Raj Kumari and Others v. Surinder Pal Sharma
JUDGMENT
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, S uhagwanti
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.
877
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 a t 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 day s.
The allotment letter though not a marked Exhibit is an u ndisputed
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 tenem ent and
decree of declaration that she and the defendants namely Surinder P al
Sharma, Puran Devi née Kumari, and Santosh Rani (widow of Madan
Lal who had by then expired), were owners of 1/4 th 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 02.01.199 2,
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 t o the
Will. Puran Devi and Santosh Rani despite service did not file their written
statements. Santosh Rani during the pendency of the suit expi red 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 passe d a
preliminary decree of partition inter alia holding that the four siblings
were entitled to 1/4 th 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,
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
mandatory requirement of clause (c) to Section 63 o f 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 dep osed 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 su it 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 th us,
satisfies the requirement of clause (c) to Section 6 3 of the Indian
Succession Act. It was also observed that Surinder Pal Sha rma 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 Su b-
Registrar, who was holding a public office, had validly carried out the
registration after ascertaining that the Will was atteste d 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.
V eeraje Urs (Dead) by LRs. and Others 1 which we shall subsequently
advert to. The contention of the first appellant before us, nam ely 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 bu t 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.
1 (2013) 7 SCC 490
879
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 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 testa tor a
personal acknowledgment of his signature or mark, or of the
signature of such other person; and each of the witnesses shal l
sign the will in the presence of the testator, but it sh all 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 te stator
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 acknowledgme nt of his
signature or mark, or of the signature of such other person. T he 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 simultaneously, that is, at
the same time, in the presence of each other and the tes tator.
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. V enkatachala 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
2 AIR 1959 SC 443
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
instrument vis-à-vis other documents of conveyancing, by emphasising
that the Will is produced before the court after the testa tor 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 evide nce
adduced in support of the Will is disinterested, satisfactory and sufficient
to prove the sound and disposing state of mind of the testator a nd 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 Others 3, it was held
that suspicion generated by disinheritance is not remove d 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 t he
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 te stator. Earlier, in
Surendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora and
Another 4, this Court had observed that the propounder shoul d
demonstrate that the Will was signed by the testator and at the relevant
time, the testator was in a sound and disposing state of min d 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
3 (1977) 1 SCC 369
4 (1974) 2 SCC 600
881
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 wil l 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 fr aud 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 gran ted when it is
established that the testator had full testamentary capac ity 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-Registr ar 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 requirements of clause (c) to Section 63 of the Indian Successi on
Act.
15. In Jagdish Chand Sharma v. Narain Singh Saini (Dead)
Through LRs. and Others 6, this Court referring to Section 63 of the
Indian Succession Act had illustrated that the provisions cont emplate
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 p laced
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 wit nesses
each of whom has seen the testator sign or affix his mar k to it or has
seen some other person sign it in the presence and on the dire ction 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 t estator,
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 nat ure and any
failure and deficiency in adhering to the essential requirements would
result in invalidation of the instrument of disposition of the property.
5 (1995) 4 SCC 459
6 (2015) 8 SCC 615
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
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 lea st
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 execut ion
proved by at least one of the attesting witnesses, if alive, and is
subject to the process of the court conducting the proceedin gs
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 w ith 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, 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 attest ing
witnesses, if alive, and subject to the process of the court
concerned and is capable of giving evidence.
883
22.3. Section 71 provides, however, that if the attesting witne ss
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 legisla tive
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 distinct ion
between failure on the part of an attesting witness to prov e 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 ess entially
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 the document or authenticat e real
forgetfulness of such fact. If the testimony evinces a casual
account of the execution and attestation of the doc ument
disregardful of truth, and thereby fails to prove these two essentials
as per law, the propounder cannot be permitted to adduce othe r
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
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
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 facil itate a
roving pursuit. In absence of any touch of truthfuln ess 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 const rued
harmoniously therewith and not divorced therefrom w ith 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 a ny 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 attesting witness at least has been
called for the purpose of proving its execution, if there be a n
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.
885
(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 o f 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 w ife
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 heavi er and
therefore, in cases where the circumstances attendant up on the
execution of the will excite the suspicion of the c ourt, the
propounder must remove all legitimate suspicions befo re the
document can be accepted as the last will of the testato r.
(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 inst rument
produced before the court is the last will of the testator, the court
is called upon to decide a solemn question and by reason 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 wil l.
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:
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
7 AIR 1949 BOM 266
“27. […] We are dealing with the case of a will and we mu st
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 woul d 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)
The judgment in M.B. Ramesh (supra) also refers to Janki
Narayan Bhoir v. Narayan Namdeo Kadam 8 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 t he
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
8 (2003) 2 SCC 91
887
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 s ound
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.”
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 attest ing 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 attes ting
witnesses when one attesting witness falters, way back in 1921 in Dhira
Singh v. Moti Lal and Others 9, two judges of the Patna High Court
had held that where the attesting witness was neither summon ed 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 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
9 63 Ind. Cas. 266
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
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 Singhand Others 10 . The issue was resolved
beyond controversy and debate in Janki NarayanBhoir (supra) wherein
it has been held that clause (c) of Section 63 of the Indian Succe ssion
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 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 recol lect
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 t he
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
10 AIR 1938 Pat 301
889
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 s aid
that if one attesting witness denies or does not recolle ct 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 w itness
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 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 t o make
available or not a necessary witness otherwise availab le 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 requisitione d 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
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
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.
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 tha t the duty of
the Registering Officer is to endorse the signature o f every person
presenting the document for registration and to make an endorsement to
that effect, that is, to endorse only the admission or executi on by the
person who presented the document for registration. The Regis tering
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 executa nt.
Further and importantly, attestation requires animus attestandi, that is,
a person puts his signature on a document with the intent to attest it 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 Another 12 . Similarly, a scribe or
an advocate who has drafted the document may not be the attest ing
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 submit ted by
Surinder Pal Sharma, the respondent before us, that summons/noti ce
were issued to Mr. M.N. Sharma, Advocate to appear as a wi tness but
11 (2007) 9 SCC 728
12 1990 Suppl SCC 684
891
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 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, tha t
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 R aj Kumari and
Surinder Pal Sharma and grandfather of appellants Meenakshi Sharma
and Veena Malhotra being a displaced person had applied for a t wo-
room accommodation which was allotted to his wife Suhagwant i 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 thre e 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 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 Suhagw anti
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
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
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 S ub
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 Mar k 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 pa id 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.”
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 the reafter
responded to the legal notice vide undated letter marked Exhibit PW-1/
2 accepting that Raj Kumari was his sister and that the t enement 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 ownershi p,
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
893
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.”
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-examinat ion of
Surinder Pal Sharma wherein he had accepted as correct that t he 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.
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.
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA
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 l and 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 de ath the
aforesaid property shall got and devolve to the aforesaid testimony,
shall be the sole and absolute owner of the above mentione d
property.
Witnesses:- TESTATOR
Sd/- Sd/-
Shri Ramesh Kumar Smt. Suhagwati
S/o Shri Ram Lal Sharma
R/o H.N. 10/4, Gandhi Nagar, Geeta Colony,
Delhi. “
28. The Will which purportedly makes the bequest, is o ddly
described as a Will Deed. This possibly explains why Surinder Pal Sharma
had claimed in his reply, that he was the owner of the t enement 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
895
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.
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 de cree
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.
Ankit Gyan Appeal allowed.
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA