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IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Date of decision : 23.09.2025

RSA-5268-2018 (O&M)

1

Vineet Kumar Sharma & ors. ...... Appellants

Versus

Pardeep Kumar Sharma & ors. ..... Respondents

2 RSA-5269-2018 (O&M)

Vineet Kumar Sharma & ors. ...... Appellants

Versus

Smt. Anju Sharma @ Seema & ors. ..... Respondents

CORAM : HON'BLE MR.JUSTICE PANKAJ JAIN

***

Present :- Mr. Sachin Mittal, Advocate

Mr. Arnav Mittal, Advocate and

Mr. Akshat Mittal, Advocate

for the appellants (both cases).

Ms. Riya Thomas, Advocate and

Mr. Abhimanyu, Advocate for

respondent No.1- RSA-5268-2018

Mr. Rajesh Jangra, Advocate

for respondent No.2- RSA-5268-2018

for respondent No.1- RSA-5269-2018

None for respondent No.2- RSA-5269-2018

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Service upon respondent No.3-dispensed

with vide order dated 21.05.2019 in

RSA-5268-2018 and RSA-5269-2018

***

PANKAJ JAIN, J. (ORAL)

1 By way of this common judgment, I intend to dispose off the

afore-captioned two regular second appeals. Defendants No.1, 8, 2, 3, 4 & 6

are in second appeal.

2 Civil Suit No.16558 of 2013 titled as Pardeep Kumar Sharma

Vs. Shri Vineet Sharma & ors. was filed by respondent No.1-Pardeep Kumar

Sharma seeking decree of possession by way of partition. Civil Suit

No.21619 of 2014 titled as Smt. Anju Sharma @ Seema Vs. Pardeep Kumar

Sharma & ors. was filed by daughter of late Ram Parkash Sharma seeking

decree of declaration to the effect that the WILL propounded by the present

appellants claiming to be the WILL executed by late Ram Parkash Sharma is

illegal, null and void and that the plaintiffs are co-owner and co-sharer in joint

possession to the extent of 1/5

th

share in the suit property. The said two suits

were ordered to be consolidated vide order dated 18.10.2016.

3 Parties to the lis are sons, daughters, and daughters-in-law of late

Ram Parkash Sharma, who died on 17.02.2011. Late Ram Parkash Sharma

had five children, i.e, three sons and two daughters. One of his sons, namely

Suneet Kumar Sharma and one of the daughters, namely Pratibha Rishi,

predeceased him. Accordingly, he left behind Vineet Kumar Sharma,

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appellant No.1, Pardeep Kumar Sharma-respondent No.1 in RSA-5268-2018

and Anju Sharma @ Seema-respondent No.2 in RSA-5268-2018. Appellants

claimed that Ram Parkash Sharma executed WILL dated 20.05.2008,

whereby he bequeathed ground floor of the suit property in favor of his

daughter-in-law, namely Purnima Sharma, wife of Vineet Sharma, and First

floor of the suit property in favor of the other daughter-in-law, namely

Sushma Sharma, widow of late Suneet Kumar Sharma, the predeceased son.

The daughters, namely Anju Sharma @ Seema and late Pratibha Rishi, and

the third son, Pradeep Kumar Sharma, were excluded.

4 The issue in the lis relates to legality and validity of unregistered

WILL propounded by the present appellants. The excluded son and daughter

are disputing the WILL, claiming that the same is result of fraud played by

the daughters-in-law upon deceased Ram Parkash Sharma. It is being claimed

that the deceased was in old age and was suffering from diseases. He was

hard of hearing and was unable to see properly. The WILL in question has

been obtained exercising coercion, and the same is surrounded by suspicious

circumstances.

5 Trial Court decreed the suit filed by the plaintiffs disbelieving

the WILL. Trial Court held that the appellants have failed to prove due

execution of WILL dated 20.05.2008 and the same cannot be believed. Trial

Court enlisted the following reasons for disbelieving the WILL :-

“24- In the present case, after considering the evidences available

on record, this court is of the considered opinion that the defendants

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no. 2 and 8 in the main suit have failed to prove the due execution of

will dated 20-05-2008 allegedly executed by late Ram Parkash

Sharma. Following are the reasons behind my conclusions:-

24.1- Original will has been presented as Ex-DW3/1. Perusal of this

will reveals that it was allegedly executed in presence of two witnesses

Rajeev Verma and D.D. Sharma. This will consists of five pages in

which the testator had put his signature on 10 times i.e. two signatures

on each page. Although, one attesting witness namely Rajeev Verma

has been examined in this case as DW3 but his testimony is not

inspiring confidence of this court. There are various reasons to doubt

the testimony of this witness.

- First of all, the defendants no. 2 and 8 have not appeared into

the witness box to support their case. Their case is contested by Vineet

(defendant no. 1 in the main suit) who is husband of defendant no. 8

Purnima. None appearance of both beneficiary of the will is going

against them and adverse inference is drawn against them in

accordance with illustration (g) of section 114 of the Indian Evidence

Act which provides that "an evidence which could be and is not

produced would, if produced, be unfavourable to the person who

withholds it."

