# Ambika Prasad @ Ambika Prasad Pandey & Ors v. Shyam Bihari & Ors

- **Citation:** (2025) 5 ILRA 986
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-02
- **Case number:** Second Appeal No. 167 of 2023
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ambika-prasad-ambika-prasad-pandey-ors-v-shyam-bihari-ors-53556
- **Pages:** 15

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Section 100 - Indian Succession Act, 1925
- Section 63 - Indian Evidence Act, 1860 -
Sections 63, 68, 69, 70 & 71 - Second
Appeal - preferred by the plaintiff-appellants -
assailing the judgment and decree passed by
the learned Additional District Judge, whereby
the appellate court reversed the decree of the
trial court - Will - which was executed by the
father, excluding one son among his other four
sons - property dispute - Original Suit - for
cancellation of a Will - Trial Court - upon
framing six issues and after appreciation of oral
and documentary evidence, arrived at the
conclusion
that
the
defendants
failed
to
establish lawful and voluntary execution of the
Will - accordingly, the suit was decreed - First
Appeal - the appellate court - allowed the
appeal - relying primarily on the fact of
registration and selective witness testimony -
while disregarding the trial court's detailed
findings - Second Appeal - Court finds that -
proof of Will stands on a higher degree than any
other instrument - if there are any suspicious
circumstances, whether raised by the other side
or otherwise before the court are required to be
clarified or removed by the propounder of the
Will also, failing which the Will in dispute cannot
be said to be valid - the eldest son had
specifically alleged that the Will was procured by
fraud, at a time when the testator was mentally
and physically incapacitated - the trial court had
duly considered these aspects and recorded
cogent findings - the appellate court, however,
failed to consider it and overlooked the finding
of the trial court - Held - the first appellate
court has allowed the appeal recording illegal
and perverse findings - Consequently, the
decree passed by the first appellate court is set
aside - the judgment and decree of the trial
court is restored - no illegality or perversity
found in the trial court's findings - Accordingly,
the second appeal stands allowed. (Para - 26,
34, 35)

Appeal Allowed. (E-11)

List of Cases cited:

## Text

_Characters 0–39,926 of 51,460. This is a partial read: ask again with offset=39926 for what follows._

986 INDIAN LAW REPORTS ALLAHABAD SERIES
object to the submissions being heard in
their absence, more so when there is a
learned counsel present to take notes of the
submissions. The precious time of the court
can also be better utilised if the learned
counsel refrain from citing multiple case
laws on a single point. The same old
practices will continue to produce the same
old results but as the society needs faster
disposal of matters, all of us should change
our practices to produce better results."

49. I once again request the
learned members of the bar and remind
them that besides being a representative
of their client, they are also responsible
officers of the Court. They should be
considerate towards the other litigants
also and should cooperate in expeditious
dispensation of justice by being precise
and concise while preparing pleadings as
well as while making submissions before
the Court.
----------
(2025) 5 ILRA 986
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 02.05.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 167 of 2023

Ambika Prasad @ Ambika Prasad Pandey
& Ors. ...Appellants
Versus
Shyam Bihari & Ors. ...Respondents

Counsel for the Appellants:
Uma Kant Mishra, Jai Prakash Yadav,
Karuna Shankar Mishra, Rajiv Kumar Bajpai

