SA/474/2005 of RAJENDRA PRASAD Vs JHADWAIN BAI AND OTHERS on 20 December 2019

1. Jhadwain Bai, Aged about 74 years, Widow of GambhirDas Satnami, R/o Village Udka, Nawagaon, TehsilMungeli, District: Bilaspur, Chhattisgarh Das Satnami, R/o Village Udka, Nawagaon, TehsilMungeli, District: Bilaspur, Chhattisgarh

2. Chandrika Bai, Aged about 46 years, W/o Ram Ratan,R/o Village: Baiga Kapu Tehsil: Lormi, District:Bilaspur, Chhattisgarh R/o Village: Baiga Kapu Tehsil: Lormi, District:Bilaspur, Chhattisgarh

3. Shanti Bai, Aged about 44 years, W/o Neim SinghSatnami, R/o Village: Khitakniha, Tehsil: Mungeli,District: Bilaspur, Chhattisgarh Satnami, R/o Village: Khitakniha, Tehsil: Mungeli,District: Bilaspur, Chhattisgarh

4. Heman Bai, Aged about 42 years, W/o Kavilal Satnami,R/o Village : Kapu (Temri), Tehsil: Mungeli,District : Bilaspur, Chhattisgarh R/o Village : Kapu (Temri), Tehsil: Mungeli,District : Bilaspur, Chhattisgarh

5. Meena Bai, Aged about 40 years, W/o PhooldasSatnami, R/o Village: Manpur (Bhaisa Muda), Tehsil:Mungeli, District: Bilaspur, Chhattisgarh Satnami, R/o Village: Manpur (Bhaisa Muda), Tehsil:Mungeli, District: Bilaspur, Chhattisgarh

---- Plaintiffs

6. State of Chhattisgarh, through the Collector,Bilaspur, District Bilaspur, ChhattisgarhBilaspur, District Bilaspur, Chhattisgarh

---- Respondents

For Appellant/Def.No.1 : Mr.Rajeev Shrivastava and Mr.

Malay Shrivastava, Advocates For Res.No.1 to 5/Plaintiffs: For Res.No.1 to 5/Plaintiffs:

Mr.Pallav Mishra, Advocate

For Respondent No.6: Mr.Ravi Bhagat, Dy.G.A.

Hon'ble Shri Justice Sanjay K. Agrawal

C.A.V. Judgment

1. The substantial questions of law involved, formulated and to be answered in this second appealpreferred by defendant No.1 are as under:- “1. Whether, both the Courts below erred inholding that the Will, Ex.D-8, has not beencorrectly proved ?holding that the Will, Ex.D-8, has not beencorrectly proved ?

2. Whether, both the Courts below arejustified in holding that respondents No.1to 5 are legal heirs of late Gambhir Das ?”justified in holding that respondents No.1to 5 are legal heirs of late Gambhir Das ?”

[For the sake of convenience, parties wouldbe referred hereinafter as per their statusshown and nomenclature in the suit before thetrial Court].

2. The suit property was originally held by late ShriGambhir Das. The plaintiffs filed a suit statinginter-alia that plaintiff No.1-Jhadwain is widow oflate Gambhir Das and plaintiffs NO.2 to 5 aredaughters of plaintiff No.1 out of wedlock withGambhir Das and the Will dated 16.6.1988 (Ex.P-8)allegedly executed by Gambhir Das in favour ofdefendant No.1 is surrounded with suspiciouscircumstance. Gambhir Das never executed a Will infavour of defendant No.1 and it is invalid in law,it was not attested in accordance with law andtherefore, it is void document, as such, they areentitled for declaration of title and possession.

3. Defendant No.1 filed his written statement anddenied the averments made in the plaint statinginter-alia that plaintiff No.1-Jhadwain Bai is notlegally wedded wife of Gambhir Das as she gotmarried with someone else from where she camewithout divorce to her earlier husband, she washaving illicit relationship with Gambhir Das and outof said illicit relationship, plaintiffs No.2 to 5were born and execution & attestation of Will dated16.6.1988 (Ex.P-8) in his favour is strictly inaccordance with law. The plaintiffs are not legalheirs of Gambhir Das, therefore, question ofsucceeding the property of Gambhir Das by them doesnot arise for consideration and the suit deserves tobe dismissed.