Similar arguments has also been advanced by the ld. counsel

for defendants No.1 to 4 and 6 to 8 regarding non-appearance of

plaintiff Pardeep Sharma in the witness box. However, this Court is

of the view that his non-appearance has been justified by producing

documents regarding his illness. Hence, non-appearance of plaintiff

Pardeep Sharma is not fatal for his case.

- Moreover, will dated 20-05-2008 was not executed in presence

of any close relative which is also a suspicious circumstance in this

case. Apart from this, will was not disclosed to any relative of the

testator and this is also a suspicious circumstance in the execution of

the will. Use of three different pens at the last page of the Will which

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is also admitted by DW-3 Rajeev Verma also indicate that the Will is

shrouded with suspicious circumstances.

- Most glaring suspicion in the execution of the will is that the

beneficiary have not produced any evidence comparing the admitted

signature of the testator with the signatures appended on the alleged

will. On the other hand, admitted signatures of deceased/testator Ram

Parkash Sharma is available on conveyance deed Ex-D1 and no

expertise is required to identity the difference in admitted signatures

on Ex-D1 and alleged signatures on will Ex-DW3/1. The difference in

these admitted and alleged signatures are clearly visible and it

appears that signatures on alleged will are forged one. This type of

comparison is allowed by section 73 of the Indian Evidence Act. It

appears that due to apparent difference between these admitted and

alleged signatures, the beneficiaries have not appeared before the

court for their evidence nor they examined these signatures by any

hand writing and finger printing expert.

- It is also pertinent to mention here that before filing of the main

case, the defendants no. 2 and 8 also filed a probabte petition in which

they also started adducing evidence but it is admitted fact that notice

of that probate petition was not given to defendant no. 5 namely Anju.

It is also pertinent to mention here that in that probabte petition,

defendant no. 5 Anju Sharma was impleaded as respondent no. 4. Ex-

DX is certified copy of reply filed by the respondents no. 2 to 6 in the

probabte petition in which there is no signature of Anju but the reply

has been described as reply by respondents no. 2 to 6. When notice of

the probate petition was not given to Anju then filing of admitted reply

by Anju (Defendant no. 5) cannot be believed rather it indicates that

beneficiaries of the will tried to get relief from the court by filing

admitted reply by respondents but this appears to be fraudulent act

because in the absence of signature of Anju, the admitted reply cannot

be regarded as reply by Anju.

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- Although registration of will is not compulsory but in this case

keeping in view the particular facts and circumstances of the case,

non registration of will is also suspicious circumstance.

Hence, there are several suspicious circumstances shrouded in

the execution of the will and these suspicious circumstances have not

been dispelled by the beneficiaries.

In case titled as Gurdial Kaur and others vs Kartar Kaur and

others (1998 (3) LJR 154 SC) it has been held that it is well settled

that if there is suspicious circumstance about the execution of the will,

it is the duty of the person seeking declaration about the validity of

the will to dispel such circumstances. The court even held that the

registration of the will is not a ground to dispel such circumstance. In

the present case, the alleged will dated 24-12-1971 is not even

registered one and it is executed by an illiterate lady.

It is also held in Gurdial Singh case (supra) that "the

obligation is cast upon the propounder of the will to dispel the

suspicious circumstances. The conscience of the court must be

satisfied that will in question was not only executed and attested in

the manner required under the Indian Succession Act 1925, it should

be found that the will was the product of the free choice of the

executant who had voluntarily executed the same after knowing and

understanding the contents of the will."

In Kartar Singh & Anr versus Dilber Singh (dead) through

LRs 2009 (4) LJR 638 in which it has been held that with the

deposition of the attesting witnesses and the scribe the proof of a will

does not end. Propounder of a will is required to dispel the suspicious

circumstances that may surround its execution.

24.2- I have perused the judgments cited by the ld. Counsel for

defendants. However, due to the reasons as stated above, the will Ex-

DW3/1 cannot be accepted by the court. Hence, these judgments are

not applicable in the present case.

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24.3- Due to the aforesaid reasons, the conscience of the court is not

satisfied qua due execution of the will and therefore, I hold that the

beneficiaries defendants no. 2 and 8 have failed to prove the due

execution of the will. Therefore, the suit property owned by Ram

Parkash Sharma shall be devolved amongst all his legal heirs by the

law of inheritance. All his sons and daughters being class I legal heirs

are entitled to inherit the suit property in equal share. Therefore, the

plaintiff is entitled to 1/5 share in the suit property.”

6 Dissatisfied defendants preferred appeal. The Appellate Court

affirmed the findings recorded by the Court of the First Instance observing

that the propounders failed to prove due execution of the WILL. It is doubtful

that a testator who was aged 71 years and was living in Gurugram would have

travelled sufficient distance to Kamla Nagar, Delhi to execute WILL even

though he could have well executed the same in Gurugram itself. Testator

had no reason why he should exclude his sons and daughters from the property

and instead execute WILL in favor of his two daughters-in-law. Even though

Ram Parkash Sharma was living with his youngest son Vineet Kumar Sharma

and family of the deceased son Suneet Kumar Sharma, however, he executed

WILL in favor of his daughters-in-law namely Purnima Sharma wife of

Vineet Sharma and Sushma Sharma widow of Late Suneet Kumar Sharma in

equal shares. Earlier, a probate petition was filed which was dismissed as

withdrawn. The Lower Appellate Court further affirmed the findings

recorded by the Trial Court that signatures on WILL seem to be doubtful when

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compared with the signatures of late Ram Parkash Sharma on other

documents available on the judicial file. The Lower Appellate Court further

held that beneficiaries failed to appear in the witness box to dispel the

suspicious circumstances surrounding the WILL.

