev Das, aged about 21 years,

5.Sarojni, D/o Late Mahadev Das, aged about 27 years,

6.Rajni, D/o Late Mahadev Das, aged about 22 years,

All above are residents of Village Pipra, Tahsil Nawagarh,

presently Village Sonthi, Tahsil Champa, District Janjgir-

Champa (C.G.)

... Applicant(s)

Versus

1.Darasram, S/o Shivlal, aged about 55 years,

2.Afisar Das, S/o Chhedi Das, aged about 50 years,

3.Manejar Das, S/o Chhedi Das, aged about 48 years,

4.Parwati, D/o Chhedi Das, aged about 57 years,

5.Bhuru Das, S/o Chhedu Das, aged about 67 years,

6.Padum Das, S/o Chhedu Das, aged about 55 years,

7.Shanti Bai (since died and stands deleted in compliance of

Court Order dated 25-11-2022)

All above are residents of Village Pipra, Tahsil Nawagarh,

District Janjgir-Champa (C.G.)

8.General Public

... Non-applicant(s)

For Applicants in both :-Mr. Somnath Verma,

the Civil Revisions Advocate.

For Non-applicant No.1 :-Mr. Vaibhav A. Goverdhan,

in both the Civil Revisions Advocate.

For Non-applicants No.2 to 6 :- None appeared, though

& 8 in both Civil Revisions served.

Hon'ble Shri Justice Sanjay K. Agrawal

C A V Order

1.Invoking the revisional jurisdiction of this Court under

Section 384(3) of the Indian Succession Act, 1925 (hereinafter

shall be referred to as, 'the Act of 1925'), Bahura and others, who

are applicants in both the instant civil revisions, have preferred

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C.R. Nos. 87/2018 & 70/2018

these civil revisions calling in question the common judgment

dated 5.4.2018 passed by the District Judge, Janjgir-Champa by

which the learned District Judge has allowed the appeal filed by

Darasram granting Succession Certificate in his favour and

further dismissed the appeal preferred by the applicants herein.

2.Since common questions of law and facts are involved in

both the civil revisions, they have been clubbed together, heard

together and are being disposed of by this common order.

3.Two persons namely Narayan and Phool Bai were husband

and wife and were issueless. They were murdered and the police

had seized total Rs.7,20,102/- as well as some silver & gold

ornaments amounting to Rs.2,00,000/- approximately from their

house. In the murder case of Narayan and Phool Bai, one Suresh

& three other accused persons were prosecuted for the offence

punishable under Sections 302, 460/34 of IPC in Sessions Trial

No.93/2010 before the Sessions Judge, Janjgir-Champa. In the

said sessions trial, the original applicant Mahadev Das had

submitted an application for grant of the aforesaid seized

property on supurdnama in his favour stating inter-alia that the

deceased Narayan and Phool Bai were his fufa and bua and he

being the nearest relative of Narayan and Phool Bai is their

successor and accordingly he is entitled for the seized amount

and ornaments. However, the Sessions Court vide its order dated

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C.R. Nos. 87/2018 & 70/2018

28.10.2010, rejected the said application for supurdnama holding

that since the issue of successor of the deceased persons is yet to

be decided before the Succession Court and therefore the seized

property cannot be handed over to the original applicant

Mahadev Das. Subsequently, the Sessions Court vide its final

order dated 8.11.2010 also held that the seized property would be

handed over to the person entitled on production of Succession

Certificate and further directed that in case no Succession

Certificate is submitted within a period of one year, the seized

property would be confiscated in favour of the Government.

