Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 941 OF 2009
[Arising out of SLP (Civil) No. 6118 of 2007]
Rur Singh (D) Th. LRS. & Ors. …Appellants
Versus
Bachan Kaur …Respondent
J U D G M E N T
S.B. SINHA, J :
1. Leave granted.
2. This appeal is directed against a judgment and order dated 11.07.2006
passed by a learned Single Judge of the Punjab and Haryana High Court
whereby and whereunder a judgment and order dated 18.11.1998 passed by
the Additional District Judge, Mansa in Civil Appeal No. 59 of 1996,
dismissing the appeal preferred by the respondent herein from a judgment
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and decree dated 12.02.1996 passed by the Civil Judge (Junior Division),
Mansa in Civil Suit No. 341 of 1983.
3. The basic fact of the matter is not in dispute.
One Kehar Singh was the owner of the property. The parties hereto
are his children. He is said to have executed a Will on or about 14.05.1969
in terms whereof he bequeathed all the agricultural properties in favour of
his sons. The said Will is said to have been scribed by the Sarpanch of the
village and attested by ten witnesses. He expired on 5.10.1969. Mutation in
respect of the properties situate in the village Lohgarh in favour of his sons
was allowed by an order dated 4.02.1970. Allegedly, order of the mutation
in respect of the properties situated in the village Jhunir was passed in the
year 1979.
4. Respondent herein filed a suit in the Court of Civil Judge (Junior
Division), Mansa praying inter alia for a decree of possession contending
that the said Kehar Singh died intestate. Appellants, on the other hand,
claimed their right, title and interest in the suit property by reason of the
said Will executed by Kehar Singh.
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The learned Trial Judge in view of the rival contentions of the parties
inter alia framed the following issues:
“1-C. Whether the suit property developed (sic for
devolved upon) against heirs of Kehar Singh as
mentioned in para no. 4 of amended written
statement?”
5. The learned Trial Judge, keeping in view the order of mutation in
respect of the properties in favour of the appellants herein which took place
in the year 1970, the validity whereof was not challenged, and on the basis
of the other materials brought on record, held the said Will dated
14.05.1969 to be genuine and, thus, dismissed the said suit. An appeal
preferred thereagainst by the respondent was also dismissed.
6. Respondent herein preferred a second appeal thereagainst. A learned
Single Judge of the High Court formulated the following substantial
question of law for consideration:
“Whether in the facts and circumstances of the
case, the Will allegedly executed by Kehar Singh
was free from all suspicious circumstances and
whether the same conformed to the provisions of
Section 63 of the Act?”
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7. The concurrent findings of the Trial Court as also the first Appellate
Court were reversed by the learned Single Judge of the High Court, stating:
(i) As mutation of the properties had been ordered on 28.08.1979 in
presence of the parties whereagainst no challenge was thrown, had
the Will been in existence in 1969, the same should have been
produced in the mutation proceedings.
(ii) The Will is surrounded by suspicious circumstances as all the
beneficiaries had a role to play in execution thereof.
(iii) The Will has been scribed by Gurbachan Singh, Sarpanch in Urdu
although he had chosen to sign in English at more than one place.
(iv) The Will although was stated to be recorded in the panchayat
register but the same was not produced.
As regards the question as to whether the Will has been proved in
terms of Section 63 of the Indian Succession Act, the High Court held:
“Section 63 of the Act lays down the manner in
which a Will is to be executed. The Will in
question which is Ex. D-1 dated 14.5.1969 is an
unregistered Will. A perusal of the same shows
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that there is complete violation of Section 63 (c) of
the Act. Kehar Singh, who was the testator, died
on 5.10.1969. Cumulatively taken together, all
these factors cast a dark shadow on the execution
of the Will.”
8. Mr. Narender Yadav, learned counsel appearing on behalf of the
appellants, would submit that the High Court committed a serious error in
interfering with the concurrent findings of fact in exercise of its jurisdiction
under Section 100 of the Code of Civil Procedure.
The learned counsel would draw our attention to the fact that the
order of mutation was passed in the year 1970, as has been found by the
learned Trial Judge, and thus, the High Court committed a serious error in
opining that the order of mutation was passed in the year 1979.
The learned counsel would further submit that out of ten attesting
witnesses, only one of them being the beneficiary and nine others being
independent witnesses and the Will having been proved by three
independent witnesses, the impugned judgment cannot be sustained.
Furthermore, as the testator was living jointly with the legatees, their
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presence at the time of execution of the Will was natural and not
uncommon.
The learned counsel would further submit that the witnesses having
proved due execution of the Will both in terms of Section 63(c) of the
Indian Succession Act and Section 68 of the Indian Evidence Act, the High
Court must have committed a serious error in opining contra.
9. Mr. Vishal Mahajan, learned counsel appearing on behalf of the
respondent, on the other hand, would contend:
(i) Kehar Singh being 80 years old and having executed the Will four
months prior to his death, it must be held to be surrounded by
suspicious circumstances.
(ii) Had the Will been genuine, the same would have been produced
before the Revenue Court in the mutation proceeding.
