# RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA

- **Citation:** [2019] 18 S.C.R. 872
- **Court:** Supreme Court of India
- **Decided:** 2019-12-17
- **Case number:** Civil Appeal No. 9683 of 2019
- **Bench:** S. Abdul Nazeer, Sanjiv Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/raj-kumari-and-others-v-surinder-pal-sharma-33711
- **Pages:** 24

## Headnote

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
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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 attestin

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RAJ KUMARI AND OTHERS
v.
SURINDER PAL SHARMA
(Civil Appeal No. 9683 of 2019)
DECEMBER 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 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
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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
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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
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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.
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
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Case Law Reference
[2013] 8 SCR 573
referred to
Para 10
[1959] Suppl. SCR 426
referred to
Para 13
[1977] 1 SCR 925
referred to
Para 14
[1975] 1 SCR 687
referred to
Para 14
(1995) 4 SCC 459
referred to
Para 14
[2015] 6 SCR 397
relied on
Para 15
[2002] 5 Suppl. SCR 175
relied on
Para 18
[2007] 6 SCR 853
referred to
Para 22
(1990) Suppl. SCC 684
referred to
Para 22
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9683
of 2019.
From the Judgment and Order dated 09.03.2018 of the High Court
of 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, Harsh
Ahuja, Nishant Kumar, M.A. Chinnasamy, Advs. for the Respondent.
The following Judgment of the Court was delivered :
JUDGMENT
1. Leave granted.
2. On account of migration to Delhi on partition, Harbans Lal
being a displaced person had vide application dated 13.04.1958, marked
as Exhibit DW-1/P-3, applied for a two room accommodation at Gur
Mandi, Civil Lines, Delhi with the Municipal Corporation of Delhi. This
application records that Harbans Lal was a shopkeeper, Suhagwanti
was his wife and Madan Lal, Puran Kumari, Surinder Kumar and Baby
were his children. Madan Lal was described as being in service and all
other children were described as dependants.
3. Harbans Lal died in 1965.
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4. On 15.03.1972, Suhagwanti Devi, being the wife of late Harbans
Lal, was issued allotment letter for duplex type tenement under the
Redevelopment Scheme at Gur-ki-Mandi for Rs. 14,325/-, which amount
was payable in 20 equal annual instalments with interest at the rate of
5% 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 allotment
letter had a stipulation that the allottee would have to surrender vacant
possession of Quarter No. 27 New Padam Chand Land within 3 days.
The allotment letter though not a marked Exhibit is an undisputed
document.
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 and
decree of declaration that she and the defendants namely Surinder Pal
Sharma, Puran Devi née Kumari, and Santosh Rani (widow of Madan
Lal who had by then expired), were owners of 1/4th unspecified and
undivided share in the tenement. A decree for rendition of accounts and
permanent injunction was also prayed for.
7. The suit was contested by Surinder Pal Sharma, who in his
written statement had propounded a registered Will dated 02.01.1992,
purportedly executed by Suhagwanti wherein the tenement had been
bequeathed solely and absolutely to him. It was stated that husband of
Raj Kumari namely Ramesh Kumar was an attesting witness to the
Will. Puran Devi and Santosh Rani despite service did not file their written
statements. Santosh Rani during the pendency of the suit expired and
was represented by her daughter Veena Malhotra. Puran Devi has also
expired and is now represented by her daughter Meenakshi Sharma.
8. The trial court vide judgment dated 17.01.2018 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
Surinder Pal Sharma had failed to prove the purported registered Will of
Suhagwanti dated 02.01.1992. The judgment held that Surinder Pal
Sharma had failed to examine any of the attesting witnesses to the Will
as required vide Section 68 of the Evidence Act and therefore, could not
prove that Suhagwanti had signed the Will at her free will in a sound
disposing state of mind after having understood its contents. It was also
held that as per the testimony of Surinder Pal Sharma the Will marked
Exhibit DW-1/2 was attested by one witness only and therefore,
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mandatory requirement of clause (c) to Section 63 of the Indian
Succession Act was not satisfied. The trial court having perused the Will
held that Mr. M.N. Sharma, Advocate had signed as a draftsman and
counsel and not as an attesting witness. It was observed that mere
registration of the Will, as proved by Parveen Kumar Rana, UDC working
in the office of Sub-Registrar, Kashmere Gate, who has deposed as
DW-3, would not prove the Will.
