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Monday, May 4, 2015

Proof of Will - Sec.63 of Indian Succession Act and Sec.68 & 71 of Indian Evidence Act - Witness turned hostile - other witnesses are not help full - mere registration of the Will is not sufficient - strict proof of the conditions as mentioned in sec.63 of Indian Succession Act is mandatory - Previous litigation between testator and Appellant - exclusion of children of Testator etc., - surrounds with suspicious clouds - Trial court erred in granting probate - High court rightly reversed the order and dismissed the application - 2015 S.C. MSK Law reports

Whether Mr. Nathu Singh Saini, deceased executed the Will dated  22-10-1973,
validly while possessed of a sound disposing mind?

The learned Trial Court, 
on its  assessment  of  the  evidence  adduced,
concluded that the appellant could prove  that  the  Will  dated  22-10-1973
Exhibit A -1 was executed by the testator in  a  sound  disposing  state  of
mind  after  fully  understanding  its  contents  and  that  it   was   duly
registered.  Having held so, it observed that the onus of proving  that  the
document was not a genuine  Will  did  shift  to  the  respondents.   On  an
analysis of the evidence offered  by  the  respondents,  the  learned  Trial
Court was of the view that the same was inadequate to displace the  validity
of the Will.  It thus returned a finding  that  the  Will  dated  22-10-1973
Exhibit A-1  had  been  validly  executed  by  the  testator  with  a  sound
disposing  state  of  mind  in  presence   of   two   attesting   witnesses.
Consequently, the Letter of Administration as prayed for, by  the  appellant
vis-à-vis the said Will was granted.

Aggrieved, the respondents preferred appeal being FAO 279/2007  in  the
High Court of Delhi.  
By the impugned judgment and  order,  as  adverted  to
herein above, the verdict of the learned  Trial  Court  has  been  reversed.
The High Court on a threadbare evaluation of the pleadings and the  evidence
on record, on the touchstone of the relevant provisions of the Act  and  the
Indian Evidence Act, 1872 (for short hereinafter referred to as  Act  1872),
determined that the Will dated 22-10-1973 had not been  proved  as  per  law
and  that  no  Probate  or  Letter  of  Administration  could  be   granted.
Referring to the testimony of the attesting witnesses, the High  Court  held
that they could not  prove  the  execution  of  the  Will  as  well  as  the
attestation thereof within the meaning of Section  63  (c)  of  the  Act,  a
mandatory legal edict.  The High Court also  dismissed  the  plea  based  on
Section 71 of the Act, 1872  noting  that  the  evidence  of  the  attesting
witnesses produced by the  appellant,  did  not  only  demonstrate  lack  of
intention to attest the Will,  but  also,  rendered  the  execution  of  the
document and their signatures thereon doubtful.  The High Court  noticed  as
well the  circumstances attendant on the bequest to render  it  doubtful  in
view of the suspicious bearing thereof.  It amongst others  noted  therefore
to arrive at this conclusion, that the deceased/testator was versed only  in
Urdu and that the Will was drafted in English, and that  on  the  very  same
day he had executed two other Wills involving different properties with  the
possibility that the Will in question, was got signed,  by  representing  it
to be a part of the other transactions.   The  history  of  past  litigation
between  the  testator  and  the  appellant  involving  allegations  of  his
unauthorized acts and misuse of power also did weigh with the High Court  to
deduce that it was unlikely that the testator would out of natural love  and
affection bequeath his property or any portion thereof to such a person,  by
depriving his own children.  The  decision  of  the  Trial  Court  was  thus
interfered with.

Section 63 of the Act and Sections 68  and  71  of  the  Act
1872, are thus extracted hereunder for ready reference.

 Indian Succession Act, 1922

 “63. Execution of unprivileged Wills.-
Every testator, not being a  soldier
employed in an expedition or engaged in actual warfare, 1[or  an  airman  so
employed or engaged,] or a mariner at sea, shall execute his Will  according
to the following rules:-

(a) The testator shall sign or shall affix his  mark  to  the  Will,  or  it
shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature  of  the  person
signing for him, shall be so  placed  that  it  shall  appear  that  it  was
intended thereby to give effect to the writing as a Will.

 (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  acknowledgement  of  his
signature or mark, or 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 by present  at  the  same  time,
and no particular form of attestation shall be necessary.

Indian Evidence Act 1872

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.

Witness of the Will

This witness was declared hostile and was cross-examined on behalf  of
the appellant in course whereof he deposed that he could not say whether  he
had signed the Will in  presence  of  the  testator.   When  confronted,  he
admitted to have signed the certificate at the foot of  the  application  in
Section 276 of the Act praying for grant of  Letter  of  Administration  but
denied to have done so as an attesting  witness  of  the  Will.   He  stated
instead that he had put his signatures as the appellant  wanted  him  to  do
so.  He even denied to  have  read  the  contents  of  the  certificate.  He
refuted the suggestion that he had made a false  statement  in  Court  being
won over by the respondents.
 The materials on  record,  as  a  whole,  also  do  not,  in  our
comprehension, present a backdrop, in which, in  normal  circumstances,  the
testator would have preferred  the  appellant  to  be  the  legatee  of  his
property as set out in the Will, Ex. A-1, by denying his wife, children  and
grand children who were alive and  with  whom  he  did  share  a  very  warm
affectionate and cordial relationship.  Viewed in this context, the  bequest
is  exfacie  unnatural,  unfair  and  improbable  thus  reflecting  on   the
testator’s cognizant, free, objective and discerning state of  mind  at  the
time of the alleged dispensation. The suspicious circumstances attendant  on
the  disposition,  in  our  opinion,  do  militatively   impact   upon   the
inalienable imperatives of solemnity and authenticity of any bequest  to  be
effected by a testamentary instrument.

In the wake of the determinations made herein  above,  we  are  of  the
unhesitant opinion that the challenge laid in the instant  appeal  lacks  in

 The High Court, in our estimate, has appropriately appreciated the  law
and the facts in the right perspective and the impugned  decision  does  not
call for any interference.  The appeals are dismissed.2015 S.C. MSK Law reports

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