The main legal point established in the judgment is the stringent requirements for validating the execution of Wills, as per the Indian Succession Act and the Evidence Act, and the circumstances under which Section 71 of the Evidence Act can be invoked.

ORDER

1. Leave granted.

2. On account of migration to Delhi on partition, Harbans Lal being a displaced person had vide application dated 13.04.1958, marked as Exhibit DW-1/P-3, applied for a two room accommodation at Gur Mandi, Civil Lines, Delhi with the Municipal Corporation of Delhi. This application records that Harbans Lal was a shopkeeper, Suhagwanti was his wife and Madan Lal, Puran Kumari, Surinder Kumar and Baby were his children. Madan Lal was described as being in service and all other children were described as dependants.

3. Harbans Lal died in 1965.

4. On 15.03.1972, Suhagwanti Devi, being the wife of late Harbans Lal, was issued allotment letter for duplex type tenement under the Redevelopment Scheme at Gur-ki-Mandi for Rs. 14,325/-, which amount was payable in 20 equal annual instalments with interest at the rate of 5% per annum and on default, penal interest at the rate of 8% per annum. Collection charges at the rate of 24% were also payable. The allotment letter had a stipulation that the allottee would have to surrender vacant possession of Quarter No. 27 New Padam Chand Land within 3 days. The allotment letter though not a marked Exhibit is an undisputed document.

5. Suhagwanti Devi expired on 10.10.1999.

6. Raj Kumari daughter of Harbans Lal, who by then was married, on or about 15.10.2004 filed a suit for partition of the tenement and decree of declaration that she and the Defendants namely Surinder Pal Sharma, Puran Devi ne Kumari, and Santosh Rani (widow of Madan Lal who had by then expired), were owners of 1/4th unspecified and undivided share in the tenement. A decree for rendition of accounts and permanent injunction was also prayed for.

7. The suit was contested by Surinder Pal Sharma, who in his written statement had propounded a registered Will dated 02.01.1992, purportedly executed by Suhagwanti wherein the tenement had been bequeathed solely and absolutely to him. It was stated that husband of Raj Kumari namely Ramesh Kumar was an attesting witness to the Will. Puran Devi and Santosh Rani despite service did not file their written statements. Santosh Rani during the pendency of the suit expired and was represented by her daughter Veena Malhotra. Puran Devi has also expired and is now represented by her daughter Meenakshi Sharma.

8. The trial court vide judgment dated 17.01.2018 passed a preliminary decree of partition inter alia holding that the four siblings were entitled to 1/4th share each in the tenement after recording that Surinder Pal Sharma had failed to prove the purported registered Will of Suhagwanti dated 02.01.1992. The judgment held that Surinder Pal Sharma had failed to examine any of the attesting witnesses to the Will as required vide Section 68 of the Evidence Act and therefore, could not prove that Suhagwanti had signed the Will at her free will in a sound disposing state of mind after having understood its contents. It was also held that as per the testimony of Surinder Pal Sharma the Will marked Exhibit DW-1/2 was attested by one witness only and therefore, mandatory requirement of Clause (c) to Section 63 of the Indian Succession Act was not satisfied. The trial court having perused the Will held that Mr. M.N. Sharma, Advocate had signed as a draftsman and counsel and not as an attesting witness. It was observed that mere registration of the Will, as proved by Parveen Kumar Rana, UDC working in the office of Sub-Registrar, Kashmere Gate, who has deposed as DW-3, would not prove the Will.

9. Aggrieved, Surinder Pal Sharma had filed an appeal before the Delhi High Court, bearing RFA No. 234 of 2018, and by the impugned judgment dated 09.03.2018 has succeeded. Consequently, the judgment of the trial court dated 17.01.2018 has been set aside and the suit has been dismissed.

10. The High Court held that the Will was attested by two witnesses namely Ramesh Kumar and Mr. M.N. Sharma, Advocate and thus, satisfies the requirement of Clause (c) to Section 63 of the Indian Succession