# Juggi Lal v. Guru Prasad

- **Citation:** (2025) 2 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-02-28
- **Case number:** Second Appeal No. 42 of 2013
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/juggi-lal-v-guru-prasad-53002
- **Pages:** 14

## Headnote

Sampurnanand
Shukla,
Ashok
Kumar
Bhatnagar, Suresh Singh

Civil Law - Code of Civil Procedure, 1908 -
Order 41 - Rule 31 - Registration Act,
1908 - Sections 34 & 35 - A plea has been
taken if Will was executed on basis of
fraud, father of plaintiff-respondent could
have told about it before Registering
Authority in enquiry - Not taken before
Courts below - No evidence has been
adduced and pointed out by appellant -
D.W.2, witness of Will not given any
evidence
of
registration
of
Will
or
presentation of father of respondent
before registering authority and as per
endorsement on Will, executor has been
identified by D.W.2 and Patandeen - Thus,
misconceived, not tenable. (Para 25)
Perusal of judgment passed by lower
appellate court indicates no points of
determination have been framed but all 7
issues framed by trial court considered
separately
and
independent
findings
recorded
after
considering
pleadings,
evidence
and
material
on
record
-
Substantial compliance of rule - Findings
recorded
by
courts
below
regarding
parentage of respondent and fraud in
execution of Will are based on evidence on
record, does not suffer from any illegality.
(Para 27, 31)

Appeal dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,873 of 48,706. This is a partial read: ask again with offset=39873 for what follows._

48 INDIAN LAW REPORTS ALLAHABAD SERIES
(2025) 2 ILRA 48
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 28.02.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 42 of 2013

Juggi Lal ...Appellant
Versus
Guru Prasad ...Respondent

Counsel for the Appellant:
Ved Prakash Misra, Anuj Pandey, Nishant
Shukla, Vijay Krishna

Counsel for the Respondent:
Sampurnanand
Shukla,
Ashok
Kumar
Bhatnagar, Suresh Singh

Civil Law - Code of Civil Procedure, 1908 -
Order 41 - Rule 31 - Registration Act,
1908 - Sections 34 & 35 - A plea has been
taken if Will was executed on basis of
fraud, father of plaintiff-respondent could
have told about it before Registering
Authority in enquiry - Not taken before
Courts below - No evidence has been
adduced and pointed out by appellant -
D.W.2, witness of Will not given any
evidence
of
registration
of
Will
or
presentation of father of respondent
before registering authority and as per
endorsement on Will, executor has been
identified by D.W.2 and Patandeen - Thus,
misconceived, not tenable. (Para 25)
Perusal of judgment passed by lower
appellate court indicates no points of
determination have been framed but all 7
issues framed by trial court considered
separately
and
independent
findings
recorded
after
considering
pleadings,
evidence
and
material
on
record
-
Substantial compliance of rule - Findings
recorded
by
courts
below
regarding
parentage of respondent and fraud in
execution of Will are based on evidence on
record, does not suffer from any illegality.
(Para 27, 31)

Appeal dismissed. (E-13)

List of Cases cited:

1. Mrugendra Indravadan Mehta & ors. Vs
Ahemdabad Muncipal Corporation; (2024) 6
S.C.R. 594, (Para 30)

2. Badri & ors. Vs Jata Shankar & anr., Second
Appeal No.162 of 2011, order dated 03.02.2020

3. Dhannulal & ors. Vs Ganeshram & anr.;
2015(12) SCC 301, (Para 19)

4. Meena Pradhan Vs Kamla Pradhan & anr.;
2023 9 SCC 734, (Paras 10, 11)

5. Suryakunwari Vs Nanhu & ors.; 2019(37) LCD
2346, (Paras 11 to 16)
(Delivered by Hon'ble Rajnish Kumar, J.)

1. Heard Sri Vijay Krishna,learned
counsel for the defendant-appellant and Sri
Ashok Kumar Bhatnagar, learned counsel
for the plaintiff-respondent.

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 23.01.1984 pased in Regular Suit
No.197/91(Guru Prasad versus Juggi Lal)
by the 6th Additional Munsif,Faizabad(now
Ayodhya) and judgment and decree dated
04.01.2013
passed
in
Civil
Appeal
No.044/1984(Juggi
Lal
versus
Guru
Prasad) by the Additional District Judge,
Court No.5,Faizabad(now Ayodhya).

