Indian Succession Act, 1925:
s. 63 – Will – Admissibility of – Suit seeking declaration that the plaintiff, his mother and his sisters had equal share in the suit land which was given to defendant No. 5 by way of a Will – The Will was challenged as being result of fraud and misrepresentation – Trial Court as well as first Appellate Court dismissed the suit holding that plaintiff had no share in the property as partition of the property had already been done during lifetime of the testator and that the Will had been duly proved – High Court in second appeal decreed the suit on the ground that Will was surrounded by suspicious circumstances and its execution was not proved in accordance with the requirement of s. 63 of the Act – Appeal to Supreme Court – Held: The statement of the attesting witness and that of the scribe of the Will and the official from the Sub-Registrar’s Office prove the due execution of the Will – Exclusion of natural heirs would not make the Will surrounded by suspicious circumstances – High Court erred in law in interfering with the concurrent finding of facts recorded by Courts below.
Evidence Act, 1872:
ss. 65 and 68 – Secondary evidence – Admissibility of – s. 65 permits secondary evidence where original document has been destroyed or lost – In the present case execution of the Will was not disputed, but only proof of the Will was subject matter of dispute – Once the evidence was brought by the opposite party that original Will was lost and certified copy thereof was produced, sufficient ground has been made out for leading of secondary evidence – There is no requirement for filing application in terms of s. 65(c) before leading secondary evidence.
Punjab Courts Act, 1941:
s. 41 – Second appeal – Scope of – Held: High Court in terms of s. 41 cannot interfere with finding of fact. Allowing the appeal, the Court
HELD: 1. Substantial question of law may not be required to be framed in Punjab and Haryana but still, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918. [Para 11][139-A-B] Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors. (2016) 6 SCC 157 : [2016] 3 SCR 1018 – followed. Randhir Kaur v. Prithvi Pal Singh and Others [2019] 9 SCR
776 – relied on.
2.1 Section 65 of the Evidence Act permits secondary evidence of existence, condition, or contents of a document including the cases where the original has been destroyed or lost. If the witness in whose custody the deed should be deposed to its loss, unless there is some motive suggested for his being untruthful, his evidence would be accepted as sufficient to let in secondary evidence of the deed. And if in addition he was not cross-examined, this result would follow all the more. In the present case, the Will was in possession of the beneficiary and was stated to be lost. The Will is dated 30th April, 1980 whereas the testator died on 15 th January, 1982. There is no crossexamination of any of the witnesses of the defendants in respect of loss of original Will. The plaintiff had admitted the execution of the Will though it was alleged to be the result of fraud and misrepresentation. The execution of the Will was not disputed by the plaintiff but only proof of the Will was the subject matter in the suit. Therefore, once the evidence of the defendants is that the original Will was lost and the certified copy is produced, the defendants have made out sufficient ground for leading of secondary evidence. [Paras 15 and 17][141-A-B, F-H; 142-A] M. Ehtisham Ali for himself and in place of M. Sakhawat Ali, since deceased v. Jamna Prasad, since deceased & Ors. AIR 1922 PC 56 – relied on.
Aher Rama Gova & Ors. v. State of Gujarat (1979) 4 SCC 500 – referred to.
2.2 There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. [Para 20][143-B-C]
Bipin Shantilal Panchal v. State of Gujarat & Anr. (2001)
3 SCC 1 : [2001] 2 SCR 29; Z. Engineers Construction Pvt. Ltd. & Anr. v. Bipin Bihari Behera & Ors. (2020) SCC OnLine SC 184– referred to.
4. The requirement of Section 63 of the Hindu Succession Act, 1963 and Section 68 of the Evidence Act, 1872 stands satisfied in the present case. At least one of the attesting witnesses is required to be examined to prove his attestation and the attestation by another witness and the testator. In the present case, DW-3 deposed that the testator had executed his Will in favour of his four grandsons and he and another person signed as witnesses. He deposed that the testator also signed it in Tehsil office. The witnesses to the execution of the Will were also witnesses before the Sub-Registrar. In the cross-examination, he stated that he had come to Tehsil office in connection with other documents for registration. He deposed that Ex.D-4-the Will, was typed in his presence. He denied the question that no Will was executed in his presence. There was no crossexamination about his not being present before the Sub-Registrar. Once the Will has been proved, then the contents of such document are part of evidence. It is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence. The statement of the attesting witness proves the due execution of the Will apart from the evidence of the scribe and the official from the Sub-Registrar’s office. [Para 23][144-F-G; 145-A-B]
M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons & Ors. (1969) 1 SCC 573 : [1969] 3 SCR 513; N. Kamalam (Dead) & Anr. v. Ayyasamy & Anr. (2001) 7 SCC 503 : [2001] 1 Suppl. SCR 272; Janki Narayan Bhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 : [2002] 5 Suppl. SCR 175 – distinguished.
H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors. AIR 1959 SC 443 : [1959] Suppl. SCR 426; Seth Beni Chand (since dead) now by LRs. v. Smt. Kamla Kunwar & Ors. (1976) 4 SCC 554 : [1977] 1 SCR 578 – referred to.
5. The Will cannot be said to be surrounded by suspicious circumstances, on account of the fact that some of the natural heirs were not mentioned in the Will. [Para 30][147-G]
Rabindra Nath Mukherjee & Anr. v. Panchanan
Banerjee (Dead) by LRs. & Ors. (1995) 4 SCC 459; Ved Mitra Verma v. Dharam Deo Verma (2014) 15 SCC 578; Leela Rajagopal & Ors. v. Kamala Menon
Cocharan & Ors. (2014) 15 SCC 570 : [2014] 7 SCR
697 – relied on.
6. The High Court has clearly erred in law in interfering with the concurrent findings of fact recorded by both the Courts below. The entire judgment runs on misconception of law and is, therefore, not sustainable in law. The same is set aside and the decree of the First Appellate Court is restored. [Para 33][149-E]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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