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2008(3) Supreme 314
SUPREME COURT OF INDIA
(From Punjab & Haryana High Court)
S.B. Sinha & V.S. Sirpurkar, JJ.
Babu Singh & Ors. — Petitioners
versus
Ram Sahai @ Ram Singh — Respondent
Appeal (civil) 3124 of 2008
(Arising out of SLP (C) No. 10288 of 2006)
Decided on : 30-04-2008
(b) Indian Succession Act, 1925 – Section 68 – The provision envisages the necessity of more evidence than mere attestation – When genuineness of a Will is in question, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any. (Para 11)
(c) Indian Succession Act, 1925 – Section 68 – The Court, while granting probate of the will, must take into consideration all relevant factors like testator’s free will and his full knowledge and understanding of the contents – Background facts may assume importance – Where a plea of undue influence was taken, the onus therefor would be on the objector and not on the propounder. (Para 12)
JT (2007) 12 SC 248 – Relied upon.
(d) Indian Evidence Act, 1872 – Section 69 – Provisions of section 69 can be invoked only after all processes of the court to produce the attesting witness has been exhausted – This having not been done, the appellate court committed a serious error in law. (Para 16)
(2007) 7 SCC 225 – Relied upon.
AIR 1939 Cal. 688; A.I.R (32) 1945 Calcutta 350; AIR 1978 Mad. 78 – Referred with approval.
(e) Indian Evidence Act, 1882 – Section 69 – A deposition of the plaintiff is a witness before the Court, and not the statement through a counsel across the Bar – Such a statement across the Bar cannot be a substitute for evidence warranting invocation of Section 69 of the Evidence Act – Impugned judgments cannot be sustained. (Para 21)
Facts of the case:
1. One Ram Bux executed a Will dated 25.9.1981 in favour of the respondent herein bequeathing his right, title and interest in the property in question.
2. Appellants claimed themselves to be the owner and in possession of the suit property which is a shop, as a co-sharer to the extent of 6 marlas out of the land measuring 3 kanal and one marla appertaining to Khasra No.53 situated in the area of Chhoti Haveli, Tehsil and District Ropar.
3. The learned Judge, however, noticed that one of the attesting witnesses, namely, Harnek Singh @ House, according to the learned counsel for the plaintiff, had gone outside India and another attesting witness, namely, Lambardar Mohan Singh being dead, the Will must be held to have been duly proved.
4. In result, the Plaintiff failed to show that deceased Ram Bux executed legal and valid will dated 25.9.1981 in his favour.
5. The High Court by reason of the impugned judgment dismissed the Second Appeal preferred by the appellant herein opining that no substantial question of law arose for its consideration.
Findings of the Court :
The impugned judgments cannot be sustained.
Result : Appeal allowed.
This case involves a dispute over the validity of a will and the proper procedure for its proof. The petitioner challenged the execution and attestation of the will, asserting that it was not properly proved according to the legal requirements. The court examined whether the will was executed with the necessary formalities, including proper attestation by witnesses, and whether the evidence presented was sufficient to establish its genuineness. A key issue was the applicability of Section 69 of the Evidence Act, which pertains to proving the handwriting of witnesses when attesting witnesses are unavailable, and whether statements made through counsel could substitute for direct evidence. The court ultimately found that the will was not sufficiently proved due to the absence of proper attesting witnesses and the lack of direct evidence, especially considering that some witnesses were either dead or untraceable, and that statements through counsel cannot replace the testimony of witnesses in court. The judgment emphasized that proof of execution and attestation must adhere to statutory requirements, and that suspicious circumstances surrounding the will require thorough examination. Consequently, the court set aside the previous judgments and allowed the appeal, holding that the procedural and evidentiary standards for proving a will had not been met in this case.
JUDGMENT
S.B. Sinha, J. —
1. Leave granted.
2. Interpretation of Section 69 of the Evidence Act, 1872 is in question in this appeal which arises out of a judgment and order dated 11.11.2005 passed by the High Court of Punjab & Haryana.
3. One Ram Bux executed a Will dated 25.9.1981 in favour of the respondent herein bequeathing his right, title and interest in the property in question.
Appellants claimed themselves to be the owner and in possession of the suit property which is a shop, as a co-sharer to the extent of 6 marlas out of the land measuring 3 kanal and one marla appertaining to Khasra No.53 situated in the area of Chhoti Haveli, Tehsil and District Ropar.
4. Learned Trial Court, inter alia, raised the following issues :
“1. Whether the plaintiff is owner of the suit property? OPP
2. Whether the Plaintiffs are entitled to the possession of the shop in question? OPP
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6. Whether the defendants are entitled to the counter claim to the effect that they are owner of the shop in question and co-sharer to the extent of 0-6 marlas of the land fully detailed in the counter claim? OPD”
We need not go into other issues between the parties.
5. The learned Trial Judge, although opined that the suit was bad for non-impleading Karam Kaur and Dalwinder Kaur, daughters of the testator as parties to the suit, proceeded to consider the validity of the Will in order to avoid any possibility of remand by the Trial Court, stating :
“The plaintiff was duty bound to examine at least one attesting witnesses to prove the execution of the Will Ex.P/2. It has come in evidence that Lambardar Mohan Singh expired before he could be examined as a witness. Other attesting witnesses House was alive and had been given up by the plaintiff on the plea that he had been won over by the other party. Thus, Will Ex.P/2 has not been proved according to Section 68 of the Indian Evidence Act.”
6. The learned Judge, however, noticed that one of the attesting witnesses, namely, Harnek Singh @ House, according to the learned counsel for the plaintiff, had gone outside India and another attesting witness, namely, Lambardar Mohan Singh being dead, the Will must be held to have been duly proved. It was held :
“Though there is no plausible and cogent evidence on record to show that House had gone to foreign country. But even if for argument sake the plea of the Plaintiff is taken to be correct. Even in that eventuality the Sub-Registrar has only identified the signatures on the will to be that of Mohan Singh as attesting witness. Though the Plaintiff also examined PW-9 Davinder Parshad Handwriting expert who examined the signatures of the executant on the Will Ex.P/2 and the sale deed but he took all these signatures as standard signatures. The sale deeds, however, have not been proved by the Plaintiff to contain the signatures of Ram Bux. Expert compared these standard signatures with the questioned signatures on the family settlement. Therefore, there is nothing on record to suggest that Handwriting expert took the signatures of will as questioned and compared the same with admitted or proved signatures of Ram Bux. Therefore, the Plaintiff miserably failed to show that the Will Ex.P/2 contained the signatures of Ram Bux. Consequently, the Plaintiff failed to prove the due execution of the Will Ex.P/2, as per the requirement of Section 69 of the Indian Evidence Act.
In result, the Plaintiff failed to show that deceased Ram Bux executed legal and valid will dated 25.9.1981 in his favour. In view of this finding I need not dilate on the argument of the learned counsel for the defendants that the Will Ex.P/2 was surrounded by suspicious circumstanced.”
7. An appeal was preferred thereagainst. The First Appellate Court, however, on the said issue held :
“Now so far as the Will Ex.P/2 is concerned, it was allegedly executed by Ram Bux Singh son of Daya Ram on 25.9.1981 and was duly got registered in the office of the Sub-Registrar, Ropar, on the
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