# Ghuru & Ors v. Addl. District Magistrate Finance/Revenue Kheri & Ors

- **Citation:** (2023) 3 ILRA 212
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-02-01
- **Case number:** Writ B No. 23043 of 2020
- **Bench:** Saurabh Lavania
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ghuru-ors-v-addl-district-magistrate-finance-revenue-kheri-ors-49948
- **Pages:** 33

## Headnote

A. Civil Law - Will - Indian Succession Act,
1925 - Section 63 - Indian Evidence Act,
1872 - Sections 68, 69, 90 & 90-A - Will -
A Will executed u/s 63 of the Act, 1925
has to be proved, that it was executed, at
least by one of the attesting witnesses u/s
68 - where attesting witnesses of the Will
have died or not available to prove the
execution of the Will, then the alleged Will
is
required
to
be
proved
by
the
handwriting of one of the witnesses of
attesting witnesses and the executant u/s
69 - Onus - onus of proving the Will is on
the propounder - in the absence of
suspicious circumstances surrounding the
execution
of
the
Will,
proof
of
testamentary capacity and signature of
the testator is sufficient to discharge the
onus
-
Where,
there
are
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 - 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 (Para 19, 24, 25, 28)

B. Civil Law - Will - In the instant case,
petitioner
stated
that
Will
dated
26.06.1986 was duly proved by the
witnesses namely Bachchu Lal and Bechan
Lal before the Consolidation Authorities -
Bachchu Lal stated that one Narmatta
brought the Will, before him and after
considering the thump impression of
testator of the Will namely Kishun and
signature of Jagganath (Up-Pradhan) and
thump impression of Tulsiram (Panch), he
put his signature over the Will - Held -
Bachchu Lal cannot be considered as an
atttesting witness of the Will - Bechan
Lal's testimony was found unreliable due
to inconsistencies, such as conflicting
times for when the Will was written and
discrepancies about who purchased the
stamp paper - High Court held that the
petitioners failed to prove the Will before
the Consolidation Officer, as such, their
claim based upon the Will was not
3 All. Ghuru & Ors. Vs. Addl. District Magistrate Finance/Revenue Kheri & Ors.
213
justified - writ petition is dismissed. (Para
34, 35, 36)

Dismissed. (E-5)

List of Cases cited:

## Text

_Characters 0–39,954 of 119,805. This is a partial read: ask again with offset=39954 for what follows._

212 INDIAN LAW REPORTS ALLAHABAD SERIES
maintainable against the order dated
20.02.2020 passed by Nayab Tehsildar,
rejecting the application for amendment,
as such, the order dated 24.11.2020 is
liable to be interfered with. Accordingly,
the order dated 24.11.2020 is set aside.
The matter is remanded back to the
Revisional Authority
to
decide
the
Revision, afresh, on merits, after giving
proper opportunity of hearing to opposite
party no.4-Smt. Shiv Pyari wife of late
Gokaran R/o Village-Purey Valli H/o
Murshidabad
presently
residing
at
Krishna Nagar, Murari ka Bagh, Pargana
& Tehsil Dalmau, District- Rai Bareli, as
early as possible, say within a period of
six months from the date of production of
certified copy of this order, if there is no
other legal impediment in this regard,
without giving unnecessary adjournments
for the purpose of concluding the
proceedings, within the stipulated time.

15. In view of the above, the present
writ petition stands allowed.
----------
(2023) 3 ILRA 212
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 01.02.2023

BEFORE

THE HON'BLE SAURABH LAVANIA, J.

Writ B No. 23043 of 2020

Ghuru & Ors. ...Petitioners
Versus
Addl. District Magistrate Finance/Revenue
Kheri & Ors. ...Respondents

Counsel for the Petitioners:
Ajey Singh

Counsel for the Respondents:
C.S.C.
A. Civil Law - Will - Indian Succession Act,
1925 - Section 63 - Indian Evidence Act,
1872 - Sections 68, 69, 90 & 90-A - Will -
A Will executed u/s 63 of the Act, 1925
has to be proved, that it was executed, at
least by one of the attesting witnesses u/s
68 - where attesting witnesses of the Will
have died or not available to prove the
execution of the Will, then the alleged Will
is
required
to
be
proved
by
the
handwriting of one of the witnesses of
attesting witnesses and the executant u/s
69 - Onus - onus of proving the Will is on
the propounder - in the absence of
suspicious circumstances surrounding the
execution
of
the
Will,
proof
of
testamentary capacity and signature of
the testator is sufficient to discharge the
onus
-
Where,
there
are
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 - 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 (Para 19, 24, 25, 28)

B. Civil Law - Will - In the instant case,
petitioner
stated
that
Will
dated
26.06.1986 was duly proved by the
witnesses namely Bachchu Lal and Bechan
Lal before the Consolidation Authorities -
Bachchu Lal stated that one Narmatta
brought the Will, before him and after
considering the thump impression of
testator of the Will namely Kishun and
signature of Jagganath (Up-Pradhan) and
thump impression of Tulsiram (Panch), he
put his signature over the Will - Held -
Bachchu Lal cannot be considered as an
atttesting witness of the Will - Bechan
Lal's testimony was found unreliable due
to inconsistencies, such as conflicting
times for when the Will was written and
discrepancies about who purchased the
stamp paper - High Court held that the
petitioners failed to prove the Will before
the Consolidation Officer, as such, their
claim based upon the Will was not
3 All. Ghuru & Ors. Vs. Addl. District Magistrate Finance/Revenue Kheri & Ors.
213
justified - writ petition is dismissed. (Para
34, 35, 36)

Dismissed. (E-5)

List of Cases cited:

1. Shashi Kumar 11 Banerjee Vs Subodh Kumar
Banerjee, AIR 1964 SC 529

2.
H.
Venkatachala
Iyengar
Vs
B.N.
Thimmajamma, AIR 1959 SC 443

3. Babu Singh Vs Ram Sahai @ Ram Singh,
(2008) 14 SCC 754

4. Bharpur Singh Vs Shamsher Singh, (2009) 3
SCC 687

5. Jagdeesh Prasad Vs State, 2015 SCC OnLine
Del 14461

6. B. Venkatamuni Vs C.J. Ayodhya Ram Singh,
(2006) 13 SCC 449

7. Santosh Kumar Gupta Vs Harvinder Nath
Gupta, 1996 SCC OnLine All 1325

8. Rabindra Nath Mukherjee Vs Panchanan
Banerjee (dead) by LRs., (1995) 4 SCC 459 :AIR
1995 SC 1684

9. Shivakumar Vs Sharanabasppa, Civil Appeal
No. 6076 of 2009, dt 24.04.2020

10. Raj Kumari & ors. Vs Surinder Pal Sharma
2019 SCC OnLine SC 1747

11. Kavita Kanwar Vs Pamela Mehta reported in
(2021) 11 SCC 209

(Delivered by Hon'ble Saurabh Lavania, J.)

