2026:HHC:11128

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

RSA No. 105 of 2012

Reserved on: 06.03.2026

Date of Decision: 09.04.2026

Shiv Dayal & Anr ...Appellants.

Versus

Kanshi Ram & Anr. ...Respondents.

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

Yes

For the Appellants : Mr R.K. Bawa, Senior Advocate,

with Mr Abhinav Thakur,

Advocate.

For the Respondents: Mr Bhupinder Gupta, Senior

Advocate, with Mr Harshit

Sharma, Advocate.

Rakesh Kainthla, Judge

The present appeal is directed against the judgment

dated 10.01.2012 passed by the learned Additional District Judge

(Fast Track Court), Mandi, District Mandi, H.P. (learned

Appellate Court) vide which the judgment and decree dated

30.11.2010 passed by learned Civil Judge (Junior Division)

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2026:HHC:11128

Chachiot at Gohar, Mandi, District Mandi, H.P. (learned Trial

Court) were set aside. (Parties shall hereinafter be referred to in the

same manner as they were arrayed before the learned Trial Court

for convenience.

2. Briefly stated, the facts giving rise to the present

appeal are that the plaintiffs filed a civil suit before the learned

Trial Court seeking a declaration that the Wills dated 20.03.2007

and 11.04.2007 stated to have been executed by Dharam Chand

were null and void, which had no binding effect upon the

plaintiffs’ rights. A decree for possession was also sought in case

the defendants succeeded in forcibly dispossessing the

plaintiffs. A consequential relief of permanent prohibitory

injunction for restraining the defendants from interfering in the

suit land described in para 1 of the plaint was also sought.

3. It was asserted that the suit land was owned and

possessed by Dharam Chand, who was the plaintiffs’ cousin.

Purshottam, plaintiffs’ father, and Moti Ram, father of the

deceased Dharam Chand, were real brothers. The plaintiffs used

to look after Dharam Chand and supply him with all the

necessities of life. The defendants propounded two Wills dated

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20.03.2007 and 11.04.2007, stated to have been executed by

Dharam Chand in their favour. The plaintiffs, being a relative of

Dharam Chand, were entitled to inherit the suit land. The

plaintiffs are in possession of the suit land, and the defendants

threatened to interfere with his possession based on the Will.

Hence, the suit was filed to seek the relief mentioned above.

4. The suit was opposed by filing a written statement

admitting that Dharam Chand was the owner of the suit land.

The remaining contents of the plaint were denied on the merits.

It was asserted that Dharam Chand had executed two wills on

20.03.2007 and 11.04.2007 in the defendants’ favour voluntarily

in his free, sound and disposing state of mind in consideration

of the services provided by the defendants to him. The Will dated

20.03.2007 had a mistake in it, and Dharam Chand executed a

Will on 11.04.2007. The defendants remained in possession of

the suit land. Dharam Chand had also filed an application before

Tehsildar Thunag for taking action against the plaintiffs and

their family members regarding the unlawful interference with

his land. The suit was filed without any basis. Hence, it was

prayed that it be dismissed.

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5. No replication was filed.

6. The learned Trial Court framed the following issues

on 11.11.2008: -

1. Whether Dharam Chand was a relative of the

plaintiffs, being the son of their uncle Moti Ram, as

alleged? OPP.

2. Whether Dharam Chand was looked after during his

life time by the plaintiffs, as alleged? OPP.

3. Whether the suit property was ancestral in nature?

OPP.

4. Whether the Wills dated 20.03.2007 and 11.04.2007

are a result of fraud, coercion, undue influence and

misrepresentation and are liable to be declared null

and void, as alleged? OPP.

5.Whether the plaintiff is also entitled to the relief of a

permanent prohibitory injunction as prayed for? OPP.

6. Whether the plaintiff in the alternative is entitled to

the relief of possession, as prayed for? OPP

7.Whether the Wills dated 20.03.2007 and 11.04.2007

were voluntarily executed got registered by Dharam

Chand of his free will and consent and out of love and

affection to the defendants? OPD

8.Whether the plaintiff has no cause of action and locus

standi to file the present suit? OPD

9.Whether the present suit has not been properly

valued for the purpose of court fees and jurisdiction?

OPD

10.Relief.

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7. The parties were called upon to produce the evidence,

and the plaintiff examined Ramesh Kumar (PW1) and Prem

Singh (PW2). The defendants examined Shobha Ram (DW1),

Satish Kumar (DW2), Jai Ram (DW3), Shiv Dayal (DW4), Daulat

Ram (DW5), and Hari Singh (DW6). Plaintiff examined Brij Lal

(RPW1) and Rajender Kumar (RPW2) in rebuttal.

8. The learned Trial Court held that the execution and

attestation of the Will were duly proved. The explanation

provided by the defendants that the second Will was executed to

rectify the clerical mistake in the first was acceptable. The

suspicious circumstances pointed out by the plaintiffs were duly

explained. The plaintiffs’ plea that they were in possession of

the suit land was also not established on the balance of

probability. Hence, the learned Trial Court answered issues Nos 1

and 7 in the affirmative, issue Nos. 2, 4, 5, & 6 in the negative,

issue No.3 partly in the affirmative and issue Nos. 8 and 9 as not

pressed, and dismissed the suit.

9. Being aggrieved by the judgment and decree passed

by the learned Trial Court, the plaintiffs filed an appeal, which

was decided by the learned Additional District Judge (Fast Track

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Court), Mandi, District Mandi, H.P. (learned Appellate Court).

Learned Appellate Court held that the conclusion of the learned

Trial Court regarding the due execution of the Will was not

sustainable. Satish Kumar (DW2), the scribe, Daulat Ram (DW5),

the marginal witness or Hari Singh (DW6), the identifier, did not

say that the witnesses to the Will had put their signatures in the

presence of Dharam Chand. Shiv Dayal (DW4) and Ganga Devi

(beneficiaries to the Will) were present at the time of the

execution of the Will. They had also put their signatures on the

Will. No reason for excluding the natural heirs was assigned.

Mere registration of the Will does not make it valid. The

defendants had failed to remove the suspicious circumstances

surrounding the execution of the Will. Therefore, the judgment

and decree passed by the learned Trial Court were set aside, and

the suit was ordered to be decreed.

