The High Court · 2025

Legal Reasoning

Suit No.13 of 2002 was confirmed. The suit, filed by the Plaintiff for declaration of his right, title and interest over the suit property and for delivery of possession by evicting the Defendants therefrom was dismissed by the trial Court and confirmed by the First Appellate Court.

2. For convenience, the parties are described as per their respective status in the trial Court.

3. The Plaintiff case, briefly stated is that the suit property originally belonged to one Parsuram Behera. The Plaintiff is his nephew being the son of his elder brother, late Bairagi Sethi. Although three brothers had separated during their lifetime, Parsuram, who had married Chandrama, had no issues. He had illicit relationship with Defendant No.2 and out of the said relationship, Defendant No.1 was born. Parsuram retired from government service in 1987 and his wife Chadrama died on 22.05.1994. During her lifetime, Parsuram purchased a vacant house site vide registered Sale Deed No. 3792/72 in her name out of her funds. After her death, Parsuram became its owner. He constructed a house with asbestos roof, divided into two portions. The suit property pertains to the northern portion of the said house. Both Parsuram and Chandrama were fond of the Plaintiff and had raised him from his childhood as their own child. The Plaintiff also resided with them at Berhampur and continued to stay with them even after retirement of Parsuram. He used to look after Parsuram and his wife and continued to stay there even after his marriage. Parsuram, therefore, out of his love and affection, executed a registered Will in his favour bequeathing the suit property on 27.08.1997. Parsuram bequeathed the adjacent southern portion of the house to Defendant No.1. He was in sound health and disposing mind and had executed the Will without being influenced by anyone. The Defendants never stayed in his house. The southern portion was let out to a tenant. The Defendants were residing elsewhere as Chadrama never allowed them to come to her house and Parsuram also did not keep any contact with them. After death of Chadrama in 1995, Parsuram brought Defendant No.1 to his house to cook food and to do other works. But, Defendant No.2 continued to stay elsewhere. Parsuram died on 23.04.2001. The Plaintiff performed his obsequies by spending money. After completion of the obsequies, the Plaintiff and his wife went to Berhampur leaving the suit property in charge of Defendant No.1. Taking advantage of their absence, Defendant No.2 came and stayed with her daughter in the suit house. The Plaintiff having come to know of the same asked the Defendants to vacate but when they refused to vacate and also to handover the papers relating to the suit house including the Will, the Plaintiff was constrained to file the suit.

4. Defendant Nos. 1 and 2 filed a joint written statement. They denied all the plaint averments. Their case was that Parsuram had married Chandrama, who died on 22.05.1994 without any issues. She was a blind lady and was depressed for which she requested Parsuram to have another marriage to continue the lineage. Parsuram therefore married Defendant No.2 according to customs and traditions. Since then, Defendant No.2 had been staying with the husband- Parsuram as his legally married wife. She also allowed Chandrama to stay with them. Parsuram had strained relations with his brother and family members including the Plaintiff. Defendant No.1 was born from out of the wedlock of Parusuram and Defendant No.2. After retirement of Parsuram, they shifted to the suit house. Parsuram died intestate on 23.04.2001 leaving behind the Defendants as his successors. They were recognized as his legal heirs in all official documents. Parsuram had acquired the suit house vide RSD dated 18.09.1997 but in the name of his first wife Chandrama, who had no son of her own. The northern portion was used as residence and the southern portion was let out to tenants. The Plaintiff was never raised by Parsuram. Parsuram suffered from many ailments after his retirement until death. Plaintiff never spent any money for the treatment of Parsuram and after his death, the Defendants performed his obsequies by spending money. The registered Will dated 27.08.1997 is created/manufactured by the Plaintiff taking undue advantage of the absence of Defendants with the intention to grab the suit property. Since the Will was never executed by Parsuram on his own volition, free will and consent, it does not create any title in favour of the Plaintiff. The Will was never attested nor acted upon.