7 Counsel for the appellants has assailed the findings recorded by

the Courts below to contend that the Courts below erred in disbelieving the

WILL, which stands fully proved on record as per Section 68 of the Indian

Evidence Act, 1872. He submits that Rajeev Verma, one of the attesting

witnesses of the WILL, duly proved execution of WILL as per Section 63 of

Indian Succession Act, 1925. The Courts erred in comparing the signatures

on the WILL with the signatures of the executant on conveyance deed, which

was executed more than three decades back. The Courts below ignored the

fact that plaintiff, Pardeep Kumar Sharma, did not step into the witness box.

Rather, his wife, Varsha Sharma, appeared as his special power of attorney.

Thus, adverse inference, if at all, was to be drawn, the same had to be drawn

against Pardeep Kumar Sharma-plaintiff and not against the

defendants/appellants. He submits that the fact of withdrawal of probate

petition has been viewed with inverted lens by the Courts below. The fact is

that during the course of pendency of probate petition, present two suits were

filed. The regular suits having been filed before the Civil Court the probate

petition was rightly withdrawn. He submits that the fact of execution of WILL

by late Ram Parkash Sharma was duly revealed by P.C.Verma in front of

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relatives including the plaintiffs after the prayer meeting of the executant.

None of them raised any dispute. He submits that the Courts below erred in

law in non-suiting the appellants holding the WILL propounded by them to

be invalid.

8 Per contra, counsel for the respondents have submitted written

arguments pleading the following grounds to support judgments of the Courts

below :-

1. First of all, the Appellant no.2 and 3, propounders of the alleged

will, have not appeared into the witness box to support their case.

Their case is contested by Vineet (Appellant no.1) who is husband of

Appellant no.2 Purnima. Non-appearance of both beneficiary of the

will is going against them and adverse inference is drawn against

them in accordance with illustration (g) of section 114 of the Indian

Evidence Act which provides that "an evidence which could be and

is not produced would, if produced, be unfavourable to the person

who withholds it."

2. Moreover, will dated 20-05-2008 was not executed in presence of

any close relative which is also a suspicious circumstance in this case.

Apart from this, will was not disclosed to any relative of the testator

and this is also a suspicious circumstance in the execution of the will.

Use of three different pens at the last page of the Will which is also

admitted by DW-3 Rajeev Verma also indicate that the Will is

shrouded with suspicious circumstances.

3. Most glaring suspicion in the execution of the will is that the

beneficiary have not produced any evidence comparing the admitted

signature of the testator with the signatures appended on the alleged

will. On the other hand, admitted signatures of deceased/testator Ram

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Parkash Sharma is available on conveyance deed Ex-DI and no

expertise is required to identity the difference in admitted signatures

on Ex-DI and alleged signatures on will Ex-DW3/1. The difference in

these admitted and alleged signatures are clearly visible and it

appears that signatures on alleged will are forged one. This type of

comparison is allowed by section 73 of the Indian Evidence Act. It

appears that due to apparent difference between these admitted and

alleged signatures, the beneficiaries have not appeared before the

court for their evidence nor they examined these signatures by any

hand writing and finger printing expert.

4. It is also pertinent to mention here that before filing of the main

case, the Appellant No.2 and 3 also filed a probabte petition in which

they also started adducing evidence but it is admitted fact that notice

of that probate petition was not given to Respondent No.1, Anju. It is

also pertinent to mention here that in that probabte petition,

Respondent No.1 Anju Sharma was impleaded as respondent no. 4.

Ex-DX is certified copy of reply filed by the respondents no. 2 to 6 in

the probabte petition in which there is no signature of Anju but the

reply has been described as reply by respondents no. 2 to 6. When

notice of the probate petition was not given to Anju then filing of

admitted reply by Anju (Respondent No. 1) cannot be believed rather

it indicates that beneficiaries of the will tried to get relief from the

court by filing admitted reply by respondents but this appears to be

fraudulent act because in the absence of signature of Anju, the

admitted reply cannot be regarded as reply by Anju.

5. Although registration of will is not compulsory but in this case

keeping in view the particular facts and circumstances of the case,

non registration of will is also suspicious circumstance.

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6. The will is Ex.DW3/A. This will allegedly says that Pradeep Kumar

Sharma, Vineet Kumar Sharma, Smt. Anju Sharma, Sunit Kumar

Sharma and Pratibha Rishi were sons and daughter of the testator

Shri Ram Prakash Sharma. One son i.e. Suneet Kumar Sharma and

one Daughter Smt. Pratibha Rishi already died. Two sons and one

daughter are still alive and filed the suit for partition. The alleged will

Ex.DW3/A is computer typed and allegedly signed by testator twicely

on each page. The witnesses are Rajiv Verma, Advocate and

D.D.Sharma. Shri Rajiv Verma, Advocate has been examined to prove

the will as an attesting witness who is resident of E-153, Kamla

Nagar, Delhi-7. At the time of execution of will in May 2008 the

testator was living at house no. 1383, Sector-4, Gurgaon having age

of 71 years and the attesting witness Shri Rajiv Verma, Advocate

stated that testator had come to his father at Kamla Nagar Delhi, to

get the will signed by him as an attesting witness. In his examination,

he stated that Shri Ram Prakash Sharma, already drafted will

Ex.DW3/A before coming to him and he also stated that Shri D. D.

