Supreme Court of India
STATE OF HARYANA versus HARNAM SINGH (DEAD) THR. LRS. & ORS. on 25 November 2021
520
SUPREME COURT REPORTS
[2021] 7 S.C.R.
ASTATE OF HARYANA
v.
HARNAM SINGH (DEAD) THR. LRS. & ORS.
(Civil Appeal No. 6825 of 2008)
BNOVEMBER 25, 2021
[L. NAGESWARA RAO AND ANIRUDDHA BOSE, JJ.]
Succession Act, 1925: s.63 – Exection of unpriveleged Wills– Proving of Will u/s.63 – Held: Requirement of s. 63 cannot befulfilled by mechanical compliance of the stipulations therein –CEvidence of meeting the requirement of the said provision must bereliable – On facts, person claiming to be scribe of the Will as wellas the two attesting witnesses deposed to support the case of theoriginal plaintiff, but both the trial court and the first appellatecourt disbelieved their testimony – Thumb impression of testatorDwas not matched – Contradiction in the evidences of attestingwitnesses as regards the place of execution – Fact finding courtsdid not find such evidence to be reliable – Thus, the High Courterred in formulating the question of law on the basis that the Willwas proved in terms of s.63 – In fact, both the fact finding courtsfound that the Will was not proved – High Court formulated theEquestion of law on question of fact only – It went into a detailedfactual enquiry to come to its finding, though such enquiry was notpermissible while hearing an appeal u/s.100 CPC – Thus, there isno perversity in the judgment passed by the trial court and the firstappellate court – Judgment passed by the High Court is set aside.FAllowing the appeal, the Court HELD: 1.1 The opinion of the High Court was that the Willwas proved in terms of Section 63 of the Succession Act, 1925and while coming to such finding the High Court went deep intofactual inquiry. It is evident from the judgment under appeal thatGthe formulation of the question of law was on question of factonly. Moreover, in formulating the question on the basis of whichthe Appeal was admitted, the High Court proceeded on the basisthat the Will was proved in terms of Section 63 of the Act. Theperson claiming to be scribe of the Will as well as the two attestingH
witnesses deposed to support the case of the original plaintiff,but both the Trial Court and the First Appellate Court disbelievedtheir testimony. The thumb impression of testator was notmatched. There was contradiction in the evidences of attestingwitnesses as regards the place of execution. The requirement ofSection 63 of the Act cannot be said to have been fulfilled bymechanical compliance of the stipulations therein. Evidence ofmeeting the requirement of the said provision must be reliable.The fact finding courts did not find such evidence to be reliable.[Para 7][525-F-H; 526-A-B]
1.2 The High Court erred in formulating the question oflaw on the basis that the Will was proved in terms of Section 63of the Act. In fact, both the fact finding Courts-the trial court andthe first appellate court, had found that the Will was not proved.The evidences of the witnesses were disbelieved as they failedto inspire the confidence of fact finding courts. The High Court,however, went into a detailed factual enquiry to come to its finding.An enquiry of such nature was impermissible while hearing anappeal under Section 100 CPC. The finding of the trial court andthe first appellate court ought not to have been interfered withby the High Court. There is no perversity in the judgment of thefirst two courts of facts. [Paras 7, 8][526-G-H; 527-A-B]
1.3 The question of inter-se dispute between the State ofHaryana and the defendant nos. 2 to 4-legal heirs of the testatorcannot be resolved in this appeal as fresh evidence would haveto be led to adjudicate that question and this would create a newdispute altogether that was not addressed previously in the suitfrom which the present appeal arises. There is no clear evidenceas to whether the original defendant nos. 2 to 4 had been servedsummons or notice of the proceeding at the stage of trial. It wouldbe open to the individuals claiming to be the legal representativesof late testator to question the claim of the State of Haryana overthe subject-land under the doctrine of escheat. [Para 9][527-D-E]
CIVIL APPELLATE JURISDICTION: Civil Appeal No.6825 of2008.
AB
CD
E
F
G
H
AFrom the Judgment and Order dated 05.05.2008 of the High Courtof Judicature at Punjab and Haryana at Chandigarh in R.S.A. No.1820of 1982.
