# Sabhapati Verma v. Ved Prakash

- **Citation:** (2025) 1 ILRA 685
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-24
- **Case number:** Second Appeal No. 2 of 2017
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sabhapati-verma-v-ved-prakash-53061
- **Pages:** 17

## Headnote

Civil Law - Civil Procedure Code, 1908 -
Sections 99 & 100, - Indian Evidence Act,
1860- Section 68 - Indian Registration
Act,
1908
-
Section
68,
-
Indian
Succession Act, 1925 - Section 63 -
Consolidation of Holdings Act, 1950 -
Section 171 - Second appeal - against the
judgments and decrees - passed in Regular Suit
and Civil Appeal - the appeal raises several
substantial questions of law, including whether
the will, which was sought to be cancelled on
the grounds of fraud, was proved in accordance
with Section 68 of the Evidence Act, and
whether the lower courts were justified in
dismissing the suit without considering the
ample evidence on record - Suit - for
permanent injunction - during pendency of suit,
a will was got executed by the defendantrespondent from their father - subsequently, a
prayer for cancellation of Will was added by an
amendment - The plaintiff-appellant argued
that the will was executed fraudulently, as the
father of the parties was an educated person
but only his thumb impression was on the will -
the will was not proved in accordance with
Section 68 of the Evidence Act - The trial court,
dismissed the suit on the grounds that the
plaintiff-appellant failed to prove ownership and
possession of the land in dispute - Civil Appeal -
The lower appellate court upheld the trial court's
decision - Second Appeal - court finds that, (i)
the will was proved by the attesting witness and
the plaintiff-appellant failed to prove the
grounds of challenge to the will and further, the
will was executed with free will and without any
influence or coercion - (ii) the plaintiff-appellant
was not the real son of the deceased father and
was not entitled to a share in the ancestral
property in view of section - 171 of the Act,
1950 - held, . the concurrent findings recorded
by the two courts below cannot be set aside by
this court in second appeal unless the findings
are perverse and without jurisdiction which is
not the case herein - hence, impugned the
judgments and decrees cannot be reversed or
modified in view of Section 99 of the CPC -
Second appeal is liable to be dismissed.(Para -
27, 38, 39)

Special Appeal Dismissed. (E-11)

List of Cases cited:

## Text

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1 All. Sabhapati Verma Vs. Ved Prakash
685
(2025) 1 ILRA 685
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 24.01.2025

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 2 of 2017

Sabhapati Verma ...Appellant
Versus
Ved Prakash ...Respondent

Counsel for the Appellant:
Mohammad Aslam Khan

Counsel for the Respondent:
Vikas Vikram Singh, Ankit Pande, Rajeshwar,
Sharad Nandan Ojha, Virendra Bhatt

Civil Law - Civil Procedure Code, 1908 -
Sections 99 & 100, - Indian Evidence Act,
1860- Section 68 - Indian Registration
Act,
1908
-
Section
68,
-
Indian
Succession Act, 1925 - Section 63 -
Consolidation of Holdings Act, 1950 -
Section 171 - Second appeal - against the
judgments and decrees - passed in Regular Suit
and Civil Appeal - the appeal raises several
substantial questions of law, including whether
the will, which was sought to be cancelled on
the grounds of fraud, was proved in accordance
with Section 68 of the Evidence Act, and
whether the lower courts were justified in
dismissing the suit without considering the
ample evidence on record - Suit - for
permanent injunction - during pendency of suit,
a will was got executed by the defendantrespondent from their father - subsequently, a
prayer for cancellation of Will was added by an
amendment - The plaintiff-appellant argued
that the will was executed fraudulently, as the
father of the parties was an educated person
but only his thumb impression was on the will -
the will was not proved in accordance with
Section 68 of the Evidence Act - The trial court,
dismissed the suit on the grounds that the
plaintiff-appellant failed to prove ownership and
possession of the land in dispute - Civil Appeal -
The lower appellate court upheld the trial court's
decision - Second Appeal - court finds that, (i)
the will was proved by the attesting witness and
the plaintiff-appellant failed to prove the
grounds of challenge to the will and further, the
will was executed with free will and without any
influence or coercion - (ii) the plaintiff-appellant
was not the real son of the deceased father and
was not entitled to a share in the ancestral
property in view of section - 171 of the Act,
1950 - held, . the concurrent findings recorded
by the two courts below cannot be set aside by
this court in second appeal unless the findings
are perverse and without jurisdiction which is
not the case herein - hence, impugned the
judgments and decrees cannot be reversed or
modified in view of Section 99 of the CPC -
Second appeal is liable to be dismissed.(Para -
27, 38, 39)