Sharma, also signed in his presence. But it is not explained how D. D.

Sharma reached to the house of father of attesting witness Shri Rajiv

Verma Advocate at Kamla Nagar Delhi-7 because as per verification

of one attesting witness i.e. Rajiv Verma, the address of D. D. Sharma

has been mentioned as R/o 18, Shivam Apartment, Sector-15, Rohini

Delhi. The attesting witness Rajiv Verma, Advocate has not stated that

D.D. Sharma accompanied the testator or he called him or Sh.D.D.

Sharma was already present in his house. How Sh. D.D. Sharma came

to sign the will has not been explained and it seems that Sh.D.D.

Sharma had not signed the will at that time. Thus, it is highly doubtful

circumstance because the testator aged about 71 years was living in

Gurgaon and he had travelled a sufficient distance to Kamla Nagar,

Delhi despite the fact that he could execute the will in Gurgaon itself.

Nor it has come in evidence that the testator had already fixed a day

for execution of the will at the office of father of said attesting witness.

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7. The testator was more than 71 years at that time and there were no

reasons why he would debar his sons and daughter from the property

and instead the will was executed in the name of his two daughter-in-

law. This circumstance is highly doubtful. No doubt that testator could

give the property to anyone but something should be record or

mentioned in the will to debar his real sons and daughters. The

contents of the will are that Pradeep Kumar Sharma has been living

separately in Ashok Vihar, Gurgaon since 1996 in his own property

and his youngest son Vineet Kumar Sharma and family of his

deceased son Suneet Kumar Sharma are living with him but why the

will has been executed in favour of daughter in law namely Smt

Purnima Sharma and Smt. Sushma Sharma in equal share has not

been explained because it has not been mentioned in the entire will

that said beneficiaries at any point of time served the deceased which

could make out special circumstance to debar his sons and daughters.

8. The trial Court passed a reasoned judgment and dealt the issue of

Will in details. The trial Court has rightly discussed the evidence and

material. The will dated 20.05.2008 was executed at Delhi while

travelling a distance by the testator despite the fact that he was living

in Gurgaon. The use of three different pen at the last page of the Will

further creating doubt. Even every page has been twicely signed by

the testator but no other person has signed the said page. If the

testator was so sensitive, signed twicely then why signature of

witnesses were not taken on every page. The attesting witness DW3

Rajiv Verma in his cross-examination stated that there is no law that

every page has to be signed by the attesting witness but the law says

that signature of the testator must be in the presence of attesting

witnesses. So each page had to be signed by the attesting witnesses if

the testator signed each page twicely. This is a suspicious

circumstances moreover debarring his own sons and daughters

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without any reasons further creating serious doubt because no

circumstance has been mentioned in the will which could suggest that

the testator was having special reason to execute the will in favour of

his two daughter-in-law only.

9. The suspicious circumstance in the execution of will has to be

removed by the beneficiaries but the beneficiaries neither appeared

in witness box nor have produced any evidence which could suggest

that signatures of the testator are genuine and are not forged one

because a specific allegation has been raised in the written-statement

that signatures are forged and fabricated and does not belong to late

Shri Ram Prakash Sharma. The signatures of the testator are

available on conveyance Deed Ex.D1 but the same are clearly visible

by bare eyes suggesting that signatures are different flow which are

creating serious doubt regarding signatures on the Will of late Sh.

Ram Prakash Sharma.”

9 I have heard learned counsel for the parties and have carefully

gone through records of the case.

10 Parties to the suit are fighting for estate left by Ram Parkash

Sharma. Appellants have propounded WILL dated 20.05.2008, executed by

Ram Parkash Sharma. The respondents are disputing the WILL.

11 As per settled law, regular second appeals before this Court are

to be dealt in accordance with Section 41 of the Punjab Courts Act, 1918, and

not as per Section 100 CPC, 1908. Reference can be made to ratio of law laid

down by five Judges bench in Pankajakshi (Dead) Through LRs v.

Chandrika (2016) 6 SCC 157. Trite it is, construction of a document of title,

or a document which is foundation of the rights of parties, necessarily raises

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a question of law. Reference can be made to ratio of law laid down in Sir

Chunilal V. Mehta & Sons Ltd. v. Century Spinning and Manufacturing

Co. Ltd., AIR 1962 SC 1314.

12 In the present lis, validity of WILL is in issue.

13 Propounder of the WILL is not only required to prove execution

thereof in terms of Section 63 of the Indian Succession Act, 1925 but is also

required to dispel suspicious circumstances, if any, demonstrated by the

caveator. Supreme Court in Kavita Kanwar vs. Mrs. Pamela Mehta & Ors.

