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2010 Supreme(P&H) 2883
PUNJAB & HARYANA HIGH COURT
Rakesh Kumar Garg, J.
Mohinder Kaur
Versus
Smt. Kuldeep Kaur
RSA No. 1777 of 2009,
Decided On : OCTOBER 12, 2010
The validity of a Will and the requirement of proving its execution in accordance with Section 63 of the Indian Evidence Act were central to the court's decision.
Headnote:
Will - Inheritance Dispute - Indian Evidence Act, Section 63 - Summary of Acts and Sections: Indian Evidence Act, Section 63 - The court discussed the validity of a Will and the requirement of proving the execution of the Will in accordance with Section 63 of the Indian Evidence Act. The court considered the testimony of attesting witnesses, the role of the scribe and Sub Registrar, and the presumption in favor of valid execution of a registered Will.
Fact of the Case:
The plaintiff filed a suit for declaration of her entitlement to inherit the estate of her deceased father and for joint possession of the property. The defendants claimed ownership based on a Will executed by the deceased father. The lower courts dismissed the suit, leading to the present appeal.
Finding of the Court:
The court found that the Will in question was validly executed in favor of the defendants, based on the testimony of the scribe, Sub Registrar, and an attesting witness, as well as the presumption in favor of valid execution of a registered Will.
Issues: The issues included the validity of the Will, entitlement to inherit the estate, and the right to joint possession of the property.
Ratio Decidendi: The court held that the testimony of the scribe, Sub Registrar, and an attesting witness, along with the presumption in favor of valid execution of a registered Will, established the validity of the Will in question.
Final Decision: The court dismissed the appeal, finding no substantial question of law arising from the case.
Rakesh Kumar Garg, J.
1. This is plaintiffs second appeal challenging the judgment and decrees of the Courts below whereby her suit for declaration that she was entitled to inherit the estate of Mal Singh (since deceased) to the extent of l/3rd share and a decree for joint possession, was dismissed.
2. As per the averments, Mal Singh (father of the appellant and respondents) was owner in possession of the suit property and upon his death on 21.10.2000, appellant and defendant/respondents No. 1 and 2 being his legal heirs were entitled to the entire Property of Mal Singh to the extent of l/3rd share each. However, the defendant-respondents claimed ownership of the entire property of Mal Singh on the basis of Will dated 19.3.1999 executed by him in their favour. The plaintiff-appellant has challenged the aforesaid Will alleging that the same was not by the free consent of the testator and the same might had been procured by misrepresentation and under undue influence and therefore, the present suit was filed for a decree for declaration to the effect that the plaintiff was entitled to inherit the estate of deceased Mal Singh to the extent of 1/3rd share and for passing a decree for joint possession of the house and other properties mentioned in the plaint.
3. The respondents filed written statement and admitted that Mal Singh was father of the plaintiff and defendants and was owner of the suit properties. It was further pleaded that one Mohar Singh, nephew of Mal Singh, by fraud and undue influence had obtained a Civil Court decree against Mal Singh with respect to the agricultural land. Mal Singh challenged the said Ciyil Court decree during his life time on the ground of fraud, misrepresentation and undue influence. Mal Singh was annoyed with the plaintiff on account of the fact that she was siding with Mohar Singh against whom Mal Singh had filed a civil suit challenging the aforesaid decree with respect to the agricultural land. It was further pleaded that in view of the execution of the Will in their favour, the plaintiff-appellant was left with no right or interest in the suit property belonging to Mal Singh. Thus, dismissal of the suit was prayed for.
4. The plaintiff filed replication controverting the pleas taken in the written statement and reasserting the contents of the plaint.
5. From the pleadings of the parties, the following issues were framed :
"1. Whether the plaintiff being the legal heir of the deceased is legally entitled to inherit the estate of deceased Mal Singh to the extent of 1.3rd share as mentioned in the plaint? OPP
2. If issue No. 1 is proved, whether the plaintiff is entitled for joint possession of the house, gun and the other properties mentioned in the para No. 1 (b&c) of the plaint?OPP
2-A Whether the deceased Mal Singh had executed a valid and legal registered Will dated 19.3.1999 in favour of Kuldeep Kaur etc., as alleged? OPD
3. Relief."
6. Both the parties adduced oral as well as documentary evidence in support of their respective assertions in the case.
7. After hearing the arguments, the trial Court dismissed the suit filed by the plaintiff-appellant vide judgment and decree dated 3.10.2006.
8. Aggrieved from the aforesaid judgment and decree, the appellant filed an appeal which was also dismissed by the Lower Appellate Court vide impugned judgment and decree dated 17.11.2008.
9. Still not satisfied, the plaintiff-appellant has filed the present appeal challenging the judgment and decrees of the Courts below submitting that the following substantial questions of law arise in this appeal:
"(i) Whether the genuineness of the Will can be proved in the absence of examination of attesting witness?
(ii) Whether the testimony of Sub Registrar is sufficient to prove the genuineness of the Will to the satisfaction of mandatory provisions of Section 63 of the Indian Evidence Act?"
(iii) Whether the scribe can be treated as a witness and the effect of scribing the signatures on the part of