10. Being aggrieved by the judgment and decree passed

by the learned Appellate Court, the defendants/appellants have

filed the present appeal, which was admitted on the following

substantial questions of law on 12.06.2012: -

1.Whether the mere presence of the beneficiary at the

time of execution of the Will can be a ground to doubt

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the testamentary capacity of the testatrix and

genuineness of the Will?

2.Whether the learned lower Appellate Court erred in

holding that the Will was shrouded by the suspicious

circumstances, which suspicion was neither real,

germane or valid and, in fact, was fantasy of

doubting mind?

11. I have heard Mr R.K. Bawa, learned Senior Counsel,

assisted by Mr Abhinav Thakur, Advocate, for the appellants and

Mr Bhupinder Gupta, learned Senior Counsel, assisted by Mr

Harshit Sharma, learned counsel for the respondents.

12. Mr R.K. Bawa, learned Senior counsel for the

appellants/defendants, submitted that the learned Appellate

Court erred in holding that due execution and attestation of the

Will were not proved. It is evident from the holistic readings of

the statements that the testator had put his signature on the

Will first, and thereafter, the attesting witnesses had put their

signatures. The mere presence of the beneficiary at the time of

the execution of the Will is not sufficient to invalidate it. Hence,

he prayed that the present appeal be allowed and the judgment

and order passed by the learned Appellate Court be set aside. He

relied upon Shashi Kumar Banerjee and others vs. Subodh Kumar

Banerjee, deceased, and after him his legal representatives and

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others 1963 SCC Online SC 114, Smt. Sushila Devi vs. Pandit Krishna

Kumar Missir and others 1971(3) SCC 146, Pushpavathi and others

vs. Chandraraja Kadamba and others (1973) 3 SCC 291, Rabindra

Nath Mukherjee and another vs. Panchanan Banerjee (dead) by

LRs and others. (1995) 4 SCC 459, Union of India and another vs.

S.S. Ranade (1995) 4 SCC 462, Ramabai Padmakar Patil (dead)

through LRs and others vs. Rukminibai Vishnu Vekhande and

others (2003) 8 SCC 537, Uma Devi Nambiar and others vs. T.C.

Sidhan (dead) (2004) 2 SCC 321, Pentakota Satyanarayana and

others vs. Pentakota Seetharatnam and others (2005) 8 SCC 67,

Gurdev Kaur and others vs. Kaki and others (2007) 1 SCC 546, Jasbir

Singh v. Punjab & Sind Bank and others (2007) 1 SCC 566, Savithri

and others vs. Karthyayani Amma and others (2007) 11 SCC 621,

Mahesh Kumar (Dead) by LRs vs. Vinod Kumar and others (2012) 4

SCC 387, Leela Rajagopal and others vs. Kamala Menon Cocharan

and others (2014) 15 SCC 570, Ved Mitra Verma vs. Dharam Deo

Verma (2014) 15 SCC 578, Meena Pradhan and others vs. Kamla

Pradhan and Anr 2023INSC847, Smt. Kalo (since deceased) through

legal heirs Smt. Meera Devi and others vs. General Public and others

decided on 06.11.2019, Shakuntla Devi vs. Savitri Devi, AIR 1997 HP

43, Smt. Bhanumat Chouhan vs. Chetan Singh and others, AIR 1997

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2026:HHC:11128

HP 48, Pentakota Satyanarayana and others vs. Pentakota

Seetharatnam and others, AIR 2005 SC 4362, Bhikha Ram & Anr.

vs. Govind Ram & Ors. RSA No. 582 of 2004, decided on 22.03.2006,

United India Insurance Co. Ltd vs. Tilak Singh and Ors Civil Appeal

No. 2291 of 2000, decided on 04.04.2006, Gun Parkash and another

vs. Bhola Nath, AIR 1997 HP 27, Sukhjinder Kaur vs. Jaswant Singh,

AIR 1997 SC 3821 and Gurdial Singh vs. Rattan Kaur AIR 1996

Punjab and Haryana 265 in support of his submission.

13. Mr Bhupinder Gupta, learned Senior Advocate for th

respondents, submitted that the propounder of the Will is

required to prove due execution and attestation of the Will by

examining the witnesses to establish that the testator had

signed the Will in the presence of the witnesses and the

witnesses had also signed the Will in the presence of the

testator. Such evidence was lacking in the present case. The

active participation by the beneficiary is a suspicious

circumstance and the learned Appellate Court was justified in

discarding the Will because of the suspicious circumstances

surrounding the execution of the Will. The learned Appellate

Court had taken a reasonable view while appreciating the

evidence, and this Court should not interfere with the findings

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of fact recorded by the learned Appellate Court while deciding

the Regular Second Appeal. Hence, he prayed that the present

appeal be dismissed. He relied upon Murthy & others vs. C.

Saradambal & others (2022) 3 SCC 209, Bharpur Singh & others vs.

Shamsher Singh (2009) 3 SCC 687, Shivakumar & others vs.

Sharanabasappa & others (2021) 11 SCC 277, Raj Kumari & others

vs. Surinder Pal Sharma (2021) 14 SCC 500, Mona Devi vs. Amba

Dutt Sharma & Anr. Latest HLJ 2013 (HP) 1142, Savithri & others vs.

Karthyayani Amma & others (2007) 11 SCC 621 and Bal Krishan &

another vs. Shangri Devi & others, Latest HLJ 2008 (HP) 799, in

support of his submissions.

14. I have given considerable thought to the submissions

made at the bar and have gone through the records carefully.

Substantial Question of Law No.1:

15. Learned Appellate Court held that the beneficiaries

were present at the time of the execution of the Will, and that

was a suspicious circumstance. This finding cannot be

sustained. It was laid down by the Punjab & Haryana High Court

in Tirath Singh Versus Sajjan Singh 1997 (2) Civil Court Cases 299

(P&H) that the mere fact that the beneficiary accompanied the

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testator from the village and was present when the Will was

being scribed is no ground to make the execution of the Will

suspicious. It was held:

“Kartar Singh (D.W.3) also stated in his cross-

examination that when they started from the village, he,

Tirath Singh, Ralla, Harbhajan Singh, and Karnail Singh

were together. According to the learned counsel for the

respondent, it clearly goes to show that Tirath Singh and

Karnail Singh appellants, had taken an active part in

getting the Will executed from Ralla in their favour. There

is no substance in this contention. It was not elicited from

Gobind Parshad (D.W.2) and Kartar Singh (D.W.3) as to

how and in what manner Tirath Singh and Karnail Singh

had taken an active part in the execution of the Will, or

that Ralla was influenced by them to execute that Will in

their favour. The mere fact that at the time of scribing the

Will, they were present or that they had accompanied

Ralla from the village to the Court compound where the

Will was scribed, is not sufficient to draw an inference

that they had exercised any undue influence on Ralla and,

under the influence, Ralla had executed the Will in their

favour.”