9. Aggrieved, Surinder Pal Sharma had filed an appeal before the
Delhi High Court, bearing RFA No. 234 of 2018, and by the impugned
judgment dated 09.03.2018 has succeeded. Consequently, the judgment
of the trial court dated 17.01.2018 has been set aside and the suit has
been dismissed.
10. The High Court held that the Will was attested by two witnesses
namely Ramesh Kumar and Mr. M.N. Sharma, Advocate and thus,
satisfies the requirement of clause (c) to Section 63 of the Indian
Succession Act. It was also observed that Surinder Pal Sharma had
made all efforts to summon the attesting witness Mr. M.N. Sharma,
Advocate, through court notices, but he did not appear. In light of Section
71 of the Evidence Act, the Will should be treated as proved as the same
was registered and the presumption under Section 114 of the Evidence
Act would apply. Accordingly, it should be presumed that the SubRegistrar, who was holding a public office, had validly carried out the
registration after ascertaining that the Will was attested by the two
witnesses including Mr. M.N Sharma, Advocate. Reliance was placed
on the judgment of this Court in M.B. Ramesh (Dead) by LRs. v. K.M.
Veeraje Urs (Dead) by LRs. and Others1 which we shall subsequently
advert to. The contention of the first appellant before us, namely Raj
Kumari, that Surinder Pal Sharma had forged her signature for obtaining
mutation in the Municipal Corporation record was brushed aside observing
that at best it would show that the mutation was illegal but this would
have no bearing on the question of attestation and validity of the Will.
11. Raj Kumari, Meenakshi Sharma and Veena Malhotra have
preferred the present appeal before this Court with a prayer that the
preliminary decree of partition passed by the trial court should be restored
and the impugned judgment of the High Court dated 09.03.2018 passed
in RFA No. 234 of 2018 should be set aside.
1 (2013) 7 SCC 490
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12. We would first expound the law relating to the execution and
proof 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 being
a soldier employed in an expedition or engaged in actual warfare,
or an airman so employed or engaged, or a mariner at sea, shall
execute his will according to the following rules--
(a)-(b)
*
*
*
(c) The will shall be attested by two or more witnesses, each of
whom has seen the testator sign or affix his mark to the will or
has seen some other person sign the will, in the presence and by
the direction of the testator, or has received from the testator a
personal acknowledgment of his signature or mark, or of the
signature of such other person; and each of the witnesses shall
sign the will in the presence of the testator, but it shall not be
necessary that more than one witness be present at the same
time, and no particular form of attestation shall be necessary."
As per the mandate of clause (c), a Will is required to be attested
by two or more witnesses each of whom should have seen the testator
sign or put his mark on the Will or should have seen some other person
sign the Will in his presence and by the direction of the testator or should
have received from the testator a personal acknowledgment of his
signature or mark, or of the signature of such other person. The Will
must be signed by the witness in the presence of the testator, but it is not
necessary that more than one witness should be present at the same
time. No particular form of attestation is necessary. Thus, there is no
prescription in the statute that the testator must necessarily sign the Will
in the presence of the attesting witnesses only or that the attesting
witnesses must put their signatures on the Will simultaneously, that is, at
the 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 and
explained in several decisions. In H. Venkatachala Iyengar v. B.N.
