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2024 Supreme(Online)(MP) 9393

HIGH COURT OF MADHYA PRADESH
Dwarka Dhish Bansal, J
Rameshwar Prasad Dwivedi – Appellant
Versus
Rajkumar – Respondent
SECOND APPEAL No. 972 of 1999

Advocates:
For the Appellants/Petitioners: P.C. Paliwal
For the Respondents: Atulanand Awasthy, Deshhit Soubhari

The burden lies on the propounder of a Will to dispel all suspicious circumstances surrounding its execution; mere notarization of an unregistered document without examining the notary or verifying the notarial register does not prove its validity in the face of a genuine dispute.

Headnote:(A) Will - Execution of - Suspicious circumstances - Failure to remove suspicions - Validity of Will - The testator was suffering from paralysis and was allegedly unconscious shortly before death, rendering the execution of the Will doubtful - Failure to affix required thumb impressions despite space being earmarked, questionable notary practices, and the burial of the deceased contrary to religious customs created manifold suspicious circumstances that the propounder failed to dispel - Consequently, the Will is not proved to be validly executed. (Paras 12, 13, 14, 20, 21)

(B) Notaries Act, 1952 - Notaries Rules, 1956 - Rule 11 - Notarized document - Evidentiary value - Presumption of execution - A notarized document does not carry a presumption of valid execution in case of dispute - It is incumbent upon the propounder to prove the factum of notarization by examining the notary or producing the notarial register to substantiate the transaction. (Paras 16, 17, 18, 19)

Facts of the case:
The respondent/plaintiff claimed ownership of land based on a Will allegedly executed by the deceased, Gyaniram, one day before his death. The appellant/defendant, being a family member of the deceased, challenged the Will as a forged and fabricated document, noting the deceased’s poor health (paralysis) and the unnatural circumstances surrounding the funeral rites performed by the plaintiff. The trial and first appellate courts decreed the suit in favor of the plaintiff, prompting this second appeal.

Findings of Court:
The High Court held that the plaintiff, as a stranger to the family, failed to dispel the suspicion surrounding the Will’s execution. The discrepancies in the document, the lack of required thumb impressions, and the failure to prove the notarization process led the court to conclude that the Will was not validly executed.

Issues: Whether the judgment and decree upholding the Will are sustainable in law when the deceased’s capacity is challenged, thumb impressions are missing on a notarized document, and suspicious circumstances exist regarding the execution and funeral rites.

Ratio Decidendi: The burden of proof lies on the propounder of a Will to remove all suspicious circumstances. Mere notarization does not confer validity upon an unregistered document, especially when the notary's register or testimony is not produced to prove the act of execution in a disputed case.

Result: Appeal allowed; suit dismissed.

Table of Content
1. summary of procedural history and factual dispute over property title based on a contested will. (Para 1 , 2 , 3 , 4 , 5 , 6)
2. appellate arguments contesting the validity of the will due to missing thumb impressions and unnatural circumstances. (Para 7 , 8 , 9 , 10)
3. court’s analysis of evidentiary requirements for notarized documents and suspicious circumstances surrounding testament execution. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20)
4. decision regarding failure to prove testamentary capacity and validity of the will, resulting in dismissal of the suit. (Para 21 , 22 , 23 , 24)

JUDGMENT

This appeal having been heard and reserved for judgment, coming on for pronouncement this day, the Court pronounced the following:

This second appeal has been preferred by the appellant/defendant challenging judgment and decree dtd. 04.08.1999 passed by Additional District Judge, Umaria to the Court of District Judge, Shahdol in civil appeal No.3-A/1999 affirming the judgment and decree dtd. 12.02.1999 passed by Additional Civil Judge Class-I, Umaria in civil suit No.222-A/1997 whereby respondent 1/plaintiff’s suit for declaration of title and restoration of possession in respect of agricultural land Khasra No.155-159, 433/1, 79/483, 154, 243, 434/1 and 518 total no. 11, total area 1.997 hectare, situated in Village Tendua, Tahsil Bandhavgarh, Distt. Umaria, has been decreed.

2. Facts in short are that a civil suit was filed by respondent 1/plaintiff claiming himself to be owner/bhoomiswami of the land with the allegations that Gyaniram s/o Ram Sewak Brahman was owner of the land in question. After death of his wife, he was alone and suffering from paralysis, therefore, the plaintiff and his mother were taking care of Gyaniram, who died on 26.12.1994. Prior to his death, Gyaniram in his life time executed a Will dtd. 25.12.1994 (Ex.P/1) in favour of the plaintiff. It is also alleged that Gyaniram got opened a bank account also in the joint name of Gyaniram and plaintiff’s mother, in which an amount of Rs.22,000/- was also deposited. On inter alia allegations the suit was filed.

3. The appellant/defendant 1 appeared and by filing written statement denied the claim of plaintiff, and claimed himself to be bhumiswami and in possession of the land being successor of Gyaniram, with the further contention that entire suit land does not belong to Gyaniram because he has already sold some land to different persons. It is also contended that Gyaniram was suffering from paralysis and was not well. The plaintiff has got forged the false Will in question and in fact no Will was executed by Gyaniram in favour of the plaintiff. With these contentions the suit was prayed to be dismissed.

4. Defendant 2/State being proforma, did not file any written statement and was proceeded ex-parte.

5. On the basis of pleadings of the parties, trial court framed as many as seven issues and recorded evidence of the parties. The plaintiff in support of his case examined himself-Rajkumar Tiwari (PW-1), attesting witness-Jaikaran (PW-2), Jhagdu (PW-3) and another attesting witness Sundar Lal Yadav (PW-4) and submitted documentary evidence (Ex.P/1 to P/8). In rebuttal, the defendant 1 examined himself-Rameshwar Prasad Dubey (DW-1), Dadanram Dubey (DW-2) and Bodhram Dwivedi (DW-3) and submitted documentary evidence (Ex. D/1 & D/2).

6. After hearing arguments of the parties, trial court while deciding issue No.1 & 4(a),(b) held that the land in question belonged to Gyaniram Brahman and is in possession of defendant 1 and while deciding issue no.2 it was held that Gyaniram executed a Will in favour of plaintiff which is not a forged document and decreed the suit vide judgment and decree dtd. 12.02.1999. Upon filing civil appeal by defendant 1, first appellate Court affirmed the same, vide impugned judgment and decree dtd.04.08.1999.

7. Against the judgment and decree passed by courts below, instant second appeal has been filed by defendant 1, whi

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2024 Supreme(Online)(MP) 9393

HIGH COURT OF MADHYA PRADESHDwarka Dhish Bansal, JRameshwar Prasad Dwivedi – AppellantVersusRajkumar – RespondentSECOND APPEAL No. 972 of 1999

The burden lies on the propounder of a Will to dispel all suspicious circumstances surrounding its execution; mere notarization of an unregistered document without examining the notary or verifying the notarial register does not prove its validity in the face of a genuine dispute.

Cases Referred (5)

HIGH COURT OF MADHYA PRADESH
Dwarka Dhish Bansal, J
Rameshwar Prasad Dwivedi – Appellant
Versus
Rajkumar – Respondent
SECOND APPEAL No. 972 of 1999