# Sri Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Faizabad v. Kusam Dasi Chelin Sri Lalita Das

- **Citation:** (2024) 4 ILRA 982
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-04-08
- **Case number:** Second Appeal No. 425 of 2014
- **Bench:** Rajnish Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-thakur-sanatan-ram-yugal-sarkar-virajman-mandir-faizabad-v-kusam-dasi-51878
- **Pages:** 14

## Headnote

Civil Law - Indian Succession Act, 1925 -
Section 63 - Indian Evidence Act, 1872 -
Sections 69, 70 - Against dismissal of suit
for declaration of title and possession -
Counsel for plaintiff-appellants submitted
that suit for permanent injunction was
based on registered Will deed dated
26.09.1969 executed by Ram Rati Dasi in
favour of Janki Dasi, which stood duly
proved u/s 69 and 70 of Indian Evidence
Act, execution being admitted by D.W.1
4 All. Sri Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Faizabad Vs.
 Kusam Dasi Chelin Sri Lalita Das
983
and D.W.2 - During pendency of suit, the
suit was amended to include reliefs for
declaration, possession and eviction -
Trial Court, considering proved Will,
decreed suit, however, Appellate Court,
without proper appreciation of evidence,
erroneously set aside decree - It was
further submitted that respondents
claiming rights on basis of unregistered
Will dated 28.06.1978, executed after
death of Ram Rati Dasi on 28.08.1976 -
Held, it is evident that D.W.1 and D.W.2
did not admit execution of Will dated
26.09.1969, rather, D.W.1 St.d that
impostor lady had executed Will - Hence,
execution of Will cannot be treated as
admitted by defendants u/s 70 of Indian
Evidence Act - On contrary, St.ment of
D.W.1 heightened doubt regarding its
execution, which was required to be
clarified
and
removed
by
plaintiffappellants in terms of Section 63 of
Succession Act, which they failed to do -
Considering
overall
facts
and
circumstances, Court finds that First
Appellate Court rightly set aside Trial
Court's decree and dismissed suit - Thus,
second appeal, being devoid of merit,
accordingly dismissed. (Para 2, 4, 29,
39)

Appeal dismissed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,967 of 47,666. This is a partial read: ask again with offset=39967 for what follows._

982 INDIAN LAW REPORTS ALLAHABAD SERIES

32. It was noticed that Section 388
lays down somewhat a different provision
and in its terms where powers of a District
Judge are conferred upon an inferior court
by a notification of the State Government,
such court shall exercise the powers of the
District Judge so far as Part X of the Act is
concerned, and in such a case an appeal
instead of being filed before the High Court
would lie before the District Judge.

33. Section 388 thus creates a special
jurisdiction on a Court subordinate to the
District Judge through investiture of power.
Once such power is invested to a Court
inferior to the District Judge, under subsection (1), in that event by virtue of the
deeming clause under sub-section (2), such
Court would discharge the function of the
District Judge by reason of such investiture,
and have concurrent jurisdiction in exercise
of all the powers conferred by Part X upon
the District Judge. The proviso to subsection (2) creates an exception by
providing that an appeal from any order of
an inferior court falling within the scope of
Section 384 would in such circumstance,
lie to the District Judge and 'not to the High
Court'.

34. In the case at hand, the order
having been passed by the Civil Judge
(Senior Division) having been invested
with the power to exercise the function of a
District Judge under Part X, the proviso to
sub-section (2) of Section 388 would be
attracted and an appeal from the order
passed
by
the
Civil
Judge
(Senior
Division), which is the inferior Court,
would lie to the District Judge, and not to
the High Court.

35 . The appeal, which has been
preferred, would therefore not lie before the
High Court.

36. Counsel for the appellant, at this
stage, submits that he may be permitted to
withdraw the appeal with liberty to
approach the appropriate forum i.e. the
District Judge concerned.

37.
The
appeal
is
accordingly
permitted to be withdrawn with the liberty
as prayed.

38. Office to return the certified
copies of the orders to the counsel for the
appellant after retaining photo copies of the
same.
----------
(2024) 4 ILRA 982
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.04.2024

BEFORE

THE HON'BLE RAJNISH KUMAR, J.