16. This Court also held in Leela v. Drumti Devi, 2000 SCC

OnLine HP 20 = AIR 2000 HP 7 that the mere presence of the

beneficiary or his accompanying the testator will not establish

the exercise of undue influence in the execution of the Will. It

was held:

“Otherwise, also, the presence of the beneficiary or such

beneficiary accompanying the testator for the execution

of a Will would not show that undue influence was

exercised by the beneficiary in the execution of the Will.

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The Will was registered on the same day, and the

endorsement of the Sub-Registrar shows that the

contents of the Will were read over and explained to Shri

Dilu by the Sub-Registrar, who admitted the contents to

be correct. It is now well settled that the mere presence of

the beneficiary or their accompanying the testator would

not show the exercise of undue influence in the execution

of the Will (See Tirath Singh v. Sajjan Singh (Died) through

his LRs. 1998 (1) SLJ 232). In Gun Parkash v. Bhola Nath, AIR

1997 Him Pra 27, the Will was scribed in the presence of

family members of the beneficiary. The testator was an

old lady, and her natural heirs were deprived by her. In

this context, it was observed :

"No doubt, the presence of the family members of

the defendants has been stated to be there by the

plaintiff's witnesses, but that by itself will not

make the Will suspicious unless something more

than that is established. The Will in question in the

instant case is registered, and the deceased was

identified by an Advocate before the Sub-Registrar.

Simply because the testator was an old lady and

natural heirs have been deprived by her is not by

itself a suspicious circumstance to discard the

same......."

23. It may be remembered that deceased testator Shri Dilu

was living at the relevant time with defendant No. 1, and

there is nothing unnatural in the defendant, the

beneficiary, being present at the time of execution of the

Will.

17. Similarly, it was held in Kartar Chand Versus Mathura

Dass 2004 Latest HLJ 105 that the mere fact that the beneficiary

was accompanying the testatrix, who was at an advanced age, is

not a suspicious circumstance. It was held:

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“10. This Court in Smt. Leela alias Bali Devi (supra), relying

upon Tirath Singh and others v. Sajjan Singh (Died) through

his L.Rs. and others, 1998(1) S.LJ. 232 and Gun Parkash and

another v. Bhola Nath, AIR 1997 H.P 27, held that the fact

that the beneficiary accompanied the testator for the

execution of a Will would not show that undue influence

was exercised by the beneficiary in the execution of the

Will. The presence of the family members of the

beneficiary in itself will not make the Will suspicious

unless something more than that is established. Simply

because the testatrix was an old lady, suffering from

tuberculosis, and the fact that her natural heirs were

deprived in itself will not be a suspicious circumstance to

discard the Will.”

18. Hon’ble Supreme Court also held in Sridevi v. Jayaraja

Shetty, (2005) 2 SCC 784: 2005 SCC OnLine SC 186 that mere

presence at the time of the execution of the Will does not show

the active participation by the beneficiary. It was observed at

page 791:

“16. Counsel for the appellants argued that Respondent 13

had taken a prominent part in the execution of the Will,

as he was present in the house at the time of the alleged

execution of the Will. We do not find any merit in this

submission. Apart from establishing his presence in the

house, no other part is attributed to Respondent 13

regarding the execution of the Will. Mere presence in the

house would not prove that he had taken a prominent

part in the execution of the Will. Moreover, both attesting

witnesses have also stated that the daughters were also

present in the house at the time of execution of the Will.

The attesting witnesses were not questioned regarding

the presence of the daughters at the time of the execution

of the Will in the cross-examination. The presence of the

daughters in the house at the time of execution of the Will

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itself dispels any doubt about the so-called role which

Respondent 13 had played in the execution of the Will.

They have not even stepped into the witness box to say as

to what sort of role was played by Respondent 13 in the

execution of the Will.”

19. In the present case, nobody deposed that the

beneficiary had prevailed over the testator. Satish Kumar (DW2)

stated in his cross-examination that Shiv Dayal (DW4) and

Ganga Devi were sitting beside him. He voluntarily stated that

all the persons were sitting with him at the time of writing the

Will. Thus, it cannot be said that there was any active

participation, and the learned Appellate Court erred in holding

that the mere presence of the beneficiary at the time of the

execution of the Will was sufficient to invalidate it. In Bal

Krishan (supra), the propounder had taken an active

participation in the execution of the Will, and the cited

judgment does not apply to the facts of the present case. Hence,

the substantial question of law No.1 is answered accordingly.

Substantial Questions of Law No.2: -

20. The law relating to the execution of the Will was

explained by the Hon’ble Supreme Court in Meena Pradhan v.

Kamla Pradhan, (2023) 9 SCC 734: (2023) 4 SCC (Civ) 449 as

under:

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“10.1. The court has to consider two aspects: firstly,

that the will is executed by the testator, and secondly,

that it was the last will executed by him.

10.2. It is not required to be proved with mathematical

accuracy, but the test of satisfaction of the prudent

mind has to be applied.

10.3. A will is required to fulfil 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

acknowledgement 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.

10.4. For the purpose of proving the execution of the

will, at least one of the attesting witnesses, who is

alive, subject to the process of court, and capable of

giving evidence, shall be examined;

10.5. The attesting witness should speak not only about

the testator's signatures but also that each of the

witnesses had signed the will in the presence of the

testator;

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10.6. If one attesting witness can prove the execution

of the will, the examination of other attesting

witnesses can be dispensed with;

10.7. Where one attesting witness examined to prove

the will fails to prove its due execution, then the other

available attesting witness has to be called to

supplement his evidence;

10.8. Whenever there exists any suspicion as to the

execution of the will, it is the responsibility of the

propounder to remove all legitimate suspicions before

it can be accepted as the testator's last will. In such

cases, the initial onus on the propounder becomes

heavier;

10.9. The test of judicial conscience has evolved for

dealing with those cases where the execution of the

will is surrounded by suspicious circumstances. It

requires consideration of factors such as awareness of

the testator as to the content as well as the

consequences, nature and effect of the dispositions in

the will; a sound, certain and disposing state of mind

and memory of the testator at the time of execution;

the testator executed the will while acting on his own

free will;

10.10. One who alleges fraud, fabrication, undue

influence, etc., has to prove the same. However, even

in the absence of such allegations, if there are

circumstances giving rise to doubt, then it becomes

the duty of the propounder to dispel such suspicious

circumstances by giving a cogent and convincing

explanation.

