in a partition suit, where the propounder of a Will fails to dispel suspicious circumstances surrounding its execution and does not satisfactorily prove due attestation as required under Section 63 of the Indian Succession Act and Section 68 of the Evidence Act, the Will cannot be accepted. Concurrent findings of fact rejecting the Will and decreeing partition do not raise any substantial question of law under Section 100 CPC. Second Appeal dismissed.

advocatemmmohan

Code of Civil Procedure, 1908 – Section 100 – Second Appeal – Concurrent findings rejecting Will – No substantial question of law – Appeal dismissed – Para 22–23

Indian Succession Act, 1925 – Section 63 – Proof of Will – Attestation – Suspicious circumstances – Burden on propounder – Para 14–17

Indian Evidence Act, 1872 – Section 68 & Section 114(g) – Proof of execution – Adverse inference – Non-production of original Will – Suspicious circumstances not removed – Para 12–13

Partition Suit – Hindu Succession (Amendment) Act, 2005 – Plea of prior partition – Unregistered partition deed not proved – Concurrent findings upheld – Para 7

Will – Disinheritance of heirs of equal degree – No explanation – Suspicious circumstance – Para 20–21

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FACTUAL BACKGROUND

• Plaintiff filed O.S. No.63 of 2014 for partition of A & B schedule properties into six equal shares.

• Trial Court (10.02.2022) decreed suit preliminarily dividing A-Schedule item No.3 and B-Schedule properties into six equal shares.

• First Appellate Court (15.09.2025) dismissed A.S. No.07/2022 and Cross Appeal No.07/2022, confirming decree.

• 3rd Defendant filed present Second Appeal.

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APPELLANT’S CONTENTIONS

1. A-Schedule properties belonged to maternal grandmother.

2. Grandmother executed Will dated 15.12.1960 in favour of mother.

3. Mother executed registered Will dated 05.06.2009 (Ex.B8) in favour of 3rd defendant.

4. Courts wrongly disbelieved Will.

5. Adverse inference wrongly drawn under Section 114(g) Evidence Act.

6. Hindu Succession (Amendment) Act, 2005 misapplied; prior partition dated 22.01.1999 (Ex.B17) ignored.

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COURT’S ANALYSIS

I. Proof of Will – Legal Principles (Para 14–17)

Relied on:

• H. Venkatachala Iyengar – Suspicion must be removed; Court’s conscience must be satisfied.

• Niranjan Umeshchandra Joshi – Burden on propounder to prove free will, sound mind, due execution.

• Sridevi – Onus on propounder where suspicious circumstances exist.

• Ram Piari – Mere proof of signature insufficient; suspicious circumstances must be dispelled.

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II. Suspicious Circumstances Found (Para 11–12, 20–21)

• Attestor (DW5) admitted executant was in ill-health.

• Contradiction regarding execution on stamp paper vs white paper.

• One attesting witness not examined.

• No explanation for disinheriting heirs of equal degree.

• Original Will of 1960 not produced.

Propounder failed to remove suspicious circumstances.

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III. Role of Scribe (Para 18–19)

• Scribe can be attesting witness only if intention to attest is evident.

• Mere signature of scribe insufficient to prove due attestation.

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IV. Section 100 CPC – No Substantial Question of Law (Para 22)

• Concurrent findings by Trial and Appellate Courts.

• Appreciation of evidence.

• No perversity or misapplication of law demonstrated.

Second Appeal dismissed at admission stage.

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RATIO DECIDENDI

Where the propounder of a Will fails to remove suspicious circumstances surrounding its execution—such as contradictions in attesting witness testimony, absence of explanation for disinheritance of natural heirs, and non-production of original testamentary document—the Will cannot be accepted as duly proved. Concurrent factual findings rejecting such Will do not give rise to a substantial question of law under Section 100 CPC.