4.The original applicant Mahadev Das died during pendency

of Civil Suit No.26/2010 before the Succession Court and

thereafter the Civil Suit was pursued by his legal heirs i.e. the

applicants Bahura, Laladas, Deepakdas, Dineshdas, Sarojini &

Rajni before the Succession Court. In the said Civil Suit, the non-

applicants No.1 to 5 and 7 therein i.e. Afisar Das, Manager Das,

Parvati, Bhurudas, Padumdas and Shanti Bai, supported the

claim of the original applicant Mahadev Das for grant of

Succession Certificate in his favour and relinquished their right

over the seized property. However, on the objections raised by one

Darasram before the Succession Court, he was impleaded as

non-applicant No.8 in the said Civil Suit on his objection stating

inter-alia that since the deceased Narayan and Phool Bai were

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C.R. Nos. 87/2018 & 70/2018

issueless and he was looking after and taking care of them, they

had jointly executed an unregistered Will in his favour on

15.4.2004 in respect of their movable and immovable properties

and accordingly he is entitled for grant of Succession Certificate.

5.Learned Succession Court, after appreciating the oral and

documentary evidence available on record, by its order dated

14.12.2017 rejected the Civil Suit filed by the applicants Bahura

& others under Section 372 of the Act of 1925 for grant of

Succession Certificate and the objection raised by the non-

applicant No.8 Darasram in the said Civil Suit, against which

Darasram filed Civil Appeal No.2A/2018 and Bahura & others

preferred Civil Appeal No.20A/2018 before the Appellate Court

where both the said Civil Appeals were clubbed together for

analogous hearing.

6.The Appellate Court, however, by its order dated 5.4.2018,

dismissed the appeal filed by Bahura & others and has allowed

the appeal filed by Darasram, holding that he is having the

prima-facie best title by virtue of an unregistered Will executed in

his favour on 15.4.2004 and accordingly granted the Succession

Certificate in his favour.

7.Mr. Somnath Verma, learned counsel appearing for

applicants Bahura & others, would submit that apart from

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C.R. Nos. 87/2018 & 70/2018

claiming Succession Certificate on the basis of the applicants

being the close relatives of deceased Narayan and Phool Bai, the

said deceased persons were fufa and bua of the applicants. He

vehemently submitted that by virtue of an unregistered Will,

Succession Certificate could not have been granted in favour of

non-applicant No.1 Darasram and prayed that both the civil

revisions deserve to be allowed and Succession Certificate may be

granted in favour of applicants Bahura & others, setting aside the

Succession Certificate granted in favour of non-applicant No.1

Darasram.

8.On the other hand, Mr. Vaibhav A. Goverdhan, learned

counsel for non-applicant No.1 Darasram, would support the

judgment passed by the Appellate Court in his favour and,

opposing the civil revisions, would submit that the Appellate

Court has rightly held that Darasram is entitled for Succession

Certificate having the prima-facie best title by virtue of the

unregistered Will executed on 15.4.2004 in his favour and

therefore both the Civil Revisions deserve to be dismissed.

9.I have heard learned counsels for parties, considered their

rival submissions made herein-above and went through the

records with utmost circumspection.

10.Admittedly, deceased Narayan and Phool Bai were murdered

and the police had seized movable property worth Rs.7,20,102/-

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C.R. Nos. 87/2018 & 70/2018

and some silver & gold ornaments amounting to Rs.2,00,000/-

approximately from their house. The Sessions Court in Sessions

Trial No.93/2010 while deciding the said case had, vide its order

dated 8.11.2010, held that as per the order of the Succession

Court, the seized property would be handed over to the person

entitled on production of Succession Certificate. Meanwhile,

during pendency of the succession case before the Succession

Court, original applicant Mahadev Das died and therefore his

legal heirs i.e. the applicants Bahura and others were substituted

in the said succession case in which Darasram was also

impleaded as non-applicant No.8 on the objections raised by him

stating inter-alia that by virtue of an unregistered Will executed

by the deceased persons in his favour on 15.4.2004, he is entitled

for Succession Certificate in respect of their movable and

immovable properties. However, the Succession Court could not

find favour with the objections raised by Darasram and

accordingly vide its order dated 14.12.2017 rejected the

objection/claim raised by Darasram as well as the application

filed by the applicants Bahura & others, leading to filing of two

separate appeals before Appellate Court, i.e., one by Darasram

and another by Bahura & others. However, the Appellate Court

vide its common judgment dated 5.4.2018 while dismissing the

appeal of Bahura & others, allowed the appeal filed by Darasram

holding that on the basis of the unregistered Will Deed dated

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C.R. Nos. 87/2018 & 70/2018

15.4.2004, Darasram is entitled for Succession Certificate having

prima-facie the best title over the movable and immovable

properties of deceased Narayan and Phool Bai, against which the

present two Civil Revisions have been preferred by Bahura &

others.

