RAJ KUMARI AND OTHERS versus SURINDER PAL SHARMA on 17 December 2019

872

SUPREME COURT REPORTS

[2019] 18 S.C.R.

A

RAJ KUMARI AND OTHERS

v.

SURINDER PAL SHARMA

(Civil Appeal No. 9683 of 2019)

BDECEMBER 17, 2019

[S. ABDUL NAZEER AND SANJIV KHANNA, JJ.]

Indian Succession Act – cl(c) to s.63 – Will – Evidence Act,1872 – ss. 68 and 71 – ‘H’ applied for a two room accomodation –‘H’ died – Wife of ‘H’ was issued allotment letter of the said twoCroom tenement – Thereafter, wife of ‘H’ also expired – ‘H’ and hiswife had four children – Two daughters ‘R’ and ‘P’ and two sons ‘S’and ‘M’ – Daughter ‘R’ filed a suit for partition of the tenement anddecree of declaration that she and the defendants i.e. her siblingswere owners of 1/4th unspecified and undivided share in theDtenement – The suit was contested by ‘S’, who in his written statementhad propounded a registered Will dated 02.01.1992 purportedlyexecuted by the wife of ‘H’, his mother, wherein the tenement wasbequeathed absolutely to him – The Trial Court passed a preliminarydecree of partition inter alia holding that the four siblings wereentitled to 1/4th share each in the tenement after recording that ‘S’Ehad failed to prove the purported registered Will – It was held that‘S’ had failed to examine any of attesting witnesses to the Willrequired u/s. 68 of the Evidence Act – The High Court set aside thejudgment of the Trial court – On appeal, held: In the instant case,the Will was attested by two witnesses namely ‘RK’ husband of ‘R’Fand ‘MN’, Advocate – ‘S’ stated that ‘MN’ could not be served andhence was not examined and ‘RK’ was not summoned or examinedas he was the husband of ‘R’ – The High Court has accordinglyheld that Will being registered was proved in terms of s. 71 of theEvidence Act – This finding of the High court is unacceptable, forrecourse to s. 71 of the Evidence Act is impermissible without theGexamination of witness ‘RK’ – It would not matter if ‘RK’ is husbandof ‘R’ – s.71 of the Evidence Act would come into operation, onceand if all the attesting witnesses deny or do not recollect the executionof the document, that is, the Will – Since, ‘RK’ was not summonedand examined, therefore, it cannot be said that he had denied orH

did not recollect execution of the Will – Further, ‘S’ in a reply to alegal notice by ‘R’ had not made any reference to a Will, the defenceof Will was taken for first time in his written statement – The Willwas not challenged in the Court of law as ‘R’ came to know about itduring pendency of the suit – Besides, the testator, mother of ‘S’and ‘R’ was an illiterate lady – Even if signatures of the testatorand witnesses are accepted, the ‘other evidence’ cannot be ignoredthat mother of ‘S’ and her family members did not understand thetrue nature of the document executed – There are substantial andgood reasons to legitimately suspect and question execution of theWill – Therefore, the judgment of the High Court set aside andjudgment of the Trial Court restored.

Conclusion

Evidence Act, 1872 – ss. 68 and 71 – The effect of ss. 68 and71 in case of a Will – Held: s. 63 of the Indian Succession Actrequires and mandates attestation of a Will by two or more personsas witnesses, albeit s.68 of the Evidence Act gives concession tothose who want to prove and establish a Will in the Court of law byexamining at least one attesting witness who could prove theexecution of the Will viz. Attestation by the two witnesses and itsexecution in the manner contemplated by cl (c) to s.63 of the IndianSuccession Act – However, where one attesting witness examinedfails to prove due execution of the will, then other available attestingwitness must be called to supplement his evidence to make itcomplete in all respects to comply with the requirement of proof asmandated by s. 68 of the Evidence Act – The effect of s. 71 EvidenceAct can be requisitioned when the attesting witnesses who were beingcalled have failed to prove the execution of Will by reason of eitherdenying their own signatures, denying the signature of the testatoror due to bad recollection as to the execution of the document –s.71 has no application when only one attesting witness who wascalled and examined has failed to prove the execution of Will andthe other available attesting witness was not summoned.

Allowing the appeal, the Court

HELD: 1. In the facts of the present case, it is submittedby ‘S’, the respondent, that summons/notice were issued to ‘MN’Advocate to appear as a witness but he could not be served andhence was not examined. ‘RK’ it is submitted, was not summonedor examined as he was none other than the husband of ‘R’ and AB

C

D

E

F

G

H

Awould not have supported execution of the Will. The High Courthas accordingly held that the Will being registered was proved interms of section 71 of the Evidence Act. This finding of the HighCourt is unacceptable, for recourse to Section 71 of the EvidenceAct is impermissible without examination of ‘RK’. It would notmatter if ‘RK’ is husband of ‘R’. Section 71 of the Evidence ActBwould come into operation, once and if all the attesting witnessesdeny or do not recollect the execution of the document, that is,the Will. In that event, the execution can be proved by otherevidence. The respondent accepts that ‘RK’ though a witnesswas not summoned and asked to depose as a witness andCtherefore, it cannot be said that ‘RK’ as an attesting witness haddenied or did not recollect execution of the Will. [Para 23][891-G; 892-A-C]