Special Appeal Dismissed. (E-11)

List of Cases cited:

1. Guro (Smt) Vs Atma Singh & ors.; (1992) 2 SCC
507,

2. Sri Devi & ors. Vs Jayaraja Shethy & ors.; 2005
All. C.J. 631,

3. Benga Behera & anr. Vs Braja Kishore Nanda &
ors.; 2007 All. C.J. 2249,

4.
Santosh
Hazari
Vs
Purushottam
Tiwari
(Deceased) By LRs.; (2001) 3 SCC 179,

5. Dhirajlal Girdharilal Vs Commissioner of Incometax, Bombay; A.I.R. 1955 S.C. 271,

6. Dhannulal & ors. Vs Ganeshram & anr.; (2015)
12 SCC 301,

7. Committee of Management, Gangadin Ram
Kumar Inter College, Ramgarh Barwan, District
Jaunpur Vs Deputy Director of Education & ors.;
2006 (24) LCD 1328,

8. Daya Shankar Singh Vs Deputy Director of
Consolidation, Faizabad & ors.; 2014 (32) LCD
2167,

9. (Smt.) Savitri & ors. Vs Surendra Mohan
Mohana; 1987 (5) LCD 137,
686 INDIAN LAW REPORTS ALLAHABAD SERIES
10. Jhuri Singh Vs Ram Kumar Singh & anr.; 2002
(20) 4 LCD 663,

11. Ram Adhar & ors. Vs Baij Nath; 2002 (20) LCD
701,

12. Savitri Bai & anr. Vs Savitri Bai; (2024) 4 SCC
282,

13. Ratnagiri Nagar Parishad Vs Gangaram Narayan
Ambekar & ors.; (2020) 7 SCC 275,

14. St. of Har. Vs Harnam Singh (Dead) through
LRs. & ors.; 2022 (156) RD 177,

15. Moinuddin Vs Smt. Kanti & ors.; 2018 (9) ADJ
141,

16. Madhusudan Das Vs Smt. Narayani Bai & ors.;
1983 (1) SCC 35,

17. Faggan (Deceased) & ors. Vs Bhagwan Sahai
(Deceased) & anr.; 2008 (7) ADJ 46,

18. Jagdish Singh Vs Nathu Singh; 1992 (1) SCC
647,

19. Hafazat Hussain Vs Abdul Majeed & ors.;
(2001) 7 SCC 189.

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

1. Heard Shri Mohd. Arif Khan,
learned Senior Advocate assisted by Shri
Mohd. Shadab Khan, Advocate holding
brief of Shri Mohammad Aslam Khan,
learned counsel for the appellant and Dr. R.
S.
Pandey,
learned
Senior Advocate
assisted by Shri Ankit Pande, learned
counsel for the respondent.

2. This second appeal has been
preferred under Section 100 of Civil
Procedure Code, 1908 (hereinafter referred
to as "C.P.C.") against the judgment and
decree dated 01.11.2013 passed in Regular
Suit No. 1132 of 1988; Sabhapati Verma vs.
Ram Kishore (Dead) substituted by legal
representative
Ved
Prakash
by
First
Additional Civil Judge (Junior Division),
Ambedkar Nagar and judgment and decree
dated 03.10.2016 passed in Civil Appeal
No. 66 of 2013; Sabhapati Verma vs. Ved
Prakash by Additional District Judge, Court
No. 3, Ambedkar Nagar.