(iii) The village panchayat record wherein the factum of the execution
of the Will has been registered having not been produced, the Will
cannot be said to be genuine.
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10. The High Court while exercising its jurisdiction under Section 100 of
the Code of Civil Procedure exercises a limited jurisdiction. It may interfere
with a finding of fact arrived at by the Trial Court and/ or the first Appellate
Court only in the event, a substantial question of law arises for its
consideration.
11. The High Court framed only one substantial question of law, viz.,
whether the Will had been duly proved and/ or was otherwise genuine.
It is essentially a question of fact. The learned Trial Judge as also the
first Appellate Court in opining that the Will was genuine and free from
suspicious circumstances inter alia took into consideration the existing
materials on record, viz., the parties ordinarily do not want their agricultural
land to go out from the family and in that view of the matter if Kehar Singh
had bequeathed his agricultural land only in favour of his sons and
excluding the daughters from inheritance, no exception thereto could be
taken.
12. The learned Trial Judge as also the first Appellate Court also took
into consideration the fact that the villagers in great numbers were present at
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the time of execution of the Will and in fact Sarpanch himself scribed the
same. Furthermore, the fact that at least in respect of the properties situate
in village Lohgarh the order of mutation was passed in favour of the sons in
the year 1970 and the same was not challenged, also was taken into
consideration that the Will must be held to be genuine.
13. As regards proof of Will, as statutorily required in terms of Section
63 (c) of the Indian Succession Act, it was categorically held by the learned
first Appellate Court:
“…The execution of the Will Ex. D-1, dated
14.5.1969, was proved by Rur Singh, DW-1,
Kapoor Singh, DW-2, and Hema Ram, DW-3,
attesting witnesses thereof. Their evidence goes to
prove that the Will was scribed by Gurbachan
Singh, Sarpanch, at the instance of Kehar Singh.
After scribing the Will, the contents thereof were
read over and explained to Kehar Singh, who
admitted the same to be correct, and thumb
marked the same, in the presence of Rur Singh,
DW-1 & Kapoor Singh DW-2, Hem Raj DW-3,
Prem Chand, Gurbachan Singh and Piara Singh,
attesting witnesses. It is further proved from the
evidence of Rur Singh, DW-1, Kapoor Singh,
DW-2 and Hema Ram (DW-3) that Kehar Singh
thumb marked the Will, in token of its correctness,
in their presence and in the presence of other
witnesses, whereas they signed and thumb marked
the same, in the presence of the testator. It is also
proved from the evidence of these witnesses, that
Kehar Singh, was in sound disposing mind, at the
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time of execution of the Will dated 14.5.1969 Ex.
D-1. In fact, the perusal of the Will, Ex. D-1,
reveals that it was executed by Kehar Singh, in the
presence of the entire Panchayat of the village. No
doubt, Rur Singh, DW-1, is the son of Kehar
Singh, and is one of the beneficiaries, residing
with him, in the same house and serving him
throughout his lifetime. That, however, does not
make his evidence unbelievable. Since, he was
residing, in the same house, with Kehar Singh, and
was serving him, his presence at the time of the
execution of the Will was natural and probable,
and that was why he signed the same, as an
attesting witness…”
As Bachan Kaur, respondent herein was comfortably married, if the
testator thought it proper to exclude her from his agricultural property
bequeathing the same in favour of his sons, as has been stated in the Will,
no exception thereto could be taken.
14. The High Court essentially entered into the arena of appreciation of
evidence. It interfered with the concurrent findings of fact arrived at by the
courts below.
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Execution of a Will is required to be proved in terms of the provisions
of Section 63(c) of the Indian Succession Act and Section 68 of the Indian
Evidence Act.
The statutory requirements to prove a Will in terms of the
aforementioned provisions have been laid down in a large number of
decisions. We may notice a few of them.
In Janki Narayan Bhoir v. Narayan Namdeo Kadam, [(2003) 2 SCC
91], while dealing with the question elaborately, this Court held:
“8. To say will has been duly executed the
requirement mentioned in Clauses (a), (b) and (c)
of Section 63 of the Succession Act are to be
complied with i.e., (a) the testator has to sign or
affix his mark to the will, or it has got to be signed
by some other person in his presence and by his
direction; (b) that the signature or mark of the
testator, or the signature of the person signing at
his direction, has to appear at a place form which
it could appear that by that mark or signature the
document is intended to have effect as a will; (c)
the most important point with which we are
presently concerned in this appeal, 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 and by the direction of the testator, or
must have received from the testator a personal
acknowledgement of signature or mark, or of the
signature of such other person, and each of the
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witnesses has to sign the Will in the presence of
the testator.”