Thimmajamma and Others.2 dilating on the statutory and mandatory
requisites for validating the execution of the Will, this Court had
highlighted the dissimilarities between the Will which is a testamentary
2 AIR 1959 SC 443
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instrument vis-à-vis other documents of conveyancing, by emphasising
that the Will is produced before the court after the testator who has
departed from the world, cannot say that the Will is his own or it is not
the same. This factum introduces an element of solemnity to the decision
on the question where the Will propounded is proved as the last Will or
testament of the departed testator. Therefore, the propounder to succeed
and 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 a
sound and disposing state of mind; (iii) the testator understood the nature
and effect of the dispositions; and (iv) that the testator had put his signature
on the document of his own free will. Ordinarily, when the evidence
adduced in support of the Will is disinterested, satisfactory and sufficient
to prove the sound and disposing state of mind of the testator and his
signature as required by law, courts would be justified in making a finding
in favour of the propounder. Such evidence would discharge the onus on
the propounder to prove the essential facts. At the same time, this Court
observed that it is necessary to remove suspicious circumstances
surrounding the execution of the Will and therefore no hard and fast or
inflexible rules can be laid down for the appreciation of the evidence to
this effect.
14. In Jaswant Kaur v. Amrit Kaur and Others3, it was held
that suspicion generated by disinheritance is not removed by mere
assertion of the propounder that the Will bears the signature of the testator
or that the testator was in sound and disposing state of mind when the
Will disinherits those like the wife and children of the testator who would
have normally received their due share in the estate. At the same time,
the testator may have his own reasons for excluding them. Therefore, it
is obligatory for the propounder to remove all the legitimate suspicions
before a Will is accepted as a valid last Will of the testator. Earlier, in
Surendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora and
Another4, this Court had observed that the propounder should
demonstrate 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 had
understood the nature and effect of the dispositions, that he had put his
signature on the testimony of his own free will and at least two witnesses
have attested the Will in his presence. However, suspicion may arise
where the signature is doubtful or when the testator is of feeble mind or
3 (1977) 1 SCC 369
4 (1974) 2 SCC 600
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is overawed by powerful minds interested in getting his property or where
the disposition appears to be unnatural, improbable and unfair or where
there are other reasons to doubt the testator's free will and mind. The
nature and quality of proof must commensurate with such essentiality so
as to remove any suspicion which a reasonable or prudent man may, in
the prevailing circumstances, entertain. Where coercion and fraud are
alleged by an objector, the onus is on him to prove the same and on his
failure, probate of the Will must necessarily be granted when it is
established that the testator had full testamentary capacity and had in
fact executed the Will with a free will and mind. In Rabindra Nath
Mukherjee and Another v. Panchanan Banerjee (Dead) by LRs.
and Others5, this Court had observed that the doubt would be less
significant if the Will is registered and the Sub-Registrar certifies that
the same was read over to the executor who, on doing so, had admitted
the contents. In each case, the court must be satisfied as to the mandate
and requirements of clause (c) to Section 63 of the Indian Succession
Act.
15. In Jagdish Chand Sharma v. Narain Singh Saini (Dead)
Through LRs. and Others6, this Court referring to Section 63 of the
Indian Succession Act had illustrated that the provisions contemplate
that in order to validly execute the Will, the testator would have to sign
or affix his mark to it or the same has to be signed by some other person
in his presence and on his direction. Further, the signature or mark of the
testator or signature of the person signing for him has to be so placed
that it was intended to give effect to the writing as a Will. Section 63
mandates that the Will should be attested by two or more witnesses
each of whom has seen the testator sign or affix his mark to it or has
seen some other person sign it in the presence and on the direction of
the testator, or has received from the testator a personal acknowledgement
of his signature or mark, or the signature of such other person and each
of 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 the
same time and that no particular form of attestation is necessary. The
execution and attestation of the Will are mandatory in nature and any
failure and deficiency in adhering to the essential requirements would
result in invalidation of the instrument of disposition of the property.