10.11. Suspicious circumstances must be “real,

germane and valid” and not merely “the fantasy of the

doubting mind [ Shivakumar v. Sharanabasappa

[Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ]”.

Whether a particular feature would qualify as

“suspicious” would depend on the facts and

circumstances of each case. Any circumstance raising

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suspicion, legitimate in nature, would qualify as a

suspicious circumstance, for example, a shaky

signature, a feeble mind, an unfair and unjust

disposition of property, the propounder himself taking

a leading part in the making of the will under which he

receives a substantial benefit, etc.”

21. This position was reiterated in Gurdial Singh v.

Jagir Kaur, 2025 SCC OnLine SC 1466, wherein it was

observed:

“11. A Will has to be proved like any other document

subject to the requirements of Section 63 of the Indian

Succession Act, 1925 and Section 68 of the Indian

Evidence Act, 1872, that is, examination of at least one of

the attesting witnesses. However, unlike other

documents, when a Will is propounded, its maker is no

longer in the land of the living. This casts a solemn duty

on the Court to ascertain whether the Will propounded

had been duly proved. Onus lies on the propounder not

only to prove due execution but to dispel from the mind of

the court all suspicious circumstances which cast doubt

on the free disposing mind of the testator. Only when the

propounder dispels the suspicious circumstances and

satisfies the conscience of the court that the testator had

duly executed the Will out of his free volition without

coercion or undue influence, would the Will be accepted

as genuine. In Smt. Jaswant Kaur v. Smt. Amrit Kaur (1977)

1 SCC 369, this Court, referring to H. Venkatachala Iyengar

v. B.N. Thimmajamma 1959 Supp (1) SCR 426

,

enumerated

the principles relating to proof of Will:—

“10. ***** **** **** ****

“1. Stated generally, a will has to be proved like

any other document, the test to be applied being

the usual test of the satisfaction of the prudent

mind in such matters. As in the case of proof of

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other documents, so in the case of proof of wills,

one cannot insist on proof with mathematical

certainty.

2. Since Section 63 of the Succession Act requires

a will to be attested, it cannot be used as

evidence until, as required by Section 68 of the

Evidence Act, one attesting witness at least has

been called for the purpose of proving its

execution, if there be an attesting witness alive,

and subject to the process of the court and

capable of giving evidence.

3. Unlike other documents, the will speaks from

the death of the testator, and therefore, the

maker of the will is never available for deposing

as to the circumstances in which the will came to

be executed. This aspect introduces an element

of solemnity in the decision of the question

whether the document propounded is proved to

be the last will and testament of the testator.

Normally, the onus which lies on the

propounder can be taken to be discharged on

proof of the essential facts which go into the

making of the will.

4. Cases in which the execution of the will is

surrounded by suspicious circumstances stand

on a different footing. A shaky signature, a

feeble mind, an unfair and unjust disposition of

property, the propounder himself taking a

leading part in the making of the will under

which he receives a substantial benefit and such

other circumstances raise suspicion about the

execution of the will. That suspicion cannot be

removed by the mere assertion of the

propounder that the will bears the signature of

the testator or that the testator was in a sound

and disposing state of mind and memory at the

time when the will was made, or that those like

the wife and children of the testator who would

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normally receive their due share in his estate

were disinherited because the testator might

have had his own reasons for excluding them.

The presence of suspicious circumstances makes

the initial onus heavier and, therefore, in cases

where the circumstances attendant upon the

execution of the will excites the suspicion of the

court, the propounder must remove all

legitimate suspicions before the document can

be accepted as the last will of the testator.

5. It is in connection with wills, the execution of

which is surrounded by suspicious

circumstances, that the test of satisfaction of the

judicial conscience has been evolved. That test

emphasises that in determining the question as

to whether an instrument produced before the

court is the last will of the testator, the court is

called upon to decide a solemn question, and by

reason of suspicious circumstances, the court

has to be satisfied fully that the will has been

validly executed by the testator.

6. If a caveator alleges fraud, undue influence,

coercion, etc., in regard to the execution of the

will, such pleas have to be proved by him, but

even in the absence of such pleas, the very

circumstances surrounding the execution of the

will may raise a doubt as to whether the testator

was acting of his own free will. And then it is a

part of the initial onus of the propounder to

remove all reasonable doubts in the matter.”

The Court further held: —

“9. In cases where the execution of a will is

shrouded in suspicion, its proof ceases to be a

simple lis between the plaintiff and the defendant.

What, generally, is an adversary proceeding

becomes in such cases a matter of the court's

conscience, and then the true question which arises

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for consideration is whether the evidence led by the

propounder of the will is such as to satisfy the

conscience of the court that the will was duly

executed by the testator. It is impossible to reach

such satisfaction unless the party which sets up the

will offers a cogent and convincing explanation of

the suspicious circumstances surrounding the

making of the will.”

12. Similarly, in Ram Piari v. Bhagwant (1993) 3 SCC 364,

this Court held that when suspicious circumstance exists,

Courts should not be swayed by the due execution of the

Will alone:

“3. ………………. Unfortunately, none of the courts paid

any attention to these, probably because they were

swayed with due execution even when this Court in

Venkatachaliah case [AIR 1959 SC 443: 1959 Supp (1) SCR

426] had held that, proof of signature raises a

presumption about knowledge, but the existence of

suspicious circumstances rebuts it…………….”

13. There is no cavil when suspicious circumstances exist

and have not been repelled to the satisfaction of the

Court, the Court would not be justified in holding that the

Will is genuine since the signatures have been duly

proved and the Will is registered. (AIR 1962 SC 567).

22. A similar view was taken in Savithri (supra), Mona

Devi (supra), Raj Kumari (supra), Shivakumar (supra), Bharpur

Singh (supra), Murthy (supra), Shashi Kumar (supra),

Pushpavathi (supra), Ramabai Padmakar Patil (dead) through

LRs(supra), Pentakota Satyanarayana (supra), Gurdev Kaur

(supra), Mahesh Kumar (Dead) by LRs (supra), Kalo Devi (since

deceased) (surpa), Shakuntla Devi (supra) and Gun Parkash

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(supra). Therefore, it is not necessary to refer to each judgment

and quote the relevant paragraphs.

