2007 (5) TMI 661 - SC - Indian Laws

Summary

Issues Involved:
1. Interpretation and application of Section 63 of the Indian Succession Act, 1925.
2. Interpretation and application of Section 68 of the Indian Evidence Act, 1872.
3. Proof of execution and attestation of a Will.
4. Admissibility and reliability of secondary evidence.
5. Examination of suspicious circumstances surrounding the execution of the Will.

Detailed Analysis:

1. Interpretation and Application of Section 63 of the Indian Succession Act, 1925:
The court emphasized that the execution of a Will must conform to Section 63 of the Indian Succession Act, which requires a Will to be attested by two or more witnesses. The court noted that the witness P.W.9 failed to satisfy this requirement as he admitted that the testatrix did not put her thumb impression in his presence, and he signed the document before the testatrix affixed her thumb impression. This discrepancy meant that P.W.9 could not be considered an attesting witness under the law.

2. Interpretation and Application of Section 68 of the Indian Evidence Act, 1872:
Section 68 mandates that the execution of a Will must be proved by at least one attesting witness. The court found that the evidence provided by P.W.9 did not meet this requirement, as his testimony was inconsistent and failed to establish that the testatrix understood and acknowledged the contents of the Will. The court also noted that P.W.4, who was presented as an attesting witness, did not actually witness the execution and thus could not fulfill the role of an attesting witness.

3. Proof of Execution and Attestation of a Will:
The court scrutinized the testimonies of the witnesses P.W.4, P.W.7, and P.W.9. P.W.9's testimony was particularly problematic as he admitted to signing the document before the testatrix and did not see her affix her thumb impression. P.W.4's testimony was inconsistent with the certified copy of the Will, and P.W.7's testimony contradicted P.W.9's account. The court concluded that the requirements for proving the execution and attestation of the Will were not met.

4. Admissibility and Reliability of Secondary Evidence:
The court addressed the issue of secondary evidence, noting that the original Will was not produced, and the respondent relied on a certified copy and a Xerox copy. The court emphasized that the loss of the original Will was not satisfactorily proved, and the discrepancies between the Xerox copy and the certified copy raised doubts about the authenticity of the secondary evidence. The court highlighted that secondary evidence could only be admitted under Section 65(c) of the Evidence Act if the loss of the original was convincingly established, which was not the case here.

5. Examination of Suspicious Circumstances Surrounding the Execution of the Will:
The court identified several suspicious circumstances, including the testatrix's age and health, her lack of independent advice, and the involvement of the respondent and his father, who were strangers to the family. The court noted that the Will and a sale deed were executed on the same day, which was not adequately explained. The court also pointed out inconsistencies in the witnesses' testimonies and the failure to produce the original Will, which suggested that the Will might not have been genuine. The court concluded that the respondent failed to remove these suspicions and prove the due execution of the Will.

Conclusion:
The Supreme Court set aside the High Court's judgment, concluding that the execution and attestation of the Will were not duly proved, and the suspicious circumstances surrounding the Will were not adequately addressed. The appeal was allowed with costs assessed at Rs. 5,000.