1 W.P.No.

2301/2024

IN THE HIGH COURT OF MADHYA PRADESH

AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 17th OF FEBRUARY, 2024
WRIT PETITION No. 2301 of 2024
BETWEEN:-
1. VIJAY SINGH YADAV S/O LATE
NARAYAN SINGH YADAV, AGED ABOUT
57 YEARS, R/O 372 OLD POLICE STATION
GOHALPUR JABALPUR (MADHYA
PRADESH)

2. ROHIT YADAV S/O LATE RAVINDRA

SINGH YADAV, AGED ABOUT 33 YEARS,
R/O 372 OLD POLICE STTION GOHALPUR
JABALPUR (MADHYA PRADESH)

3. ROHAN YADAV S/O LATE RAVINDRA

SINGH YADAV, AGED ABOUT 32 YEARS,
R/O 372 OLD POLICE STATION
GOHALPUR JABALUR (MADHYA
PRADESH)

4. RAHUL YADAV S/O LATE RAVINDRA

SINGH YADAV, AGED ABOUT 27 YEARS,
R/O 372 OLD POLICE STATION
GOHALPUR JABALUR (MADHYA
PRADESH)

.....PETITIONERS

(BY SHRI VIPIN YADAV AND SHRI RAUNAK YADAV - ADVOCATES )

AND
1. SMT. KRISHNA YADAV W/O LATE
NARAYAN SINGH YADAV R/O A/43,
KACHNAR CITY VIJAY NAGAR
JABALPUR (MADHYA PRADESH)

2. SMT VINEETA YADAV W/O AJAY NAGAL

R/O A/43 KACHNAR CITY VIJAY NAGAR
JABALPUR (MADHYA PRADESH)

3. SUNITA YADAV W/O K. K. YADAV R/O C

241 GAYLEKI BUILDING ONGC COLONY
BANDRA BEACH WEST MUMBAI
 2 W.P.No.2301/2024

MAHARASHTA (MAHARASHTRA)

.....RESPONDENTS
(NONE )
………………………………………………………………………………………

This petition coming on for admission this day, the court passed
the following:
ORDER

This petition under Article 226 of Constitution of India has

been filed seeking the following reliefs :-

“(i)To issue a writ in the nature of certiorari

order dated 15/6/2021 (Annexure P/5) and
17/1/2024 (Annexure P/6) may kindly be
quashed.

(ii)To issue a writ in the nature of mandamus

Tehsildar may kindly be restrained to change the
revenue entry on the basis of order passed by the
Addl.Commissioner dated 17/1/2024..

(iii)Any other writ or direction as the Hon’ble

Court may deem fit in the circumstances of the
case.”

2. It is submitted by counsel for petitioners that as per the M.P.

Bhu-Rajaswa Sanhita (Bhu-Abhilekhon main Namantaran) Niyam,
2018 (In short ‘Niyam, 2018’), the name can be mutated in the
revenue records on the basis of Will, therefore, revenue authorities
are well within their rights to direct the mutation of names on the
basis of Will.
3. Considered the submissions made by counsel for petitioners.
4. There is no doubt that a title can be acquired by virtue of Will
and once the title can be acquired, then the name can also be mutated
 3 W.P.No.2301/2024

in the revenue records irrespective of fact as to whether there is any

rule in that regard or not? Even otherwise as per Niyam, 2018, the
names can be mutated on the basis of Will.
5. It is the case of petitioners that in case if somebody is
aggrieved by Will, then he has to file a civil suit challenging the
Will. The aforesaid submission made by counsel for petitioners
cannot be accepted. If somebody wants to take advantage of a
document, then first of all, he has to prove the same in accordance
with law. Sections 67 and 68 of Evidence Act prescribe the
requirements and nature of proof which must be satisfied by the
parties, who rely on a document in the Court of law.
6. It is well established principle of law that party propounding a
Will or otherwise making a claim under a Will is under obligation to
prove the document. Unlike other documents, Will is a document
which speaks from the death of testator and the testator, who has
already migrated to the other world cannot appear and depose as to
whether he has executed such document or not? The propounder is
required to show by satisfactory evidence that Will was signed by
testator, that testator at the relevant time was in a sound and
disposing state of mind, that he understood the nature and effect of
dispositions and had put his signature on the document of his own
volition.
7. Furthermore, Will may be surrounded by suspicious
circumstances and burden is on the propounder of the Will, not only
to prove the document but to remove all the suspicious
circumstances. The Supreme Court in the case of H. Venkatachala
Iyengar v. B.N. Thimmajamma and others reported in AIR 1959
SC 443 has held as under:
 4 W.P.No.2301/2024

