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 two room tenement – Thereafter, wife of ‘H’ also expired – ‘H’ and his wife had four children – Two daughters ‘R’ and ‘P’ and two sons ‘S’ and ‘M’ – Daughter ‘R’ filed a suit for partition of the tenement and decree of declaration that she and the defendants i.e. her siblings were owners of 1/4th unspecified and undivided share in the tenement – The suit was contested by ‘S’, who in his written statement had propounded a registered Will dated 02.01.1992 purportedly executed by the wife of ‘H’, his mother, wherein the tenement was bequeathed absolutely to him – The Trial Court passed a preliminary decree of partition inter alia holding that the four siblings were entitled to 1/4th share each in the tenement after recording that ‘S’ had failed to prove the purported registered Will – It was held that ‘S’ had failed to examine any of attesting witnesses to the Will required u/s. 68 of the Evidence Act – The High Court set aside the judgment of the Trial court – On appeal, held: In the instant case, the Will was attested by two witnesses namely ‘RK’ husband of ‘R’ and ‘MN’, Advocate – ‘S’ stated that ‘MN’ could not be served and hence was not examined and ‘RK’ was not summoned or examined as he was the husband of ‘R’ – The High Court has accordingly held that Will being registered was proved in terms of s. 71 of the Evidence Act – This finding of the High court is unacceptable, for recourse to s. 71 of the Evidence Act is impermissible without the examination of witness ‘RK’ – It would not matter if ‘RK’ is husband of ‘R’ – s.71 of the Evidence Act would come into operation, once and if all the attesting witnesses deny or do not recollect the execution of the document, that is, the Will – Since, ‘RK’ was not summoned and examined, therefore, it cannot be said that he had denied or did not recollect execution of the Will – Further, ‘S’ in a reply to a legal notice by ‘R’ had not made any reference to a Will, the defence of Will was taken for first time in his written statement – The Will was not challenged in the Court of law as ‘R’ came to know about it during pendency of the suit – Besides, the testator, mother of ‘S’ and ‘R’ was an illiterate lady – Even if signatures of the testator and witnesses are accepted, the ‘other evidence’ cannot be ignored that mother of ‘S’ and her family members did not understand the true nature of the document executed – There are substantial and good reasons to legitimately suspect and question execution of the Will – Therefore, the judgment of the High Court set aside and judgment of the Trial Court restored.
Evidence Act, 1872 – ss. 68 and 71 – The effect of ss. 68 and
71 in case of a Will – Held: s. 63 of the Indian Succession Act requires and mandates attestation of a Will by two or more persons as witnesses, albeit s.68 of the Evidence Act gives concession to those who want to prove and establish a Will in the Court of law by examining at least one attesting witness who could prove the execution of the Will viz. Attestation by the two witnesses and its execution in the manner contemplated by cl (c) to s.63 of the Indian Succession Act – However, where one attesting witness examined fails to prove due execution of the will, then other available attesting witness must be called to supplement his evidence to make it complete in all respects to comply with the requirement of proof as mandated by s. 68 of the Evidence Act – The effect of s. 71 Evidence Act can be requisitioned when the attesting witnesses who were being called have failed to prove the execution of Will by reason of either denying their own signatures, denying the signature of the testator or due to bad recollection as to the execution of the document – s.71 has no application when only one attesting witness who was called and examined has failed to prove the execution of Will and the other available attesting witness was not summoned. Allowing the appeal, the Court