Counsel for the Respondents:
Vyas Narayan Shukla, Vyas Narayan Shukla

Civil Law - Civil Procedure Code, 1908 -
Section 100 - Indian Succession Act, 1925
- Section 63 - Indian Evidence Act, 1860 -
Sections 63, 68, 69, 70 & 71 - Second
Appeal - preferred by the plaintiff-appellants -
assailing the judgment and decree passed by
the learned Additional District Judge, whereby
the appellate court reversed the decree of the
trial court - Will - which was executed by the
father, excluding one son among his other four
sons - property dispute - Original Suit - for
cancellation of a Will - Trial Court - upon
framing six issues and after appreciation of oral
and documentary evidence, arrived at the
conclusion
that
the
defendants
failed
to
establish lawful and voluntary execution of the
Will - accordingly, the suit was decreed - First
Appeal - the appellate court - allowed the
appeal - relying primarily on the fact of
registration and selective witness testimony -
while disregarding the trial court's detailed
findings - Second Appeal - Court finds that -
proof of Will stands on a higher degree than any
other instrument - if there are any suspicious
circumstances, whether raised by the other side
or otherwise before the court are required to be
clarified or removed by the propounder of the
Will also, failing which the Will in dispute cannot
be said to be valid - the eldest son had
specifically alleged that the Will was procured by
fraud, at a time when the testator was mentally
and physically incapacitated - the trial court had
duly considered these aspects and recorded
cogent findings - the appellate court, however,
failed to consider it and overlooked the finding
of the trial court - Held - the first appellate
court has allowed the appeal recording illegal
and perverse findings - Consequently, the
decree passed by the first appellate court is set
aside - the judgment and decree of the trial
court is restored - no illegality or perversity
found in the trial court's findings - Accordingly,
the second appeal stands allowed. (Para - 26,
34, 35)

Appeal Allowed. (E-11)

List of Cases cited:

1. Guro (Smt.) Vs Atma Singh & ors.; (1992) 2
SCC 507,
5 All. Ambika Prasad @ Ambika Prasad Pandey & Ors. Vs. Shyam Bihari & Ors.
987
2. Benga Behera & anr.Vs Braja Kishore Nanda
& ors.- 2007 All. C.J. 2249,

3. Dhannulal & ors.Vs Ganeshram & anr.-
(2015) 12 SCC 301,

4. Bharpur Singh & ors.Vs Shamsher Singh - AIR
2009 SC 1766,

5. Smt. Jaswant Kaur Vs Smt. Amrit Kaur &
ors.;AIR 1977 SC 74,

6. K. Laxmanan Vs Thekkayil Padmini &
ors.;2009(106) RD 610,

7. Gopal Krishan & ors.Vs Daulat Ram & ors.-
Civil Appeal NO(S) 13192 of 2024 - decided on
Dt. 02.01.2025,

8. Meena Pradhan & ors.Vs Kamla Pradhan &
ors.- 2023 9 SCC 734,

9. Shivakumar & ors.Vs Sharanabasappa & ors.-
2021 (11) SCC 277

(Delivered by Hon'ble Rajnish Kumar, J.)

1.
Heard,
Sri
Jai
Prakash
Yadav,learned counsel for the plaintiffappellants and Sri Vyas Narayan Shukla,
learned
counsel
for
the
defendantrespondents.

2. The instant second appeal under
Section 100 of the Civil Procedure Code
1908 (hereinafter referred as CPC) has
been filed against the judgment and decree
dated 05.10.2023 passed in Civil Appeal
No.38/2009 (Shyam Bihari and Others
versus
Sharda
Prasad
(deceased)
substituted by his legal heirs Ambika
Prasad and Others) by the Additional
District
Judge/F.T.C.-Ist,Sultanpur,
whereby the lower appellate court allowed
the defendant-respondents first appeal.
Consequently, the judgment and decree
dated 26.05.2009 passed in suit for
cancellation of Will i.e. Regular Suit
No.225/2004(Sharda Prasad and others
versus Balkrishna and others) filed by the
plaintiff-appellants has been set aside and
the suit has been dismissed.

3.
Learned
counsel
for
the
appellant submitted that the property in
dispute belongs to Late Ram Chandra
Pandey, who was father of the parties. He
was survived by his five sons. The dispute
arose in view of an alleged registered Will
Deed said to have been executed by Late
Ram Chandra Pandey on 02.11.1998
whereby it excluded the plaintiff Shitla
Prasad
i.e.
predecessor-in-interest
of
plaintiff-appellants and the property was
bequeathed to the remaining four sons, out
of which three sons have been given 1/5th
share each, whereas the youngest son 2/5th
share,. Being aggrieved the plaintiffappellants instituted a suit bearing Regular
Suit No.225 of 2004, which after contest
came to be decreed on 26.05.2009