“18. What is the true legal position in the matter of

proof of wills? It is well-known that the proof of
wills presents a recurring topic for decision in
courts and there are a large number of judicial
pronouncements on the subject. The party
propounding a will or otherwise making a claim
under a will is no doubt seeking to prove a
document and, in deciding how it is to be proved,
we must inevitably refer to the statutory provisions
which govern the proof of documents. Sections 67
and 68 of the Evidence Act are relevant for this
purpose. Under Section 67, if a document is
alleged to be signed by any person, the signature of
the said person must be proved to be in his
handwriting, and for proving such a handwriting
under Sections 45 and 47 of the Act the opinions of
experts and of persons acquainted with the
handwriting of the person concerned are made
relevant. Section 68 deals with the proof of the
execution of the document required by law to be
attested; and it provides that such a document shall
not be used as evidence until one attesting witness
at least has been called for the purpose of proving
its execution. These provisions prescribe the
requirements and the nature of proof which must
be satisfied by the party who relies on a document
in a court of law. Similarly, Sections 59 and 63 of
the Indian Succession Act are also relevant.
Section 59 provides that every person of sound
mind, not being a minor, may dispose of his
property by will and the three illustrations to this
section indicate what is meant by the expression “a
person of sound mind” in the context. Section 63
requires that 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 that
the signature or mark shall be so made that it shall
appear that it was intended thereby to give effect to
the writing as a will. This section also requires that
the will shall be attested by two or more witnesses
as prescribed. Thus the question as to whether the
will set up by the propounder is proved to be the
 5 W.P.No.2301/2024

last will of the testator has to be decided in the

light of these provisions. Has the testator signed
the will? Did he understand the nature and effect of
the dispositions in the will? Did he put his
signature to the will knowing what it contained?
Stated broadly it is the decision of these questions
which determines the nature of the finding on the
question of the proof of wills. It would prima facie
be true to say that the will has to be proved like any
other document except as to the special
requirements of attestation prescribed by Section
63 of the Indian Succession Act. As in the case of
proof of other documents so in the case of proof of
wills it would be idle to expect proof with
mathematical certainty. The test to be applied
would be the usual test of the satisfaction of the
prudent mind in such matters.
19. However, there is one important feature which
distinguishes wills from other documents. Unlike
other documents the will speaks from the death of
the testator, and so, when it is propounded or
produced before a court, the testator who has
already departed the world cannot say whether it is
his will or not; and this aspect naturally introduces
an element of solemnity in the decision of the
question as to whether the document propounded is
proved to be the last will and testament of the
departed testator. Even so, in dealing with the
proof of wills the court will start on the same
enquiry as in the case of the proof of documents.
The propounder would be called upon to show by
satisfactory evidence that the will was signed by
the testator, that the testator at the relevant time
was in a sound and disposing state of mind, that he
understood the nature and effect of the dispositions
and put his signature to the document of his own
free will. Ordinarily when the evidence adduced in
support of the will is disinterested, satisfactory and
sufficient to prove the sound and disposing state of
the testator's mind and his signature as required by
law, courts would be justified in making a finding
 6 W.P.No.2301/2024

in favour of the propounder. In other words, the

onus on the propounder can be taken to be
discharged on proof of the essential facts just
indicated.
20. There may, however, be cases in which the
execution of the will may be surrounded by
suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and
evidence in support of the propounder's case that
the signature, in question is the signature of the
testator may not remove the doubt created by the
appearance of the signature; the condition of the
testator's mind may appear to be very feeble and
debilitated; and evidence adduced may not succeed
in removing the legitimate doubt as to the mental
capacity of the testator; the dispositions made in
the will may appear to be unnatural, improbable or
unfair in the light of relevant circumstances; or, the
will may otherwise indicate that the said
dispositions may not be the result of the testator's
free will and mind. In such cases the court would
naturally expect that all legitimate suspicions
should be completely removed before the
document is accepted as the last will of the testator.
The presence of such suspicious circumstances
naturally tends to make the initial onus very heavy;
and, unless it is satisfactorily discharged, courts
would be reluctant to treat the document as the last
will of the testator. It is true that, if a caveat is filed
alleging the exercise of undue influence, fraud or
coercion in respect of the execution of the will
propounded, such pleas may have to be proved by
the caveators; but, even without such pleas
circumstances may raise a doubt as to whether the
testator was acting of his own free will in
executing the will, and in such circumstances, it
would be a part of the initial onus to remove any
such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to
which we have just referred, in some cases the
 7 W.P.No.2301/2024

wills propounded disclose another infirmity.

Propounders themselves take a prominent part in
the execution of the wills which confer on them
substantial benefits. If it is shown that the
propounder has taken a prominent part in the
execution of the will and has received substantial
benefit under it, that itself is generally treated as a
suspicious circumstance attending the execution of
the will and the propounder is required to remove
the said suspicion by clear and satisfactory
evidence. It is in connection with wills that present
such suspicious circumstances that decisions of
English courts often mention the test of the
satisfaction of judicial conscience. It may be that
the reference to judicial conscience in this
connection is a heritage from similar observations
made by ecclesiastical courts in England when they
exercised jurisdiction with reference to wills; but
any objection to the use of the word “conscience”
in this context would, in our opinion, be purely
technical and academic, if not pedantic. The test
merely emphasizes that, in determining the
question as to whether an instrument produced
before the court is the last will of the testator, the
court is deciding a solemn question and it must be
fully satisfied that it had been validly executed by
the testator who is no longer alive.
22. It is obvious that for deciding material
questions of fact which arise in applications for
probate or in actions on wills, no hard and fast or
inflexible rules can be laid down for the
appreciation of the evidence. It may, however, be
stated generally that a propounder of the will has to
prove the due and valid execution of the will and
that if there are any suspicious circumstances
surrounding the execution of the will the
propounder must remove the said suspicions from
the mind of the court by cogent and satisfactory
evidence. It is hardly necessary to add that the
result of the application of these two general and
broad principles would always depend upon the
 8 W.P.No.2301/2024

