Raj Kumari vs Surinder Pal Sharma

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.9683 OF 2019 (ARISING OUT OF SPECIAL LEAVE PETITION (CIVIL) NO. 26957 OF 2018)

RAJ KUMARI AND OTHERS ..... APPELLANTS

VERSUS

SURINDER PAL SHARMA ..... RESPONDENT

JUDGMENT

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 Signature Not Verified Digitally signed by RAJNI MUKHI Date: 2020.01.15 17:05:19 IST described as dependants.

Reason:

3. Harbans Lal died in 1965.

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 1 of 29

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 née 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,

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 2 of 29 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

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 3 of 29 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 Act. It was also observed that Surinder Pal Sharma

had made all efforts to summon the attesting witness Mr. M.N.

Sharma, Advocate, through court notices, but he did not appear. In

light of Section 71 of the Evidence Act, the Will should be treated

as proved as the same was registered and the presumption under

Section 114 of the Evidence Act would apply. Accordingly, it

should be presumed that the Sub-Registrar, who was holding a

public office, had validly carried out the registration after Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 4 of 29 ascertaining that the Will was attested by the two witnesses

including Mr. M.N Sharma, Advocate. Reliance was placed on the

judgment of this Court in M.B. Ramesh (Dead) by LRs. v. K.M.

Veeraje Urs (Dead) by LRs. and Others 1 which we shall

subsequently advert to. The contention of the first appellant before

us, namely Raj Kumari, that Surinder Pal Sharma had forged her

signature for obtaining mutation in the Municipal Corporation

record was brushed aside observing that at best it would show

that the mutation was illegal but this would have no bearing on the

question of attestation and validity of the Will.

11. Raj Kumari, Meenakshi Sharma and Veena Malhotra have

preferred the present appeal before this Court with a prayer that

the preliminary decree of partition passed by the trial court should

be restored and the impugned judgment of the High Court dated

09.03.2018 passed in RFA No. 234 of 2018 should be set aside.

12. We would first expound the law relating to the execution and proof

of Wills under the Indian Succession Act and the Evidence Act.

Clause (c) of Section 63 of the Indian Succession Act reads as

follows:

“63. Execution of unprivileged wills.––Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed

1 (2013) 7 SCC 490 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 5 of 29 or engaged, or a mariner at sea, shall execute his will according to the following rules––

(a)-(b) * * *

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

As per the mandate of clause (c), a Will is required to be

attested by two or more witnesses each of whom should have

seen the testator sign or put his mark on the Will or should have

seen some other person sign the Will in his presence and by the

direction of the testator or should have received from the testator

a personal acknowledgment of his signature or mark, or of the

signature of such other person. The Will must be signed by the

witness in the presence of the testator, but it is not necessary that

more than one witness should be present at the same time. No

particular form of attestation is necessary. Thus, there is no

prescription in the statute that the testator must necessarily sign

the Will in the presence of the attesting witnesses only or that the

attesting witnesses must put their signatures on the Will

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 6 of 29 simultaneously, that is, at the same time, in the presence of each

other and the testator.

13. The need and necessity for stringent requirements of clause (c) to

Section 63 of the Indian Succession Act has been elucidated and

explained in several decisions. In H. Venkatachala Iyengar v.

B.N. Thimmajamma and Others.2 dilating on the statutory and

mandatory requisites for validating the execution of the Will, this

Court had highlighted the dissimilarities between the Will which is

a testamentary instrument vis-à-vis other documents of

conveyancing, by emphasising that the Will is produced before the

court after the testator who has departed from the world, cannot

say that the Will is his own or it is not the same. This factum

introduces an element of solemnity to the decision on the question

where the Will propounded is proved as the last Will or testament

of the departed testator. Therefore, the propounder to succeed

and prove the Will is required to prove by satisfactory evidence

that (i) the Will was signed by the testator; (ii) the testator at the

time was in a sound and disposing state of mind; (iii) the testator

understood the nature and effect of the dispositions; and (iv) that

the testator had put his signature on the document of his own free

will. Ordinarily, when the evidence adduced in support of the Will

is disinterested, satisfactory and sufficient to prove the sound and 2 AIR 1959 SC 443 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 7 of 29 disposing state of mind of the testator and his signature as

required by law, courts would be justified in making a finding in

favour of the propounder. Such evidence would discharge the

onus on the propounder to prove the essential facts. At the same

time, this Court observed that it is necessary to remove suspicious

circumstances surrounding the execution of the Will and therefore

no hard and fast or inflexible rules can be laid down for the

appreciation of the evidence to this effect.