2. ‘S’ had not propounded and referred to the Will in hisreply to the legal notice, which defence was taken by him for theDfirst time in his written statement. This is also clear from thecross-examination of ‘S’ wherein he had accepted as correct thatthe Will was not challenged by ‘R’ in the court of law as she hadcome to know about the Will during the pendency of the presentcase. ‘S’ thus accepts that bestowal in his favour vide a writtenWill, was not known or within the knowledge of ‘R’, a surprisingEstatement as ‘RK’ is husband of ‘R’. Equally intriguing is thestatement of ‘S’ in his cross-examination that he had not informedhis lawyer while drafting the reply (to the legal notice) that hewas in possession of the Will executed by his mother. ‘S’ in hiscross examination had accepted that in 1972, he was studying in FClass VI and was hardly 11 to 12 years of age (This statement isat variance with the age of ‘S’ in Exhibit DW-1/P-3 but we wouldaccept the statement in the oral testimony). ‘S’ had claimed thathe would repair cycles and had contributed to the paymentstowards instalments of the quarter. It is in this aforesaid factual background that we would examine the Will, its wordings andGcontents. [Para 26][893-B-E]

3. The Will which purportedly makes the bequest, is oddlydescribed as a Will Deed. This possibly explains why ‘S’ hadclaimed in his reply, that he was the owner of the tenement evenduring the lifetime of his mother. It is in this context that thisH

Facts

Court has read the different portions of the testimony of ‘R’ and‘S’; the notice and the reply to hold that there exists grave doubtwhether the “Will Deed” was executed and is a “Will” as itpurports to be. The marriage of one of the grand daughter as perher wish is not challenged. The testator was an illiterate lady.Even if this Court is to accept signatures of the testator and thewitnesses, this Court cannot ignore “other evidence” that motherof ‘S’ and ‘R’ and her family members did not understand thetrue nature of the document executed. There are substantial andgood reasons to legitimately suspect and question execution ofthe Will, which ‘S’, as the propounder of the Will, has not beenable to repel and remove so as to satisfy this Court that the Willwas validly executed. For these reasons, this Court would holdthat execution of the Will has not been proved by “otherevidence” in terms of Section 71 of the Evidence Act. [Para28][894-F-H; 895-A-B]

Jagdish Chand Sharma v. Narain Singh Saini (Dead)Through LRs. and Others (2015) 8 SCC 615 : [2015] 6SCR 397; Janki Narayan Bhoir v. Narayan NamdeoKadam (2003) 2 SCC 91 : [2002] 5 Suppl. SCR 175 –relied on.

M.B. Ramesh (Dead) by LRs. v. K.M. Veeraje Urs (Dead)by LRs. and Others (2013) 7 SCC 490 : [2013] 8 SCR573; H. Venkatachala Iyengar v. B.N. Thimmajammaand Others AIR 1959 SC 443 : [1959] Suppl. SCR426; Jaswant Kaur v. Amrit Kaur and Others (1977) 1SCC 369 : [1977] 1 SCR 925; Surendra Pal and Others.v. Dr. (Mrs.) Saraswati Arora and Another (1974) 2 SCC600 : [1975] 1 SCR 687; Rabindra Nath Mukherjeeand Another v. Panchanan Banerjee (Dead) by LRs.and Others (1995) 4 SCC 459; Benga Behera andAnother v. Braja Kishore Nanda and Others (2007) 9SCC 728 : [2007] 6 SCR 853; Dharam Singh v. Asoand Another (1990) Suppl. SCC 684 – referred to.

Vishnu Ramkrishna v. Nathu Vithal and Others AIR1949 BOM 266; Dhira Singh v. Moti Lal and Others63 Ind. Cas. 266; Mt. Manki Kaur v. Hansraj Singhand Others AIR 1938 Pat 301 – referred to.

AB

C

D

E

F

G

H

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9683of 2019.

DFrom the Judgment and Order dated 09.03.2018 of the High Courtof Delhi at New Delhi in RFA No. 234 of 2018.

Rajesh Srivastava, Pramod Kumar Ahuja, Ms. Suresh Kumari,Advs. for the Appellants.

S.B. Upadhyay, Sr. Adv., Kushal Kumar, Ms. C. Rubavathi, HarshEAhuja, Nishant Kumar, M.A. Chinnasamy, Advs. for the Respondent.

The following Judgment of the Court was delivered :

JUDGMENT

1. Leave granted.

F

2. On account of migration to Delhi on partition, Harbans Lalbeing a displaced person had vide application dated 13.04.1958, markedas Exhibit DW-1/P-3, applied for a two room accommodation at GurMandi, Civil Lines, Delhi with the Municipal Corporation of Delhi. Thisapplication records that Harbans Lal was a shopkeeper, SuhagwantiGwas his wife and Madan Lal, Puran Kumari, Surinder Kumar and Babywere his children. Madan Lal was described as being in service and allother children were described as dependants.

3. Harbans Lal died in 1965.

H

4. On 15.03.1972, Suhagwanti Devi, being the wife of late HarbansLal, was issued allotment letter for duplex type tenement under theRedevelopment Scheme at Gur-ki-Mandi for Rs. 14,325/-, which amountwas payable in 20 equal annual instalments with interest at the rate of5% per annum and on default, penal interest at the rate of 8% per annum.Collection charges at the rate of 24% were also payable. The allotmentletter had a stipulation that the allottee would have to surrender vacantpossession of Quarter No. 27 New Padam Chand Land within 3 days.The allotment letter though not a marked Exhibit is an undisputeddocument.

5. Suhagwanti Devi expired on 10.10.1999.

5. Suhagwanti Devi expired on 10.10.1999.

6. Raj Kumari daughter of Harbans Lal, who by then was married,on or about 15.10.2004 filed a suit for partition of the tenement anddecree of declaration that she and the defendants namely Surinder PalSharma, Puran Devi née Kumari, and Santosh Rani (widow of MadanLal who had by then expired), were owners of 1/4[th] unspecified andundivided share in the tenement. A decree for rendition of accounts andpermanent injunction was also prayed for.

7. The suit was contested by Surinder Pal Sharma, who in hiswritten statement had propounded a registered Will dated 02.01.1992,purportedly executed by Suhagwanti wherein the tenement had beenbequeathed solely and absolutely to him. It was stated that husband ofRaj Kumari namely Ramesh Kumar was an attesting witness to theWill. Puran Devi and Santosh Rani despite service did not file their writtenstatements. Santosh Rani during the pendency of the suit expired andwas represented by her daughter Veena Malhotra. Puran Devi has alsoexpired and is now represented by her daughter Meenakshi Sharma.

