Oral Evidence Inadmissible to Prove Contents of Undisclosed Testamentary Disposition of Immovable Property

The suit property was originally allotted to Harish Chander Bhatt in 1983, who sold it to Ascharaj Lal via an Agreement to Sell and GPA.

Ascharaj Lal subsequently sold the property to his son, Harish Talwar (Defendant No. 1), in 1985.

Harish Talwar eventually sold the property to the Plaintiff, Anil Gupta, on 18.10.2006 for ₹2,00,000.

However, Harish’s wife, Kiran Talwar (Defendant No. 2), refused to vacate, claiming ownership through an alleged handwritten Will dated 15.08.1986 executed by Ascharaj Lal in her favor.

She alleged the original Will was snatched by her husband.

The Trial Court and First Appellate Court both decreed the suit for possession in favor of the Plaintiff, finding that Kiran Talwar failed to prove the Will's existence or contents.

Defendant No. 2 challenged these findings in a Second Appeal.

1. Whether the disposition of immovable property can be proved without production of the documents of the said disposition and whether the provision of Section 91 of the Indian Evidence Act is a bar?

2. Whether the contents of the documents of disposition of the immovable property may be proved by oral evidence?

Section 91 of the Indian Evidence Act, 1872, which mandates that when the terms of a contract or disposition of property are reduced to writing, no evidence shall be given in proof of such terms except the document itself or secondary evidence where admissible.

Section 92 excludes oral evidence that contradicts or varies the terms of such written documents.

Precedent in Roop Kumar v. Mohan Thedani established that documentary evidence is superior to oral evidence.

Precedent in Rakesh Mohindra v. Anita Beri clarified that a factual foundation (proof of existence and valid reason for non-production) must be laid before secondary evidence under Section 65 can be admitted.

The Court noted that Defendant No. 2 admitted that the property had already been transferred to Harish Talwar in 1985 before the alleged Will was even executed in 1986.

Under Section 91, the contents of a disposition of immovable property cannot be proved by oral testimony.

To lead secondary evidence under Section 65, the party must first prove the document’s existence; however, Defendant No. 2 failed to produce even a photocopy of the Will.

Her explanation of the Will being "snatched" was deemed an afterthought, as the police complaint was filed only after the litigation commenced.

Furthermore, the alleged attesting witnesses (her sisters) denied witnessing any such Will during cross-examination.

Consequently, without the document or a credible foundation for secondary evidence, the oral claims of ownership were legally inadmissible to prove the transfer of title.

The Court held that the Appellants failed to prove the existence, execution, or contents of the alleged Will.

The dismissal of Kiran Talwar’s own suit for declaration (Suit No. 261/2011) had attained finality and operated as res judicata.

The Court dismissed the Regular Second Appeal and upheld the judgment and decree of possession and mesne profits in favor of the Plaintiff.