23. Learned Appellate Court held that the Will was

shrouded in suspicious circumstances. In this regard, it is to be

noticed that the plaintiff had not pleaded the suspicious

circumstances. It was laid down by the Hon’ble Delhi High

Court in S. Amarjit Singh v. State, 1998 SCC OnLine Del 398 = AIR

1999 Delhi 33, that the suspicious circumstances have to be

pleaded and proved; those cannot be urged for the first time

before the Appellate court. It was observed: -

“10. I agree with the contention of Mr Mariaputham

that suspicious circumstances ought to have been

pleaded and urged. Those cannot be pleaded or urged

for the first time before the appellate Court specially

when the foundation of such a suspicious circumstance

was not laid before the Probate Court nor pleaded

otherwise Supreme Court in the case of P.P.K. Gopalan

Nambiar v. Balakrishnan Nambiar reported in 1995 Supp

(2) SCC 664 : (AIR 1995 SC 1852) observed that any

suspicious circumstance ought to be urged by the

objector should be pleaded and proved. Without such

pleading and proof, it cannot be taken into

consideration. A similar view was expressed by the

Apex Court in the case of Trojan and Co. Ltd. v. Nagappa

Chettiar reported in 1953 SCR 789: (AIR 1953 SC 235), as

well as in the case of Srivenkataramana Devaru v. State

of Mysore reported in 1958 SCR 895 : (AIR 1958 SC 255 at

p. 263, para 14) where the Apex Court laid down the law

as such :

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2026:HHC:11128

"The object of requiring a party to put forward

his pleas in the pleadings is to enable the

opposite party to controvert them and to adduce

evidence in support of his case. And it would be

neither legal nor just to refer to evidence

adduced with reference to a matter which was

actually in issue and on the basis of that

evidence, to come to a finding on a matter which

was not in issue, and decide the rights of the

parties on the basis of that finding. We have

accordingly declined to entertain this

contention."

11. In this view of the matter, this Court is not

inclined to entertain such of suspicious circumstances,

which were neither pleaded nor proved before the

probate Court…”

24. Therefore, it was impermissible for the learned

Appellate Court to hold that the Will was shrouded by suspicious

circumstances in the absence of any pleading. Further, the

suspicious circumstances pointed out were the presence of the

beneficiaries at the time of the execution of the Will and the

exclusion of the natural heirs. It has already been found above

that the presence of the beneficiary at the time of the execution

of the Will is not a suspicious circumstance. It was laid down by

the Hon’ble Supreme Court in Rabindra Nath Mukherjee v.

Panchanan Banerjee, (1995) 4 SCC 459, that the exclusion of the

natural heir is not a suspicious circumstance because the whole

23

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idea behind executing the Will is to interfere with the natural

line of succession. It was observed at page 461:

“4. As to the first circumstance, we would observe that

this should not raise any suspicion, because the whole

idea behind the execution of a will is to interfere with the

normal line of succession. So natural heirs would be

debarred in every case of will; of course, it may be that in

some cases they are fully debarred and in others only

partially….”

25. This position was reiterated in Uma Devi Nambiar v.

T.C. Sidhan, (2004) 2 SCC 321: 2003 SCC OnLine SC 1371, wherein it

was observed at page 333:

“6. A Will is executed to alter the ordinary mode of

succession, and by the very nature of things, it is bound to

result in either reducing or depriving the share of natural

heirs. If a person intends his property to pass to his

natural heirs, there is no necessity at all of executing a

Will…..It has been held that if the propounder succeeds in

removing the suspicious circumstance, the court has to

give effect to the Will, even if the Will might be unnatural

in the sense that it has cut off wholly or in part near

relations. (See Pushpavathi v. Chandraraja Kadamba

[(1973) 3 SCC 291: AIR 1972 SC 2492].) In Rabindra Nath

Mukherjee v. Panchanan Banerjee [(1995) 4 SCC 459 ], it

was observed that the circumstance of deprivation of

natural heirs should not raise any suspicion because the

whole idea behind the execution of the Will is to interfere

with the normal line of succession, and so, natural heirs

would be debarred in every case of a Will. Of course, it

may be that in some cases they are fully debarred and in

some cases partly.”

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26. Therefore, the Will cannot be said to be suspicious

simply because of the exclusion of the natural heirs.

27. Learned Trial Court further held that the due

attestation of the Will was not proved because the witnesses had

not stated that they had signed the Will in the presence of the

testator, which was necessary. This finding cannot be sustained.

It was laid down by the Hon'ble Punjab and Haryana High Court

in Gauri v. Munshi Ram, 1955 SCC OnLine Punj 114: ILR (1956) 1

P&H 157 that even if the witness had not specifically deposed

that the testator had put his signatures in the presence of the

witnesses but it is apparent from the circumstances that

witnesses and the testator were present at the same time,

compliance of Section 63(c) of Indian Succession Act was duly

proved. It was observed at page 160:

“On the question of whether the requirements of section

63 of the Indian Succession Act were complied with, Mr

Pandit cited three rulings of this Court, Onkar Pershad v.

Jagdish Pershad, etc. [ 1951 P.L.R. 81.], Gian Chand, etc. v.

Surrinder Kumar, etc. [ 1951 P.L.R. 251.] and Rura Ram v.