1. Heard Sri Ajey Singh, learned
counsel for the petitioners and Dr.
Krishna Singh, learned counsel for the
State/respondent Nos. 1 to 3 and perused
the record.

2. By means of this petition, the
petitioners have assailed the order(s)
dated
05.09.2012,
12.10.2012
and
16.01.2020 passed by the respondent No.
2/Settlement Officer of Consolidation,
Kheri, District- Kheri and respondent
No. 1/Additional District Magistrate,
Finance and Revenue, Kheri, District-
Kheri.

3. Brief facts of the case are to the
effect that based upon a Will dated
26.06.1986 written by Kishun Goria S/o
Safaru R/o of Village- Jangal Matera,
Pargana
and
Tehsil-
Dhaurahara,
District-
Kheri,
the
name
of
the
petitioners was entered in the revenue
records in compliance of the order dated
05.06.1992 passed by the Tehsildar,
Tehsil- Dhaurahara, District- Kheri on an
application preferred under Section 34 of
U.P. Land Revenue Act, 1901 (in short
"Act of 1901").

4. It would be apt to notice here that
regarding the claim over the property, in
issue, which is the subject matter of Will
dated 26.06.1986, a suit for declaration
under Section 229-B of U.P. Zamidari
Abolition and Land Reforms Act, 1950 (in
short "Act of 1950") was filed and on
account
of
consolidation
proceedings
started in the village concerned, the said
suit was abated. Thereafter, an objection
under Section 9-A(2) of U.P. Consolidation
of Holdings Act, 1953 (in short "Act of
1953") was filed before the respondent No.
3/Consolidation Officer, Kheri, District-
Kheri. The petitioners also appeared before
the respondent No. 3 and raised their claim
over the property, in issue, on the basis of
Will
dated
26.06.1986.
Before
the
respondent No. 3, the objections of the
parties concerned were registered as Case
No. 504 (Surra v. Vidyawati) and 489
(Summat v. Ghuru). Both these cases were
clubbed together and decided by the
214 INDIAN LAW REPORTS ALLAHABAD SERIES
common order dated 21.10.2009. This
order finds favour of the petitioners.

5. Being aggrieved by the order dated
21.10.2009, an Appeal No. 736 of 2009
(Chandrakali v. Ghuru and others) was filed
under Section 11(1) of the Act of 1953. The
Appellate Authority/respondent
No.
2
allowed the appeal vide order, in issue,
dated
05.09.2012.
The
relevant
observations of the Appellate Authority in
the order dated 05.09.2012 on reproduction
reads as under:-

