Case Note & Summary
The case concerns a dispute over a tenement originally allotted to Suhagwanti Devi, the wife of late Harbans Lal, under a redevelopment scheme. After Suhagwanti's death in 1999, her daughter Raj Kumari filed a suit for partition in 2004, claiming that she and her siblings (Surinder Pal Sharma, Puran Devi, and the legal heirs of Madan Lal) were each entitled to a 1/4th share. The defendant Surinder Pal Sharma propounded a registered Will dated 02.01.1992 allegedly executed by Suhagwanti, bequeathing the entire tenement to him. The trial court, after examining the evidence, held that the Will was not proved as required under Section 68 of the Evidence Act read with Section 63(c) of the Indian Succession Act, because the propounder failed to examine any attesting witness. The trial court noted that the Will bore the signature of M.N. Sharma, Advocate, as a draftsman and not as an attesting witness, and that only one attesting witness (Ramesh Kumar) was identified. Consequently, the trial court passed a preliminary decree of partition granting 1/4th share to each sibling. On appeal, the Delhi High Court reversed the trial court's decision, holding that the Will was attested by two witnesses (Ramesh Kumar and M.N. Sharma) and that the propounder had made efforts to summon M.N. Sharma, who did not appear. The High Court applied Section 71 of the Evidence Act and the presumption under Section 114 to treat the Will as proved. Aggrieved, Raj Kumari and the other legal heirs appealed to the Supreme Court. The Supreme Court allowed the appeal, restoring the trial court's preliminary decree. The Court held that the High Court erred in its application of the law. It reiterated that under Section 68 of the Evidence Act, at least one attesting witness must be examined to prove a Will, and Section 71 is only an enabling provision when no attesting witness is available. The propounder failed to examine Ramesh Kumar, who was available and was the husband of the plaintiff. The other signatory, M.N. Sharma, signed as a draftsman and not as an attesting witness, and thus did not satisfy the attestation requirement. The Court also held that the presumption under Section 114 cannot override the specific requirements of Section 63(c) and Section 68. The Will was surrounded by suspicious circumstances, including the disinheritance of natural heirs, and the propounder failed to remove those suspicions. The Supreme Court set aside the High Court's judgment and restored the trial court's preliminary decree of partition.
Headnote
A) Succession Law - Will - Attestation - Section 63(c) Indian Succession Act, 1925 - Section 68 Evidence Act, 1872 - The propounder must prove that the Will was attested by two or more witnesses as required by Section 63(c). In this case, the Will was attested by only one witness (Ramesh Kumar) as the other signatory (M.N. Sharma, Advocate) signed as a draftsman and not as an attesting witness. The trial court correctly held that the Will was not proved. The High Court erred in applying Section 71 of the Evidence Act and presuming due attestation under Section 114, as the propounder failed to examine any attesting witness. (Paras 8, 10, 12-15) B) Evidence Law - Proof of Will - Section 71 Evidence Act, 1872 - Section 71 is a enabling provision that allows other evidence to prove attestation when no attesting witness is available, but it does not dispense with the requirement of examining at least one attesting witness under Section 68. The propounder must first attempt to call an attesting witness; only if such witness is unavailable or refuses to depose can other evidence be led. Here, the propounder failed to examine Ramesh Kumar, who was available, and the other witness M.N. Sharma was not an attesting witness. (Paras 10, 15) C) Evidence Law - Presumption of Regularity - Section 114 Evidence Act, 1872 - The presumption under Section 114 that official acts were regularly performed cannot be used to prove attestation of a Will when the statutory requirements of Section 63(c) and Section 68 are not satisfied. Registration of a Will does not by itself prove its valid execution or attestation. (Paras 10, 15) D) Succession Law - Suspicious Circumstances - Propounder's Onus - The propounder must remove all legitimate suspicions surrounding the execution of the Will, especially when the Will disinherits natural heirs. In this case, the Will disinherited the daughters and the widow of a predeceased son, and the propounder failed to explain the circumstances or examine the attesting witnesses. The trial court's finding of suspicious circumstances was justified. (Paras 13-15)
Issue of Consideration
Whether the High Court was correct in reversing the trial court's finding that the Will dated 02.01.1992 was not duly proved, and whether the Will was validly attested under Section 63(c) of the Indian Succession Act, 1925 and proved under Section 68 of the Evidence Act, 1872.
Final Decision
The Supreme Court allowed the appeal, set aside the impugned judgment of the Delhi High Court dated 09.03.2018, and restored the preliminary decree of partition passed by the trial court on 17.01.2018.
Law Points
- Will attestation
- Section 63(c) Indian Succession Act
- Section 68 Evidence Act
- Section 71 Evidence Act
- Section 114 Evidence Act
- Suspicious circumstances
- Propounder's onus
- Registered Will presumption