Dr. Monika Gusain, Adv. for the Appellant.
Abhaya K. Behera, Sr. Adv., Saurabh Tewari, Ashok K. Mahajan,BJ. P. Singh, Amit Sahni, Bano Deswal, Ms. Reema Chauhan, R. C.Kaushik, Advs. for the Respondents.
The Judgment of the Court was delivered by ANIRUDDHA BOSE, J.C
Citations and Judicial Treatment
Cited by
0
Decisions in the index citing it
Cites
0
Decisions referred to
In this index
0
Of the decisions it cites
Overruled / Questioned
0
No negative treatment found
Loading the citing and cited decisions…
This judgment in the centre: on the left the decisions it cites, on the right the decisions citing it. Colour is the treatment; choose a decision to open it.
1. The appellant before us is the State of Haryana assailing thelegality of a judgment delivered by the High Court for the State of Punjaband Haryana at Chandigarh on 5[th] May, 2008. In the judgment underappeal, the High Court set aside the concurrent finding of the Trial Courtand the First Appellate Court on the point of genuinity of a Will of oneDKishan Singh by which agricultural land comprising of 52 kanals and 3marlas in the district of Kurukshetra in Haryana stood bequeathed toone Harnam Singh (since deceased). The Will [the English translation ofwhich has been annexed to the counter-affidavit of one Naseeb Singh,filed as and on behalf of the legal heirs of Harnam Singh (deceased)]does not specify the area or description of the land. The disposition inEthe said instrument is of “all the land which is my self-acquired and othermovable and immovable properties located at Patti Dogran Kaithal”.
2. On the death of Kishan Singh on 15[th] January, 1975 (the dateas reflected in the High Court judgment), dispute arose over mutation ofthe subject-land as the original plaintiff Harnam Singh (deceased) claimedFthe right over the subject-land on the basis of the Will of late KishanSingh, executed on 10[th] December, 1974 (the date as reflected in theHigh Court judgment). He claimed to be the legatee under the said Will.Admittedly, Harnam Singh (deceased) was not related to late KishanSingh by blood. The former was tilling the land of late Kishan Singh, asit has transpired in evidence before the Trial Court. In the Will, theGgenuinity of which is contested by the State of Haryana, it is recordedthat Harnam Singh (deceased) was looking after late Kishan Singh. Theauthority of the first instance, on the basis of the said Will, had mutatedthe land in favour of Harnam Singh (deceased). But the Assistant Collectorhad turned down the plea of mutation as he did not accept the existenceHof the Will. Applying the doctrine of escheat, the land was mutated in STATE OF HARYANA v. HARNAM SINGH (DEAD) THR. LRS.& ORS. [ANIRUDDHA BOSE, J.]
favour of the State. Thereafter, the suit was instituted on 29[th] May, 1978by said Harnam Singh (deceased) seeking the following reliefs:- “It is therefore prayed that a decree for declaration to the effectthat the mutation sanctioned in favour of the Haryana State iswrong and does not confer any right on the State of Haryana andthat the plaintiff is owner in possession of the suit property asmentioned in para no. 1 of the plaint and in the copy of jamabandifor the year 1972-73 with consequential relief of permanentinjunction restraining the defendants from auctioning or alienatingin any way the suit property may kindly be passed in favour of theplaintiff and against the defendant alongwith the costs of the suit.Any other relief to which the plaintiff is deemed entitled to mayalso be granted.”
(quoted verbatim from the copy of the plaint as annexed tothe paperbook)
3. In the suit, Diwan Singh (since deceased), Sohan Singh (sincedeceased) and Kehar Singh (since deceased) were impleaded asdefendant nos. 2 to 4. They appear to be nephews of late Kishan Singh(sons of his paternal cousin brothers). They were made defendantsfollowing the subsisting rule of succession. It has not come in evidencethat Kishan Singh was survived by his spouse or any child. The defendantno. 2 also passed away but his legal representatives have been broughton records. The endorsement made on the cause title of the petitionreveals that the defendant nos. 3 and 4 have also passed away and theirinterest is being represented by the legal representatives of the defendantno. 2 in this appeal.