8. The trial court vide judgment dated 17.01.2018 passed apreliminary decree of partition inter alia holding that the four siblingswere entitled to 1/4[th] share each in the tenement after recording thatSurinder Pal Sharma had failed to prove the purported registered Will ofSuhagwanti dated 02.01.1992. The judgment held that Surinder PalSharma had failed to examine any of the attesting witnesses to the Willas required vide Section 68 of the Evidence Act and therefore, could notprove that Suhagwanti had signed the Will at her free will in a sounddisposing state of mind after having understood its contents. It was alsoheld that as per the testimony of Surinder Pal Sharma the Will markedExhibit DW-1/2 was attested by one witness only and therefore, AB

C

DE

F

G

H

Amandatory requirement of clause (c) to Section 63 of the IndianSuccession Act was not satisfied. The trial court having perused the Willheld that Mr. M.N. Sharma, Advocate had signed as a draftsman andcounsel and not as an attesting witness. It was observed that mereregistration of the Will, as proved by Parveen Kumar Rana, UDC workingin the office of Sub-Registrar, Kashmere Gate, who has deposed asBDW-3, would not prove the Will.

9. Aggrieved, Surinder Pal Sharma had filed an appeal before theDelhi High Court, bearing RFA No. 234 of 2018, and by the impugnedjudgment dated 09.03.2018 has succeeded. Consequently, the judgmentof the trial court dated 17.01.2018 has been set aside and the suit hasCbeen dismissed.

10. The High Court held that the Will was attested by two witnessesnamely Ramesh Kumar and Mr. M.N. Sharma, Advocate and thus,satisfies the requirement of clause (c) to Section 63 of the IndianSuccession Act. It was also observed that Surinder Pal Sharma hadDmade all efforts to summon the attesting witness Mr. M.N. Sharma,Advocate, through court notices, but he did not appear. In light of Section71 of the Evidence Act, the Will should be treated as proved as the samewas registered and the presumption under Section 114 of the EvidenceAct would apply. Accordingly, it should be presumed that the Sub-Registrar, who was holding a public office, had validly carried out theEregistration after ascertaining that the Will was attested by the twowitnesses including Mr. M.N Sharma, Advocate. Reliance was placedon the judgment of this Court in M.B. Ramesh (Dead) by LRs. v. K.M.Veeraje Urs (Dead) by LRs. and Others[1] which we shall subsequentlyadvert to. The contention of the first appellant before us, namely RajFKumari, that Surinder Pal Sharma had forged her signature for obtainingmutation in the Municipal Corporation record was brushed aside observingthat at best it would show that the mutation was illegal but this wouldhave no bearing on the question of attestation and validity of the Will.

11. Raj Kumari, Meenakshi Sharma and Veena Malhotra haveGpreferred the present appeal before this Court with a prayer that thepreliminary decree of partition passed by the trial court should be restoredand the impugned judgment of the High Court dated 09.03.2018 passedin RFA No. 234 of 2018 should be set aside.

H1 (2013) 7 SCC 490

12. We would first expound the law relating to the execution andproof of Wills under the Indian Succession Act and the Evidence Act.Clause (c) of Section 63 of the Indian Succession Act reads as follows:

“63. Execution of unprivileged wills.––Every testator, not beinga soldier employed in an expedition or engaged in actual warfare,or an airman so employed or engaged, or a mariner at sea, shallexecute his will according to the following rules––

(a) -(b)*

**

(c) The will shall be attested by two or more witnesses, each ofwhom has seen the testator sign or affix his mark to the will orhas seen some other person sign the will, in the presence and bythe direction of the testator, or has received from the testator apersonal acknowledgment of his signature or mark, or of thesignature of such other person; and each of the witnesses shallsign the will in the presence of the testator, but it shall not benecessary that more than one witness be present at the sametime, and no particular form of attestation shall be necessary.”

As per the mandate of clause (c), a Will is required to be attestedby two or more witnesses each of whom should have seen the testatorsign or put his mark on the Will or should have seen some other personsign the Will in his presence and by the direction of the testator or shouldhave received from the testator a personal acknowledgment of hissignature or mark, or of the signature of such other person. The Willmust be signed by the witness in the presence of the testator, but it is notnecessary that more than one witness should be present at the sametime. No particular form of attestation is necessary. Thus, there is noprescription in the statute that the testator must necessarily sign the Willin the presence of the attesting witnesses only or that the attestingwitnesses must put their signatures on the Will simultaneously, that is, atthe same time, in the presence of each other and the testator.

13. The need and necessity for stringent requirements of clause(c) to Section 63 of the Indian Succession Act has been elucidated andexplained in several decisions. In H. Venkatachala Iyengar v. B.N.Thimmajamma and Others.[2] dilating on the statutory and mandatoryrequisites for validating the execution of the Will, this Court hadhighlighted the dissimilarities between the Will which is a testamentary 2 AIR 1959 SC 443

A

B

C

DE

F

G

H

Ainstrument vis-à-vis other documents of conveyancing, by emphasisingthat the Will is produced before the court after the testator who hasdeparted from the world, cannot say that the Will is his own or it is notthe same. This factum introduces an element of solemnity to the decisionon the question where the Will propounded is proved as the last Will ortestament of the departed testator. Therefore, the propounder to succeedBand prove the Will is required to prove by satisfactory evidence that (i)the Will was signed by the testator; (ii) the testator at the time was in asound and disposing state of mind; (iii) the testator understood the natureand effect of the dispositions; and (iv) that the testator had put his signatureon the document of his own free will. Ordinarily, when the evidenceCadduced in support of the Will is disinterested, satisfactory and sufficientto prove the sound and disposing state of mind of the testator and hissignature as required by law, courts would be justified in making a findingin favour of the propounder. Such evidence would discharge the onus onthe propounder to prove the essential facts. At the same time, this Courtobserved that it is necessary to remove suspicious circumstancesDsurrounding the execution of the Will and therefore no hard and fast orinflexible rules can be laid down for the appreciation of the evidence tothis effect.