HELD: 1. In the facts of the present case, it is submitted by ‘S’, the respondent, that summons/notice were issued to ‘MN’ Advocate to appear as a witness but he could not be served and hence was not examined. ‘RK’ it is submitted, was not summoned or examined as he was none other than the husband of ‘R’ and would not have supported execution of the Will. The High Court has accordingly held that the Will being registered was proved in terms of section 71 of the Evidence Act. This finding of the High Court is unacceptable, for recourse to Section 71 of the Evidence Act is impermissible without examination of ‘RK’. It would not matter if ‘RK’ is husband of ‘R’. Section 71 of the Evidence Act would come into operation, once and if all the attesting witnesses deny or do not recollect the execution of the document, that is, the Will. In that event, the execution can be proved by other evidence. The respondent accepts that ‘RK’ though a witness was not summoned and asked to depose as a witness and therefore, it cannot be said that ‘RK’ as an attesting witness had denied or did not recollect execution of the Will. [Para 23][891G; 892-A-C]
2. ‘S’ had not propounded and referred to the Will in his reply to the legal notice, which defence was taken by him for the first time in his written statement. This is also clear from the cross-examination of ‘S’ wherein he had accepted as correct that the Will was not challenged by ‘R’ in the court of law as she had come to know about the Will during the pendency of the present case. ‘S’ thus accepts that bestowal in his favour vide a written Will, was not known or within the knowledge of ‘R’, a surprising statement as ‘RK’ is husband of ‘R’. Equally intriguing is the statement of ‘S’ in his cross-examination that he had not informed his lawyer while drafting the reply (to the legal notice) that he was in possession of the Will executed by his mother. ‘S’ in his cross examination had accepted that in 1972, he was studying in Class VI and was hardly 11 to 12 years of age (This statement is at variance with the age of ‘S’ in Exhibit DW-1/P-3 but we would accept the statement in the oral testimony). ‘S’ had claimed that he would repair cycles and had contributed to the payments towards instalments of the quarter. It is in this aforesaid factual background that we would examine the Will, its wordings and contents. [Para 26][893-B-E]
3. The Will which purportedly makes the bequest, is oddly described as a Will Deed. This possibly explains why ‘S’ had claimed in his reply, that he was the owner of the tenement even during the lifetime of his mother. It is in this context that this Court has read the different portions of the testimony of ‘R’ and ‘S’; the notice and the reply to hold that there exists grave doubt whether the “Will Deed” was executed and is a “Will” as it purports to be. The marriage of one of the grand daughter as per her wish is not challenged. The testator was an illiterate lady. Even if this Court is to accept signatures of the testator and the witnesses, this Court cannot ignore “other evidence” that mother of ‘S’ and ‘R’ and her family members did not understand the true nature of the document executed. There are substantial and good reasons to legitimately suspect and question execution of the Will, which ‘S’, as the propounder of the Will, has not been able to repel and remove so as to satisfy this Court that the Will was validly executed. For these reasons, this Court would hold that execution of the Will has not been proved by “other evidence” in terms of Section 71 of the Evidence Act. [Para 28][894-F-H; 895-A-B]
Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through LRs. and Others (2015) 8 SCC 615 : [2015] 6 SCR 397; Janki Narayan Bhoir v. Narayan Namdeo
Kadam (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 SCR 573; H. Venkatachala Iyengar v. B.N. Thimmajamma and Others AIR 1959 SC 443 : [1959] Suppl. SCR
426; Jaswant Kaur v. Amrit Kaur and Others (1977) 1 SCC 369 : [1977] 1 SCR 925; Surendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora and Another (1974) 2 SCC
600 : [1975] 1 SCR 687; Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) by LRs. and Others (1995) 4 SCC 459; Benga Behera and
Another v. Braja Kishore Nanda and Others (2007) 9 SCC 728 : [2007] 6 SCR 853; Dharam Singh v. Aso and Another (1990) Suppl. SCC 684 – referred to.
Vishnu Ramkrishna v. Nathu Vithal and Others AIR 1949 BOM 266; Dhira Singh v. Moti Lal and Others
63 Ind. Cas. 266; Mt. Manki Kaur v. Hansraj Singh and Others AIR 1938 Pat 301 – referred to.
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.
This page is for informational and research purposes only and does not constitute legal advice. Consult a qualified advocate for advice specific to your situation.