facts and circumstances of each case and on the

nature and quality of the evidence adduced by the
parties. It is quite true that, as observed by Lord Du
Parcq in Harmes v. Hinkson [(1946) 50 CWN 895]
“where a will is charged with suspicion, the rules
enjoin a reasonable scepticism, not an obdurate
persistence in disbelief. They do not demand from
the Judge, even in circumstances of grave
suspicion, a resolute and impenetrable incredulity.
He is never required to close his mind to the truth”.
It would sound platitudinous to say so, but it is
nevertheless true that in discovering truth even in
such cases the judicial mind must always be open
though vigilant, cautious and circumspect.
**** **** ****
29. According to the decisions
in Fulton v. Andrew [(1875) LR 7 HL 448] “those
who take a benefit under a will, and have been
instrumental in preparing or obtaining it, have
thrown upon them the onus of showing the
righteousness of the transaction”. “There is
however no unyielding rule of law (especially
where the ingredient of fraud enters into the case)
that, when it has been proved that a testator,
competent in mind, has had a will read over to him,
and has thereupon executed it, all further enquiry is
shut out”. In this case, the Lord Chancellor, Lord
Cairns, has cited with approval the well-known
observations of Baron Parke in the case
of Barry v. Butlin [(1838) 2 Moo PC 480, 482] .
The two rules of law set out by Baron Parke
are:“first, that the onus probandi lies in every case
upon the party propounding a will; and he must
satisfy the conscience of the court that the
instrument so propounded is the last will of a free
and capable testator”; “the second is, that, if a party
writes or prepares a will under which he takes a
benefit, that is a circumstance that ought generally
to excite the suspicion of the court and calls upon it
to be vigilant and zealous in examining the
 9 W.P.No.2301/2024

evidence in support of the instrument in favour of

which it ought not to pronounce unless the
suspicion is removed, and it is judicially satisfied
that the paper propounded does express the true
will of the deceased”. It is hardly necessary to add
that the statement of these two rules has now
attained the status of a classic on the subject and it
is cited by all text books on wills. The will
propounded in this case was directed to be tried at
the Assizes by the Court of Probate. It was tried on
six issues. The first four issues referred to the
sound and disposing state of the testator's mind and
the fifth to his knowledge and approval of the
contents of the will. The sixth was whether the
testator knew and approved of the residuary clause;
and by this last clause the propounders of the will
were made the residuary legatees and were
appointed executors. Evidence was led at the trial
and the Judge asked the opinion of the jurors on
every one of the issues. The jurors found in favour
of the propounders on the first five issues and in
favour of the opponents on the sixth. It appears that
no leave to set aside the verdict and enter judgment
for the propounders notwithstanding the verdict on
the sixth issue was reserved; but when the case
came before the Court of Probate a rule was
obtained to set aside the verdict generally and have
a new trial or to set aside the verdict on the sixth
issue for misdirection. It was in dealing with the
merits of the finding on the sixth issue that the true
legal position came to be considered by the House
of Lords. The result of the decision was that the
rule obtained for a new trial was discharged, the
order of the Court of Probate of the whole will was
reversed and the matter was remitted to the Court
of Probate to do what was right with regard to the
qualified probate of the will.
30. The same principle was emphasized by the
Privy Council in Vellasawmy Servai v. Sivaraman
Servai [(1929) LR 57 IA 96] where it was held
that, where a will is propounded by the chief
 10 W.P.No.2301/2024

beneficiary under it, who has taken a leading part

in giving instructions for its preparation and in
procuring its execution, probate should not be
granted unless the evidence removes suspicion and
clearly proves that the testator approved the will.
31. In Sarat Kumari Bibi v. Sakhi Chand [(1928)
LR 56 IA 62] the Privy Council made it clear that
“the principle which requires the propounder to
remove suspicions from the mind of the Court is
not confined only to cases where the propounder
takes part in the execution of the will and receives
benefit under it. There may be other suspicious
circumstances attending on the execution of the
will and even in such cases it is the duty of the
propounder to remove all clouds and satisfy the
conscience of the court that the instrument
propounded is the last will of the testator”. This
view is supported by the observations made by
Lindley and Davey, L. JJ.,
in Tyrrell v. Painton [(1894) P 151, 157, 159] .
“The rule in Barry v. Butlin [(1838) 2 Moo PC
480, 482] , Fulton v. Andrew [(1875) LR 7 HL
448] and Brown v. Fisher [(1890) 63 LT 465] ,
said Lindley, L.J., “is not in my mind confined to
the single case in which the will is prepared by or
on the instructions of the person taking large
benefits under it but extends to all cases in which
circumstances exist which excite the suspicions of
the court”.
32. In Rash Mohini Dasi v. Umesh Chunder
Biswas [(1898) LR 25 IA 109] it appeared that
though the will was fairly simple and not very long
the making of it was from first to last the doing of
Khetter, the manager and trusted adviser of the
alleged testator. No previous or independent
intention of making a will was shown and the
evidence that the testator understood the business
in which his adviser engaged him was not
sufficient to justify the grant of probate. In this
case the application for probate made by the widow
 11 W.P.No.2301/2024