14. In Jaswant Kaur v. Amrit Kaur and Others[3], it was heldthat suspicion generated by disinheritance is not removed by mereEassertion of the propounder that the Will bears the signature of the testatoror that the testator was in sound and disposing state of mind when theWill disinherits those like the wife and children of the testator who wouldhave normally received their due share in the estate. At the same time,the testator may have his own reasons for excluding them. Therefore, it Fis obligatory for the propounder to remove all the legitimate suspicionsbefore a Will is accepted as a valid last Will of the testator. Earlier, inSurendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora andAnother[4], this Court had observed that the propounder shoulddemonstrate that the Will was signed by the testator and at the relevant time, the testator was in a sound and disposing state of mind and hadGunderstood the nature and effect of the dispositions, that he had put hissignature on the testimony of his own free will and at least two witnesseshave attested the Will in his presence. However, suspicion may arisewhere the signature is doubtful or when the testator is of feeble mind or 3 (1977) 1 SCC 369H4 (1974) 2 SCC 600

is overawed by powerful minds interested in getting his property or wherethe disposition appears to be unnatural, improbable and unfair or wherethere are other reasons to doubt the testator’s free will and mind. Thenature and quality of proof must commensurate with such essentiality soas to remove any suspicion which a reasonable or prudent man may, inthe prevailing circumstances, entertain. Where coercion and fraud arealleged by an objector, the onus is on him to prove the same and on hisfailure, probate of the Will must necessarily be granted when it isestablished that the testator had full testamentary capacity and had infact executed the Will with a free will and mind. In Rabindra NathMukherjee and Another v. Panchanan Banerjee (Dead) by LRs.and Others[5], this Court had observed that the doubt would be lesssignificant if the Will is registered and the Sub-Registrar certifies thatthe same was read over to the executor who, on doing so, had admittedthe contents. In each case, the court must be satisfied as to the mandateand requirements of clause (c) to Section 63 of the Indian SuccessionAct.

15. In Jagdish Chand Sharma v. Narain Singh Saini (Dead)Through LRs. and Others[6], this Court referring to Section 63 of theIndian Succession Act had illustrated that the provisions contemplatethat in order to validly execute the Will, the testator would have to signor affix his mark to it or the same has to be signed by some other personin his presence and on his direction. Further, the signature or mark of thetestator or signature of the person signing for him has to be so placedthat it was intended to give effect to the writing as a Will. Section 63mandates that the Will should be attested by two or more witnesseseach of whom has seen the testator sign or affix his mark to it or hasseen some other person sign it in the presence and on the direction ofthe testator, or has received from the testator a personal acknowledgementof his signature or mark, or the signature of such other person and eachof the witnesses has signed the Will in the presence of the testator,though it is not necessary that more than one witness be present at thesame time and that no particular form of attestation is necessary. Theexecution and attestation of the Will are mandatory in nature and anyfailure and deficiency in adhering to the essential requirements wouldresult in invalidation of the instrument of disposition of the property.

5 (1995) 4 SCC 459

6 (2015) 8 SCC 615

ABC

D

E

F

G

H

A

16. Sections 68 and 71 of the Evidence Act, which relate to proofof documents required by law to be attested, read as under:

“68. Proof of execution of document required by law to beattested.—If a document is required by law to be attested, itshall not be used as evidence until one attesting witness at leasthas been called for the purpose of proving its execution, if therebe an attesting witness alive, and subject to the process of theCourt and capable of giving evidence:

B

Provided that it shall not be necessary to call an attesting witnessin proof of the execution of any document, not being a will, whichhas been registered in accordance with the provisions of the IndianRegistration Act, 1908 (16 of 1908), unless its execution by theperson by whom it purports to have been executed is specificallydenied.

C

* * *

D71. Proof when attesting witness denies the execution.—Ifthe attesting witness denies or does not recollect the execution ofthe document, its execution may be proved by other evidence.”

17. In Jagdish Chand Sharma (supra) referring to Sections 68and 71 of the Evidence Act, it was observed:

E

“22.2. These statutory provisions, thus, make it incumbent for adocument required by law to be attested to have its executionproved by at least one of the attesting witnesses, if alive, and issubject to the process of the court conducting the proceedingsinvolved and is capable of giving evidence. This rigour is, however,Feased in case of a document also required to be attested but not awill, if the same has been registered in accordance with theprovisions of the Registration Act, 1908 unless the execution ofthis document by the person said to have executed it denies thesame. In any view of the matter, however, the relaxation extendedby the proviso is of no avail qua a will. The proof of a will to beGadmissible in evidence with probative potential, being a documentrequired by law to be attested by two witnesses, would necessarilyneed proof of its execution through at least one of the attestingwitnesses, if alive, and subject to the process of the courtconcerned and is capable of giving evidence.