4. The trial Court upon evaluation of oral anddocumentary evidence available on record, by itsjudgment and decree dated 5.9.2003, held that thesuit property was originally held by Gambhir Das andplaintiff No.1-Jhadwain Bai is legally wedded wifeof Gambhir Das and plaintiffs NO.2 to 5 are legalheirs of Gambhir Das and further held that executionand attestation of the Will (Ex.D-8) in favour ofdefendant No.1-Rajendra Prasad is not established inaccordance with law and accordingly, granted decree for declaration of title and delivery of possession,which was assailed by defendant No.1 by filing firstappeal under Section 96 of the CPC before the firstappellate Court, but he remained unsuccessful,against which, this second appeal under Section 100of the CPC has been filed by the appellant/defendantNo.1, in which substantial questions of law havebeen formulated by this Court, which have been set-out in the opening paragraph of this Judgment.

5. Mr.Rajeev Shrivastava, learned counsel for the appellant/defendant No.1, would submit that theplaintiffs have failed to establish that they arelegal heirs of Gambhir Das as there is no evidenceon record to hold that they are legal heirs ofGambhir Das and plaintiffs No.2 to 5 were born outof wedlock of plaintiff NO.1 with Gambhir Das.Therefore, finding recorded by two Courts below thatplaintiff No.1-Jhadwain Bai is legally wedded wifeof Gambhir Das and plaintiffs NO.2 to 5 are legalheirs of Gambhir Das is perverse and contrary torecord. He would further submit that execution andattestation of Will (Ex.D-8) has been proved inaccordance with law and merely because the witnessesare related to defendant No.1 or the plaintiffs havebeen excluded from succession of the suit property,

the Will cannot be held to be suspicious in light ofdecision rendered by the Supreme Court in the matterof Uma Devi Nambiar and others v. T.C. Sidhan(Dead)1. He has invited my attention to para-16 ofthe said judgment and as such, both the Courts belowconcurrently erred in law in granting the decree infavour of the plaintiffs, which deserves to be setaside.

6. Mr.Pallav Mishra, learned counsel for respondentsNo.1 to 5/plaintiff while supporting the impugnedjudgment and decree would submit that two Courtsbelow concurrently recorded a finding that theplaintiffs are legal heirs of deceased Gambhir Das,which is finding of fact based on evidence availableon record. It is neither perverse nor contrary torecord. He would further submit that Gambhir Das wasnot having sound and disposing state of mind at thetime of execution of Will, which defendant No.1 didnot challenge and therefore, it is fully establishedthat Gambhir Das was not having sound and disposingstate of mind at the time of execution of Will, hehas never executed the Will in favour of defendantNo.1 and no attesting witnesses have seen the Willallegedly executed by Gambhir Das, which is alsoapparent from the fact that Ramsevak (DW-4) did not1 (2004) 2 SCC 321

even prove the signature of other attestingwitnesses except saying that the Will was executedby Gambhir Das in presence of two witnesses. Hewould also submit that testator-Gambhir Das had fourdaughters i.e. plaintiffs No.2 to 5, but defendantNo.1 has denied that the testator had daughters,whereas the Will itself provides that testator haddaughter. He would also submit that all thewitnesses i.e. attester and scribe are related todefendant No.1, as such, the plaintiffs have beendeprived of their share in the suit property. Herelied upon the judgments of the Supreme Court inthe matter of Surendra Pal v. Saraswati Arora2 andRabindra Nath Mukherjee v. Panchanan Banerjee3 whichhas been followed in Jagdish Chand Sharma v. NarainSingh Saini (Dead) through legal representatives andothers4, in which it has been held by TheirLordships of the Supreme Court that Will cannot besaid to be valid particularly when the saidunregistered sale deed got registered after death oftestator in suspicious circumstances. Therefore,both the Courts below have rightly held that theWill (Ex.D-8) is suspicious and it is not executedin accordance with law, as such, the appeal deserves 2 (1974) 2 SCC 600

3 (1995) 4 SCC 459

4 (2015) 8 SCC 615

to be dismissed.

