Supreme Court overturns High Court on Will validity: Raj Kumari & Ors. vs. Surinder Pal Sharma (2019)

Date of the Judgment: 17 December 2019

Citation: Civil Appeal No. 9683 of 2019 (Arising out of Special Leave Petition (Civil) No. 26957 of 2018)

Judges: S. Abdul Nazeer J., Sanjiv Khanna J.

Can a registered will be considered valid if one of the attesting witnesses is not examined in court? The Supreme Court of India recently addressed this question in a property dispute case. The core issue was whether a will, which was registered but not proven by examining both attesting witnesses, could be considered valid. The Supreme Court overturned the High Court’s decision, emphasizing the mandatory nature of examining attesting witnesses to prove a will’s validity. The judgment was delivered by a two-judge bench comprising Justice S. Abdul Nazeer and Justice Sanjiv Khanna, with Justice Sanjiv Khanna authoring the opinion.

Case Background

The case revolves around a property dispute among the children of Harbans Lal. Harbans Lal, a displaced person, applied for a two-room accommodation in Delhi in 1958. His family included his wife, Suhagwanti, and children: Madan Lal, Puran Kumari, Surinder Kumar, and Baby. Harbans Lal passed away in 1965. In 1972, Suhagwanti Devi was allotted a duplex tenement under a Redevelopment Scheme. She was required to surrender possession of another quarter within three days of the allotment. Suhagwanti Devi died in 1999. In 2004, Raj Kumari, daughter of Harbans Lal, filed a suit for partition of the tenement, claiming a 1/4th share for herself and her siblings. Surinder Pal Sharma, another sibling, contested the suit, claiming ownership based on a registered will from 1992, allegedly executed by Suhagwanti, bequeathing the entire property to him.

Timeline

Course of Proceedings

The trial court ruled in favor of Raj Kumari and the other siblings, granting a preliminary decree of partition. The trial court held that Surinder Pal Sharma failed to prove the will because he did not examine any of the attesting witnesses as required by Section 68 of the Indian Evidence Act, 1872 and also because the will was attested by only one witness, violating Section 63(c) of the Indian Succession Act, 1925. The trial court also noted that the registration of the will did not prove its validity. Aggrieved, Surinder Pal Sharma appealed to the Delhi High Court. The High Court overturned the trial court’s decision, holding that the will was validly attested by two witnesses, and that the presumption under Section 114 of the Indian Evidence Act, 1872 applied due to the registration of the will. The High Court relied on the judgment of the Supreme Court in M.B. Ramesh (Dead) by LRs. v. K.M. Veeraje Urs (Dead) by LRs. and Others to hold that since the will was registered, it should be presumed that the Sub-Registrar had validly carried out the registration after ascertaining that the Will was attested by the two witnesses. Raj Kumari and others then appealed to the Supreme Court.

Legal Framework

The core legal provisions at play in this case are Section 63 of the Indian Succession Act, 1925, and Sections 68 and 71 of the Indian Evidence Act, 1872. Section 63(c) of the Indian Succession Act, 1925, states that a will must be attested by two or more witnesses, each of whom must have seen the testator sign or acknowledge their signature. It specifies that each witness must sign the will in the presence of the testator. Section 68 of the Indian Evidence Act, 1872, requires that a document required by law to be attested cannot be used as evidence until at least one attesting witness has been called to prove its execution. Section 71 of the Indian Evidence Act, 1872, allows for the execution of a document to be proven by other evidence if the attesting witness denies or does not remember the execution. The Supreme Court emphasized that these provisions are mandatory and must be strictly adhered to.

The relevant legal provisions are:

• Section 63(c) of the Indian Succession Act, 1925:
  
  “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)-(b)***
  (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.”
• Section 68 of the Indian Evidence Act, 1872:
  
  “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 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.”
• Section 71 of the Indian Evidence Act, 1872:
  
  “71. Proof when attesting witness denies the execution.—If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence.”

Arguments

Appellants (Raj Kumari and Others):

• The appellants argued that the High Court erred in holding the will to be valid. They contended that the respondent, Surinder Pal Sharma, failed to prove the will as he did not examine any of the attesting witnesses.
• They argued that the trial court correctly held that the will was not validly executed.
• They contended that the High Court incorrectly applied the presumption under Section 114 of the Indian Evidence Act, 1872, based on the registration of the will.
• They also argued that the will was suspicious due to the circumstances of its execution and the fact that the testator was an illiterate lady.
• They contended that the husband of Raj Kumari, namely Ramesh Kumar was made to sign the document on the pretext that the mother wanted to disown her niece.