As regards compliance of the provision of Section 68 of the Evidence
Act, it was opined :-
“In a way, Section 68 gives a concession to those
who want to prove and establish a will in a Court
of law by examining at least one attesting witness
even though will has to be attested at least by two
witnesses mandatorily under Section 63 of the
Succession Act. But what is significant and to be
noted is that that one attesting witness examined
should be in a position to prove the execution of a
will. to put in other words, if one attesting witness
can prove execution of the will in terms of Clause
(c) of Section 63, viz., attestation by two attesting
witnesses in the manner contemplated therein, the
examination of other attesting witness can be
dispensed with. The one attesting witness
examined, in his evidence has to satisfy the
attestation of a will by him and the other attesting
witness in order to prove there was due execution
of the will. If the attesting witness examined
besides his attestation does not, in his evidence,
satisfy the requirements of attention of the will by
other witness also it falls short of attestation of
will at least by two witnesses for the simple reason
that the execution of the will does not merely
mean the signing of it by the testator but it means
fulfilling and proof of all the formalities required
under Section 63 of the Succession Act. Where
one attesting witness examined to prove the will
under Section 68 of the Evidence Act fails to
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prove the due execution of the will then the other
available attesting witness has to be called to
supplement his evidence to make it complete in all
respects. Where one attesting witness is examined
and he fails to prove the attestation of the will by
the other witness there will be deficiency in
meeting the mandatory requirements of Section 68
of the Evidence Act.”
(Emphasis supplied)
Following the said decision, as also the other decisions in Benga
Behera & Anr. v. Braja Kishore Nanda & Ors. [2007 (7) SCALE 228], this
Court held:
“…Execution of a Will must conform to the
requirement of Section 63 of the Succession Act,
in terms whereof a Will must be attested by two or
more witnesses. Execution of a Will, however, can
only be proved in terms of Section 68 of the Indian
Evidence Act. In terms of said provision, at least
one attesting witness has to be examined to prove
execution of a Will.”
Yet again, recently in Anil Kak v. Kumari Sharada Raje & Ors.
[(2008) 6 SCALE 597], it was opined :
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“40. Whereas execution of any other document
can be proved by proving the writings of the
document or the contents of it as also the
execution thereof, in the event there exists
suspicious circumstances the party seeking to
obtain probate and/ or letters of administration
with a copy of the Will annexed must also adduce
evidence to the satisfaction of the court before it
can be accepted as genuine.
41. As an order granting probate is a judgment in
rem, the court must also satisfy its conscience
before it passes an order.
It may be true that deprivation of a due share by
the natural heir by itself may not be held to be a
suspicious circumstance but it is one of the factors
which is taken into consideration by the courts
before granting probate of a Will.
Unlike other documents, even animus attestandi is
a necessary ingredient for proving the attestation.”
[See also Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria &
Ors. 2009 (1) SCALE 328].
15. The Will was scribed in the house of the testator. From the
deposition of the witnesses, the learned Trial Judge as also the first
Appellate Court came to the conclusion that he was in a sound disposing
mind. The Will was scribed by the Sarpanch. As many as ten witnesses
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attested the Will; nine of them being independent witnesses. Execution of
the Will as also attestation thereof by the witnesses was concluded in one
go. The testator and all the witnesses were present throughout the said
transaction. It is in the aforementioned situation, the learned first Appellate
Court had arrived at a categorical finding of fact that the statutory
requirements had been complied with as more than one witness had attested
the execution of the Will not only in presence of the testator but also in
presence of each other.
16. The High Court unfortunately even did not choose to assign any
reason in support of its conclusion that the statutory requirements contained
in Section 63(c) of the Indian Succession Act had not been complied with.
The oral evidence adduced on behalf of the parties had not been discussed
far less analysed. How and in what manner the statutory requirements had
not been complied with was not stated.
17. The High Court omitted to notice that at least in respect of the
properties situate in one village the order of mutation was passed in the year
1970, i.e., immediately after the execution of the Will.
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The High Court furthermore failed to take into consideration that at
least in regard to the said order of mutation, the respondent did not carry the
matter to the appellate court or question the validity thereof by filing a suit.
18. The suit was filed in the year 1983. It was also not the case of the
respondent that she had been getting share of the yields from the said
agricultural properties.
Only because one of the beneficiaries attested the Will, the same
would not mean that he had taken active part in it. In any event, the learned
Trial Judge as also the first Appellate Court found sufficient explanation
therefor holding that as the Will was executed in testator’s house and he had
been living jointly with his sons, their presence in the house was natural.
19. We have noticed hereinbefore that the Will was attested by nine
independent persons. Three of them in fact had been examined. The High
Court while holding that a doubt is cast on its validity by reason of active
participation of one of the sons, failed to notice that nine other independent
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witnesses attested the Will. We, therefore, fail to attach much importance to
the fact that although Gurbachan Singh, Sarpanch scribed the Will in Urdu,
he at more than one place signed in English. In a village, a person may be
more proficient in the vernacular language than English although he may be
able to sign his name in English.
20. If the Will was otherwise proved to be genuine and the statutory
requirements therefor were satisfied, in our opinion, only because the
panchayat register was not produced, the same by itself would not lead to
the conclusion that the Will would be held to have not been executed,
particularly when two courts competent to arrive at findings of fact held it
otherwise.
21. For the reasons aforementioned, the impugned judgment cannot be
sustained and is set aside accordingly. The appeal is allowed. However, in
the facts and circumstances of the case, there shall be no order as to costs.
………………………….J.
[S.B. Sinha]
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..…………………………J.
[Dr. Mukundakam Sharma]
New Delhi;
February 12, 2009