In a second appeal, the High Court dismissed the appeal where the Lower Courts held that a Will was not duly proved. The Court affirmed that a Will must be attested by two witnesses but proved by at least one attesting witness; since the remaining witness was unexamined, the finding stood. There was no substantial question of law.
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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RSA No. 4814 of 2010 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 4814 of 2010 (O&M) Date of decision:31.01.2012
Pardeep Singh and others
......Appellants
Vs.
Sukhbir Singh and another
...Respondents
CORAM:- HON'BLE MR. JUSTICE TEJINDER SINGH DHINDSA.
Present: Mr. S.N. Pillania, Advocate for the appellants.
Tejinder Singh Dhindsa, J.
The defendants/appellants are in second appeal before this Court. Briefly noticed, the plaintiff/respondent filed a suit for declaration to the effect that he is owner in possession of ½ share of 159 kanals, 18 marlas of land and defendant No.4-Randhir Singh is also the owner in possession of the remaining ½ share. It was pleaded that the suit property has been inherited by the plaintiff as also defendant No.4 being brothers upon the death of their mother namely Smt. Hans Kaur. A declaration was sought that the alleged Will stated to have been executed by Smt. Hans Kaur on 19.04.1983 and subsequent mutation No.247 dated 04.08.1984 in the name of defendants No.1 to 3 was null and void and not binding on the rights of the plaintiff. It was pleaded that such Will is a forged and fabricated document and accordingly, the plaintiff also prayed for the consequential relief of permanent injunction restraining the defendant from
RSA No. 4814 of 2010 (O&M) -2-
interfering in his peaceful possession of the suit property as also for restraining the defendants from alienating the suit property further on the basis of such wrong revenue entries based upon the forged and fabricated Will dated 19.04.1983. It was also pleaded that the defendants No.1 to 3 are the sons of defendant No.4 whereas, plaintiff and defendant No.4 are real brothers and their mother Smt. Hans Kaur had become owner in possession of 286 kanals, 18 marlas of land on account of judgment and decree dated 07.05.1971 passed by the competent civil Court and consequently, mutation No.72 had been entered into by the revenue officer on 20.03.1972. It was pleaded that thereafter Smt. Hans Kaur sold away the land through different sale deeds and ultimately, she remained joint owner in possession of the suit land measuring 159 kanals, 18 marlas only. Plaintiff pleaded that he had remained in service from 1972-1985 and as such, the agricultural land was being looked after by defendant No.4 and their mother Smt. Hans Kaur expired in February, 1984 and defendant No.4-Randhir Singh at that point of time had informed the plaintiff that the mutation in respect of the suit land had been entered and sanctioned in equal shares between defendant No.4 and plaintiff. Later, in July, 2000, defendant Nos.1 to 3 had started to assert their title over the suit land and upon enquiries having been made, the plaintiff became aware about the fabricated Will dated 19.04.1983 set up by defendant Nos. 1 to 3 and upon the basis of such false and fabricated Will, mutation No.247 dated 04.08.1984 had been sanctioned and the same was null and void, based on fraud and collusion.
Upon notice, defendant Nos.1 and 3 filed a joint written statement taking of a plea that Smt. Hans Kaur had executed the Will dated 19.04.1983 voluntarily and denied that such Will was a result of any
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RSA No. 4814 of 2010 (O&M)
fraud or collusion. The fact of the plaintiff having been in service during the period 1972-85 was admitted. Defendant No.2 also filed a written statement stating that the plaintiff was fully aware about the execution of the Will in favour of defendant Nos.1 to 3 as also the sanctioning of mutation No.247 dated 04.08.1984 on the basis thereof. It was further stated that at the time of execution of the Will dated 18.04.1983, Smt. Hans Kaur was in a sound disposing state of mind and that she had got the Will herself registered before the Sub-Registrar on 19.04.1983 and defendant No.4 was proceeded against ex-parte.
Upon the pleadings of the parties, the following issues were framed by the trial Court:
The trial Court decreed the suit for declaration in favour of the plaintiff and the Will dated 19.04.1983 as also mutation No.247 dated 04.08.1984 were declared null and void. The defendants/appellants
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RSA No. 4814 of 2010 (O&M)
aggrieved by the same, preferred the civil appeal and vide impugned judgment dated 21.05.2010 passed by Additional District Judge Jind, the findings of the trial Court have been affirmed and the appeal has been dismissed.
I have heard Mr. S.N. Pillania, Advocate for the appellant at length.
Execution of a Will is required to be proved in terms of provisions of Section 63 (c) of the Indian Succession Act and Section 68 of the Indian Evidence Act. To hold that a Will has been duly executed, the requirements mentioned in Clauses (a)(b)(c) of Section 63 of the Succession Act are to be complied with:
Clause (a): the testator has to sign and affix his mark to the Will, or it has got to be signed by some other person in his presence and by his directions;
Clause (b): that the signature or mark of the testator, or the signature of the person signing at his directions, has to appear at a place from which it could appear that by the mark or signature the document is intended to have the effect on a Will;
Clause (c): the most important point 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 direction of the testator, or must have received from the testator a personal acknowledgment 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 .
As regards compliance of the provision of Section 68 of the
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Indian Evidence Act is concerned at least one attesting witness has to be examined to prove the execution of a Will. In the facts of the present case, it has been noticed by both the Courts below that the Will in question Exhibit P-1 dated 18.04.1983 and registered on 19.04.1983, Veg Raj and Ran Singh are the attesting witnesses. One of the attesting witness namely Veg RajLambedar had admittedly expired on 20.04.1999 but the other attesting witness namely Ran Singh was not examined, as such a concurrent finding has been recorded by both the Courts below that the Will in question dated 18.04.1983 has not been proved in accordance with law.
While dealing with the question of execution of a Will and proving the same, the Hon'ble Apex Court in the matter of Benga Behera &
another Versus Braja Kishore Nanda & other 2007 (3) RCR (Civil) 240 ,
observed as follows:
“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.”
That apart, the Courts below have even taken notice of certain suspicious stands surrounding the Will. In the alleged Will Exhibit P-1, no reasons had been given to exclude the plaintiff/appellant, who was also son of Smt. Hans Kaur. No reasons/explanations had also come forth as regards the fact that the Will in original had not been brought on record.
The factum of proving of a Will or otherwise is essentially a question of fact, the High Court would not enter into the arena of appreciation of evidence so as to interfere with the concurrent finding of fact arrived at by the courts below. Learned counsel for the appellant has
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RSA No. 4814 of 2010 (O&M)
not been able to show as to how the findings of the Courts below are based on a misreading or misappreciation of evidence. I do not find any perversity in the findings of the Courts below.
For the reasons recorded above, the present second appeal is dismissed as it does not raise any question of law much less substantial question of law.
Appeal dismissed.
January 31, 2012 harjeet
(TEJINDER SINGH DHINDSA) JUDGE
Note: Whether to be reported? Yes/No
3 issues framed by the court
Whether the execution of the Will in question was duly proved in accordance with Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act.
Whether the Lower Courts committed perversity in holding that the Will was not proved due to the absence of an attesting witness on record.
Whether the second appeal raises any substantial question of law requiring interference.
Colour shows how this judgement treated each authority
Benga Behera & another Versus Braja Kishore Nanda & other 2007 (3) RCR (Civil) 240Referred¶41
2 provisions across 2 enactments
Pardeep Singh and others
Sukhbir Singh
Randhir Singh
Tejinder Singh Dhindsa
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