H

22.3. Section 71 provides, however, that if the attesting witnessdenies or does not recollect the execution of the document, itsexecution may be proved by the other evidence. The interplay ofthe above statutory provisions and the underlying legislativeobjective would be of formidable relevance in evaluating thematerials on record and recording the penultimate conclusions.With this backdrop, expedient it would be, to scrutinise the evidenceadduced by the parties.

xxx xxx xxx

57.1. Viewed in premise, Section 71 of the 1872 Act has to benecessarily accorded a strict interpretation. The two contingenciespermitting the play of this provision, namely, denial or failure torecollect the execution by the attesting witness produced, thus afortiori has to be extended a meaning to ensure that the limitedliberty granted by Section 71 of the 1872 Act does not in anymanner efface or emasculate the essence and efficacy of Section63 of the Act and Section 68 of the 1872 Act. The distinctionbetween failure on the part of an attesting witness to prove theexecution and attestation of a will and his or her denial of the saidevent or failure to recollect the same, has to be essentiallymaintained. Any unwarranted indulgence, permitting extra liberalflexibility to these two stipulations, would render the predicationof Section 63 of the Act and Section 68 of the 1872 Act, otiose.The propounder can be initiated to the benefit of Section 71 of the1872 Act only if the attesting witness/witnesses, who is/are aliveand is/are produced and in clear terms either denies/deny theexecution of the document or cannot recollect the said incident.Not only, this witness/witnesses has/have to be credible andimpartial, the evidence adduced ought to demonstrate unhesitantdenial of the execution of the document or authenticate realforgetfulness of such fact. If the testimony evinces a casualaccount of the execution and attestation of the documentdisregardful of truth, and thereby fails to prove these two essentialsas per law, the propounder cannot be permitted to adduce otherevidence under cover of Section 71 of the 1872 Act. Such asanction would not only be incompatible with the scheme of Section63 of the Act read with Section 68 of the 1872 Act but also wouldbe extinctive of the paramountcy and sacrosanctity thereof, a AB

C

D

E

F

G

H

A

AB

C

D

E

F

G

H

A

Aconsequence, not legislatively intended. If the evidence of thewitnesses produced by the propounder is inherently worthless andlacking in credibility, Section 71 of the 1872 Act cannot be invokedto bail him (the propounder) out of the situation to facilitate aroving pursuit. In absence of any touch of truthfulness andgenuineness in the overall approach, this provision, which is not aBsubstitute of Section 63(c) of the Act and Section 68 of the 1872Act, cannot be invoked to supplement such failed speculativeendeavour.

57.2. Section 71 of the 1872 Act, even if assumed to be akin to aproviso to the mandate contained in Section 63 of the Act andSection 68 of the 1872 Act, it has to be assuredly construedharmoniously therewith and not divorced therefrom with amutilative bearing. This underlying principle is inter alia embeddedin the decision of this Court in CIT v. Ajax Products Ltd.”

C

After referring to H. Venkatachala Iyengar (supra), this CourtDin Jaswant Kaur (supra) had laid down the following propositions of law:

“(1) Stated generally, a will has to be proved like any otherdocument, the test to be applied being the usual test of thesatisfaction of the prudent mind in such matters. As in the case ofEproof of other documents, so in the case of proof of wills, onecannot insist on proof with mathematical certainty.

(2) Since Section 63 of the Succession Act requires a will to beattested, it cannot be used as evidence until, as required by Section68 of the Evidence Act, one attesting witness at least has beenFcalled for the purpose of proving its execution, if there be anattesting witness alive, and subject to the process of the court andcapable of giving evidence.

(3) Unlike other documents, the will speaks from the death of thetestator and therefore the maker of the will is never available fordeposing as to the circumstances in which the will came to beexecuted. This aspect introduces an element of solemnity in thedecision of the question whether the document propounded isproved to be the last will and testament of the testator. Normally,the onus which lies on the propounder can be taken to be dischargedon proof of the essential facts which go into the making of thewill.

G

H

(4) Cases in which the execution of the will is surrounded bysuspicious circumstances stand on a different footing. A shakysignature, a feeble mind, an unfair and unjust disposition of property,the propounder himself taking a leading part in the making of thewill under which he receives a substantial benefit and such othercircumstances raise suspicion about the execution of the will. Thatsuspicion cannot be removed by the mere assertion of thepropounder that the will bears the signature of the testator or thatthe testator was in a sound and disposing state of mind and memoryat the time when the will was made, or that those like the wifeand children of the testator who would normally receive their dueshare in his estate were disinherited because the testator mighthave had his own reasons for excluding them. The presence ofsuspicious circumstances makes the initial onus heavier andtherefore, in cases where the circumstances attendant upon theexecution of the will excite the suspicion of the court, thepropounder must remove all legitimate suspicions before thedocument can be accepted as the last will of the testator.

(5) It is in connection with wills, the execution of which issurrounded by suspicious circumstances that the test of satisfactionof the judicial conscience has been evolved. That test emphasisesthat in determining the question as to whether an instrumentproduced before the court is the last will of the testator, the courtis called upon to decide a solemn question and by reason ofsuspicious circumstances the court has to be satisfied fully thatthe will has been validly executed by the testator.

(6) If a caveator alleges fraud, undue influence, coercion, etc. inregard to the execution of the will, such pleas have to be provedby him, but even in the absence of such pleas, the verycircumstances surrounding the execution of the will may raise adoubt as to whether the testator was acting of his own free will.And then it is a part of the initial onus of the propounder to removeall reasonable doubts in the matter.”

18. In M.B. Ramesh (supra) reference was made to the viewexpressed by the Division Bench of the Bombay High Court in VishnuRamkrishna v. Nathu Vithal and Others[7] wherein it was observed:

7 AIR 1949 BOM 266

ABC

D

E

F

G

A“27. […] We are dealing with the case of a will and we mustapproach the problem as a court of conscience. It is for us to besatisfied whether the document put forward is the last will andtestament of Gangabai. If we find that the wishes of the testatrixare likely to be defeated or thwarted merely by reason of wantof some technicality, we as a court of conscience would notBpermit such a thing to happen. We have not heard Mr Dharapon the other point; but assuming that Gangabai had a sound anddisposing mind and that she wanted to dispose of her property asshe in fact has done, the mere fact that the propounders of thewill were negligent—and grossly negligent—in not complying withCthe requirements of Section 63 and proving the will as they oughtto have, should not deter us from calling for the necessary evidencein order to satisfy ourselves whether the will was duly executedor not.”

