Rur Singh (D) Th. Lrs. & Ors vs Bachan Kaur

Rur Singh (D) Th. LRS. & Ors. ...Appellants

Versus

Bachan Kaur ...Respondent

JUDGMENT

S.B. SINHA, J :

1. Leave granted.

2. This appeal is directed against a judgment and order dated 11.07.2006

passed by a learned Single Judge of the Punjab and Haryana High Court

whereby and whereunder a judgment and order dated 18.11.1998 passed by

the Additional District Judge, Mansa in Civil Appeal No. 59 of 1996,

dismissing the appeal preferred by the respondent herein from a judgment 2

and decree dated 12.02.1996 passed by the Civil Judge (Junior Division),

Mansa in Civil Suit No. 341 of 1983.

3. The basic fact of the matter is not in dispute.

One Kehar Singh was the owner of the property. The parties hereto

are his children. He is said to have executed a Will on or about 14.05.1969

in terms whereof he bequeathed all the agricultural properties in favour of

his sons. The said Will is said to have been scribed by the Sarpanch of the

village and attested by ten witnesses. He expired on 5.10.1969. Mutation in

respect of the properties situate in the village Lohgarh in favour of his sons

was allowed by an order dated 4.02.1970. Allegedly, order of the mutation

in respect of the properties situated in the village Jhunir was passed in the

year 1979.

4. Respondent herein filed a suit in the Court of Civil Judge (Junior

Division), Mansa praying inter alia for a decree of possession contending

that the said Kehar Singh died intestate. Appellants, on the other hand,

claimed their right, title and interest in the suit property by reason of the

said Will executed by Kehar Singh.

3

The learned Trial Judge in view of the rival contentions of the parties

inter alia framed the following issues:

"1-C. Whether the suit property developed (sic for devolved upon) against heirs of Kehar Singh as mentioned in para no. 4 of amended written statement?"

5. The learned Trial Judge, keeping in view the order of mutation in

respect of the properties in favour of the appellants herein which took place

in the year 1970, the validity whereof was not challenged, and on the basis

of the other materials brought on record, held the said Will dated

14.05.1969 to be genuine and, thus, dismissed the said suit. An appeal

preferred thereagainst by the respondent was also dismissed.

6. Respondent herein preferred a second appeal thereagainst. A learned

Single Judge of the High Court formulated the following substantial

question of law for consideration:

"Whether in the facts and circumstances of the case, the Will allegedly executed by Kehar Singh was free from all suspicious circumstances and whether the same conformed to the provisions of Section 63 of the Act?"

4 7. The concurrent findings of the Trial Court as also the first Appellate

Court were reversed by the learned Single Judge of the High Court, stating:

(i) As mutation of the properties had been ordered on 28.08.1979 in

presence of the parties whereagainst no challenge was thrown, had

the Will been in existence in 1969, the same should have been

produced in the mutation proceedings.

(ii) The Will is surrounded by suspicious circumstances as all the

beneficiaries had a role to play in execution thereof.

(iii) The Will has been scribed by Gurbachan Singh, Sarpanch in Urdu

although he had chosen to sign in English at more than one place.

(iv) The Will although was stated to be recorded in the panchayat

register but the same was not produced.

As regards the question as to whether the Will has been proved in

terms of Section 63 of the Indian Succession Act, the High Court held:

"Section 63 of the Act lays down the manner in which a Will is to be executed. The Will in question which is Ex. D-1 dated 14.5.1969 is an unregistered Will. A perusal of the same shows 5

that there is complete violation of Section 63 (c) of the Act. Kehar Singh, who was the testator, died on 5.10.1969. Cumulatively taken together, all these factors cast a dark shadow on the execution of the Will."

8. Mr. Narender Yadav, learned counsel appearing on behalf of the

appellants, would submit that the High Court committed a serious error in

interfering with the concurrent findings of fact in exercise of its jurisdiction

under Section 100 of the Code of Civil Procedure.

The learned counsel would draw our attention to the fact that the

order of mutation was passed in the year 1970, as has been found by the

learned Trial Judge, and thus, the High Court committed a serious error in

opining that the order of mutation was passed in the year 1979.

