1. Ravi Shankar Upadhaya 2. Dr. Dinesh Upadhaya Both sons of Late Hari Shankar v. …
Case Details
2025:JHHC:37446 IN THE HIGH COURT OF JHARKHAND AT RANCHI Misc. Appeal No.523 of 2018 ------ 1. Ravi Shankar Upadhaya 2. Dr. Dinesh Upadhaya Both sons of Late Hari Shankar Upadhaya 3. Raghavendra Upadhaya 4. Vinayak Upadhaya 5. Aditya Upadhaya Sl. Nos.3 to 5 are sons of Ravi Shankar Upadhaya 6. Goutam Upadhaya, son of Dr. Dinesh Upadhaya All resident of Holding No.27, C.H. Area (East), P.O. & P.S. Bistupur, Town Jamshedpur, District East Singhbhum Versus .... .... …. Appellants 1(A) Vatsala Shukla, daughter of Late Kusum Shukla, resident of A- 25 I.F.S. Apartment, Mayur Vihar, Phase- I, P.O. and P.S. Patparganj, District East Delhi 1(B) Vanita Shukla Hork, daughter of Late Kusum Shukla, resident of Bulowsvej 26, I Floor, 1870, Frederiksberg C, Copenhagen Denmark .... .... .... Respondent CORAM: HON’BLE MR. JUSTICE GAUTAM KUMAR CHOUDHARY For the Appellants For the Respondents : Mr. Amit Kumar Das, Advocate Ms. Swati Shalini, Advocate Mr. Vineet Sinha, Advocate Ms. K. Deo, Advocate : Mr. Subhashish Rasik Soren, Advocate Ms. Shobha Gloria Lakra, Advocate Mr. Mrinalini Adela Tete, Advocate Mr. Elwin Nishant Tirkey, Advocate Mr. Preeti Hembrom, Advocate Mr. Singi Sharon Demta, Advocate Order No.11 / Dated : 10.12.2025 ------ The appellants are aggrieved by the judgment dated 19.07.2018 passed by learned District Judge-V, Jamshedpur, in Title Suit No.4/2013, whereby and whereunder their petition for grant of probate of the WILL has been dismissed by the learned Probate Court. 1 2025:JHHC:37446 2. Appellant Nos.1 and 2 are the sons of the testator and appellant nos.3 to 6 are the grandsons of Testator Kristo Rani Upadhya @ Girija Upadhyay, whereas the sole respondent- Kusum Shukla (deceased) is her daughter. 3. As per the case of the appellants, the registered WILL was executed on 04.05.2010 and the Testator, Kristo Rani Upadhyay @ Girija Upadhyay died on 31.07.2010. Thereafter, the probate application was filed on 06.01.2011. The WILL is with respect to five schedule properties in which the respective portion of the house has been bequeathed in favour of the beneficiaries. 4. A piece of land measuring 160 feet x 101 feet, approximately area 16160 Sq. ft. was leased by M/s TISCO by registered deed, no.8866 dated
Legal Reasoning
22.09.1970 to her husband, Mr. Hari Shankar Upadhyay and to her two sons namely Ravi Shankar Upadhyay @ Ganesh Upadhyay and Dr. Dinesh Upadhyay in the year 1995. Hari Shankar Upadhyay gifted his entire share of land and super structure of holding no.27, C.H. area to his wife through registered gifted no.2573 dated 10.04.1985. The land was accordingly mutated in the name of the testator and her two sons, namely Ravi Shankar Upadhyay and Dr. Dinesh Upadhyay. Testator owned half of the lease land and approximately 8080 Sq. ft. and super structure. 5. The Testator executed WILL on 04.05.2010 in presence of two attesting witnesses, namely Tapo Gopal Mukherjee and Manjeswar Narendra Bhatt. The WILL was duty registered in the registry office on 04.05.2010, which was numbered as 4137. 6. Probate application was contested by the only married daughter of the Testator, Kusum Shukla on the ground that the WILL was forged and fabricated. The signature appearing on each of the page of the WILL was completely at variance with one of the another. 7. Altogether four witnesses were examined on behalf of the plaintiffs/appellants and the documents were adduced and marked as Exhibit 1 to Exhibit 4. During trial, WILL has been proved as Exhibit 3 and signature of the attesting witness- P.W.3 (Manjeshwar Narendra Bhat) has been proved and marked as Exhibit 2. The WILL was prepared by one 2 2025:JHHC:37446 Jaidrath Goswami, Advocate (P.W.4). The objector- Kusum Shukla examined herself as D.W.1. 8. Learned Probate Court dismissed the probate application, inter-alia, on the ground that the attesting witness (P.W.3) has specifically stated in Para 8 of his cross-examination that he did not read-over the contents of last Para of Page 10 of the WILL to the Testator. As per his examination-in-chief, the testator had herself read-over the said WILL. Applicants/plaintiffs failed to prove that the WILL was duly executed by the Testator on her free will and she had full knowledge and understanding of the contents of the Will. 9. Learned trial Court held that presumption of genuineness usually attaches with the WILL, but it is only in respect to the matter of the registration as per the requirement of Indian Registration Act and not in respect of the factum of attestation within the meaning of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act. It is contended that mere registration was not a guarantee for its due execution. As held in Bhagat Ram & Another vs. Suresh & Others, (2003) 12 SCC 35. 