3.
The
following
substantial
question of law has been formulated in this
appeal by means of the order dated
04.02.2013:-
2 All. Juggi Lal Vs. Guru Prasad
49
 "Whether the finding recorded by
courts below, regarding parentage of
plaintiff and also regarding fraud in
execution of Will, is against the evidence
on record and perverse."

4.
Learned
counsel
for
the
appellant submitted that the plaintiffrespondent is the son of Mata Dei and her
previous husband(Chhedi). The evidence to
this
effect
was
adduced
i.e.
Birth
Certificate
and
Pariwar
Register
of
plaintiff-respondent
but
without
considering it and relying on the evidence
of the plaintiff-respondent who was an
interested witness, the finding has been
recorded that the plaintiff-respondent Guru
Prasad was the son of Lodhe and Mata Dei.
He had also argued that in the villages, the
villagers have a tendency of taking Gaza
and Liquor, therefore, merely because
Lodhe was taking liquor, it cannot be said
that the Will Deed was got executed in it's
influence. He further submitted that the
allegation that the Will Deed was got
executed by the defendant-appellant in
collusion with the attesting witnesses of the
Will in a fraudulent manner is not
sustainable for the reason that the Will has
been proved by one of the attesting witness
of the Will but the learned courts' below
without considering that in case Will was
being got executed in a fraudulent manner,
Lodhe who had executed the Will, would
have stated the same before the registering
authority in the enquiry under Section 34
and 35 of the Registration Act. He
further submitted that the provisions of
Order 41 Rule 31 CPC have been
violated and the points of determination
have
not
been
framed.
Thus,the
submission
is
that
the
impugned
judgment and decrees passed by the
courts below are not sustainable in the
eyes of law and liable to be set aside.
5. Per contra, learned counsel for
the plaintiff-respondent submitted that
Lodhe was the father of the plaintiffrespondent Guru Prasad and to prove it, the
High School certificate of Guru Prasad and
Caste Certificate with parentage of Lodhe
were filed and no cogent evidence contrary
to it could be produced. The letters written
by the father of the plaintiff-respondent
Lodhe have also been placed on record, in
which he has addressed the plaintiffrespondent as his son. The money order
receipts showing the money sent by the
plaintiff-respondent to his father Lodhe
were also placed on record. Thus, there is
ample evidence to show that the plaintiffrespondent was the real son of Lodhe and
Mata Dei. He further submitted that the
doubt has been tried to be created by filing
a copy of the Pariwar Register showing
parentage as Chhedi, which has been
signed by the same Gram Pradhan who had
signed the Caste Certificate of the plaintiffrespondent showing the father's name
Lodhe but he has not been produced to
prove the same. Thus, the submission was
that the plaintiff-respondent is the son of
the deceased Lodhe and the findings have
been rightly recorded by the courts below
in regard to the parentage of the plaintiffrespondent, which are not contrary to the
evidence on record and there is no
perversity in it. He further submitted that it
has been proved that the Will was got
executed by defendant-appellant, who was
confident of Lodhe being son of his sister,
who used to look after Lodhe in absence of
the plaintiff-respondent as he was in
service and out. The courts below have
recorded a finding for setting aside the Will
executed in favour of the defendantappellant on the basis of cogent evidence
on record and considering the evidence of
both the parties and there is no illegality or
perversity in it.
50 INDIAN LAW REPORTS ALLAHABAD SERIES
6. So far as the plea of Section 34
and 35 of Registration Act is concerned, it
has been submitted that this plea was not
taken before the courts below, therefore, it
cannot be developed at this stage without
any
evidence,
hence
it
cannot
be
considered. He lastly submitted that merely
because the points of determination have
not been framed by the lower appellate
court, the judgment passed by it cannot be
said to be in violation of Order 41 Rule 31
CPC because all the issues involved in the
case have been considered by the lower
appellate court and findings have been
recorded on the basis of pleadings,
evidence and material on record. In this
regard he relies on judgment of the Hon'ble
Supreme Court in the case of Mrugendra
Indravadan Mehta and others versus
Ahemdabad Muncipal Corporation;(2024)
6 S.C.R. 594 and judgment and order
dated 03.02.2020 passed by this Court in
Second Appeal No.162 of 2011;Badri and
others versus Jata Shankar and Another.