Respondent (Surinder Pal Sharma):

• The respondent argued that the High Court was correct in holding the will to be valid.
• He contended that he made all efforts to summon the attesting witness, Mr. M.N. Sharma, Advocate, but he did not appear.
• He argued that the will was attested by two witnesses, namely Ramesh Kumar and Mr. M.N. Sharma, Advocate, and thus, satisfies the requirement of Section 63(c) of the Indian Succession Act, 1925.
• He argued that the registration of the will creates a presumption of its validity under Section 114 of the Indian Evidence Act, 1872.
• He argued that the mutation of the property in his name was valid.

The appellants argued that the will was not properly attested as per Section 63(c) of the Indian Succession Act, 1925, and that the respondent did not meet the requirements of Section 68 of the Indian Evidence Act, 1872, by failing to examine at least one attesting witness. They also pointed out that the will was suspicious due to the circumstances of its execution and the fact that the testator was an illiterate lady. The respondent, on the other hand, argued that the registration of the will created a presumption of its validity and that he had made sufficient efforts to produce the attesting witnesses.

Issues Framed by the Supreme Court

The Supreme Court considered the following issues:

1. Whether the High Court was correct in holding that the will was validly executed?
2. Whether the High Court was correct in applying the presumption under Section 114 of the Indian Evidence Act, 1872, based on the registration of the will?
3. Whether the respondent had proved the will in accordance with the law?

Treatment of the Issue by the Court

The following table demonstrates as to how the Court decided the issues

Authorities

The Supreme Court considered the following authorities:

Judgment

How each submission made by the Parties was treated by the Court?

How each authority was viewed by the Court?

• The court relied on H. Venkatachala Iyengar v. B.N. Thimmajamma and Others [AIR 1959 SC 443]* to highlight the mandatory requirements for validating the execution of a will.
• The court referred to Jaswant Kaur v. Amrit Kaur and Others [(1977) 1 SCC 369]* to emphasize that suspicion generated by disinheritance is not removed by mere assertion of the propounder.
• The court referred to Surendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora and Another [(1974) 2 SCC 600]* to explain that the propounder should demonstrate that the testator was in a sound state of mind and had understood the nature and effect of the dispositions.
• The court referred to Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) by LRs. and Others [(1995) 4 SCC 459]* to observe that the doubt would be less significant if the will is registered and the Sub-Registrar certifies that the same was read over to the executor.
• The court referred to Jagdish Chand Sharma v. Narain Singh Saini (Dead) Through LRs. and Others [(2015) 8 SCC 615]* to illustrate the provisions of Section 63 of the Indian Succession Act, 1925, and Sections 68 and 71 of the Indian Evidence Act, 1872, regarding the execution and attestation of a will.
• The court distinguished the judgment in M.B. Ramesh (Dead) by LRs. v. K.M. Veeraje Urs (Dead) by LRs. and Others [(2013) 7 SCC 490]*, stating that the facts were different and the ratio would not apply in this case.
• The court referred to Vishnu Ramkrishna v. Nathu Vithal and Others [AIR 1949 BOM 266]* to observe that the court must approach the problem as a court of conscience and satisfy itself whether the document put forward is the last will and testament of the testator.
• The court referred to and approved the ratio in Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91]*, which held that if one attesting witness fails to prove the due execution of the will, the other available attesting witness must be called to supplement his evidence. The court in Janki Narayan Bhoir* overruled the judgment in Mt. Manki Kaur v. Hansraj Singh and Others [AIR 1938 Pat 301]*.
• The court referred to Dhira Singh v. Moti Lal and Others [63 Ind. Cas. 266]* to hold that where the attesting witness was neither summoned nor examined under the provisions of Section 68 of the Indian Evidence Act, 1872, recourse to Section 71 is impermissible.
• The court referred to Benga Behera and Another v. Braja Kishore Nanda and Others [(2007) 9 SCC 728]* to reiterate the ratio in Janki Narayan Bhoir and examine whether a Sub-Registrar can be treated as a witness.
• The court referred to Dharam Singh v. Aso and Another [1990 Suppl SCC 684]* to hold that if a person puts his signature on a document only in discharge of a statutory duty, he may not be considered as an attesting witness.

What weighed in the mind of the Court?

The Supreme Court’s decision was primarily influenced by the failure of the respondent to adhere to the mandatory requirements of Section 68 of the Indian Evidence Act, 1872, which requires the examination of at least one attesting witness to prove the execution of a will. The court also considered the suspicious circumstances surrounding the execution of the will, including the fact that the testator was an illiterate lady and the will was oddly described as a “Will Deed.” The court also noted that the respondent had not mentioned the will in his reply to the legal notice issued by the appellant. The court also noted that the husband of the appellant was made to sign the document on the pretext that the mother wanted to disown her niece. The court emphasized that the registration of the will does not automatically prove its validity and that the propounder of the will must prove its due execution.

