RAJ KUMARI AND OTHERS versus SURINDER PAL SHARMA

Citation: [2019] 18 S.C.R. 872 · Decided: 17-12-2019 · Supreme Court of India · Bench: S. ABDUL NAZEER, SANJIV KHANNA · Disposal: Appeal(s) allowed

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Judgment (excerpt)

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SUPREME COURT REPORTS
[2019] 18 S.C.R.
RAJ KUMARI AND OTHERS
v.
SURINDER PAL SHARMA
(Civil Appeal No. 9683 of 2019)
DECEMBER 17, 2019
[S. ABDUL NAZEER AND SANJIV KHANNA, JJ.]
Indian Succession Act – cl(c) to s.63 – Will – Evidence Act,
1872 – ss. 68 and 71 – ‘H’ applied for a two room accomodation –
‘H’ died – Wife of ‘H’ was issued allotment letter of the said two
room tenement – Thereafter, wife of ‘H’ also expired – ‘H’ and his
wife had four children – Two daughters ‘R’ and ‘P’ and two sons ‘S’
and ‘M’ – Daughter ‘R’ filed a suit for partition of the tenement and
decree of declaration that she and the defendants i.e. her siblings
were owners of 1/4th unspecified and undivided share in the
tenement – The suit was contested by ‘S’, who in his written statement
had propounded a registered Will dated 02.01.1992 purportedly
executed by the wife of ‘H’, his mother, wherein the tenement was
bequeathed absolutely to him – The Trial Court passed a preliminary
decree of partition inter alia holding that the four siblings were
entitled to 1/4th share each in the tenement after recording that ‘S’
had failed to prove the purported registered Will – It was held that
‘S’ had failed to examine any of attesting witnesses to the Will
required u/s. 68 of the Evidence Act  –  The High Court set aside the
judgment of the Trial court – On appeal, held: In the instant case,
the Will was attested by two witnesses namely ‘RK’ husband of ‘R’
and ‘MN’, Advocate – ‘S’ stated that ‘MN’ could not be served and
hence was not examined and ‘RK’ was not summoned or examined
as he was the husband of ‘R’ – The High Court has accordingly
held that Will being registered was proved in terms of s. 71 of the
Evidence Act – This finding of the High court is unacceptable, for
recourse to s. 71 of the Evidence Act is impermissible without the
examination of witness ‘RK’ – It would not matter if ‘RK’ is husband
of ‘R’ – s.71 of the Evidence Act would come into operation, once
and if all the attesting witnesses deny or do not recollect the execution
of the document, that is, the Will – Since, ‘RK’ was not summoned
and examined, therefore, it cannot be said that he had denied or
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[2019] 18 S.C.R. 872
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did not recollect execution of the Will – Further, ‘S’ in a reply to a
legal notice by ‘R’ had not made any reference to a Will, the defence
of Will was taken for first time in his written statement – The Will
was not challenged in the Court of law as ‘R’ came to know about it
during pendency of the suit – Besides, the testator, mother of ‘S’
and ‘R’ was an illiterate lady – Even if signatures of the testator
and witnesses are accepted, the ‘other evidence’ cannot be ignored
that mother of ‘S’ and her family members did not understand the
true nature of the document executed – There are substantial and
good reasons to legitimately suspect and question execution of the
Will – Therefore, the judgment of the High Court set aside and
judgment of the Trial Court restored.
Evidence Act, 1872 – ss. 68 and 71 – The effect of ss. 68 and
71 in case of a Will – Held: s. 63 of the Indian Succession Act
requires and mandates attestation of a Will by two or more persons
as witnesses, albeit s.68 of the Evidence Act gives concession to
those who want to prove and establish a Will in the Court of law by
examining at least one attesting witness who could prove the
execution of the Will viz. Attestation by the two witnesses and its
execution in the manner contemplated by cl (c) to s.63 of the Indian
Succession Act – However, where one attesting witness examined
fails to prove due execution of the will, then other available attesting
witness must be called to supplement his evidence to make it
complete in all respects to comply with the requirement of proof as
mandated by s. 68 of the Evidence Act – The effect of s. 71 Evidence
Act can be requisitioned when the attesting witnesses who were being
called have failed to prove the execution of Will by reason of either
denying their own signatures, denying the signature of the testator
or due to bad recollection as to the execution of the document –
s.71 has no application when only one attesting witness who was
called and examined has failed to prove the execution of Will and
the other available attesting witness was not summoned.
Allowing the appeal, the Court
HELD: 1. In the facts of the present case, it is submitted
by ‘S’, the respondent, that summons/notice were issued to ‘MN’
Advocate to 

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