4. It is further submitted that the
trial court, after dealing with the evidence
available on record, clearly returned a
finding that the attesting witness of the
Will, namely, Ram Sagar Mishra could not
prove the due attestation and execution of
the Will coupled with the fact that the age
of the testator at that point of time was 84
years and was suffering from various
ailment. It is also submitted that the sole
ground
for
excluding
the
plaintiffappellants as stated in the Will, was that the
plaintiff-appellants had their own house in
the village of his in-laws and he never
resided with the father and the other
brothers. Upon evidence, this fact came to
be disproved and it was found that the
plaintiff-appellants never had any property
or in the village of his in-laws. Thus it has
been submitted that taking an over all view,
the trial court decreed the suit, which has
988 INDIAN LAW REPORTS ALLAHABAD SERIES
been upset by the lower appellate court
without meeting with the reasons recorded
by the trial court while dealing with the
evidence of the attesting witness and thus
without proving the Will in accordance
with law, the lower appellate court has
committed an error in allowing the
defendant-respondents
appeal
and
dismissing the suit, therefore, the impugned
judgment and decree passed by the first
appellate court is liable to be set aside and
this appeal is liable to be allowed.

5. Shri Vyas Narayan Shukla,
learned
counsel
for
the
defendantrespondents submitted that the learned trial
court, without considering the pleadings,
evidence
and
material
on
record
appropriately, had decreed the suit but the
first appellate court apart from the evidence
of the attesting witness has taken note of
evidence led on behalf of defendantrespondents which included the mutual and
common family relatives, who all deposed
against the plaintiff-appellants and in view
thereof the first appellate court has passed
the impugned judgment and decree in
accordance with law after considering the
pleadings, evidence and material on record,
which does not suffer from any illegality or
error, which may call for any interference
by this Court. This appeal has been filed on
misconceived and baseless grounds. The
substantial questions of law formulated in
this appeal does not arise in this appeal.
This appeal is liable to be dismissed.

6.
The
following
substantial
questions of law have been formulated in
this appeal: by means of the order dated
20.11.2023-

 "(A) Whether the lower appellate
court was justified in reversing the findings
without considering the evidence of the
attesting witness Ram Sagar Mishra who in
his cross examination could not establish
the due execution and attestation of the
impugned
Will
in
question
dated
02.11.1998?

 (B) Whether the lower appellate
court committed an error in failing to
notice that it is the propounder of the Will
who has to establish its execution and
attestation in accordance with Section 63
of the Indian Succession Act read with
Section 68 of the Indian Evidence Act and
once the defendant-respondents witness
failed to discharge the initial burden
whether in such circumstances the lower
appellate court could have allowed the
appeal and dismiss the suit?"

7.
I
have
considered
the
submissions of learned counsel for the
parties and perused the records.

8. The suit for cancellation of Will
Deed was filed by the predecessor-ininterest of the plaintiff-appellants Sharda
Prasad alleging therein that that property in
dispute was initially recorded in the name
of his father i.e. Late Ram Chandra Pandey.
He had 5 sons namely Sharda Prasad, Bal
Krishna, Adya Prasad, Ram Awadh and
Shyam Bihari. The eldest son Sharda
Prasad i.e. the plaintiff joined the Railway
Protection Force and was posted in Gujrat.
The second son Bal Krishna was working
in State Reserve Police Department. Adya
Prasad was a teacher in Primary School.
Ram Awadh was a practicing lawyer in
District Sultanpur and the youngest son
Shyam Bihari lived at home and used to
drive jeep. Ram Chandra Pandey died on
11.11.2002 after attaining the age of more
than 80 years leaving behind all his
aforesaid sons as successors. When on
information of death of Ram Chandra
5 All. Ambika Prasad @ Ambika Prasad Pandey & Ors. Vs. Shyam Bihari & Ors.
989
Pandey, Sharda Prasad came to Sultanpur,
then in the month of December 2002, he
came to hear that the Will Deed has been
got prepared by his remaining four brothers
i.e. the defendant-respondents in collusion
with fraud and a case for mutation has been
filed. He filed objection in the said case,
which is pending. He asked his brothers to
get the Sale Deed cancelled but they finally
denied
to
get
it
done
on
01.05.2004,therefore on the same date, he
applied for certified copy of the Will Deed,
which he got on 06.05.2004. Thereafter he
filed the suit for cancellation of Will Deed.