7. I have heard learned counsel for the parties andconsidered their rival submissions made hereinaboveand also went through the records with utmostcircumspection.

8. Defendant No.1 has disputed the fact that plaintiffNo.1-Jhadwain Bai is wife of Gambhir Das andplaintiffs No.2 to 5 are daughters of Jhadwain Baiout of her wedlock with Gambhir Das by holding thatthey are not successor-in-interest of Gambhir Dasand as such, they would not succeed the property ofGambhir Das. The trial Court as well as the firstappellate Court after appreciating oral anddocumentary evidence available on record hascategorically concluded that plaintiff NO.1 is wifeof Gambhir Das and plaintiffs No.2 to 5 aredaughters of Jhadwain Bai out of his wedlock withGambhir Das. The said finding recorded by two Courtsbelow is finding of fact based on evidence availableon record and the said finding could not bedemonstrated to be perverse or contrary to record bylearned counsel for the appellant. I herebyre-affirm the said finding recorded by two Courtsbelow holding that the plaintiffs are legal heirs of Gambhir Das.

Gambhir Das.

Answer to substantial question of law No.1:-

9. Defendant No.1 has set up a plea that Gambhir Dashas executed the Will dated 16.6.1988 (Ex.P-8) inhis favour and therefore, he is title-holder of thesuit land, which has been questioned by theplaintiffs that execution and attestation of theWill is not proved and it is surrounded withsuspicious circumstance, therefore, the Will is notproved in accordance with law, which both the Courtsbelow have not accepted holding that defendant No.1has failed to establish the Will validly executed byGambhir Das in his favour by proving execution andattestation of the Will in accordance with law.

10. The short question for consideration would be,whether execution and attestation of the Will dated16.6.1988 (Ex.P-8) has been proved and establishedby defendant No.1 in view of the provisionscontained in Section 63 of the Succession Act, 1925read with Section 68 of the Evidence Act, 1872 ?whether execution and attestation of the Will dated16.6.1988 (Ex.P-8) has been proved and establishedby defendant No.1 in view of the provisionscontained in Section 63 of the Succession Act, 1925read with Section 68 of the Evidence Act, 1872 ?

11. It is trite law that a will as an instrument oftestamentary disposition of property being a legallyacknowledged mode of bequeathing a testator’sacquisitions during his lifetime, to be acted upononly on his/her demise, it is no longer res integra,testamentary disposition of property being a legallyacknowledged mode of bequeathing a testator’sacquisitions during his lifetime, to be acted upononly on his/her demise, it is no longer res integra, that it carries with it an overwhelming element ofsanctity. [See Jagdish Chand Sharma v. Narain SinghSaini (Dead) through Legal Representatives andothers5.]

12. In order to consider the plea raised at thebar, it would be appropriate to notice Section 63 ofthe Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872.

13. Section 63 of the Act of 1925 provides as under:- “63. Execution of unprivileged Wills.—Everytestator, not being a soldier employed inan expedition or engaged in actual warfare,or an airman so employed or engaged, or amariner at sea, shall execute his willaccording to the following rules:- (a) The testator shall sign or shall affixhis mark to the Will, or it shall be signedby some other person in his presence and byhis direction.

(b) The signature or mark of the testator,or the signature of the person signing forhim, shall be so placed that it shallappear that it was intended thereby to giveeffect to the writing as a will.

(c) The will shall be attested by two ormore witnesses, each of whom has seen thetestator sign or affix his mark to the Willor has seen some other person sign theWill, in the presence and by the directionof the testator, or has received from thetestator a personal acknowledgement of hissignature or mark, or of the signature ofsuch other person; and each of thewitnesses shall sign the Will in the presence of the testator, but it shall notbe necessary that more than one witness bepresent at the same time, and no particularform of attestation shall be necessary.”