14. In Jaswant Kaur v. Amrit Kaur and Others3, it was held that

suspicion generated by disinheritance is not removed by mere

assertion of the propounder that the Will bears the signature of the

testator or that the testator was in sound and disposing state of

mind when the Will disinherits those like the wife and children of

the testator who would have normally received their due share in

the estate. At the same time, the testator may have his own

reasons for excluding them. Therefore, it is obligatory for the

propounder to remove all the legitimate suspicions before a Will is

accepted as a valid last Will of the testator. Earlier, in Surendra

Pal and Others. v. Dr. (Mrs.) Saraswati Arora and Another 4, this

Court had observed that the propounder should demonstrate that

the Will was signed by the testator and at the relevant time, the

3 (1977) 1 SCC 369 4 (1974) 2 SCC 600 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 8 of 29 testator was in a sound and disposing state of mind and had

understood the nature and effect of the dispositions, that he had

put his signature on the testimony of his own free will and at least

two witnesses have attested the Will in his presence. However,

suspicion may arise where the signature is doubtful or when the

testator is of feeble mind or is overawed by powerful minds

interested in getting his property or where the disposition appears

to be unnatural, improbable and unfair or where there are other

reasons to doubt the testator’s free will and mind. The nature and

quality of proof must commensurate with such essentiality so as to

remove any suspicion which a reasonable or prudent man may, in

the prevailing circumstances, entertain. Where coercion and fraud

are alleged by an objector, the onus is on him to prove the same

and on his failure, probate of the Will must necessarily be granted

when it is established that the testator had full testamentary

capacity and had in fact executed the Will with a free will and

mind. In Rabindra Nath Mukherjee and Another v. Panchanan

Banerjee (Dead) by LRs. and Others 5, this Court had observed

that the doubt would be less significant if the Will is registered and

the Sub-Registrar certifies that the same was read over to the

executor who, on doing so, had admitted the contents. In each

case, the court must be satisfied as to the mandate and

5 (1995) 4 SCC 459 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 9 of 29 requirements of clause (c) to Section 63 of the Indian Succession

Act.

15. In Jagdish Chand Sharma v. Narain Singh Saini (Dead)

Through LRs. and Others6, this Court referring to Section 63 of

the Indian Succession Act had illustrated that the provisions

contemplate that in order to validly execute the Will, the testator

would have to sign or affix his mark to it or the same has to be

signed by some other person in his presence and on his direction.

Further, the signature or mark of the testator or signature of the

person signing for him has to be so placed that it was intended to

give effect to the writing as a Will. Section 63 mandates that the

Will should be attested by two or more witnesses each of whom

has seen the testator sign or affix his mark to it or has seen some

other person sign it in the presence and on the direction of the

testator, or has received from the testator a personal

acknowledgement of his signature or mark, or the signature of

such other person and each of the witnesses has signed the Will

in the presence of the testator, though it is not necessary that

more than one witness be present at the same time and that no

particular form of attestation is necessary. The execution and

attestation of the Will are mandatory in nature and any failure and

6 (2015) 8 SCC 615 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 10 of 29 deficiency in adhering to the essential requirements would result

in invalidation of the instrument of disposition of the property.

16. Sections 68 and 71 of the Evidence Act, which relate to proof of

documents required by law to be attested, read as under:

“68. Proof of execution of document required by law to be attested.—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

* * *

71. Proof when attesting witness denies the execution.—If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”

17. In Jagdish Chand Sharma (supra) referring to Sections 68 and

71 of the Evidence Act, it was observed:

“22.2. These statutory provisions, thus, make it incumbent for a document required by law to be attested to have its execution proved by at least one of the attesting witnesses, if alive, and is subject to the process of the court conducting the proceedings involved and is capable of giving evidence. This rigour is, however, eased in case of a document also required to be attested but not a will, if the same has been registered in accordance with the provisions of the Registration Act, 1908 unless the execution of this document by the person said to have executed it denies the same. In any view of the matter, however, Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 11 of 29 the relaxation extended by the proviso is of no avail qua a will. The proof of a will to be admissible in evidence with probative potential, being a document required by law to be attested by two witnesses, would necessarily need proof of its execution through at least one of the attesting witnesses, if alive, and subject to the process of the court concerned and is capable of giving evidence.