5 (1995) 4 SCC 459
6 (2015) 8 SCC 615
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16. Sections 68 and 71 of the Evidence Act, which relate to proof
of documents required by law to be attested, read as under:
"68. Proof of execution of document required by law to be
attested.-If a document is required by law to be attested, it
shall not be used as evidence until one attesting witness at least
has been called for the purpose of proving its execution, if there
be an attesting witness alive, and subject to the process of the
Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness
in proof of the execution of any document, not being a will, which
has been registered in accordance with the provisions of the Indian
Registration Act, 1908 (16 of 1908), unless its execution by the
person by whom it purports to have been executed is specifically
denied.
* * *
71. Proof when attesting witness denies the execution.-If
the attesting witness denies or does not recollect the execution of
the document, its execution may be proved by other evidence."
17. In Jagdish Chand Sharma (supra) referring to Sections 68
and 71 of the Evidence Act, it was observed:
"22.2. These statutory provisions, thus, make it incumbent for a
document required by law to be attested to have its execution
proved by at least one of the attesting witnesses, if alive, and is
subject to the process of the court conducting the proceedings
involved and is capable of giving evidence. This rigour is, however,
eased in case of a document also required to be attested but not a
will, if the same has been registered in accordance with the
provisions of the Registration Act, 1908 unless the execution of
this document by the person said to have executed it denies the
same. In any view of the matter, however, the relaxation extended
by the proviso is of no avail qua a will. The proof of a will to be
admissible in evidence with probative potential, being a document
required by law to be attested by two witnesses, would necessarily
need proof of its execution through at least one of the attesting
witnesses, if alive, and subject to the process of the court
concerned and is capable of giving evidence.
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22.3. Section 71 provides, however, that if the attesting witness
denies or does not recollect the execution of the document, its
execution may be proved by the other evidence. The interplay of
the above statutory provisions and the underlying legislative
objective would be of formidable relevance in evaluating the
materials on record and recording the penultimate conclusions.
With this backdrop, expedient it would be, to scrutinise the evidence
adduced by the parties.
xxx xxx xxx
57.1. Viewed in premise, Section 71 of the 1872 Act has to be
necessarily accorded a strict interpretation. The two contingencies
permitting the play of this provision, namely, denial or failure to
recollect the execution by the attesting witness produced, thus a
fortiori has to be extended a meaning to ensure that the limited
liberty granted by Section 71 of the 1872 Act does not in any
manner efface or emasculate the essence and efficacy of Section
63 of the Act and Section 68 of the 1872 Act. The distinction
between failure on the part of an attesting witness to prove the
execution and attestation of a will and his or her denial of the said
event or failure to recollect the same, has to be essentially
maintained. Any unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the predication
of 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 the
1872 Act only if the attesting witness/witnesses, who is/are alive
and is/are produced and in clear terms either denies/deny the
execution of the document or cannot recollect the said incident.
Not only, this witness/witnesses has/have to be credible and
impartial, the evidence adduced ought to demonstrate unhesitant
denial of the execution of the document or authenticate real
forgetfulness of such fact. If the testimony evinces a casual
account of the execution and attestation of the document
disregardful of truth, and thereby fails to prove these two essentials
as per law, the propounder cannot be permitted to adduce other
evidence under cover of Section 71 of the 1872 Act. Such a
sanction would not only be incompatible with the scheme of Section
63 of the Act read with Section 68 of the 1872 Act but also would
be extinctive of the paramountcy and sacrosanctity thereof, a
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consequence, not legislatively intended. If the evidence of the
witnesses produced by the propounder is inherently worthless and
lacking in credibility, Section 71 of the 1872 Act cannot be invoked
to bail him (the propounder) out of the situation to facilitate a
roving pursuit. In absence of any touch of truthfulness and
genuineness in the overall approach, this provision, which is not a
substitute of Section 63(c) of the Act and Section 68 of the 1872
Act, cannot be invoked to supplement such failed speculative
endeavour.