10. It was noted by the learned trial Court that P.W.4 in Para-15 of the cross-examination had stated that the WILL was drafted and typed on the date of instruction and it was registered on the next day/date, whereas, as per the examination-in-chief of P.W.3 and P.W.4, the attesting witnesses put their signatures on 03.05.2010, when the WILL was typed and presented for registration on the said day, whereas the draft of the WILL reflects that it was made in April, 2010. ARGUMENT OF APPELLANT 11. It is argued by learned counsel for the appellants that as per the testimony of D.W.1 (Objector) in Para-38 that she had lastly visited Jamshedpur in the Year, 2003, the residential house where the schedule property is situated. It was natural for the testator, who happened to be mother and grandmother of the beneficiaries to have executed the WILL with respect to half share in the schedule property in their favour. 12. It is further argued that the witnesses have consistently deposed that the WILL was executed on 04.05.2010 which is the date of the execution of the registered WILL. 3 2025:JHHC:37446 13. The learned Probate Court ignored the oral evidence and has attached undue importance to the last line of Page 10 of the WILL, which was a typographical error wherein it has been stated as follows :- “………I admitted to be true and put my signature in their presence today on the ……. Day of April, 2010”. 14. It is contended that this by itself was not sufficient for a presumption to be drawn that the WILL was clouded by suspicious circumstances. 15. It is also argued that it being a registered WILL, the presumption was in favour of its execution and onus was upon the objector to have rebutted the presumption. Reliance is placed on Rattan Singh & Others Vs. Nirmal Gill & Others, (2021) 15 SCC 300, Para 33. 16. It is contended that every unusual feature in a WILL cannot be termed as suspicious circumstance, and at best it can demand a close scrutiny. Reliance in this regard is placed on Leela Rajagopal and Others Vs. Kamala Menon Cocharan and Others, (2014) 15 SCC 570, Para 13 and also in Gurudev Kaur and Others Vs. Kaki & Others, (2007) 1 SCC 546. ARGUMENT OF OBJECTOR 17. It is argued by learned counsel on behalf of respondents that the mandate of law as laid down under Section 63 of the Registration Act read with Section 68 of the Evidence Act has not been followed in the execution of the WILL, which will be evident from the fact that the WILL has been said to be executed on 04.05.2010, however, at Page 10, it is specifically referred April, 2010. When P.W. 4- Jaidrath Goswami was confronted with this, it has come in his deposition at Para-15 that the WILL was drafted and typed on the day of instruction i.e. 3rd May, 2010 and it was registered on the next date i.e. 4th May, 2010. Thus, three dates emerge on the basis of pleadings and evidence of the appellants which creates a cloud over the genuineness of the WILL. First is April, 2010, second is 3rd May, 2010 when the WILL was said to be drafted and finally it is 4th May, 2010 when it was executed. It is contended that this discrepancy has nowhere been clarified on behalf of the applicants. 18. It is further argued that there are materials to show that the said WILL was not duly registered. P.W. 3 the attesting witness, has proved the 4 2025:JHHC:37446 signature of the deceased testator, but has admitted in his cross-examination at para 6 that there was no signature on three maps which were attached with the WILL. 19. Further, the WILL was not read over to the testator. Reliance in this regard is placed on Bhagat Ram & Another Vs. Suresh & Others, (2003) 12 SCC 35, Para 21 and 22, wherein the requirement of valid registration has been laid down. Further reliance is placed on Rani Purnima Debi & Another Vs. Kumar Khagendra Narayan Deb & Another, 1961 SCC OnLine SC 89, Para 23. 20. Lastly, it is argued that there is a very short time gap between execution of the WILL on 4th May, 2010 and the death of the testator shortly thereafter on 31st July, 2010. This is one of the circumstances which shows that the aged lady, who was more than 80 years, was not in a free disposing state of body and mind to execute the WILL. It is argued that at most, her physical presence for registry can be inferred from the photographs and LTI in the registered WILL, but it does not mean any entry regarding her physical and mental state of mind and will not be sufficient to override the anomalies appeared in the WILL. ANALYSIS 21. Admitted position that emerges on the basis of pleadings and evidence led on behalf of both sides, is that Testator had bequeathed her share in the property to the sons and grandsons to the exclusion of her married daughter. There is no challenge to the title of the testator in the property bequeathed. The WILL was registered and the photograph as well as finger print appears on the WILL along with her signature. 22. Although it has been pleaded that the signature appearing on the WILL was forged and fabricated, but no step was taken by the objectors during the trial of the testamentary suit to get it disproved by handwriting expert. 23. Main point for determination is whether there were suspicious circumstances attending the execution of the WILL to raise cloud over its due execution. 