Munshi Ram and others [ 1950 P.L.R. 413.]. In all these

cases, the view taken was that if the attesting witness of a

will does not, in explicit terms, say that the testator

signed the will in his presence and that he affixed his

attesting signature in the presence of the testator, then

the evidence of the witness is worthless in so far as the

proof of the will is concerned. This, with great respect to

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the Honourable Judges, is a wholly erroneous view. The

law requires that the provisions of section 63 of the

Indian Succession Act should be complied with. This

compliance can be proved either by means of oral

evidence or in any other manner. Section 63 does not lay

down how the fact of compliance is to be proved. The

question of proof is a wholly different matter. Where a

witness comes before the Court and narrates his story,

the Court must satisfy itself what that story proves, and

even if a witness does not in explicit terms say that he

signed the will in the testator's presence and that the

testator signed in his presence, the Court may come to the

conclusion that this is what the witness meant. The

question of proof is dealt with in section 3 of the Indian

Evidence Act. A fact may be proved by direct evidence or

by secondary evidence, by oral evidence or by

documentary evidence or merely by circumstantial

evidence. A witness may, owing to inadvertence, omit to

say that the testator signed in his presence, although this

fact may be clearly discernible from the story which he

has narrated on oath. I am constrained to say, though not

without a great deal of reluctance, that the learned Judges

appear to have confused the factum of compliance with

the provisions of section 63 with the proof of such

factum. I do not think it can be laid down that a witness

must use certain words before his evidence can be

accepted as proof of a certain fact. The witnesses in the

present case say that the will was drawn up and executed

in their presence, and they signed the will as attesting

witnesses. There was no cross-examination to show that

the attestation took place at a different time and place,

and, therefore, it cannot be held that the evidence of the

witnesses does not prove the factum of compliance. The

question of whether a certain fact has or has not been

proved depends not upon the exact words used by a

witness but upon the evidence given by the witnesses as a

whole and the impression this evidence leaves on the

mind of a prudent man. Upon going through the evidence

of these witnesses, I have no doubt whatsoever in my

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mind that these witnesses were present when the testator

executed the will, and they attested the will in his

presence. The entire transaction took place at one time

and place, and there was no question of the witnesses

being absent when the testator signed it or the testator

being absent when the witnesses signed it. The

circumstances clearly indicate that the proceedings lasted

a short time and took place in the presence of everyone

concerned.

A recent decision of their Lordships of the Supreme Court

places this matter beyond all doubt. It was held in Naresh

Charan v. Paresh Charan [ A.I.R. 1955 S.C. 363.] —

“It cannot be laid down as a matter of law that

because the witnesses did not state in

examination-in-chief that they signed the will in

the presence of the testator, there was no due

attestation. It will depend on the circumstances

elicited in evidence whether the attesting witnesses

signed in the presence of the testator. This is a pure

question of fact depending on the appreciation of

evidence.”

Certain remarks in Williams on Wills, Volume I, page 66,

based upon a number of English decisions, would appear

to go even further, although in point of fact, these

remarks merely amount to this that the due execution of a

will must be proved like any other fact and in some cases,

presumptions may be made where such presumptions

arise in law. Williams observes—

“If a will, on the face of it, appears to be duly

executed, the presumption is in favour of due

execution, applying the principle omnia

praesumuntur rite esse acta. If the witnesses are

entirely ignorant of the details of the execution, the

presumption is the same.”

I would therefore hold that there was full

compliance with the provisions of section 63,

Indian Succession Act.”

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28. It was held in Naresh Charan Das Gupta v. Paresh

Charan Das Gupta, (1954) 2 SCC 800: 1954 SCC OnLine SC 56 that

where the testator and the witnesses gathered, they would have

been present till the time the matter was finished. It was

observed at page 807:

“13. It was also argued for the appellant that there was no

proof that the will was duly attested as required by

Section 63 of the Indian Succession Act, and that it should

therefore be held to be void. PWs 1 and 2 are the two

attestors, and they stated in examination-in-chief that

the testator signed the will in their presence and that they

attested his signature. They did not add that they signed

the will in the presence of the testator. Now, the

contention is that in the absence of such evidence, it must

be held that there was no due attestation. Both the courts

below have held against the appellant on this contention.

The learned Judges of the High Court were of the opinion

that as the execution and attestation took place at one

sitting at the residence of PW 1, where the testator and

the witnesses has assembled by appointment, they must

all of them have been present until the matter was

finished, and as the witnesses were not cross-examined

on the question of attestation, it could properly be

inferred that there was due attestation. It cannot be laid

down as a matter of law that because the witnesses did

not state in examination-in-chief that they signed the

will in the presence of the testator, there was no due

attestation. It will depend on the circumstances elicited in

evidence whether the attesting witnesses signed in the

presence of the testator. This is a pure question of fact,

depending on the appreciation of evidence. The finding of

the court below that the will was duly attested is based on

a consideration of all the materials and must be accepted.

Indeed, it is stated in the judgment of the Additional

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District Judge that “the fact of due execution and

attestation of the will was not challenged on behalf of the

caveator at the time of the hearing of the suit”. This

contention of the appellant must also be rejected.

29. It was held in Dhruba Sahu v. Paramananda Sahu ,

1982 SCC OnLine Ori 83: AIR 1983 Ori 24 that omission to state the

fact that the witness had signed in the presence of the executant

is not material when both the executant and the witness were

present at the same time, and the transaction had concluded in

one sitting. It was observed:

“7. Section 68 of the Evidence Act provides that 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. This

Section contains a proviso 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 Registration Act,

1908, unless its execution by the person by whom it

purports to have been executed is specifically denied.

Execution of the deed of gift having been specifically

denied, the proviso does not apply to the present case."

30. In M.B. Ramesh v. K.M. Veeraje Urs, (2013) 7 SCC 490:

(2013) 3 SCC (Civ) 576: 2013 SCC OnLine SC 417, the witness had

not deposed specifically that the testator had put his signature

in the presence of the marginal witnesses. It was contended that

29

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the will was not proved to have been duly executed. Rebutting

this contention, the Hon’ble Supreme Court held at page 503:

“24. In the present case, we may note that in Para 21 of

his cross-examination, P. Basavaraje Urs has, in terms,

stated, “Mr Mallaraje Urs and Smt Nagammanni, myself

and one Sampat Iyanger were present while writing the

will”. One Mr Narayanmurti was also present. In Para 22,

he has stated that Narayanmurti had written Ext. 3 (will)

in his own handwriting continuously. The fact that M.

Mallaraje Urs was present at the time of execution of the

will is not contested by the defendants by putting it to PW

2 that M. Mallaraje Urs was not present when the will was

executed. As held by a Division Bench of the Calcutta High

Court in a matter concerning a will, in para 10 of A.E.G.

Carapiet v. A.Y. Derderian [AIR 1961 Cal 359]: (AIR p. 362)

“10. … Wherever the opponent has declined to avail

himself of the opportunity to put his essential and

material case in cross-examination, it must follow

that he believed that the testimony given could not be

disputed at all. … It is a rule of essential justice.”

