This appeal challenged the dismissal of a petition for Letters of Administration. The court held the Will was invalid due to lack of proper proof of attestation under Section 63. Additional evidence to cure this defect was rejected under Order 41 Rule 27 CPC.
The appeal and the applications for additional evidence were dismissed with no order as to costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 25.01.2019 Judgment pronounced on: 16 .04.2019
+ FAO 520/2016
SUJATA KOHLI ..... Appellant Through: Mr. Anil Goel and Mr. Rizwan Aftab, Advocates.
Versus
THE STATE & ORS. ..... Respondent Through: Mr. Rajiv Duggal & Mr. Bharat Kumar, Advocates with R-2 in person
CORAM: HON'BLE MR. JUSTICE VINOD GOEL
VINOD GOEL, J:
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concerned Sub Registrar. By virtue of this Will, the deceased bequeathed all his movable and immovable properties amongst his legal heirs. The testator had died on 16.09.2009. The appellant is one of the beneficiaries under this Will.
“ 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) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(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 of 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.”
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“ 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
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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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attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 of the „IEA‟ gives a concession to those who want to prove and establish the authenticity of a Will in a Court of law by examining at least one attesting witness even though a Will has to be attested at least by two witnesses mandatorily under Section 63 of the „ISA‟. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the due 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 is not required.
“8. To say a will has been duly executed the requirements 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 from 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
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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 witnesses has to sign the will in the presence of the testator.”
(1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will;
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of the attesting witnesses. 3. I say that the Will is genuine and be acted upon.” In his cross-examination he stated “xxxxxxx At the time of execution of Will, apart from me and testator, there was one advocate and one or two other persons, whom I did not know. After signing by me, said Will was signed by that advocate and none else.”
CM NO. 41317/2016 (for additional evidence)
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27. Production of additional evidence in Appellate Court .—
(1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if— ( a ) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
( aa ) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
( b ) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced or witness to be examined. (2) Whenever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission.”
State of Kerala , (2010) 13 SCC 487 summarised the principles embodied under Order 41 Rule 27 CPC in the following terms:
“16. If any petition is filed under Order 41 Rule 27 in an appeal, it is incumbent on the part of the appellate court to consider at the time of hearing the appeal on merits so as to find out whether the documents or evidence sought to be adduced have any relevance/bearing on the issues involved. It is trite to observe that under Order 41 Rule 27, additional evidence could be adduced in one of the three situations, namely, (a) whether the trial court has illegally refused the evidence although it ought to have
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been permitted; (b) whether the evidence sought to be adduced by the party was not available to it despite the exercise of due diligence; (c) whether additional evidence was necessary in order to enable the appellate court to pronounce the judgment or any other substantial cause of similar nature.
17. It is equally well settled that additional evidence cannot be permitted to be adduced so as to fill in the lacunae or to patch up the weak points in the case. ”
( Emphasis supplied )
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testimony. The witness cannot be allowed to make out a new story by twisting the facts. Any attempt by the counsel for the propounder of the Will to re-draft the Affidavit of the witness is not only against legal ethics but is also an interference in the administration of justice. A counsel, while drafting an affidavit should act as a responsible officer of the court and be fair while recording the facts as narrated to him by the deponent failing which the affidavit should not be read in evidence.
(VINOD GOEL) JUDGE
APRIL 16, 2019
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3 issues framed by the court
Whether the Will dated 21.03.2002 was proved in accordance with the mandatory requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
Whether an attesting witness's testimony must explicitly confirm that the testator signed in the witness's presence to satisfy Section 63.
Whether additional evidence can be admitted under Order 41 Rule 27 CPC to correct factual deficiencies in a witness's affidavit.
Colour shows how this judgement treated each authority
Janki Narayan Bhoir v. Narayan Namdeo KadamRelied on¶35
(2003) 2 SCC 91 · Who else cites this
Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar SinghRelied on¶40
(2009) 4 SCC 780 · Who else cites this
Malayalam Plantations Ltd. v. State of KeralaRelied on¶58
(2010) 13 SCC 487 · Who else cites this
3 provisions across 3 enactments
Sujata Kohli
The State
Vinod Goel
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