(2021) 11 SCC 209 considered the entire series of precedents on the issue of

WILL to observe as under :-

“ 24.8. We need not multiply the references to all and other decisions

cited at the Bar, which essentially proceed on the aforesaid principles

while applying the same in the given set of facts and circumstances.

Suffice would be to point out that in a recent decision in Civil Appeal

No. 6076 of 2009: Shivakumar & Ors. v. Sharanabasppa & Ors.,

decided on 24.04.2020, this Court, after traversing through the

relevant decisions, has summarised the principles governing the

adjudicatory process concerning proof of a Will as follows:–

“12.1. Ordinarily, 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. Alike the principles governing

the proof of other documents, in the case of Will too, the proof

with mathematical accuracy is not to be insisted upon.

12.2. Since as per Section 63 of the Succession Act, a Will is

required to be attested, it cannot be used as evidence until at

least one attesting witness has been called for the purpose of

proving its execution, if there be an attesting witness alive and

capable of giving evidence.

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12.3. The unique feature of a Will is that it speaks from the

death of the testator and, therefore, the maker thereof is not

available for deposing about the circumstances in which the

same was executed. This introduces an element of solemnity in

the decision of the question as to whether the document

propounded is the last Will of the testator. The initial onus,

naturally, lies on the propounder but the same can be taken to

have been primarily discharged on proof of the essential facts

which go into the making of a Will.

12.4. The case in which the execution of the Will is surrounded

by suspicious circumstances stands on a different footing. The

presence of suspicious circumstances makes the onus heavier

on the propounder and, therefore, in cases where the

circumstances attendant upon the execution of the document

give rise to suspicion, the propounder must remove all

legitimate suspicions before the document can be accepted as

the last Will of the testator.

12.5. If a person challenging the Will alleges fabrication or

alleges fraud, undue influence, coercion et cetera 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 give rise to the doubt

or as to whether the Will had indeed been executed by the

testator and/or as to whether the testator was acting of his own

free will. In such eventuality, it is again a part of the initial

onus of the propounder to remove all reasonable doubts in the

matter.

12.6. A circumstance is “suspicious” when it is not normal or

is ‘not normally expected in a normal situation or is not

expected of a normal person’. As put by this Court, the

suspicious features must be ‘real, germane and valid’ and not

merely the ‘fantasy of the doubting mind.’

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12.7. As to whether any particular feature or a set of features

qualify as “suspicious” would depend on the facts and

circumstances of each case. A shaky or doubtful signature; a

feeble or uncertain mind of the testator; an unfair disposition

of property; an unjust exclusion of the legal heirs and

particularly the dependants; an active or leading part in

making of the Will by the beneficiary thereunder et cetera are

some of the circumstances which may give rise to suspicion.

The circumstances above-noted are only illustrative and by no

means exhaustive because there could be any circumstance or

set of circumstances which may give rise to legitimate

suspicion about the execution of the Will. On the other hand,

any of the circumstance qualifying as being suspicious could

be legitimately explained by the propounder. However, such

suspicion or suspicions cannot be removed by mere proof of

sound and disposing state of mind of the testator and his

signature coupled with the proof of attestation.

12.8. The test of satisfaction of the judicial conscience comes

into operation when a document propounded as the Will of the

testator is surrounded by suspicious circumstance/s. While

applying such test, the Court would address itself to the solemn

questions as to whether the testator had signed the Will while

being aware of its contents and after understanding the nature

and effect of the dispositions in the Will?

12.9. In the ultimate analysis, where the execution of a Will is

shrouded in suspicion, it is a matter essentially of the judicial

conscience of the Court and the party which sets up the Will

has to offer cogent and convincing explanation of the

suspicious circumstances surrounding the Will.”

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14 In the present case, the propounders of the WILL, in order to

prove execution thereof in terms of Section 63 of the Indian Succession Act,

1925 (for short ‘the 1925 Act’) examined Rajeev Verma, one of the attesting

witnesses to the WILL as DW3. In his examination-in-chief, he fully proved

WILL Ex.DW3/A. He testified that Ram Parkash Sharma brought a drafted

WILL Ex.DW3/A to him. The executant Ram Parkash Sharma signed upon

WILL Ex.DW3/A in his presence after understanding the contents thereof.

He also signed as an attesting witness and thereafter the other witness

D.D.Sharma signed the same after perusing the WILL. He was cross-

examined at length. He testified that Ram Parkash Sharma was suffering from

prostate enlargement. He testified that Ram Parkash Sharma came to

coaching institute of his father alone from Gurugram. Thus the propounders

of the WILL proved execution thereof in terms of Section 63(c) of the 1925

Act as per Section 68 of the Evidence Act, 1872. Not even a suggestion was

put to him that Ram Parkash Sharma did not sign the WILL.

15 The defendants claimed that the WILL was result of fraud and

coercion. Counsel for the respondents do not dispute that apart from oral

testimony no evidence was led by the respondents to prove the defence. There

is no evidence that Ram Parkash Sharma was suffering from any ailment that

rendered him incapacitated mentally or physically.