4. The Trial Court dismissed the suit on 22[nd] October, 1981, whichwas contested by the first defendant only (State of Haryana). In thejudgment of the Trial Court, it was inter-alia, held :- “7(d) In view of the perfunctory and casual manner in which thewill is alleged to have been scribed all of a sudden inasmuch asnow kurushetra No. of the land sought to be bequeathed by thewill have been mentioned in the will nor has it been scribed orattested by people who could claim them selves to be intimatedwith the deceased (since the present with eases as per their ownstatement were neither related to nor intimated with the deceasedand happen to be chance with eases. If I may say so), I am unable ABC
DE
F
G
H
524SUPREME COURT REPORTS
Ato be accept the averments of these with eases that the deceasedever executed the will Ex.A.1 on the summoned file copy of whichis Ex.P.4 at all in favour of the plaintiff. In view of the shoveappraisal of the testimony of PWs 1,2,3 and 4. Ian of the opinionthat no will was executed by the deceased kishan Singh in favourof the plaintiff as alleged accordingly issue Nos 1 is deceasedBagainst the plaintiff and in favour the defendant.”
5. The First Appellate Court affirmed the said judgment on 20[th]CJuly, 1982, holding:- “14. The learned unseal for the appellant contended before methat when statements of witnesses are consistent with each otherthen they should be held to prove execution of the will. I am of theview that in the instant case, though statements of witnesses areDconsistent but these does not inspire confidence and are notsufficient to prove execution of will because thumb impressionson the will because thumb impressions on the will are not provedto be of the deceased. Will is not scribed by licensed petition writer.Scribe does not belong to the village attesting witnesses of thewill are chance witnesses having no special connection with theEdeceased. All these facts shows that due execution of will is notproved. So finding of trial court on issue No.1 is liable to beconfirmed and is confirmed.”
(quoted verbatim from the copy of the judgment as annexedto the paperbook)F
6. The following question of law was formulated by the High Courtfor admitting the Second Appeal of Harnam Singh (deceased) :- “Whether the will alleged to have been executed by Kishan Singhis genuine or it could be disbelieved by both the Courts below,which has been proved as per the provisions of section 63 of theGIndian Succession Act.”
The High Court took a view different from that of the fact findingHCourts and held:- STATE OF HARYANA v. HARNAM SINGH (DEAD) THR. LRS.& ORS. [ANIRUDDHA BOSE, J.]
“Learned counsel for the respondent state further argued that thewill is not a registered document. The argument cannot beaccepted as there is no requirement of law that will has to beregistered. Of course, if a will is registered it would certainly be acircumstance to prove its genuineness but the mere fact that awill is not registered would not by itself be sufficient to discardthe other cogent evidence to prove the will. In the present casethe witnesses produced by the plaintiff-appellant have beensuccessfully able to establish the due execution of the will by thetestator while he was in a sound disposing state of mind byexamining two independent attesting witnesses, one of whom is aMunicipal Councilor, and the scribe, who had written the will. Allthe witnesses have vouched about the sound state of mind of thetestator at the time of execution of will. There is nothing on recordto show that any of the witnesses has some relationship with thepropounded of the will namely Harnam singh, in order todemonstrate that their testimony is false and unacceptable.
No other point has been urged by the learned stated counsel.
Resultantly, this appeal is allowed, the judgments and decrees ofboth the courts below are set aside and the suit of the plaintiff isdecreed quashing the mutation sanctioned in favour of the state.The plaintiff-appellant is declared to be the owner in possessionof the suit property as mentioned in para No.1 of the plaint. Thedefendant-state is further restrained from auctioning or alienatingthe suit property.”
