Full Judgment Text
2023INSC876
Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8172 OF 2009
Dhani Ram (died) through LRs. & others … Appellants
Versus
Shiv Singh … Respondent
J U D G M E N T
SANJAY KUMAR, J
1. I.A. No. 151091 of 2023 was filed for deletion of the name of
deceased appellant No. 2, the widow of Dhani Ram, from the array of
parties. This application is ordered as the sons of Dhani Ram and
deceased appellant No. 2 have already been brought on record. Registry
Signature Not Verified
shall make necessary changes in the cause title before placing this final
Digitally signed by
GEETA AHUJA
Date: 2023.10.06
13:40:03 IST
Reason:
judgment in the public domain and/or issuing copies thereof.
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2. Leela Devi, also referred to as Leela Wati, died on 10.12.1987.
Her husband, Sohan Lal, had predeceased her. Dhani Ram, the son of
Leela Devi’s brother, claimed that she executed a registered Will
bequeathing to him the properties left by late Sohan Lal. Shiv Singh, the
son of Sohan Lal’s brother, instituted Civil Suit No. 200/1 of 1990 on the file
of the learned Senior Sub Judge, Solan, Himachal Pradesh, challenging
the Will executed by Leela Devi, under which Dhani Ram claimed
entitlement to the properties that originally belonged to Sohan Lal.
3. By judgment dated 30.08.1997, the Trial Court decreed the suit,
disbelieving the Will put forth by Dhani Ram. In consequence, the mutation
effected by the authorities on the strength of the said Will was also set
aside. Shiv Singh was held entitled to a decree of possession, as he was
the rightful owner of the suit properties, and Dhani Ram was permanently
injuncted from causing interference therewith. Aggrieved thereby, Dhani
Ram and the other defendants filed Civil Appeal No. 63-S/13 of 1997
before the learned District Judge, Solan, Himachal Pradesh. By judgment
dated 12.05.1998, the Appellate Court reversed the judgment and decree
of the Trial Court. It held that the Will stood proved and that there were no
suspicious circumstances surrounding it. The suit filed by Shiv Singh was
accordingly dismissed with costs.
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4. Thereupon, Shiv Singh filed Regular Second Appeal No. 398 of
1998 before the Himachal Pradesh High Court. The second appeal was
allowed by the High Court, vide judgment dated 18.03.2009, restoring the
judgment and decree of the Trial Court. Aggrieved by this turn of events,
Dhani Ram filed this appeal by special leave.
5. By order dated 30.07.2009, this Court stayed the operation and
implementation of the judgment under appeal.
6. Admitted facts, to the extent relevant, may now be taken note of.
Sohan Lal and his brother, Devi Ram, succeeded to the ancestral
properties left by their father, Giridhari Lal. Sohan Lal had no issues,
though it is stated that he had two wives, Leela Devi and Draupadi. The
existence and status of Draupadi is disputed but it is of no consequence
presently. Devi Ram had two sons, Balbir Singh and Shiv Singh, viz., the
respondent herein, who had filed the suit. Balbir Singh died on 26.04.1985.
Sohan Lal died intestate and before his death, so did Draupadi, supposedly
one of his wives. Therefore, Leela Devi alone inherited Sohan Lal’s share in
the ancestral properties by intestate succession. In the ordinary course, if
Leela Devi had also died intestate, Shiv Singh, being the sole legal heir of
her husband, would have succeeded to the properties under Section
15(1)(b) and Section 15(2)(b) of the Hindu Succession Act, 1956
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(for brevity, ‘the Act of 1956’). However, Dhani Ram, the son of Leela Devi’s
brother, claimed the said properties under the Will allegedly executed by
Leela Devi on 27.10.1987, which was registered thereafter on 03.11.1987.
On the strength thereof, Dhani Ram also got his name mutated in the
records in relation to these properties. Having come to know of the same,
Shiv Singh initiated the subject litigation and ultimately succeeded before
the Himachal Pradesh High Court.
7. The case, therefore, turns upon the Will said to have been
executed by Leela Devi. If the said Will is found to be legal and valid, Dhani
Ram would succeed to Sohal Lal’s properties. If not, Shiv Singh would be
the successor to these properties under Section 15 of the Act of 1956.