"izLrqr vihy esa mHk; i{kksa dh vksj ls
fn;s x;s rdZ ,oa vihy lfgr voj U;k;ky; dks
i=koyh ds voyksdu ls Li"V gS fd izLrqr vihy
pdcUnh vf/kdkjh ds vkns'k fnukad 21&10&09 ds
fo:) ;ksftr dh x;h gSA iz'uxr vihy ftl
vkjkth ds lEcU/k esa izLrqr dh x;h gS mlds lEcU/k
esa mYys[k djuk gS xzke taxyeVsjk ijxuk o rglhy
/kkSjgjk ds [kkrk la0 70 fd'kqu iq= ld: ds uke
ntZ Fkk rFkk [kkrk la0 71 fd'kqu o efgiky iq=x.k
ld: ds uke ntZ FkkA fd'kqu ds dksbZ iq= ugh FkkA
muds pkj iqf=;ka Fkh fo|korh] lqjkZ] nqjkZ o ujeRrk
FkhA pkjksa iqf=;ksa dh 'kknh fd'ku ds thou dky esa gks
x;h Fkh tks fd mHk; i{kksa dks Lohdkj gSA fd'kuq ds
e`R;q ds mijkUr fd'kqu ds uke ntZ vkjkth ij
rglhy ls i0d0&11 }kjk crkSj okfjl efgiky dk
uke ntZ gqvkA efgiky ds nks ifRu;ka FkhA ,d dk
uke lqEefr o nwljh dk uke pUnzdyh FkkA i0d0&11
esa vkns'k ikfjr gksus ds mijkUr fd'kqu dh iqf=;ksa
ujeRrk o fo|korh }kjk ,d viathd`r olh;r rS;kj
dj rFkk viathd`r olh;r ds vk/kkj ij /kkjk&34
,y0vkj0,DV ds vUrxZr rglhy esa okn ;ksftr
fd;k x;k ftldh tkudkjh efgiky dks ugh gks ldh
rFkk /kkjk&34 esa ikfjr vkns'k ds }kjk fookfnr
vkjkth ij olh;r ds vk/kkj ij efgiky dk uke
fujLr dj fd'kqu ds LFkku ij ?kq: o yYyw iq=x.k
dkerk o fo|korh iRuh lqUnjyky dk uke ntZ fd;k
x;kA ftlds fo:) efgiky us /kkjk&229ch tehankjh
fouk'k ,oa HkwfeO;oLFkk vf/kfu;e ds vUrxZr okn
;ksftr fd;k x;k rFkk nkSjku okn fopkjk/khu jgrs gh
efgiky dh e`R;q gks x;h efgiky dh e`R;q ds mijkUr
efgiky ds LFkku ij izfrLFkkuh fu;qDr fd;s tkus gsrq
fn;s x;s izkFkZuk i= ij efgiky dh nksuksa ifRu;ksa dks
izfrLFkkuh fu;qDr fd;k x;kA ysfdu mijksDr okn ds
fopkjk/khu jgrs rFkk xzke pdcUnh fdz;kvks ds
izdk'ku gsrq xzke vtV gksdj xzke esa pdcUnh fdz;k;sa
izkjEHk gks x;hA xzke esa pdcanh fdz;k;sa izkjEHk gks tkus
ds dkj.k mijksDr okn dks vosV dj fn;k x;k rFkk
nkSjku pdcUnh /kkjk&9 ds izdk'ku ds le;
vihydrkZ o lqEer }kjk ,d okn ;ksftr fd;k x;k
rFkk nwljk okn lqjkZ }kjk ;ksftr fd;k x;k nksuks okn
pdcUnh vf/kdkjh U;k;ky; esa ;ksftr fd;s x;sA
pdcUnh vf/kdkjh U;k;ky; esa mDr nksuks oknks ds
fopkjk/khu jgrs gh okfnuh lqEer dh e`R;q gks x;h
rFkk pdcUnh vf/kdkjh }kjk lqEer ds ckn pUnzdyh
dks izfrLFkkuh fu;qDr fd;k x;kA rFkk rnksijkUr okn
dks iSjokh pUnzdyh }kjk izkjEHk dh x;hA pdcUnh
vf/kdkjh us pUnzdyk o lqjkZ dh vkifRr dks lquokbZ
ds mijkUr vius ikfjr vkns'k esa izLrqr nksukasa
vkifRr;ksa dks fujRr fd;k gS rFkk viathd`rd olh;r
ds vk/kkj ij [kkrk la0 70 jdck 1&329 gs0 esa 4
ch?kk vFkkZr 0&320 gs0 ij fo|korh iq=h fd'kqu dk
uke rFkk 'ks"k vkjkth ds 1@2 Hkkx ij ?kq: o 1@2
Hkkx ij yYyw dk uke ntZ fd;s tkus dk vkns'k fd;k
x;k gS rFkk blh izdkj [kkrk la0 71 esa efgiky e`rd
ds LFkku ij pUnzdyh csok efgiky dk uke crkSj
okfjl ntZ gksus rFkk [kkrs ls ?kq:] yYyw iq=x.k
dkerk o fo|korh iq=h fd'kqu dk uke [kkfjt djds
e`rd fd'kqu ds okfjl ds vk/kkj ij uke ntZ fd;s
tkus lEcU/kh pUnzdyh csok efgiky dks vkifRr fd;k
gSA rFkk [kkrk la0 71 dk foHkktu pdcUnh ckgj Hkwfe
dks NksM+dj ?kq:] yYyw o fo|korh izR;sd 1@8 rFkk
pUnzdyh 1@2 va'k ntZ fd;k gSA blh vkns'k ds
fo:) vihydrkZ pUnzdyh }kjk ;g vihy ;ksftr dh
x;h gSA ftlesa vihydrkZ }kjk viathd`r olhr; dks
tkyh ,oa QthZ dgk tk jgk gS rFkk viathd`r
olh;r ds vk/kkj ij voj U;k;ky; }kjk foi{khx.k
dk uke fookfnr vkjkth ij tks ntZ fd;k x;k gS
mls fujLr dj [kkrk la0 70 o [kkrk la0 71 ij
crkSj okfjl ,oa mRrkjkf/kdkjh viuk uke ntZ djus
dh ekax dh x;h gSA izLrqr vihy esa dh x;h ekax ds
lEcU/k esa voj U;k;y; dks i=koyh o mlesa layXu
vkns'k o layXu olh;r ftlds vk/kkj ij pdcUnh
vf/kdkjh }kjk iz'uxr vkns'k ikfjr fd;k x;k gS ds
voyksdu ls Li"V gS fd ftl olh;r dks voj
U;k;ky; us vk/kkj ij ekudj vkns'k ikfjr fd;k gS
og LVkEi ikWp :i;s dk gS rFkk og LVkEi fnukad
26&6&86 dks ?kq: iq= dkerk ds uke [kjhnk x;k gS
rFkk ;g LVkEi rglhy ukuikjk ftyk cgjkbp ls
[kjhnk x;k gSA rFkk fnukad 26&6&86 dks gh olh;r
fy[ks tkus dk mYys[k gSA ;gka ;g mYys[kuh; gS fd
ftl LVkEi isij ij foi{khx.k }kjk olh;r dks fy[kk
tkuk dgk x;k gS ml ij olh;r 'kCn dk dksbZ
mYys[k ugh fd;k x;k gSA ftl ls ;g Li"V ugha
3 All. Ghuru & Ors. Vs. Addl. District Magistrate Finance/Revenue Kheri & Ors.
215
gksrk fd bl LVkEi isij ij mfYyf[kr ys[kuh olh;r
ds lEcU/k esa fy[kh x;h gS vFkok fdlh vU; mn~ns';
lsA D;ksfd pkgs og LVkEi isij gks ;k dksbZ vU;
dkxt ij tc dksbZ O;fDr olh;r] c;ukek vFkok
vU; fdlh ckcr dksbZ ckr fy[krk gS rks mldk Li"V
mYys[k Åij fd;k tkrk gS ysfdu bl ckor dksbZ
mYys[k LVkWEi isij ugha fd;k x;k gSA ftlls mDr
LVkEi ij olh;r dk fy[kk tkuk Li"V ugha gSA lkFk
gh ;gkW ;g Hkh mfYyf[kr djuk gS fd tc dksbZ
O;fDr eqR;q'k;k ij iM+k gS rks ml l;e og viuh
vkjkth ds lEcU/k esa fdlh dks dSls olh;r@c;ukek
dj ldrk gS D;ksafd ml le; mldh bfUnz;kW LoLF;
voLFkk esa ugh gks ldrh lkFk gh ;gkW ;g Hkh mYys[k
djuk gS fd tc dksbZ O;fDr viuh vkjkth dh
olh;r fdlh ,d O;fDr ds uke fy[krk gS rks og
viuh olh;r esas ftlds i{k esa olh;r fu"ikfnr dh
tk jgh gS mlds vkpj.k o lsok Hkko vkfn dk
mYys[k djrk gS rFkk ftlds i{k esa olh;r ugh
fu"ikfnr dh tkrh gS ;k ftldks viuh vkjkth ls
