The Madhya Pradesh High Court has reaffirmed a foundational principle of testamentary law: the original will must be produced to establish its execution, and failure to do so invalidates reliance on certified copies unless permission for secondary evidence is granted. In a significant ruling, the Court remanded the matter to the trial court to reassess newly submitted documents, including original wills and consent deeds, emphasizing that justice demands a full evidentiary record even at the appellate stage.
Background & Facts
The Dispute
The dispute centers on the validity of a registered will dated 10.03.1997 (Exhibit D/1), allegedly executed by late Shri Kalicharan Kamaria in favor of his grandson, defendant no.2- Pramod. The plaintiff, Genda Singh, and defendants no.1, 3, and 4 are the children of Kalicharan Kamaria. The plaintiff claimed the suit property was joint Hindu family property and sought to invalidate the will, asserting it was forged. The defendants contended the property was self-acquired by Kalicharan and validly bequeathed to Pramod through the will.
Key Facts
- The suit property is described in para 1 of the plaint and is undisputed in identity.
- Kalicharan Kamaria died in 2000, leaving behind four Class I heirs: plaintiff Genda Singh, defendant no.1 (Raghuveer Singh), defendant no.3 (Badami Bai), and defendant no.4 (Kapoori Bai).
- Defendant no.2 (Pramod) claims ownership through a registered will dated 10.03.1997.
- The original will was never produced before the trial court or the first appellate court.
- A certified copy of the will was filed, but no application under Section 65 of the Indian Evidence Act was made to seek permission for secondary evidence.
- Defendant no.2 examined Murari Lal (DW/2) as an attesting witness via affidavit under Order 18 Rule 4 CPC; the plaintiff declined to cross-examine him.
- Defendant no.6, a society, purchased part of the property from defendant no.2 via a registered sale deed dated 10.08.2001.
- Defendant no.3 and 4 did not appear before the trial court and were proceeded against ex-parte on 16.08.2001 and 10.09.2004 respectively.
- Defendant no.6 was impleaded under Order 22 Rule 10 CPC and proceeded ex-parte on 04.03.2005.
- On 05.02.2005, the plaintiff purchased 0.575 hectare of the suit property from defendant no.2 via a registered sale deed, which recited his acceptance of the will.
- On 17.04.2009, the plaintiff, his son Shiv Singh, and defendants no.3 and 4 executed consent deeds acknowledging the validity of the 10.03.1997 will.
- On 02.12.2022, defendant no.4 executed another consent deed in favor of defendant no.2 reaffirming the will.
- The original will dated 10.03.1997 was produced for the first time before the High Court during the second appeal.
Procedural History
- 10.03.1997: Will allegedly executed by Kalicharan Kamaria in favor of Pramod.
- 2000: Death of Kalicharan Kamaria.
- 2001: Defendant no.3 and 4 proceeded ex-parte; defendant no.6 impleaded.
- 05.02.2005: Plaintiff purchases 0.575 hectare from defendant no.2; sale deed filed.
- 16.08.2001: Defendant no.3 proceeded ex-parte.
- 10.09.2004: Defendant no.4 and 5 proceeded ex-parte.
- 04.03.2005: Defendant no.6 proceeded ex-parte; plaintiff declined cross-examination of Murari Lal.
- 30.03.2005: Trial Court dismisses suit, upholds will based on unchallenged attestation.
- 07.02.2006: First Appellate Court reverses trial court, holds will unproved due to non-production of original.
- 08.03.2006: High Court issues interim stay on alienation of property.
- 17.04.2009: Consent deeds executed by plaintiff, his son, and defendants no.3 and 4 acknowledging the will.
- 22.07.2021: Second appeal filed before Madhya Pradesh High Court.
- 22.01.2007: Appeal admitted on two substantial questions of law.
- 17.04.2009: Consent deeds executed.
- 02.12.2022: Defendant no.4 executes consent deed reaffirming will.
- 13.05.2026: Date fixed for appearance before trial court on remand.
- 31.08.2026: Deadline for remittal of record to High Court.
The Parties' Positions
For the Plaintiff (Appellant in Second Appeal)
- Argued that the will was not proved because the original was never produced.
- Contended that the attestation by Murari Lal was insufficient without cross-examination.
- Maintained that the certified copy could not substitute for primary evidence without statutory permission.
For the Defendant No.2 (Appellant in Second Appeal)
- Argued that the original will was produced before the High Court and should be considered.
- Relied on consent deeds and the plaintiff’s own purchase of land under the will as admissions.
- Asserted that the appellate court erred in rejecting applications under Order 41 Rule 27 CPC.
Relief Sought
The plaintiff sought a declaration that the will is void, that he holds a 1/4th share in the suit property, and an injunction against alienation. The defendant sought a declaration that he is the sole owner under the will and dismissal of the suit. The appellate court granted partial relief to the plaintiff, declaring him a 1/4th co-owner, excluding the portion sold to defendant no.6. The defendant now seeks reversal of this decree.
The Legal Issue
The central question was whether the non-production of the original will renders its execution unproved under Section 68 of the Indian Evidence Act, and whether the appellate court erred in rejecting applications under Order 41 Rule 27 CPC to introduce new evidence, including the original will and consent deeds, which directly bear on the validity of the testamentary instrument.