(emphasis supplied)

D

The judgment in M.B. Ramesh (supra) also refers to JankiNarayan Bhoir v. Narayan Namdeo Kadam[8] in which with referenceto Sections 68 and 71 of the Evidence Act, it was observed:

“22. […] 6. … It is true that although a will is required to beattested by two witnesses it could be proved by examining one ofEthe attesting witnesses as per Section 68 of the Evidence Act.

xxx xxx xxx

11. … Aid of Section 71 can be taken only when the attestingwitnesses, who have been called, deny or fail to recollect theexecution of the document to prove it by other evidence. …F12. … Section 71 has no application when the one attesting witness,who alone has been summoned, has failed to prove the executionof the will and the other attesting witness though available has notbeen examined.”

GHighlighting the aforesaid aspects in M.B. Ramesh (supra), itwas held that:

“28. As stated by this Court also in H. Venkatachala Iyengarand Jaswant Kaur, while arriving at the finding as to whether the H8 (2003) 2 SCC 91

will was duly executed, the Court must satisfy its conscience havingregard to the totality of circumstances. The Court’s role in mattersconcerning wills is limited to examining whether the instrumentpropounded as the last will of the deceased is or is not that by thetestator, and whether it is the product of the free and sounddisposing mind [as observed by this Court in para 77 of GurdevKaur v. Kaki]. In the present matter, there is no dispute aboutthese factors.”

19. In Jagdish Chand Sharma (supra) reference was made tothe facts of the case in M.B. Ramesh (supra) to observe that onconsideration of the totality of circumstances emerging from the narrationgiven by the attesting witness, the omission on the part of this witness tospecifically state about the signature by the other attesting witness onthe Will in the presence of the testatrix would amount to failure to recollectthe fact which deficiency could be replenished with the aid of Section 71of the Evidence Act. It was observed that the validity of the Will in M.B.Ramesh (supra) was upheld in the context of the attendant singularfacts.

20. On the question of need to examine the second attestingwitnesses when one attesting witness falters, way back in 1921 in DhiraSingh v. Moti Lal and Others[9], two judges of the Patna High Courthad held that where the attesting witness was neither summoned norexamined under the provisions of Section 68 of the Evidence Act, recourseto Section 71 is impermissible. Under the provisions of Section 68 of theEvidence Act, it is incumbent on the plaintiff/propounder to call theattesting witness even though he may be the defendant/opposite side. Itwas observed:

1. […] Section 68 requires that a document which is required bylaw to be attested shall not be used as evidence until one attestingwitness at least has been called for the purpose of proving itsexecution, and Section 71 enacts that if the attesting witness deniesor does not recollect the execution of the document, its executionmay be proved by other evidence.

2. A case on all fours with the present case is that of Tula Singh v.Gopal Singh 38 Ind. Cas. 604 : 1 P.L.J. 389 : 2 P.L.W. 353. In thatcase the learned Judges decided that Section 68 of the Evidence ABC

DE

F

G

H

A

AAct was imperative and so long as there was a witness alive andsubject to the process of the Court, no document which is requiredby law to be attested can be used in evidence until such witnesshas been called. The fact that, when sailed (sic – assailed), hewill prove hostile, does not excuse the party producing the documentfrom this duty. The learned Subordinate Judge was, therefore,Bwrong in thinking that it was not necessary to call the defendantNo. 2.

21. Majority of earlier judgments like Vishnu Ramkrishna (supra)follow the ratio in Dhira Singh (supra), with a few exceptions like Mt.Manki Kaur v. Hansraj Singh and Others[10]. The issue was resolvedCbeyond controversy and debate in Janki Narayan Bhoir (supra) whereinit has been held that clause (c) of Section 63 of the Indian SuccessionAct requires and mandates attestation of a Will by two or more personsas witnesses, albeit Section 68 of the Evidence Act gives concession tothose who want to prove and establish a Will in the court of law byDexamining at least one attesting witness who could prove the executionof the Will viz., attestation by the two witnesses and its execution in themanner contemplated by clause (c) to Section 63 of the Indian SuccessionAct. However, where one attesting witness examined fails to prove dueexecution of the Will, then the other available attesting witness must becalled to supplement his evidence to make it complete in all respects toEcomply with the requirement of proof as mandated by Section 68 of theEvidence Act. It was held:

“11. Section 71 of the Evidence Act is in the nature of a safeguardto the mandatory provisions of Section 68 of the Evidence Act, tomeet a situation where it is not possible to prove the execution ofFthe will by calling the attesting witnesses, though alive. This sectionprovides that if an attesting witness denies or does not recollectthe execution of the will, its execution may be proved by otherevidence. Aid of Section 71 can be taken only when the attestingwitnesses, who have been called, deny or fail to recollect theGexecution of the document to prove it by other evidence. Section71 has no application to a case where one attesting witness, whoalone had been summoned, has failed to prove the execution ofthe will and other attesting witnesses though are available to provethe execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section71 that if an attesting witness denies or does not recollect executionof the document, its execution may be proved by other evidence.However, in a case where an attesting witness examined fails toprove the due execution of will as required under clause (c) ofSection 63 of the Succession Act, it cannot be said that the will isproved as per Section 68 of the Evidence Act. It cannot be saidthat if one attesting witness denies or does not recollect theexecution of the document, the execution of will can be proved byother evidence dispensing with the evidence of other attestingwitnesses though available to be examined to prove the executionof the will. Yet another reason as to why other available attestingwitnesses should be called when the one attesting witnessexamined fails to prove due execution of the will is to avert theclaim of drawing adverse inference under Section 114 Illustration(g) of the Evidence Act. Placing the best possible evidence, in thegiven circumstances, before the Court for consideration, is one ofthe cardinal principles of the Indian Evidence Act. Section 71 ispermissive and an enabling section permitting a party to lead otherevidence in certain circumstances. But Section 68 is not merelyan enabling section. It lays down the necessary requirements,which the court has to observe before holding that a document isproved. Section 71 is meant to lend assistance and come to therescue of a party who had done his best, but driven to a state ofhelplessness and impossibility, cannot be let down without anyother means of proving due execution by “other evidence” aswell. At the same time Section 71 cannot be read so as to absolvea party of his obligation under Section 68 read with Section 63 ofthe Act and liberally allow him, at his will or choice to makeavailable or not a necessary witness otherwise available andamenable to the jurisdiction of the court concerned and confer apremium upon his omission or lapse, to enable him to give a go-byto the mandate of law relating to the proof of execution of a will.”