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

8.The suit for cancellation of Will
Deed dated 19.09.1980 executed by Lodhe
in favour of the defendant-appellant was
filed by the plaintiff-respondent alleging
therein
that
he
is
the
only
legal
heir/representative of deceased Lodhe and
owner and in possession of his all movable
and immovable properties. He is resident of
Village Chakwara, Pargana Magalsi, Tehsil
and
District
Faizabad.
The plaintiffrespondent is in Central Government
Service in PP office GPO on the post of
UDC for the last 9 years. The defendantappellant is cousin(fufera bhai) of the
plaintiff-respondent and real brother-inlaw(Sadhu) of the plaintiff-respondent who
is permanent resident of Village Chakwara,
Pargana Magalsi, Tehsil and District
Faizabad. The father of the plaintiffrespondent had married twice i.e. to Smt.
Durpata(who has died) and Smt. Mata Dei
i.e. mother of the plaintiff-respondent. The
plaintiff-respondent is the son of Lodhe and
Smt. Mata Dei. Lodhe died on 08.10.1980.
The father of the plaintiff-respondent was
an illiterate and rustic man and habitual of
taking liquor. He was ill for the last 4-5
years prior to his death. Lodhe loved the
plaintiff-respondent since beginning. There
is a real sister Phoola of the plaintiffrespondent, who was also born from Lodhe
and Mata Dei. The defendant-appellant,
being the close relative, used to come to
their house. The plaintiff-respondent being
in government service was posted out and
used to send money to his father Lodhe.
Lodhe was seriously ill for the last 1 year
prior to his death on account of age, bad
health and taking liquor. He was unable to
understand things and came under the
influence
of
defendant-appellant.
The
defendant-appellant had informed about his
serious illness on the death of Lodhe to the
plaintiff-respondent.
The
defendantappellant gave an application for mutation
in the court of Consolidation Officer, Sadar
Faizabad after some time of death of the
father of the plaintiff-respondent. Then he
came to know that the defendant-appellant
has got the Will deed executed from his
father without his knowledge or by
impersonation by some other person. The
Will Deed has been got executed by undue
influence and deceiving by the defendantappellant. The father of the plaintiffrespondent had lost capacity to understand
things and he was seriously ill for the last
one year. The Will deed is against the
nature. The Will has been got executed by
defendant-appellant
in
collusion
with
Patandeen and Santram. The father of the
2 All. Juggi Lal Vs. Guru Prasad
51
plaintiff-respondent has not executed the
Will with his free Will. Both the wives of
the father of the plaintiff-respondent were
alive at the time of execution of Will,
therefore, there was no occasion to execute
the Will and no justification has also been
given for not keeping anything for them
and even they have not been referred in the
Will. Thus, the Will Deed is liable to be set
aside.

9. The suit for cancellation of Will
Deed was contested by the defendantappellant by filing written statement denying
the averments made in the plaint. It was stated
in the written statement that the plaintiffrespondent is not the son of Lodhe. Lodhe had
illicit relation with Smt. Mata Dei, therefore,
he had kept her. The plaintiff-respondent was
born from Mata Dei and Chhedi. They had
also a girl Phoola. During lifetime of
Chhedi, Mata Dei had come to the house of
Lodhe with plaintiff-respondent and Phoola.
Lodhe had confidence in the defendantappellant as he used to look after him,
therefore, before his death he had executed
the Will of his movable and immovable
properties on 19.09.1980 in favour of
defendant-appellant, which was executed by
him with his free will. There was no fraud in
it. The defendant-appellant had done the
cremation of Lodhe as the plaintiffrespondent
was
in
other
state.
The
defendant-appellant is in possession of the
properties of Lodhe. The Court has no
jurisdiction to try the suit and it is barred by
Section 331 of the U.P. Zamindari Abolition
and Land Reforms Act and it is liable to be
abated under Section 5 of the Consolidation
Act. Thus, the suit is liable to be dismissed.

10. After considering the pleadings
of the parties, seven issues were framed by
the trial court, which are extracted
hereinbelow:
"1%& D;k okn i= dh /kkjk 15 esa
esa vfHkdfFkr vk/kkjksa ds vk/kkj ij
olh;rukek fnukafdr 19-9-80 voS/k gS vkSj
fujLr gksus ;ksX; gSA

2%& D;k oknh fookfnr lEifRr dk Lokeh
gS tSlk fd okn&i= esa vfHkdfFkr gSA

3%& D;k oknh e`rd yks/ks dk iq= ugha gS]
tSlk fd izfrokn i= dh धारा 20 esa vfHkdfFkr fd;k
x;k gSA