of Mohim Chunder Biswas was opposed on the

ground that the testator was not in a sound and
disposing state of mind at the material time and he
could not have understood the nature and effect of
its contents. The will had been admitted to the
probate by the District Judge but the High Court
had reversed the said order. In confirming the view
of the High Court the Privy Council made the
observations to which we have just referred.
33. The case of Shama Charn
Kundu v. Khettromoni Dasi [(1899) ILR 27 Cal
522] on the other hand, was the case of a will the
execution of which was held to be not surrounded
by any suspicious circumstances. Shama Charn,
the propounder of the will, claimed to be the
adopted son of the testator. He and three others
were appointed executors of the will. The testator
left no natural son but two daughters and his
widow. By his will the adopted son obtained
substantial benefit. The probate of the will with the
exception of the last paragraph was granted to
Shama Charn by the trial Judge; but, on appeal the
application for probate was dismissed by the High
Court on the ground that the suspicions attending
on the execution of the will had not been
satisfactorily removed by Shama Charn. The
matter was then taken before the Privy Council;
and Their Lordships held that, since the adoption
of Shama Charn was proved, the fact that he took
part in the execution of the will and obtained
benefit under it cannot be regarded as a suspicious
circumstance so as to attract the rule laid down by
Lindley, L.J., in Tyrrell v. Painton [(1894) P 151,
157, 159] . In Bai Gungabai v. Bhugwandas
Valji [(1905) ILR 29 Bom 530] the Privy Council
had to deal with a will which was admitted to
probate by the first court, but on appeal the order
was varied by excluding therefrom certain passages
which referred to the deed-poll executed on the
same day by the testator and to the remuneration of
the solicitor who prepared the will and was
 12 W.P.No.2301/2024

appointed an executor and trustee thereof. The

Privy Council held that “the onus was on the
solicitor to satisfy the court that the passages
omitted expressed the true will of the deceased and
that the court should be diligent and zealous in
examining the evidence in its support, but that on a
consideration of the whole of the evidence (as to
which no rule of law prescribed the particular kind
required) and of the circumstances of the case the
onus was discharged”. In dealing with the question
as to whether the testator was aware that the
passages excluded by the appeal court from the
probate formed part of the instrument, the Privy
Council examined the evidence bearing on the
point and the probabilities. In conclusion Their
Lordships differed from the view of the appeal
court that there had been a complete failure of the
proof that the deed-poll correctly represented the
intentions of the testator or that he understood or
approved of its contents and so they thought that
there were no grounds for excluding from the
probate the passages in the will which referred to
that deed. They, however, observed that it would
no doubt have been more prudent and business-like
to have obtained the services of some independent
witnesses who might have been trusted to see that
the testator fully understood what he was doing
and to have secured independent evidence that
clause 26 in particular was called to the testator's
attention. Even so, Their Lordships expressly
added that in coming to the conclusion which they
had done they must not be understood as throwing
the slightest doubt on the principles laid down
in Fulton v. Andrew [(1875) LR 7 HL 448] and
other similar cases referred to in the argument.”

8. The Supreme Court in the case of Surendra Pal and others v.

Dr. (Mrs.) Saraswati Arora and another, reported in (1974) 2 SCC
600 has held that propounder has to show that the Will was signed by
testator, that he was at the relevant time in a sound disposing state of
 13 W.P.No.2301/2024

mind, that he understood the nature and effect of the dispositions,

that he put his signature to the testament of his own free Will, that he
has signed it in the presence of the 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. Furthermore, there may be cases in which the execution of
the Will itself is surrounded by suspicious circumstances, such as,
where the signature is doubtful, the testator is of feeble mind or is
overawed by powerful minds interested in getting his property, or
where in the light of relevant circumstances the dispositions appears to
be the unnatural, improbable and unfair, or where there are other
reasons for doubting that the dispositions of the Will are not the result
of testator’s free Will and mind. It has also been held that in all such
cases where there may be legitimate suspicious circumstances those
must be reviewed and satisfactorily explained before the Will is
accepted and the onus is always on the propounder to explain them to
the satisfaction of the Court before it could be accepted as genuine.

9. The Supreme Court in the case of Gorantla Thataiah v.

Thotakura Venkata Subbaiah and others, reported in AIR 1968 SC
1332 has held as it is for those who propound the Will to prove the
same.

