IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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RSA-2667-2014 (O&M)

Reserved on: 22.04.2025

Pronounced on: 28.04.2025

RAMESH KUMAR ALIAS RAMESH CHANDER

AND ANOTHER . . . . APPELLANTS

Vs.

RAVI KANT ALIAS RAVI KUMAR AND OTHERS

. . . . RESPONDENTS

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CORAM: HON’BLE MR JUSTICE DEEPAK GUPTA

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Argued by: - Mr. Amit Jain, Sr. Advocate with

Mr. Anupam Mathur, Advocate, for the appellants.

Mr. Harsh Aggarwal, Advocate, for respondent No.1.

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DEEPAK GUPTA, J.

Suit for declaration with consequential relief of permanent

injunction regarding property in dispute filed by plaintiffs Ramesh Kumar

and another (appellants herein) was decreed by the trial Court of ld. Civil

Judge (Jr. Div.) Abohar vide judgment & decree dated 11.03.2013. However,

the appeal filed by contesting defendants No.1 Ravi Kant (respondent No.1

herein) was allowed by the First Appellate Court of Ld. Additional District

Judge, Fazilka vide his judgment dated 03.01.2014, thus dismissing the suit

of the plaintiffs.

2. Trial Court record was called. Same has been perused. In order

to avoid confusion, parties shall be referred as per their status before the

Trial Court.

3. It is undisputed that Sh. Parmanand was the own er of the

property in dispute detailed in the head note of the plaint. He died on

12.03.2005. He had four sons and three daughters. These seven children are

party to this litigation, as two of the brothers namely, Ramesh Kumar &

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Naresh Kumar (plaintiffs – appellants) filed the suit against their two other

brothers namely Ravi Kant & Vijay Kumar, and three sisters namely Krishana,

Santosh & Asha, who were impleaded as defendants N: 1 to 5.

4.1 According to the plaintiffs, during his lifetime, Sh. Parmanand

executed a Will dated 09.06.2004, which was registered on 22.06.2004,

through which he bequeathed his property to the two plaintiffs and

Defendant No. 2 Vijay. Based on this Will, the plaintiffs, along with

Defendant No. 2, claim to have become the rightful owners in possession of

the suit property. However, Defendant No. 1 Ravi Kant, is alleged to have

fraudulently prepared another Will dated 07.08.2004, purportedly executed

by Sh. Parmanand, in collusion with the alleged witnesses. On the basis of

this fabricated Will, defendant No. 1 succeeded in getting Mutation No.

1403 sanctioned in his name. The plaintiffs contend that this Will is forged,

was never executed by Sh. Parmanand during his lifetime, and was in fact

created after his death. Therefore, it holds no legal validity. The plaintiffs

prayed for decree of declaration affirming their ownership and possession of

the suit land, along with a decree of permanent injunction to restrain

defendant No. 1 from interfering with their possession, dispossessing them,

or alienating any portion of the property.

4.2 Only Defendant No. 1 Ravi Kant, contested the suit by filing a

written statement, as the other defendants chose not to contest. In his

defence, defendant No. 1 claimed that Sh. Parmanand had executed a

subsequent and final Will dated 07.08.2004, through which the property

was bequeathed solely in his favour. Based on this Will, the mutation of the

disputed land was sanctioned in his name by the Assistant Collector First

Grade, Abohar, after recording statements from both parties. He further

asserted that the Will dated 07.08.2004 revoked all previous Wills. Denying

the other allegations made by the plaintiffs, defendant No. 1 prayed for the

dismissal of the suit.

5. Necessary issues were framed. Evidence produced by the

parties was taken on record.

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6.1 Trial Court came to the conclusion that Sh. Parmanand had

executed valid Will dated 09.06.2000 (Ex.P4) and had got it registered on

22.06.2000. It was further found that the Will dated 07.08.2004 relied by

defendant No.1 was not proved. As such, he decreed the suit by way of the

judgment dated 11.03.2013.