4%& D;k okn /kkjk 331 tehankjh fouk'k
vf/kfu;e ls ckf/kr gSA

5%& D;k okn /kkjk 5 pdcUnh vf/kfu;e
ds vUrxZRk vcsV gksus ;ksX; gSA

6%& D;k okn dk EkwY;kadu de fd;k x;k
gS vkSj U;k; 'kqYd vi;kZIRk vnk fd;k x;k gSA

7%& oknh fdl mi'ke dks ikus dk
vf/kdkjh gSA"

11. Thereafter after oral as well as
documentary evidence adduced by the
parties, the suit was decreed by the trial
court by means of the judgment and decree
dated 13.01.1984. Being aggrieved, the
civil appeal was filed by the defendantappellant, which has been dismissed by the
lower appellate court. Hence this second
appeal has been filed, which has been
admitted on the aforesaid substantial
question of law.

12. The learned trial court dealt
with the issue no.3 first, which is as to
whether the plaintiff-respondent is the son
of Lodhe or not as has been stated in
paragraph 20 of the written statement.
While considering the issue, the trial court
considered the pleadings,evidence and
material placed on record by the parties.
The trial court has recorded that D.W.1
Juggi Lal i.e. defendant-appellant who has
got himself examined in evidence is of 25
years,therefore, he could not prove as to
when Guru Prasad was born. D.W.2
Santram has stated in his evidence that he
does not know as to when Guru Prasad was
born. However, he stated that Mata Dei had
52 INDIAN LAW REPORTS ALLAHABAD SERIES
come to the house of Lodhe 35 years ago
and the age of Phoola is 20-22 years. Thus
Smt. Phoola was born from Smt. Mata Dei
and Lodhe and from the evidence of this
witness, it is apparent that Guru Prasad was
son of Lodhe because the age of Guru
Prasad is also 35 years and it is not the case
of the defendant-appellant that Mata Dei
had any relationship with her earlier
husband after coming to the house of the
Lodhe. D.W.3 Ram Raj has stated that he
does not know as to when Guru Prasad was
born and how much Phoola is younger
from Guru Prasad. He also could not tell
about the birth of both. However, he has
stated that after 3-4 years of coming of
Mata Dei to the house of Lodhe, zamindari
was broken. Thus Mata Dei must have
come to the house of Lodhe in the year
1947-48. Thus from the evidence of this
witness also, it is proved that Guru Prasad
and Phoola are children of Lodhe and the
statement of D.W.2 that Guru Prasad and
Phoola were born in Village Shekhpur is
false because the age of Phoola is 20-22
years and as per evidence of defendantappellant Smt. Mata Dei had come to the
house of the father of the plaintiffrespondent about 35 years back. The
plaintiff-respondent has produced the High
School
certificate
of
High
School
Examination 1966, in which the parentage
of Guru Prasad has been mentioned as
Lodhe and date of birth of Guru Prasad is
15.08.1948. The transfer certificate of
Uchtar Madhyamik Vidyalaya, Faizabad
has also been produced, in which also in
the column of name of the father of the
plaintiff-respondent, Lodhe is mentioned.
In the Caste Certificate dated 09.12.1968
issued by the District Magistrate also, the
name of the father of the Guru Prasad,
Lodhe is mentioned. No contrary evidence
could be adduced by the defendantappellant and these documents also indicate
that Lodhe has never denied that plaintiffrespondent was his son. The defendantappellant in support of his contention
placed on record copy of the Pariwar
Register dated 25.11.1980 to show that
Guru Prasad was the son of Chhedi but it
not believable because it has been obtained
in the year 1980 and it has been issued by
the signature of Gram Pradhan Ram
Dularey, whereas the same Gram Pradhan
had signed the Caste Certificate dated
09.12.1968 showing the parentage of
plaintiff-respondent as Lodhe. Therefore
this document has been got prepared only
for the purpose of the case.