7. The opinion of the High Court was that the Will was proved interms of Section 63 of the Indian Succession Act, 1925 and while comingto such finding the High Court went deep into factual inquiry. It is evidentfrom the judgment under appeal that the formulation of the question oflaw was on question of fact only. Moreover, in formulating the questionon the basis of which the Appeal was admitted, the High Court proceededon the basis that the Will was proved in terms of Section 63 of the IndianSuccession Act, 1925. The person claiming to be scribe of the Will aswell as the two attesting witnesses deposed to support the case of theoriginal plaintiff, but both the Trial Court and the First Appellate Court ABC
D
E
F
G
H
Adisbelieved their testimony. The thumb impression of Kishan Singh wasnot matched. There was contradiction in the evidences of attestingwitnesses as regards the place of execution. The requirement of Section63 of the Indian Succession Act, 1925 cannot be said to have beenfulfilled by mechanical compliance of the stipulations therein. Evidenceof meeting the requirement of the said provision must be reliable. TheBfact finding Courts did not find such evidence to be reliable. The provisionof Section 63 of the 1925 Act reads:- “63. Execution of unprivileged Wills.—Every testator, notbeing a soldier employed in an expedition or engaged in actualwarfare, [or an airman so employed or engaged,] or a mariner atCsea, shall execute his Will according to the following rules:—
(a) The testator shall sign or shall affix his mark to the Will, orit shall be signed by some other person in his presence and byhis direction.
D(b) The signature or mark of the testator, or the signature ofthe person signing for him, shall be so placed that it shall appearthat it was intended thereby to give effect to the writing as aWill.
(c) The Will shall be attested by two or more witnesses, eachEof whom has seen the testator sign or affix his mark to the Willor has seen some other person sign the Will, in the presenceand by the direction of the testator, or has received from thetestator a personal acknowledgment of his signature or mark,or of the signature of such other person; and each of thewitnesses shall sign the Will in the presence of the testator, butFit shall not be necessary that more than one witness be presentat the same time, and no particular form of attestation shall benecessary.”
Thus, the High Court erred in formulating the question of law onthe basis that the Will was proved in terms of Section 63 of the IndianGSuccession Act, 1925. In fact, both the fact-finding Courts-the Trial Courtand the First Appellate Court, had found that the Will was not proved.The evidences of the witnesses were disbelieved as they failed to inspirethe confidence of fact finding Courts. The High Court, however, wentinto a detailed factual enquiry to come to its finding. We are of the H
opinion that an enquiry of such nature was impermissible while hearingan appeal under Section 100 of the Code of Civil Procedure, 1908.
8. In our opinion the finding of the Trial Court and the First AppellateCourt ought not to have been interfered with by the High Court. We donot find any perversity in the judgment of the first two Courts of facts.
9. The legal heirs of late Kishan Singh have also contested theappeal before this Court and a counter-affidavit to that effect has beenfiled by one Sukhwinder Singh. In the said counter-affidavit, he has takena plea that the defendant Nos. 2 to 4 were not informed about the saidsuit. Defendant nos. 2 to 4 were struck off from the array of parties inthe First Appellate Court on the ground that no relief was claimed againstthem as per submission of the appellant’s counsel before the said Court.The defendant nos. 2 to 4 have raised their claim in course of thisproceeding over their right on the subject-land under Sections 47 and 48of the Indian Succession Act, 1925. But that question cannot beadjudicated in this proceeding. The question of inter-se dispute betweenthe State of Haryana and the defendant nos. 2 to 4 cannot be resolved inthis appeal as fresh evidence would have to be led to adjudicate thatquestion and this would create a new dispute altogether that was notaddressed previously in the suit from which the present appeal arises.We do not have clear evidence as to whether the original defendant nos.2 to 4 had been served summons or notice of the proceeding at the stageof trial. It would be open to the individuals claiming to be the legalrepresentatives of late Kishan Singh to question the claim of the State ofHaryana over the subject-land under the doctrine of escheat. We do notclose that option in this judgment.
10. In such circumstances we allow the appeal and set aside thejudgment of the High Court. The judgments of the Trial Court and theFirst Appellate Court are restored. But on the question of claim of thelegal representatives of original defendant nos. 2 to 4 over the suit land,it would be open to them to bring appropriate action as may be permissibleunder the law.
11. There shall be no order as to costs.
Appeal allowed.
A
B
C
D
E
F
G
H