3. The appeal has been admitted on
the following substantial questions of law
formulated in the memo of appeal:-

" A. Whether the will which
was sought to be cancelled by the
appellant on the ground of fraud,
having not been proved by the
respondent in accordance with
provisions of Section 68 of the
Evidence Act, the learned courts
below were justified in law in
dismissing the suit?
B. Whether the learned
courts below ignoring the ample
evidence on record as mentioned in
the judgment passed by the Trial
Court and even without discussing
the same were justified in law in
dismissing the suit?
C. Whether Ram Kishore
who was a Gazetted Officer and the
will bearing his thumb impression
does not create a suspicion about
the due execution of the will in
favour of the respondent and the
respondent having not proved the
will
in
accordance
with
the
provisions of Section 68 of the
Evidence Act, the learned courts
below were justified in law in
dismissing the suit?
D. Whether from the ample
evidence on record including the
sale deed, copies of the judgments,
high school certificate wherein the
parentage of the appellant was
mentioned as Ram Kishore, the
1 All. Sabhapati Verma Vs. Ved Prakash
687
said evidence could be ignored and
the learned courts below merely by
relying upon the statement of Smt.
Sursati mother of the appellant and
respondent who was win over, were
justified in law in dismissing the
suit?
E. Whether it was not
incumbent upon learned courts
below to have discussed and dealt
with the oral and documentary
evidence on record filed by the
parties while dismissing the suit?
F.
Whether
substantial
documentary evidence which has
been placed before the Trial Court
including certified copies of certain
public records besides the copy of
the judgment of earlier suit and the
oral evidence it was not the duty of
lower appellate court sitting as a
court of first appeal to deal with all
issues and the evidence lead by the
parties before recording its findings
and dismissing the appeal ignoring
that the appeal is a valuable right
and the parties have a right to be
heard both on questions of law and
facts?
G. Whether the judgment
and decree passed by the learned
courts below is not only against the
facts and circumstances of the case
but also the evidence on record?"

4. Learned counsel for the
plaintiff-appellant submitted that the father
of the parties was trying to sell the
ancestral property without consent of the
plaintiff-appellant, who was a co-tenure
holder, therefore, the suit for permanent
injunction was filed. During pendency of
the suit, a will was got executed by the
defendant-respondent from the father Ram
Kishore in a fraudulent manner, which is
apparent from the facts that the father of
the parties was an educated person but only
his thumb impression was put on the will
and he expired after two days of execution
of will, therefore, there is sufficient shroud
of suspicion, which could not be removed
by the defendant-respondent, therefore, the
learned courts below wrongly and illegally
dismissed the suit and the appeal filed by
the plaintiff-appellant. Even otherwise the
will has not been proved by the defendantrespondent
in
accordance
with
the
provisions of Section 68 of the Indian
Evidence Act. The learned courts below
have passed the judgment and decree
without considering the evidence and
material on record. The lower appellate
court
also
without
considering
the
questions of law and facts as a trial court,
as appeal is a valuable right of the
appellant, dismissed the appeal. He further
submitted that the judgments relied by the
parties had not been considered by the
lower
appellate
court
and
without
considering the same, the appeal has been
dismissed on the ground that they are not
applicable on the facts and circumstances
of the case. Thus, learned counsel for the
plaintiff-appellant
submitted
that
the
judgment and decrees passed by the learned
courts below are liable to be set aside and
the suit filed by the plaintiff-appellant is
liable to be allowed. Learned counsel for
the plaintiff-appellant relied on Guro (Smt)
vs. Atma Singh and others; (1992) 2 SCC
507, Sri Devi and others vs. Jayaraja
Shethy and others; 2005 All. C.J. 631,
Benga Behera and another vs. Braja
Kishore Nanda and others; 2007 All. C.J.
2249, Santosh Hazari vs. Purushottam
Tiwari (Deceased) By LRs.; (2001) 3
SCC 179, Dhirajlal Girdharilal vs.
Commissioner of Income-tax, Bombay;
A.I.R. 1955 S.C. 271, Dhannulal and
others vs. Ganeshram and another;
688 INDIAN LAW REPORTS ALLAHABAD SERIES
(2015) 12 SCC 301, Committee of
Management, Gangadin Ram Kumar
Inter College, Ramgarh Barwan, District
Jaunpur
vs.
Deputy
Director
of
Education and others; 2006 (24) LCD
1328, Daya Shankar Singh vs. Deputy
Director of Consolidation, Faizabad and
others; 2014 (32) LCD 2167, (Smt.)
Savitri and others vs. Surendra Mohan
Mohana; 1987 (5) LCD 137, Jhuri Singh
vs. Ram Kumar Singh and another; 2002
(20) LCD 663 and Ram Adhar and
others vs. Baij Nath; 2002 (20) LCD 701.