13. The learned trial court has
further recorded that Lodhe has admitted
Smt. Mata Dei as his wife because in the
copy of the voter list produced by the
defendant-appellant, Lodhe is mentioned as
husband of Mata Dei and since this
document has been produced by the
defendant-appellant, he cannot deny the
same and that Smt. Mata Dei is not wife of
Lodhe.
The
defendant-appellant
by
producing copy of the birth certificate of
the year 1944 of Mauja Shekhapur, Police
Station Ronahi has tried to prove that the
plaintiff-respondent was son of Chhedi as
the son was born to Chhedi in the year
1944 but the defendant-appellant has not
denied the age of the plaintiff-respondent to
be 33 years in his written statement, which
has been shown by him in his plaint.
Therefore the same does not match with the
age of the plaintiff-respondent and it cannot
be proof of the birth of the plaintiffrespondent. Besides it, D.W.1 Juggi Lal i.e.
defendant-appellant has admitted in his
evidence that he had sent telegram i.e.
Paper No.59(Ga) to plaintiff-respondent
indicating the illness of Lodhe so that he
may not fear. This telegram was sent after
the death of Lodhe. Consequently it can be
2 All. Juggi Lal Vs. Guru Prasad
53
inferred that at the time of sending the
telegram it was in the mind of D.W.1 i.e.
Juggi Lal that being son of Lodhe, the
plaintiff-respondent may not loose his
mental balance upon hearing the death of
his father and if it was known to the
defendant-appellant
that
plaintiffrespondent is not the son of Lodhe, then he
would not have any hesitation in sending
the telegram of death of Lodhe. Thus it is
proved that the plaintiff-respondent is the
son of the deceased Lodhe.

14. The lower appellate court, after
considering the aforesaid findings as
recorded by the trial court and the evidence
of
PW1,P.W.2,P.W.3,P.W.4
and
D.W.1,D.W.2
and
D.W.3
and
the
documentary evidence placed on record by
the
plaintiff-respondent
alongwith
list
26(Ga) which includes the inland letters,
post cards, receipts of money order,
marksheet of Class 9, appointment letter,
pumping set receipts, school leaving
certificate etc., Paper No.28(Ga) format 4
in which the owner of House No.637 has
been mentioned Lodhe son of Narayan,
Smt.Durpata and Smt.Mata Dei wife of
Lodhe, Paper No.51 (Ga), the receipt of
telegram which was sent by Juggi Lal to
Guru Prasad in which it is mentioned that
the health of maternal uncle is serious come
soon, Paper No.55(Ga) to 58(Ga) and
64(Ga) and 73(Ga) i.e. the inland letters
which have been written by Lodhe to Guru
Prasad addressing him as his son, Paper
No.73(Ga) i.e. the appointment letter of
Guru Prasad son of Lodhe in the office of
Zila Parishad Faizabad, Paper No.75(Ga)
leaving certificate mentioning Guru Prasad
as son of Lodhe, has recorded the findings.
It has also been recorded that the plaintiffrespondent has also placed on record
original
certificate
of
High
School
Examination 1966, Leaving certificate
alongwith List 126 (Ga) and Caste
Certificate as 129(Ga), which all shows that
father of the plaintiff-respondent was
Lodhe. Considering the evidence of P.W.1
to P.W.4, finding has also been recorded by
the lower appellate court that plaintiffrespondent Guru Prasad is son of Lodhe
because his mother Mata Dei has came
back to his maika after his gauna after one
year leaving the house of Chhedi and
Lodhe brought her from his maika to his
house Pilkhawa, where Guru Prasad and
Phoola were born from them. Thus after
considering the pleadings, evidence and
material on record the trial court as well as
appellate court have recorded a finding
regarding parentage of plaintiff-respondent
that Lodhe was the father of plaintiffrespondent, who was born from Lodhe and
Mata Dei.

15.
The
trial
court,
while
considering the issue no.1 as to whether the
Will Deed dated 19.09.1980 is legal and
liable to be set aside on the grounds
mentioned in paragraph 15, considered the
oral as well as documentary evidence
adduced by the parties. Learned trial court,
considered the evidence of witnesses and
documentary
evidence.
P.W.1
Guru
Prasad,who has stated that he is son of
deceased Lodhe and working as clerk in
GPO Allahabad. He has also stated that he
always used to send money for the
treatment of his father and also made
correspondence with him being his father.
He has also stated that the defendantappellant Juggi Lal is his brother-in-law
and son of his bua who used to come to his
house. He has also stated that when the
plaintiff-respondent was posted in Tehri
Garhwal he has told the defendantappellant to look after his father. His father
was illiterate and rustic person to whom he
used to send the money. P.W.2 has stated in
54 INDIAN LAW REPORTS ALLAHABAD SERIES
his evidence that Lodhe had got the
plaintiff-respondent educated and when he
started job he used to send money to him.
He has also stated that Lodhe was happy
with his son Guru Prasad. Mata Dei mother
of the plaintiff-respondent has appeared as
P.W.3. She also admitted in his evidence
that after employment of Guru Prasad he
used to send money to her husband for his
treatment. She has also stated that Lodhe
was ill for the last one year prior to his
death.
P.W.4
Ranjit
Prasad
Mishra
supported the evidence of P.W.1 Guru
Prasad and stated that Guru Prasad used to
send money to Lodhe. D.W.1 Juggi Lal i.e.
the defendant-appellant also admitted in his
evidence that plaintiff-respondent Guru
Prasad used to send money to Lodhe.
D.W.2 Santram stated in his evidence that
Guru Prasad lived with Lodhe since
beginning. Lodhe got him educated and
married him. He also stated that on saying
of Lodhe,he used to write letter to Guru
Prasad. He also admitted that Guru Prasad
used to send money to Lodhe. Thus it is
proved that there were no differences
between the plaintiff-respondent and his
father deceased Lodhe.