16 The Courts below have spelled out certain suspicious

circumstance. The Court held that the testimony of Rajeev Verma does not

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aspire confidence. The reason has not been assigned. The reasons assigned

by the Court to disbelieve the WILL is that defendants No.2 and 8, the

beneficiaries, have not appeared in the witness box. Vineet Sharma, husband

of defendant No.8 appeared. Rather, Pardeep Kumar Sharma, the plaintiff

who wanted to dislodge the WILL has not appeared. The other reason

assigned by the Court is that the WILL was not executed in presence of any

close relative. From the statement made by DW3 Rajeev Verma, it is evident

that he was a close family friend who knew the family and attended family

functions. The Courts below have totally misconstrued the expression,

"suspicious circumstance." As held by Supreme Court in the case of Kavita

Kanwar’s case supra, a circumstance can be said to be suspicious only when

it is not normal or is not normally expected. Trusting a friend rather than a

close relative is rather normal and cannot be held to be suspicious. Much

stress is being laid down by the Courts below to the exclusion of the sons and

daughters by Ram Parkash Sharma. A WILL, by its very nature, is a departure

from natural succession. If unequal distribution is to be held to be suspicious

circumstance to dislodge the WILL, no WILL can survive judicial scrutiny.

In Motibai Harmusjee v. Jemsetjee Hormusjee, AIR 1924 PC 28, it was held

that:-

"A man may act foolishly and even heartlessly; if he acts with full

comprehension of what he is doing, the Court will not interfere with

the exercise of his volition. "

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17 Relying upon the afore-stated observations made by Privy

Council in Motibai Harmusjee's case (supra), Supreme Court in Surendra

Pal v. Dr. (Mrs.) Saraswati Arora, (1974) 2 SCC 600 held that:-

"It is not for us to fathom the motivations of a man. His actions and

reactions are unpredictable as they depend upon so many

circumstances. There is, however, always some dominant and

impelling circumstance which motivates a man's action though in

some cases even a trivial and trifling cause impels him to act in a

particular way which a majority of others may not do. At times

psychological factors and the frame of mind in which he is, may

determine his action."

18 Evidently the propounder has assigned reasons for excluding his

son and daughters, explaining all the events of his life and the circumstances.

The reasons assigned cannot be held to be abnormal. That apart, the Court has

no jurisdiction to go into the reasons of exclusion of a legal heir from the list

of beneficiaries under the WILL. The Court is only required to see whether

the exclusion is reasoned or not.

19 The other factor that has weighed on the minds of the Courts

below is difference in the signatures of executant Ram Parkash Sharma as they

appeared on the WILL vis-a-vis his signatures on the deed of conveyance

Ex.D1. The conveyance deed was executed on 07.04.1978. WILL was

executed on 20.05.2008, i.e. after more than 30 years. The respondents did not

lead any evidence to prove that the WILL was not signed by Ram Parkash

Sharma. Rather, their stand is that the WILL was executed by Ram Parkash

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Sharma under coercion. The Courts have assumed the role of expert invoking

Section 73 of the 1872 Act, but no reasons to back the conclusions recorded

have been assigned.

20 Execution of Document required by law to be attested needs to

be proved by examining at least one of the attesting witnesses. In cases where

handwriting of executant is in dispute the same can be proved either :

(1) by the evidence of a handwriting expert (Section 39) or;

(2) by the evidence of a witness acquainted with the handwriting

of the person who is said to have written the disputed writing (Section

41); or

(3) opinion formed by the Court itself on comparison made of the

disputed writings with the admitted or specimen writings (Section 72).

Courts below in the present case resorted to the third mode Section

73 of the Indian Evidence Act, 1872 re-enacted as Section 72 of BSA

2023. Trite it is that the science of identification of handwriting by

comparison being not an infallible one. Before donning the hat of an

expert himself under Section 72 of BSA 2023 the court must be fully

satisfied about the authorship of the admitted writings which is made

the basis for comparison.

21 After considering legislative background of Section 73 Supreme

Court of India spelled out scope of Section 73 of the Indian Evidence Act

1872 (for short ‘the 1872 Act’) in State (Delhi Admn.) v. Pali Ram, (1979)

2 SCC 158 observing as under :-

33. Since even where proof of handwriting which is in nature

comparison exists, a duty is cast on the court to use its own eyes and

mind to compare the admitted writing with the disputed one to verify

and reach its own conclusion, it will not be wrong to say that when a

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court seised of a case, directs an accused person present before it to

write down a sample writing, such direction in the ultimate analysis,

“is for the purpose of enabling the court to compare” the writing so

written with the writing alleged to have been written by such person,

within the contemplation of Section 73. That is to say, the words “for

the purpose of enabling the court to compare” do not exclude the use

of such “admitted” or sample writing for comparison with the alleged

writing of the accused, by a handwriting expert cited as a witness by

any of the parties. Even where no such expert witness is cited or

examined by either party, the court may, if it thinks necessary for the

ends of justice, on its own motion, call an expert witness, allow him

to compare the sample writing with the alleged writing and thus give

his expert assistance to enable the court to compare the two writings

and arrive at a proper conclusion.

34. For all the foregoing reasons, we are of opinion that in passing

the orders dated May 20, 1972 relating to the disposal of the

application dated December 11, 1970, the learned Additional District

Magistrate did not exceed his powers under Section 73, Evidence Act.