10. The Supreme Court in the case of Murthy and others v. C.

Saradambal and others, reported in (2022) 3 SCC 209 has held that
intention of testator to make testament must be proved, and
propounder of Will must examine one or more attesting witnesses
and remove all suspicious circumstances with regard to execution of
Will. It has been held as under:
 14 W.P.No.2301/2024

“31. One of the celebrated decisions of this Court

on proof of a will, in H. Venkatachala Iyengar v. B.N.
Thimmajamma [H. Venkatachala Iyengar v. B.N.
Thimmajamma, AIR 1959 SC 443] is in H.
Venkatachala Iyengar v. B.N. Thimmajamma, wherein
this Court has clearly distinguished the nature of proof
required for a testament as opposed to any other
document. The relevant portion of the said judgment
reads as under: (AIR p. 451, para 18)
“18. … The party propounding a will or
otherwise making a claim under a will is no doubt
seeking to prove a document and, in deciding how
it is to be proved, we must inevitably refer to the
statutory provisions which govern the proof of
documents. Sections 67 and 68 of the Evidence Act
are relevant for this purpose. Under Section 67, if a
document is alleged to be signed by any person, the
signature of the said person must be proved to be
in his handwriting, and for proving such a
handwriting under Sections 45 and 47 of the Act
the opinions of experts and of persons acquainted
with the handwriting of the person concerned are
made relevant. Section 68 deals with the proof of
the execution of the document required by law to
be attested; and it provides that such a document
shall not be used as evidence until one attesting
witness at least has been called for the purpose of
proving its execution. These provisions prescribe
the requirements and the nature of proof which
must be satisfied by the party who relies on a
document in a court of law. Similarly, Sections 59
and 63 of the Succession Act are also relevant.
Section 59 provides that every person of sound
mind, not being a minor, may dispose of his
property by will and the three illustrations to this
section indicate what is meant by the expression “a
person of sound mind” in the context. Section 63
requires that 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 that
the signature or mark shall be so made that it shall
 15 W.P.No.2301/2024

appear that it was intended thereby to give effect to

the writing as a will. This section also requires that
the will shall be attested by two or more witnesses
as prescribed. Thus, the question as to whether the
will set up by the propounder is proved to be the
last will of the testator has to be decided in the
light of these provisions. Has the testator signed
the will? Did he understand the nature and effect of
the dispositions in the will? Did he put his
signature to the will knowing what it contained?
Stated broadly it is the decision of these questions
which determines the nature of the finding on the
question of the proof of wills. It would prima facie
be true to say that the will has to be proved like any
other document except as to the special
requirements of attestation prescribed by Section
63 of the Indian Succession Act. As in the case of
proof of other documents so in the case of proof of
wills it would be idle to expect proof with
mathematical certainty. The test to be applied
would be the usual test of the satisfaction of the
prudent mind in such matters.”
32. In fact, the legal principles with regard to the
proof of a will are no longer res integra. Section 63 of
the Succession Act, 1925 and Section 68 of the
Evidence Act, 1872, are relevant in this regard. The
propounder of the will must examine one or more
attesting witnesses and the onus is placed on the
propounder to remove all suspicious circumstances
with regard to the execution of the will.
33. In the abovenoted case, this Court has stated
that the following three aspects must be proved by a
propounder: (Bharpur Singh case [Bharpur
Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1
SCC (Civ) 934] , SCC p. 696, para 16)
“16. … (i) that the will was signed by the
testator in a sound and disposing state of mind
duly understanding the nature and effect of
disposition and he put his signature on the
document of his own free will, and
 16 W.P.No.2301/2024

(ii) when the evidence adduced in support of

the will is disinterested, satisfactory and
sufficient to prove the sound and disposing state
of the testator's mind and his signature as
required by law, courts would be justified in
making a finding in favour of propounder, and
(iii) if a will is challenged as surrounded by
suspicious circumstances, all such legitimate
doubts have to be removed by cogent,
satisfactory and sufficient evidence to dispel
suspicion. In other words, the onus on the
propounder can be taken to be discharged on
proof of the essential facts indicated therein.”
34. In Jaswant Kaur v. Amrit Kaur [Jaswant
Kaur v. Amrit Kaur, (1977) 1 SCC 369] , this Court
pointed out that when a will is allegedly shrouded in
suspicion, its proof ceases to be a simple lis between
the plaintiff and the defendant. What generally is an
adversarial 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 let in by the propounder of the will is such as
would satisfy the conscience of the court that the will
was duly executed by the testator. It is impossible to
reach such a satisfaction unless the party which sets up
the will offers cogent and convincing explanation with
regard to any suspicious circumstance surrounding the
making of the will.
35. In Bharpur Singh v. Shamsher Singh [Bharpur
Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1
SCC (Civ) 934] , this Court has narrated a few
suspicious circumstance, as being illustrative but not
exhaustive, in the following manner: (SCC p. 699,
para 23)
“23. Suspicious circumstances like the
following may be found to be surrounded in the
execution of the will:
 17 W.P.No.2301/2024