22.3. Section 71 provides, however, that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by the other evidence. The interplay of the above statutory provisions and the underlying legislative objective would be of formidable relevance in evaluating the materials on record and recording the penultimate conclusions. With this backdrop, expedient it would be, to scrutinise the evidence adduced by the parties.

xxx xxx xxx

57.1. Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation.

The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of the 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of the 1872 Act. The distinction between failure on the part of an attesting witness to prove the execution and attestation of a will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies/deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 12 of 29 the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of the 1872 Act cannot be invoked to bail him (the propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63(c) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour.

57.2. Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. This underlying principle is inter alia embedded in the decision of this Court in CIT v. Ajax Products Ltd.”

After referring to H. Venkatachala Iyengar (supra), this

Court in Jaswant Kaur (supra) had laid down the following

propositions of law:

“(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, one Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 13 of 29 attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator.

Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.

(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 14 of 29 of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.

(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.”

18. In M.B. Ramesh (supra) reference was made to the view

expressed by the Division Bench of the Bombay High Court in

Vishnu Ramkrishna v. Nathu Vithal and Others 7 wherein it was

observed:

“27. […] We are dealing with the case of a will and we must approach the problem as a court of conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a court of conscience would not permit such a thing to happen. We have not heard Mr Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent—and grossly negligent—in not complying with the requirements of Section 63 and proving the will as they ought to have, should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will was duly executed or not.” (emphasis supplied)

7 AIR 1949 BOM 266 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 15 of 29 The judgment in M.B. Ramesh (supra) also refers to Janki

Narayan Bhoir v. Narayan Namdeo Kadam8 in which with

reference to Sections 68 and 71 of the Evidence Act, it was

observed:

“22. […] 6. … It is true that although a will is required to be attested by two witnesses it could be proved by examining one of the attesting witnesses as per Section 68 of the Evidence Act.

xxx xxx xxx

11. … Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. …

12. … Section 71 has no application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the will and the other attesting witness though available has not been examined.”

Highlighting the aforesaid aspects in M.B. Ramesh (supra),

it was held that:

“28. As stated by this Court also in H. Venkatachala Iyengar and Jaswant Kaur, while arriving at the finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of circumstances. The Court's role in matters concerning wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator, and whether it is the product of the free and sound disposing mind [as observed by this Court in para 77 of Gurdev Kaur v. Kaki]. In the present matter, there is no dispute about these factors.”

8 (2003) 2 SCC 91 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 16 of 29

19. In Jagdish Chand Sharma (supra) reference was made to the

facts of the case in M.B. Ramesh (supra) to observe that on

consideration of the totality of circumstances emerging from the

narration given by the attesting witness, the omission on the part

of this witness to specifically state about the signature by the other

attesting witness on the Will in the presence of the testatrix would

amount to failure to recollect the fact which deficiency could be

replenished with the aid of Section 71 of the Evidence Act. It was

observed that the validity of the Will in M.B. Ramesh (supra) was

upheld in the context of the attendant singular facts.

20. On the question of need to examine the second attesting

witnesses when one attesting witness falters, way back in 1921 in

Dhira Singh v. Moti Lal and Others9, two judges of the Patna

High Court had held that where the attesting witness was neither

summoned nor examined under the provisions of Section 68 of

the Evidence Act, recourse to Section 71 is impermissible. Under

the provisions of Section 68 of the Evidence Act, it is incumbent

on the plaintiff/propounder to call the attesting witness even

though he may be the defendant/opposite side. It was observed:

1. […] Section 68 requires that a document which is required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, and Section 71 enacts that if the attesting witness denies or 9 63 Ind. Cas. 266 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 17 of 29 does not recollect the execution of the document, its execution may be proved by other evidence.

2. A case on all fours with the present case is that of Tula Singh v. Gopal Singh 38 Ind. Cas. 604 : 1 P.L.J. 389 : 2 P.L.W. 353. In that case the learned Judges decided that Section 68 of the Evidence Act was imperative and so long as there was a witness alive and subject to the process of the Court, no document which is required by law to be attested can be used in evidence until such witness has been called. The fact that, when sailed (sic – assailed), he will prove hostile, does not excuse the party producing the document from this duty. The learned Subordinate Judge was, therefore, wrong in thinking that it was not necessary to call the defendant No. 2.

