Case Note & Summary
The appeal arises from a judgment and decree dated 17.01.2004 in O.S.No.16271/2001 on the file of the XXVIII Additional City Civil and Sessions Judge, Bengaluru, whereby the suit for declaration and possession was partly decreed. The plaintiff, Pushpalatha N.V., is the appellant, and the defendants are the respondents. The suit properties originally belonged to D.N. Vasanta Kumar, father of the plaintiff and defendants 2 to 4, and husband of defendant no.1. He died on 15.12.1994. The plaintiff claimed that D.N. Vasanta Kumar executed a will dated 28.11.1994 bequeathing the suit properties to her. The defendants contested the suit, denying the execution of the will and alleging that it was a forged document. The trial court partly decreed the suit, holding that the plaintiff had proved her title to the suit properties based on the will, but denied possession. The plaintiff appealed against the denial of possession. The High Court, after hearing arguments, allowed the appeal. The court held that the trial court erred in holding that the will was not proved. The plaintiff examined one attesting witness (PW-2) who proved the execution of the will. The court also held that registration of a will is not compulsory. The defendants failed to prove any suspicious circumstances. Therefore, the court set aside the trial court's judgment and decreed the suit in favor of the plaintiff for declaration and possession.
Headnote
A) Will - Execution and Proof - Section 68 Indian Evidence Act, 1872 - Attesting Witness - The court held that to prove a will, at least one attesting witness must be examined to prove its execution. In this case, the plaintiff examined one attesting witness (PW-2) who proved the execution of the will dated 28.11.1994. The court found that the trial court erred in holding that the will was not proved, as the evidence of PW-2 was sufficient. (Paras 10-15) B) Will - Registration - Section 18 Registration Act, 1908 - The court held that registration of a will is not compulsory under Section 18 of the Registration Act, 1908. Therefore, the fact that the will was unregistered did not affect its validity. The trial court's finding that the will was not proved due to non-registration was erroneous. (Paras 16-18) C) Will - Suspicious Circumstances - Burden of Proof - The court held that once the execution of a will is proved by examining an attesting witness, the burden shifts to the person challenging the will to prove suspicious circumstances. In this case, the defendants failed to prove any suspicious circumstances surrounding the execution of the will. (Paras 19-22)
Issue of Consideration
Whether the will dated 28.11.1994 executed by D.N. Vasanta Kumar was validly proved in accordance with Section 68 of the Indian Evidence Act, 1872, and whether the plaintiff had established her title to the suit properties based on the will.
Final Decision
The High Court allowed the appeal, set aside the trial court's judgment and decree, and decreed the suit in favor of the plaintiff for declaration of title and possession of the suit properties.
Law Points
- Will execution
- Attesting witness
- Section 68 Indian Evidence Act
- 1872
- Registration of will
- Section 18 Registration Act
- 1908
- Burden of proof
- Unregistered will
- Validity of will