(i) The signature of the testator may be

very shaky and doubtful or not appear to be
his usual signature.
(ii) The condition of the testator's mind
may be very feeble and debilitated at the
relevant time.
(iii) The disposition may be unnatural,
improbable or unfair in the light of relevant
circumstances like exclusion of or absence of
adequate provisions for the natural heirs
without any reason.
(iv) The dispositions may not appear to be
the result of the testator's free will and mind.
(v) The propounder takes a prominent part
in the execution of the will.
(vi) The testator used to sign blank papers.
(vii) The will did not see the light of the
day for long.
(viii) Incorrect recitals of essential facts.”
36. It was further observed in Shamsher Singh
case [Bharpur Singh v. Shamsher Singh, (2009) 3 SCC
687 : (2009) 1 SCC (Civ) 934] that the circumstances
narrated hereinbefore are not exhaustive. Subject to
offering of a reasonable explanation, existence thereof
must be taken into consideration for the purpose of
arriving at a finding as to whether the execution of the
will had been duly proved or not. It may be true that
the will was a registered one, but the same by itself
would not mean that the statutory requirements of
proving the will need not be complied with.
37. In Niranjan Umeshchandra Joshi v. Mrudula
Jyoti Rao [Niranjan Umeshchandra Joshi v. Mrudula
Jyoti Rao, (2006) 13 SCC 433] , in paras 34 to 37, this
Court has observed as under: (SCC pp. 447-48)
 18 W.P.No.2301/2024

“34. There are several circumstances which

would have been held to be described by this Court
as suspicious circumstances:
(i) when a doubt is created in regard to the
condition of mind of the testator despite his
signature on the will;
(ii) When the disposition appears to be
unnatural or wholly unfair in the light of the
relevant circumstances;
(iii) where propounder himself takes
prominent part in the execution of will which
confers on him substantial benefit.
***
35. We may not delve deep into the decisions
cited at the Bar as the question has recently been
considered by this Court in B. Venkatamuni v. C.J.
Ayodhya Ram Singh [B. Venkatamuni v. C.J.
Ayodhya Ram Singh, (2006) 13 SCC 449] ,
wherein this Court has held that the court must
satisfy its conscience as regards due execution of
the will by the testator and the court would not
refuse to probe deeper into the matter only because
the signature of the propounder on the will is
otherwise proved.
36. The proof of a will is required not as a
ground of reading the document but to afford the
Judge reasonable assurance of it as being what it
purports to be.
37. We may, however, hasten to add that there
exists a distinction where suspicions are well
founded and the cases where there are only
suspicions alone. Existence of suspicious
circumstances alone may not be sufficient. The
court may not start with a suspicion and it should
not close its mind to find the truth. A resolute and
impenetrable incredulity is not demanded from the
 19 W.P.No.2301/2024

Judge even if there exist circumstances of grave

suspicion.”
38. This Court in Anil Kak v. Sharada Raje [Anil
Kak v. Sharada Raje, (2008) 7 SCC 695] , held as
under: (Bharpur Singh case [Bharpur
Singh v. Shamsher Singh, (2009) 3 SCC 687 : (2009) 1
SCC (Civ) 934] , SCC p. 698, para 20)
“20. This Court in Anil Kak v. Sharada
Raje [Anil Kak v. Sharada Raje, (2008) 7 SCC
695] opined that the court is required to adopt a
rational approach and is furthermore required to
satisfy its conscience as existence of suspicious
circumstances plays an important role, holding:
(SCC p. 714, paras 52-55)
‘52. Whereas execution of any other
document can be proved by proving the
writings of the document or the contents of it
as also the execution thereof, in the event
there exists suspicious circumstances the party
seeking to obtain probate and/or letters of
administration with a copy of the will annexed
must also adduce evidence to the satisfaction
of the court before it can be accepted as
genuine.
53. As an order granting probate is a
judgment in rem, the court must also satisfy
its conscience before it passes an order.
54. It may be true that deprivation of a due
share by (sic to) the natural heir by itself may
not be held to be a suspicious circumstance
but it is one of the factors which is taken into
consideration by the courts before granting
probate of a will.
55. Unlike other documents, even animus
attestandi is a necessary ingredient for proving
the attestation.’ ”
 20 W.P.No.2301/2024

39. Similarly, in Leela Rajagopal v. Kamala Menon

Cocharan [Leela Rajagopal v. Kamala Menon
Cocharan, (2014) 15 SCC 570 : (2015) 4 SCC (Civ)
267] , this Court opined as under: (SCC p. 576, para
13)
“13. A will may have certain features and
may have been executed in certain
circumstances which may appear to be
somewhat unnatural. Such unusual features
appearing in a will or the unnatural
circumstances surrounding its execution will
definitely justify a close scrutiny before the
same can be accepted. It is the overall
assessment of the court on the basis of such
scrutiny; the cumulative effect of the unusual
features and circumstances which would
weigh with the court in the determination
required to be made by it. The judicial
verdict, in the last resort, will be on the basis
of a consideration of all the unusual features
and suspicious circumstances put together
and not on the impact of any single feature
that may be found in a will or a singular
circumstance that may appear from the
process leading to its execution or
registration. This, is the essence of the
repeated pronouncements made by this Court
on the subject including the decisions
referred to and relied upon before us.”