oafpr fd;k tkrk gS mlesa mlds dk;Z ,oa vkpj.k dk
Hkh mYys[k fd;k tkrk gSA ysfdu fd'ku }kjk tks
olh;r fy[kh x;h gS mlesa mijksDr fdlh ckr dk
dksbZ mYys[k ugha fd;k x;k gSA tcfd fd'kqu dks
pkj iqf=;kW Fkh rFkk buds }kjk dsoy nks gh iqf=;ksa ds
gd esa olhr; dh x;h rFkk nks iqf=;ksa ds gd esa
olh;r D;ksa ugh dh x;h bldk dksbZ mYys[k ugha
fd;k x;k gSA tcfd olh;r esa mDr rF; dk mYys[k
igys gh fd;k tkrk gSA rHkh olh;r Li"V gksrh gSA
;gkW ;g Hkh mYys[kuh; gS fd voj U;k;ky; ds le{k
Lo;a ?kq: ftlds i{k esa olh;r fu"ikfnr dh x;h gS
mlds }kjk gh vius c;ku esa Li"V mfYyf[kr fd;k
x;k gS fd LVkEi isij nks rhu fnu igys eaxk;s x;s
FksA rFkk olh;r fy[ks tkus ds le; og mifLFkr ugha
Fkk og esgekuh esa x;k gqvk FkkA olh;r dc dgkW
fy[kh x;h ekywe ugha esjs }kjk ?kj vkus ij ml ij
gLRkk{kj fd;s x;sA bl lEcU/k esa mYys[k djuk gS fd
Lo;a ?kq: }kjk mfYyf[kr fd;k x;k fd ftl LVkEi
ij olh;r fy[kh x;h og LVkEi nks rhu fnu igys
[kjhnk x;k tcfd ftl ij olh;r fy[kh x;h og
LVkEi fnukad 26&6&86 dks rglhy ukuikjk ftyk
cgjkbp ls [kjhnk x;k gS rFkk ?kq: ds uke ls [kjhnk
x;k gS rFkk mlh fnu ml ij olh;r fy[kh x;h gSA
bl izdkj fd ?kq: }kjk ;g dgk x;k LVkEi nks rhu
fnu igys eaxk;s x;s Fks ;g dFku xyr gSA ysfdu
tc dksbZ O;fDr fdlh O;fDr ds i{k esa olh;r
fu"ikfnr djrk gS rks ml O;fDr dks ml le;
mifLFkr jguk vko';d gSA ysfdu mDr olh;r esa
Lo;a olh;r /kkjd gh vuqifLFkr gSA blls fd'kqu
}kjk dh x;h olh;r vkSfpR;ghu izrhr gksrh gSA lkFk
gh voj U;k;ky; ds le{k cPpw yky iq= c`tyky
fuoklh xzke izrkiiqj }kjk vius fn;s c;ku esa fy[kk
x;k gS fd og o"kZ 1986 esa xzke iz/kku FkkA ujeRrk
,d olh;r esjs ikl ysdj vkbZ Fkh rFkk dgk Fkk fd
olh;r esjs firk us esjs csVksa o cgu fo|korh ds i{k
esa fy[kh x;h gS bls rLnhd dj nksA ujeRrk }kjk
ykbZ xbZ olh;r ij miiz/kku txUukFk dk gLrk{kj
,oa fd'ku dk fu'kkuh vaxwBk o iap rqylhjke dk fu0
vaxwBk igpkurk Fkk ftl dkj.k esjs }kjk gLrk{kj dj
fn;s x;sA lkFk LVkEi [kjhns tkus dk fnukad
26&6&86 ,oa fy[ks tkus dk le; jkf= 10 cts
mfYyf[kr fd;k x;k gSA ysfdu mDr olh;r dks
vius lkeus fy[kus dh ckr ugh adgh x;h gSA bl
lEcU/k esa mYys[kuh; gS fd ?kq: }kjk ;g dgk tk
jgk gS fd LVkEi nks rhu igys [kjhnk x;k rFkk
cPpwyky }kjk mlh fnu fnukad 26&6&86 dks gh
LVkEi [kjhns tkus o fy[ks tkus dh ckr dgh x;hA
tc mDr olh;r cPpw yky ds lkeus ugha fy[kh x;h
rks cPpw yky }kjk ;g dSls dgk tk ldrk fd
olh;r mlh fnu fy[kh x;hA rFkk tgkW rd gLrk{kj
o fu0 vaxwBk igpkuus dk iz'u gS rks dksbZ Hkh O;fDr
,d ckj gLrk{kj dh rks igpku dj ldrk gS ysfdu
fu0 vaxwBk tSlk fd LVkEi isij ij yxk gS ml n'kk
esa ugha dj ldrkA vr% cPpwyky dk ;g dFku fd
muds }kjk gLrk{kj o fu'kkuh vaxwBk igpku dj
gLrk{kj fd;s x;s ;g dFku lUnsg ls ijs ugha dgk
tk ldrkA iz'uxr vkjkth ds lEcU/k esa cspu yky
iq= tks/kk us tks c;ku voj U;k;ky; ds le{k fn;k
gS mlesa mlds }kjk mfYyf[kr fd;k x;k gS fd xzke
iz/kku o mi iz/kku ekStwn Fks rFkk mUgksus vius
gLrk{kj o eksgj yxk;h Fkh tcfd cPpw yky }kjk
olh;r dk fu"ifnu vius lkeus gksuk ugha dgk x;k
gS bl izdkj mijksDr lHkh c;kuksa esa vkil esa
fojks/kkHkkl gSA tgkW rd cspu yky }kjk ;g dgk
x;k fd olh;r fy[kus ds ckn fd'kqu dks i<+dj
lqukbZ xbZ rFkk mlds ckn muds }kjk olh;r ij
fu0vaxwBk yxk;k x;k rFkk olh;r jkf= 10 cts
fy[kh x;hA ;g dFku fcYdqy fujk/kkj izrhr gksrk gS
D;ksafd Lo;a olh;r esa mfYyf[kr fd;k x;k gS
olh;r fu"iknu es le; fd'kqu iq= ld: e`R;q lS;k
ij iM+k Fkk rks tks O;fDr e`R;q lS;k ij iM+k gks rks
og dSls fy[kh gqbZ o lquh gqbZ ckr dks le{k ldrk
gSA tgkW rd olh;r dks jkf= 10 cts fy[kk tkus dk
mYys[k gS rks tks olhr; fu"ikfnr dh x;h gS ml ij
le; lka; 7 cts fy[kk gqvk gSA vr% jkf= 10 cts
dh Hkh ckr iw.kZr% xyr lkfcr gksrh gSA vr% fdlh
olh;r dks fu"ikfnr djkrs le; olh;rdrkZ o
olh;r/kkjd ,oa ys[kd ds lkFk&lkFk nks xokgksa dh
vko';drk gksrh gS tks ml olh;r dh izekf.kdrk dks
216 INDIAN LAW REPORTS ALLAHABAD SERIES
fl) dj ldsA ysfdu iz'uxr vkjkth ds lEcU/k esa
tks olh;r fu"ikfnr dh x;h gS mlesa ys[kd ftyk
cgjkbp dk gS tcfd xzke taxyeVsjk esa Hkh i<+s fy[ks
yksx gksxs rc tuin cgjkbp ls ys[kd dks cqykus dh
vko';drk iM+hA vr% iz'uxr vkjkth ds lEcU/k esa
tks olh;r foi{khx.k }kjk vius i{k esa djkbZ xbZ gS
og ,d lksph le>h jktuhfr ,oa dwV jpku dj QthZ
rkSj ij rS;kj dh x;h izrhr gksrh gSA D;ksafd olh;r
ds gkfl;k xokg o olh;r /kkjd ds }kjk tks c;ku
voj U;k;ky; ds le{k fn;s x;s muesa vkil esa
fojks/kkHkk"k gS rFkk fn;s x;s c;kuksa ,oa LVkEi isij ij
fy[kh olh;r dh ys[kuh ls ;gh Li"V gksrk gS fd tks
olh;r foi{kh }kjk rS;kj dh x;h gS og tkyh ,oa
QthZ gSA ftlds vk/kkj ij foi{khx.k dks vkjkth
futkbZ ij LoR; iznku djuk mfpr ugha gSA voj
U;k;ky; }kjk tks vkns'k fnukad 21&10&2009 dks
ikfjr fd;k x;k gS og Hkh foi{khx.k }kjk izLrqr mDr
viathd`r ,oa QthZ olh;r ds vk/kkj ij ikfjr fd;k
x;k gS tks fLFkj j[ks tkus ;ksX; ugh gSA vihydrkZ
}kjk fd;s x;s dFku ,oa fo}ku vf/koDrk }kjk fn;s
x;s rdZ ls Li"V gS fd vihydrkZ gh fookfnr
vkjkth dh tk;t mRrjkf/kdkjh gSA vr% vihydrkZ
dks fookfnr vkjkth ij LoRo iznku fd;k tkuk mfpr
izrhr gksrk gSA vr% mijksDrkuqlkj izLrqr vihy
Lohdkj fd;s tkus ;ksX; gSA"

