Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2009 Supreme(SC) 245

2009(3)ALT18(SC), 2009 3 AWC(Supp)2424SC, JT2009(2)SC542, 2009-5-LW45, (2010)1MLJ124(SC), 2009(3)SCALE508, (2009)11SCC1, [2009]2SCR106, 2009(2)UJ735(SC)
IN THE SUPREME COURT OF INDIA
S. B. Sinha and Mukundakam Sharma , JJ.
Rur Singh (D) th. LRS. and Ors. – Appellants
Vs.
Bachan Kaur – Respondent
Civil Appeal No. 941 of 2009 Arising out of SLP (Civil) No. 6118 of 2007
Decided On: 12.02.2009

Advocates appeared:
Narender Yadav and Rameshwar Prasad Goyal, Advs
Ram Lal Gupta, Vikas Mahajan, Vishal Mahajan and Dharam Bir Raj Vohra, Advs.

Headnote:
Code of civil Procedure, 1908 - Section 100 - Indian Succession Act - Section 63 - Property case - Said Will is said to have been scribed by the Sarpanch of the village and attested by ten witnesses - Respondent herein filed a suit in the Court of civil Judge, Mansa praying inter alia for a decree of possession contending - Appellants, on the other hand, claimed their right, title and interest in the suit property by reason of the said Will executed - Held, It was also not the case of the respondent that she had been getting share of the yields from the said agricultural properties - In any event, the learned Trial Judge as also the first Appellate Court found sufficient explanation therefore holding that as the Will was executed in testators house and he had been living jointly with his sons, their presence in the house was natural - Court has noticed hereinbefore that the Will was attested by nine independent persons - Three of them in fact had been examined - High Court while holding that a doubt is cast on its validity by reason of active participation of one of the sons, failed to notice that nine other independent witnesses attested the Will - Court, therefore, fail to attach much importance to the fact that although, Sarpanch scribed the Will in Urdu, he at more than one place signed in English - Otherwise proved to be genuine and the statutory requirements therefore were satisfied, in our opinion, only because the panchayat register was not produced, the same by itself would not lead to the conclusion that the Will would be held to have not been executed, particularly when two courts competent to arrive at findings of fact held it otherwise - Appeal allowed.

Judgement Key Points

Key Points: - The Will must be attested by two or more witnesses and proven through Section 63 and Section 68 of the Evidence Act; execution must satisfy the formalities and attestation requirements (!) (!) (!) - Section 63 requires signing by testator or in his presence by another, place indicating intent, and attestation by two or more witnesses who sign in the testator’s presence (!) - Section 68 allows proof of execution through at least one attesting witness, with the court ensuring the attestation and due execution are proven, potentially requiring additional attesting witnesses to corroborate (!) (!) - Proving a Will may involve considering suspicious circumstances, particularly if the testator was elderly, there were deviations from normal practice, or beneficiaries participated in execution; courts must assess these factors before granting probate (!) (!) (!) - The High Court’s power under Section 100 CPC is limited to substantial questions of law and to reconsider findings of fact only if a substantial question of law arises (!) (!) - Witness testimony and the manner of execution, including whether the Will was scribed by a village official, presence of multiple witnesses, and natural conduct of family members, are relevant to establishing genuineness (!) (!) (!) - The absence of production of a Panchayat/record does not by itself negate the Will’s execution if other statutory requirements are satisfied and concurrent courts have found validity (!) - Probate decisions are judgments in rem requiring the court to satisfy its conscience and consider whether the Will conforms to the Act’s provisions; deprivation of inheritance alone is not determinative but is a factor (!) (!)

What is the proper proof requirements for execution of a Will under the Indian Succession Act, including the roles of Section 63 and Section 68?

What factors constitute suspicious circumstances affecting the genuineness of a Will and the Court’s approach to probate?

What is the appropriate scope of the High Court’s jurisdiction under Section 100 of the CPC when reviewing concurrent findings of fact in Will litigation?

JUDGMENT

S.B. Sinha, J.

1. Leave granted.

2. This appeal is directed against a judgment and order dated 11.07.2006 passed by a learned Single Judge of the Punjab and Haryana High Court whereby and whereunder a judgment and order dated 18.11.1998 passed by the Additional District Judge, Mansa in civil Appeal No. 59 of 1996, dismissing the appeal preferred by the respondent herein from a judgment and decree dated 12.02.1996 passed by the civil Judge (Junior Division), Mansa in civil Suit No. 341 of 1983.

3. The basic fact of the matter is not in dispute.

One Kehar Singh was the owner of the property. The parties hereto are his children. He is said to have executed a Will on or about 14.05.1969 in terms whereof he bequeathed all the agricultural properties in favour of his sons. The said Will is said to have been scribed by the Sarpanch of the village and attested by ten witnesses. He expired on 5.10.1969. Mutation in respect of the properties situate in the village Lohgarh in favour of his sons was allowed by an order dated 4.02.1970. Allegedly, order of the mutation in respect of the properties situated in the village Jhunir was passed in the year 1979.

4. Respondent herein filed a suit in the Court of civil Judge (Junior Division), Mansa praying inter alia for a decree of possession contending that the said Kehar Singh died intestate. Appellants, on the other hand, claimed their right, title and interest in the suit property by reason of the said Will executed by Kehar Singh.

The learned Trial Judge in view of the rival contentions of the parties inter alia framed the following issues:

1-C. Whether the suit property developed (sic for devolved upon) against heirs of Kehar Singh as mentioned in para No. 4 of amended written statement?

5. The learned Trial Judge, keeping in view the order of mutation in respect of the properties in favour of the appellants herein which took place in the year 1970, the validity whereof was not challenged, and on the basis of the other materials brought on record, held the said Will dated 14.05.1969 to be genuine and, thus, dismissed the said suit. An appeal preferred thereagainst by the respondent was also dismissed.

6. Respondent herein preferred a second appeal thereagainst. A learned Single Judge of the High Court formulated the following substantial question of law for consideration:

Whether in the facts and circumstances of the case, the Will allegedly executed by Kehar Singh was free from all suspicious circumstances and whether the same conformed to the provisions of Section 63 of the Act?

7. The concurrent findings of the Trial Court as also the first Appellate Court were reversed by the learned Single Judge of the High Court, stating:

(i) As mutation of the properties had been ordered on 28.08.1979 in presence of the parties whereagainst no challenge was thrown, had the Will been in existence in 1969, the same should have been produced in the mutation proceedings.

(ii) The Will is surrounded by suspicious circumstances as all the beneficiaries had a role to play in execution thereof.

(iii) The Will has been scribed by Gurbachan Singh, Sarpanch in Urdu although he had chosen to sign in English at more than one place.

(iv) The Will although was stated to be recorded in the panchayat register but the same was not produced.

As regards the question as to whether the Will has been proved in terms of Section 63 of the Indian Succession Act, the High Court held:

Section 63 of the Act lays down the manner in which a Will is to be executed. The Will in question which is Ex. D-1 dated 14.5.1969 is an unregistered Will. A perusal of the same shows that there is complete violation of Section 63(c) of the Act. Kehar Singh, who was the testator, died on 5.10.1969. Cumulatively taken together, all these factors cast a dark shadow on the execution of the Will.

8. Mr. Narender Yadav, learned Counsel appearing on behalf of the appellants, would submit that the High Court committed a serious error in interfering with the conc

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