Second Appeal No. 425 of 2014

Sri Thakur Sanatan Ram Yugal Sarkar
Virajman Mandir Faizabad ...Appellant
Versus
Kusam Dasi Chelin Sri Lalita Das
 ...Respondents

Counsel for the Appellant:
Sri R.D. Shahi

Counsel for the Respondents:
Sri Prem Shanker Shukla

Civil Law - Indian Succession Act, 1925 -
Section 63 - Indian Evidence Act, 1872 -
Sections 69, 70 - Against dismissal of suit
for declaration of title and possession -
Counsel for plaintiff-appellants submitted
that suit for permanent injunction was
based on registered Will deed dated
26.09.1969 executed by Ram Rati Dasi in
favour of Janki Dasi, which stood duly
proved u/s 69 and 70 of Indian Evidence
Act, execution being admitted by D.W.1
4 All. Sri Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Faizabad Vs.
 Kusam Dasi Chelin Sri Lalita Das
983
and D.W.2 - During pendency of suit, the
suit was amended to include reliefs for
declaration, possession and eviction -
Trial Court, considering proved Will,
decreed suit, however, Appellate Court,
without proper appreciation of evidence,
erroneously set aside decree - It was
further submitted that respondents
claiming rights on basis of unregistered
Will dated 28.06.1978, executed after
death of Ram Rati Dasi on 28.08.1976 -
Held, it is evident that D.W.1 and D.W.2
did not admit execution of Will dated
26.09.1969, rather, D.W.1 St.d that
impostor lady had executed Will - Hence,
execution of Will cannot be treated as
admitted by defendants u/s 70 of Indian
Evidence Act - On contrary, St.ment of
D.W.1 heightened doubt regarding its
execution, which was required to be
clarified
and
removed
by
plaintiffappellants in terms of Section 63 of
Succession Act, which they failed to do -
Considering
overall
facts
and
circumstances, Court finds that First
Appellate Court rightly set aside Trial
Court's decree and dismissed suit - Thus,
second appeal, being devoid of merit,
accordingly dismissed. (Para 2, 4, 29,
39)

Appeal dismissed. (E-13)

List of Cases cited:

1. Sampath Kumar Vs Ayyakannu & anr.; (2002)
7 SCC 559

2. Babu Singh & ors. Vs Ram Sahai @ Ram
Singh; (2008) 14 SCC 754

3. M.B. Ramesh (D) by LRs. Vs K.M. Veeraje Urs
(D) by LRs. & ors.; AIR 2013 SC 2088

4. Sebastiao Luis Fernandes (Dead) & ors. Vs
K.V.P. Shastri (Dead) & ors.; 2014 (32) LCD
1452

5. Gurunath Manohar Pavaskar & ors. Vs
Nagesh Siddappa Navalgund & ors.; 2008 (26)
LCD 225
6. Union of India & ors. Vs Vasavi Co-operative
Housing Society Ltd. & ors.; 2014 (32) LCD 277,
(Paras 12 to 15)

7. Smt. Jaswant Kaur Vs Smt. Amrit Kaur & ors.;
AIR 1977 SC 74, (Paras 9, 10)

8. Bharpur Singh & ors. Vs Shamsher Singh; AIR
2009 SC 1766, (Para 11)

9. Meena Pradhan & ors. Vs Kamla Pradhan &
anr.; (2023) 9 SCC 734

10. Neeraj Dutta Vs St. (Govt. of N.C.T. of
Delhi); (2023) 4 SCC 731

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

1. Heard Shri R.D. Shahi, learned
counsel for the appellant and Shri Prem
Shankar Shukla, learned counsel for the
respondent.

2. This second appeal has been filed
assailing the judgment and order dated
09.10.2014 passed in Civil Appeal No.158
of 2014; Kusum Dasi Vs. Awadhesh Das
and Another by Additional District Judge,
Court No.1, Faizabad, by means of which
the appeal has been allowed and the
judgment and decree dated 30.05.2014
passed in Regular Suit No.192 of 1978; Sri
Thakur
Sanatan
Ram
Yugal
Sarkar
Virajman Mandir Maibara and Another Vs.
Lalita Dasi by Civil Judge (Senior
Division), Faizabad has been set aside and
the suit of the plaintiff-appellants for
declaration
and
possession
has
been
dismissed.

3. This second appeal was admitted
on the following substantial questions of
law:-

"1. Whether the learned first
appellate court erred in law in observing
that the will deed dated 26.09.1969 was not
984 INDIAN LAW REPORTS ALLAHABAD SERIES
proved despite the execution of the same
being duly admitted by D.W.1 and D.W.2
making the will deed admissible under
Section 70 of the Indian Evidence Act?