6.
Thereafter,
the
petitioners
approached
the
Revisional
Authority/respondent No. 1 under Section
48(1) of the Act of 1953 by means of a
Revision No. 677 of 2014 (Ghuru and
others v. Chandrakali), computerized Case
No. D2014104300677. The Revisional
Authority dismissed the revision vide order
dated 16.01.2020. The relevant portion of
the order dated 16.01.2020 on reproduction
reads as under:-

"iz'uxr okn izdj.k esa eq[; fcUnq ;g gS
fd [kkrsnkj fd'kuq e`rd n~okjk fuxjkuhdrkZx.k ds
gd esa dh x;h viathd`r olh;r fnukad
26&06&1986 fof/kor fl) ekuh tk ldrh gS vFkok
ugha\ bl lEcU/k esa viathd`r olh;r ds ikBu esa
izFke n`"V;k ifjfLFkrtU; lk{; ds :i esa ;g fcUnq
mHkjrk gS fd fd'kqu ds pkj if=;ka Fkh] ysfdu olh;r
esa bl egOoiw.kZ fcUnq dk dksbZ mYys[k ugha fd;k x;k
gS fd fdu dkj.kksa ls fd'kqu us viuh vU; iqf=;ksa dks
vius mRrjkf/kdkj ls oafpr j[kkA ek= ,d ujeRrk ds
nks iq=ksa ,oa ,d iq=h fon~;korh dks viuh lEifRr fn;s
tkus dk mYys[k olh;r esa gS vkSj vU; iqf=;ksa dk
dksbZ mYys[k rd olh;r esa ugh gSA ;g fopkj fcUnq
izFke
n`"V;k
olh;r
dh
fo'oluh;rk
ij
ifjfLFkfrtU; la'k; mRiUu djrk gSA blds vfrfjDr
viathd`r olh;r dks lgh lkfcr djus ds fy,
xokgku ?kw:] cPpw yky] cspu o v'kQhZ ds tks c;ku
djk;s x;s gS] muesa ijLij fojks/kkHkkl gS tks fd
olh;r dks lafnX/k cukrs gSA olh;r ftl LVkEi isij
ij fy[kh x;h gksuk crk;k x;k gS] og LVkEi ftyk
cgjkbp ls fnukad 26-6-1986 dks ?kw: ds n~okjk
[kjhnk x;k] tcfd Lo;a ?kq: ml LVkEi dks olh;r
fy[ks tkus ds fnukad 26&6&1986 ls 2&3 fnu igys
dk [kjhnk tkuk crkrs gSaA ?kq: us olh;r vius lkeus
fy[ks tkus ls Hkh budkj fd;k gS vkSj mlh ds c;ku
vuqlkj ?kq: dks olh;r fu"iknu ds fnu] eghuk ;k
o"kZ dk Hkh laKku ugha gSA blfy;s olh;r ds ckor~
mldh lR;rk ds lEcU/k esa muds n~okjk fn;s x;s
c;ku olh;r fl) ekuus ds fy, fo'oluh; ugha ekus
tk ldrsA vU; xokg cPpw yky iq= c`tyky us Hkh
vius c;ku esa Li"V ekuk gS fd olh;r muds lkeus
ugha fy[kh x;h] cfYd ?kq: o yYyw dh ekrk ujeRrk
olh;r dks fy[kok dj ckn esa mlds ikl ek=
rLnhd djkus ds fy, ysdj vk;h FkhA ;gh cPpw yky
us olh;r vius lkeus fy[kk tkuk dgk FkkA Li"V gS
fd cPpw yky ds gh rglhy Lrj ij ,oa pdcUnh
vf/kdkjh U;k;ky; esa fn;s x;s c;kuks esa ijLij
fojks/kkHkkl gS] blfy;s cPpw yky ds c;ku dks olh;r
dh izekf.kdrk ds fy, Lohdkj ugh fd;k tk ldrkA
tgka ?kq: olh;r ds fy;s LVkEi isij [kjhnk tkuk
olh;r fy[ks tkus ls 2&3 fnu igys crkrs gS] ogh
cPpw yky dk dFku fnukad 26&6&1986 dks gh LVkEi
[kjhns tkus o fy[ks tkus dk gS] tcfd nksuks gh
xokgku vius lkeus olh;r u fy[kk tkuk Lohdkj
djrs gSA ,d vU; xokg cspu yky dk dFku gS fd
cPpw yky ds lkeus olh;r fy[kh x;h Fkh] tcfd
Lo;a cPpw yky n~okjk vius lkeus olh;r fy[ks tkus
ls budkj fd;k x;k gSA cspu yky ds n~okjk c;ku
esa dgk x;k gS fd olh;rdrkZ fd'kqu us muds lkeus
olh;r ij fu'kkuh vaxwBk yxk;k vkSj olh;r mUgs
i<+dj lqukbZ x;h Fkh] ysfdu cspu yky n~okjk
olh;r fd;s tkus dk le; jkr 10 cts crk;k x;k
gS] tcfd olh;r ij le; 7 cts dk gSA blds
vfrfjDr cspu yky us olh;r gsrq LVkEi isij dh
[kjhnkjh Lo;a fd'kqu n~okjk fd;k tkuk crk;k gS]
tcfd LVkEi isij dh [kjhnkjh ij [kjhnus okys dk
uke ?kq: gS] u fd fd'kquA blds vfrfjDr cspu yky
us ?kq: o yYyw ds firk dkerk ls viuh fj'rsnkjh
gksuk Hkh Lohdkj fd;k gS] ftlls Hkh olh;r dks lgh
3 All. Ghuru & Ors. Vs. Addl. District Magistrate Finance/Revenue Kheri & Ors.
217
ekuus ds fy, muds c;ku ek= ij fuHkZj jguk mfpr
ugha gSA viathd`r olh;r ds fy, mldh lR;rk dks
tkuus dk ,d eq[; lw= olh;r ys[kd gksrk gSA
iz'uxr izdj.k esa olh;r ys[kd dks dHkh Hkh fdlh
U;k;ky; ds le{k ijh{k.k ds fy, fuxjkuhdrkZx.k
n~okjk izLrqr ugha fd;k x;k gSA mijksDr foospuk ds
vk/kkj ij eSa bl er dk gwW fd fuxjkuhdrkZx.k ftl
viathd`r olh;r fnukad 26&06&1986 ds vk/kkj ij
iz'uxr Hkwfe ij viuk LoRo lEcU/kh vf/kdkj ekax jgs
gS] ml olh;r dks fl) dj ldus esa vlQy jgs gSA
blfy;s vihyh; U;k;ky; us vius vkns'k fnukad
05&09&2012 ds n~okjk foi{kh pUnzdyh iRuh Lo0
efgiky ds gd esa crkSj okfjl tks vkns'k ikfjr fd;k
gS] mlesa fdlh gLr{ksi dh vko';drk ugha gSA
vihyh; U;k;ky; dk vkns'k fnukad 12&10&2012
ek= Vad.k =qfV dks 'kq) djus dk gS] tks fd lgh gSA
rnkuqlkj iz'uxr fuxjkuh cyghu gksus ls fujLr
fd;s tkus ;ksX; gSA
vkns'k