6.2 However, reversing the aforesaid finding, ld. First Appellate

Court in the appeal filed by defendant No.1, held that earlier Will dated

09.06.2000 had been revoked by Sh. Parmanand by virtue of the last Will

dated 07.08.2000. The First Appellate Court further found that the said Will

was also subject matter of dispute between the Revenue Authorities, who

had found the same to be duly proved. Ld. First Appellate Court also held

that merely because Sh. Parmanand and defendant No.1-Ravi Kant were

under litigation at the relevant time, could not be a reason to discard the

Will nor the same could be taken as a suspicious circumstance. With these

findings, the ld. First Appellate Court set aside the judgment and decree

passed by the trial Court and dismissed the suit by accepting the appeal of

defendant No.1 vide his judgment dated 03.01.2014.

7.1 Assailing the reversal of the trial court’s well-reasoned

judgment, learned Senior Advocate for the appellants-Plaintiffs contends

that the First Appellate Court erred in setting aside a decision that was

based on sound reasoning. He emphasizes that the validity of the Will dated

09.06.2000, registered on 22.06.2000, was duly established through the

testimony of one of the attesting witnesses - Harish Kataria (PW3).

Additionally, the Will was scribed by the late Sh. Firangi Lal Midha, whose

son Sh. Deepak Midha (PW2), appeared as a witness and produced the

original register containing the entries related to the execution and

registration of the Will. These entries were proved as Ex.P2 and Ex.P3. It is

further submitted that the second attesting witness - Sh. Parvesh Sachdeva,

had passed away, a fact confirmed in the testimony of PW3. There was no

plausible ground to disregard the Will, especially considering that defendant

No.1, in his written statement, did not dispute its execution. Instead, he

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claimed that it stood revoked by the subsequent unregistered Will dated

07.08.2004.

7.2 The learned Senior Advocate then questioned the credibility of

the later Will (Ex.D1), relied upon by defendant No.1, which was allegedly

attested by Uttam Chand (DW2) and Prem Chand Gupta (DW4). Both these

witnesses admitted under cross-examination that they did not know the

testator personally, although they were familiar with the beneficiary, Ravi

Kant, for a long time. Moreover, neither they nor Ravi Kant (DW3) could

even name the scribe of the Will, raising serious doubts about its

authenticity.

7.3 Finally, he argued that the later Will makes no mention of the

earlier registered Will dated 22.06.2000. A vague statement suggesting that

any previous Will stands revoked cannot, by itself, be deemed a valid

revocation of the earlier registered document.

7.4 Learned Senior Advocate further highlights the history of

prolonged litigation between Ravi Kant and his father Sh. Parmanand. He

draws attention to the judgments & decrees Ex.P6 and Ex.P7, which show

that as early as 1993, Sh. Parmanand and others had challenged a decree

secured by Ravi Kant on the ground of fraud. This suit was decreed in 2006,

with the court holding that Ravi Kant had indeed obtained the earlier decree

through fraudulent means. The appeal filed by Ravi Kant against this

decision was also dismissed, as evidenced by Ex.P8. Additionally, in 1995,

Ravi Kant had instituted another suit seeking declaration against his father

and others, which too was dismissed vide Ex.P10. In light of this acrimonious

litigation history, the learned Senior Advocate argues that it is highly

implausible for Sh. Parmanand to have executed the Will (Ex.D1) in Ravi

Kant's favour. This significant and suspicious circumstance, he asserts, was

erroneously overlooked by the First Appellate Court.

7.5 The learned Senior Advocate also clarifies the legal position,

submitting that mutation proceedings or orders passed by Revenue

Authorities have no bearing on the question of the Will’s validity. He

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contends that such administrative actions cannot be relied upon by a Civil

Court for determining the genuineness of a testamentary document.

7.6 In support of his contentions, Ld. counsel has relied upon H.V.

Nirmala Vs. R. Sharmila, 2018 (2) RCR (Civil) 40; Bhagwan Kaur Vs.

Malwinder Singh, 2009 (4) RCR (Civil) 732; Balbir Wati Vs. Jagbir Singh

Arora, 1993 (1) RRR 11; Abhey Chand Vs. Smt. Bimla Devi, 2006(4) RCR

(Civil) 802; B. Venkatamuni Vs. C.J. Ayodhya Ram Singh, 2007(1) RCR (Civil)

277; Mahila Bajrangi Vs. Badribai, 2003 (2) SCC 464; and Jagjit Singh Vs.

Divisional Commissioner, Patiala, 2012 (13) RCR (Civil) 96.