2. Whether the learned courts
below erred in law in placing burden of
proof upon the appellants though as per the
law of the land when both the parties have
led the evidence, the burden of proof looses
its significance?"

4. Learned counsel for the plaintiffappellants submitted that the appellant had
filed suit for permanent injunction on the
basis
of
registered
will
deed dated
26.09.1969 executed by Ram Rati Dasi in
favour of Janki Dasi. During pendency of
the suit, the suit was amended and the
prayer for declaration and possession. and
eviction
of
defendant-respondent
was
made. The will deed dated 26.09.1969 was
duly proved and execution of the same was
also admitted by the D.W.1 and D.W.2,
therefore the same was proved as per
Section 69 and 70 of the Indian Evidence
Act and considering the same, suit of the
appellant-plaintiff was decreed by the Trial
Court, but the Appellate Court without
considering the same allowed the appeal
and set-aside the judgment and decree
passed by the Trial Court which could not
have been done. He further submitted that
the respondents were claiming rights on the
basis of an unregistered will dated
28.06.1978 executed by Ram Rati Dasi,
whereas she had died on 28.08.1976. Thus,
the submission is that the judgment and
order passed by the Appellate Court is not
sustainable in the eyes of law and liable to
be set-aside. He relied on Sampath Kumar
Vs. Ayyakannu and Another; (2002) 7
SCC 559, Babu Singh and Others Vs.
Ram Sahai alias Ram Singh; (2008) 14
SCC 754 & M.B. Ramesh (D) by LRs. V.
K.M. Veeraje Urs (D) by LRs. and
Others; AIR 2013 SC 2088.

5. Per contra, learned counsel for the
respondent-defendant submitted that it is
not in dispute that the Ram Rati Dasi was
the founder of the temple namely Sri.
Thakur
Sanatan
Ram
Yugal
Sarkar
Virajman Mandir Maibara and that she had
died on 28.08.1976. However he submits
that the suit for permanent injunction was
filed on the basis of falls and concocted
cause of action by an impostor lady namely
Janki Dasi on the behest of Lal Das. He
further submitted that the Lal Das, who was
a hooligan of Ayodhya and trying to
capture the temple in question, had also got
executed a document from Janki Dasi
appointing him as Sarvarakar. However,
when he could not succeed in his illegal
design to capture the temple, the suit was
amended admitting the possession of the
respondent-defendant and the prayer for
declaration and possession was added.

6. He further submitted that since the
will deed dated 26.09.1969 was the basis of
the suit filed by the appellant-plaintiffs,
therefore the same was required to be
proved as per Section 90A which was
added by the U.P. Amendment and the
presumption provided under Section 90 of
the Indian Evidence Act is not available.
He further submitted that the will was
required to be proved in accordance with
Section 63 of the Indian Succession Act
and Sections 68 and 69 of the Indian
Evidence Act, as it is not admitted by the
respondent-defendant.
The
burden
of
proving the will was on the plaintiff-
appellants as they were claiming the rights
on the basis of the said will. He further
submitted that the suit for permanent
injunction was filed without disclosing or
filing any proof of possession, whereas the
4 All. Sri Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Faizabad Vs.
 Kusam Dasi Chelin Sri Lalita Das
985
respondent-defendant
was
and
is
in
possession of the temple in dispute and the
proof of title and possession such as
mutation, tax receipts, invitations etc. were
filed by the respondent-defendant, but
without considering the same, the suit was
allowed, therefore the appeal has rightly
been allowed in accordance with law and
the suit of the plaintiff-appellants has been
dismissed. Thus this second appeal has
been filed on misconceived and baseless
grounds and no substantial question of law
arises in this appeal, therefore the appeal is
liable to be dismissed with cost. He relied
on Sebastiao Luis Fernandes (Dead) and
Others Vs. K.V.P. Shastri (Dead) and
Others; 2014 (32) LCD 1452, Gurunath
Manohar Pavaskar and Others Vs.
Nagesh
Siddappa
Navalgund
and
Others; 2008 (26) LCD 225, Union of
India and Others Vs. Vasavi Cooperative Housing Society Ltd. and
Others; 2014 (32) LCD 277, Smt.
Jaswant Kaur Vs. Smt. Amrit Kaur and
Others; AIR 1977 SC 74 & Bharpur
Singh and Others Vs. Shamsher Singh;
AIR 2009 SC 1766.