8. Before the Trial Court, Shiv Singh examined himself as PW1, apart
from examining three other supporting witnesses. Dhani Ram examined
himself as DW1 in addition to examining Lok Nath Attri, an attesting witness
to the Will, as DW-2. Documentary evidence was also led. The contentious
Will was marked as Ex. DW-2/A. According to Dhani Ram, it was executed
by Leela Devi on 27.10.1987 at Kasauli. It was scribed by Ghanshyam Dutt
Sharma, a document writer, in the presence of witnesses, Lok Nath Attri
(DW2) and Chaman Lal (PW4). The Will was registered subsequently on
03.11.1987 by the Sub-Registrar, Kasauli. Dhani Ram claimed that Leela
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Devi was looked after by him and his wife during the last stages of her life.
This fact was also confirmed by PW2 and PW3. According to Dhani Ram,
being happy with their services, Leela Devi executed the Will in his favour.
9. The Trial Court rightly opined that mere registration of the Will
would not be sufficient to prove its validity, as its lawful execution
necessarily had to be proved in accordance with Section 68 of the Indian
Evidence Act, 1872 (for brevity, ‘the Evidence Act’), and Section 63 of the
Indian Succession Act, 1925 (for brevity, ‘the Succession Act’). Thereupon,
the Trial Court found that the evidence of the attesting witnesses to the Will,
viz., Lok Nath Attri (DW-2) and Chaman Lal (PW-4), was contradictory as
they did not speak to the same effect. In these circumstances, the Trial
Court held that valid execution of the Will was not proved.
10. On the contrary, in appeal, the Appellate Court held to the effect
that Leela Devi was of sound mind despite her advanced age of 70 years
and that it was natural for her to execute a Will in favour of her brother’s
son, Dhani Ram, as he and his family had cared for her well-being during
her twilight years. Further, the Appellate Court was inclined to overlook the
discrepancies in the evidence of the two attesting witnesses to the Will,
viz., Lok Nath Attri (DW-2) and Chaman Lal (PW-4). It is on this basis that
the Appellate Court reversed the findings of the Trial Court.
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11. However, the High Court, in exercise of second appellate
jurisdiction, took a different view. The High Court was of the opinion that as
Dhani Ram had taken a keen interest in the execution and registration of
the Will, as noted by both the Courts below, that would constitute a reason
in itself to entertain some suspicion and the mere registration of the Will
would not suffice to dispel the suspicious circumstances surrounding it. The
High Court further held that discrepancies in the evidence of the attesting
witnesses to the Will were of significance and the sum effect thereof was
that the very execution of the Will was not proved in terms of Section 68 of
the Evidence Act and Section 63 of the Succession Act. In consequence,
the High Court refused to act upon the said Will and disallowed Dhani
Ram’s claim based thereon.
12. Perusal of the disputed Will reflects the following features – It was
made on 27.10.1987, as recorded in the first paragraph and also certified
on the last page by Ghanshyam Dutt Sharma, the document writer, who
affixed his signature with the date 27.10.1987 thereunder. The Will is only
two pages in length. It was scribed in English and Leela Devi affixed her
signature as ‘Leela’ in Hindi on each page. She affixed her signature on the
first page above an ‘x’ mark. The attesting witnesses’ signatures are not
found on the first page. On the second page, the signatures of Leela Devi
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and the attesting witnesses appear at the end of the document but the
placement of the attesting witnesses’ signatures is not consistent, as one
signed above his name (Lok Nath Attri) while the other (Chaman Lal)
signed under his name. The attesting witnesses’ signatures also appear on
the back of the first page at the bottom. Lok Nath Attri’s signature is on the
left side corner while Chaman Lal’s is on the right side corner and Leela
Devi’s signature is in between. The Sub-Registrar, Kasauli, noted in Hindi,
above these signatures, that the contents of the document had been read
over and explained to the testatrix, which were heard, understood and
admitted by her; that the presenter of the document was identified by Lok
Nath Attri, Pradhan of the Gram Panchayat, Rouri; and that he, the
Sub-Registrar, personally knew Witness No. 2 and, therefore, the Will was
registered. The Sub-Registrar also noted that the document was presented
for registration by Leela Devi between 12 and 1 pm on 03.11.1987.