11.Part X of the Act of 1925 deals with grant of Succession

Certificates and in order to resolve the controversy, it would be

appropriate to take note of Sections 373, 383(e) and 387 of the

Act of 1925, which read as follows:-

“373. Procedure on application.—(1) If the District

Judge is satisfied that there is ground for entertaining

the application, he shall fix a day for the hearing

thereof and cause notice of the application and of the

day fixed for the hearing—

(a) to be served on any person

to whom, in the opinion of the

Judge, special notice of the

application should be given, and

(b) to be posted on some

conspicuous part of the court-

house and published in such

other manner, if any, as the

Judge, subject to any rules made

by the High Court in this behalf,

thinks fit, and upon the day

fixed, or as soon thereafter as

may be practicable, shall

proceed to decide in a summary

manner the right to the

certificate.

(2) When the Judge decides the right

thereto to belong to the applicant, the Judge

shall make an order for the grant of the

certificate to him.

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C.R. Nos. 87/2018 & 70/2018

(3) If the Judge cannot decide the right to

the certificate without determining

questions of law or fact which seem to be

too intricate and difficult for determination

in a summary proceeding, he may

nevertheless grant a certificate to the

applicant if he appears to be the person

having prima facie the best title thereto.

(4) When there are more applicants than

one for a certificate, and it appears to the

Judge that more than one of such

applicants are interested in the estate of the

deceased, the Judge may, in deciding to

whom the certificate is to be granted, have

regard to the extent of interest and the

fitness in other respects of the applicants.

XXX XXX XXX

383. Revocation of certificate.—A certificate granted

under this Part may be revoked for any of the following

causes, namely:—

(a) xxxxxxxxx

(b) xxxxxxxxx

(c) xxxxxxxxx

(d) xxxxxxxxx

(e) that a decree or order made by a

competent Court in a suit or other

proceeding with respect to effects

comprising debts or securities specified in

the certificate renders it proper that the

certificate should be revoked.

XXX XXX XXX

387. Effect of decisions under this Act, and

liability of holder of certificate thereunder.— No

decision under this Part upon any question of right

between any parties shall be held to bar the trial of the

same question in any suit or in any other proceeding

between the same parties, and nothing in this Part

shall be construed to affect the liability of any person

who may receive the whole or any part of any debt or

security, or any interest or dividend on any security, to

account therefore to the person lawfully entitled

thereto.”

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C.R. Nos. 87/2018 & 70/2018

12.Sub-Section (3) of Section 373 says that if the Judge cannot

decide the right to the certificate without determining questions

of law or fact which seem to be too intricate and difficult for

determination in a summary proceeding, he may nevertheless

grant a certificate to the applicant if he appears to be the person

having prima-facie the best title thereto. However, Sections 373,

383(e) & 387 would show that the proceedings for grant of

Succession Certificate are summary in nature and no rights are

finally decided in a summary proceeding. Section 387 already

puts the matter beyond any doubt. It categorically provides that

no decision under Part X upon any question of right between the

parties shall be held to bar the trial of the same question in any

suit or other proceeding between the same parties. Thus, Section

387 permits the filing of the suit in other proceeding even though

Succession Certificate might have been granted. (See Joginder

Pal v. Indian Red Cross Society & Ors.

1

)

13.Furthermore, the Supreme Court in the case of Madhvi

Amma Bhawani Amma & Ors. v. Kunjikutty Pillai Meenakshi

Pillai & Ors .