14. As per the provisions of Section 63 of the Succession Act, 1925 for due execution of a will (1)the testator should sign or affix his mark to thewill; (2) the signature or the mark of the testatorshould be so placed that it should appear that itwas intended thereby to give effect to the writingas a will; (3) the will should be attested by two ormore witnesses; and (4) each of the said witnessesmust have seen the testator signing or affixing hismark to the will and each of them should sign thewill in the presence of the testator.

15. The above-stated provision of attestation ofwill under Section 63(c) of the Succession Act, 1925by two or more witnesses has been held to bemandatory by Their Lordships of the Supreme Court inthe matter of Janki Narayan Bhoir v. Narayan Namdeo6Kadam.

16. Section 68 of the Evidence Act, 1872 providesas under:-as under:- “68. Proof of execution of documentrequired by law to be attested.—If adocument is required by law to be attested,it shall not be used as evidence until oneattesting witness at least has been called for the purpose of proving its execution,if there be an attesting witness alive, andsubject to the process of the Court andcapable of giving evidence:

Provided that it shall be necessary tocall an attesting witness in proof of theexecution of any document, not being aWill, which has been registered inaccordance with the provisions of theIndian Registration Act, 1908 (16 of 1908),unless its execution by the person by whomit purports to have been executed isspecifically denied.”

17. By the aforesaid provision, a document required by law to be attested to have its execution provedby at least one of the attesting witnesses if aliveand it is subject to process of the court conductingthe proceedings involved and is capable of givingevidence. However, proviso to Section 68 of theEvidence Act, 1872 is not available in case of will.

18. In the matter of Girja Datt Singh v. GangotriDatt Singh7, Their Lordships of the Supreme Courthave held that in order to prove the due attestationof will, the propounder of will has to prove that‘A’ and ‘B’, the two witnesses saw the testator signthe will and they themselves signed the same in thepresence of the testator. Their Lordships whileconsidering Section 68 of the Evidence Act, 1872further held that from the mere signature of twopersons appearing at the foot of the endorsement of registration of will it cannot be presumed that theyhad appended their signature to the document as anattesting witness or can be construed to have doneso in their capacity as attesting witness. It waspertinently observed as under:- “In order to prove the due attestation ofthe will Ex. A-36 Gangotri would have toprove that Uma Dutt Singh and Badri Singhsaw the deceased sign the will and theythemselves signed the same in the presenceof the deceased. The evidence of Uma DuttSingh and Badri Singh is not such as tocarry conviction in the mind of the Courtthat they saw the deceased sign the willand each of them appended his signature tothe will in the presence of the deceased.They have been demonstrated to be witnesseswho had no regard for truth and were readyand willing to oblige Gur Charan Lal intransferring the venue of the execution andattestation of the documents Ex. A-23 andEx. A-36 from Gonda to Tarabganj forreasons best known to themselves.”

*****

“One could not presume from the meresignature of Mahadeo Pershad and Nageshurappearing at the foot of the endorsement ofregistration that they had appended theirsignatures to the document as attestingwitnesses or can be construed to have doneso in their capacity as attestingwitnesses. Section 68, Indian Evidence Actrequires an attesting witness to be calledas a witness to prove the due execution andattestation of the will. This provisionshould have been complied with in orderthat Mahadeo Pershad and Nageshur betreated as attesting witnesses. This lineof argument therefore cannot helpGangotri.”

19. In the matter of H. Venkatchala Iyengar v. B.

N. Thimmajamma and others8the Supreme Court speaking through Gajendragadkar, J., elaboratelylaid down the principles relating to the nature andstandard of evidence required to prove a will. Itwas held as under:- “(1)Stated generally, a will has to beproved like any other document, the test tobe applied being the usual test of thesatisfaction of the prudent mind in suchmatters. As in the case of proof of otherdocuments, so in the case of proof ofwills, one cannot insist on proof withmathematical certainty.

(2) Since Section 63 of the SuccessionAct requires a will to be attested, itcannot be used as evidence until, asrequired by Section 63 of the Evidence Act,one attesting witness at least has beencalled for the purpose of proving itsexecution, if there be an attesting witnessalive, and subject to the process of thecourt and capable of giving evidence.