9. The suit was filed on the
grounds that his father Ram Chandra
Pandey had never executed any Will Deed
after thinking and understanding and the
Will Deed has been got prepared in the
condition of his illness defrauding him.
Ram Chandra Pandey was very old and he
was suffering from heart ailment, diabetes
and high blood pressure for the last 7-8
years prior to his death. His power to think
and understand was lost and he was not
able to do any work with his wish. The
signatures and thumb impression on the
Will Deed have been taken from him
concealing about the sale deed defrauding
him. The witnesses of the Will Deed are the
helping hand of each other and involved in
the conspiracy. The photograph of Ram
Chandra Pandey on Will Deed has been
prepared in the condition of his illness
without any information to him. The
plaintiff always used to serve his father,
who was happy with his service, therefore,
there was no occasion to execute any Will
Deed excluding him. Thus all this work has
been done in a fraudulent manner deceiving
him. The witnesses of the Will Sri Ravish
Chandra Pandey and Sri Ambika Prasad are
Advocates by profession and friend of Sri
Ram
Awadh
Pandey,Advocate
i.e.
defendant no.5. The plaintiff asked for
cancellation of Will Deed to the defendantrespondents but they finally denied on
01.05.2004, on account of which cause of
action to file suit arose.

10. The suit was contested by the
defendant-respondents by filing a common
written statement denying the averments
made in the plaint and alleging therein that
the plaintiff Sharda Prasad after getting
service had gone to Gujrat. Thereafter he
never came back to meet his father in Pure
Jaddupur, Pargana Meeranpur, District
Sultanpur. However he used to come to his
in-laws house(Sasural) in Pratapgarh. His
children have also started residing with his
maternal grandfather and the marriage of
his children have also been solemnized
from there. He never came even to attend
the marriage of the sons and daughters of
the defendant-respondents. He also did not
come at the time of death of their mother
and father. The father of the parties had
called to the plaintiff to discuss about the
execution of the Will Deed but he had not
come, therefore, a day prior to the
execution of the Will Deed on 02.11.1998,
he called both the witnesses of the Will
Deed, namely, Sri Ram Sagar Mishra and
Sri Ravish Chandra Pandey, advocate and
after discussing with them in front of the
defendant-respondents decided to execute
the Will Deed. Accordingly, Will Deed was
executed on 02.11.1998, in which 1/5th
share each has been given to the defendantrespondents no.1 to 3 and 2/5th to the
defendant no.4 as he used to live with the
father and look after him. It has also been
averred that father of the parties was more
than 80 years of age at the time of death on
11.11.2002 and despite telegram given to
the plaintiff, he had neither come nor paid
any money for his last rites and he had also
not come at the time of death of their
990 INDIAN LAW REPORTS ALLAHABAD SERIES
mother despite information given to him.
The father of the parties was not happy
with the plaintiff on account of the
aforesaid, therefore, he had executed the
aforesaid Will Deed.

11. The replication was filed by the
plaintiff Sharda Prasad with the permission
of the Court denying the averments made in
the written statement and stating that the
plaintiff came into service at the age of 18
years 3 months. He further averred that he
never left his wife and children in his inlaws house in Village Dhannipur, rather he
had left them with his parents in Village
Pure Jaddupur to look after them and for
help in the homely as well as agricultural
works. He and his family used to go to his
in-laws house only occasionally or on some
invitation. He also reiterated the averments
made in the plaint and also stated that he had
paid money for education etc. of his brothers
and also tried to get them employed. He also
stated that he had come not only at the time
of death of his mother but at the time of death
of his father also. The Will Deed has been got
executed in collusion by the respondents with
the witnesses of the Will by defrauding their
father.