2

, after having considered the provisions contained

in Sections 370 to 390 of the Act of 1925 and Section 11 of

C.P.C., has held that adjudication made under Part X of the Act

of 1925 does not bar the same question being raised between the

1 2000 (8) SCC 143

2 2000 (6) SCC 301

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C.R. Nos. 87/2018 & 70/2018

same parties in any subsequent suit or proceeding. For ready

reference, paragraphs 15, 16, & 17 of the said judgment are

being reproduced herein under:-

“15. This can be examined from another angle. The

grant of Succession Certificate falls under Part X of the

aforesaid Act. Its range is between Sections 370 to

390. It is significant to refer here Section 387. This

declares the effect of decisions made under this Act

and the liability of holder of such certificate. It lays

down that any decision made under this Part, (Part X)

upon any question of right between the parties shall

not bar the trial of the same question in any suit or

other proceedings between the same parties. It further

records that nothing in this Part shall be construed to

affect the liability of any person who may receive the

whole or any part of any debts or security to account

therefore to the person lawfully entitled thereto.

Section 387 is quoted hereunder:

“387. Effect of decisions under this Act, and

liability of holder of certificate thereunder:-

No decision under this Part upon any

question of right between any parties shall

be held to bar the trial of the same question

in any suit or in and other proceeding

between the same parties, and nothing in

this Part shall be construed to affect the

liability of any person who may receive the

whole or any part of any debts or security

or any interest or dividend on any security,

to account therefor to the person lawfully

entitled thereto.” (Emphasis supplied)

16. This leaves no room for doubt. Thus any

adjudication made under Part X of this Act which

includes Section 373 does not bar the same question

being raised between the same parties in any

subsequent suit or proceeding. This provision takes

the decisions under Part X of the Act outside the

preview of Explanation VIII to Section 11. This gives

protective umbrella to ward off from the rays of res

judicata to the same issue being raised in subsequent

suit or proceedings.

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C.R. Nos. 87/2018 & 70/2018

17. No doubt, Explanation VIII to Section 11 enlarges

the field of res judicata, by including in its field the

decisions on the same issue, between the same parties

even by a court of limited jurisdiction even though

such court may not have the competence of deciding

such an issue in a suit. But as we have held above this

grant of Certificate would not fall within the field of

Explanation VIII to Section 11.”

14.Bearing in mind the principles of law laid down in the

above-stated judgments and noticing the fact that the proceeding

under Section 372 of the Act of 1925 is summary in nature and

by virtue of sub-section (3) of Section 373 of the said Act, if

intricate questions of law and fact could not be determined in a

summary proceeding, nevertheless the Succession Court can

grant certificate to the applicant if he appears to be the person

having prima-facie the best title thereto. The Succession Court

did not invoke Section 384(3) of the said Act and did not find any

of the applicants & objector prima-facie having the best title

thereto and accordingly rejected the application, but the

Appellate Court found that Darasram, the Objector, is the prima-

facie best title holder of the movable property of two deceased

persons and accordingly granted Succession Certificate in his

favour, assigning three reasons:-

(1) Firstly, that to prove the unregistered Will dated

15.4.2004 (Exhibit NA-1) on the basis of which Darasram

claimed to be the successor of the deceased persons, the

attesting witness Bisahu Satnami (AW-2) has been

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C.R. Nos. 87/2018 & 70/2018

examined and the Will has been prima-facie proved by him,

as the suspicious circumstances howsoever it be strong, the

same cannot be determined in a summary proceeding under

Section 372 of the Act of 1925.

(2)Secondly, that in the Merg Intimation registered in the

murder case of deceased Narayan and Phool Bai, it has

been recorded that Darasram used to take care of the

deceased persons and on 4.4.2010 he had brought food for

them and that he himself had informed the police regarding

the death of the deceased persons recorded in Merg

Intimation of that criminal case.

(3)Thirdly, that on the basis of Exhibits NA-2 to NA-7

brought on record by Darasram, it has been proved that in

the immovable properties owned by the deceased persons,

the name of Darasram has been mutated in the revenue

records. As such, the said three reasons have been assigned

by the Appellate Court to hold that Darasram is entitled for

Succession Certificate under Section 372 of the Act of 1925.