As noted earlier, the will was executed on 24-10-1943 in

the office of Advocate Shri Subha Rao situated at Mysore,

and was registered on the very next day at Mysore. The

fact that the will is signed by Smt Nagammanni in the

presence of PW 2 on 24-10-1943 has been proved, and

that PW 2 signed in her presence has also been proved.

Can the signing of the will by Smt Nagammanni in the

presence of M. Mallaraje Urs and his signing in her

presence as well not be inferred from the above facts on

record? In our view, in the facts of the present case, the

omission on the part of PW 2 to specifically state that the

signature of M. Mallaraje Urs on the will (which he

identified) was placed in the presence of Smt

Nagammani, and that her signature (which he identified)

was also placed in the presence of M. Mallaraje Urs, can be

said to be a facet of not recollecting about the same. This

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deficiency can be taken care of by looking to the other

evidence of attendant circumstances placed on record,

which is permissible under Section 71 of the Evidence Act.

25. The issue of the validity of the will in the present case

will have to be considered in the context of these facts. It

is true that in the case at hand, there is no specific

statement by PW 2 that he had seen the other attesting

witness sign the will in the presence of the testatrix, but

he has stated that the other witness had also signed the

document. He has proved his signature, and on top of it,

he has also stated in the cross-examination that the other

witness (Mr Mallaraje Urs), Smt Nagammani, himself and

one Sampat Iyanger and the writer of the will were all

present while writing the will on 24-10-1943, which was

registered on the very next day. This statement, by

implication and inference, will have to be held as proving

the required attestation by the other witness. This

statement, along with the attendant circumstances

placed on record, would certainly constitute proof of the

will by other evidence as permitted by Section 71 of the

Evidence Act.

26. While drawing the appropriate inference in a matter

like this, a court cannot disregard the evidence on the

attendant circumstances brought on record. In this

context, we may profitably refer to the observations of a

Division Bench of the Assam High Court in Mahaluxmi

Bank Ltd. v. Kamakhyalal Goenka [AIR 1958 Ass 56], which

was a case concerning the claim of the appellant Bank for

certain amounts based on the execution of a mortgage

deed. The execution thereof was being disputed by the

respondents, amongst other pleas, by contending that the

same was by a purdahnashin lady, and the same was not

done in the presence of witnesses. Though the evidence of

the plaintiff was not so categorical, looking to the totality

of the evidence on record, the Court held that the

execution of the mortgage had been duly proved. While

arriving at that inference, the Division Bench observed:

(AIR p. 62, para 11)

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“11. … It was, therefore, incumbent on the plaintiff to

prove its execution and attestation according to law. It

must be conceded that the witnesses required to prove

attestation has (sic) not categorically stated that he

and the other attesting witnesses put their signatures

(after having seen the execution of the document) in

the presence of the executants. Nevertheless, the fact

that they actually did so can be easily gathered from

the circumstances disclosed in the evidence. It appears

that the execution and registration of the document all

took place at about the same time in the house of the

defendants. The witnesses not only saw the executants

put their signatures on the document, but that they

also saw the document being explained to the lady by

the husband, as well as by the registering officer.

They also saw the executants admit receipt of the

consideration, which was paid in their presence. As all

this happened at the same time, it can be legitimately

inferred that the witnesses also put their signatures in

the presence of the executants after having seen them

sign the instrument. …

… There is no suggestion here that the execution and

attestation was not done at the same sitting. In fact,

the definite evidence here is that the execution and

registration took place at the same time. It is,

therefore, almost certain that the witnesses must have

signed the document in the presence of the

executants.”

27. The approach to be adopted in matters concerning

wills has been elucidated in a decision on a first appeal by

a Division Bench of the Bombay High Court in Vishnu

Ramkrishna v. Nathu Vithal [AIR 1949 Bom 266]. In that

matter, the respondent Nathu was the beneficiary of the

will. The appellant filed a suit claiming possession of the

property, which was bequeathed in favour of Nathu by the

testatrix Gangabai. The suit was defended on the basis of

the will, and it came to be dismissed, as the will was held

to be duly proved. In appeal, it was submitted that the

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dismissal of the suit was erroneous because the will was

not proved to have been executed in the manner in which

it is required to be under Section 63 of the Succession Act.

The High Court was of the view that if at all there was any

deficiency, it was because of not examining more than

one witness, though it was not convinced that the

testatrix Gangabai had not executed the will. The Court

remanded the matter for additional evidence under its

powers under Order 41 Rule 27 CPC. The observations of

Chagla, C.J., sitting in the Division Bench with

Gajendragadkar, J. (as he then was in the Bombay High

Court) in para 15 of the judgment are relevant for our

purpose: (AIR pp. 270-71)

“15. … We are dealing with the case of a will, and we

must approach the problem as a court of conscience. It

is for us to be satisfied whether the document put

forward is the last will and testament of Gangabai. If

we find that the wishes of the testatrix are likely to be

defeated or thwarted merely by reason of want of some

technicality, we, as a court of conscience, would not

permit such a thing to happen. We have not heard Mr

Dharap on the other point; but assuming that

Gangabai had a sound and disposing mind and that she

wanted to dispose of her property as she in fact has

done, the mere fact that the propounders of the will

were negligent—and grossly negligent—in not

complying with the requirements of Section 63 and

proving the will as they ought to have, should not

deter us from calling for the necessary evidence in

order to satisfy ourselves whether the will was duly

executed or not.” (emphasis supplied)

31. Therefore, in view of the binding precedents of the

Hon'ble Supreme Court, the totality of the circumstances has to

be seen to determine whether the will was executed in terms of

Section 63(c) of the Indian Succession Act or not and the court is

33

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not guided by the words used by the witnesses. If it can be

inferred from the evidence on record that the witnesses and

testator were present at one place where the will was written and

signed, it can be inferred that they had signed in the presence of

the testator in the absence of any evidence that the witness or

the testator had left the spot without completing the

transaction.

32. In the present case, Satish Kumar (DW2) stated in his

examination-in-chief that he had read over and explained the

Will to Dharam Chand, who signed it. Hari Singh (DW6), Prem

Singh (PW2) and Daulat Ram were present at the time of the

signatures. Daulat Ram (DW5) stated that the Will was written

by the Document Writer Satish Kumar (DW2) as per the wishes

of the testator in his presence. Dharam Chand put the signatures

in his presence. Lambardar put the signatures as an identifier,

and the witnesses signed the Will. Hari Singh (DW6) stated in his

examination-in-chief that Dharam Chand got the Will written

from the Document Writer, Satish Kumar (DW2), who read over

and explained the Will to Dharam Chand. Dharam Chand

admitted the Will to be correct and put his signature. Thereafter,

he and the witnesses signed, and all of them went to the Sub

34

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Registrar. Therefore, the statements of the witnesses show that

the testator, the identifier and the witnesses were present at the

time of the execution of the Will. The testator, Dharam Chand,

signed first, and the witnesses put their signatures afterwards.