7.7 With all the above submissions, Ld. senior advocate prayed for

setting aside the judgment as passed by the First Appellate Court and to

restore the judgment of the trial Court, by accepting this Appeal.

8.1 On the other hand, learned Senior Advocate appearing for

contesting respondent No.1 (defendant No.1) argues that the plaintiffs, in

their pleadings, failed to allege any specific suspicious circumstances

surrounding the Will dated 07.08.2004. He submits that unless such

suspicions are expressly pleaded, the burden does not shift to the

propounder to clarify or dispel them.

8.2 He further contends that the Will dated 07.08.2004 (Ex.D1) was

the last testament of Sh. Parmanand and stands duly proved through the

depositions of both attesting witnesses - DW2 and DW4. Even the plaintiff,

he urges, acknowledged this document as the final Will of the testator. The

presence of the beneficiary at the time of execution or the inability of the

witnesses to name the scribe, he argues, are not valid grounds to reject the

Will.

8.3 Lastly, the learned counsel asserts that the existence of prior

litigation between the testator and defendant No.1 does not, by itself,

invalidate the Will. He points out that the disputes were not limited to

Parmanand and defendant No.1 alone but involved other parties as well,

and thus, cannot be treated as conclusive evidence against the execution of

the Will.

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8.4 To support of his contentions, Ld. counsel has relied upon

Mritunyoy Sett Vs. Jadunath Basak, 2011(2) RCR (Civil) 894; Baj Singh vs.

Nikko 2021 (4) RCR (Civil) 410; Randhir Singh Vs. Jasdev Singh, 2019(2) PLR

597; Sohan Singh Vs. Preet Kamal Singh, 2014(87) RCR (Civil) 354; and

Madhukar D. Shende Vs. Tarabai Aba Shedage, 2002(1) RCR (Civil) 724.

8.5 With these submissions, ld. advocate prays for dismissal of the

appeal.

9. This Court has considered submissions of both the sides and

appraised the record carefully.

10. Both the parties have propounded their respective Wills of Shri

Parmanand. Whereas the plaintiffs have propounded Will dated 09.06.2000

duly registered before Sub Registrar, Shri Ganga Nagar on 22.06.2000; on the

other hand, the defendant Ravi Kant has relied upon an unregistered Will

dated 07.08.2004. In case the legality and validity of the Will dated

07.08.2004 relied by the defendant is proved, obviously, the earlier Will

dated 09.06.2000, even if registered, will have no value, as it is the later Will,

which is to prevail. On the other hand, if the Will dated 07.08.2004 is not

proved and the Will dated 09.06.2000 is proved, then the plaintiffs will get

the property as per the said Will. In case, none of the Wills are proved, the

parties to the suit will get the property as per natural succession of Sh.

Parmanand. In these circumstances, it is required to be seen as to which of

the Will stands proved.

11. The mode of proving a WILL does not ordinarily differ from that

of proving any other document except as to the special requirement of

attestation prescribed in the case of a WILL by Section 63

of the Indian

Succession Act, which reads as under:-

"63. Execution of unprivileged wills. - Every testator, not being a soldier

employed in an expedition or engaged in actual warfare) or an airman so

employed or engaged or a mariner at sea, shall execute his will according to

the following rules:

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(a) The testator shall sign or shall affix his mark to the will, or it shall be

signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person

signing for him, shall be so placed that it shall appear that it was intended

thereby to give effect to the writing as a will.

(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 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."

12. Apart from above, Section 68

of the Evidence Act is quite

relevant regarding proving the execution of a Will. This reads as under:

"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:

Provided that it shall not be necessary to call an attesting witness in proof

of the execution of any document, not being a will, which has been

registered in accordance with the provisions of the Indian Registration Act,

1908

(16 of 1908), unless its execution by the person by whom it purports to

have been executed is specifically denied.”

13. The conjoint reading of above provisions makes it quite clear

that at least one out of the two attesting witnesses must be called to prove

due execution of the WILL. Further, it is required for the attesting witness to

prove that he had seen the testator sign or affix his mark to the WILL in his

presence; or that he received from the testator a personal acknowledgment

of his signature or mark of the signature of such other person and each of

the witnesses shall sign the WILL in the presence of testator. Reliance can be

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placed on Pentakota Satyanarayana Vs. Pentakota Seetharatnam

2006(1)

C.C.C.563, wherein it has been held by Hon'ble Supreme Court that to prove

due execution of Will, attesting witness must state that each of the two

witnesses has seen the executor sign or affix his mark to the instrument or

has seen some other person sign the instrument in his presence and by the

direction of the execution. Witness should further state that each of the

attesting witness signed the instrument in the presence of the executant.