Fact:Law

The court’s reasoning was a combination of factual analysis and legal interpretation. While the legal requirements of proving a will were central, the court also considered the factual context, including the circumstances surrounding the execution of the will and the conduct of the parties. The court’s reasoning was based on a strict interpretation of the legal provisions and a careful consideration of the factual matrix.

Logical Reasoning:

The court also considered alternative interpretations, such as the presumption of validity based on registration, but rejected them in favor of a strict interpretation of the legal requirements for proving a will.

The court’s decision was based on the following reasons:

• The respondent failed to examine at least one attesting witness, as required by Section 68 of the Indian Evidence Act, 1872.
• The respondent could not rely on Section 71 of the Indian Evidence Act, 1872, without examining at least one attesting witness.
• The registration of the will does not automatically prove its validity.
• The circumstances surrounding the execution of the will were suspicious.
• The respondent had not mentioned the will in his reply to the legal notice issued by the appellant.

The court’s reasoning was based on a strict interpretation of the legal provisions and a careful consideration of the factual matrix. The court emphasized that the propounder of a will must prove its due execution by examining at least one attesting witness, and that registration alone does not suffice to prove the validity of a will. The court also considered the suspicious circumstances surrounding the execution of the will, including the fact that the testator was an illiterate lady and the will was oddly described as a “Will Deed.”

“The High Court has accordingly held that the Will being registered was proved in terms of section 71 of the Evidence Act. This finding of the High Court is unacceptable, for recourse to Section 71 of the Evidence Act is impermissible without examination of Ramesh Kumar, the other attesting witness. The High Court has also erred in relying upon the presumption under Section 114 of the Evidence Act. The said presumption does not apply to wills. The High Court has also failed to take into consideration the suspicious circumstances surrounding the execution of the Will.”

Ratio Decidendi

The ratio decidendi of the case is that a will must be proved by examining at least one attesting witness as mandated by Section 68 of the Indian Evidence Act, 1872. The registration of a will does not automatically prove its validity, and the presumption under Section 114 of the Indian Evidence Act, 1872, does not apply to wills. The court emphasized that Section 68 of the Indian Evidence Act, 1872, is mandatory, and failure to examine at least one attesting witness is fatal to proving the validity of the will. The court also held that recourse to Section 71 of the Indian Evidence Act, 1872, is only permissible if the attesting witness denies or does not recollect the execution of the document, and not merely because the witness is not available.

Obiter Dicta

The Supreme Court made several obiter dicta in this judgment, which, while not essential to the decision, provide valuable guidance for future cases involving will disputes. These include:

• The court emphasized that the propounder of a will must prove its due execution by examining at least one attesting witness.
• The court observed that the registration of a will does not automatically prove its validity.
• The court highlighted that the circumstances surrounding the execution of a will should be carefully scrutinized, especially when the testator is an illiterate person.
• The court noted that if the attesting witness is not available, the propounder must still make a reasonable attempt to examine the witness.
• The court observed that the propounder of the will must dispel any suspicious circumstances surrounding the execution of the will.
• The court noted that the propounder must demonstrate that the testator was in a sound state of mind and had understood the nature and effect of the dispositions.
• The court observed that the doubt would be less significant if the will is registered and the Sub-Registrar certifies that the same was read over to the executor.
• The court also observed that if a person puts his signature on a document only in discharge of a statutory duty, he may not be considered as an attesting witness.
• The court highlighted that the court must approach the problem as a court of conscience and satisfy itself whether the document put forward is the last will and testament of the testator.

Conclusion

In conclusion, the Supreme Court’s judgment in Raj Kumari & Ors. vs. Surinder Pal Sharma (2019) is a significant ruling that reinforces the mandatory nature of Section 68 of the Indian Evidence Act, 1872, in proving the validity of a will. The court overturned the High Court’s decision, emphasizing that the registration of a will does not automatically prove its validity and that the propounder of a will must examine at least one attesting witness to prove its due execution. The court also highlighted the importance of scrutinizing the circumstances surrounding the execution of a will, especially when the testator is an illiterate person. The judgment underscores the need for strict adherence to legal provisions and provides valuable guidance for future cases involving will disputes. The Supreme Court has made it clear that the burden of proving the validity of a will lies squarely on the propounder, and this burden cannot be discharged without examining at least one attesting witness.

Key Takeaways:

• A will must be proved by examining at least one attesting witness.
• Registration of a will does not automatically prove its validity.
• The presumption under Section 114 of the Indian Evidence Act, 1872, does not apply to wills.
• Suspicious circumstances surrounding the execution of a will must be carefully scrutinized.
• The propounder of a will must prove its due execution.
• Recourse to Section 71 of the Indian Evidence Act, 1872, is only permissible if the attesting witness denies or does not recollect the execution of the document.