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

8. The temple in dispute namely Sri.
Thakur Sanatan Ram Yugal Sarkar was
constructed and established by late Ram
Rati Dasi. During her life time, she used to
offer prayers etc. She died on 28.08.1976.
A suit for permanent injunction was filed
by the appellant-plaintiff no.1 and Mahant
Smt. Janki Dasi, claiming the right and
possession on the temple as Sarvarakar as
plaintiff no.2 on the basis of will deed
dated 26.09.1969 executed by Ram Rati
Dasi. The suit was filed alleging an
incident of 19.08.1978 without lodging any
FIR etc. During pendency of the suit, the
plaintiff no.2 Janki Dasi through a
registered
document
executed
on
02.03.1979 appointed Mahant Lal Das as
Sarvarakar and alleged to have handed him
over the possession and charge of the
temple. Mahant Lal Das was murdered on
16.11.1993. However before his murder, he
had executed a will dated 14.11.1993 in
favour of the appellant-plaintiff no.2
Mahand Awadhesh Das. Accordingly he is
claiming himself to be the legal heir and
Sarvarakar of the temple.

9.
The
written
statement
and
additional written statement was filed
denying the averments made in the plaint
and stating in the additional statement that
after Mahant Ram Rati Dasi, Lalita Dasi
was the Mahant. Smt. Ram Rati Dasi had
got a lease of the land, on which the temple
is situated, which was constructed and
established by her. After death of Ram Rati
Dasi, Lalita Dasi had got her cremation etc.
done and in presence of reputed saints,
Mahants and others of Ayodhya she was
made the Mahant of the temple in dispute
and a Mehzarnama was also signed by
them to this effect. It was also stated that a
will dated 28.06.1976 was executed by
Ram Rati Dasi, which could not be
registered and it was informed by her only
and after her death Lalita Dasi is in charge
of the temple. It was also alleged that a
gang of Ayodhya and Lal Das, who claims
himself to be the Naga of Hanumangarhi,
Ayodhya used to threaten the defendants to
vacate the temple. It was also alleged that
Lal Das was basically a family man who
has been ousted from Hanumangarhi. It
was also alleged that he is disciple of
Ramesh Tyagi and residing in Kurmi
Mandir, Pramod Van, Ayodhya and with
his collusion the suit has been filed by an
impostor lady Janki Dasi, who resides at
986 INDIAN LAW REPORTS ALLAHABAD SERIES
Bodhayan Asharam, Mohalla- Janki Ghat.
She has no concern with temple situated at
Maibara. A plea was also taken that no man
can reside or come to the temple in
question, however it could not be proved.
Certain documents relating to the mutation
in Nagar Palika, old house number, ration
card, correspondence etc. were filed. It was
also alleged that the alleged registered will
deed had been got executed through some
impostor lady. During pendency of suit, it
was amended and prayer for declaration,
possession and eviction of respondent was
made. On the basis of the pleadings of the
parties, eighteen issues were framed.
Thereafter the evidence was adduced by the
parties.

10. The Trial Court allowed the suit.
The
civil
appeal was filed by
the
respondent-defendant before the District
Judge, Faizabad now Ayodhya which has
been allowed by the Additional District
Judge, Court No.1, Faizabad now Ayodhya.
The First Appellate Court framed two points
of determination in appeal. The first was as
to whether Ram Rati Dasi has executed any
will deed dated 26.09.1969 in favour of
Janki Dasi, which has been proved by the
plaintiffs in accordance with law. The
second as to whether any man could have
been Sarvarakar of the place/ temple
according to the custom, if yes, what would
be it's effect on merit of appeal. In regard to
the first point of determination, the first
Appellate Court found that the Court has to
examine basically two issues in regard to
proof of the will. The first is as to whether
the alleged will has been got proved in
accordance with law under the provisions of
the Indian Evidence Act and Section 63 of
the Indian Succession Act. The second is as
to whether the alleged will is beyond any
doubt and as to whether, the doubt which
has been raised has been clearly explained
by the appellant-plaintiff. The Appellate
Court has further recorded that the said two
issues are required to be proved by the
plaintiffs beyond doubt. The appellate court,
after considering the pleadings of the parties
and evidence adduced before the trial court
and affording opportunity of hearing to the
parties allowed the appeal and set aside the
judgment and decree passed by the trial
court and dismissed the suit of the plaintiffappellants.