Hon'ble Supreme Court held that these are the ingredients of attestation

and they have to be proved by the witnesses.

14. Further, it is the settled proposition of law that it is the

propounder of the Will, who has to prove its due execution. Besides, mere

proving the signatures of the testator on the Will is not sufficient. Reference

in this regard can be made to Ganpat Vs. Siri Chand 1992(1) LJR 252 and

Janki Narayan Bhoir Vs. Narayan Namdeo Kadam 2003(2) LJR 646, wherein

it has been held that due and valid execution of the Will cannot be proved

by simply proving that the signatures on the Will was that of the testator. It

must be proved that attestations were also made properly as required by

clause (c) of Section 63 of the Succession Act, 1925.

15. In the light of abovesaid legal position, it is required to be seen

as to whether the due execution of the Will by any of the attesting witnesses

of the Will, has been proved in this case.

16. The plaintiffs have placed reliance upon the W ill dated

09.06.2000, which was duly registered with the office of the Sub Registrar on

22.06.2000. The said Will is purported to have been scribed by Sh. Firangi Lal

Midha, Deed Writer, and attested by two attesting witnesses, namely Sh.

Harish Kataria and Sh. Parvesh Sachdeva. In order to prove the due

execution of the said Will, the plaintiffs examined one of the attesting

witnesses, Sh. Harish Kataria, as PW3, who deposed that he was well-

acquainted with the deceased testator, Sh. Parmanand, and that the Will in

question was scribed by Sh. Firangi Lal Midha in his presence and in the

presence of the other attesting witness. He further stated that the scribe

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had read over and explained the contents of the Will to Sh. Parmanand, who

thereafter signed the same in the presence of both attesting witnesses. PW3

categorically stated that the Will was signed/thumb-marked by the testator

and attesting witnesses in each other's presence and that all of them

appeared before the Sub Registrar on 22.06.2000 for registration. He also

confirmed that the other attesting witness, Sh. Parvesh Sachdeva, has since

passed away.

17. The testimony of PW3 is duly corroborated by the deposition of

PW2 Sh. Deepak Midha son of the deceased scribe Sh. Firangi Lal Midha.

PW2 produced the original register maintained by his late father, which

contains the relevant entries dated 09.06.2000 and 22.06.2000, evidencing

the execution and registration of the said Will. Copies of these entries were

exhibited as Ex.P2 and Ex.P3, respectively. He also placed on record the

death certificate of his father as Ex.P5. PW2 identified the signature and

stamp of his late father on the original Will, which was produced by Sh.

Gurjant Singh Kanungo from the mutation file, and on the register entries

Ex.P2 and Ex.P3. The certified copy of the Will was marked as Ex.P4.

18. Both PW2 and PW3 were subjected to lengthy and detailed

cross-examination, but nothing material could be elicited to discredit their

testimonies or to cast doubt on the due execution of the Will.

19. Further, it is pertinent to note that in the written statement

filed by defendant no.1, the primary plea is that the Will dated 09.06.2000

stands revoked by a subsequent Will dated 07.08.2004. This clearly implies

an implied admission by the defendant of the execution and registration of

the Will dated 09.06.2000 (Ex.P4) by the testator, Sh. Parmanand.

20. Learned counsel for the respondent/defendant has failed to

point out any suspicious circumstances surrounding the execution of the

Will dated 09.06.2000. Moreover, the defendant has not challenged the

legality or validity of the said Will in specific terms and has merely taken a

plea of revocation.

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21. In view of the evidence on record and the absence of any

suspicious circumstances, this Court is of the considered opinion that the

plaintiffs have successfully proved the due execution, legality, and validity of

the Will dated 09.06.2000, which was registered with the Sub Registrar on

22.06.2000, the certified copy of which is Ex.P4.