(3) Unlike other documents, the willspeaks from the death of the testator andtherefore the maker of the will is neveravailable for deposing as to thecircumstances in which the will came to beexecuted. This aspect introduces anelement of solemnity in the decision of thequestion whether the document propounded isproved to be the last will and testament ofthe testator. Normally, the onus whichlies on the propounder can be taken to bedischarged on proof of the essential factswhich go into the making of the will.

(4) Cases in which the execution of thewillissurroundedbysuspiciouscircumstances stand on a different footing.A shaky signature, a feeble mind, an unfairand unjust disposition of property, thepropounder himself taking a leading part in

the making of the will under which hereceives a substantial benefit and suchother circumstances raise suspicion aboutthe execution of the will. That suspicioncannot be removed by the mere assertion ofthe propounder that the will bears thesignature of the testator or that thetestator was in a sound and disposing stateof mind and memory at the time when thewill was made, or that those like the wifeand children of the testator who wouldnormally receive their due share in hisestate were disinherited because thetestator might have had his own reasons forexcluding them. The presence of suspiciouscircumstances makes the initial onusheavier and therefore, in cases where thecircumstances attendant upon the executionof the will excite the suspicion of thecourt, the propounder must remove alllegitimate suspicions before the documentcan be accepted as the last will of thetestator.

(5) It is in connection with wills, theexecution of which is surrounded bysuspicious circumstances that the test ofsatisfaction of the judicial conscience hasbeen evolved. That test emphasises that indetermining the question as to whether aninstrument produced before the court is thelast will of the testator, the court iscalled upon to decide a solemn question andby reason of suspicious circumstances thecourt has to be satisfied fully that thewill has been validly executed by thetestator.

(6) If a caveator alleges fraud, undueinfluence, coercion, etc. in regard to theexecution of the will, such pleas have tobe proved by him, but even in the absenceof such pleas, the very circumstancessurrounding the execution of the will mayraise a doubt as to whether the testatorwas acting of his own free will. And thenit is a part of the initial onus of thepropounder to remove all reasonable doubtsin the matter.”

20. The principle laid down in the above-statedjudgment has been followed with approval in Smt.Jaswant Kaur v. Smt Amrit Kaur and others9,Surendra Pal (supra),Yumnam Ongbi Tampha Ibema Devi v.Yumnam Joykumar Singh and others10 and JagdishChandra Sharma(supra).

21. In the matter of Ramesh Verma (dead) ThroughLegal Representatives v. Lajesh Saxena (dead) byLegal Representatives and another11, the SupremeCourt has again reiterated the need of proving theattestation of will in accordance with Section 63(c)of the Succession Act, 1925 read with Section 68 ofthe Evidence Act, 1872.

22. The Supreme Court in Yumnam Ongbi Tampha IbemaDevi(supra) has clearly held that the attestationof will is not an empty formality. Highlighting theimportance of attestation of Will it was held itmeans signing a document for the purpose oftestifying of the signatures of the executant. Theattesting witness should put his signature on thewill animo attestandi and it was held as under:- “13. Therefore, having regard to theprovisions of Section 68 of the EvidenceAct and Section 63 of the Succession Act, awill to be valid should be attested by two 9(1977) 1 SCC 36910(2009) 4 SCC 78011(2017) 1 SCC 257

or more witnesses in the manner providedtherein and the propounder thereof shouldexamine one attesting witness to prove thewill. The attesting witness should speaknot only about the testator’s signature oraffixing his mark to the will but also thateach of the witnesses had signed the willin the presence of the testator.”