The learned counsel would further submit that out of ten attesting

witnesses, only one of them being the beneficiary and nine others being

independent witnesses and the Will having been proved by three

independent witnesses, the impugned judgment cannot be sustained.

Furthermore, as the testator was living jointly with the legatees, their 6

presence at the time of execution of the Will was natural and not

uncommon.

The learned counsel would further submit that the witnesses having

proved due execution of the Will both in terms of Section 63(c) of the

Indian Succession Act and Section 68 of the Indian Evidence Act, the High

Court must have committed a serious error in opining contra.

9. Mr. Vishal Mahajan, learned counsel appearing on behalf of the

respondent, on the other hand, would contend:

(i) Kehar Singh being 80 years old and having executed the Will four

months prior to his death, it must be held to be surrounded by

suspicious circumstances.

(ii) Had the Will been genuine, the same would have been produced

before the Revenue Court in the mutation proceeding.

(iii) The village panchayat record wherein the factum of the execution

of the Will has been registered having not been produced, the Will

cannot be said to be genuine.

7 10. The High Court while exercising its jurisdiction under Section 100 of

the Code of Civil Procedure exercises a limited jurisdiction. It may interfere

with a finding of fact arrived at by the Trial Court and/ or the first Appellate

Court only in the event, a substantial question of law arises for its

consideration.

11. The High Court framed only one substantial question of law, viz.,

whether the Will had been duly proved and/ or was otherwise genuine.

It is essentially a question of fact. The learned Trial Judge as also the

first Appellate Court in opining that the Will was genuine and free from

suspicious circumstances inter alia took into consideration the existing

materials on record, viz., the parties ordinarily do not want their agricultural

land to go out from the family and in that view of the matter if Kehar Singh

had bequeathed his agricultural land only in favour of his sons and

excluding the daughters from inheritance, no exception thereto could be

taken.

12. The learned Trial Judge as also the first Appellate Court also took

into consideration the fact that the villagers in great numbers were present at 8

the time of execution of the Will and in fact Sarpanch himself scribed the

same. Furthermore, the fact that at least in respect of the properties situate

in village Lohgarh the order of mutation was passed in favour of the sons in

the year 1970 and the same was not challenged, also was taken into

consideration that the Will must be held to be genuine.

13. As regards proof of Will, as statutorily required in terms of Section

63 (c) of the Indian Succession Act, it was categorically held by the learned

first Appellate Court:

"...The execution of the Will Ex. D-1, dated 14.5.1969, was proved by Rur Singh, DW-1, Kapoor Singh, DW-2, and Hema Ram, DW-3, attesting witnesses thereof. Their evidence goes to prove that the Will was scribed by Gurbachan Singh, Sarpanch, at the instance of Kehar Singh. After scribing the Will, the contents thereof were read over and explained to Kehar Singh, who admitted the same to be correct, and thumb marked the same, in the presence of Rur Singh, DW-1 & Kapoor Singh DW-2, Hem Raj DW-3, Prem Chand, Gurbachan Singh and Piara Singh, attesting witnesses. It is further proved from the evidence of Rur Singh, DW-1, Kapoor Singh, DW-2 and Hema Ram (DW-3) that Kehar Singh thumb marked the Will, in token of its correctness, in their presence and in the presence of other witnesses, whereas they signed and thumb marked the same, in the presence of the testator. It is also proved from the evidence of these witnesses, that Kehar Singh, was in sound disposing mind, at the 9

time of execution of the Will dated 14.5.1969 Ex. D-1. In fact, the perusal of the Will, Ex. D-1, reveals that it was executed by Kehar Singh, in the presence of the entire Panchayat of the village. No doubt, Rur Singh, DW-1, is the son of Kehar Singh, and is one of the beneficiaries, residing with him, in the same house and serving him throughout his lifetime. That, however, does not make his evidence unbelievable. Since, he was residing, in the same house, with Kehar Singh, and was serving him, his presence at the time of the execution of the Will was natural and probable, and that was why he signed the same, as an attesting witness..."

As Bachan Kaur, respondent herein was comfortably married, if the

testator thought it proper to exclude her from his agricultural property

bequeathing the same in favour of his sons, as has been stated in the Will,

no exception thereto could be taken.

14. The High Court essentially entered into the arena of appreciation of

evidence. It interfered with the concurrent findings of fact arrived at by the

courts below.