12. After exchange of pleadings, 6
issues were framed by the trial court.
Thereafter the oral as well as documentary
evidence was adduced by the parties. In the
oral evidence, the plaintiff Sharda Prasad
appeared as P.W.1, Sita Ram as P.W.2 and
Sri Krishna Kumar Tiwari as P.W.3. On
behalf
of
the
defendant-respondents,
Balkrishna Pandey appeared as D.W.1,
Tribhun Narayan Mishra as D.W.2, Sher
Bahadur as D.W.3 and Ram Sagar Mishra
as D.W.4.

13. Considering
the
evidence,
pleadings and material on record, the trial
court decreed the suit on the ground that
the defendant-respondents have failed to
remove the doubt in execution of Will
Deed disclosed by the plaintiff-appellants
and completely failed to prove that it was
executed by Ram Chandra Pandey with his
sweet Will and in good health in
accordance with law and cancelled the Will
Deed dated 02.11.1998 by means of the
judgment and decree dated 26.05.2009.

14. Being aggrieved, the defendantrespondents filed a civil appeal, which has
been allowed by the first appellate court after
framing the point of determination on the
ground that the disputed Will is registered and
the same has been proved by the evidence of
the witness of the Will Ram Sagar Mishra and
set aside the judgment and decree dated
26.05.2009 passed by the trial court and
dismissed the suit. Hence, this Second Appeal
has been filed, which has been admitted on the
aforesaid substantial questions of law.

15. In view of the pleadings of the
parties and arguments advanced before this
Court and the aforesaid substantial questions
of law involved in this appeal,this Court has to
consider as to whether the Will Deed in
question has been executed by the deceased
Ram Chandra Pandey in accordance with law
and it's execution has been proved by the
propounder of the Will Deed i.e. the
defendant-respondents in accordance with law
or not and the doubts raised by the plaintiffappellants have been clarified and removed by
the defendant-respondents or not.

16. Section 63 of the Indian
Succession Act, 1925 provides the manner,
in which a will shall be executed, which is
extracted here-in-below:-

 "63. Execution of unprivileged
wills.-Every testator, not being a soldier
5 All. Ambika Prasad @ Ambika Prasad Pandey & Ors. Vs. Shyam Bihari & Ors.
991
employed in an expedition or engaged in
actual warfare, [or an airman so employed
or engaged,] or a mariner at sea, shall
execute his will according to the following
rules:-

 (a) The testator shall sign or shall
affix his mark to the will, or it shall be
signed by some other person in his
presence and by his direction.

 (b) The signature or mark of the
testator, or the signature of the person
signing for him, shall be so placed that it
shall appear that it was intended thereby to
give effect to the writing as a will.

 (c) The will shall be attested by
two or more witnesses, each of whom has
seen the testator sign or affix his mark to
the will or has seen some other person sign
the will, in the presence and by the
direction of the testator, or has received
from
the
testator
a
personal
acknowledgment of his signature or mark,
or of the signature of such other person;
and each of the witnesses shall sign the will
in the presence of the testator, but it shall
not be necessary that more than one
witness be present at the same time, and no
particular form of attestation shall be
necessary."

17. Sections 68 to 71 of the Indian
Evidence Act provides as to how a will is
required to be proved, which are extracted
here-in-below:-

 "68. Proof of execution of
document required by law to be attested.--
If a document is required by law to be
attested, it shall award not be used as
evidence until one attesting witness at least
has been called for the purpose of proving
its execution, if there be an attesting
witness alive, and subject to the process of
the Court and capable of giving evidence:

 [Provided that it shall not be
necessary to call an attesting witness in
proof of the execution of any document, not
being a will, which has been registered in
accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908),
unless its execution by the person by whom
it purports to have been executed is
specifically denied.]

 69. Proof where no attesting
witness found.--If no such attesting
witness can be found, or if the document
purports to have been executed in the
United Kingdom, it must be proved that the
attestation of one attesting witness at least
is in his handwriting, and that the signature
of the person executing the document is in
the hand writing of that person.

 70. Admission of execution by
party
to
attested
document.--The
admission of a party to an attested
document of its execution by himself shall
be sufficient proof of its execution as
against him, though it be a document
required by law to be attested.