23. In Janki Narayan Bhoir(supra), the Supreme Court while considering Section 63(c) of SuccessionAct, 1925 and Section 68 of the Evidence Act, 1872held that mere proof of signature of the testator onthe will was not sufficient, the attestation thereofis also to be proved as required by Section 63(c) ofthe Act Succession Act, 1925. It was observed asunder: - “10.Section 68 of the Evidence Actspeaks of as to now a document required bylaw to be attested can be proved.According to the said Section, a documentrequired by law to be attested shall not beused as evidence until one attestingwitness at least has been called for thepurpose of proving its execution, if therebe an attesting witness alive, and subjectto the process of the Court and capable ofgiving an evidence. It flows from thisSection that if there be an attestingwitness alive capable of giving evidenceand subject to the process of the Court,has to be necessarily examined before thedocument required by law to be attested canbe used in an evidence. On a combinedreading of Section 63 of the Succession Actwith Section 68 of the Evidence Act, itappears that a person propounding the willhas got to prove that the will was duly andvalidly executed. That cannot be done bysimply proving that the signature on thewill was that of the testator but must alsoprove that attestations were also made

properly as required by Clause (c) ofSection 63 of the Succession Act. It istrue that Section 68 of Evidence Act notsay that both or all the attestingwitnesses must be examined. But at leastone attesting witness has to be called forproving due execution of the Will asenvisaged in Section 63 although Section 63of the Succession Act requires that a willhas to be attested at least by twowitnesses, Section 68 of the Evidence Actprovides that a document, which is requiredby law to be attested, shall not be used asevidence until one attesting witness atleast has been examined for the purpose ofproving its due execution if such witnessis alive and capable of giving evidence andsubject to the process of the Court. In away, Section 68 gives a concession to thosewho want to prove and establish a will in aCourt of law by examining at least oneattesting witness even though will has tobe attested at least by two witnessesmandatorily under Section 63 of theSuccession Act. But what is significantand to be noted is that that one attestingwitness examined should be in a position toprove the execution of a will. To put inother words, if one attesting witness canprove execution of the will in terms ofClause (c) of Section 63, viz., attestationby two attesting witnesses in the mannercontemplated therein, the examination ofother attesting witness can be dispensedwith. The one attesting witness examined,in his evidence has to satisfy theattention of a will by him and the otherattesting witness in order to prove therewas due execution of the will. If theattesting witness examined besides hisattestation does not, in his evidence,satisfy the requirements of attention ofthe will by other witness also it fallsshort of attestation of will at least bytwo witnesses for the simple reason thatthe execution of the will does not merelymean the signing of it by the testator butit means fulfilling and proof of all theformalities required under Section 63 ofthe Succession Act. Where one attesting witness examined to prove the will underSection 68 of the Evidence Act fails toprove the due execution of the will thenthe other available attesting witness hasto be called to supplement his evidence tomake it complete in all respects. Whereone attesting witness is examined and hefails to prove the attestation of the willby the other witness there will bedeficiency in meeting the mandatoryrequirements of Section 68 of the EvidenceAct.”

24. The principle of law laid down in Janki Narayan Bhoir(supra) has been followed with approval inJagdish Chandra Sharma(supra) by which it was held as under:- “52. While dwelling on the respectiveprescripts of Section 63 of the Act andSections 68 and 71 of Act 1872 vis-à-vis adocument required by law to be compulsorilyattested, it was held Janki Narayan Bhoir(supra) that if an attesting witness isalive and is capable of giving evidence andis subject to the process of the Court,he/she has to be necessarily examinedbefore such document can be used inevidence. It was expounded that on acombined reading of Section 63 of the Actand Section 68 of the 1872 Act, it wasapparent that mere proof of signature ofthe testator on the Will was not sufficientand that attestation thereof was also to beproved as required by Section 63 (c) of theAct. It was, however, emphasised thatthough Section 68 of the 1872 Act permitsproof of a document compulsorily requiredto be attested by one attesting witness,he/she should be in a position to prove theexecution thereof and if it is a Will, interms of Section 63 (c) of the Act, viz.,attestation by two attesting witnesses inthe manner as contemplated therein. It wasexposited that if the attesting witnessexamined besides his attestation does notprove the requirement of the attestation of

the Will by the other witness, histestimony would fall short of attestationof the Will by at least two witnesses forthe simple reason that the execution of theWill does not merely mean signing of it bythe testator but connotes fulfilling theproof of all formalities required UnderSection 63 of the Act. It was held thatwhere the attesting witness examined toprove the Will Under Section 68 of 1872 Actfails to prove the due execution of theWill, then the other available attestingwitness has to be called to supplement hisevidence to make it complete in allrespects.”