57.2. Section 71 of the 1872 Act, even if assumed to be akin to a
proviso to the mandate contained in Section 63 of the Act and
Section 68 of the 1872 Act, it has to be assuredly construed
harmoniously therewith and not divorced therefrom with a
mutilative bearing. This underlying principle is inter alia embedded
in the decision of this Court in CIT v. Ajax Products Ltd."
After referring to H. Venkatachala Iyengar (supra), this Court
in Jaswant Kaur (supra) had laid down the following propositions of
law:
"(1) Stated generally, a will has to be proved like any other
document, the test to be applied being the usual test of the
satisfaction of the prudent mind in such matters. As in the case of
proof of other documents, so in the case of proof of wills, one
cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be
attested, it cannot be used as evidence until, as required by Section
68 of the Evidence Act, one attesting witness at least has been
called for the purpose of proving its execution, if there be an
attesting witness alive, and subject to the process of the court and
capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the
testator and therefore the maker of the will is never available for
deposing as to the circumstances in which the will came to be
executed. This aspect introduces an element of solemnity in the
decision of the question whether the document propounded is
proved to be the last will and testament of the testator. Normally,
the onus which lies on the propounder can be taken to be discharged
on proof of the essential facts which go into the making of the
will.
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(4) Cases in which the execution of the will is surrounded by
suspicious circumstances stand on a different footing. A shaky
signature, a feeble mind, an unfair and unjust disposition of property,
the propounder himself taking a leading part in the making of the
will under which he receives a substantial benefit and such other
circumstances raise suspicion about the execution of the will. That
suspicion cannot be removed by the mere assertion of the
propounder that the will bears the signature of the testator or that
the testator was in a sound and disposing state of mind and memory
at the time when the will was made, or that those like the wife
and children of the testator who would normally receive their due
share in his estate were disinherited because the testator might
have had his own reasons for excluding them. The presence of
suspicious circumstances makes the initial onus heavier and
therefore, in cases where the circumstances attendant upon the
execution of the will excite the suspicion of the court, the
propounder must remove all legitimate suspicions before the
document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is
surrounded by suspicious circumstances that the test of satisfaction
of the judicial conscience has been evolved. That test emphasises
that in determining the question as to whether an instrument
produced before the court is the last will of the testator, the court
is called upon to decide a solemn question and by reason of
suspicious circumstances the court has to be satisfied fully that
the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in
regard to the execution of the will, such pleas have to be proved
by him, but even in the absence of such pleas, the very
circumstances surrounding the execution of the will may raise a
doubt 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 remove
all reasonable doubts in the matter."
18. In M.B. Ramesh (supra) reference was made to the view
expressed by the Division Bench of the Bombay High Court in Vishnu
Ramkrishna v. Nathu Vithal and Others7 wherein it was observed:
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"27. [...] We are dealing with the case of a will and we must
approach the problem as a court of conscience. It is for us to be
satisfied whether the document put forward is the last will and
testament of Gangabai. If we find that the wishes of the testatrix
are likely to be defeated or thwarted merely by reason of want
of some technicality, we as a court of conscience would not
permit such a thing to happen. We have not heard Mr Dharap
on the other point; but assuming that Gangabai had a sound and
disposing mind and that she wanted to dispose of her property as
she in fact has done, the mere fact that the propounders of the
will were negligent-and grossly negligent-in not complying with
the requirements of Section 63 and proving the will as they ought
to have, should not deter us from calling for the necessary evidence
in order to satisfy ourselves whether the will was duly executed
or not."
(emphasis supplied)
The judgment in M.B. Ramesh (supra) also refers to Janki
Narayan Bhoir v. Narayan Namdeo Kadam8 in which with reference
to Sections 68 and 71 of the Evidence Act, it was observed:
"22. [...] 6. ... It is true that although a will is required to be
attested by two witnesses it could be proved by examining one of
the attesting witnesses as per Section 68 of the Evidence Act.
xxx xxx xxx
11. ... Aid of Section 71 can be taken only when the attesting
witnesses, who have been called, deny or fail to recollect the
execution of the document to prove it by other evidence. ...