These being the contents of the disputed Will, it would be apposite
13.
to examine the depositions of the two attesting witnesses at this stage. Lok
Nath Attri deposed as DW-2 on 19.06.1993. He said that he was the
Pradhan of Rouri Panchayat. He stated that he knew Leela Devi, the widow
of Sohan Lal, and that, in his presence, she executed the Will
(Ex. DW-2/A). He again stated that she signed it in his presence and in the
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presence of Chaman Lal. He stated that he recognized the signature of
Leela Devi and identified her signature and his own signature in the
document. He stated that he did not remember the date on which this Will
was registered in Tehsil Kasauli and who had presented it. He went on to
state that Leela Devi went inside and he, along with Chaman Lal, together
went with her. According to him, the Tehsildar explained the Will to Leela
Devi and asked her as to why she had made it. Thereupon, Leela Devi
stated that she did not have any children and as Dhani Ram and his wife
had looked after her, she had executed the Will in their favour.
14. In his cross-examination, Lok Nath Attri stated that he worked in
Mohan Meakin at Kasauli. He said that Leela Devi often used to meet him
and asked him to prepare a Will but he had told her that it would be better if
she got the Will registered. He reiterated that Leela Devi often used to meet
him for some work or the other, but he did not know whether she was
seriously ill and had stayed in the hospital. He denied the suggestion that
by taking advantage of her weak mental condition, the Will was got
prepared. He then stated that his impression was that Leela Devi might
have been alive for 2 - 3 years after executing the Will. He also stated that
his meetings with Leela Devi went on in the same way as before even after
execution of the Will. He stated that he received a telephone call at his
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office that Leela Devi had come to Kasauli and she wanted a Will to be
made. This telephone call was received by him at 10.30 pm and he
immediately started from there. When he reached Kasauli, Leela Devi told
him that she had to get the Will made and Chaman Lal was already there.
For getting the Will made and registered, Lok Nath Attri said that it took
2 hours. He went on to state that he did not know how much time it took to
get it registered. He also could not say whether the Will was made before
lunch or after. According to him, he did not need to take leave from his
office for doing panchayat work and this facility was given to him by his
Company. He stated that he orally informed his manager whenever he had
to go for panchayat work. He admitted that under the Panchayat Act and
the Government’s instructions, he was not under any duty to attest Wills but
whenever any person from the panchayat wanted to execute a Will, then he
would participate in his official capacity. He denied the suggestion that
Chaman Lal had signed the document earlier and he used his influence to
benefit Dhani Ram in getting the Will made and getting it registered.
15. After completion of Lok Nath Attri’s deposition, Dhani Ram gave up
examination of Chaman Lal on the ground that it was unnecessary. This
was recorded by the Trial Court on 19.06.1993. Thereupon, Shiv Singh
examined Chaman Lal as PW-4 on 21.11.1994. Chaman Lal stated thus:
9
About 7 years previously, he had gone to the Government Hospital at
Kasauli to get medicine and Dhani Ram met him while he was taking it.
Dhani Ram told him that his signatures were required on some papers and
he affixed his signatures. He identified his signatures in Ex. DW-2/A. He
further stated that when he put his signatures, no other proceedings took
place. He said that when he signed the papers, he did not know any other
person there except Dhani Ram. He asserted that Leela Devi, Lok Nath
Attri and Ghanshyam Das did not sign in his presence. He also asserted
that what was written in Ex. DW-2/A was neither explained to him nor was it
explained to anybody else in his presence. He claimed that he affixed his
signatures in the document and left the place.
16. In his cross-examination, Chaman Lal stated that his signatures in
Ex. DW-2/A were made on the same day and at the same time. He stated
that his signatures on the document were made on 03.11.1987 in the
Tehsil. He, however, said that he did not go to the office of the Tehsildar but
signed the document and came back from outside the Tehsil. He stated that
he did not go inside the Tehsil. He denied that, after making Ex. DW-2/A
Will, Leela Devi appeared before the Tehsildar (Sub-Registrar) with him
and Lok Nath Attri. He further said that he did not know that Leela Devi
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signed Ex. DW-2/A in Lok Nath Attri’s and his presence after admitting it as
correct.