5. Per contra, learned counsel for
the defendant-respondent submitted that a
suit for permanent injunction was filed by
the plaintiff-appellant, which was amended
during pendency of the suit and the prayer
for cancellation of will deed executed in
favour of the defendant-respondent was
added but neither the possession of the
plaintiff-appellant has been proved nor he
could prove the grounds of challenge to the
will. The will was proved by the attesting
witness in accordance with Section 68 of
the Indian Evidence Act. The reason for
execution of will has been disclosed in the
will itself, therefore, the alleged fraud and
suspicious circumstances in execution of
will does not exist and the same stands
removed. The reason for thumb impression
on the will has been disclosed and proved
by the defendant-respondent. He further
submitted that the learned courts below
have passed the judgment and decrees after
considering the pleadings, evidence and
material on record. There is no illegality or
error in the impugned judgment and
decrees passed by the courts below. The
appeal has been filed on misconceived and
baseless grounds and it lacks merit. The
substantial questions of law formulated in
this appeal are not involved in this appeal.
He relied on Savitri Bai and another vs.
Savitri Bai; (2024) 4 SCC 282, Ratnagiri
Nagar Parishad vs. Gangaram Narayan
Ambekar and others; (2020) 7 SCC 275,
State of Haryana vs. Harnam Singh
(Dead) through LRs. and others; 2022
(156) RD 177, Moinuddin vs. Smt. Kanti
and
others;
2018
(9)
ADJ
141,
Madhusudan Das vs. Smt. Narayani Bai
and others; 1983 (1) SCC 35 and Faggan
(Deceased) and others vs. Bhagwan
Sahai (Deceased) and another; 2008 (7)
ADJ 46.

6.

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

7. The plaintiff-appellant filed a
suit for permanent injunction with the
allegation that the father of the plaintiff-
appellant i.e. the defendant-respondent
namely Ram Kishore, who was the original
defendant-appellant, is angry with him as
he has opened a clinic in Makhdoom
Nagar, therefore, he is not able to give most
of his time at home, on account of which,
without any reason, he is threatening to sell
the land in dispute only to destroy the part
of property of the plaintiff-appellant.
During pendency of the suit, Ram Kishore
died
on
27.01.1991,
therefore,
the
defendant-respondent, who is the legal
representative of Ram Kishore and brother
of the plaintiff-appellant was substituted.
Subsequently, the suit was amended adding
a prayer for cancellation of will deed dated
25.01.1991 on the ground that the will had
been got executed by the defendantrespondent playing fraud with the deceased
Ram Kishore, which has been registered on
30.01.1991 in the office of the SubRegistrar, Akbarpur. It was further alleged
that the deceased was an educated person
as he had retired from the post of a
Gazetted Officer but his thumb impression
1 All. Sabhapati Verma Vs. Ved Prakash
689
had been put on the will. Since the
plaintiff-appellant was looking after his
father, therefore, there was no need of any
will. The plaintiff-appellant and defendantrespondent were born from his mother Smt.
Sursati Devi and father Ram Kishore.

8. The suit was contested by the
defendant-respondent alleging therein that
after death of the married wife of his
deceased father Ram Kishore, he married to
Smt. Sursati, who had come to house of his
father after death of his first husband Ram
Achal Verma resident of Mauza Ganeshpur,
Pargana and Tehsil Akbarpur with his son
born from Ram Achal Verma namely Pudai
alias Sabhapati and since Ram Kishore was
looking after his education etc., therefore,
his name was also recorded as father as he
was treating him as his son. On the request
of mother Smt. Sursati, the deceased Ram
Kishore had purchased 11 biswa land for
Sabhapati in Mauza Salahpur Razore,
Pargana and Teshil Tanda, Ambedkar Nagar
and also gave the house in the said village
to the plaintiff-appellant. After some time, 7.25
bigha agricultural property and two biswa
abadi land was also purchased by the father of
the defendant-respondent Ram Kishore for
Sabhapati and his wife on the ground that he
would not claim any share in the ancestral
property
of
the
defendant-respondent.
Subsequently, he started threatening to take
half share in whole land, on account of
which, the quarrel started between the father
of
the
defendant-respondent
and
the
plaintiff-appellant,
therefore
after
consultation with his wife Sursati, he
executed a will in favour of the defendantrespondent and accordingly, he is in
possession and title holder of the land in
dispute, thus, the suit is liable to be dismissed.

9. On the basis of pleadings of
parties, following 5 issues were framed:-
"अ. क्या वािी ब्ववाब्ित सम्पब्ि का
स्वामी एवुं आब्धपत्यधारी है?
ब. क्या वाि अवमूलयाुंब्कत है तथा प्रिि
न्यायशुलक अपयाषप्त है?
स. क्या उभय पक्ष एक ही पररवार के
सिस्य हैं तथा ब्ववाब्ित सम्पब्ि में वािी का 1⁄2 ब्हस्सा
है?
ि. क्या वािी ब्कसी अन्य अनुतोर् को पाने
का अब्धकारी है?
य. क्या वािपत्र में वब्िषत कारिों के आधार
पर िस्तावेज वसीयतनामा ब्नरस्त ब्कये जाने योग्य है?"