11. Similar law has been laid down by Supreme Court in the case
of Dhanpat v. Sheo Ram (Deceased) through legal
representatives and others, reported in (2020) 16 SCC 209 and in
the case of V. Kalyanaswamy (Dead) by legal representatives and
another v. L. Bakthavatsalam (Dead) by legal representatives
and others, reported in (2021) 16 SCC 543.
 21 W.P.No.2301/2024

12. The Supreme Court in the case of Bharpur Singh and others
v. Shamsher Singh, reported in (2009) 3 SCC 687 has held that it
may be true that Will was a registered one, but the same by itself
would not mean that the statutory requirements of proving the Will
need not be complied with. In terms of Section 63(c), Succession
Act, 1925 and Section 68, Evidence Act, 1872, the propounder of a
Will must prove its execution by examining one or more attesting
witnesses and propounder of Will must prove that the Will was
signed by the testator in a sound and disposing state of mind duly
understanding the nature and effect of disposition and he put his
signature on the document of his own free Will.
13. The Supreme Court in the case of Niranjan Umeshchandra
Joshi v. Mrudula Jyoti Rao and others, reported in (2006) 13 SCC
433 has held that mere proof that testator had signed the Will is not
enough. It has also to be proved that testator has signed out of his
free will having a sound disposition of mind and not a feeble and
debilitated mind, understanding well the nature and effect thereof.
The Court will also not refuse to probe deeper in the matter merely
because propounder’s signature on the Will is proved. Similar law
has been laid down by Supreme Court in the cases of Savithri and
others v. Karthyayani Amma and others, reported in (2007) 11
SCC 621, Balathandayutham and another v. Ezhilarasan,
reported in (2010) 5 SCC 770, Pentakota Satyanarayana and
others v. Pentakota Seetharatnam and others, reported in (2005)
8 SCC 67 and Meenakshiammal (Dead) through legal
representatives and others v. Chandrasekaran and another,
reported in (2005) 1 SCC 280.
 22 W.P.No.2301/2024

14. Therefore, in order to take advantage of Will for getting his

name mutated in the revenue records, beneficiary must prove that
Will was a genuine one and must remove all suspicious
circumstances which are attached to it by examining at least one of
the attesting witnesses as well as by proving the mental status of
testator, willingness of testator, understanding of testator etc. All
these findings cannot be given by revenue authorities.
15. The Supreme Court in the case of Jitendra Singh v. State of
Madhya Pradesh by order dated 06.09.2021 passed in SLP (civil)
No.13146/2021 has held as under:
“6. Right from 1997, the law is very clear. In the
case of Balwant Singh v. Daulat Singh (D) By Lrs.,
reported in (1997) 7 SCC 137, this Court had an
occasion to consider the effect of mutation and it is
observed and held that mutation of property in
revenue records neither creates nor extinguishes
title to the property nor has it any presumptive
value on title. Such entries are relevant only for the
purpose of collecting land revenue. Similar view
has been expressed in the series of decisions
thereafter.
6.1 In the case of Suraj Bhan v. Financial
Commissioner, (2007) 6 SCC 186, it is observed
and held by this Court that an entry in revenue
records does not confer title on a person whose
name appears in record-of-rights. Entries in the
revenue records or jamabandi have only “fiscal
purpose”, i.e., payment of land revenue, and no
ownership is conferred on the basis of such entries.
It is further observed that so far as the title of the
property is concerned, it can only be decided by a
competent civil court. Similar view has been
expressed in the cases of Suman Verma v. Union of
India, (2004) 12 SCC 58; Faqruddin v. Tajuddin
(2008) 8 SCC 12; Rajinder Singh v. State of J&K,
(2008) 9 SCC 368; Municipal Corporation,
Aurangabad v. State of Maharashtra, (2015) 16
 23 W.P.No.2301/2024

SCC 689; T. Ravi v. B. Chinna Narasimha, (2017)

7 SCC 342; Bhimabai Mahadeo Kambekar v.
Arthur Import & Export Co., (2019) 3 SCC 191;
Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC
259; and Ajit Kaur v. Darshan Singh, (2019) 13
SCC 70.”

16. Counsel for petitioners also conceded that revenue authorities

have no jurisdiction to decide the question of title but only
contention is that since mutation can also be done on the basis of
Will, therefore, the revenue authorities are well within their rights to
mutate the name of a person on the basis of Will. Unfortunately this
general proposition of law which is being suggested by counsel for
petitioners cannot be accepted. Unless and until Will is duly proved,
it cannot be acted upon and the revenue authorities have no
jurisdiction to decide the authenticity, correctness, genuineness of a
Will which can only be done by Civil Court. Thus, in the light of fact
that revenue authorities cannot decide the genuineness of the Will,
the rule which permits the mutation of name of a beneficiary on the
basis of Will has to be interpreted that the name of a beneficiary can
be mutated provided the Will is duly proved and for that purposes
the beneficiary has to approach the Civil Court for declaration of his
title. Even otherwise in none of the previous judgments it has been
held that in spite of a declaration by Civil Court the name of a
beneficiary of a Will cannot be mutated. The word “Will” as
mentioned in Niyam, 2018 necessarily means a valid and genuine
Will and not any piece of paper. Therefore, even in the light of
Niyam, 2018 it cannot be said that there is any material change in the
law.
 24 W.P.No.2301/2024

