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 Acton 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.
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.
Conclusion
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
merit.
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