10. After framing of the aforesaid
issues, documentary as well as oral
evidence was adduced by the parties. In
oral
evidence,
the
plaintiff-appellant
appeared himself as P.W. 1 and got
examined Phool Chandra as P.W. 2. On
behalf of the defendant-respondent, he
himself appeared as D.W. 1, Smt. Sursati
Devi as D.W. 2 and Rajmani i.e. attesting
witness of the will deed as D.W. 3

11. After considering the pleadings
of the parties, evidence and material on
record, the trial court dismissed the suit on
the grounds that the plaintiff-appellant has
failed to prove himself to be the owner and
in possession of the land in dispute and the
plaintiff-appellant was born from previous
husband of his mother Smt. Sursati,
therefore, he could get the share in the land
of deceased Ram Kishore only on the basis
of will and the will in favour of the
predecessor-in-interest of the defendantrespondent has been proved by the attesting
witness in accordance with law and the
reasons for execution of the will have been
disclosed in will, therefore, the will is
neither forged nor liable to be set aside.
Being aggrieved, civil appeal was filed
before the lower appellate court, in which
the following point of determination was
690 INDIAN LAW REPORTS ALLAHABAD SERIES
made by the lower appellate court in the
impugned judgment and decree while
deciding the appeal;-

"क. क्या अधीनस्थ न्यायािय द्वारा
पक्षकारों के अब्भवचन तथा उनके द्वारा प्रस्तुत
अब्भिेिीय एवुं मौब्िक साक्ष्य के ब्वश्लेर्ि में कोई
त्रुब्ट की गयी है?"

12. The learned lower appellate
court, after considering the pleadings,
evidence and material on record, dismissed
the appeal as it could not find any illegality
or error in the judgment and decree passed
by the trial court.

13. 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,
the first question for consideration is as to
whether the will deed executed by the
deceased Ram Kishore, who was original
defendant in the suit, in favour of the
defendant-respondent has been proved in
accordance with law or not. The will is
required to be proved in accordance with
Section 68 of the Indian Evidence Act,
which provides the proof of execution of
document required by law to be attested,
which is extracted hereinbelow:-

"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 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
(XVI of 1908), unless its execution
by the person by whom it purports
to
have
been
executed
is
specifically denied.]"

14. According to the aforesaid
Section 68, a will is required to be proved
at least by one attesting witness, which has
been registered in accordance with the
provisions of the Indian Registration Act,
1908. Section 63 of the Indian Succession
Act provides the manner in which a will is
required to be executed, which is extracted
hereinbelow:-

"63.
Execution
of
unprivileged Wills.-
Every testator, not being a
soldier 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
1 All. Sabhapati Verma Vs. Ved Prakash
691
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 acknowledgement of his
signature or mark, or 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. "

15. The Hon'ble Supreme Court, in
the case of Guro (Smt.) vs. Atma Singh
and others (Supra), 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
hereinbelow:-

"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).

16. Similar view has been taken by
the Hon'ble Supreme Court, in the case of
Sri Devi and others vs. Jayaraja Shetty
and others (Supra). In this case, the
executor of the will was 80 years of age
and he died within 15 days of the execution
of the will and court found that except this
nothing has been brought on record to show
that the testator was not in good health or
not possessed of his physical or mental
faculties and the appellants have failed to
bring out anything which could have put a
doubt regarding the physical or mental
incapacity of the testator to execute the will
and dismissed the appeal.

17. The Hon'ble Supreme Court, in
the case of Benga Behera and another vs.
Braja
Kishore
Nanda
and
others
(Supra), has held that the requirement of
the proof of execution of a will is the same
as in the case of certain other documents,
692 INDIAN LAW REPORTS ALLAHABAD SERIES
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.

18. The Hon'ble Supreme Court, in
the case of Dhannulal and others vs.
Ganeshram and another (Supra), 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."

19. This Court, in the case of Daya
Shanker Singh vs. Deputy Director of
Consolidation,
Faizabad
and
others
(Supra),
after
considering
several
judgments of the Hon'ble Supreme Court,
held that attestation of the will in the
manner stated in Section 63 of the
Succession Act is not an empty formality. It
means signing a document for the purpose
of testifying the signatures of the executant.
The attesting witness should put his
signature on the will animo attestandi. It is
not necessary that more than one witness be
present at the same time and no particular
form of attestation is necessary. Since a will
is required by law to be attested, its
execution has to be proved in the manner
laid down in the section and the Evidence
Act, which requires that at least one
attesting witness has to be examined for the
purpose of proving the execution of such a
document. The attesting witness should
speak not only about the testator's signature
or fixing his mark to the will but also that
each of the witnesses had signed the will in
the presence of the testator. Similar view
has been taken by the Hon'ble Supreme
Court, in the case of Savitri Bai and
another vs. Savitri Bai (Supra).