This judgment overruled the judgment of Manki Kaur (supra)and approved the ratio of Vishnu Ramakrishna (supra) to the effectthat Section 71 of the Evidence Act can be requisitioned when theattesting witnesses who were being called have failed to prove theexecution of the Will by reason of either denying their own signatures,denying the signature of the testator or due to bad recollection as to the ABC

D

E

F

G

H

Aexecution of the document. Section 71 has no application when only oneattesting witness who was called and examined has failed to prove theexecution of the Will and the other available attesting witness was notsummoned.

22. The ratio in Janki was reiterated in Benga Behera andBAnother v. Braja Kishore Nanda and Others[11]. This judgment alsoexamines the issue and question whether a Sub-Registrar in the matterof registration of documents under the provisions of Indian RegistrationAct, 1908 can possibly be treated as a witness. Reference was made toSections 52 and 58 of the Registration Act to observe that the duty ofthe Registering Officer is to endorse the signature of every personCpresenting the document for registration and to make an endorsement tothat effect, that is, to endorse only the admission or execution by theperson who presented the document for registration. The RegisteringOfficer can also endorse and certify the payment of money or deliveryof goods made in the presence of the Registering Officer in reference toDthe execution of the document. The expression ‘attesting witness’ withinthe meaning of Section 3 of the Transfer of Property Act and Section 63of the Indian Succession Act means “bearing witness to a fact”. Thetwo valid conditions of attestation of documents are – (i) two or moreattesting witnesses have seen the executant sign the instrument; (ii) eachof them has signed the instrument in the presence of the executant.EFurther and importantly, attestation requires animus attestandi, that is,a person puts his signature on a document with the intent to attest it as awitness. If a person puts his signature on a document only in dischargeof a statutory duty, he may not be considered as an attesting witness aswas held in Dharam Singh v. Aso and Another[12]. Similarly, a scribe orFan advocate who has drafted the document may not be the attestingwitness as was held by this Court in Jagdish Chand Sharma (supra),for attestation requires that the witness should have put his signatureanimus attestandi, that is, for the purpose of attesting that he has seenthe executant sign or has received from him a personal acknowledgementof his signature.G23. Returning to the facts of the present case, it is submitted bySurinder Pal Sharma, the respondent before us, that summons/noticewere issued to Mr. M.N. Sharma, Advocate to appear as a witness but 11 (2007) 9 SCC 728H12 1990 Suppl SCC 684

he could not be served and hence was not examined. Ramesh Kumar, itis submitted, was not summoned or examined as he was none other thanthe husband of Raj Kumari and would not have supported execution ofthe Will. The High Court has accordingly held that the Will being registeredwas proved in terms of section 71 of the Evidence Act. This finding ofthe High Court is unacceptable, for recourse to Section 71 of the EvidenceAct is impermissible without examination of Ramesh Kumar. It wouldnot matter if Ramesh Kumar is husband of Raj Kumari. Section 71 ofthe Evidence Act would come into operation, once and if all the attestingwitnesses deny or do not recollect the execution of the document, thatis, the Will. In that event, the execution can be proved by other evidence.The respondent accepts that Ramesh Kumar though a witness was notsummoned and asked to depose as a witness and therefore, it cannot besaid that Ramesh Kumar as an attesting witness had denied or did notrecollect execution of the Will.

24. Even on the question of “other evidence” we have grave andserious reservations. It is apparent that late father of Raj Kumari andSurinder Pal Sharma and grandfather of appellants Meenakshi Sharmaand Veena Malhotra being a displaced person had applied for a two-room accommodation which was allotted to his wife Suhagwanti on15.03.1972 as by then he had expired. One of the terms and conditionsof the allotment was that the possession of the tenement would be issuedon the payment of the first instalment and on giving an undertaking thatshe would vacate the quarter at Padam Chand Land within three daysfrom the allotment letter. It has also come on record that Madan Lal, theeldest sibling was earning and in service at the time of allotment. Thereis also evidence that Madan Lal had contributed and financially helpedat the time of marriage of his sisters namely Raj Kumari and PuranDevi.

25. There is no doubt that the Will was registered but there areseveral circumstances which cast doubt on the Will. Raj Kumari in hercross-examination with reference to the disputed Will of Suhagwantihas stated:

“Q. I put to you that mother namely Smt. Suhagwanti had executeda Will in favour of your brother Mr. Surender Pal and it was attestedby your husband Sh. Ramesh Kumar as attesting witness?

My mother had obtained signature of my husband who is totallyilliterate on a document on the pretext that she intend to disowned AB

C

D

E

F

G

H

A

my niece Ms. Veena Malhotra, who had married at her own. Mymother had told this fact to me on the same day when she returnedfrom the Office of Sub Registrar.

It is correct that my husband has signed in the office of SubRegistrar. Vol. But his signatures were obtained under the pretextBas I have above stated.