The learned Judges of the High Court were not right in holding that

in directing the accused by his said order dated May 20, 1972, the

Magistrate acted beyond the scope of Section 73 or in a manner which

was not legal.

22 In State of Maharashtra v. Sukhdev Singh, (1992) 3 SCC 700

it was observed that :-

29. xxxxxxxxxxxxxxxxxxx It is indeed true that by nature and habit,

over a period of time, each individual develops certain traits which

give a distinct character to his writings making it possible to identify

the author but it must at the same time be realised that since

handwriting experts are generally engaged by one of the contesting

parties they, consciously or unconsciously, tend to lean in favour of

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an opinion which is helpful to the party engaging him. That is why we

come across cases of conflicting opinions given by two handwriting

experts engaged by opposite parties. It is, therefore, necessary to

exercise extra care and caution in evaluating their opinion before

accepting the same. So courts have as a rule of prudence refused to

place implicit faith on the opinion evidence of a handwriting expert.

Normally courts have considered it dangerous to base a conviction

solely on the testimony of a handwriting expert because such evidence

is not regarded as conclusive. Since such opinion evidence cannot

take the place of substantive evidence, courts have, as a rule of

prudence, looked for corroboration before acting on such evidence.

True it is, there is no rule of law that the evidence of a handwriting

expert cannot be acted upon unless substantially corroborated but

courts have been slow in placing implicit reliance on such opinion

evidence, without more, because of the imperfect nature of the science

of identification of handwriting and its accepted fallibility. There is

no absolute rule of law or even of prudence which has ripened into a

rule of law that in no case can the court base its findings solely on the

opinion of a handwriting expert but the imperfect and frail nature of

the science of identification of the author by comparison of his

admitted handwriting with the disputed ones has placed a heavy

responsibility on the courts to exercise extra care and caution before

acting on such opinion. Before a court can place reliance on the

opinion of an expert, it must be shown that he has not betrayed any

bias and the reasons on which he has based his opinion are

convincing and satisfactory. It is for this reason that the courts are

wary to act solely on the evidence of a handwriting expert; that,

however, does not mean that even if there exist numerous striking

peculiarities and mannerisms which stand out to identify the writer,

the court will not act on the expert's evidence. In the end it all depends

on the character of the evidence of the expert and the facts and

circumstances of each case.

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30. xxxxxxxxxxxxxxxxxxxxxxxxxx

What emerges from the case-law referred to above is that a

handwriting expert is a competent witness whose opinion evidence is

recognised as relevant under the provisions of the Evidence Act and

has not been equated to the class of evidence of an accomplice. It

would, therefore, not be fair to approach the opinion evidence with

suspicion but the correct approach would be to weigh the reasons on

which it is based. The quality of his opinion would depend on the

soundness of the reasons on which it is founded. But the court cannot

afford to overlook the fact that the science of identification of

handwriting is an imperfect and frail one as compared to the science

of identification of fingerprints; courts have, therefore, been wary in

placing implicit reliance on such opinion evidence and have looked

for corroboration but that is not to say that it is a rule of prudence of

general application regardless of the circumstances of the case and

the quality of expert evidence. No hard and fast rule can be laid down

in this behalf but the court has to decide in each case on its own merits

what weight it should attach to the opinion of the expert.

23 While dealing with the situation of denial of signatures by the

alleged executant Supreme Court in K.S. Satyanarayana v. V.R. Narayana

Rao, (1999) 6 SCC 104 observed that :-

“7. A piquant situation had developed before the trial court when the

1st defendant denied his signatures on the written statement and the

vakalatnama in favour of his counsel. The trial court should have

immediately probed into the matter. It should have recorded the

statement of the counsel for the 1st defendant to find out if the

vakalatnama in his favour and the written statement were not signed

by the 1st defendant whom he represented. It was apparent that the

1st defendant was trying to get out of the situation when confronted

with his signatures on the vakalatnama and the written statement and

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his having earlier denied his signatures on Exh. P-1 and Exh. P-2 in

order to defeat the claim of the plaintiff. Falsehood of the claim of the

1st defendant was writ large on the face of it. The trial court could

have also compared the signatures of the 1st defendant as provided in

Section 73 of the Indian Evidence Act.

24 In O. Bharathan v. K. Sudhakaran, (1996) 2 SCC 704 Supreme

Court red flagged the practice of courts acting as experts dehors Section 73 of

the 1872 Act observing that :-

18. The learned Judge in our view was not right either in brushing

aside the principles laid down by this Court in Pali Ram [(1979) 2

SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14] on the ground that

it was not a criminal case or taking upon himself the hazardous task

of adjudicating upon the genuineness and authenticity of the

signatures in question even without the assistance of a skilled and

trained person whose services could have been easily availed of.