 71. Proof when attesting witness
denies the execution.--If the attesting
witness denies or does not recollect the
execution of the document, its execution
may be proved by other evidence."

18. The aforesaid section 68
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 he is alive and capable of
giving evidence. Section 69 provides that if
no such attesting witness can be found, it
992 INDIAN LAW REPORTS ALLAHABAD SERIES
must be proved that the attestation of one
attesting witness at least is in his
handwriting and that the signature of the
person executing the document is in the
hand writing of that person. In case of
admission of a party to an attested
document of its execution, it shall be
sufficient proof of its execution against him
as per section 70. In case the attesting
witness denies or does not recollect the
execution of the document, its execution
may be proved by other evidence as per
section 71. In this case Section 68 is
applicable because one of the attesting
witness had appeared to prove the Will.

19. The Hon'ble Supreme Court, in
the case of Guro (Smt.) vs. Atma Singh
and others; (1992) 2 SCC 507, has held
that the law is well settled that the mode of
proving a will does not ordinarily differ
from that of proving any other document
except as to the special requirement
prescribed in the case of a will by Section
63 of the Indian Succession Act. The
relevant paragraph 3 of the said judgment is
extracted herein-below:-

 "3. WITH regard to proof of a
will the law is well settled that the mode of
proving a will does not ordinarily differ
from that of proving any other document
except as to the special requirement
prescribed in the case of a will by
Section 63 of the Indian Succession Act.
The onus of proving the will is on the
propounder and in the absence of
suspicious circumstances surrounding
the execution of the will, proof of
testamentary capacity and signature of
the testator as required by law is
sufficient to discharge the onus. Where,
however
there
were
suspicious
circumstances, the onus would be on
the propounder to explain them to the
satisfaction of the court before the will
could be accepted as genuine. Such
suspicious cir- cumstances may be a
shaky signature, a feeble mind and
unfair and unjust disposal of property
or the propounder himself taking a
leading part in the making of the will
under which he receives a substantial
benefit. The presence of suspicious
circumstances makes the initial onus
heavier and the propounder must remove
all legitimate suspicion before
the
document can be accepted as the last
will of the testator. (S. Venkalachala
lyengar v. B.N. Thimmajamma1, Rani
Purnima Devi v. Kumar Kilagendra
Narayan Dev2, Jaswant Kaur v.Amrit
Kaur3)."

20. The Hon'ble Supreme Court,
in the case of Benga Behera and
another vs. Braja Kishore Nanda and
others; 2007 All. C.J. 2249 relied by
learned counsel for the appellant, has
held that the requirement of the proof of
execution of a will is the same as in the
case of certain other documents, for
example Gift or Mortgage and at least
one attesting witness has to be examined
to prove execution and attestation of the
will and it is to be proved that the
executant had signed and/or given his
thumb impression in presence of at least
two attesting witnesses and the attesting
witnesses had put their signatures in
presence of the executant. It has further
been held that existence of suspicious
circumstances itself may be held to be
sufficient to arrive at a conclusion that
the execution of the will has not duly
been proved.

21. The Hon'ble Supreme Court, in
the case of Dhannulal and others vs.
Ganeshram and another; (2015) 12 SCC
5 All. Ambika Prasad @ Ambika Prasad Pandey & Ors. Vs. Shyam Bihari & Ors.
993
301, has held that the proof of a will stands
in a higher degree in comparison to the
other documents. The relevant paragraph
19 is extracted hereinbelow:-

 "19. Proof of a Will stands in a
higher degree in comparison to other
documents. There must be a clear evidence
of the attesting witnesses or other witnesses
that the contents of the Will were read over
to the executant and he, after admitting the
same to be correct, puts his signature in
presence of the witnesses. It is only after
the executant puts his signature, the
attesting
witnesses
shall
put
their
signatures
in
the
presence
of
the
executant."