11. In view of above and the
substantial questions of law framed in this
appeal, the issue to be considered in this
second appeal is as to whether the alleged
will deed has been proved in accordance
with law under the relevant provisions of
Indian Evidence Act and Section 63 of the
Indian Succession Act or not and the
doubts raised by the defendant-respondent
have been clarified and removed by the
plaintiff-appellants or not or as to whether
the execution of Will has been admitted by
the defendant-respondent, which may be
sufficient proof of it's execution as against
her.

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

"63. Execution of unprivileged
wills.-Every testator, not being a soldier
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.
4 All. Sri Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Faizabad Vs.
 Kusam Dasi Chelin Sri Lalita Das
987

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

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

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

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

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

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

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

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

14. The aforesaid section 68 provides
that if a document is required by law to be
attested, it shall not be used as evidence
until one attesting witness at least has been
called for the purpose of proving its
execution, if he is alive and capable of
giving evidence. Section 69 provides that if
no such attesting witness can be found, it
must be proved that the attestation of one
attesting witness at least is in his
handwriting and that the signature of the
person executing the document is in the
hand writing of that person. In case of
admission of a party to an attested
document of its execution, it shall be
sufficient proof of its execution against him
as per section 70. In case the attesting
witness denies or does not recollect the
988 INDIAN LAW REPORTS ALLAHABAD SERIES
execution of the document, its execution
may be proved by other evidence as per
section 71.

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

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

16. A three judge Bench of the
Hon'ble Supreme Court, in the case of Smt.
Jaswant Kaur Vs. Smt. Amrit Kaur and
Others (Supra), while considering the
relevant provisions of Section 63 of the
Indian Succession Act and 68 of the
Evidence Act held as under in paragraphs-9
and 10. award

"9. In cases where the execution
of a will is shrouded in suspicion, its proof
ceases to be a simple lis between the
plaintiff
and
the
defendant.
What,
generally, is an adver- sary proceeding
becomes in such cases a matter of the
court's conscience and then the true
question which arises for consideration is
whether the evidence led by the pro-
pounder of the will is such as to satisfy the
conscience of the court that the will was
duly executed by the testator. It is
impossible to reach such satisfication
unless the party which sets up the will
.offers
a
'cogent
and
convinc-
ing
explanation
of
the
suspicious
circumstances surrounding the making of
the will.

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

1. Stated generally, a will has to
be proved like any other document, the test
to be applied being the usual test of the
satisfaction of the prudent mind in such
matters. As in the ease of proof of other
documents, so in the case of proof of wills,
one
cannot
insist
on
proof
with
mathematical certainty.

2. Since section 63 of the
Succession Act requires a will to be
attested, it cannot be used as evidence
until, as required by section 63 of the
Evidence Act, one attesting witness at least
has .been called for the purpose of proving
4 All. Sri Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Faizabad Vs.
 Kusam Dasi Chelin Sri Lalita Das
989
its execution, if there be an attesting
witness alive and subject to the process of
the court and capable of giving evidence.3.
Unlike other documents, the will speaks
from the death o[ the testator and therefore
the maker of the will is never available for
deposing as to the circumstances in which
the will came to be executed. This aspect
introduces an element of solemnity in the
deci- sion of the question whether the
document propounded is proved to be the
last will and testament of the testator.
Normally, the onus which lies on the
propounder can be taken to be discharged
on proof of the essential facts which go into
the making of the will.

4. Cases in which the execution of
the will is surround- ed by suspicious
circumstances stand on a different footing.
A shaky signature, a feeble mind, an unfair
and unjust disposition of property, the
propounder himself taking a leading part in
the making of the will under which he re-
ceives a substantial benefit and such other
circumstances raise suspicion about the
execution of the will. That suspicion cannot
be removed by the mere assertion of the
propounder that the will bears the
signature of the testator or that the testator
was in a sound and disposing state of mind
and memory at the time when the will was
made, or that those like the wife and
children of the testator who would
normally receive their due share in his
estate were disin- herited because the
testator might have had his own reasons for
excluding them. The presence of suspicious
circumstances makes the initial onus
heavier and therefore, in cases where the
circumstances attendant upon the execution
of the will excite the suspicion of the court,
the propounder must remove all legitimate
suspicions before the document can be
accepted as the last will of the testator.