Annulling the verdict of popular will is as much a serious matter of

grave concern to the society as enforcement of laws pertaining to

criminal offences, if not more. Though it is the province of the expert

to act as judge or jury after a scientific comparison of the disputed

signatures with admitted signatures, the caution administered by this

Court is to the course to be adopted in such situations could not have

been ignored unmindful of the serious repercussions arising out of the

decision to be ultimately rendered. To quote, it has been held in Pali

Ram [(1979) 2 SCC 158 : 1979 SCC (Cri) 389 : AIR 1979 SC 14] :

(SCC p. 168, para 30)

“The matter can be viewed from another angle, also. Although

there is no legal bar to the Judge using his own eyes to compare the

disputed writing with the admitted writing, even without the aid of the

evidence of any handwriting expert, the Judge should, as a matter of

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prudence and caution, hesitate to base his finding with regard to the

identity of a handwriting which forms the sheet-anchor of the

prosecution case against a person accused of an offence, solely on

comparison made by himself. It is therefore, not advisable that a

Judge should take upon himself the task of comparing the admitted

writing with the disputed one to find out whether the two agree with

each other; and the prudent course is to obtain the opinion and

assistance of an expert.”

19. The necessity for adhering to the said sound advice and

guidance is all the more necessary in a case where hundreds of

signatures are disputed and the striking dissimilarities noticed by the

court at the time of trial of the election petition.

25 Same sentiment finds echo in Ajay Kumar Parmar v. State of

Rajasthan (2012) 12 SCC 406 where while dealing with the provisions of

Section 73 of the 1872 Act, Supreme Court observed that courts should be

slow to base their findings solely on comparison made by it observing that :-

“28. The opinion of a handwriting expert is fallible/liable to error like

that of any other witness, and yet, it cannot be brushed aside as

useless. There is no legal bar to prevent the court from comparing

signatures or handwriting, by using its own eyes to compare the

disputed writing with the admitted writing and then from applying its

own observation to prove the said handwritings to be the same or

different, as the case may be, but in doing so, the court cannot itself

become an expert in this regard and must refrain from playing the

role of an expert, for the simple reason that the opinion of the court

may also not be conclusive. Therefore, when the court takes such a

task upon itself, and findings are recorded solely on the basis of

comparison of signatures or handwritings, the court must keep in

mind the risk involved, as the opinion formed by the court may not be

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conclusive and is susceptible to error, especially when the exercise is

conducted by one, not conversant with the subject. The court,

therefore, as a matter of prudence and caution should hesitate or be

slow to base its findings solely upon the comparison made by it.

However, where there is an opinion whether of an expert, or of any

witness, the court may then apply its own observation by comparing

the signatures, or handwritings for providing a decisive weight or

influence to its decision.

26 Similar view has been expressed in A. Srinivasulu v. State of

T.N., (2023) 13 SCC 705 :-

137. For invoking Section 73, there must first have been some

signature or writing admitted or proved to the satisfaction of the

court, to have been written or made by that person. The Section

empowers the court also to direct any person present in court to write

any words or figures for the purpose of enabling the court to compare

the words or figures.

27 Thus the following legal proposition emerges from the afore

discussed views expressed in binding precedents:

A. In cases where handwriting is disputed the same can be proved

either :

(1) By the evidence of a handwriting expert (Section 39 of BSA

2023) or;

(2) By the evidence of a witness acquainted with the handwriting

of the person who is said to have written the disputed writing (Section

41 of BSA 2023); or

(3) Opinion formed by the Court itself on comparison made of the

disputed writings with the admitted or specimen writings (Section 72

of BSA 2023).

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B. The science of identification of handwriting by comparison is

not an infallible one;

C. The opinion of a handwriting expert is fallible/liable to error

like that of any other witness, and yet, it cannot be just brushed aside

as useless. The court while analysing the opinion of expert may apply

its own observation by comparing the signatures, or handwritings for

providing a decisive weight or influence to its decision

D. There is no legal bar preventing the court from comparing

signatures or handwriting, by using its own eyes to compare the

disputed writing with the admitted writing;

E. The court, therefore, as a matter of prudence and caution should

hesitate or be slow to base its findings solely upon the comparison

made by it ;

F. For the purpose of comparison of handwriting by court or by

expert, existence of admitted handwriting is sine qua non.

G. The opinion formed by the court is also susceptible to error and

is not conclusive. It is also to be considered only as a corroborative

piece of cogent evidence and not relied upon;

H. The court cannot simply conclude that it has seen the signatures

and finds it to be or doesn’t find the same to be that of executant. Once

Court decides to adorn the hat of expert, the opinion expressed by

court has to be backed by reasons. It cannot be merely conclusions

without being backed by reasons.

28 In view of above, this Court finds that the propounders of the

WILL-the appellants fully proved execution thereof in terms of Section 63(c)

of 1925 Act as per Section 68 of the 1872 Act. None of the circumstances

enlisted by the Courts below to dislodge the WILL qualifies to be a

‘suspicious circumstance’. Accordingly, the present appeals are allowed.

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Suits filed by the plaintiffs-respondents are ordered to be dismissed. On the

basis of the WILL dated 20.05.2008 executed by Ram Parkash Sharma,

appellants No.2 & 3 are held to be owners in possession of the suit property

left by Ram Parkash Sharma in equal shares as per the WILL.

29 Pending miscellaneous application, if any, also stands disposed

off.

30 A photocopy of this order be placed on the file of the connected

case.

( PANKAJ JAIN )

23.09.2025 JUDGE

Pooja Sharma-I

Whether speaking/reasoned : Yes/No

Whether reportable : Yes/No