20. Adverting to the facts of the
instant case, the will was executed by the
deceased Ram Kishore in favour of the
defendant-respondent
disclosing
therein
that the present wife of the deceased was
earlier married to Ram Achal Verma
resident of Mauza Ganeshpur, Pargana and
Tehsil Akbarpur, District-Faizabad. Smt.
Sursati, after his death, came to the house
of Ram Kishore. She came with Pudai @
Sabhapati, who was born from her first
husband. There is one son Ved Prakash
born from deceased Ram Kishore and Smt.
Sursati. Ram Kishore has purchased the
land for Sabhapati and his wife. House has
also been given so that there may not be
any quarrel in future. He has executed the
will deed in favour of Ved Prakash. The
will was challenged on the ground that
there was no free will by the executor and
the will was forged and fabricated. The will
was executed in unconscious mind and
there are thumb impressions on the will,
1 All. Sabhapati Verma Vs. Ved Prakash
693
while executant of the will was a retired
doctor.
As
such,
the
reasons
and
circumstances for execution of will has
been disclosed in the will itself. It has also
been disclosed that the will is being
executed with free will and without any
influence or coercion.

21. Rajmani, one of the attesting
witnesses appeared as D.W. 3. The attesting
witness stated in his examination-in-chief
that the whole document was written in his
presence, thereafter, all presented before
the Registrar, where thumb impressions
were got put wherever required. He stated
that Ram Kishore was ill but he used to
stand up on his own. He was able to see
and hear. He was also able to read. He was
asked by Ram Kishore for witness on the
will. Ram Kishore had read the will. At the
time, the will was signed, his hand used to
shake and Radhe Shyam was second
witness to the will. The will was executed
in favour of Ved Prakash. Ram Kishore had
told that he is making a will of his land in
favour of his younger son Ved Prakash. The
will was written on the asking of Ram
Kishore. Ram Kishore had put his thumb
impression. The will was read over. In the
Registry Office, the thumb impression of
Ram Kishore and others got put. It is wrong
to say that Ram Kishore had not executed
the will with his consent. It is also wrong to
say that the Ram Kishore was not able to
see and hear at the time of execution of will.
Thus, the execution of will was proved by the
attesting witness D.W. 3 in accordance with
the Section 68 of Indian Evidence Act read
with Section 63 of the Indian Succession Act.
Merely because it has not been said by the
attesting witness as to out of the two
witnesses, who had put first, it cannot be said
that the will is not proved because he stated
that all were present in the Registry Office,
when they put signatures. It has also been
stated that Ram Kishore used to come to his
shop at Araiya. He had told that Pudai @
Sabhapati has filed a suit claiming right for
his share, whereas, he has given to Sabhapati
and his wife 8 bigha land and abadi and
executed the registered will so that there may
not be any dispute of ancestral property.
Nothing could be extracted in crossexamination, which may create any doubt
about his testimony or that the will was not
executed in accordance with law.

22. Learned trial court, after
considering the evidence of the attesting
witness and the evidence of the plaintiffappellant Sabhapati, who admitted in his
evidence that the photo on the will is of his
father, photo is original but stated that the
thumb impressions are forged, however the
same
has
not
been proved
by
any
documentary evidence or expert opinion,
came to the conclusion that the will is neither
forged nor liable to be set aside as the
plaintiff-appellant has failed to prove his
grounds of challenge to the will. The learned
lower appellate court recorded a finding that
the attesting witness Rajmani, who has been
examined as D.W. 3, has proved the
execution of the will.

23. Now the question arises as to
whether the plaintiff-appellant is the real
son of the deceased Ram Kishore or not
and he is entitled for half of the share of the
ancestral property in dispute or not.
Deceased Ram Kishore, while executing
the will had disclosed in it that the plaintiffappellant was born out of the wedlock of
Ram Achal Verma and Smt. Sursati, who
had come to his house after death of his
first husband with her first son Pudai @
Sabhapati i.e. the plaintiff-appellant.