The transaction had taken place in one sitting, and a mere

discrepancy in the cross-examination will not make the

execution and attestation of the Will suspicious.

33. The plaintiffs examined Brij Lal (RPW1) and Rajender

Kumar (RPW2) to prove that the mental condition of the

deceased was not proper before this death. However, the

plaintiff had never pleaded that the deceased was of an unsound

state of mind. Ramesh Chand (PW1) only stated that Dharam

Chand was ill before his death and never stated anything about

his state of mind. Brij Lal (RPW1) admitted in his cross-

examination that he was related to the plaintiff, and he cannot

be said to be an independent person. He also admitted that he

had met Dharam Chand 2-3 times, and he was talking normally.

He has not given any instance to show that the mental capacity

of Dharam Chand was impaired. He is not an expert, and his

testimony cannot be said to be sufficient to prove that Dharam

Chand was not of a sound disposing state of mind.

35

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34. Rajender Kumar (RPW2) only stated that Dharam

Chand was talkative and was not of sound disposing state of

mind. Merely because a person was talkative cannot lead to an

inference that he was not in a sound disposing state of mind.

Therefore, these statements were not sufficient to make the

mental capacity of a testator suspect.

35. The Will was registered. It was laid down in Gurpal

Singh vs. Darshan Singh 1998 1 SLJ 774 that where the Will was

registered by the testator on the same day, the burden is upon

the other person to show that the deceased was not of a sound

disposing state of mind. It was observed:

"......The Will Ext. D3 is a registered document. From

this, a presumption arises that the testator of a Will

was having a sound disposing mind at the time of

making the Will and it was executed by him,

especially when there is no evidence to show that at

the time of execution of the Will, Phuman Singh was

suffering from any mental ailment......."

36. A similar view was taken by this Court in Tirath

Singh Versus Sajjan Singh 1988 (1) S.L.J. 232, wherein it was

observed:

“The Will was registered on December 13, 1972. It

carries the endorsement of the Sub-Registrar.

Harbhajan Singh Lambardar and Kartar Singh (DW.3),

attesting witnesses of the Will, were also present at

36

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that time. The Sub-Registrar certified that the Will

was read over to Ralla, who admitted the contents of

it as correct, and then he thumb-marked the same.

From this, it has to be presumed that at the time of

registration of the Will, Ralla was having a sound

disposing mind, and it was executed by him while in

his full senses. From the mere fact that the testator of

the Will, namely Ralla, was of advanced age, "no

presumption can be drawn that he did not having

sound disposing mind. Therefore, the contention in

that respect is repelled.”

37. It was laid down in Ashok Baury v. State, 2021 SCC

OnLine Del 1248= 2021 (279) DLT 561 that there is a presumption

in favour of sanity and the burden lies on the person who

challenges it to prove that the person was insane. It was

observed:

“8. Soundness of mind, for contracting, is defined in

Section 12 of the Indian Contract Act, 1872 and which in

my view would have application in the matter of

soundness of mind requisite for making a Will as well. As

per the said provision, (i) a person is said to be of sound

mind, if, at the time of the making of the contract, he is

capable of understanding it and of forming a rational

judgment as to its effect upon his interests; (ii) a person

who is usually of unsound mind, but occasionally of

sound mind, may make a contract when he is of sound

mind; and, (iii) a person who is usually of sound mind,

but occasionally of unsound mind, may not make a

contract when he is of unsound mind.

9. As would be obvious from the above, a common thread

is found to run between Section 12 of the Contract Act and

Section 59 of the Indian Succession Act.

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10. Chapter VII, titled "Of the Burden of Proof", of Part III

titled "Production and Effect of Evidence", of the

Evidence Act deals with the issue with which this Court is

concerned herewith. Per Section 101 thereunder,

whosoever desires any Court to give judgment as to any

legal right or liability dependent on the existence of facts,

which he asserts, must prove that those facts exist. Since

the propounder of a Will, as per Section 59 of the Indian

Succession Act, is required to prove that the testator at

the time of the making of the Will was of sound mind, the

burden of proof would be on the propounder. However,

that would be so where none is opposing the Will

propounded, and the Will has to be proved for the

satisfaction of the Court. However when a document

propounded as a Will is contested, what would be

required to be proved is only what is in issue and only if

the party disputing the document propounded as a Will

disputes/controverts that the testator/testatrix, at the

time of making the Will was of sound mind, would

soundness of mind be in issue and required to be proved.

However, if the soundness of mind is not specifically

denied, then, as per the Rules aforesaid contained in

Order VIII Rule 5 of the CPC, soundness of mind shall be

deemed to have been admitted. In the event of denial of

the soundness of mind, the question as herein arises, on

whom the onus should be, whether on the propounder or

the opposite party, arises.

11. Section 114 under the aforesaid Chapter VII of Part III

of the Evidence Act enables the Court to presume the

existence of any fact which it thinks likely to have

happened, regard being had to the common course of

natural events, human conduct and public and private

business, in their relation to the facts of the case.

12. The common course of natural events and human

conduct is soundness of mind and unsoundness of mind,

an aberration. If a testator/testatrix has led a normal life,

and performed day-to-day functions in the normal

course of human conduct, the presumption under Section

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114 would be of soundness rather than unsoundness of

mind.”

38. The plaintiffs’ evidence was not sufficient to rebut

the presumption of sanity, and the learned Appellate Court erred

in holding that the Will was shrouded by suspicious

circumstances, and the substantial questions of law are

answered accordingly.

Final Order:

39. In view of the above, the present appeal is allowed,

and the judgment and decree passed by the learned First

Appellate Court are ordered to be set aside, and the judgment

and decree passed by the learned Trial Court are ordered to be

restored.

40. The present appeal stands disposed of and so are the

pending miscellaneous application(s) if any.

(Rakesh Kainthla)

Judge

9

th

April, 2026

(Nikita)