mijksDrkuqlkj ?kq:] yYyw iq=zx.k dkerk
fuoklhx.k xzke izrkiiqj etjk txy eVsjk o Jherh
fon~;korh iq=h fd'kqu iRuh lqUnj yky fuokfluh xzke
ccqjh n~okjk ;ksftr fuxjkuh fujLr dh tkrh gSA
cUnkscLr vf/kdkjh pdcUnh ds vkns'k fnukad
05&09&2012 o 12&10&2012 dh iqf"V dh tkrh gSA
i=koyh ckn vko';d dk;Zokgh nkf[ky n¶rj gksA"

7. Assailing the orders impugned
dated 05.09.2012 and 16.01.2020, learned
counsel for the petitioners stated that the
claim of the petitioners raised on the
basis of Will dated 26.06.1986 was
considered and allowed by the Revenue
Authority/Tehsildar concerned under the
Act of 1901 vide order dated 05.06.1992
(Annexure No. 6 to this petition) and in
compliance thereof, the name of the
petitioners were recorded in revenue
records. He submitted that before the
Revenue Authority/Tehsildar concerned,
the
Will
dated
26.06.1986,
though
unregistered, was duly proved by the
witnesses namely Bachchu Lal s/o Brijlal
and Bechan Lal and while dealing with
the appeal as also the revision, the
Authorities concerned ignored this aspect
of the case.

8. He further submitted that before
the Consolidation Officer concerned to
prove
the
Will,
the
statement
of
witnesses namely Bachchu Lal s/o
Brijlal and Bechan Lal were recorded
and they proved the Will as required
under the law, however, their statements
were not considered by the respondent
Nos. 1 and 2 while passing the orders
dated 05.09.2012 and 16.01.2020. He
also submitted that the entire case of the
petitioners is based upon the Will dated
26.06.1986, which was proved before
the
Authority
concerned
in
the
proceedings under the Act of 1953, as
such,
claim
of
the
petitioners
is
sustainable and the orders impugned in
this petition are liable to the interfered
with by this Court.

9. Opposing the present petition and
assisting this Court on the issues involved
in this petition, Dr. Krishna Singh, learned
counsel for the State/respondent Nos. 1 to 3
stated that the Will dated 26.06.1986 has to
be proved in view of Indian Evidence Act,
1872 (in short "Act of 1872") and in the
instant case, the Will was not proved as
required under the law.

