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TMI Blog2019 (12) TMI 1609X X X X Extracts X X X X X X X X Extracts X X X X ..... was not summoned and asked to depose as a witness and therefore, it cannot be said that Ramesh Kumar as an attesting witness had denied or did not recollect execution of the Will. Even on the question of other evidence we have grave and serious reservations. It is apparent that late father of Raj Kumari and Surinder Pal Sharma and grandfather of appellants Meenakshi Sharma and Veena Malhotra being a displaced person had applied for a two-room accommodation which was allotted to his wife Suhagwanti on 15.03.1972 as by then he had expired - It has also come on record that Madan Lal, the eldest sibling was earning and in service at the time of allotment. There is also evidence that Madan Lal had contributed and financially helped at the time of marriage of his sisters namely Raj Kumari and Puran Devi. 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 cross-examination of Surinder Pal Sharma wherein he had accepted as correct that the Will was not challenged by Raj Kumari in the court of law as she had come to know about the Will during t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 72, 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 n e 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 ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Sub-Registrar, 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 Others [(2013) 7 SCC 490] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill, this Court had highlighted the dissimilarities between the Will which is a testamentary instrument vis- -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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ill 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 Others [(2015) 8 SCC 615], 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 whi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Kadam [(2003) 2 SCC 91] 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. Man ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration (g) of the Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th the intent to attest it as a witness. If a person puts his signature on a document only in discharge of a statutory duty, he may not be considered as an attesting witness as was held in Dharam Singh v. Aso and Another [1990 Suppl SCC 684]. Similarly, a scribe or an advocate who has drafted the document may not be the attesting witness as was held by this Court in Jagdish Chand Sharma (supra), for attestation requires that the witness should have put his signature animus attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. 23. Returning to the facts of the present case, it is submitted by Surinder Pal Sharma, the respondent before us, that summons/notice were issued to Mr. M.N. Sharma, Advocate to appear as a witness but he could not be served and hence was not examined. Ramesh Kumar, it is submitted, was not summoned or examined as he was none other than the husband of Raj Kumari 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etext as I have above stated. It is correct that photo of my mother is pasted on Mark A. I cannot identify signature of my husband on Mark A. I have never seen my husband signing any document. It is wrong to suggest that my husband has signed at point B on Mark A. It is wrong to suggest that my husband has signed at point B on Mark A. It is wrong to suggest that instalments of suit property were paid by my brother Sh. Surender Pal Sharma. Vol. My mother used to pay instalment and after her death Surender Pal has paid 1 or 2 instalments. Again said, I used to accompany my mother to Town Hall for making the payment of instalments. 26. Before filing the civil suit, Raj Kumari had issued a legal notice dated 25.09.2000 (Exhibit P-1/1) in which she had stated that Suhagwanti has died intestate leaving behind four children, that is, Raj Kumari, Surinder Pal Sharma, Madan Lal, represented through his wife Santosh Rani, and Puran Devi. Further, after the death of Suhagwanti, she had repeatedly requested Surinder Pal Sharma to partition the property with metes and bounds and give her due share. Surinder Pal Sharma had thereafter responded to the legal notice vide undated letter marke ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings and contents. 27. The purported Will dated 02.01.1992 is a rather short and an odd one. For the sake of completeness, we would like to reproduce the same in its entirety. WILL DEED THIS WILL DEED is executed on this 2nd day of Jan. 1992 at Delhi by Shrimati Suhag Wanti aged about 65 year w/o Late Shri Harbans Lal R/o H. No. 26, Duplex Flat, Gur Mandi, Delhi 7 hereinafter called the Testator. IN FAVOUR OF Shri Surinder Lal Sharma S/o Late Shri Harbans Lal R/o H.No. 26, Duplex Flat, Gur Mandi, Delhi-7, hereinafter called the Testimony. LIFE IS BUT SHORT AND UNCERTAIN, God know when it may come to end. Hence I with my free will and consent and without any force or compulsion from others and in my sound estate of mind to make this will as under:- Whereas I the Testator is the owner and in the possession of built up property bearing No.26, built on a piece of land area measuring 80 Ft. situated in the abadi known as Duplex Flat, Gur Mandi, Delhi-7, and bounded as under:- East ..Other property West .Other property North Road South Road Whereas I the Testator hereby bequeath that after my death the aforesaid property sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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