15.Now, I will examine the aforesaid three reasons assigned by

the Appellate Court as to whether these three reasons would

come into category of person, i.e., Darasram, in the instant case,

who is having prima-facie the best title for grant of Succession

Certificate.

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C.R. Nos. 87/2018 & 70/2018

16.First of all, I will take the second reason assigned by the

Appellate Court that Darasram had himself reported to the police

informing the murder of deceased Narayan and Phool Bai and in

the Merg Intimation as also in the FIR (Exhibit P-4) it has been

recorded that Darasram used to take care of the deceased

persons, to hold that he is having prima-facie the best title

thereto. This reason deserves to be rejected on the ground that

the commission of cognizable offence can be reported by any

person who come to know that a cognizable offence has been

committed and the reporting of the cognizable offence by a person

to the police would not confer any right over the property of the

deceased. In addition, the ground that Darasram used to take

care of the deceased persons and had brought food for them on

the day on which they were murdered would also not confer any

title upon Darasram to the property of deceased persons.

17.The next reason that has been assigned by the Appellate

Court is that pursuant to the unregistered Will Deed dated

15.4.2004 (Exhibit NA-1), the immovable properties owned by the

deceased persons have been recorded in the name of Darasram

vide Exhibits NA-2 to NA-7 to show the prima-facie title in favour

of Darasram. It is the well settled law that mutation entry in the

revenue records does not confer any right, title and interest over

the property in whose name it is recorded in the revenue records.

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C.R. Nos. 87/2018 & 70/2018

It is only for the purpose of collecting revenues and keeping the

records up-to-date, and certainly mutation would not confer any

semblance of right, title and interest in favour of the person in

whose name the immovable property is recorded. The Supreme

Court in the matter of Smt. Bhimabai Mahadeo Kambekar (D)

Th. LR v. Arthur Import and Export Company

3

has held that

mutation of a land in the revenue records does not create or

extinguish the title over land nor it has any presumptive value on

the title. It only enables the person in whose favour mutation is

ordered to pay the land revenue in question.

18.The final finding that has been recorded by the Appellate

Court is that the unregistered Will Deed dated 15.4.2004 has

been executed in favour of Darasram and the attesting witness

Bisahu Satnami (AW-2) has been examined to prove the same.

However, the suspicious circumstances, which have been sought

to be brought on record by the opposite side and accepted by the

Succession Court, have not been considered by the Appellate

Court holding that it is a mixed question of law and fact and it

could not be gone into in a summary proceeding under Section

372 read with Section 373 of the Act of 1925 and proceeded to

grant Succession Certificate in favour of Darasram.

3 AIR 2019 SC 719

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C.R. Nos. 87/2018 & 70/2018

19.The question would be, whether the Appellate Court is

justified in granting Succession Certificate in favour of Darasram

holding that by virtue of an unregistered Will dated 15.4.2004 the

mutation of land has been made in favour Darasram and that

Darasram is entitled for Succession Certificate under Section 373

of the Act of 1925 having prima-facie the best title thereto. It is

an admitted position on record that vide Exhibits NA-2 to NA-7,

the properties owned by deceased Narayan and Phool Bai have

been mutated in the name of Darasram by virtue of unregistered

Will dated 15.4.2004, on 9.1.2015. As such, by virtue of an

unregistered Will, the immovable properties owned by the

deceased persons have been mutated in the name of Darasram.