5. Basing on the rival pleadings, the trial Court framed the following issues for determination:- “ 1. Whether the suit is maintainable?

2. Whether the plaintiff has cause of action to file the suit? 3. Whether the alleged registered will dated 27.08.97 executed by late Parsuram Behera in favour of the plaintiff is valid and binding on the defendants thereby creating right, title, interest of the plaintiff over the suit house? 4. Whether the plaintiff is the adopted son of late Parsuram Behera? 5. To what relief, if any, the plaintiff is entitled ?

6. Issue No.3 being the most important was taken up for consideration at the outset. The trial Court made reference to the relevant statutory provisions such as Sections 67 and 68 of the Evidence Act, Section-3 of the Transfer of Property Act and Section 63 of the Indian Succession Act to examine whether the Will was a valid document, being executed and attested in the manner required by law. The trial Court thereafter scanned the evidence adduced by the Plaintiff in support of the Will, namely, the attesting witnesses (P.W. 2 and P.W. 4) and the scribe P.W.3. It was found that the evidence of the aforementioned witnesses is highly inconsistent and does not clearly prove that the attesting witnesses had seen the testator sign on the Will . The trial Court was of the view that the evidence did not suggest that each of the attesting witnesses had signed on the Will and done so in presence of the testator. It was therefore held that the plaintiff had failed to prove the valid execution of the Will. On Issue No. 4, the trial Court found no evidence whatsoever in support of the claim that the plaintiff was the adopted son of Parsuram Behera. In view of the findings rendered on the main issues, the remaining issues were answered against the Plaintiff and the suit was dismissed.

7. The Plaintiff carried appeal. The First Appellate Court re-appreciated the evidence independently and arrived at the same conclusion as the trial Court to the effect that the Will was not proved to have been validly executed and attested as required by law. The appeal was thus dismissed confirming the judgment and decree passed by the trial Court.

8. Being further aggrieved, the plaintiff has filed this second appeal which was admitted on the following substantial question of law:- “Whether the finding of the courts below that there was no proof of due attestation of the Will is based on misreading of the evidence on record?”

Legal Reasoning

Heard Mr. S.C. Pani, learned counsel for the Plaintiff-Appellant. None appeared for the Defendants- Respondents despite valid service of notice of the appeal on them.

10. Assailing the findings of both the Courts below, Mr. Pani would argue that they have ignored the vital fact that the Defendants never disputed the genuineness of the signature of the testator and the attesting witnesses. Further, Section 63 of the Indian Succession Act does not provide that though the Will is to be attested by two witnesses, the said witnesses should be present at the same time. The Will cannot be treated as not validly executed and attested only because one attesting witness had not seen the other attesting witness attesting the Will. The Courts below placed undue importance on the minor discrepancy in the statements of the attesting witnesses regarding the time of execution and attestation of the Will, ignoring the fact that the witnesses were deposing six years after the execution and registration of the Will. Moreover, the Registering Officer has given a certificate that the testator had admitted execution of the Will before him. Mr. Pani concludes his argument by submitting that the Courts below have raised unnecessary suspicion with regard to execution and attestation of the Will even though it satisfies all requirements of law.

11. Considering the contentions raised, it is evident that the dispute in the present case hovers around valid execution and attestation of the Will. As already stated, both the Courts below were not satisfied that the Will was validity executed and attested as required by law. Section 63 of the Indian Succession Act deals with the execution of unprivileged Will and reads as follows: “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 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.”