24. Smt. Sursati appeared as D.W.
2. She admitted in her evidence that her
694 INDIAN LAW REPORTS ALLAHABAD SERIES
first marriage was solemnized with Ram
Achal
Verma,
resident
of
Mauza
Ganeshpur, Pargana and Tehsil Akbarpur.
Out of the said wedlock, one son namely
Pudai @ Sabhapati was born. After death of
her first husband, she was married to Ram
Kishore resident of Salahpur Razore. One
son and three daughters were born from her
and Ram Kishore. Sabhapati was born in
Ganeshpur and he has his farming in
Ganeshpur. She had brought Pudai @
Sabhapati with her to the house of Ram
Kishore. On her request, her husband Ram
Kishore got Sabhapati educated. She
further stated that on her request, her
husband also purchased 11 biswa land in
the name of Pudai @ Sabhapati in Mauza
Salahpur Razore, Pargana and Teshil
Tanda, District Ambedkar Nagar and also
gave house and on her request, he also
purchased eight bigha land in Araiya and
Salahpur Razore and two biswa land for
abadi in the name of Pudai @ Sabhapati
and his wife so that there may not be any
quarrel in regard to his ancestral property in
future. Sabhapati filed a suit for rights,
therefore, for protection of his property her
husband executed a registered will deed.
She also stated that after death of her
husband, her younger son Ved Prakash is
the owner and in possession of the land in
dispute and doing farming on the same. In
cross-examination, she stated that her
husband was ill for one-two month prior to
his death. During illness, he used to walk.
When he died, she was with her in the
hospital. Her husband was admitted in
hospital for 15 days. He was able to stand
up with the help of his stick. He had
problem of eyesight and hearing. Thus, the
mother of the plaintiff-appellant admitted
that the plaintiff-appellant was born out of
her wedlock with her previous husband
Ram Achal Verma and she has brought him
to the house of her second husband Ram
Kishore. Therefore, once the mother of the
plaintiff-appellant admitted that he was
born out of wedlock with Ram Achal
Verma, it cannot be said that he was the
real son of the deceased Ram Kishore,
merely because he has been shown his
father in High School Certificate and other
documents, which may have been because
after death of his father, he came with his
mother to the house of the deceased Ram
Kishore, who treated him as his son and
also purchased land etc. for him as told by
the witnesses, which has not been disputed.

25. The learned trial court, after
considering the evidence of the mother of
the plaintiff-appellant, who is D.W. 2, and
also copy of Parivar Register 89ga, in
which Smt. Sursati has been shown as wife
of Ram Achal and Pudai @ Sabhapati as
son of Ram Achal, has recorded a finding
that the plaintiff-appellant was not the real
son of the deceased Ram Kishore, thus,
Sabhapati cannot be co-tenureholder of the
property of the deceased Ram Kishore and
his name is also not recorded as such in
record of rights. Thus, in absence of any
will in his favour, it cannot be said that the
plaintiff-appellant is entitled for 1/2 share
in the property of the deceased Ram
Kishore.

26. In view of above, since the
plaintiff-appellant is not the real son of the
deceased Ram Kishore, he is legally not
entitled for share in the ancestral property
in dispute of the deceased Ram Kishore and
he was not co-tenureholder of the land in
dispute. The learned trial court, after
considering the Khatauni of the land in
dispute in paper 51ga and 54ga, has
recorded a finding that the name of the
defendant
Ram
Kishore
son
of
Dalthamman, Mauja Salahpur Rajore Haal
Vaarid Araiya is recorded and the name of
1 All. Sabhapati Verma Vs. Ved Prakash
695
the plaintiff-appellant is not recorded,
therefore, he has failed to prove that he is
owner and in possession of the land in
dispute. He has also failed to give any
evidence in regard to possession on the
land in dispute in his evidence, thus, he is
not entitled for injunction.

27. Learned trial court and the
lower appellate court, after considering the
evidence, material and findings recorded by
the trial court and that 'Maternity is
certainty and paternity is surmise' and in
view of the admission of Smt. Sursati,
mother of the plaintiff-appellant, held that
the claim of the plaintiff-appellant that he is
son of the deceased Ram Kishore instead of
Ram Achal, is not tenable. Besides it, his
name is also recorded in the paper 89ga as
son of Ram Achal and name of Ram
Kishore is recorded in the Khatauni, thus,
the courts below have passed the judgment
and
decrees,
after
considering
the
pleadings, evidence and material on record
in accordance with law. Thus, there is no
illegality or error in the findings recorded
by the learned courts below.

