2019 Supreme(P&H) 705

IN THE HIGH COURT OF PUNJAB AND HARYANA
Before
Amol Rattan Singh
RSA No.171 of 1989 (O&M)
Bibi
v.
Balwant Singh
{Decided on 12/03/2019}

Will – Murderer Disqualified – In absence of any other suspicious circumstances other than only an allegation of murder of the testator at the hands of the beneficiaries/their accomplices; such mere allegation cannot debar the beneficiaries from the benefits of the Will.
Will – Public Document – Even if a Will is registered, it cannot be considered to be a public document – Therefore, certified copy thereof would not be sufficient proof of execution of registered Will

Headnote:(A) Succession Act, 1963, S.63 – Will – Murderer Disqualified – In absence of any other suspicious circumstances other than only an allegation of murder of the testator at the hands of the beneficiaries/their accomplices, such mere allegation cannot debar the beneficiaries from the benefits of the will. (Para 41)

       If there are enough suspicious circumstances surrounding a will, then mere acquittal on a charge of the murder of the testator of the will, on a benefit of doubt granted, may not entitle the beneficiary to inherit the property of a deceased person, if enough suspicious circumstances are shown in the civil lis so as to the discredit the will. However, such exclusion from the deceased’s property would not be on account of operation of Section 25 of Hindus Succession Act, because that provision postulates a murderers’ exclusion, with murder to be proved. Such exclusion therefore would be on the basic principle that a will should not be surrounded by suspicious circumstances, for it to take effect.

       In present case Will of Baru Ram was duly proved in terms of Section 63 of the Indian Succession Act, 1925, read with Section 68 of the Indian Evidence Act, 1872, and further, it is seen to be free of suspicious circumstances, despite the allegation of Baru Ram having been murdered by the some of the plaintiffs and their alleged accomplices. (Para 41 & 52)

       (B) Succession Act, 1963, S.63 – Will – Public Document – Even if a Will is registered, it cannot be considered to be a public document – Therefore, certified copy of a registered Will, would not be sufficient proof of execution of will unless the validity of certified copy is proved by examining a person from the office of Sub-Registrar along with the register entering such registration – Evidence Act, 1872, S.74.

       Obviously therefore, when a certified copy of a will is presented in terms of Section 79 of the Evidence Act it cannot be accepted as such because Section 76 of the said Act stipulates that a public officer having custody (only) of a public document, which any person has a right to inspect, shall give that person, on demand, a copy of the document on payment of the legal fees applicable, certifying at the foot of such copy that it is a true copy thereof. (Para 56)

       (C) Succession Act, 1963, S.63 – Will – Registered Will – Public Document – Certified copy of a registered will would not be sufficient proof of its execution – In the absence of any person examined from the office of the Sub-Registrar, testimony of an attesting witness to the Will would be believable to prove execution of will.

       Hence, though a will is not a public document even it terms of sub-section (2) of Section 74 of the Evidence Act, once the validity of the will has been proved as per the conditions prescribed in Section 63 of the Succession Act (read with Section 68 of the Evidence Act), even the registration thereof becomes only an added ‘factor’, with the onus of disproving the authenticity of the registration shifting onto the person doubting such registration. (Para 56)

       (D) Succession Act, 1963, S.63 – Will – Attesting Witness – To prove a will, an attesting, if alive and to be found, necessarily must testify to its authenticity, whether it is a registered document or not. (Para 54)

       (E) Succession Act, 1963, S.63 – Will – Place of Signature – The signature or mark of the testator, or the signature of such authorised person, should not be so ‘far away’ from the recorded contents of the document, so as to give an impression that the contents have been filled in later, on a document that was otherwise signed or marked by the testator. (Para 42)

       (F) Succession Act, 1963, S.63 – Will – Attesting Witness – Each attesting witness must be sign the Will in the presence of the testator – But all the attesting witnesses need not all be present at the same time when they sign on the Will. (Para 42)

       (G) Succession Act, 1963, S.63 – Will – Suspicious Circumstances – Simply because the scribe may have slightly compressed the last lines to avoid carrying a single line onto next page, with otherwise ample space available for writing three lines together towards the end, it would not amount to suspicious circumstance by itself. (Para 46)

       (H) Succession Act, 1963, S.63 – Will – Burden of Proof – Once the Will was duly proved by one of the attesting witness; scribe of the Will also having testified to having read it out to testator, who after understanding it had affixed his signatures thereto, the onus was upon the person who challenges the Will that it was result of a fraud played.

       It has been seen earlier hereinabove (also while narrating the contents of the judgments of the learned courts below), the some of the defendants’ own witness, i.e. witnesses of the present appellants themselves, had admitted that Baru Ram was of a sound disposing mind and of good health, who also used to visit the house of the respondent – plaintiffs, with him also taking his meals with them sometimes. This is to be seen with the fact that findings of fact were also recorded by the courts below, on the basis of testimonies on both sides, that Baru Ram was a person fully aware of his circumstances, even giving out his property on Batai (a kind of share-cropping) from year to year. (Para 47)