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2018 14 27 19233 Judgement 17-Dec-2019
2018 14 27 19233 Judgement 17-Dec-2019
2018 14 27 19233 Judgement 17-Dec-2019
VERSUS
JUDGMENT
Leave granted.
Kumari, Surinder Kumar and Baby were his children. Madan Lal
Digitally signed by
RAJNI MUKHI
Date: 2020.01.15
17:05:19 IST
described as dependants.
Reason:
Lal, was issued allotment letter for duplex type tenement under
were also payable. The allotment letter had a stipulation that the
Surinder Pal Sharma, Puran Devi née Kumari, and Santosh Rani
prayed for.
7. The suit was contested by Surinder Pal Sharma, who in his written
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 2 of 29
purportedly executed by Suhagwanti wherein the tenement had
witness to the Will. Puran Devi and Santosh Rani despite service
did not file their written statements. Santosh Rani during the
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
of the Indian Succession Act was not satisfied. The trial court
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 3 of 29
having perused the Will held that Mr. M.N. Sharma, Advocate had
Delhi High Court, bearing RFA No. 234 of 2018, and by the
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,
had made all efforts to summon the attesting witness Mr. M.N.
us, namely Raj Kumari, that Surinder Pal Sharma had forged her
that the mutation was illegal but this would have no bearing on the
preferred the present appeal before this Court with a prayer that
12. We would first expound the law relating to the execution and proof
of Wills under the Indian Succession Act and the Evidence Act.
follows:
1
(2013) 7 SCC 490
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 5 of 29
or engaged, or a mariner at sea, shall execute his will
according to the following rules––
(a)-(b) * * *
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
the Will in the presence of the attesting witnesses only or that the
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 6 of 29
simultaneously, that is, at the same time, in the presence of each
13. The need and necessity for stringent requirements of clause (c) to
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
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
no hard and fast or inflexible rules can be laid down for the
14. In Jaswant Kaur v. Amrit Kaur and Others3, it was held that
assertion of the propounder that the Will bears the signature of the
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
Pal and Others. v. Dr. (Mrs.) Saraswati Arora and Another 4, this
the Will was signed by the testator and at the relevant time, the
3
(1977) 1 SCC 369
4
(1974) 2 SCC 600
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 8 of 29
testator was in a sound and disposing state of mind and had
put his signature on the testimony of his own free will and at least
reasons to doubt the testator’s free will and mind. The nature and
capacity and had in fact executed the Will with a free will and
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
5
(1995) 4 SCC 459
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 9 of 29
requirements of clause (c) to Section 63 of the Indian Succession
Act.
has seen the testator sign or affix his mark to it or has seen some
such other person and each of the witnesses has signed the Will
more than one witness be present at the same time and that no
attestation of the Will are mandatory in nature and any failure and
6
(2015) 8 SCC 615
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 10 of 29
deficiency in adhering to the essential requirements would result
propositions of law:
observed:
7
AIR 1949 BOM 266
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The judgment in M.B. Ramesh (supra) also refers to Janki
observed:
8
(2003) 2 SCC 91
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19. In Jagdish Chand Sharma (supra) reference was made to the
observed that the validity of the Will in M.B. Ramesh (supra) was
Dhira Singh v. Moti Lal and Others9, two judges of the Patna
High Court had held that where the attesting witness was neither
follow the ratio in Dhira Singh (supra), with a few exceptions like
Mt. Manki Kaur v. Hansraj Singh and Others10. The issue was
attesting witness who could prove the execution of the Will viz.,
10
AIR 1938 Pat 301
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due execution of the Will, then the other available attesting
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consideration, is one of the cardinal principles of the
Indian Evidence Act. Section 71 is permissive and an
enabling section permitting a party to lead other
evidence in certain circumstances. But Section 68 is
not merely an enabling section. It lays down the
necessary requirements, which the court has to
observe before holding that a document is proved.
Section 71 is meant to lend assistance and come to the
rescue of a party who had done his best, but driven to
a state of helplessness and impossibility, cannot be let
down without any other means of proving due
execution by “other evidence” as well. At the same time
Section 71 cannot be read so as to absolve a party of
his obligation under Section 68 read with Section 63 of
the Act and liberally allow him, at his will or choice to
make available or not a necessary witness otherwise
available and amenable to the jurisdiction of the court
concerned and confer a premium upon his omission or
lapse, to enable him to give a go-by to the mandate of
law relating to the proof of execution of a will.”
when the attesting witnesses who were being called have failed to
and examined has failed to prove the execution of the Will and the
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 20 of 29
22. The ratio in Janki was reiterated in Benga Behera and Another
have seen the executant sign the instrument; (ii) each of them has
11
(2007) 9 SCC 728
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 21 of 29
as a witness. If a person puts his signature on a document only in
that the witness should have put his signature animus attestandi,
that is, for the purpose of attesting that he has seen the executant
signature.
Kumari and would not have supported execution of the Will. The
High Court has accordingly held that the Will being registered was
recollect the execution of the document, that is, the Will. In that
One of the terms and conditions of the allotment was that the
vacate the quarter at Padam Chand Land within three days from
the allotment letter. It has also come on record that Madan Lal, the
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 23 of 29
financially helped at the time of marriage of his sisters namely Raj
25. There is no doubt that the Will was registered but there are
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 24 of 29
26. Before filing the civil suit, Raj Kumari had issued a legal notice
Suhagwanti has died intestate leaving behind four children, that is,
through his wife Santosh Rani, and Puran Devi. Further, after the
Sharma to partition the property with metes and bounds and give
accepting that Raj Kumari was his sister and that the tenement
was allotted to their mother. He, however, had claimed that the
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 25 of 29
Clearly, Surinder Pal Sharma had not propounded and
referred to the Will in his reply, which defence was taken by him
for the first time in his written statement. This is also clear from the
Kumari in the court of law as she had come to know about the Will
the paper book). Surinder Pal Sharma thus accepts that bestowal
in his favour vide a written Will, was not known or within the
had not informed his lawyer while drafting the reply (to the legal
and contents.
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 26 of 29
27. The purported Will dated 02.01.1992 is a rather short and an odd
“ WILL DEED
IN FAVOUR OF
Witnesses:- TESTATOR
Sd/- Sd/-
Shri Ramesh Kumar Smt. Suhagwati
S/o Shri Ram Lal Sharma
Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 27 of 29
R/o H.N. 10/4, Gandhi Nagar, Geeta Colony,
Delhi. ”
28. The Will which purportedly makes the bequest, is oddly described
had claimed in his reply, that he was the owner of the tenement
Raj Kumari and Surinder Pal Sharma; the notice and the reply to
hold that there exists grave doubt whether the “Will Deed” was
Suhagwanti and her family members did not understand the true
which Surinder Pal Sharma, 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, we would hold that
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29. Looked and examined from all angles, we are satisfied that the
......................................J.
(S. ABDUL NAZEER)
......................................J.
(SANJIV KHANNA)
NEW DELHI;
DECEMBER 17, 2019
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