5. It is in connection with wills,
the execution of which is surrounded by
suspicious circumstance that the test of
satisfaction of the judicial conscience has
been evolved. That test emphasises that in
determining the question as to whether an
instrument produced before the court is the
last will of the testator, the court is called
upon to decide a solemn question and by
reason of suspicious circumstances the
court has to be satisfied fully that the will
has been validly executed by the testator.

6. If a caveator alleges fraud,
undue influence, coer- cion etc. in regard
to the execution of the will, such pleas have
to be proved by him, but even in the
absence
of
such
pleas,
the
very
circumstances surrounding the execu- tion'
of theaward will may raise a doubt as to
whether the testa- tor was acting of his own
free will. And then it is a part of the initial
onus of the propounder to remove all
reasona- ble doubts in the matter."

17. The Hon'ble Supreme Court, in
the case Babu Singh and Others Vs. Ram
Sahai alias Ram Singh (Supra), has held
that 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 and then the burden of proof
may be shifted to others. 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
Evidence Act, in the event the ingredients
thereof, as noticed here-in-before, are
brought on record, strict proof of execution
and attestation stands relaxed. However,
990 INDIAN LAW REPORTS ALLAHABAD SERIES
signature and handwriting, as contemplated
in Section 69, must be proved.

18. In a recent judgment of Meena
Pradhan and Others Vs. Kamla Pradhan
and Another; (2023) 9 SCC 734, the
Hon'ble Supreme Court relying on several
previous judgments of the Hon'ble Supreme
Court deduced the principles required for
proving the validity and execution of a Will
in terms of Section 63 of the Indian
Succession Act, 1925 and Section 68 of the
Indian Evidence Act. The Hon'ble Supreme
Court has also held that one who alleges
fraud, fabrication, undue influence etc. 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.

19. In view of above, a will is
required to be proved by propounder of the
Will in accordance with Section 63 of
Indian Succession Act 1925 and the
aforesaid provisions made in the Indian
Evidence Act 1872 and in case of
suspicious circumstances giving rise to
doubt about the execution of the Will by
the executor for one or the other reason, the
same is required to be dispel by the
propounder
by
giving
cogent
and
convincing explanation.

20. Adverting to the facts of the
present case, the attesting witnesses were
not available, therefore the plaintiffappellants have adduced the oral evidence
of Bina Tripathi as PW-2 to prove the will
in accordance with section 69 of the Indian
Evidence
Act.
She
stated
in
her
examination-in-chief that she knows very
well to Ram Rati Dasi and her disciple Smt.
Janki Dasi, who used to live in the temple
in question together. Both have died. Ram
Rati Dasi had executed a will in favour of
Sanatan Ram Bhagwan in the year 1969
and by the same will appointed her disciple
Janki Dasi as her legal heir and Sarvarakar.
She also stated that the said will deed was
written by Ram Rati Dasi with her free will
when she was present with Ram Rati Dasi.
The will was written by Naval Kishore Lal
and the witnesses were Bhagat Das and
Parag Das. She had put her signatures on
the will after hearing and understanding the
same before her and both the witnesses
have also signed. PW-2 also stated that she
was not the attesting witness of the will but
since the will was prepared before her,
therefore she recognizes the document.

21. The first Appellate Court found
that this witness has not proved the will in
her
examination-in-chief
as
per
law
because she has failed to state that Ram
Rati Dasi had put her thumb impression
after reading or hearing and understanding.
She has also failed to disclose the order of
putting thumb impression by Ram Rati
Dasi and the witnesses. The appellate court
further recorded that PW-2 in her cross-
examination stated that she knows the
Maibara temple because she is going there
for the last 25-26 years. Kurmi temple is
half kilometer away from her house and
now she does not go to Kurmi temple.
Janki Dasi was lower in age to her but she
was her friend, however she does not know
as to which original place she belongs.
Janki Dasi was disciple of Ram Rati, who
had taken Mantra before her about 26 years
back. Ram Rati Dasi was of 70 years of age
at that time. Thereafter she stated that she
was not present at the time of Mantra,
however she had heard that she had become
disciple of Ram Rati Dasi in the year 1967,
again said in 1977 and she died in Maibara
4 All. Sri Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Faizabad Vs.
 Kusam Dasi Chelin Sri Lalita Das
991
temple. She had gone in her 13th day
ceremony, for which the cards were
distributed. The first Appellate Court found
that she does not know sufficiently about
Janki Dasi and Ram Rati Dasi. The
statement of this witness was recorded on
03.03.2014 and at that time she had stated
that her age is 65 years, therefore she was
born in 1949 and as per her statement
regarding her connection with Maibara
temple and Ram Rati Dasi, she had come in
contact with Janki Dasi in the year 1976,
whereas the will deed was executed on
26.09.1969, therefore she was not in
contact with Janki Dasi and Ram Rati Dasi
at that time, therefore the question of his
presence with Ram Rati Dasi and the
attesting witnesses at the time of alleged
execution of will deed dated 26.09.1969
does not arrive.

