OM PRAKASH AND ORS. versus SHIV KUMAR AND ORS.

Citation: [2006] SUPP. 10 S.C.R. 308 · Decided: 06-12-2006 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Dismissed

Judgment (excerpt)

A 
B 
OM PRAKASH AND ORS. 
v. 
SHIV KUMAR AND ORS. 
DECEMBER 6, 2006 
[S.B. SINHA AND MARKANDEY KA TJU, JJ.] 
Evidence-Burden to prove-Execution of Will-Suit against 
propounders of Will alleging it to be fabricated-Dismissal of suit by trial 
C court-Suit decreed by First and Second Appellate courts on the ground that 
the propounder of the Will was not able to remove suspicious circumstances 
surrounding the Will-On appeal, held: The burden is on the propounder of 
the Will to remove suspicious circumstances-This Court not to interfere with 
the finding of fact regarding existence of suspicious circumstances by courts 
below. 
D 
Plaintiff-respondents filed suit for possession of the land in question 
alleging that 'R' was owner in possession of the land and she died leaving 
behind the plaintiffs as only heirs; and that the appellant-defendant got a 
fabricated Will purporting to be prepared by 'R' and on that basis got mutation 
in revenue records and obtained possession. Trial Court dismissed the suit. 
E But the First Appellate Court as well as High Court in appeal decreed the 
suit holding that there were suspicious circumstances surrounding the 
execution of the Will, and the defendants had failed to remove those suspicions, 
the burden to remove which was on them. Hence the present appeal. 
F 
Dismissing the appeal, the Court 
HELD: The burden is on the propounder of the Will to remove any 
suspicious circumstances. There is relevant material on the record in 
support of the finding regarding existence of suspicious circumstances. 
Therefore, this Court will not interfere with the finding of fact recorded 
G by the first appellate court and the High Court. (309-H; 310-A-B) 
H 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. I 035 of2000. 
From the final Judgment and Order dated 28.5.1999 of the High Court 
of Himanchal Pradesh at Shimla in R.S.A. No. 99 of 1992. 
308 
OM PRAKASH v. SHIV KUMAR [MARKANDEY KA TJU . .I.] 
309 
Anant Vijay Palli, Rekha Palli and Shubra Singh for the Appellants. 
A 
Rajesh Gupta, Harpreet Singh, Punit Dutt Tyagi and Sandeep Puri for 
the Respondents. 
The Judgment of the Court was delivered by 
MARKANDEY KATJU, J. This appeal has been filed against the 
impugned judgment of the Himachal Pradesh High Court dated 28.5.1999 in 
RSA No. 99 of 1992. 
Heard learned counsel for the parties and perused the record. 
The plaintiff-respondents filed a suit for possession of the land in 
question alleging that one Smt. Ram Ditti, widow of Data Ram was owner 
B 
c 
in possession of the said land and she died issueless in October, 1983 leaving 
behind the predecessor-in-interest of the plaintiffs as the only heir. It is 
alleged that the defendant-appellants had got a false and fabricated Will 
purporting to be of Smt. Ram Ditti prepared and on that basis got mutation D 
in the revenue record with the connivance of the revenue officials and also 
obtained possession. 
The defendant-appellants contested the suit and it is alleged that the 
Will of Smt. Ram Ditti said to be executed in favour of the defendants on 
29.6.1997, was a valid Will which was registered before the Sub-Registrar on 
30.6.1967. 
The trial court dismissed the suit, but the first appellate court reversed 
that judgment and decreed the suit and the judgment of the first appellate 
E 
court was upheld by the High Court. 
F 
Both the first appellate court as well as the High Court have held that 
the burden was on the defendants who were the propounders of the Will to 
remove any suspicious circumstances, but the defendant-appellants have failed 
to do so. Various circumstances have been noticed by the first appellate court 
and the High Court in this connection and they came to the conclusion that G 
there were suspicious circumstances surrounding the execution of the alleged 
Will said to have been executed by Smt. Ram Ditti, and the defendant-
appellants have not been able to remove those suspicions. It is well settled 
in law that the burden is on the propounder of the Will to remove any 
suspicious circumstances. 
H 
310 
SUPREME COURT REPORTS [2006) SUPP. 10 S.C.R. 
A 
It is not necessary to go into all those suspicious circumstances referred 
to in the judgments of the High Court and the first appellate court. The 
finding of the High Court as well as the first appellate court is that there were 
suspicious circumstance!' surrounding the Will which is a finding of fact, and 
it cannot be said that this finding of fact is

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