22. Coming to the Will relied by the defendant, he has propounded

an unregistered Will dated 07.08.2004, which is typed in Hindi script. The

said document does not disclose the name of the typist or scribe, nor does it

bear any signature or seal of the scribe. The Will purports to have been

attested by two witnesses: Sh. Uttam Chand and Dr. Prem Parkash Gupta.

23. In order to prove the said Will, the defendant examined both

the attesting witnesses, namely, Sh. Uttam Chand as DW2 and Dr. Prem

Parkash Gupta as DW4. While both these witnesses, in their examination-in-

chief, supported the defendant's case by stating that Sh. Parmanand had

executed the Will dated 07.08.2004 voluntarily and had thereby revoked the

earlier Will, their respective cross-examinations significantly undermine the

credibility of their testimonies and cast serious doubt on the due execution

of the Will Ex.D1.

24. DW2 Uttam Chand admitted during cross-examination that he

is a property dealer and had assisted the defendant, Sh. Ravi Kant, in

purchasing certain plots, for which he had received commission. Though the

Will is in Hindi, DW2 categorically stated that he is unable to read Hindi. He

further deposed that at the time of execution of the Will, only the

beneficiary, Ravi Kant, was present, and none of the other family members

of Sh. Parmanand were present. He admitted that he had only signed the

Will and was unaware of who had actually scribed it. He was also ignorant of

whether the Will was presented before the Tehsildar and was completely

unaware of its contents. In such circumstances, the assertion of DW2 that

the contents of the Will were read over and explained to the testator and

the witnesses loses all credibility.

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25. Likewise, DW4 Dr. Prem Parkash Gupta, in his c ross-

examination, admitted that he did not know the name or address of the

scribe, who had typed the Will and had never met him before. He confirmed

that the typist had not appended any name, seal, or signature on the Will.

Though he is a resident of Abohar, he claimed to have gone to Ganga Nagar

on 07.08.2004 to sign the Will. He admitted being a friend of the defendant

Ravi Kant and acknowledged that he only knew Sh. Parmanand as the father

of his friend.

26. Further, DW3 Ravi Kant, the beneficiary of the Will, also

admitted in his deposition that he does not know the name of the scribe and

that he was present at the time of scribing of the Will.

27. A cumulative assessment of the testimonies of DW2, DW3, and

DW4 reveals that none of them is able to disclose the identity of the scribe

of the alleged Will Ex.D1. The Will bears no name, signature, or seal of the

scribe. It further emerges that the sole beneficiary, Ravi Kant, was present

during the execution of the Will, and both the attesting witnesses are closely

acquainted with him. These facts, taken together, give rise to serious doubts

about the authenticity and voluntariness of the alleged Will.

28. Additionally, a perusal of Ex.D1 indicates that while it contains a

vague statement to the effect that any previous Will stands revoked, there is

no specific reference to the earlier Will dated 09.06.2000, registered on

22.06.2000 (Ex.P4). The absence of any explicit revocation of the registered

Will further weakens the defendant’s claim regarding the execution of a

subsequent valid Will.

29. This Court is guided by the settled principles laid down in

judicial precedents concerning competing Wills, particularly when one is

registered and the other is not. In Bhagwan Kaur v. Malwinder Singh

(supra), this Court held that though registration of a Will is not compulsory

under law, it significantly bolsters the presumption of its genuineness. In

that case, the subsequent unregistered Will was found to be clouded by

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suspicious circumstances and was rightly ignored in favour of the earlier

registered Will. Similarly, in H.V. Nirmala v. R. Sharmila (supra), the Hon’ble

Supreme Court reiterated that when a registered Will is duly proved through

reliable evidence, it must be preferred, especially when the alleged later Will

does not even refer to the existence or revocation of the earlier Will. The

Court emphasized that a subsequent Will should clearly express an intention

to revoke a previous one, failing which, its validity is doubtful. In Balbir Wati

v. Jagbir Singh Arora (supra), this court observed that when a person has

already executed a registered Will, it is normally expected that a subsequent

Will, intended to override it, should also be registered. Non-registration of

such subsequent Will raises a presumption of suspicion, and the burden lies

squarely on the propounder to dispel the same through convincing and

satisfactory evidence.