20.Learned Appellate Court only held that since the immovable

properties have been mutated in the name of Darasram and the

attesting witness Bisahu Satnami (AW-2) has been examined to

prove the same in accordance with Section 63 of the Act of 1925

read with Section 68 of the Evidence Act, the Succession Court

ought to have issued Succession Certificate in favour of

Darasram. However, the Appellate Court declined to consider the

correctness of the suspicious circumstances pointed out by the

Succession Court in its order from paragraphs 24 to 31 holding

that such suspicious circumstances in the Will, if any, are mixed

questions of law and fact and that cannot be adjudicated upon in

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C.R. Nos. 87/2018 & 70/2018

a summary proceeding under Section 372 of the Act of 1925. For

ready reference, the relevant paragraphs of the order of the

Appellant Court are being reproduced below:-

**32-;|fi lk{kh fclkgw lrukeh us ;g Lohdkj fd;k gS fd

ukjk;.k flag] QwyckbZ ,oa njljke vyx&vyx tkfr ds gSa

vkSj mudk [kkuk&ihuk Hkh vyx&vyx gksrk gS] ysfdu tgka

rd olh;r izn'kZ ,u0,0&1 dk iz'u gS] rks vuqizek.ku lk{kh

gksus dh gSfl;r ls vukosnd dzekad&8 ds lk{kh dzekad&2

fclkgw lrukeh us olh;rukek izn'kZ ,u0,0&1 ds lk{;

vf/kfu;e dh /kkjk&68 o Hkkjrh; mRrjkf/kdkj vf/kfu;e

dh /kkjk&63 ds rgr izekf.kr fd;k gS vr% fopkj.k U;k;ky;

dks izn'kZ ,u0,0&1 dh olh;r ds vk/kkj ij vukosnd

dezkad&8 ds i{k esa mRrjkf/kdkj izek.ki= tkjh djuk pkfg;s

FkkA

33-tgka rd vukosnd dz0&8 njljke }kjk izLrqr olh;r

iz0,u0,0&1 ds laca/k esa fopkj.k U;k;ky; }kjk vius vkns'k

dh dafMdk 24 ls 31 esa mYysf[kr dh xbZ ^^lansgkLin

ifjfLFkfr;ksa^^ dk laca/k gS] rks mYysf[kr dh xbZ lansgkLin

ifjfLFkfr;ksa vkSj olh;r ds izekf.kdj.k ,oa mlls lacaf/kr

vU; iz'u rF; ,oa fof/k ds ,sls iz'u gSa] ftldk vo/kkj.k

laf{kIr tkap ds rgr~ ugha fd;k tk ldrk gSA vr% ,slh

fLFkfr esa lDls'ku izek.k i= iznku djus okys U;k;ky; dks

dsoy izFke n`"V;k ;g ns[kuk Fkk fd olh;r dks vuqizek.ku

lk{kh ds ek/;e ls izekf.kr fd;k x;k gS ;k ugha fd;k x;k

gSA tks fd fopkj.k U;k;ky; }kjk fujkd`r izdj.k esa ugha

fd;k x;k gSA^^

21.Before proceeding further, it would be appropriate to notice

the relevant decision of the Supreme Court recently pronounced

in the matter of Meena Pradhan & Ors. v. Kamla Pradhan &

Anr.

4

in which the formalities required under Section 63 of the

Act of 1925 to prove the Will have been succinctly laid down by

their Lordships, as under:-

4 2023INSC847

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C.R. Nos. 87/2018 & 70/2018

"10. Relying on H. Venkatachala Iyengar v. B.N.

Thimmajamma, 1959 Supp (1) SCR 426 (3- Judge

Bench), Bhagwan Kaur v. Kartar Kaur, (1994) 5 SCC

135 (3-Judge Bench), Janki Narayan Bhoir v.

Narayan Namdeo Kadam, (2003) 2 SCC 91 (2-Judge

Bench), Yumnam Ongbi Tampha Ibema Devi v.

Yumnam Joykumar Singh, (2009) 4 SCC 780 (3--

Judge Bench) and Shivakumar v. Sharanabasappa,

(2021) 11 SCC 277 (3-Judge Bench), we can

deduce/infer the following principles required for

proving the validity and execution of the Will:

i. xxxxxxxxx

ii. xxxxxxxxx

iii. A Will is required to fulfill all the formalities

required under Section 63 of the Succession Act,

that is to say:

(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;

(b) It is mandatory to get it attested by two or

more witnesses, though no particular form of

attestation is necessary;

(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;

(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;

XXX XXX XXX

11. In short, apart from statutory compliance,

broadly it has to be proved that (a) the testator signed

the Will out of his own free Will, (b) at the time of

execution he had a sound state of mind, (c) he was

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C.R. Nos. 87/2018 & 70/2018

aware of the nature and effect thereof and (d) the Will

was not executed under any suspicious

circumstances."