12. Thus, the requirement of Section 63 is that the Will has to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will. This is a fundamental requirement. The Will in question undisputedly purports to have been attested by two witnesses, namely, Shibaram Padhi (P.W.2) and V. Ramamurty (P.W.4). That apart, one S. Swain (P.W.3) had scribed the Will. It is also not disputed that the Will was registered, though it is not required to be compulsorily registered in law. Proof of execution of such a document is governed by Section 68 of the Evidence Act, which reads as follows:-

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 given 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 purports to have been executed to specifically denied]

13. The requirement is that at least one attesting witness must come forward to prove execution of the Will. In the case of Meena Pradhan v. Kamla Pradhan, (2023) 9 SCC 734, the Supreme Court, relying on several earlier judgments culled out the following principles required for proving the validity and execution of the Will. is not required

10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him; 10.2. It to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. 10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures; (d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required; 10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; 10.5. The attesting witness should speak not only about the testator’s signatures but also that each of the witnesses had signed the will in the presence of the testator; 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with; 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator’s last will. In such cases, the initial onus on the propounder becomes heavier. 10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will; 10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. 10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ”. Whether a particular feature the content as well as would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.

14. Keeping the above propositions and principles of law in perspective, the evidence needs to be examined to determine whether the Courts below committed any error in holding that the Will was not validly executed and attested. The trial Court found that one of the attesting witnesses namely, Sibaram Padhi (P.W.2) deposed that on the testator’s request, he went to the office of the District Sub-Registrar at Chhatrapur where the scribe, after scribing the Willnama, read over and explained the contents to Parsuram (testator) in his (P.W.2) presence and then he put his signature thereon. He further stated that first of all the testator signed followed by the other attesting witness, V. Ramamurty (P.W.4) and thereafter he (P.W.2) put his signature. But in cross-examination, he admitted that upon his arrival, he found that he was the only witness and elsewhere he stated that he was not present during scribing of the Will. He admitted not to have seen the other attesting witness (P.W.4) signing the Will and that Parsuram (testator) had already signed on the Will by the time he (P.W.2) put his signature. The other attesting witness, P.W.4, stated that first the testator put his signature followed by him and thereafter by Sibarama Padhi. He also says that he had put his signature in the house of Parsuram Behera and had not gone to the Sub- Registrar’s office. The trial Court found that the statements of P.Ws. 2 and 4 as well as of the scribe P.W.3 are inconsistent. It could not be conclusively established that both the attesting witnesses were present or had seen the testator sign the document. This is a material omission and highly significant in the present context.

15. The argument advanced by learned counsel for the Plaintiff-Appellant that law does not require both the attesting witnesses to be present at the same time can be considered only to be rejected. This is for the reason that by attestation is meant acknowledgment of execution of the Will by the testator in their presence. So, as rightly held by the trial Court and concurred by the First Appellate Court, only because the signatures of P.W.2 and P.W.4 appeared on the Will as attesting witnesses does not ipso facto prove that they had seen the testator signing on the Will. As already stated, this is a fundamental requirement of law as per Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act.

16. Coming to the other argument that certificate of the Sub-Registrar proves due execution of the Will, even if accepted, it cannot satisfy the other requirement of proof as per Section 68 of the Evidence Act. Since there is inconsistency in the statements of P.Ws. 2 and 4, it would be difficult to place reliance on them. Both the Courts below cannot be faulted with for not placing credence on such evidence. Unless there is clear evidence of the attesting witnesses that they had seen the testator sign on the Will and further that the attesting witnesses had also signed the Will in presence of the testator, it would be unsafe to hold the Will to have been validly executed and attested. Since P.W.2 stated somewhat clearly that he had seen the testator sign on the Will and thereafter he signed in presence of the testator, yet having regard to the inconsistency in his statement with regard to the time and the fact that he had not seen the other attesting witness leads this Court to not place much reliance on it.

17. Thus, from a conspectus of the analysis of facts, law and the contentions raised, this Court finds no reason to interfere with the impugned order. The substantial question of framed is answered accordingly.

Decision

In the result, the appeal being devoid of merit is therefore dismissed. There shall be no order as to costs. ……..………………….. Sashikanta Mishra, Judge Orissa High Court, Cuttack, The 5th December , 2025/ B.C. Tudu Signature Not Verified Digitally Signed Signed by: BHIGAL CHANDRA TUDU Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Dec-2025 21:44:02