22. The Hon'ble Supreme Court, in
the case of Bharpur Singh and Others Vs.
Shamsher Singh;AIR 2009 SC 1766, has
held that a will must be proved having
regard to the provisions contained in clause
(c) of Section 63 of the Indian Succession
Act, 1925 and Section 68 of the Indian
Evidence Act, 1872 and in a case where the
Will
is
surrounded
by
suspicious
circumstances, it would not be treated as
the last testamentary disposition of the
testator. The relevant paragraph 11 is
extracted here-in-below:-

 "11. The legal principles in regard
to proof of a will are no longer res integra. A
will must be proved having regard to the
provisions contained in clause (c) of Section
63 of the Indian Succession Act, 1925 and
Section 68 of the Indian Evidence Act, 1872,
in terms whereof the propounder of a will
must prove its execution by examining one or
more attesting witnesses. Where, however,
the validity of the Will is challenged on the
ground of fraud, coercion or undue influence,
the burden of proof would be on the caveator.
In a case where the Will is surrounded by
suspicious circumstances, it would not be
treated as the last testamentary disposition of
the testator."

23. A three judge Bench of the
Hon'ble Supreme Court, in the case of Smt.
Jaswant Kaur Vs. Smt. Amrit Kaur and
Others;AIR 1977 SC 74, while considering
the relevant provisions of Section 63 of the
Indian Succession Act and 68 of the
Evidence Act held as under in paragraphs-9
and 10. Award

 "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
adver- sary proceeding becomes in such
cases a matter of the court's conscience and
then the true question which arises for
consideration is whether the evidence led by
the pro- pounder 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 satisfication unless
the party which sets up the will .offers a
'cogent and convinc- ing explanation of the
suspicious circumstances surrounding the
making of the will.

 10. There is a long line of
decisions bearing on the nature and
standard of evidence required to prove a
will. Those decisions have been reviewed in
an elaborate judgment of this Court in R.
Venkatachala
Iyengar
v.B.N.
Thirnmajamma & Others. (1) The Court,
speaking through Gajendragadkar J., laid
down in that case the following positions :-
-

 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
994 INDIAN LAW REPORTS ALLAHABAD SERIES
matters. As in the ease of proof of 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 63 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 o[ 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
deci- sion 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 surround- ed 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 re-
ceives 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
normally receive their due share in his
estate were disin- herited 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 excite 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 circumstance 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, coer- cion 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 execu- tion' of theaward
will may raise a doubt as to whether the
testa- tor was acting of his own free will.
And then it is a part of the initial onus of
the propounder to remove all reasona- ble
doubts in the matter."

24. The Hon'ble Supreme Court, in
the case of K. Laxmanan versus Thekkayil
Padmini and Others;2009(106) RD 610
relied by learned counsel for the petitioner
has held that the onus of proving the Will is
on the propounder who has to prove the
legality of the execution and genuineness
of the said Will by proving absence of
suspicious circumstances surrounding the
5 All. Ambika Prasad @ Ambika Prasad Pandey & Ors. Vs. Shyam Bihari & Ors.
995
said Will and also by proving the
testamentary capacity and the signature of
the testator and once the same is proved, it
could be said that the propounder has
discharged the onus. It has further been
held
that
if
there
are
suspicious
circumstances regarding the execution of
the Will, the onus is also on the propounder
to explain them to the satisfaction of the
Court and only when such responsibility is
discharged, the Court would accept the
Will as genuine. Even when there are no
such pleas, but circumstances give rise to
doubt, it is on the propounder to satisfy the
conscience
of
the
Court.
Suspicious
circumstances arise due to several reasons
such with regard to genuineness of the
signature of the testator, the conditions of
the testator's mind, the dispositions made in
the Will being unnatural, improbable or
unfair in the light of relevant circumstances
or there might be other indications in the
Will to show that the testator's mind was
not free.