30. Thus, the settled legal position is that while registration of a

Will is not mandatory, it strongly supports its authenticity. A subsequent

unregistered Will, especially one not mentioning the earlier registered Will,

is inherently suspicious and the onus lies heavily on the propounder of such

a subsequent Will to remove all doubts and prove its validity.

31. In the present case, the earlier Will dated 09.06.2000 is

registered and has been proved in accordance with law. The later Will dated

07.08.2004 is unregistered, does not mention the prior Will, and is fraught

with multiple suspicious circumstances. In light of the principles enunciated

in the aforementioned authorities, this Court finds no reason to discard the

earlier registered Will in favour of the subsequent unregistered and

suspicious one.

32. Still further, apart from the fact that the legal and valid

execution of the Will dated 07.08.2004 (Ex.D1) has not been duly proved by

the testimonies of DW2 and DW4—who have been found unreliable—this

Court finds merit in the submission of the learned Senior Counsel for the

appellants, who has rightly pointed out several strong suspicious

circumstances surrounding the said Will.

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33. The most glaring suspicious circumstance arises from the

documented history of strained relations between the testator Sh.

Parmanand, and the beneficiary, defendant No.1—Ravi Kant. As evidenced

on record, the parties were involved in protracted and hostile litigation over

a span of nearly two decades. Notably, Sh. Parmanand had instituted a suit

in 1993 against defendant No.1, seeking a declaration that a decree dated

01.10.1993 was null and void on grounds of fraud. That suit was decreed in

2006 in favour of Parmanand, as seen in judgment Ex.P6. The appeal

preferred by defendant No.1 was dismissed by the Appellate Court on

08.10.2008 (Ex.P8). Furthermore, another suit was filed by defendant No.1

against his father and the present appellants in 1995, which too was

dismissed vide judgment dated 14.02.2011 (Ex.P10 and Ex.P11). This

sustained adversarial litigation continued from 1993 until even after the

death of the testator in 2005, which makes it highly improbable and

unnatural that Sh. Parmanand would, in 2004, execute a Will in favour of

defendant No.1.

34. Additionally, it is of significant relevance that the earlier Will

dated 09.06.2000 was not only validly executed but was also registered on

22.06.2000. However, the alleged subsequent Will dated 07.08.2004

contains no reference to the earlier registered Will. The absence of any

express revocation or mention of the prior Will is another material

suspicious circumstance, which casts serious doubt on the genuineness of

Ex.D1.

35. The First Appellate Court appears to have placed undue

reliance upon observations made by the Revenue Authorities in the course

of mutation proceedings to arrive at a finding that the Will dated 07.08.2004

stood proved. This approach is legally unsustainable. It is a settled position

of law that mutation proceedings are summary in nature and do not

adjudicate upon title or the legality of testamentary documents. Moreover,

it stands brought on record by the learned Senior Counsel for the appellants

that the mutation order was under challenge before the Financial

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Commissioner, and the operation of the order passed by the Commissioner

affirming the Assistant Collector’s decision had been stayed vide order dated

19.02.2013 (Ex.P12). Thus, reliance by the First Appellate Court on such

proceedings is misplaced.

36. Ld. Advocate for the respondent has sought to place reliance on

Randhir Singh v. Jasdev Singh, wherein this Court held that the propounder

of a Will is required to prove its execution and dispel all surrounding

suspicious circumstances, and that minor inconsistencies pointed out by

objectors do not suffice to discredit a valid Will.

37. However, the facts of the present case are cle arly

distinguishable. Here, the suspicious circumstances are neither minor nor

trivial—they strike at the very root of the validity of the Will. Moreover,

while the Will dated 07.08.2004 is said to be the last Will of Parmanand,

who passed away on 12.03.2005, no explanation has been offered as to why

this Will, unlike the earlier one, was not registered. In the backdrop of his

prior registered Will (Ex.P4), the failure to register the subsequent Will,

especially when the testator lived for several months thereafter, further

enhances the cloud of suspicion surrounding its execution—though it is once

again clarified that registration is not mandatory, its absence, in the present

factual matrix, assumes evidentiary significance.