24. Before adverting to the argument advanced on behalf of both sides, it will be desirable to revisit the principles of appreciation of evidence while 5 2025:JHHC:37446 considering an application for probate of a WILL which has crystalized through long line of judicial precedents. The principles can be summed up as under: - I. Mode of proving a WILL does not ordinarily differ from that of proving any other document, except to the special requirement of attestation prescribed in the case of a WILL by Section 63 of the Succession Act. The onus of proving the WILL is on the propounder and in the absence of suspicious circumstances surrounding its execution, proof of testamentary capacity and the signature of testator, is sufficient to discharge the onus. II. Where however there are suspicious circumstances, the onus shifts on the propounder to dispel them. The suspicious circumstance may be as to genuineness of the signature or the condition of the testators’ minds in which the dispossession is made. Where the terms of the WILL are unnatural, improbable or unfair, it can be one of the suspicious circumstances. III. Every circumstance is not a “suspicious” circumstance. IV. The testator shall sign or affix his mark to the WILL or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a WILL. V. The WILL should be witnessed by two attesting witnesses and each of them must have seen the testator signed or affixed his mark to the WILL or has seen some other person signed the WILL. Each of attesting witnesses shall sign the WILL in the presence of the testator, however the presence of all witnesses at the same time is not required. VI. At least one attesting witness, who is alive shall be examined. VII. One who alleges fraud, fabrication, undue influence etc., has to prove the same. However, even in the absence of such allegation, there are circumstances giving to doubt, then it becomes the duty of the propounder to dispel suspicious circumstances by giving cogent and convincing explanation. 6 2025:JHHC:37446 VIII. The Court does not sit in appeal over the testator’s decision. The Courts’ role is limited to examining whether the instrument propounded was the last WILL of the deceased or not and product of free and sound disposing mind. [Gurudev Kaur Vs. Kaki, (2007) 1 SCC 546; Indubala Bose Vs. Manindar Chand Bose, AIR 1982 SC 133;Gopal Krishna Vs. Daulat Ram, (2025) 2 SCC 804.] 25. Applying the above principles to the facts of the present case, it is apparent that in the written statement objection was raised on the ground that the WILL itself was forged and fabricated. A further plea was taken that the testator though of sufficient intellect, but being in feeble stage of health at the age of 86 was unable to resist and was under the undue influence of the plaintiffs. The two-plea taken is somewhat inconsistent and mutually destructive. Either a document can be assailed to be forged not bearing the signature of the executor, or it can be pleaded that the said document was executed under undue influence. Both the pleas cannot be raised in the same breath that it was not signed, and that the signature was obtained under undue influence. 26. No step was taken before the Probate Court for appointment of any hand writing expert to establish that the WILL was not signed by the testator nor any oral or documentary evidence has been led in support of the pleading that the testator was not in disposing state of mind. Not a chit of paper has been filed to buttress the plea that the testator was ill or she was under the undue influence of the plaintiffs. There is a presumption of due execution of any registered instrument and onus lies on the part who assails such allotment to be vitiated by fraud as held by the Apex Court in Ratan Singh Case (Supra) that attesting witness in the present case has been examined as P.W.-4 and he has proved the due execution of the WILL. Merely because the WILL was drafted a day before the execution will not be termed to be a suspicious circumstance. In the absence of any evidence of rebuttal, Section 61 of the Succession Act will not be attracted. 27. It is rather surprising that learned Probate Court undertook the task of comparing the signature of the testator on each page of the WILL when the pleadings are conflicting and contradictory. 7 2025:JHHC:37446 28. The issue regarding absence of signature of the testator of the map enclosed with the WILL is peripheral and does erode its due execution. Any documentary evidence has to be read in its totality in the background of the facts and circumstances of each case including the other oral evidence on record. Merely because of one page the April, 2010 has been typed is not sufficient to draw an inference that it was not duly executed. 29. Here in the present case, the attesting witnesses are M.N. Bhatt and Tapo Gopal Mukherjee whose signature have been proved. The attesting witness- Manjeshwar Narendra Bhatt has been examined as P.W.-3 who has deposed in Para 5 that testator had signed over the documents and affixed her mark on the WILL in his presence. 30. Under the aforesaid facts and circumstances, the impugned order of dismissal of probate application is not sustainable, and is accordingly set aside. Miscellaneous Appeal is allowed.
Decision
Pending Interlocutory Application, if any, stands disposed of. (Gautam Kumar Choudhary, J.) Anit/Pawan Uploaded 15.12.2025 8