USHA HARI PANSE AND ORSversusRAMCHANDRA BHIKAJI PANSE AND ANR

Vaishnavi                                                26-SA-484-2025


               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       CIVIL APPELLATE JURISDICTION
                      SECOND APPEAL NO. 484 OF 2025
                                 WITH
                  INTERIM APPLICATION NO. 11373 OF 2025
                                   IN
                      SECOND APPEAL NO. 484 OF 2025

Usha Hari Panse and Ors.                               ...Appellants
                                                     (Orig. Plaintiffs)

                     V/s.

Ramchandra Bhikaji Panse and Anr.                     ...Respondents
                                                    (Orig. Defendants)
                                ________________
Mr. Surel Shah, Senior Advoate, with Mr. Sumed-h Ruikar, Mr. Viraj
Shelatkar, Mr. Kunjan makwana, for Appellant.
Mr. S.S. Patwardhan with Ms. Mrinal A. Shelar and Mr. A.V. Hardas, for
Respondent Nos. 2a (i) to (iii)
                                ________________


                                          CORAM: SANDEEP V. MARNE, J.

                                          DATED: 14 AUGUST 2026


P.C.:


1)          By this Appeal, the Appellant has challenged the judgment and
decree dated 27 February 2025 passed by District Court, Pune, in Regular
Civil Appeal No. 475 of 2012. The First Appellate Court has dismissed the
Appeal and has confirmed the judgment and decree dated 17 January
1996 passed by the Trial Court in Special Civil Suit No. 5 of 1990.


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2)          I have heard Mr. Shah, the learned Senior Advocate appearing for
the Appellants and Mr. Patwardhan, the learned counsel appearing for
Respondent Nos. 2a (i) and (iii) and have considered the submissions
canvassed by them.


3)          Plaintiffs main case was that the Suit property is a joint family
property and that Petitioner No. 1 is entitled to inherit the same through
her husband. It was the case of the Plaintiffs that father-in-law Bhikaji
did not have right to make Will in respect of joint family property. The
Plaintiffs, however, failed to prove the assertion and both the Courts
have concurrently held that the suit property is the self-acquired
property of father-in-law, Bhikaji.


4)          Considering fact that there are concurrent findings by both the
Courts on the issue of Suit property being self-acquired property, Mr.
Shah has fairly not pressed the Appeal on the point of Suit property
being self-acquired property.


5)          Mr. Shah, however, submits that Plaintiffs had also raised the
alternative plea that even if the suit property is held to be self-acquired
property of Bhikaji, they had a share in the same. Defendant No. 1 came
out with the defence of execution of the Will by Bhikaji in his name. The
Trial and Appellate Courts have held the Will to be proved and has
accordingly negatived the claim of the Plaintiffs.


6)          Mr. Shah has submitted that there is no proper proof of valid
execution of Will within the meaning of Section 63 of the Indian

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Vaishnavi                                                      26-SA-484-2025


Succession Act, 1925 (Succession Act). He submits that though the
attesting witnesses, Shri. Madhukar Kulkarni had seen the testator
signing the Will, there is no evidence on record to suggest that both the
witnesses had signed the Will in presence of the testator. According to
him, the mandatory requirements of Section 63 of the Succession Act are
not fulfilled.


7)          I have considered the evidence of the witness Mr. Madhukar
kulkarni and after going through his evidence, it can be gathered that all
the parties, who have signed the Will were in the same room. There is no
suggestion give by the Plaintiffs to the attesting witness that testator
was not present when the witness signed the Will. In my view therefore,
the Trial and Appellate Courts have rightly held that execution of the
Will is validly proved within the meaning of Section 63 of the Succession
Act.


8)          Mr. Shah has thereafter submitted that there are suspicious
circumstances surrounding the Will and therefore, the Trial and
Appellate Courts could not have recorded a finding of valid execution of
the Will. He has placed reliance on judgment the Apex Court in Ramesh
Chand (D) Thr. Lrs. Vs. Suresh Chand and Anr 1, in which it is held by the
Hon’ble Apex Court in paragraph 27 is as under:

              27. Considering the aforementioned cases, it is clear that in order to rely
              upon a Will, the same has to be proved in accordance with law. A Will has
              to be attested by two witnesses, and either of the two attesting witnesses
              have to be examined by the propounder of the will. In the present matter,
              we have carefully perused the Trial Court's judgment. There is not an iota
              of discussion about the validity of the Will as contemplated under Section

1    2025 SCC OnLine SC 1879

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              63 of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872
              and yet, the validity of the Will has been upheld. This is contrary to law.
              Even the High Court, while evaluating the validity of the Will, has gone on
              a different tangent and has erroneously held that the requirement of
              examining the attesting witnesses springs into action only in cases of
              disputes between legal heirs. Such an observation is quite contrary to law,
              for Section 68 of the Evidence Act makes it mandatory to examine at least
              one of the attesting witnesses of the Will. Mere fact that the Will was
              registered will not grant validity to the document. Besides that, the will
              propounded by plaintiff is surrounded with suspicious circumstances, in as
              much as the alleged propounder of the Will, Lt. Sh. Kundan Lal, had four
              children, including the plaintiff and the defendant No. 1. There is not even
              a whisper of reasoning as to why the propounder of the Will choose to
              exclude other three children from the bequest, and whether any other
              properties or assets were given to them. It is highly unlikely that a father
              would grant his entire property to one of his children, at the cost of three
              others, without there being any evidence of estrangement between the
              father and the children. This suspicious circumstance surrounding the will
              has not been removed by the plaintiff either. Hence, for these cumulative
              reasons, the Will propounded by plaintiff though registered would not
              confer any valid title on the plaintiff either.


9)          However, before the Apex Court, it appears that there was no
discussion by the Trial Court about valid execution of the Will within the
meaning of Section 63 of the Succession Act. Presence of suspicious
circumstance was only an additional facet in the case before the Hon’ble
Apex Court. In the present case, there is proper discussion about valid
execution of the Will by the Trial and the Appellate Courts as per the
requirement laid down in Section 63 the Succession Act. I am also not
inclined to accept the contention that the Plaintiffs were able to prove
existence of suspicious circumstances surrounding the Will in the facts
of the present case. Mere presence of propounder of the Will at the time
of execution of the Will in the Registrar’s Office would not ipso facto lead
to presumption of existence of surrounding circumstances. Going by that
standard, every Will would be rendered void on account of presence of
the legatee at the time of execution of the Will. No suggestion is given to

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the propounder during the course of his cross-examination that the
father-in-law actually desired to execute the Will in some other form,
but the propounder prevailed upon him and forced or coerced him to
execute the Will in his favour alone.


10)         Even otherwise, it is difficult to accept an abstract principle of
law that even where valid execution of the Will is proved by meeting all
the requirements under Section 63 of the Succession Act, the Court has
walk a step further and also quell existence every circumstance which is
perceived by the challenges of Will to be suspicious. If the case of
existence of suspicious circumstance is set up by the challenger, the
burden if on him to prove existence of suspicious circumstances. Once
valid execution of the Will is proved within the meaning of Section 63 of
the Succession Act, the Will has to take legal effect.


11)         Considering the above position, in my view, no substantial
question of law is involved in the Second Appeal. The Second Appeal is
accoridngly dismissed. There shall be no order as to costs.




                                                      [SANDEEP V. MARNE, J.]




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