10. Dr. Singh further stated that
Bachchu Lal before the Consolidation
Authority concerned specifically stated that
one Narmatta brought the Will, in issue,
before him and after considering the thump
impression of testator of the Will namely
Kishun and signature of Jaggannath (UpPradhan)
and
thump
impression
of
Tulsiram (Panch), he put his signature over
the Will. Thus, in this view of the matter,
the alleged witnesses of the Will failed to
prove it, as such, the observations made by
the Consolidation Authorities in the orders
impugned, in issue, dated 05.09.2012 and
16.01.2020 are justified.
218 INDIAN LAW REPORTS ALLAHABAD SERIES

11. He further submitted that the
statement of Bechan Lal before the
Consolidation Officer was also disbelieved
by the Authorities concerned as this witness
was not intact. This witness before the
Consolidation Authority concerned stated
that the Will was written at 10 P.M.,
however, the Will was written at 7 P.M.
Bechan Lal stated that the Will was written
in presence of one Bachchu Lal and
Bachchu Lal stated that the Will was not
written in his presence. Bechan Lal before
the Authority concerned also stated that the
testator of Will namely Kishun himself
purchased the stamp for the Will, however,
the stamp paper itself speaks that it was
purchased by one Ghuru, in whose favour,
the Will was executed by Kishun. Thus, the
testimony of this witness is also not reliable
and being so, the observations of the
Consolidation Authorities in the orders
impugned are justified and are not liable to
be interfered with by this Court.

12. He further stated that Bechan Lal
in his statement stated that the Will was
written in presence of Bachchu Lal and as
per the statement of Bachchu Lal, the Will
was written in presence of Bechan Lal.
Thus, both these witnesses are not truthful
witnesses. For these reasons, the Will was
not proved and the Authority concerned
rightly
interfered
in
the
order
of
Consolidation Officer vide its order dated
05.09.2012 and the revision assailing this
order was rightly dismissed by the
Revisional Authority vide order dated
16.01.2020.

13.
Considered
the
submissions
advanced by the learned counsel for the
parties and perused the records.

14. Before proceeding further, as the
present case is based on the 'Will', this
Court feels it appropriate to refer the
relevant provisions namely Section 63 of
the Indian Succession Act, 1925 (in short
"Act of 1925") and Sections 68, 69, 90 &
90-A of the Act of 1872 being necessary for
the better appreciation, which are extracted
hereasunder:-

The Indian Succession Act, 1925

"S.63. Execution of unprivileged
wills.- Every testator, not being a soldier
employed in an expedition or engaged in
actual warfare, 1 [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 an d by the
direction of the testator, or has received
from
the
testator
a
personal
acknowledgement 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.

The Indian Evidence Act, 1872

"S. 68. Proof of execution of
document required by law to be attested. -
If a document is required by law to be
attested, it shall not be used as evidence
3 All. Ghuru & Ors. Vs. Addl. District Magistrate Finance/Revenue Kheri & Ors.
219
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.]

S. 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.

S.
90.
Presumption
as
to
documents thirty years old. - Where any
document, purporting or proved to be thirty
years old, is produced from any custody
which the Court in the particular case
considers proper, the Court may presume
that the signature and every other part of
such document, which purports to be in the
handwriting of any particular person, is in
that person's handwriting, and, in the case
of a document executed or attested, that it
was duly executed and attested by the
persons by whom it purports to be executed
and attested.

Explanation.- Documents are said
to be in proper custody if they are in the
place in which, and under the care of the
person with whom, they would naturally
be; but no custody is improper if it is
proved to have had a legitimate origin, or if
the circumstances of the particular case are
such as to render such an origin probable.

S.
90A.
Presumption
as
to
electronic records five years old. - Where
any electronic record, purporting or proved
to be five years old, is produced from any
custody which the Court in the particular
case considers proper, the Court may
presume that the 2 [electronic signature]
which purports to be the 2 [electronic
signature] of any particular person was so
affixed by him or any person authorised by
him in this behalf.

Explanation. - Electronic records
are said to be in proper custody if they are
in the place in which, and under the care of
the person with whom, they naturally be;
but no custody is improper if it is proved to
have had a legitimate origin, or the
circumstances of the particular case are
such as to render such an origin probable."

15. Chapter III of Act 1925 is in regard
to the execution of unprivileged Wills.
Section 63 provides the manner in which a
testator shall execute his Will:--

(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 either
of the testator, or the signature of the
person signing for him, shall be placed and
shall appear that it was intended to give
effect to the writing as a Will,

(c) the Will has to be attested by
two or more witnesses, each of whom has
seen the testator sign or affix his mark on
the Will. Further, 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.

16. Thus, the Act of 1925 prescribes
the methodology for execution of a Will.
220 INDIAN LAW REPORTS ALLAHABAD SERIES
The Act of 1872 is a procedural law and
Section(s) 68 and 69 of the Act of 1872
provides for the proof of execution of a
document which is required by law to be
attested.

17. The legislature had prescribed the
procedure for proving the execution of a
Will through an attesting witness. In cases
where the attesting witnesses are not
available, as in the case of death or out of
the jurisdiction of the Court or kept out of
the way by the adverse party or cannot be
traced despite diligence search, the Will is
required to be proved in the manner
provided in Section 69 of the Act of 1872.

18. The law relating to the manner and
onus of proof and also the duty cast upon
the court while dealing with a case based
upon a Will has been examined in
considerable
detail
in
a
catena
of
judgments. The Constitution Bench in
Shashi Kumar Banerjee v. Subodh Kumar
Banerjee, AIR 1964 SC 529, observed as
under:

"The mode of proving a Will
does not ordinarily differ from that of
proving any other document except as to
the special requirement of attestation
prescribed in the case of a Will by Section
63 of the Indian Succession Act. 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 the signature of the testator
as required by law is sufficient to
discharge the onus. Where however there
are suspicious circumstances, the onus is
on the propounder to explain them to the
satisfaction of the court before the court
accepts the Will as genuine. Where the
caveator alleges undue influence, fraud
and coercion, the onus is on him to prove
the same. Even where there are no such
pleas but the circumstances give rise to
doubts, it is for the propounder to satisfy
the
conscience
of
the
court.
The
suspicious circumstances may be as to the
genuineness of the signature of the
testator, the condition 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. In such a case the court would
naturally
expect
that
all
legitimate
suspicion should be completely removed
before the document is accepted as the
last Will of the testator. If the propounder
himself takes part in the execution of the
Will which confers a substantial benefit
on him, that is also a circumstance to be
taken into account, and the propounder is
required to remove the doubts by clear
and
satisfactory
evidence.
If
the
propounder succeeds in removing the
suspicious circumstances the court would
grant probate, even if the Will might be
unnatural and might cut off wholly or in
part near relations."