Arguments Presented
For the Appellant/Petitioner
The appellant argued that the original will dated 10.03.1997 was produced before the High Court and should be admitted as primary evidence. He relied on Sanjay Kumar Singh v. State of Jharkhand (2022) 7 SCC 247 to contend that Order 41 Rule 27 CPC permits additional evidence if it is necessary for just adjudication, regardless of prior availability. He submitted that the consent deeds executed by the plaintiff and other heirs constituted admissions under Section 21 of the Indian Evidence Act, and that the plaintiff’s purchase of land from him under the will amounted to conduct inconsistent with his claim of forgery. He further argued that the appellate court’s refusal to admit the original will was a grave error that defeated the ends of justice.
For the Respondent/State
The respondents contended that the original will was available throughout the litigation and its non-production before the trial and first appellate courts was deliberate and unexplained. They argued that Order 41 Rule 27 CPC cannot be used to circumvent the rules of evidence or to introduce evidence that could have been adduced earlier. They relied on the principle that appellate courts must not act as courts of first instance and that the plaintiff’s refusal to cross-examine the attesting witness was a tactical choice that cannot be reversed on appeal. They further argued that the consent deeds were executed after litigation commenced and were therefore not reliable admissions.
The Court's Analysis
The Court began by affirming the settled legal position under Section 68 of the Indian Evidence Act: a will must be proved by calling at least one attesting witness, and if the will is registered, the attestation must be proved by the registration record. However, the Court emphasized that registration alone does not prove execution; the authenticity of the document must still be established.
"The execution of a will cannot be presumed merely because it is registered. The burden lies on the propounder to prove that the testator signed or affixed his mark to the document with the intention of giving effect to it."
The Court noted that the first appellate court correctly held that the certified copy of the will could not be admitted as primary evidence without a formal application under Section 65 of the Indian Evidence Act and a court order permitting secondary evidence. The failure to do so rendered the will unproved.
However, the Court then turned to the newly produced documents: the original will, the consent deeds, and the sale deed dated 05.02.2005. Citing Sanjay Kumar Singh v. State of Jharkhand, the Court held that Order 41 Rule 27 CPC permits the admission of additional evidence if it is necessary for the court to pronounce judgment. The Court found that the original will and the consent deeds had a direct and substantial bearing on the central issue - whether the testator intended to bequeath the property to defendant no.2.
"The true test is whether the appellate court is able to pronounce judgment on the materials before it without taking into consideration the additional evidence sought to be adduced."
The Court observed that the plaintiff’s purchase of land from defendant no.2 under the will, and the subsequent consent deeds signed by the plaintiff and his heirs, were not merely collateral but directly undermined the plaintiff’s claim of forgery. The Court held that the first appellate court erred in rejecting the application under Order 41 Rule 27 CPC without considering the potential of these documents to resolve the dispute.
The Court further noted that the interests of third parties, particularly defendant no.6, who had purchased property based on the will, required a fair and complete adjudication. To ensure justice, the Court exercised its power under Order 41 Rule 25 CPC to remand the matter to the trial court for a fresh hearing on the newly admitted evidence.
The Verdict
The appellant succeeded in part. The Court set aside the appellate court’s order dated 07.02.2006, allowed the applications under Order 41 Rule 27 CPC, and admitted the original will dated 10.03.1997, the consent deeds dated 17.04.2009 and 02.12.2022, and the sale deed dated 05.02.2005 as additional evidence. The matter was remanded to the Principal District Judge, Gwalior, for retrial. The trial court is directed to permit amendment of pleadings, allow parties to prove or rebut the new evidence, and deliver findings by 31.08.2026. No adjournments are permitted. The interim stay order dated 08.03.2006 remains in force until final disposal.
What This Means For Similar Cases
Original Will Must Be Produced or Secondary Evidence Properly Sought
- Practitioners must always produce the original will in probate or succession suits; reliance on certified copies without a court order under Section 65 of the Evidence Act will result in the will being deemed unproved.
- If the original is unavailable, a formal application under Section 65 must be filed at the earliest stage, with reasons for non-production.
Consent Deeds and Post-Litigation Conduct Can Undermine Claims of Forgery
- Consent deeds executed by heirs acknowledging a will, even after litigation begins, may be treated as admissions under Section 21 of the Evidence Act.
- A plaintiff’s purchase of property from a will beneficiary under the terms of the will may be construed as conduct inconsistent with a claim of forgery.
Order 41 Rule 27 CPC Allows Evidence at Appellate Stage If Necessary for Justice
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Appellate courts may admit additional evidence even if it was available earlier, if its exclusion would prevent a just decision.
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The test is not whether the evidence could have been produced earlier, but whether the appellate court needs it to pronounce judgment.
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This principle applies especially where third-party rights are involved or where the evidence resolves a central factual dispute.
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Always file applications under Order 41 Rule 27 CPC with supporting affidavits explaining the necessity of the evidence.
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Do not assume that failure to produce evidence at trial bars its admission on appeal if justice demands it.
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In will disputes, treat consent deeds and post-death transactions as potential evidence of testamentary intent, not merely procedural irregularities.