25. The Hon'ble Supreme Court, in
a
recent
judgment
and
order dated
02.01.2025 passed in Civil Appeal NO(S)
13192 of 2024 (Gopal Krishan and Others
versus Daulat Ram and Others) relied by
learned
counsel
for
the
respondent
considering the judgment of the Hon'ble
Supreme Court in the case of Meena
Pradhan
and
others
versus
Kamla
Pradhan and Others;2023 9 SCC 734 and
Shivakumar
and
others
versus
Sharanabasappa and Others; 2021 (11)
SCC 277 observed that requisites for
proving a Will are well established and
they have been reiterated in the aforesaid
judgments and reproduced the principles
summarised in the same. The relevant
paragraph 8 is extracted here-in-below:-

 "8. The requisites for proving of a
Will are well established. They were
recently reiterated in a Judgment of this
Court in Meena Pradhan and others v.
Kamla Pradhan and Another9. See also
Shivakumar and Others v. Sharanabasappa
and
Others10.
The
principles
as
summarised by the former are reproduced
as below:-

 "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
acknowledgment of such signatures;
996 INDIAN LAW REPORTS ALLAHABAD SERIES
 (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;

 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 been evolved for dealing
with those cases where the execution of the
will
is
surrounded
by
suspicious
circumstances. It requires to consider
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; sound, certain and disposing state of
mind and memory of the testator at the time
of execution; testator executed the will
while acting on his own free will;

 10.10. One who alleges fraud,
fabrication, undue influence et cetera 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, (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
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."

26. In view of above, proof of Will
stands on a higher degree than any other
instrument. The Will not only is required to
be proved in accordance with Section 68 to
71 of Indian Evidence Act to have been
executed in accordance with Section 63 of
Indian Succession Act but if there are any
suspicious circumstances, whether raised
by the other side or otherwise before the
Court are also required to be clarified or
removed by the propounder of the Will
also, failing which the Will in dispute
cannot be said to be valid and last Will of
the executor. However, the suspicious
5 All. Ambika Prasad @ Ambika Prasad Pandey & Ors. Vs. Shyam Bihari & Ors.
997
circumstances must be 'real, germane and
valid'. Whether a particular feature would
qualify as 'suspicious' would depend on the
facts and circumstances of each case. Any
circumstance raising suspicion legitimate in
nature
would
qualify
as
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. Thus,
merely because the Will Deed is registered,
it will not hold good and valid.

27. Adverting to the facts of the
present case, the Will was executed on
02.11.1998 by father of the parties Ram
Chandra Pandey at the age of 84 years. The
plaintiff-appellants alleged that he was
seriously ill and suffering from heart
disease, diabetes and high blood pressure
for about 7-8 years prior to the date of
execution of the Will,therefore, he was not
in a position to think independently and
understand. There is a dispute in regard to
ailments and physical condition of the
father of the parties because the plaintiffappellants deposed that he was seriously ill
on account of the aforesaid ailments. On
the other hand, the defendant-respondents
have denied. The plaintiff-appellant also
stated that he used to give money to his
brothers for the treatment of his father and
whenever he was at home he used to go
with him to Triyugi Narayan Vaidya in
Sultanpur. However, he could not disclose
the date and time.

28. D.W.1 Bal Krishna Pandey
denied about his ailments, and stated that
no treatment of his father was done,
whereas D.W.2 Tribhuvan Narayan Mishra
stated in his evidence that his maternal
uncle had fell ill several times prior to his
death and on account of old age he had
several diseases. When he used to come to
know about the ailments, he used to go to
see him at his place. He also stated that my
maternal uncle used to read Ramayan after
putting spectacles on his eyes but it is not
so that he could not see or hear. He used to
hear less. Sometimes he had giddiness and
for treatment he used to go to Sultanpur.
His power to think and understand was not
lost. He was fit. The learned trial court,
while considering the above, has recorded
that undisputedly, the photograph of Ram
Chandra Pandey on the Will Deed is
without spectacles, whereas D.W.2 has
admitted that he used to wear spectacles
and he used to hear less. It has further been
recorded that the signatures on the Will
Deed are not uniform, which is not
disputed among the parties,therefore, it
appears that on account of physical
condition, his hands must be shaking and at
the time of execution of Will Deed on
02.11.1998, he was aged about 84 years
and he had fell ill several times prior to his
death and also was not able to hear and see
properly. Thus, it is apparent that at the
time of execution of Will Deed, Ram
Chandra Pandey was not fit physically and
mentally.

29.