22. The First Appellate Court has
further recorded that PW-2 has stated in his
evidence that Janki Dasi had taken Mantra
from Ram Rati Dasi 24 years back when
she became the disciple of Ram Rati Dasi,
therefore she would have taken Mantra in
the year 1990 as per her statement, whereas
she was not alive at that time because she
had died in the year 1967 as stated by her
even by his subsequent statement of Ram
Rati Dasi had died in the year 1977, though
it is not correct, thus her evidence is
doubtful. The first Appellate Court also
found that this witness has stated in her
further cross-examination that Ram Rati
Dasi had died at the age of 100 years and
even if she had died in the year 1977, the
evidence of the said witness is not
believable
because
as
per
her
own
statement,when she had seen Ram Rati
Dasi, she was 70 years of age and she
would have been 70 years of age in the year
1947, whereas the witness was born in
1949, therefore it is apparent that this
witness had no information in regard to
Ram Rati Dasi and Janki Dasi. He also
could not give the length and breadth of the
temple and its boundaries. She also does
not know the measurement of the statues of
Ram, Laxman, Sita and Hanuman and the
material of which they are made. She
further stated that Maibara is in Ramghat
but she does not know any other temple in
Ramghat and she does not go there. She
further stated in her cross-examination that
the will was written in eastern side of court
but she does not know the name of the
writer. She further stated that she had
singed on the said will deed but does not
know as to how many places she had
signed. She also does not know as to
whether thumb impression was taken or not
and who was the other witness in the will
deed. Her signatures or thumb impression
are not on the Will. She also does not know
as to who had written the will. She also
stated that she does not know Kusum Dasi,
who is present in the court. Janki Dasi had
died in the year 1969 in Maibara and she
had not gone in the 13th day ceremony.

23. In view of above, if Janki Dasi
had died in the year 1969 and Ram Rati
Dasi in the year 1977 then the question of
execution of the will in favour of Janki
Dasi does not arise because as per her
subsequent statement she died in the year
1977, therefore the first Appellate Court
found that the evidence of PW-2 is
completely doubtful and his statement is
not believable and she has failed to prove
the execution of the alleged will in
accordance with law.

24. The first Appellate Court also
found that the evidence of PW-3 Satya Deo
Tiwari is also not believable and sufficient
to prove the will of 1969 because he had
disclosed his name Satya Deo Tiwari in the
992 INDIAN LAW REPORTS ALLAHABAD SERIES
examination-in-chief, whereas in the crossexamination he told his name as Satya Deo
Tripathi. His signatures are also different
and they also do not seem to be of one and
the same person. This witness has recorded
his father's name as Girja Shanker Tiwari in
the
affidavit
of
examination-in-chief,
whereas in the cross-examination he has
told his name Girja Shanker Tripathi. He
has stated in his evidence that Ram Rati
Dasi had executed the will in her lifetime in
the year 1969 in favour of Sanatan Ram
Bhagwan and by the same will appointed
her disciple Janki Dasi as her successor and
Sarvarakar and it was told to him by Janki
Dasi and the said document was also shown
to him. He also tried to prove the document
of Sarvarakari written by Janki Dasi in
favour of Ram Das.

