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2004 Supreme(Raj) 1124
Supreme Court
Honble ASHOK BHAN & S.H. KAPADIA, JJ.
Daulat Ram & Others - Appellant
Versus
Sodha & Others - Respondents
Civil Appeal No. 5032 of 2002
Decided On : November 16, 2004
Altaf Ahmad, U.U. Lalit, Senior Advocates with N.M. Popli, T.A. Khan, Shuchita Prasad (Ms.) & S.K. Verma, for Appellants T.S. Doabia, Senior Advocate with Ravi Bakshi & Yash Pal Dhingra, for Respondents
Headnote:Indian Succession Act, 1925, Sec. 63 read with Evidence Act, 1872, Sec. 68 — Execution of second will — Burden of proof to be genuine and validly executed in his favour lies on the person on whom the property has been bequeathed — Held — Will being a document has to be proved by primary evidence except where the Court permits a document to be proved by leading secondary evidence — It is required to be attested — One of the attesting witnesses has to be called for proving its execution — The pro-pounder has to show that the will was signed by the testator and that he had put his signature to the testament of his own free will —The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so. (Paras 10, 11, 13 & 14)
HELD : The two attesting witnesses, PW3 and PW5, have clearly stated in their depositions that Prati was in sound disposing mind at the time of the execution of the Will and had put his thumb mark on the said Will after the same was read over to him in their presence and that they had signed the Will in the presence of the testator and in the presence of each other. They have deposed that respondent No. 1 was the daughter of Prati and Prati of his own violation had executed the Will in favour of respondent No. 1. PW5 is a former Member of Legislative Assembly. PW3 is a close relation of deceased Prati. There is nothing on record to indicate that they have deposed falsely. Rather their testimonies inspire confidence. PW2 is the scriber of the Will and neighbour of deceased Prati. He has also deposed that respondent No. 1 is the daughter of Prati and that he had scribed the Will at the instance of Prati. He has also deposed that Prati had executed the Will of his own while in sound disposing state of mind. (Para 11)
(2). Facts giving rise to this appeal, in short, are:
One Prati, son of Kamna, executed a Will on 11.1.1977 in favour of his nephews, appellants herein, bequeathing his entire property in their favour. In the Will no provision was made by Prati either for his wife Gulabo or for his daughter Sodha-respondent No. 1 herein from his another wife Radhi. This Will was duly executed, attested and registered. Thereafter, on 8.5.1983 Prati executed another Will wherein he revoked/cancelled his earlier Will dated 11.1.1977 and bequeathed his property to his daughter, respondent No. 1. This Will was duly executed and attested but was not registered.
(3). Prati died on 10.5.1983. After his death respondent No. 1 filed Suit No. 102 of 1983 on 14.7.1983 for injunction restraining the appellants from interfering with her possession over the property of her deceased father claiming herself to be the owner in possession of the said property or in the alternative for possession thereof by virtue of Will executed in her favour dated 8.5.1983.
(4). Appellants contested the suit denying that the respondent No. 1 was the daughter of Prati. That the alleged Will propounded by the respondent No. 1 was prepared in collusion with the scribe and the attesting witnesses. According to them Prati had died issueless. They propounded that Will dated 11.1.1977 executed by Parti wherein the entire property was bequeathed by him in their favour and claimed themselves to be the legal heirs and only successors to the estate of deceased Prati.
(5). Trial Court dismissed the suit filed by the respondent No. 1. It was held that she was not the daughter of Prati. That Prati did not execute any Will in favour of respondent No. 1. It was further observed that the Will dated 11.1.1977 in favour of appellants was valid and by virtue of the same appellants were entitled to the estate left by Prati. Being aggrieved, respondent No. 1 preferred civil appeal. First Appellate Court after reappraising the entire evidence set aside the judgment and decree passed by the Trial Court. The suit filed by the respondent No. 1 was decreed by observing that respondent No. 1 was the daughter of deceased Prati and a valid Will had been executed in her favour by Prati. It was held that she had become the owner and therefore entitled to the possession of the same. It was observed after close scrutiny of both the Wills that the Will dated 11.1.1977 was procured by the appellants under pressure from Prati which was subsequently revoked by him by executing the second Will dated 8.5.1983.
(6). Appellants preferred a regular second appeal against the judgment and decree passed by the first Appellate Court which was dismissed being without any merits. The judgment and decree passed by the first Appellate Court was confirmed. It was observed that the First Appellate Court had rightly concluded that respondent No. 1 was the daughter of deceased Prati from his wife Radhi and the Will dated 8.5.1983 was validly executed by him while in sound disposing mind in the presence of the attesting witnesses and the scribe.
(7). Being aggrieved the appellants have preferred this appeal.
(8). The only point raised before us is that the second Will dated 8.5.1983 executed by Prati was surrounded by suspicious circumstances and the same was forged.
(9). Though appellants in their written statement had averred that the Will dated 8.5.1983 was forged but no issue was framed on this point. No evidence was led by the appellants to prove the forgery.
(10). Will being a document has to be proved by primary evidence except where the Court permits a document to be pr