17. Bare perusal of the statements made by these two attesting
witnesses demonstrates that they are not on same page. Lok Nath Attri
(DW-2) claimed that Leela Devi signed the Will in his presence and in the
presence of Chaman Lal. However, and most significantly, he did not state
that Chaman Lal and he affixed their signatures in the document in the
presence of Leela Devi. On the other hand, Chaman Lal claimed that he
put his signatures at the bottom of the pages at the request of Dhani Ram
and that he never saw Leela Devi affix her signatures in the document.
18. In this regard, it would be apt to note the essential requirements in
law to prove a Will. Section 68 of the Evidence Act reads 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
least 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.”
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19. Section 63 of the Succession Act prescribes the mode and method
of proving a Will and, to the extent relevant, it reads as under: -
“ 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 testator a personal acknowledgment of his signature
or mark, or the signature of such other person; and each of
the witnesses shall sign the Will in the presence of the
testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular form
of attestation shall be necessary.”
20. It would also be necessary to take note of Section 71 of the
Evidence Act. This provision states as follows:
“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.”
21. It is well settled that mere registration would not sanctify a
document by attaching to it an irrebuttable presumption of genuineness.
The observations of this Court in Rani Purnima Debi and another
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1
vs. Kumar Khagendra Narayan Deb and another , which were referred
to by the Himachal Pradesh High Court, are of guidance in this regard and
are worthy of extraction. These observations read as under:
“There is no doubt that if a Will has been registered, that
is a circumstance which may, having regard to the
circumstances, prove its genuineness. But the mere fact
that a Will is registered will not by itself be sufficient to
dispel all suspicion regarding it where suspicion exists,
without submitting the evidence of registration to a close
examination. If the evidence as to registration on a close
examination reveals that the registration was made in
such a manner that it was brought home to the testator
that the document of which he was admitting execution
was a Will disposing of his property and thereafter he
admitted its execution and signed it in token thereof, the
registration will dispel the doubt as to the genuineness of
the Will. But if the evidence as to registration shows that
it was done in a perfunctory manner, that the officer
registering the Will did not read it over to the testator or
did not bring home to him that he was admitting the
execution of a Will or did not satisfy himself in some
other way (as, for example, by seeing the testator
reading the Will) that the testator knew that it was a Will
the execution of which he was admitting, the fact that the
Will was registered would not be of much value. It is not
unknown that registration may take place without the
executant really knowing what he was registering. Law
reports are full of cases in which registered Wills have
not been acted upon ……… Therefore, the mere fact of
registration may not by itself be enough to dispel all
suspicion that may attach to the execution and
1
AIR 1962 SC 567 = [1962] 3 SCR 195
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attestation of a Will; though the fact that there has been
registration would be an important circumstance in
favour of the Will being genuine if the evidence as to
registration establishes that the testator admitted the
execution of the Will after knowing that it was a Will the
execution of which he was admitting.”
We may also refer to Janki Narayan Bhoir vs. Narayan Namdeo
22.
2
Kadam , wherein this Court held that, to prove that a Will has been
executed, the requirements in clauses (a), (b) and (c) of Section 63 of the
Succession Act have to be complied with. It was pointed out that the most
important point 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 of and by the direction of the testator or must have received from
the testator a personal acknowledgment of his signature or mark or of the
signature or mark of such other person and each of the witnesses has to
sign the Will in the presence of the testator. It was further held that, a
person propounding a Will has got to prove that the Will was duly and
validly executed and that cannot be done by simply proving that the
signature on the Will was that of the testator, as the propounder must also
prove that the attestations were made properly, as required by
Section 63(c) of the Succession Act. These observations were affirmed and
2
(2003) 2 SCC 91
14
quoted with approval by this Court in its later judgment in Lalitaben
3
Jayantilal Popat vs. Pragnaben Jamnadas Kataria and others .
