Daulat Ram & Ors Vs. Sodha
& Ors  Insc 689 (16 November 2004)
Ashok Bhan & S.H. Kapadia
This appeal, by grant of special leave, is directed against the judgment and
order dated 26.9.2001 of a Single Judge of the High Court of Himachal Pradesh
in Second Appeal No. 212 of 1995. The High Court by the impugned judgment has
confirmed the judgment and decree passed by the first Appellate Court and
decreed the suit filed by the Respondent No. 1.
Facts giving rise to this appeal, in short, are:
One Prati, son of Kamna, executed a Will on 11.01.1977 in favour of his
nephews, appellants herein, bequeathing his entire property in their favour. In
the Will no provision was made by Prati either for his wife Gulabo or for his
daughter Sodha Respondent No. 1 herein from his another wife Radhi. This Will
was duly executed, attested and registered. Thereafter, on 08.05.1983 Prati
executed another Will wherein he revoked/cancelled his earlier Will dated
11.01.1977 and bequeathed his property to his daughter, Respondent No. 1. This
Will was duly executed and attested but was not registered.
Prati died on 10.05.1983. After his death Respondent No. 1 filed Suit No.
102 of 1983 on 14.07.1983 for injunction restraining the appellants from
interfering with her possession over the property of her deceased father
claiming herself to be the owner in possession of the said property or in the
alternative for possession thereof by virtue of Will executed in her favour
Appellants contested the suit denying that the Respondent No. 1 was the
daughter of Prati. That the alleged Will propounded by the Respondent No. 1 was
prepared in collusion with the scribe and the attesting witnesses. According to
them Prati had died issueless. They propounded the Will dated 11.1.1977
executed by Prati wherein the entire property was bequeathed by him in their
favour and claimed themselves to be the legal heirs and only successors to the
estate of deceased Prati.
Trial Court dismissed the suit filed by the Respondent No. 1. It was held
that she was not the daughter of Prati. That Prati did not execute any Will in
favour of Respondent No. 1. It was further observed that the Will dated
11.01.1977 in favour of appellants was valid and by virtue of the same
appellants were entitled to the estate left by Prati. Being aggrieved,
Respondent No. 1 preferred civil appeal. First Appellate Court after
reappraising the entire evidence set aside the judgment and decree passed by
the Trial Court. The suit filed by the Respondent No. 1 was decreed by
observing that Respondent No. 1 was the daughter of deceased Prati and a valid
Will had been executed in her favour by Prati. It was held that she had become
the owner and therefore entitled to the possession of the same. It was observed
after close scrutiny of both the Wills that the Will dated 11.01.1977 was
procured by the appellants under pressure from Prati which was subsequently
revoked by him by executing the second Will dated 08.05.1983.
Appellants preferred a regular second appeal against the judgment and decree
passed by the first appellate Court which was dismissed being without any
merits. The judgment and decree passed by the first Appellate Court was
confirmed. It was observed that the first appellate Court had rightly concluded
that Respondent No. 1 was the daughter of deceased Prati from his wife Radhi
and the Will dated 08.05.1983 was validly executed by him while in sound
disposing mind in the presence of the attesting witnesses and the scribe.
Being aggrieved the appellants have preferred this appeal.
The only point raised before us is that the second Will dated 08.05.1983
executed by Prati was surrounded by suspicious circumstances and the same was
Though appellants in their written statement had averred that the Will dated
08.05.1983 was forged but no issue was framed on this point. No evidence was
led by the appellants to prove the forgery.
Will being a document has to be proved by primary evidence except where the
Court permits a document to be proved by leading secondary evidence. Since it
is required to be attested, as provided in Section 68 of the Indian Evidence
Act, 1872, it cannot be used as evidence until one of the attesting
witnesses 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. In addition, it has to satisfy the requirements
of Section 63 of the Indian Succession
Act, 1925. In order to assess as to whether the Will has been validly
executed and is a genuine document, the propounder has to show that the Will
was signed by the testator and that he had put his signatures to the testament
of his own free will;
that he was at the relevant time in a sound disposing state of mind and
understood the nature and effect of the dispositions and that the testator had
signed it in the presence of two witnesses who attested it in his presence and
in the presence of each other. Once these elements are established, the onus
which rests on the propounder is discharged.
But where there are suspicious circumstances, the onus is on the propounder
to remove the suspicion by leading appropriate evidence.
The burden to prove that the will was forged or that it was obtained under
undue influence or coercion or by playing a fraud is on the person who alleges
it to be so.
Respondent No. 1 has successfully discharged the onus of proving the due
execution of the Will. The two attesting witnesses, PW-3 and PW-5, have clearly
stated in their depositions that Prati was in sound disposing mind at the time
of the execution of the Will and had put his thumb mark on the said Will after
the same was read over to him in their presence and that they had signed the
Will in the presence of the testator and in the presence of each other. They
have deposed that Respondent No. 1 was the daughter of Prati and Prati of his
own volition had executed the Will in favour of Respondent No. 1.
PW-5 is a former Member of Legislative Assembly. PW-3 is a close relation of
deceased Prati. There is nothing on record to indicate that they have deposed
falsely. Rather their testimonies inspire confidence.
PW-2 is the scriber of the Will and neighbour of deceased Prati. He has also
deposed that Respondent No. 1 is the daughter of Prati and that he had scribed
the Will at the instance of Prati. He has also deposed that Prati had executed
the will of his own while in sound disposing state of mind. The Will propounded
by the appellants has been specifically revoked/cancelled by the Prati in his
later Will stating therein that the earlier Will was got written from him
forcibly by the appellants. Assertion in the second Will by the testator about
the earlier Will having been forcibly got executed from him by the appellants
is corroborated by the fact that in the earlier Will it was shown that the
testator had no child or heir except the appellants and the fact of presence of
Respondent No. 1, daughter of testator, was suppressed. From the reading of the
first Will it is clear that appellants were aware that Prati had a daughter who
could at any time lay her claim to the property of her father.
The only suspicious circumstance surrounding the Will pointed out is that
Prati had thumb-marked the second Will, whereas the earlier Will had been
signed by him. According to the appellants this shows that Prati was physically
incapable of executing the Will.
According to them, Prati was unconscious for 2 3 days prior to his death
which took place a day next to the execution of the Will.
Counsel for the appellants referred to the statement of DW-6, Devi Ram a
purohit, who has stated that he had gone to the house of Prati a day or two
earlier for pundhan which was done by one of the appellants as Prati was not in
a position to do so being unconscious.
We do not find much substance in this submission as it has come on record
that though Prati was illiterate he had learnt to put his signatures, but most
of the time he used to put his thumb impression.
He was 84-85 years of age. In the face of unequivocal and trustworthy
statements of scribe PW-2 and the attesting witnesses PW-3 and PW-5, much
reliance cannot be placed on the testimony of DW-6. No other witness has been
examined to show that Prati was unconscious at the time of the execution of the
The burden to prove that the Will dated 8.5.1993 executed by Prati in favour
of his daughter was forged or was obtained by undue influence or by playing a
fraud was on the appellants which they have failed to discharge. No evidence
was led by them on either of these points.
Be that as it may, the second Will executed by Prati has been proved to be
genuine and validly executed by him wherein he has bequeathed his entire
property to his daughter, Respondent No. 1.
The earlier Will executed in favour of the appellants has been specifically
revoked. Since the earlier Will stands revoked it cannot be given effect to.
We agree with the findings recorded by the High Court that Respondent No. 1
is the daughter of Prati and Prati had executed a valid will in her favour.
There is no merit in this appeal and the same is dismissed with no order as