19. In the cases related to Will, the
Will has to be proved by the propounder
according to principles settled in this
regard, which are no more res-integra and
can be deduced from the judgments
referred hereunder.

20. In the case of H. Venkatachala
Iyengar v. B.N. Thimmajamma, AIR 1959
SC 443, the Hon'ble Supreme Court
enunciated a few fundamental guiding
principles that have consistently been
followed and applied, the synthesis and
exposition of which has been reproduced
hereunder:-
3 All. Ghuru & Ors. Vs. Addl. District Magistrate Finance/Revenue Kheri & Ors.
221

"18. What is the true legal
position in the matter of proof of wills? It is
well known that the proof of wills presents
a recurring topic for decision in courts and
there are a large number of judicial
pronouncements on the subject. The party
propounding a will or otherwise making a
claim under a will is no doubt seeking to
prove a document and, in deciding how it is
to be proved, we must inevitably refer to the
statutory provisions which govern the proof
of documents. S. 67 and 68, Evidence Act
are relevant for this purpose. Under S. 67,
if a document is alleged to be signed by any
person, the signature of the said person
must be proved to be in his handwriting,
and for proving such a handwriting under
Ss. 45 and 47 of the Act the opinions of
experts and of persons acquainted with the
handwriting of the person concerned are
made relevant. Section 68 deals with the
proof of the execution of the document
required by law to be attested; and it
provides that such a document shall not be
used as evidence until one attesting witness
at least has been called for the purpose of
proving its execution. These provisions
prescribe the requirements and the nature
of proof which must be satisfied by the
party who relies on a document in a Court
of law. Similarly, Ss. 59 and 63 of the
Indian Succession Act are also relevant.
Section 59 provides that every person of
sound mind, not being a minor, may dispose
of his property by will and the three
illustrations to this section indicate what is
meant by the expression "a person of sound
mind" in the context. Section 63 requires
that 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 that the signature or mark
shall be so made that it shall appear that it
was intended thereby to give effect to the
writing as a will. This section also requires
that the will shall be attested by two or
more witnesses as prescribed. Thus the
question as to whether the will set up by
the propounder is proved to be the last will
of the testator has to be decided in the
light of these provisions. Has the testator
signed the will? Did he understand the
nature and effect of the dispositions in the
will? Did he put his signature to the will
knowing what it contained? Stated broadly
it is the decision of these questions which
determines the nature of the finding on
the question of the proof of wills. It would
prima facie be true to say that the will has
to be proved like any other document
except as to the special requirements of
attestation prescribed by S. 63 of the Indian
Succession Act. As in the case of proof of
other documents so in the case of proof of
wills it would be idle to expect proof with
mathematical certainty. The test to be
applied would be the usual test of the
satisfaction of the prudent mind in such
matters.

 19.
However, there is one important feature
which distinguishes wills from other
documents. Unlike other documents the will
speaks from the death of the testator, and
so, when it is propounded or produced
before a Court, the testator who has
already departed the world cannot say
whether it is his will or not; and this aspect
naturally
introduces
an
element
of
solemnity in the decision of the question as
to whether the document propounded is
proved to be the last will and testament of
the departed testator. Even so, in dealing
with the proof of wills the Court will start
on the same enquiry as in the case of the
proof of documents. The propounder would
be called upon to show by satisfactory
evidence that the will was signed by the
testator, that the testator at the relevant
time was in a sound and disposing state of
222 INDIAN LAW REPORTS ALLAHABAD SERIES
mind, that he understood the nature and
effect of the dispositions and put his
signature to the document of his own free
will. Ordinarily when the evidence adduced
in support of the will is disinterested,
satisfactory and sufficient to prove the
sound and disposing state of the testator's
mind and his signature as required by law,
Courts would be justified in making a
finding in favour of the propounder. In
other words, the onus on the propounder
can be taken to be discharged on proof of
the essential facts just indicated.
***

22. It is obvious that for
deciding material questions of fact which
arise in applications for probate or in
actions on wills, no hard and fast or
inflexible rules can be laid down for the
appreciation of the evidence. It may,
however, be stated generally that a
propounder of the will has to prove the
due and valid execution of the will and
that
if
there
are
any
suspicious
circumstances surrounding the execution
of the will the propounder must remove
the said suspicions from the mind of the
Court
by
cogent
and
satisfactory
evidence..."

21. The Supreme Court in Babu Singh
v. Ram Sahai @ Ram Singh, (2008) 14 SCC
754 had the occasion to consider the effect
of Sections 68 and 69 of the Act of 1872.
Relevant paras 17 and 18 are extracted
hereasunder:-

"17. It would apply, inter alia, in a
case where the attesting witness is either
dead or out of the jurisdiction of the court
or kept out of the way by the adverse party
or cannot be traced despite diligent search.
Only in that event, the Will may be proved
in the manner indicated in Section 69, i.e.,
by examining witnesses who were able to
prove the handwriting of the testator or
executant. The burden of proof then may be
shifted to others.

18. Whereas, however, a Will
ordinarily must be proved keeping in view
the provisions of Section 63 of the Indian
Succession Act and Section 68 of the Act,
in the event the ingredients thereof, as
noticed hereinbefore, are brought on
record, strict proof of execution and
attestation
stands
relaxed.
However,
signature and handwriting, as contemplated
in Section 69, must be proved."

22. The Apex Court in Bharpur Singh
v. Shamsher Singh, (2009) 3 SCC 687, held
that in case, the provisions of Section 68 of
the Act 1872 could not be complied with,
then the other provisions contained therein,
namely, Section 69 and 70 would be
attracted.