21. Majority of earlier judgments like Vishnu Ramkrishna (supra)

follow the ratio in Dhira Singh (supra), with a few exceptions like

Mt. Manki Kaur v. Hansraj Singh and Others10. The issue was

resolved beyond controversy and debate in Janki Narayan Bhoir

(supra) wherein it has been held that clause (c) of Section 63 of

the Indian Succession Act requires and mandates attestation of a

Will by two or more persons as witnesses, albeit Section 68 of the

Evidence Act gives concession to those who want to prove and

establish a Will in the court of law by examining at least one

attesting witness who could prove the execution of the Will viz.,

attestation by the two witnesses and its execution in the manner

contemplated by clause (c) to Section 63 of the Indian Succession

Act. However, where one attesting witness examined fails to prove

10 AIR 1938 Pat 301 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 18 of 29 due execution of the Will, then the other available attesting

witness must be called to supplement his evidence to make it

complete in all respects to comply with the requirement of proof as

mandated by Section 68 of the Evidence Act. It was held:

“11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will by calling the attesting witnesses, though alive. This section provides that if an attesting witness denies or does not recollect the execution of the will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witnesses though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration (g) of the Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 19 of 29 consideration, is one of the cardinal principles of the Indian Evidence Act. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility, cannot be let down without any other means of proving due execution by “other evidence” as well. At the same time Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to the proof of execution of a will.”

This judgment overruled the judgment of Manki Kaur

(supra) and approved the ratio of Vishnu Ramakrishna (supra) to

the effect that Section 71 of the Evidence Act can be requisitioned

when the attesting witnesses who were being called have failed to

prove the execution of the Will by reason of either denying their

own signatures, denying the signature of the testator or due to bad

recollection as to the execution of the document. Section 71 has

no application when only one attesting witness who was called

and examined has failed to prove the execution of the Will and the

other available attesting witness was not summoned.

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 20 of 29 22. The ratio in Janki was reiterated in Benga Behera and Another

v. Braja Kishore Nanda and Others 11. This judgment also

examines the issue and question whether a Sub-Registrar in the

matter of registration of documents under the provisions of Indian

Registration Act, 1908 can possibly be treated as a witness.

Reference was made to Sections 52 and 58 of the Registration

Act to observe that the duty of the Registering Officer is to

endorse the signature of every person presenting the document

for registration and to make an endorsement to that effect, that is,

to endorse only the admission or execution by the person who

presented the document for registration. The Registering Officer

can also endorse and certify the payment of money or delivery of

goods made in the presence of the Registering Officer in

reference to the execution of the document. The expression

‘attesting witness’ within the meaning of Section 3 of the Transfer

of Property Act and Section 63 of the Indian Succession Act

means “bearing witness to a fact”. The two valid conditions of

attestation of documents are – (i) two or more attesting witnesses

have seen the executant sign the instrument; (ii) each of them has

signed the instrument in the presence of the executant. Further

and importantly, attestation requires animus attestandi, that is, a

person puts his signature on a document with the intent to attest it

11 (2007) 9 SCC 728 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 21 of 29 as a witness. If a person puts his signature on a document only in

discharge of a statutory duty, he may not be considered as an

attesting witness as was held in Dharam Singh v. Aso and

Another12. Similarly, a scribe or an advocate who has drafted the

document may not be the attesting witness as was held by this

Court in Jagdish Chand Sharma (supra), for attestation requires

that the witness should have put his signature animus attestandi,

that is, for the purpose of attesting that he has seen the executant

sign or has received from him a personal acknowledgement of his

signature.

