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2024 Supreme(Online)(ALL) 2703
HIGH COURT OF ALLAHABAD
Hon'ble Saurabh Shyam Shamshery,J.
Bhagwan Bux Singh – Appellant
Versus
Board Of Revenue U.P. Allahabad And Others – Respondent
WRIT - B No. - 15803 of 1981 at Allahabad
Petitioner: Krishna Mohan
Respondent: S.C. and D.S. Pandey
The validity of a Will requires strict adherence to statutory requirements, including the examination of attesting witnesses; failure to comply renders the Will inadmissible.
Headnote:(A) Indian Succession Act, 1925 - Section 63 - Indian Evidence Act, 1872 - Section 68 - Validity of Will - The court examined whether the Will was executed according to legal requirements, including proper attestation by witnesses. The trial court found the Will valid, but the appellate court's findings were deemed perverse due to failure to examine attesting witnesses. (Paras 15-31)
(B) Proof of Will - The execution of a Will must be proven in accordance with statutory requirements, including the presence of attesting witnesses. The absence of such witnesses renders the Will inadmissible. (Paras 15-27)
Facts of the case:
The petitioner challenged the validity of a Will executed by Sheodin Singh, claiming it was not properly attested. The original trial court found the Will valid based on testimony, but subsequent appeals questioned this finding.
Findings of Court:
The court found that the lower courts did not adhere to the legal requirements for proving the Will, leading to the conclusion that the Will was not validly executed.
Issues: The main issues included whether the Will was properly executed and the validity of the findings of the lower courts regarding the Will.
Ratio Decidendi: The court determined that the absence of attesting witnesses and failure to follow statutory requirements invalidated the Will, emphasizing that strict proof is required for such documents.
Result: The writ petition is allowed, and the suit filed by the plaintiff is dismissed.
JUDGMENT :
Saurabh Shyam Shamshery, J.
1. Heard Mr. Rohit Verma, Advocate holding brief of Mr. Krishna Mohan, learned counsel for petitioner and Mr. Jai Raj, learned counsel for the contesting respondents.
2. In the present case land in dispute was acquisition of one Balidan Singh, which was later on inherited by one Sheodin Singh, who died issueless in the year 1965. The respondent no. 4 set up a case that he was son of Sheodin Singh’s sister and further claimed that such Sheodin Singh has executed a Will deed on 23.07.1957 in his favour as well as on ground of inheritance also.
3. The respondent no. 4 on the basis of said Will deed instituted a suit under section 229B of U.P.Z.A. & L.R. Act, claiming Sirdhari and Bhumidhari rights on part of land in dispute. The Suit was contested by the petitioner that said Balidan Singh has only one daughter namely Sheo Kala and Sheodin Singh was not empowered to execute Will in regard to land in dispute.
4. The Assistant Collector Ist-Class Rai-Bareilly, framed eight issues, including the issue no. 2 i.e. (Did Sheodin Singh execute Will deed in favour of the plaintiff? If so, is it valid?
5. The learned Trial Court decided the said issue, that the Will deed was executed by Sheodin Singh, in favour of the plaintiff and that it was also valid. Other issues were also decided and finally the Suit was decreed and the plaintiff/respondent no. 4 was declared Co-Bhumidar and Co- Sirdar of parts of land in dispute by judgment dated 31.10.1975. The relevant findings, so far as Issue nos.1 and 2 is concerned, are reproduced hereinafter:-
“Issues nos. 1 and 2:-
From the judgment dated 7-6-81 in mutation case no.82 filed by Chhotey Singh in Tahsildar's court shows that it had been held that the plaintiff Chhotey Singh is the sister's son of Sheodin - Singh. The will not deed which is a registered document was executed by Sheodin Singh on 23-7-57 the megina 1 witness of which was Brij Lal, now dead, whose signatures were proved by P.W.1 Ranjit singh, the brother of Brij Lal. The deceased willed all his property in favour of the plaintiff whom is he has mentioned there in as his sister's son. Sheodin singh died in 1965 and the deed was executed 8 years prior to his death in which he has clearly mentioned that Chhotey Singh, son of his sister's Smt.Rajauta lived with Sheodin Singh during his life time. P.W.1 Ranjit Singh also have proved the pedigree given in the plaint and stated that the plaintiff is the son of Rajuta Devi who was the real sister's of Sheodin singh. Pratap Bahadur Singh, defendant no.8 has also proved the above facts in his statement. Even D.W.1 Ram Swarup Singh has deposed in cross-examination that Baladan Singh had a son Sheodin Singh and a daughter name Rajauta Kunwar. The defendants could not give any concreate proff against the above evidence to prove their version to the effect that Baladan Singh had no daughter, as alleged by them, named Sheo Kala. Thus it is proved beyoned doubt that the plaintiff is the real sister's son of Sheodin Singh particularly in view of the statement of Bhagwan Bux singh himself where in cross- examination he has definitely deposed that Puran- Singh is not the sister's son of Sheodin Singh. No doubt in his examination in chief it was alleged that Puran singh is the son of Sheo Kala who was the step sister of Sheodin Singh and who has been also living in house of Sheodin Singh. But D.W.2 Bhagwan Bux Singh further stated that Babadan Singh had got only one wife and no second marriage of his was performed.
I, therefore, hold that the plaintiff, Chhotey Singh is the son of Smt.Rajauts, the real sisters of Sheodin Singh.
As regards the validity of the will-deed, executed by Sheodin Singh, dated 23-7-57, it has been argued on behalf of the contesting defendants that he could execute the deed only he respect of the Bhumidhari rights and not Sirdari Land, in this case the matter of intetitance is involved and the plaintiff is not claiming the bhumidhari or Sirdari right
