2015 Supreme(SC) 373

SUPREME COURT OF INDIA
Kurian Joseph, Amitava Roy, JJ.
JAGDISH CHAND SHARMA – APPELLANT
Vs.
NARAIN SINGH SAINI (DEAD) THROUGH HIS LRs & Ors. – RESPONDENTS
CIVIL APPEAL Nos.4181-4182 OF 2015 (ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014
Decided On : 01-05-2015

IMPORTANT POINTS
For a Will to be held to be proved, the attesting witnesses must evince animo attestandi. Suspicious circumstances must be removed.
Section 71 is a safeguard to the mandatory provision of Section 68. It applies only when the attesting witnesses either deny or do not recollect the execution of the Will.
Section 71 has to be interpreted strictly.

Headnote:(a) Indian Succession Act, 1922 – Section 63 r/w section 68 and 71, Indian Evidence Act, 1872 – Prescription u/s 63 for execution of a Will is mandatory – A will has to be proved in accordance with section 63 or 68 or 71 of Act, 1872. (Para 15)

       (b) Indian Evidence Act, 1872 – Section 63(c) – Attesting witness AW 1 not denying execution of the Will And recollecting the event – While affirming his signature AW 1 not sure signing in presence of any other attesting witness – Not sure of his presence when the testator signed the document – His evidence deficient vis-à-vis with the requirements of Section 63 (c) – Will cannot be held to be proved on the basis of evidence of AW1. (Para 27, 28)

       (c) Indian Evidence Act, 1872 – Section 71 – AW1 and AW5 neither denying execution of the Will nor failing to recollect the event – Section 71 not attracted. (Para 27, 29)

       (d) Indian Evidence Act, 1872 – Section 63 – Evidence of AW 3 not proving execution of the Will directly or indirectly – cannot be construed to be a supplement of the evidence of AW 1 and AW 5 to furnish the proof of execution and attestation of the Will. (Para 32)

       (e) Indian Evidence Act, 1872 – Section 63 – Evidence of witnesses – Not evincing animo attestandi – Will, held to be not validly executed and attested. (Para 33)

       AIR 1955 SC 346; AIR 1959 SC 443 – Relied upon

       (f) Indian Evidence Act, 1872 – Section 63 and 68 – Proving a Will – Due execution – Requirements – Will signed by testator in sound disposing state of mind – He understood the nature and effect of the disposition – Propounder has to demonstrate that the Will was signed by the testator and that he was at the relevant time in a sound disposing state of mind and that he understood the nature and effect of the disposition – He had put his signature on his own free will in presence of two witnesses who had attested it in presence and in the presence of each other – Suspicious circumstances must be removed – If only one attesting witness is examined as u/s 68, he should prove the execution and attestation by other attesting witness also. (Para 36, 37, 40)

       AIR 1959 SC 443; (1977) 1 SCR 925; Ravindra Nath Mukharji; (2003) 2 SCC 91; (1995) 4 SCC 459 – Relied upon

       (2005) 8 SCC 67 – Distinguished

       (g) Indian Evidence Act, 1872 – Section 71 and 68 r/w 68 – Section 71 is a safeguard to the mandatory provision of Section 68 – Applies when the attesting witnesses either deny or do not recollect the execution of the Will – In such situation section 71 permits furnishing other evidence – Section 71 does not absolve the propounder of his obligation u/s 63 and 68. (Para 41, 42)

       (2003) 2 SCC 91; (2013) 7 SCC 490 – Relied upon

       (h) Indian Evidence Act, 1872 – Section 71 – Not a substitute of Section 63 (c) and 68 – Has to be interpreted strictly – Cannot be used to dilute section 63 or 68 – Failure of an attesting witness to prove the execution and attestation of a Will and his/her denial of the said event or failure to recollect the same – Distinction has to be maintained. (Para 45)

       AIR 1965 SC 1358 – Relied upon

       Facts of the case:

       The appellant filed an application with the Will annexed (allegedly executed by Mr. Nathu Singh on 22-10-1973) the sole and absolute owner amongst others of Municipal House Tax No. 807 (Private No. A/152 to A/162/1) situated at Sukhdev Nagar, Kotla Mubarakpur, New Delhi, bequeathing the same to him,

       Objections were filed by Mr. Jaswant Singh (since deceased) son of the testator and also by his other sons and daughters separately.

       The Trial Court concluded that the 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.

       The High Court has reversed the verdict of the Trial Court.

       Finding of the Court:

       The impugned decision does not call for any interference.

       Result: Appeals dismissed.