23. Returning to the facts of the present case, it is submitted by

Surinder Pal Sharma, the respondent before us, that

summons/notice were issued to Mr. M.N. Sharma, Advocate to

appear as a witness but he could not be served and hence was

not examined. Ramesh Kumar, it is submitted, was not summoned

or examined as he was none other than the husband of Raj

Kumari and would not have supported execution of the Will. The

High Court has accordingly held that the Will being registered was

proved in terms of section 71 of the Evidence Act. This finding of

the High Court is unacceptable, for recourse to Section 71 of the

Evidence Act is impermissible without examination of Ramesh

Kumar. It would not matter if Ramesh Kumar is husband of Raj 12 1990 Suppl SCC 684 Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 22 of 29 Kumari. Section 71 of the Evidence Act would come into

operation, once and if all the attesting witnesses deny or do not

recollect the execution of the document, that is, the Will. In that

event, the execution can be proved by other evidence. The

respondent accepts that Ramesh Kumar though a witness was not

summoned and asked to depose as a witness and therefore, it

cannot be said that Ramesh Kumar as an attesting witness had

denied or did not recollect execution of the Will.

24. Even on the question of “other evidence” we have grave and

serious reservations. It is apparent that late father of Raj Kumari

and Surinder Pal Sharma and grandfather of appellants

Meenakshi Sharma and Veena Malhotra being a displaced person

had applied for a two-room accommodation which was allotted to

his wife Suhagwanti on 15.03.1972 as by then he had expired.

One of the terms and conditions of the allotment was that the

possession of the tenement would be issued on the payment of

the first instalment and on giving an undertaking that she would

vacate the quarter at Padam Chand Land within three days from

the allotment letter. It has also come on record that Madan Lal, the

eldest sibling was earning and in service at the time of allotment.

There is also evidence that Madan Lal had contributed and

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 23 of 29 financially helped at the time of marriage of his sisters namely Raj

Kumari and Puran Devi.

25. There is no doubt that the Will was registered but there are

several circumstances which cast doubt on the Will. Raj Kumari in

her cross-examination with reference to the disputed Will of

Suhagwanti has stated:

“Q. I put to you that mother namely Smt. Suhagwanti had executed a Will in favour of your brother Mr. Surender Pal and it was attested by your husband Sh. Ramesh Kumar as attesting witness?

My mother had obtained signature of my husband who is totally illiterate on a document on the pretext that she intend to disowned my niece Ms. Veena Malhotra, who had married at her own. My mother had told this fact to me on the same day when she returned from the Office of Sub Registrar.

It is correct that my husband has signed in the office of Sub Registrar. Vol. But his signatures were obtained under the pretext as I have above stated.

It is correct that photo of my mother is pasted on Mark A. I cannot identify signature of my husband on Mark A. I have never seen my husband signing any document. It is wrong to suggest that my husband has signed at point B on Mark A. It is wrong to suggest that my husband has signed at point B on Mark A. It is wrong to suggest that instalments of suit property were paid by my brother Sh. Surender Pal Sharma. Vol. My mother used to pay instalment and after her death Surender Pal has paid 1 or 2 instalments. Again said, I used to accompany my mother to Town Hall for making the payment of instalments.”

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 24 of 29

26. Before filing the civil suit, Raj Kumari had issued a legal notice

dated 25.09.2000 (Exhibit P-1/1) in which she had stated that

Suhagwanti has died intestate leaving behind four children, that is,

Raj Kumari, Surinder Pal Sharma, Madan Lal, represented

through his wife Santosh Rani, and Puran Devi. Further, after the

death of Suhagwanti, she had repeatedly requested Surinder Pal

Sharma to partition the property with metes and bounds and give

her due share. Surinder Pal Sharma had thereafter responded to

the legal notice vide undated letter marked Exhibit PW-1/2

accepting that Raj Kumari was his sister and that the tenement

was allotted to their mother. He, however, had claimed that the

tenement belongs to him as an absolute owner and therefore,

there was no question of partition. The relevant portion of the said

reply reads as under:

“For the reason that the said property is absolutely belong to me, during the life time of my respected mother Smt. Suhagwanti and the said property is belong to me being the absolute ownership, thus no question is arisen of partition of the said property. It is in my possession during the life time of my mother and is totally stands in all Govt. records in my name.

Thus it is not compulsory to me to give the reply of your client’s further notice or any letter and she is fully known about it. If you wish to approach the higher authority it is the responsibility of your client to bear all costs, legal expenses, whatsoever and also bear my expenditure whatever may be suffer or gone to me in this connection.”

