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2017 Supreme(P&H) 1557
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
ANIL KSHETARPAL, J.
Nand Singh and others - Appellants
Versus
Devi Singh (deceased) through his LRs and others - Respondents
RSA No.4275 of 2010 (O&M)
Decided On : 17-08-2017
For the Appellants : Mr. Baldev Raj Mahajan, Mr. Deepak Sabharwal, Mr. Vaneet Soni, Mr. Akhilesh Vyas, Mr. Saurabh Mago
For the Respondent: Mr. Rajesh Garg, Mr. Amit Chaudhary
IMPORTANT POINT
Will – Attesting Witness – Non-examination of second witness is not a fatal defect.
Will – Attesting Witness – Merely because Ex-Sarpanch has signed several documents; he cannot be termed as stock witness.
Headnote:(A) Evidence Act, 1872, S.68 – Will – Attesting Witness – Non-examination of second witness is not a fatal defect – As per the requirement of Section 68 of the Indian Evidence Act, at least one attesting witness is required to be examined and if that attesting witness is able to prove due execution of the Will as per Section 63 of the Indian Succession Act, then other attesting witness is not required to be examined – Succession Act, 1925, S.63. (Para 17)
(B) Succession Act, 1925, S.63 – Will – Attesting Witness – Stock Witness – Merely because Ex-Sarpanch has signed several documents he cannot be termed as stock witness – It is a normal practise that once the Ex-Sarpanch is available at a particular time in the office of document writer, he will be required to attest the documents as attesting witness – Evidence Act, 1872, S.68. (Para 19)
(C) Succession Act, 1925, S.63 – Will – Last Will – Once, it is proved on the file that testator remained alive for more than 7 years and she did not change her Will, that itself shows that testator had executed a Will out of her free will and volition and she stood by the Will during 7 years, she remained alive – Last Will of deceased is to be enforced. (Para 23)
ANIL KSHETARPAL, J.
1. The defendants-appellants are in Regular Second Appeal against the judgments passed by the Courts below.
2. The following question of law arises for determination in the present appeal:-
(i) Whether the judgments passed by the Courts below ignoring the registered Will dated 30.11.1987 after finding that the Will is proved in accordance with law, are perverse?
3. The detailed facts have been given in the judgment of the Courts below. However, to complete narrative, some facts are being given.
4. Dispute is with regard to the estate of late Smt. Banti who died on 18.12.1994. Late Smt. Banti was issueless. Her husband had predeceased her. The plaintiffs are children of sister of the husband, whereas defendants-appellants are brother of late Smt. Banti and children of another pre-deceased brother of late Smt. Banti.
5. Late Smt. Banti is alleged to have executed a registered Will dated 30.11.1987 Ex.DW4/C bequeathing 3/4th share of her property in favour of Prem Singh-defendant No.1 (brother) and 1/4th share in favour of Raghubir and Jodh Singh sons of Rasal Singh-defendant Nos.2 and 3 (children of pre-deceased brother).
6. The defendants-appellants also filed the counter claim for passing a decree for declaration to the effect that they are owners in possession.
7. The learned trial Court held that the execution and registration of the Will dated 30.11.1987 is proved as one attesting witness namely Nek Chand was examined as DW4 and Scribe was examined as DW5. Even the official from the office of Sub-Registrar was examined.
8. The learned trial Court after recording a finding that the execution of the Will is proved, ignored the Will on following grounds:-
1. Second attesting witness of the Will namely Surat Singh has not been examined in the Court.
2. There has been unequal distribution of the property by the Will.
3. Natural heirs have been ignored.
9. The appeal preferred by the defendants-appellants was also dismissed for similar reasons. However, the First Appellate Court further added that the Will was executed in the year 1987 whereas Smt. Banti died on 18.12.1994 i.e. after a period of 7 years, therefore, the Will which was executed 7 years prior to the death cannot be taken as last wish of the testator. The First Appellate Court also held that on 30.11.1987, the Document Writer has scribed many documents and Surat Singh was witness in all the documents. Therefore, it was held that Surat Singh appears to be stock witness.
10. I have heard learned counsel for the parties and with their able assistance gone through the judgments passed by the Courts as well as record.
11. Learned counsel for the appellants has submitted that as per the findings of the Courts below, execution of the Will has been proved in accordance with the provision of Section 68 of the Indian Evidence Act. The plaintiffs have not challenged the aforesaid findings. He has further submitted that mere non-examination of Surat Singh-the second witness cannot be taken as suspicious circumstance. He submitted that Will is a natural Will as late Smt. Banti would certainly had preference for her brother and children of her another pre-deceased brother as compared to relations of her husband. He has further submitted that late Smt. Banti had executed the Will after four years of death of her husband, Nathu, who died on 02.01.1984. It has come in evidence that Prem Singh, the major beneficiary under the Will started residing with late Smt. Banti proved from the ration card and the voter list.
12. He has further submitted that on the date of the execution of the Will, late Smt. Banti and her sister Subhadra had jointly executed many documents. It may be mentioned here that Subhadra and Banti were real sisters who were married to two brothers i.e. Ram Saran and Nathu. Subhadra was married to Ram Saran whereas Banti was married to Nathu. On 30.11.1987, both the sisters i.e. Subhadra and Banti executed a sale deed jointly in favour of Jit Singh. Subhad