23. Viewed in the context of the legal requirements and the law laid
down by this Court, we find that neither of the attesting witnesses in this
case fulfilled the mandate of Section 63(c) of the Act of 1925 to prove the
Will. Though Lok Nath Attri claimed that Leela Devi affixed her signatures in
the Will in their presence, which was vehemently denied by the other
attesting witness, Chaman Lal, the fact remains that Lok Nath Attri also did
not state that he affixed his signatures in the Will in the presence of Leela
Devi. This is one of the compulsory requisites of Section 63(c) of the
Succession Act.
24. We may also note that Lok Nath Attri claimed that he had good
relations with Leela Devi and that she would meet him regularly for some
work or the other. Having stated so, he surprisingly said that Leela Devi
may have lived for 2 - 3 years after the execution of the Will. However,
Leela Devi allegedly executed the Will on 27.10.1987, got it registered on
03.11.1987 and expired on 10.12.1987. Therefore, she lived for barely a
month and a half after the execution of the Will. The fact that Lok Nath Attri
did not recall this crucial detail casts any amount of doubt on his credibility.
3
(2008) 15 SCC 365
15
25. It is difficult to believe that Chaman Lal would have blindly affixed
his signatures in a document upon the mere asking of Dhani Ram without
knowing its consequences. However, even if it is accepted that Chaman Lal
is not being honest about his role in the execution of the Will (Ex. DW-2/A),
the fact still remains that neither attesting witness spoke of the execution of
the said Will in terms of the prescriptions in Section 63(c) of the Succession
Act. Further, when the Will itself demonstrates that it was made on
27.10.1987 but was registered on 03.11.1987, Lok Nath Attri’s statement
that for getting the Will made and registered it took 2 hours is equally
astonishing. This statement leads to the inference that the making of the
Will and its registration took place on the same day. Notably, he could not
even recall whether it was done before lunch or after. No doubt, in
4
Shyamal Ghosh vs. State of West Bengal , this Court held that where
evidence is given after a lapse of several years in the context of attestation
of a Will, contradictions of minor nature should not be taken to be
suspicious circumstances, as memory would fade after the lapse of a long
period of time. However, the evidence of Lok Nath Attri does not inspire
confidence on grounds more than one. Therefore, this ratio does not suffice
to cure all the defects in his deposition, which render him totally
uncreditworthy. Further, as already noted, he did not state that he signed
4
(2012) 7 SCC 646
16
the Will in the presence of Leela Devi, which is fatal to proving the
execution of the Will in terms of Section 63(c) of the Succession Act.
26. Section 68 of the Evidence Act requires at least one attesting
witness to the Will to prove its execution in terms of Section 63 of the
Succession Act, but it is clear that neither Lok Nath Attri nor Chaman Lal
passed muster in satisfying this requirement. In consequence, Section 71
of the Evidence Act had a role to play in the matter, as one attesting
witness, Chaman Lal, denied the very execution of the document in his
presence while the other attesting witness, Lok Nath Attri, did not establish
its execution in terms of the legal mandate. It was, therefore, incumbent
upon Dhani Ram to lead other evidence to prove the execution of the Will
by Leela Devi. However, neither Ghanshyam Dutt Sharma, the document
writer who scribed the Will, nor anyone from the Registrar’s Office at
Kasauli were examined to prove its execution.
On the above analysis, it is manifest that compliance with the
27.
essential legal requirements, in terms of Sections 68 and 71 of the
Evidence Act and Section 63 of the Succession Act, was not established in
order to prove the execution of Ex. DW-2/A Will. As Dhani Ram failed to
prove the execution of the Will in terms of the mandatory legal
requirements, Shiv Singh would be entitled to succeed to the properties by
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way of intestate succession under Section 15 of the Act of 1956, as rightly
held by the Himachal Pradesh High Court.
28. The appeal is, therefore, bereft of merit and is accordingly
dismissed.
Interim Order dated 30.07.2009 shall stand vacated.
Parties shall bear their own costs.
………………………..,J
(C.T. RAVIKUMAR)
………………………..,J
(SANJAY KUMAR)
October 6, 2023;
New Delhi.
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