It is correct that photo of my mother is pasted on Mark A. Icannot identify signature of my husband on Mark A. I have neverseen my husband signing any document. It is wrong to suggestthat my husband has signed at point B on Mark A. It is wrong toCsuggest that my husband has signed at point B on Mark A. It iswrong to suggest that instalments of suit property were paid bymy brother Sh. Surender Pal Sharma. Vol. My mother used topay instalment and after her death Surender Pal has paid 1 or 2instalments. Again said, I used to accompany my mother to TownHall for making the payment of instalments.”D

26. Before filing the civil suit, Raj Kumari had issued a legal noticedated 25.09.2000 (Exhibit P-1/1) in which she had stated that Suhagwantihas died intestate leaving behind four children, that is, Raj Kumari, SurinderPal Sharma, Madan Lal, represented through his wife Santosh Rani, andPuran Devi. Further, after the death of Suhagwanti, she had repeatedlyErequested Surinder Pal Sharma to partition the property with metes andbounds and give her due share. Surinder Pal Sharma had thereafterresponded to the legal notice vide undated letter marked Exhibit PW-1/2 accepting that Raj Kumari was his sister and that the tenement wasallotted to their mother. He, however, had claimed that the tenementFbelongs to him as an absolute owner and therefore, there was no questionof partition. The relevant portion of the said reply reads as under:

“For the reason that the said property is absolutely belong to me,during the life time of my respected mother Smt. Suhagwanti andthe said property is belong to me being the absolute ownership,Gthus no question is arisen of partition of the said property. It is inmy possession during the life time of my mother and is totallystands in all Govt. records in my name.

Thus it is not compulsory to me to give the reply of your client’sfurther notice or any letter and she is fully known about it. If youwish to approach the higher authority it is the responsibility of H

your client to bear all costs, legal expenses, whatsoever and alsobear my expenditure whatever may be suffer or gone to me inthis connection.”

Clearly, Surinder Pal Sharma had not propounded and referred tothe Will in his reply, which defence was taken by him for the first time inhis written statement. This is also clear from the cross-examination ofSurinder Pal Sharma wherein he had accepted as correct that the Willwas not challenged by Raj Kumari in the court of law as she had cometo know about the Will during the pendency of the present case (pleaserefer page 97 of the paper book). Surinder Pal Sharma thus accepts thatbestowal in his favour vide a written Will, was not known or within theknowledge of Raj Kumari, a surprising statement as Ramesh Kumar ishusband of Raj Kumari. Equally intriguing is the statement of SurinderPal Sharma in his cross-examination that he had not informed his lawyerwhile drafting the reply (to the legal notice) that he was in possession ofthe Will executed by his mother. Surinder Pal Sharma in his crossexamination had accepted that in 1972, he was studying in Class VI andwas hardly 11 to 12 years of age (This statement is at variance with theage of Surinder Pal Sharma in Exhibit DW-1/P-3 but we would acceptthe statement in the oral testimony). Surinder Pal Sharma had claimedthat he would repair cycles and had contributed to the payments towardsinstalments of the quarter. It is in this aforesaid factual background thatwe would examine the Will, its wordings and contents.

27. The purported Will dated 02.01.1992 is a rather short and anodd one. For the sake of completeness, we would like to reproduce thesame in its entirety.

“WILL DEED

THIS “WILL DEED” is executed on this 2[nd] day of Jan.1992 at Delhi by Shrimati Suhag Wanti aged about 65 year w/oLate Shri Harbans Lal R/o H. No. 26, Duplex Flat, Gur Mandi,Delhi – 7 hereinafter called the Testator.

IN FAVOUR OF

Shri Surinder Lal Sharma S/o Late Shri Harbans Lal R/oH.No. 26, Duplex Flat, Gur Mandi, Delhi-7, hereinafter called theTestimony.

AB

C

D

E

F

G

H

ALIFE IS BUT SHORT AND UNCERTAIN, God know when itmay come to end. Hence I with my free will and consent andwithout any force or compulsion from others and in my soundestate of mind to make this will as under:- Whereas I the Testator is the owner and in the possessionBof built up property bearing No.26, built on a piece of land areameasuring 80 Ft. situated in the abadi known as Duplex Flat, GurMandi, Delhi-7, and bounded as under:- East…………..Other propertyWest………….Other propertyNorth………… RoadSouth………… Road C

Whereas I the Testator hereby bequeath that after my death theaforesaid property shall got and devolve to the aforesaid testimony,Dshall be the sole and absolute owner of the above mentionedproperty.

Witnesses:- TESTATORSd/-Sd/-EShri Ramesh KumarSmt. SuhagwatiS/o Shri Ram Lal SharmaR/o H.N. 10/4, Gandhi Nagar, Geeta Colony,Delhi.“

28. The Will which purportedly makes the bequest, is oddlyFdescribed as a Will Deed. This possibly explains why Surinder Pal Sharmahad claimed in his reply, that he was the owner of the tenement evenduring the lifetime of the mother Suhagwanti. It is in this context that wehave read the different portions of the testimony of Raj Kumari andSurinder Pal Sharma; the notice and the reply to hold that there existsGgrave doubt whether the “Will Deed” was executed and is a “Will” as itpurports to be. The marriage of Veena Malhotra as per her wish is notchallenged. The testator was an illiterate lady. Even if we are to acceptsignatures of the testator and the witnesses, we cannot ignore “otherevidence” that Suhagwanti and her family members did not understandthe true nature of the document executed. There are substantial andH

good reasons to legitimately suspect and question execution of the Will,which Surinder Pal Sharma, as the propounder of the Will, has not beenable to repel and remove so as to satisfy this Court that the Will wasvalidly executed. For these reasons, we would hold that execution of theWill has not been proved by “other evidence” in terms of Section 71 ofthe Evidence Act.

29. Looked and examined from all angles, we are satisfied thatthe present appeal should be allowed and the judgment of the High Courtshould be set aside. Accordingly, we restore the judgment and decreedated 17.01.2018 passed by the court of Additional District Judge-03,North District, Rohini District Courts, New Delhi. There would no orderas to costs.

Ankit Gyan

Appeal allowed.

A

B

C

D

E

F

G

H