28. Learned counsel for the
plaintiff-appellant relying on the case of
Dhirajlal Girdharilal vs. Commissioner
of Income-tax, Bombay (Supra) argued
that the mind of the lower appellate court
was affected by the irrelevant material. The
Hon'ble Supreme Court has held in the case
that it is well established that when a court
of fact acts on material, partly relevant and
partly irrelevant, it is impossible to say as
to what extent the mind of the court was
affected by the irrelevant material used by
it in arriving at its finding. Such a finding is
vitiated because of the use of inadmissible
material and thereby an issue of law arises.
It cannot be disputed that issue of law may
arise on use of inadmissible material.
However, in a second appeal unless the said
issue of law is substantial on the basis of
pleadings, evidence and material on record,
it cannot be said that it is a substantial
question of law involved in the second
appeal and the second appeal can be
entertained, heard and decided only on the
substantial question of law involved in the
second appeal. Learned counsel for the
plaintiff-appellant has failed to point out
any inadmissible material in this appeal,
which may have been considered by the
courts below. The said judgment has been
relied by a Division Bench of this Court in
the case of Committee of Management,
Gangadin Ram Kumar Inter College,
Ramgarh Barwan, District Jaunpur vs.
Deputy Director of Education and others
(Supra). However, the said judgments are
not
applicable
on
the
facts
and
circumstances of the case in hand.

29. The Hon'ble Supreme Court, in
the
case
of
Santosh
Hazari
vs.
Purushottam Tiwari (Deceased) By LRs.
(Supra), has dealt with the power of the
High Court under Section 100 Code of
Civil Procedure, 1908 in a second appeal
and the phrase "substantial question of law"
as occurring in amended Section 100 as it
has not been defined in the Code, held that
the
word
substantial,
as
qualifying
"question of law", means of having
substance, essential, real and of sound
worth, important and considerable. It has
further been held that substantial question
of law on which a second appeal shall be
heard need not necessarily be a substantial
question of law of general importance. The
relevant paragraph Nos. 10 to 12 are
extracted hereinbelow:-

"10. At the very outset we
may point out that the memo of
second appeal filed by the plaintiff-
696 INDIAN LAW REPORTS ALLAHABAD SERIES
appellant before the High Court
suffered from a serious infirmity.
Section 100 of the Code, as
amended in 1976, restricts the
jurisdiction of the High Court to
hear a second appeal only on
substantial question of law involved
in the case. An obligation is cast on
the appellant to precisely state in
the memorandum of appeal the
substantial question of law involved
in the appeal and which the
appellant proposes to urge before
the High Court. The High Court
must be satisfied that a substantial
question of law is involved in the
case and such question has then to
be formulated by the High Court.
Such questions or question may be
the one proposed by the appellant
or may be any other question which
though
not
proposed
by
the
appellant yet in the opinion of the
High Court arises as involved in
the case and is substantial in
nature. At the hearing of the
appeal, the scope of hearing is
circumscribed by the question so
formulated by the High Court. The
respondent is at liberty to show that
the question formulated by the
High Court was not involved in the
case. In spite of a substantial
question of law determining the
scope of hearing of second appeal
having been formulated by the
High Court, its power to hear the
appeal on any other substantial
question
of
law,
not
earlier
formulated by it, is not taken away
subject to the twin conditions being
satisfied: (i) the High Court feels
satisfied that the case involves such
question, and (ii) the High Court
records
reasons
for
its
such
satisfaction.
11. Even under the old
Section 100 of the Code (pre-1976
amendment), a pure finding of fact
was not open to challenge before
the High Court in second appeal.
However the Law Commission
noticed a plethora of conflicting
judgments. It noted that in dealing
with second appeals, the Courts
were devising and successfully
adopting several concepts such as,
a mixed question of fact and law, a
legal inference to be drawn from
facts proved, and even the point
that the case has not been properly
approached by the Courts below.
This was creating confusion in the
minds of the public as to the
legitimate scope of second appeal
under
Section
100
and
had
burdened the High Courts with an
unnecessarily large number of
second appeals. Section 100 was,
therefore, suggested to be amended
so as to provide that the right of
second appeal should be confined
to cases where a question of law is
involved and such question of law
is a substantial one. (See Statement
of Objects and Reasons). The Select
Committee
to
which
the
Amendment Bill was referred felt
that the scope of second appeals
should
be
restricted
so
that
litigations may not drag on for a
long period. Reasons, of course,
are not required to be stated for
formulating any question of law
under sub-section(4) of Section 100
of the Code; though such reasons
are to be recorded under proviso to
sub-section (5) while exercising
power to hear on any other
1 All. Sabhapati Verma Vs. Ved Prakash
697
substantial question of law, other
than the one formulated under sub-
section(4).
12.