25. The first Appellate Court found
that PW-2 and PW-3 both have not
disclosed the date, month and year of
execution of the will deed and nothing
stated in this regard except that the will
deed was written in 1969. PW-3 has given
his evidence on the basis of information
given by Janki Dasi in regard to the will
deed. He has also not proved the signatures
of the attesting witnesses and he was not
present at the time of execution of the will
deed. The first Appellate Court has also
recorded that at the time of giving evidence
on 07.03.2014, PW-3 has stated his age
about 58 years, therefore he must have
been borne in the year 1956 and 13 years of
age in the year 1969, therefore he is
incompetent to prove the will of 1969. The
first Appellate Court also found that as per
statement of PW-3, he had not seen Ram
Rati Dasi and he had gone to Maibara
temple for the first time 40 years back,
when Janki Dasi had met her, who used to
come to his house and at that time he was
18/19 years of age, therefore he is not
competent to prove the thumb impression
of Ram Rati Dasi and signatures of the
attesting witnesses. Thus the PW-2 and
PW-3 have failed to prove the Will.

26. This Court does not find any
illegality or error in the aforesaid findings
recorded by the first appellate court, which
have been recorded on the basis of
pleadings, evidence adduced before the
trial court and material on record, which
are in conformity with them.

27. Now the question arises as to
whether even if the plaintiff-appellants
have failed to prove the execution of will
deed in accordance with law, as to whether
the DW-1 and DW-2 have admitted
execution of the will and the same can be
said to be sufficient proof of execution of
will against the defendant-respondent under
Section 70 of the Indian Evidence Act

28. Perusal of the oral evidence
adduced by DW-1 and DW-2 indicates that
DW-1 has stated in his examination-inchief that Janki Dasi had never lived in the
concerned temple and she was not a
disciple of Ram Rati Dasi. She has further
stated that as per written statement Lal Das,
Mahipath Pandey, Lallu Pandey and a
forged lady namely Meera had got prepared
the will in the name of Ram Rati Dasi and
got registered which is apparent from its
reading because there was no justification
of mentioning Janki Dasi as Sadik Cheli
and in the property only Haata has been
written and Kaushalya Dasi never lived as
such there was no connection of Janki Dasi
with the property in dispute. In her crossexamination also she has stated that she
does not know as to whether the will dated
26.09.1969 has been written by Ram Rati
Dasi to Janki Dasi and she had not heard of
4 All. Sri Thakur Sanatan Ram Yugal Sarkar Virajman Mandir Faizabad Vs.
 Kusam Dasi Chelin Sri Lalita Das
993
the same prior to it. She has further stated
that Lalita Dasi had told her that a will was
got executed in favour of Janki Dasi by an
impostor lady as Ram Rati Dasi. The DW-2
has stated in her examination-in-chief that
Janki Dasi, who used to live in Pramod
Van, Janki Ghat, Bodhayan Ashram never
lived in Maibara temple. Janki Dasi has
never been the disciple of Ram Rati Dasi
and she knows it very well because she is
residing there since the age of 12 years. She
has specifically stated in her crossexamination that Ram Rati Dasi has not
written any document in her presence. She
also does not know as to any will was
executed by Ram Rati Dasi to any Janki
Dasi. She also does not know Janki Dasi.
Lalita Dasi was the disciple of Ram Rati
Dasi.

29. In view of above, it is apparent
that DW-1 and DW-2 have not admitted the
execution of the will dated 26.09.1969
executed by Ram Rati Dasi in favour of
Janki Dasi rather it has specifically been
stated by DW-1 that she was told by Lalita
Dasi that a will was got executed by an
impostor lady as Ram Rati Dasi, therefore,
it can not be said that the execution of the
will has been admitted by the defendants
and the same is admissible against the
defendant under Section 70 of the Indian
Evidence Act. However by the said
statement, the DW-1 has deepened the
doubt of execution of Will by an imposter
lady which was required to be clarified and
removed by the plaintiff-appellants which
they have failed to do.

30. In view of above, it is apparent
that the plaintiff- appellants have failed to
prove the execution of Will in terms of
Section 63 of the Indian Succession Act
and by giving any cogent evidence in
accordance with the provisions made in the
Indian Evidence Act. The respondent
defendants and DW-1 and DW-2 appeared
on their behalf have not admitted the
execution of the will. Their aforesaid
statement can only be a hearsay evidence,
which can not be relied in absence of its
corroboration and substantive evidence and
there
is
no
corroborative
substantial
evidence as discussed above.

31. A Constitution (five judges)
Bench of Hon'ble Supreme Court, in the
case of Neeraj Dutta vs State (Govt. of
N.C.T.