16. It has also been recorded that
D.W.2 Santram admitted that letters placed
on record as Paper No.27(Ga), 57(Ga),
58(Ga) and 59(Ga) are the letters written by
him on the saying of Lodhe and Mata Dei.
He
also
admitted
that
Paper
No.34(Ga),46(Ga) and 49(Ga) have been
written by him. Paper No.30(Ga) is the
receipt of money order which indicates that
Rs.100 was send by Guru Prasad to Lodhe
in the year July 1973. Similarly 31(Ga) to
50(Ga) are the receipts of money order,
which were sent by Guru Prasad to
deceased Lodhe from time to time. The
defendant-appellant has not stated in his
written statement that there were any
differences between deceased Lodhe with
his wife Durpata and Mata Dei and his son
Guru Prasad. Thus, it is apparent that the
plaintiff-respondent admittedly lived with
his father deceased Lodhe and admittedly
Mata Dei and Durpata are the wives of
Lodhe and it is also proved from evidence
on record that deceased Lodhe has
confidence on Smt. Durpata, Smt.Mata Dei
and Guru Prasad. In these circumstances
there was no question for execution of Will
on 19.09.1980 in the life time of deceased
Lodhe, particularly when at the time of
death of Lodhe his wives Durpata and Mata
Dei were alive. In these circumstances
execution of Will in dispute by the
deceased Lodhe creates a doubt. It is also
strange that wives of Lodhe Smt. Durpata
and Smt.Mata Dei have no knowledge of
the Will.

17. The learned trial court, after
considering
the
evidence
of
P.W.1,
P.W.2,P.W.3, P.W.4, D.W.1,D.W.2 and
D.W.3 in which prosecution witnesses
admitted that the deceased was ill for the
last one year prior to his death and P.W.3
Mata Dei, who has stated that Lodhe was a
patient of asthma(dama) and P.W.4 Ranjit
Prasad Mishra, who stated that the
deceased Lodhe had come for Gaudan 8
days prior to his death and also supported
the evidence of other prosecution witnesses
in regard to his illness prior to his death and
that there is contradiction in evidence of
D.W.1 and D.W.2 because D.W.1 Juggi
Lal stated that the deceased Lodhe was not
ill and he died suddenly, whereas D.W.2
Santram has stated in his evidence that he
was ill for the last one week prior to his
death and he was a patient of heart and he
has also stated that he was not in a
condition to even walk since 4-5 days prior
to his death, recorded a finding that it is
proved that the deceased Lodhe was ill
2 All. Juggi Lal Vs. Guru Prasad
55
prior to his death. He was seriously ill and
had lost his capacity to understand things.
Thereafter, after considering the evidence
of P.W.1, P.W.2 and D.W.2 trial court has
recorded a finding that Lodhe was fond of
taking liquor,which is not disputed by
learned counsel for the appellant before this
Court as he has stated that villagers used to
take ganza and liquor. Thus execution of
Will during lifetime of his wives, son and
daughter in favour of the defendantappellant creates a doubt and suspicion in
it's execution, particularly when he was ill
and was an illiterate and rustic person.
Thus the Will Deed was got executed by
deceiving the deceased Lodhe.

18. It has also been recorded that
D.W.1 Juggi Lal has also admitted that
Durpata lived in the house of Lodhe till his
death and he also admitted that Mata Dei
was living in the house since prior to his
memory. D.W.2 Santram has also admitted
in his evidence that the defendant-appellant
Juggi Lal lived in Village Chakwara. Thus
it is also not proved that he used to look
after Lodhe and Lodhe was happy with
him. Thus the trial court has recorded a
finding that there was no justification of
writing Will in dispute by Lodhe with his
free Will and consent.