10

Execution of a Will is required to be proved in terms of the provisions

of Section 63(c) of the Indian Succession Act and Section 68 of the Indian

Evidence Act.

The statutory requirements to prove a Will in terms of the

aforementioned provisions have been laid down in a large number of

decisions. We may notice a few of them.

In Janki Narayan Bhoir v. Narayan Namdeo Kadam, [(2003) 2 SCC

91], while dealing with the question elaborately, this Court held:

"8. To say will has been duly executed the requirement mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place form which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the 11

witnesses has to sign the Will in the presence of the testator."

As regards compliance of the provision of Section 68 of the Evidence

Act, it was opined :-

"In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. to put in other words, if one attesting witness can prove execution of the will in terms of Clause

(c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to 12

prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."

(Emphasis supplied)

Following the said decision, as also the other decisions in Benga

Behera & Anr. v. Braja Kishore Nanda & Ors. [2007 (7) SCALE 228], this

Court held:

"...Execution of a Will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, however, can only be proved in terms of Section 68 of the Indian Evidence Act. In terms of said provision, at least one attesting witness has to be examined to prove execution of a Will."

Yet again, recently in Anil Kak v. Kumari Sharada Raje & Ors.

[(2008) 6 SCALE 597], it was opined :

13

"40. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.

41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.

It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.

Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation."

[See also Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria &

Ors. 2009 (1) SCALE 328].

15. The Will was scribed in the house of the testator. From the

deposition of the witnesses, the learned Trial Judge as also the first

Appellate Court came to the conclusion that he was in a sound disposing

mind. The Will was scribed by the Sarpanch. As many as ten witnesses 14

attested the Will; nine of them being independent witnesses. Execution of

the Will as also attestation thereof by the witnesses was concluded in one

go. The testator and all the witnesses were present throughout the said

transaction. It is in the aforementioned situation, the learned first Appellate

Court had arrived at a categorical finding of fact that the statutory

requirements had been complied with as more than one witness had attested

the execution of the Will not only in presence of the testator but also in

presence of each other.

16. The High Court unfortunately even did not choose to assign any

reason in support of its conclusion that the statutory requirements contained

in Section 63(c) of the Indian Succession Act had not been complied with.

The oral evidence adduced on behalf of the parties had not been discussed

far less analysed. How and in what manner the statutory requirements had

not been complied with was not stated.

17. The High Court omitted to notice that at least in respect of the

properties situate in one village the order of mutation was passed in the year

1970, i.e., immediately after the execution of the Will. 15

The High Court furthermore failed to take into consideration that at

least in regard to the said order of mutation, the respondent did not carry the

matter to the appellate court or question the validity thereof by filing a suit.

18. The suit was filed in the year 1983. It was also not the case of the

respondent that she had been getting share of the yields from the said

agricultural properties.

Only because one of the beneficiaries attested the Will, the same

would not mean that he had taken active part in it. In any event, the learned

Trial Judge as also the first Appellate Court found sufficient explanation

therefor holding that as the Will was executed in testator's house and he had

been living jointly with his sons, their presence in the house was natural.

19. We have noticed hereinbefore that the Will was attested by nine

independent persons. Three of them in fact had been examined. The High

Court while holding that a doubt is cast on its validity by reason of active

participation of one of the sons, failed to notice that nine other independent 16

witnesses attested the Will. We, therefore, fail to attach much importance to

the fact that although Gurbachan Singh, Sarpanch scribed the Will in Urdu,

he at more than one place signed in English. In a village, a person may be

more proficient in the vernacular language than English although he may be

able to sign his name in English.

20. If the Will was otherwise proved to be genuine and the statutory

requirements therefor were satisfied, in our opinion, only because the

panchayat register was not produced, the same by itself would not lead to

the conclusion that the Will would be held to have not been executed,

particularly when two courts competent to arrive at findings of fact held it

otherwise.

21. For the reasons aforementioned, the impugned judgment cannot be

sustained and is set aside accordingly. The appeal is allowed. However, in

the facts and circumstances of the case, there shall be no order as to costs.

...............................J. [S.B. Sinha] 17

................................J. [Dr. Mukundakam Sharma] New Delhi;

February 12, 2009