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2024 Supreme(Online)(HP) 10157
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Sandeep Sharma, J
Banshi Ram alias Bansi Ram and others – Appellant
Versus
General Public and others – Respondent
FAO No. 243 of 2010 | CMPMO No. 75 of 2012
For the Appellants/Petitioners: Mr. Bhupender Gupta, Ms. Rinki Kashmiri
For the Respondents: Mr. Neeraj Sharma
For a will to be validated under the Succession Act, it must be properly executed and attested as mandated by law, demonstrating sufficient evidence of the testator's intent and capacity.
Headnote:(A) Indian Succession Act, 1925 - Section 63(c) - Validity of Will - Appeal against dismissal of petition for grant of probate of Will executed on 16.3.1993 by deceased testator Gopala - Contest over Will's validity due to alleged hereditary rights and testator's mental capacity - The court emphasized the requirement for attestation under Section 63(c), ruling that the testimony of attesting witnesses did not meet statutory requirements, resulting in failure to prove the Will's execution - The appeal challenging the lower court’s findings was dismissed. (Paras 2, 4, 18-42).
(B) Evidence Act, 1872 - Section 68 - Requirement of attestation - To validate a Will, at least one attesting witness must confirm seeing the testator's signature or receiving personal acknowledgment - The failure to meet this criterion renders the Will invalid. (Paras 68, 68).
Facts of the case:
The petitioners claimed that Gopala had bequeathed his property via a valid Will. The respondents contested its validity on grounds of mental incapacity and property being ancestral.
Findings of Court:
The High Court upheld the lower court's order, confirming that the Will was not executed following requisite legal formalities.
Issues: The court addressed the validity of the Will, proper attestation, and the mental soundness of the testator.
Ratio Decidendi: The court found that the petitioners failed to prove valid execution and attestation of the Will as per statutory requirements.
Result: Appeal dismissed.
| Table of Content |
|---|
| 1. validity of the will and contestation (Para 3 , 4 , 7) |
| 2. arguments on evidence of execution of the will (Para 9 , 10 , 12 , 15) |
| 3. legal requirements of execution under indian succession act (Para 18 , 21 , 28) |
| 4. foundational requirements for the proof of a will (Para 39) |
| 5. conclusion of appeal dismissal and its implications (Para 42 , 43) |
Sandeep Sharma, Judge:
Since both these cases are between the same parties and qua the same property, as such, same were tagged together vide order dated 5.10.2017 and are being disposed of vide this common judgment.
FAO No. 243 of 2010 .
2. Instant appeal filed under S. 299 of Indian Succession Act , 1905 (hereinafter, ‘the Act’) lays challenge to order dated 16.6.2010 passed by learned District Judge, Bilaspur, Himachal Pradesh, whereby Succession Act Petition No. 2/2004 having been filed by the petitioners for grant of probate and Letter of Administration came to be dismissed.
3. Precisely, the facts of the case as emerge from the record are that the petitioners filed a petition under S.299 of the Act, seeking therein grant of probate of the will executed by testator Shri Gopala, thereby bequeathing his property in favour of the petitioners, averring therein that the deceased Gopala, who was a Hindu, governed by Hindu Succession Act, had died on 15.11.1997, leaving behind his immovable property within the jurisdiction of the learned District Judge, Bilaspur. Appellant further averred that prior to his death, Gopala had executed a Will on 16.3.1993, which was registered in the office of Sub Registrar, Sadar, Bilaspur, thereby bequeathing his estate in favour of the petitioners. Petitioners claimed in the petition that the Will was executed by the deceased Gopala, in the presence of witnesses namely Sant Ram and Anant Ram, and the value of assets, which are likely to come in the hands of the petitioners does not exceed Rs.61,37,715/-.
4. Afore petition so filed by the petitioners, came to be contested by respondents Nos. 2, 5, 6, 7, 9 and 10, who, while filing reply, took a specific preliminary objection with regard to maintainability and claimed that property in Will, being ancestral one, otherwise could not be given to the petitioners, by way of Will. Respondents set up a case that the Will executed by deceased Gopala was void as he was not empowered to execute Will, because part of Will was Nautor land, allotted to the deceased in the year 1974. Respondents claimed that being an allottee under Nautor Rules, deceased was not authorized to part with, dispose of or alienate the property during the life time of his wife i.e. respondent No.2. On merit, aforesaid respondents though admitted the factum with regard to death of Gopala on 15.11.1997 as well as his being Hindu, governed by Hindu Succession Act, but specifically denied that he had executed the Will in favour of the petitioners. Aforesaid respondents claimed that the deceased Gopala remained ill for long and petitioners taking undue advantage of his old age, got the Will executed in their favour, which is illegal, wrong and void and is not a genuine document. They also set up a case that the petitioners, in connivance with attesting witnesses got the Will executed and, at relevant time ,deceased Gopala was not in a sound disposing mind, as such, Will executed under the influence of petitioners, cannot be acted upon, especially, for grant of Probate and Letter of Administration.
5. By way of rejoinder, petitioners specifically refuted the averments contained in the reply and reiterated the averments contained in the petition.
6. On the basis of pleadings of the parties, learned court below framed following issues on 4.11.2005:
“1. Whether Gopala had executed the valid Will in favour of the petitioners, if so, its effect? OPP
2. Whether the petitioners are entitled for the grant of probate and letter of Administration regarding the estate of Gopala alongwith succession certificate? OPP.
3. Whether the petition is not maintainab