19. Learned lower appellate court,
while considering the aforesaid issue,
considered the aforesaid evidence of parties
and recorded a finding that defendantappellant was nephew(Bhanja) of Lodhe
and was in a position to govern the Will of
Lodhe. The lower appellate court, after
considering the evidence of D.W.1, has
recorded that he has admitted in his cross
examination that he has mentioned the
illness of Lodhe in the telegram so that
Guru Prasad may not become afraid of it.
He has also stated that before two days of
Will he had gone to village Chakwara and
came back after two days of execution of
Will. D.W.2 admitted in his evidence that
Lodhe died after 19 days of execution of
Will and he admitted in his evidence that
Juggi Lal used to live in Chakwara. The
lower appellate court, after considering the
pleadings, evidence and material on record,
recorded
a
finding
that
there
is
contradiction in evidence of D.W.1 and
D.W.2 in regard to illness of Lodhe
because D.W.1 stated that he was not ill at
time of his death, whereas D.W.2 has stated
that Lodhe was ill for the last one year prior
to his death and he was patient of heart. His
evidence is supported by evidence of P.W.3
Mata Dei, who stated that Lodhe was
patient of Dama(Asthma). She has also
admitted sending of money order by Guru
Prasad to Lodhe. D.W.1 i.e. defendantappellant Juggi Lal has also admitted that
when Guru Prasad used to come to his
house Pilkhawa,he used to give money to
Lodhe. He has also admitted that at the
time of death of Lodhe his wives Smt.
Durpata and Smt.Mata Dei were alive and
since Lodhe was ill he used to come to his
house. He also admitted that at the time of
death Lodhe was very old. Considering it, a
finding has
been
recorded
that
the
defendant-appellant Juggi Lal was in a
position to govern the wishes of Lodhe.

20. The learned lower appellate
court also recorded a finding that D.W.3
Santram has been found to be habitual of
giving evidence as he was a witness in the
Will of Budhram and hibanama and a sale
deed. The learned lower appellate court has
also recorded a finding that as per evidence
both the wives of Lodhe were alive at the
time of his death but no provision has been
made by him for their livelihood in the
Will. Thus, the Will in question is an
outcome of undue influence and got
56 INDIAN LAW REPORTS ALLAHABAD SERIES
executed on account of his incapacity to
think and understand the things on account
of illness and deliberately there is no
reference of both the wives in the Will.

21. This Court while considering
the aforesaid findings recorded by the
courts below and the pleadings, evidence
adduced and material on record does not
find any illegality or error in the impugned
judgment and decrees passed by the courts
below and that the findings have been
recorded by the courts below regarding
parentage of plaintiff and regarding fraud
in execution of Will, after considering the
pleadings, evidence and material on record
and the same are not against the evidence
on record. Therefore it cannot be said that
the findings recorded by the courts below
are perverse in any manner.

22. This Court also is unable to
comprehend as to how a man would
exclude his wives in the Will, with whom
he had no differences, that too without any
reference if he had any grudge or
differences with them, if he was executing
the Will in conscious state of mind with his
free will and consent. Despite disclosure of
the
suspicious
circumstances
by
the
plaintiff-respondent, no evidence has been
adduced by the defendant-appellant to clear
it and it could not be removed by any
cogent evidence. It deepens by the contrary
evidence of D.W1. and D.W.2 in regard to
illness of Lodhe and admission of D.W.1
that he went to Chakwara two days prior to
execution of Will and came back after two
days of execution, which must have been
done, if it was so, to show that he was not
present on the date of execution of Will and
Will was got executed in collusion with the
aforesaid helpful hands. It is also apparent
from admission of D.W.2 that the decision
for execution of Will was taken two days
prior to execution. It is also very strange
that the executor of Will did not know
about his properties because it has been
stated in the Will that Juggi Lal would be
owner of his all movable and immovable
properties, cash,commodities, jewellery,
utensils, house, agricultural fields, grove
trees,Kot, Bheet, Seer Sagar and total
household goods etc., which ever property
is found and appear in ownership and
possession of executor and would get it
recorded in his name after his death. It also
indicates that he had not let even a single
space or utensil for his wives, which itself
creates suspicion in execution of Will and it
has not been removed by the defendantappellant by any cogent evidence.

23. The Hon'ble Supreme Court, in
the case of Dhannulal and others versus
Ganeshram and another; 2015(12) SCC
301, has held that the proof of 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
executant puts his signature, the attesting
witnesses shall put the signatures in the
presence of the executant."