12. ... Section 71 has no application when the one attesting witness,
who alone has been summoned, has failed to prove the execution
of the will and the other attesting witness though available has not
been examined."
Highlighting the aforesaid aspects in M.B. Ramesh (supra), it
was held that:
"28. As stated by this Court also in H. Venkatachala Iyengar
and Jaswant Kaur, while arriving at the finding as to whether the
8 (2003) 2 SCC 91
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will was duly executed, the Court must satisfy its conscience having
regard to the totality of circumstances. The Court's role in matters
concerning wills is limited to examining whether the instrument
propounded as the last will of the deceased is or is not that by the
testator, and whether it is the product of the free and sound
disposing mind [as observed by this Court in para 77 of Gurdev
Kaur v. Kaki]. In the present matter, there is no dispute about
these factors."
19. In Jagdish Chand Sharma (supra) reference was made to
the facts of the case in M.B. Ramesh (supra) to observe that on
consideration of the totality of circumstances emerging from the narration
given by the attesting witness, the omission on the part of this witness to
specifically state about the signature by the other attesting witness on
the Will in the presence of the testatrix would amount to failure to recollect
the fact which deficiency could be replenished with the aid of Section 71
of 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 singular
facts.
20. On the question of need to examine the second attesting
witnesses when one attesting witness falters, way back in 1921 in Dhira
Singh v. Moti Lal and Others9, two judges of the Patna High Court
had held that where the attesting witness was neither summoned nor
examined under the provisions of Section 68 of the Evidence Act, recourse
to Section 71 is impermissible. Under the provisions of Section 68 of the
Evidence Act, it is incumbent on the plaintiff/propounder to call the
attesting witness even though he may be the defendant/opposite side. It
was observed:
1. [...] Section 68 requires that a document which is required by
law to be attested shall not be used as evidence until one attesting
witness at least has been called for the purpose of proving its
execution, and Section 71 enacts that if the attesting witness denies
or does not recollect the execution of the document, its execution
may 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 that
case the learned Judges decided that Section 68 of the Evidence
9 63 Ind. Cas. 266
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Act was imperative and so long as there was a witness alive and
subject to the process of the Court, no document which is required
by law to be attested can be used in evidence until such witness
has been called. The fact that, when sailed (sic - assailed), he
will prove hostile, does not excuse the party producing the document
from this duty. The learned Subordinate Judge was, therefore,
wrong in thinking that it was not necessary to call the defendant
No. 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 Others10. The issue was resolved
beyond controversy and debate in Janki Narayan Bhoir (supra) wherein
it has been held that clause (c) of Section 63 of the Indian Succession
Act requires and mandates attestation of a Will by two or more persons
as witnesses, albeit Section 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 clause (c) to Section 63 of the Indian Succession
Act. However, where one attesting witness examined fails to prove due
execution of the Will, then the 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 Section 68 of the
Evidence Act. It was held:
"11. Section 71 of the Evidence Act is in the nature of a safeguard
to the mandatory provisions of Section 68 of the Evidence Act, to
meet a situation where it is not possible to prove the execution of
the will by calling the attesting witnesses, though alive. This section
provides that if an attesting witness denies or does not recollect
the execution of the will, its execution may be proved by other
evidence. Aid of Section 71 can be taken only when the attesting
witnesses, who have been called, deny or fail to recollect the
execution of the document to prove it by other evidence. Section
71 has no application to a case where one attesting witness, who
alone had been summoned, has failed to prove the execution of
the will and other attesting witnesses though are available to prove
the execution of the same, for reasons best known, have not been
10 AIR 1938 Pat 301
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summoned before the court. It is clear from the language of Section
71 that if an attesting witness denies or does not recollect execution
of the document, its execution may be proved by other evidence.
However, in a case where an attesting witness examined fails to
prove the due execution of will as required under clause (c) of
Section 63 of the Succession Act, it cannot be said that the will is
proved as per Section 68 of the Evidence Act.