25. Reverting to the facts of the present case in light of the principle of law rendered by TheirLordships of the Supreme Court in the above-notedjudgments (supra) qua execution and attestation ofWill by a testator, the following factual positionwould emerge on the face of record:-Lordships of the Supreme Court in the above-notedjudgments (supra) qua execution and attestation ofWill by a testator, the following factual positionwould emerge on the face of record:-

1. Testator Gambhir Das is said to have executedthe Will dated 16.6.1988 (Ex.D-8) in favour ofdefendant No.1 excluding his widow plaintiff No.1and daughters plaintiffs No.2 to 5.the Will dated 16.6.1988 (Ex.D-8) in favour ofdefendant No.1 excluding his widow plaintiff No.1and daughters plaintiffs No.2 to 5.

2. The Will dated 16.6.1988 (Ex.D-8) is said tobe attested by two witnesses Bharat Lal and RamSevak Kotwar and scribed by Ramji. One of theattesting witness i.e. Ramsevak has been examinedbe attested by two witnesses Bharat Lal and RamSevak Kotwar and scribed by Ramji. One of theattesting witness i.e. Ramsevak has been examined as DW-4 and scribe Ramji has also been examinedas DW-3. as DW-3.

26. A careful perusal of the Will (Ex.D-8) would show that it was executed on 16.6.1988 by GambhirDas in presence of two witnesses Bharat Lal and RamSevak Kotwar and the Will also recites that if his(Gambhir Das's) daughters object the Will, it shouldbe held to be improper and it is also scribed byRamji though Ramji has been examined as DW-3 andattesting witness Ramsevak has been examined asDW-4, but they have also not marked/identified thesignature of Gambhir Das except making statement onoath before the trial Court that testator has signedthe Will and Ramsevak and Bharatlal have also signedthe Will as attesting witnesses.

27. Admittedly, as held that Gambhir Das has fourdaughters and the Will recites that if his daughtersobject the Will, it should be held to be improper,whereas the testator had four daughters i.e.plaintiffs No.2 to 5 & wife plaintiff No.1 andGambhir Das died after executing the Will. It is notbrought on record that the testator had no cordialrelation with his wife and his four daughters. Thereis no reason for excluding wife and daughters fromsuccession of the property that too from entireproperty to the extent of 4.44 acres. The plaintiffshave stated that Gambhir Das was not having soundmental condition at the time of execution of the

Will, which remained unchallenged. It is alsoapparent from the record that all the attestingwitnesses and scribe are related to defendant No.1-propounder of Will.

28. InUma Devi Nambiar(supra), it was held by theSupreme Court that the fact that natural heirs haveeither been excluded or a lesser share has beengiven to them, by itself without anything more,cannot be held to be suspicious circumstanceespecially in a case where the bequest has been madein favour of an offspring.

29. The Supreme Court in Rabindra Nath Mukherjee(supra) has entertained the view that the witnessesto the will, if interested for the propounder isperceived to be a suspicious circumstance, the samewould lose significance if the document isregistered and the Sub-Registrar does certify thatthe same had been read over to the executor who ondoing so admits the contents.

30. In this case, the Will was not registeredduring the lifetime of testator Gambhir Das, butafter his death, it was got registered on 22[nd]September, 1994. I am satisfied that findingrecorded by both the Courts below that execution &attestation of the Will has not been proved in accordance with law and suspicious circumstanceattached with the Will has also not been dispelledis a finding of fact based on record, it is neitherperverse nor contrary to record and as such, thefirst appellate Court is justified in affirming afinding of the trial Court that the Will has notbeen established in accordance with law. In view ofabove, the substantial questions of law are answeredin favour of the plaintiffs and against defendantNO.1.

31. I do not find any substance in this secondappeal. The second appeal deserves to be and ishereby dismissed leaving the parties to bear theirown cost(s).

32. A decree be drawn-up accordingly.

Sd/-

(Sanjay K.Agrawal)

Judge

B/-