24. The Hon'ble Supreme Court, in
the case of Meena Pradhan versus Kamla
Pradhan and Another; 2023 9 SCC 734,
has deduced the principles required for
proving the validity and execution of the
Will in paragraph 10. The Hon'ble Supreme
Court in paragraph 10.10 has held that the
2 All. Juggi Lal Vs. Guru Prasad
57
test of judicial conscience has been evolved
for dealing with those cases where the
execution of the Will is surrounded by
suspicious circumstances, which requires to
consider factors such as awareness of the
testator as to the content as well as the
consequences, nature and effect of the
disposition 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 it's own
free will. It has further been held in
paragraph 10.10 that even in the absence of
allegations of fraud, fabrication, undue
influence etc, if there are circumstances
giving rise to doubt then it becomes duty of
the propounder to dispel such suspicious
circumstances
by
giving
cogent
and
convincing
explanation.
The
relevant
paragraph
10
and
11
are
extracted
hereinbelow:-

 10. Relying on H. Venkatachala
Iyengar v. B.N. Thimmajamma (three
Judge Bench) Bhagwan Kaur v. Kartar
Kaur(three Judge Bench), Janki Narayan
Bhoir v. Narayan Namdeo Kadam(two
Judge Bench)), Yumnam Ongbi Tampha
Ibema
Devi
v.
Yumnam
Joykumar
Singh(three Judge Bench) and Shivakumar
v. Sharanabasappa(three Judge Bench), we
can deduce/infer the following principles
required for proving the validity and
execution of the will;

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;

(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
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.
58 INDIAN LAW REPORTS ALLAHABAD SERIES
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 excluded 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".
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.

11. In short, apart from statutory
compliance, broadly it has to be proved
that: (a) the testator signed the will out of
his own free will, (b) at the time of
execution he had a sound state of mind, (c)
he was aware of the nature and effect
thereof and (d) the will was not executed
under any suspicious circumstances."
25. A plea has been taken that if
the Will was being got executed on the
basis of fraud, Lodhe could have told about
it before the Registering Authority in
enquiry under Section 34 and 35 of Indian
Registration Act. Firstly this plea was not
taken before Courts below. Secondly no
evidence in this regard has been adduced
and pointed out by learned counsel for the
defendant-appellant. D.W.2 Sant Ram, who
is a witness of Will has not given any
evidence
of
registration
of
Will
or
presentation of Lodhe i.e. father of
plaintiff-respondent
before
registering
authority and as per endorsement on Will,
the executor has been identified by Sant
Ram; D.W.2 and Patandeen. Thus the plea
is misconceived and not tenable and is
hereby repelled.

26. One of the grounds raised by
the defendant-appellant was that without
framing the points of determination and
without complying with the provisions of
Order 41 Rule 31 CPC, the lower appellate
court has decided the appeal. Order 41 Rule
31 CPC provides that the judgment of the
appellate court shall be in writing and shall
state the points of determination, the
decision thereon, the reasons for the
decision and where the decree appealed
from is reversed or varied, the relief to
which the appellant is entitled.

27. Perusal of the judgment passed
by the lower appellate court indicates that
though no points of determination have
been framed but all the 7 issues framed by
the trial court have been considered
separately and independent findings have
been recorded thereon after considering the
pleadings evidence and material on record.
Therefore merely because the points of
determination have not been framed, it
cannot be said that the judgment passed by
2 All. Juggi Lal Vs. Guru Prasad
59
the lower appellate court is not in
compliance of Order 41 Rule 31 CPC
because when all the issues involved in the
appeal have been considered and findings
have
been
recorded
considering
the
pleadings, evidence and material on record,
there is substantial compliance of the rule.

28. The Hon'ble Supreme Court, in
the case of Mrugendra Indravadan Mehta
and others versus Ahemdabad Muncipal
Corporation (supra), has held that even if
the first appellate court does not separately
frame the points of determination arising in
the first appeal, it would not prove fatal as
long as that Court deals with all the issues
that actually arise for deliberation in the
said appeal. Substantial compliance with
the mandate of Order 41 Rule 31 CPC in
that regard is sufficient. The relevant
paragraph 30 is extracted hereinbelow:

 30. Thus,
even
if
the
first
appellate Court does not separately frame
the points for determination arising in the
first appeal, it would not prove fatal as
long as that Court deals with all the issues
that actually arise for deliberation in the
said appeal. Substantial compliance with
the mandate of Order 41 Rule 31 CPC in
that regard is sufficient. In this regard,
useful reference may be made to G.
Amalorpavam and others vs. R.C. Diocese
of Madurai and others8, wherein this Court
held as under:-

'9.