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 25 of 29 Clearly, Surinder Pal Sharma had not propounded and

referred to the Will in his reply, which defence was taken by him

for the first time in his written statement. This is also clear from the

cross-examination of Surinder Pal Sharma wherein he had

accepted as correct that the Will was not challenged by Raj

Kumari in the court of law as she had come to know about the Will

during the pendency of the present case (please refer page 97 of

the paper book). Surinder Pal Sharma thus accepts that bestowal

in his favour vide a written Will, was not known or within the

knowledge of Raj Kumari, a surprising statement as Ramesh

Kumar is husband of Raj Kumari. Equally intriguing is the

statement of Surinder Pal Sharma in his cross-examination that he

had not informed his lawyer while drafting the reply (to the legal

notice) that he was in possession of the Will executed by his

mother. Surinder Pal Sharma in his cross examination had

accepted that in 1972, he was studying in Class VI and was hardly

11 to 12 years of age (This statement is at variance with the age

of Surinder Pal Sharma in Exhibit DW-1/P-3 but we would accept

the statement in the oral testimony). Surinder Pal Sharma had

claimed that he would repair cycles and had contributed to the

payments towards instalments of the quarter. It is in this aforesaid

factual background that we would examine the Will, its wordings

and contents.

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 26 of 29 27. The purported Will dated 02.01.1992 is a rather short and an odd

one. For the sake of completeness, we would like to reproduce the

same in its entirety.

“ WILL DEED

THIS “WILL DEED” is executed on this 2 nd day of Jan. 1992 at Delhi by Shrimati Suhag Wanti aged about 65 year w/o Late Shri Harbans Lal R/o H. No. 26, Duplex Flat, Gur Mandi, Delhi – 7 hereinafter called the Testator.

IN FAVOUR OF

Shri Surinder Lal Sharma S/o Late Shri Harbans Lal R/o H.No. 26, Duplex Flat, Gur Mandi, Delhi-7, hereinafter called the Testimony.

LIFE IS BUT SHORT AND UNCERTAIN, God know when it may come to end. Hence I with my free will and consent and without any force or compulsion from others and in my sound estate of mind to make this will as under:-

Whereas I the Testator is the owner and in the possession of built up property bearing No.26, built on a piece of land area measuring 80 Ft. situated in the abadi known as Duplex Flat, Gur Mandi, Delhi-7, and bounded as under:-

East…………..Other property West………….Other property North………… Road South………… Road

Whereas I the Testator hereby bequeath that after my death the aforesaid property shall got and devolve to the aforesaid testimony, shall be the sole and absolute owner of the above mentioned property.

Witnesses:- TESTATOR Sd/- Sd/- Shri Ramesh Kumar Smt. Suhagwati S/o Shri Ram Lal Sharma Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 27 of 29

R/o H.N. 10/4, Gandhi Nagar, Geeta Colony, Delhi. ”

28. The Will which purportedly makes the bequest, is oddly described

as a Will Deed. This possibly explains why Surinder Pal Sharma

had claimed in his reply, that he was the owner of the tenement

even during the lifetime of the mother Suhagwanti. It is in this

context that we have read the different portions of the testimony of

Raj Kumari and Surinder Pal Sharma; the notice and the reply to

hold that there exists grave doubt whether the “Will Deed” was

executed and is a “Will” as it purports to be. The marriage of

Veena Malhotra as per her wish is not challenged. The testator

was an illiterate lady. Even if we are to accept signatures of the

testator and the witnesses, we cannot ignore “other evidence” that

Suhagwanti and her family members did not understand the true

nature of the document executed. There are substantial and good

reasons to legitimately suspect and question execution of the Will,

which Surinder Pal Sharma, as the propounder of the Will, has not

been able to repel and remove so as to satisfy this Court that the

Will was validly executed. For these reasons, we would hold that

execution of the Will has not been proved by “other evidence” in

terms of Section 71 of the Evidence Act.

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 28 of 29

29. Looked and examined from all angles, we are satisfied that the

present appeal should be allowed and the judgment of the High

Court should be set aside. Accordingly, we restore the judgment

and decree dated 17.01.2018 passed by the court of Additional

District Judge-03, North District, Rohini District Courts, New Delhi.

There would no order as to costs.

......................................J. (S. ABDUL NAZEER)

......................................J. (SANJIV KHANNA) NEW DELHI;

DECEMBER 17, 2019

Civil Appeal arising out of S.L.P. (C) No. 26957 of 2018 Page 29 of 29