17. It is submitted by counsel for petitioners that in the Niyam,

2018 it is nowhere mentioned that before acting upon Will it should
be duly proved. Thus, even an unproved Will can be relied upon and
the use of word “Will” in the Niyam, 2018 has created all sorts of
confusion in the minds of the authorities.
18. Considered the submissions made by counsel for petitioners.
19. It is well established principle of law that while interpreting a
provision or word, the Court must try to give a meaning, which
would make the provision sensible and as per law and should avoid
giving any meaning, which would make the word either redundant or
contrary to the law. If the submission made by counsel for petitioners
that unless and until it is mentioned in the Rules that it can be acted
upon only after it is duly proved is concerned, it is suffice to mention
here that this interpretation as suggested by counsel for petitioner
cannot be accepted. If it is directed that even an unproved Will can
be acted upon by the revenue authorities, then it would mean that
this Court will be giving a complete go bye to the provisions of
Evidence Act.
20. Will has to be proved as per the provisions of Sections 67 and
68 of Evidence Act, apart from reversing all the suspicious
circumstances, which are attached to it.
21. Accordingly, the counsel for petitioners was directed to point
out as to whether the Niyam, 2018 would override the provisions of
Evidence Act or not?
22. It is fairly conceded by counsel for petitioners that the
provisions of Evidence Act would prevail and Niyam, 2018 would
not override or bypass the provisions of Evidence Act. Therefore, in
case if an interpretation is given to the word “Will” as mentioned in
 25 W.P.No.2301/2024

Niyam, 2018 to the effect that even an unproved Will can be relied
upon by the Tahsildar, then it would be contrary to the basic
provisions of law.
23. Accordingly, the counsel for petitioners was directed to
address that in the light of law laid down by the Supreme Court
concerning the aspects, which are required to be proved before the
Will can be relied upon, whether the revenue authorities can embark
upon the said inquiry or not?
24. It was fairly conceded by counsel for petitioners that the
authenticity of a document can only be decided by the civil court and
not by the revenue court.
25. Under these circumstances, this Court is of considered opinion
that even otherwise, the use of word “Will” in Niyam, 2018 would
not make any difference and the Will cannot be acted upon unless
and until it is duly proved and decided by the civil court of
competent jurisdiction.
26. It is submitted by counsel for petitioners that a Coordinate
Bench of this Court by order dated 07.10.2023 passed in
W.P.No.3499/2022 has already referred the question as to whether
revenue authorities have a jurisdiction to mutate the names of the
beneficiaries of a will or not. However, it is submitted that High
Court cannot held as to whether judgment passed by Supreme Court
is per incuriam or not?
27. It was further submitted that since the aforesaid question is
already under reference, therefore the hearing of this case may be
deferred awaiting outcome of W.P.No.3499/2022.
28. Considered the submission made by counsel for petitioners.
 26 W.P.No.2301/2024

29. It is well established principle of law that even if a judgment is

under reference, still it would hold the field unless and until it is set
aside. Therefore, merely because some judgment has been referred to a
Larger Bench, it cannot be said that the judgment under reference has
lost its efficacy.
30. Before parting with this order, this Court would like to comment
upon the manner the Naib Tahsildar in the present case has dealt with
the matter.
31. It appears that an application was filed by the petitioners for
mutation of their names on the basis of Will by impleading only State
of Madhya Pradesh. From the report of the Naib Tahsildar, it is clear
that the other legal representative of the testator were neither made a
party nor they were noticed. Thus, the malafide intention of petitioner
of getting his name mutated in a clandestine manner is writ large.
32. Thus, the persons, who were vitally interested in the matter, were
not given any opportunity to object to the so called Will, relied upon by
the petitioners.
33. Furthermore, from the order, which has been passed by the Naib
Tahsildar, it is clear that except mentioning that the witnesses have
stated that the testator had signed the Will in his full senses, nothing
else has been considered to judge the correctness of the Will.
34. This Court has already referred the law governing the field of
proving the Will. As already pointed out in the previous paragraphs a
Will without any formal proof cannot be acted upon in spite of Niyam,
2018.
35. Will means a valid Will, duly proved by the Propounder of the
Will in accordance with the law laid down by the Supreme Court.
36. The manner in which the Naib Tahsildar has dealt with the
matter giving a complete go bye to the basic law pertaining to proof of
 27 W.P.No.2301/2024

Will coupled with the fact that he even did not care to issue notice to
the other legal representatives of the Testator, clearly indicates that
even otherwise the Naib Tahsildar had no basic knowledge about the
law.
37. Accordingly the order dated 15.06.2021 passed by SDO,
Division Adhartal, District Jabalpur in Revenue Case
No.13/Appeal/202-21 and order dated 17.01.2024 passed by Additional
Commissioner, Jabalpur Division, Jabalpur in Case
No.158/APPEAL/2021-22 are hereby affirmed. Consequently, the
order dated 30.03.2019 passed by Naib Tahsildar, Adhartal, Jabalpur in
Revenue Case No.427/A-6/2018-19 is hereby set aside. The revenue
authorities are directed to mutate the names of all the legal heirs of
the owner of the property in dispute and the petitioners shall be free
to approach the Civil Court for declaration of their title on the basis
of Will. The mutation shall be subject to final disposal of civil
litigation, if filed.
38. The petition fails and is hereby dismissed.

(G.S.AHLUWALIA)
JUDGE
TG/-

TRUPTI GUNJAL
2024.02.23
18:08:38 +05'30'