2019 (12) TMI 1609 - SC - Indian Laws

Decree of partition - failure to examine any of the attesting witnesses to the Will as required vide Section 68 of the Evidence Act - HELD THAT - The 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 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. 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 - 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. 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. 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. The present appeal should be allowed and the judgment of the High Court should be set aside.

Summary

Issues Involved:
1. Validity of the Will dated 02.01.1992.
2. Compliance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act.
3. Application of Section 71 of the Evidence Act.
4. Examination of attesting witnesses.
5. Suspicious circumstances surrounding the execution of the Will.

Detailed Analysis:

1. Validity of the Will dated 02.01.1992:
The primary issue in the case was whether the Will dated 02.01.1992, purportedly executed by Suhagwanti, was valid. The trial court held that the Will was not proved as Surinder Pal Sharma failed to examine any of the attesting witnesses as required under Section 68 of the Evidence Act. The High Court reversed this decision, holding that the Will was attested by two witnesses and thus satisfied the requirements of Section 63(c) of the Indian Succession Act. However, the Supreme Court found that the High Court's reliance on Section 71 of the Evidence Act was misplaced as Ramesh Kumar, one of the attesting witnesses, was not examined.

2. Compliance with Section 63 of the Indian Succession Act and Section 68 of the Evidence Act:
Section 63(c) of the Indian Succession Act mandates that a Will must be attested by two or more witnesses. Section 68 of the Evidence Act requires at least one attesting witness to be called to prove the execution of the Will. The trial court found that Surinder Pal Sharma did not comply with these provisions as he failed to examine any attesting witnesses. The High Court, however, held that the Will was attested by two witnesses and presumed its validity under Section 114 of the Evidence Act. The Supreme Court emphasized the need for strict compliance with these provisions and found that the High Court erred in its application of the law.

3. Application of Section 71 of the Evidence Act:
Section 71 of the Evidence Act allows for the proof of execution of a document by other evidence if the attesting witness denies or does not recollect the execution. The High Court applied this provision, holding that the Will was proved as the attesting witness Mr. M.N. Sharma was not available. The Supreme Court, however, held that recourse to Section 71 was impermissible without examining Ramesh Kumar, the other attesting witness. The Court clarified that Section 71 could only be invoked if all attesting witnesses deny or do not recollect the execution.

4. Examination of Attesting Witnesses:
The trial court found that Surinder Pal Sharma failed to examine any attesting witnesses, which was necessary to prove the execution of the Will. The High Court held that efforts were made to summon Mr. M.N. Sharma, but he did not appear. The Supreme Court emphasized that Ramesh Kumar, the other attesting witness, should have been examined, and his non-examination rendered the Will unproved. The Court reiterated the importance of examining attesting witnesses to satisfy the requirements of Section 68 of the Evidence Act.

5. Suspicious Circumstances Surrounding the Execution of the Will:
The Supreme Court noted several suspicious circumstances surrounding the execution of the Will. The Will was described as a "Will Deed," and Surinder Pal Sharma claimed ownership of the tenement even during his mother's lifetime. Raj Kumari's testimony indicated that her husband's signature on the Will was obtained under false pretenses. The Court highlighted that the Will's contents and the surrounding circumstances raised legitimate suspicions about its validity. The Court held that Surinder Pal Sharma failed to remove these suspicions and prove the Will's execution by "other evidence" as required under Section 71 of the Evidence Act.

Conclusion:
The Supreme Court allowed the appeal, set aside the High Court's judgment, and restored the trial court's preliminary decree of partition. The Court held that the execution of the Will was not proved, and the suspicious circumstances surrounding its execution were not adequately addressed. The Court emphasized the need for strict compliance with the statutory requirements for proving a Will and the importance of examining attesting witnesses to remove any legitimate suspicions.