BHARPUR SINGH & ORS. versus SHAMSHER SINGH

Citation: [2008] 17 S.C.R. 517 · Decided: 12-12-2008 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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[2008] 17 S.C.R. 517 
BHARPUR SINGH & ORS. 
v. 
SHAMSHER SINGH 
(Civil Appeal No. 7250 of 2008) 
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DECEMBER 12, 2008 
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[S.B. SINHA A~D CYRIAC JOSEPH, JJ.] 
A 
B 
Indian Succession Act, 1925 - ss. 63 and 61 - Will -
Execution of -Execution of Will by old lady in favour of C 
'Agnate' separated by five degrees, disinheriting her daughter 
- Beneficiary of Will mortgagee and tenant of testatrix -
Allegation of suspicious circumstances by legal heirs of 
testatrix - Trial court holding that beneficiary failed to prove 
ex'ecution of legal and valid Will - However, appellate court 0 
as also High Court holding that execution of Will proved - On 
appeal, held: Court should adopt rational approach and 
satisfy ''its conscience as existence of suspicious 
circumstances play an important role - Appellate court as also 
High Court did not consider these· aspects...;. Even though Will 
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was registered, statutory requirements of proving Will need to 
be' complied' with - 'Thus, order of High Court as also 
appellate court set aside - Matter to be-considered afresh. 
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RD, aged 75, years, executed a will in 1962 a.nd 
bequeathed her property in favour of the respondent. She 
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expired in 1.990 and was survived by two daughters. 
Appellants are legal heirs and representatives of RD. In 
1993, the respo.ndent ·filed suit against appellants for 
setting aside the order of mutation passed in favo·ur of 
appellants. Respondent contended that he looked after 
RD during 'the life _time; that RD expired in his daughter's · G 
house; that RD had disinherited her daughters; and that 
he was mortgagee and tenant in respect of some of the 
properties of RD. Appellants contended that RD did not 
execute any will in view of services· rendered by 
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517 
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518 
SUPREME COURT REPORTS 
(2008] 17 S.C.R. e 
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A ,respondent; that RD lost her balance of mind 60 years 
ago when her husband died and had not been 
possessing sound mental f'!culties; and that RD's 
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daughters were looking after her. Trial court held that the 
respondent failed to prove that RD executed a legal and 
B valid will in his favour out of sound disposing mind. It 
granted a decree for declaration to the effect that the 
respondent was owner-in-possession of the land and 
restrained the appellants from alienating that part of the 
land. However, it rejected the other reliefs. Both the 
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c parties filed appeals. Appellate Court as also High Court 
held that the execution of the will was proved and was 
not surrounded by suspicious circumstances. Hence the 
present appeal. 
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Allowing the appeal, the Court 
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HELD:1.1. A will must be proved having regard to the 
provisions contained in clause (c) of Section 63 of the 
Indian Succession Act, 1925 and Section 68 of the 
Evidence Act, 1872, in terms whereof the propounder of 
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a will must prove its execution by examining one or more 
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E attesting witnesses. Where, however, the validity of the 
Will is challenged on the ground of fraud, coercion or 
undue influence, the burden of proof would be on the 
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caveator. In a case where the Will is surrounded by 
suspicious circumstances, it would not be treated as the 
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last testamentary disposition of the testator. [Para 11] 
[527-G, H; 528-A] 
1.2. The provisions of Section 90 of the Evidence Act 
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keeping in view the nature of proof required for proving 
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a Will have no application. A Will must be proved in terms 
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of the provisions of Section 63(c) of the Indian 
Succession Act, 1925 and Section 68 of the Evidence Act, 
1872. In the event the provisions thereof cannot be 
complied with, the other provisions contained therein, 
namely, Sections 69 and 70 of the Evidence Act providing 
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for exceptions in relation thereto would be attracted. 
H Compliance with statutory requirements for proving an 
BHARPUR SINGH & ORS. v. SHAMSHER SINGH 
519 
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ordinary document is not sufficient, as Section 68 of the 
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Evidence Act postulates that execution must be proved 
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by at least one of the attesting witness, if an attesting 
witness is alive and subject to the process of the Court 
and capable of giving evidence. [Para 14] [531-B-D] 
1.3. Suspicious circumstances like the following may 
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be 'found to be surrounded in the execution .of the Will: 
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(i) The signature of the testator may be very shaky and 
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doubtful or not appear to be his usual signature. (ii) The 
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condition of the testa

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