22.Bearing in mind the principles of law laid down by their

Lordships of the Supreme Court in the matter of Meena Pradhan

(supra) for proving the execution and attestation of the Will, it is

quite vivid that though Succession Court did not accept the Will

finding it to be surrounded with suspicious circumstances in

paragraphs 24 to 31 of its order, but the Appellate Court did not

consider the correctness of that finding recorded by the

Succession Court qua suspicious circumstance of the Will by

holding that since Darasram's name has been mutated in the

revenue records on the basis of unregistered Will and one of the

attesting witnesses i.e. Bisahu Satnami (AW-2) has been

examined to prove the due execution and attestation of the Will

and therefore Darasram is entitled for Succession Certificate

holding him to be a person having prima-facie the best title to the

amount in question entitling him for the Succession Certificate.

23.Section 373(3) of the Act of 1925 employs implies the words

that "If the Judge cannot decide the right to the certificate

without determining questions of law or fact which seem to be too

intricate and difficult for determination in a summary proceeding,

he may nevertheless grant a certificate to the applicant if he

appears to be the person having prima facie the best title

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C.R. Nos. 87/2018 & 70/2018

thereto". The words "prima facie the best title thereto" have not

been defined in the Act of 1925. According to Black's Law

Dictionary, "prima facie" case means - in sense of plaintiff

producing evidence sufficient to render reasonable conclusion in

favour of allegation he asserts; this means plaintiff's evidence is

sufficient to allow his case to go to jury. The term "prima facie"

means - at first sight; on the first appearance; on the face of it. A

litigating party is said to have prima facie conclusive evidence in

his favour is sufficiently strong for his opponent to be called on to

answer it.

24.In my considered opinion, the Appellate Court is not right in

granting Succession Certificate in favour Darasram by recording

finding that the immovable properties owned by deceased

Narayan and Phool Bai have been mutated in the name of

Darasram on the basis of unregistered Will dated 15.4.2004 and

further that Darasram himself reported the matter to the police

vide Merg Intimation qua the murder of Narayan and Phool Bai

by which the wheels of investigation started running in the

murder case of Narayan and Phool Bai and further holding that

by examining one of the attesting witnesses i.e., Bisahu Satnami

(AW-2), due execution and attestation of Will has been proved

ignoring the suspicious circumstances pointed out by the

Succession Court, addressing it by holding that due execution

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C.R. Nos. 87/2018 & 70/2018

and attestation has been proved in accordance with Section 68 of

the Evidence Act as well as Section 63 of the Act of 1925, in

opinion of this Court, Darasram cannot be held to be having

prima-facie the best title thereto on the basis of mutation entry of

the immovable properties owned by deceased Narayan and Phool

Bai and furthermore since due execution and attestation of the

Will has not been proved, the suspicious circumstances pointed

out by the Succession Court have not been reversed by the

Appellate Court, yet Succession Certificate has been granted by

the Appellate Court. As such, this Court is unable to sustain the

impugned judgment directing grant of Succession Certificate in

favour of Darasram. However, so far as the case of Bahura and

others is concerned, the Appellate Court is justified in dismissing

their appeal.

25.Accordingly, the impugned judgment dated 5.4.2018 passed

by the Appellate Court in Civil Appeal No.2A/2018 granting

Succession Certificate in favour of the non-applicant No.1

Darasram, is hereby set-aside. However, the impugned judgment

so far as the applicants Bahura & others are concerned, stands

affirmed holding that they are also not entitled for Succession

Certificate as has been rightly held by the two Courts below in

their concurrent findings. Parties, however, would be at liberty to

establish their right in accordance with law before the

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C.R. Nos. 87/2018 & 70/2018

jurisdictional Civil Court in the light of Section 387 of the

Succession Act.

26.As a consequence, Civil Revision No.87/2018 is dismissed

and Civil Revision No.70/2018 stands allowed to the aforesaid

extent. No order as to cost(s).

Sd/-

(Sanjay K. Agrawal)

Judge

sharad