38. Learned counsel for the respondent has contended that PW1—

plaintiff Ramesh Kumar—admitted in his testimony that the Will dated

07.08.2004 was the last Will of Sh. Parmanand, and that this constitutes a

valid admission proving the Will’s validity. Ld. Counsel relied upon

Mritunyoy Sett v. Jadunath Basak (supra), wherein the Hon’ble Supreme

Court observed that an admission made by a party in a court of law

constitutes a valid and relevant piece of evidence and may be relied upon in

other proceedings. Since such an admission emanates from the person

against whom it is sought to be used, it is regarded as the best form of

evidence.

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39. This court finds the above contention to be devoid of merit. To

determine whether a statement amounts to an admission that can be used

against the person making it, the testimony must be read in its entirety.

Upon analysis of the testimony of PW1 Ramesh Kumar, it becomes apparent

that he only acknowledged the existence of the Will dated 07.08.2004

presented by defendant Ravi Kant before the Revenue Authorities during

the mutation proceedings. He clarified that both parties had produced their

respective Wills and that the Assistant Collector First Grade had sanctioned

the mutation based on the Will presented by Ravi Kant. However, nowhere

in his deposition did he admit that the said Will was legally and validly

executed by Sh. Parmanand. Merely referring to the Will dated 07.08.2004

as the 'last Will' does not constitute an admission of its legality or validity.

Accordingly, the argument raised by the respondents’ counsel regarding the

alleged admission lacks merit and cannot be accepted.

40. The question as to whether suspicious circumst ances

surrounding a Will must be pleaded has also been addressed in judicial

precedents. In Baj Singh and others v. Nikko @ Jasvir Kaur (supra), this

Court emphasized the requirement of foundational pleadings to challenge a

Will on the ground of suspicious circumstances. It was held that:

“It would not be appropriate for the Court to address the argument with

regard to suspicious circumstances of the registered Will particularly when

the pleadings and the evidence are totally lacking to prove the same. The

party who wishes to assail the correctness of the registered Will on the

ground of suspicious circumstances is required to lay a foundation in the

pleadings itself and thereafter, lead material evidence to prove the same.

The other party who has propounded the Will cannot be taken by surprise

at a later stage.”

The Court further observed that while pleadings should be concise in

accordance with the Code of Civil Procedure, 1908, any party asserting a

positive fact must include it in their pleadings and substantiate it through

evidence. If this procedure is not followed, the propounder of the Will may

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be seriously prejudiced. The Court would confront the propounder with any

suspicious circumstances not so pleaded only if such circumstances are

visibly apparent and shockingly suspicious on the face of the record.

41. However, in B. Venkatamuni v. C.J. Ayodhya Ram Singh

(supra), the Hon’ble Supreme Court held that mere compliance with legal

formalities in the execution of a Will does not by itself prove its validity.

When there are suspicious circumstances surrounding a Will, the onus lies

on the propounder to dispel such doubts with cogent and convincing

evidence. The Court emphasized that the conscience of the Court must be

satisfied based on the totality of circumstances. The Supreme Court held

that once the propounder of a registered Will has discharged the initial

burden of proving its execution, the burden shifts to the contestant to bring

on record credible material creating doubt. Upon the contestant doing so,

the burden shifts back to the propounder to affirmatively satisfy the Court

that the testator knew the contents of the Will and executed it in a sound

and disposing state of mind.

42. Thus, while suspicious circumstances are generally expected to

be pleaded and substantiated with evidence, even when such circumstances

are not specifically pleaded, the Court retains its duty to evaluate the

totality of facts and satisfy its conscience before upholding the validity of a

Will, particularly where the circumstances surrounding its execution raise

reasonable doubts.

43. In view of the entire foregoing discussion, the judgment and

decree passed by the First Appellate Court are hereby set aside. It is

concluded that the defendant Ravi Kant—respondent herein—has failed to

establish the due execution and genuineness of the Will dated 07.08.2004,

which is enveloped in grave suspicious circumstances that remain

unexplained. Conversely, the Will dated 09.06.2000, duly registered on

22.06.2000 with the Sub-Registrar, stands proved on record and there exists

no cogent reason to disregard its authenticity.

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44. Consequently, the judgment of the Trial Court is restored, and

the suit is decreed in favour of the appellants - plaintiffs. Present appeal is

accepted accordingly. Each party shall bear their own costs.

28.04.2025

Vivek

(DEEPAK GUPTA)

JUDGE

Whether speaking/reasoned? Yes

Whether reportable? Yes