Read Order: Jagdish Singh (Since Deceased) through his LRs and Others v. Jagjit Singh and Another

Monika Rahar

Chandigarh, April 14, 2022: The Punjab and Haryana High Court has recently held that Section 69 of the Indian Evidence Act, 1872 (Act of 1872) is in the nature of an exception to Section 68 of the Act of 1872. 

The Bench of Justice Anil Kshetarpal held,“Under Section 68 of the 1872 Act, if a document is required by law to be attested, then the document can only be proved in evidence by examining at least one attesting witness to the said document, in accordance with law. However, Section 69 of the 1872 Act creates an exception.”

The Court added, there are three requirements of Section 69 of the 1925 Act, namely, if no attesting witness can be found, the attestation of one of the attesting witnesses at least is in his handwriting and the signatures of the person executing the document is in the handwriting of that person.

By this judgment, two Regular Second Appeals were disposed of. The judgments, passed by the trial Court as well as the Appellate Court, while disposing of the two connected suits, were common. 

In substance, the dispute was with regard to the succession of the property of Smt. Basant Kaur. The plaintiff- Sh. Jagdish Singh (son of Smt. Basant Kaur) claimed to have inherited the property to the exclusion of the other Class-I heirs on the basis of the registered Will dated July 30, 1963. 

Late Smt. Basant Kaur had two sons, namely Sh. Jagjit Singh and Sh. Jagdish Singh and two daughters, namely Smt. Narinder Kaur and Smt. Jagdeep Kaur. The first suit was filed by Sh. Jagdish Singh, whereas the second suit was filed by Sh. Ranjodh Singh, husband of late Smt. Jagdeep Kaur.

It was the case of the defendants that late Smt. Basant Kaur executed the last registered Will on November 02, 1976. The trial Court decreed the suit by returning the finding that the Will dated November 02, 1976, was proved by leading secondary evidence. The trial court, as a matter of fact, found that the Will of 1963 was also executed however since the last Will is to prevail, therefore, the suit was decided on the basis of the 1976 Will. 

Two appeals were preferred before the First Appellate Court, which, on reappreciation of evidence, found that the Will of 1976 was neither produced in evidence nor proved in accordance with Sections 68 and 69 of the Act of 1872. 

The Court noted at the very outset that there is no dispute between the parties that the Will of 1976 was not produced. The two attesting witnesses and the scribe could not be examined owing to their death. The Will was tried to be proved by examining certain officials of the office of the Sub-Registrar as well as the Sub-Registrar. However, the Court noted that the copy available in the office of the Sub-Registrar neither bears the signatures of the testator nor of the attesting witnesses nor their photos. 

Although, certain officials from the office of the Sub Registrar stated that the copy of the Will produced was a true copy of the document available in the office of the Sub-Registrar, however, the Court observed that the question was whether the Will was proved in accordance with Section 69 of the 1872 Act.

The petitioner’s counsel contended that the deposition of Mrs P. Ahluwalia, the Sub-Registrar, was sufficient to prove the Will in accordance with Section 69 of the 1872 Act. He submitted that since both the attesting witnesses of the Will died, therefore, the only way to prove the Will was to examine the Sub Registrar. 

Per contra, the counsel representing the respondents contended that there was non-compliance with Section 69 of the 1872 Act as neither the attestation of one attesting witness nor the signatures of the person executing the document were proved in their handwriting. He submitted that there was no evidence to prove that the alleged Will of 1976 was executed in accordance with the requirements of Section 63 of the Indian Succession Act, 1925 (the 1925 Act). 

Regarding Section 69 of the 1872 Act, the Court observed that this section was in the nature of an exception to Section 68 of the 1872 Act. Under Section 68 of the 1872 Act, if a document is required by law to be attested, then the document can only be proved in evidence by examining at least one attesting witness to the said document, in accordance with the law. However, Section 69 of the 1872 Act creates an exception it provides that if no such attesting witness can be found or if the document purports to have been executed in the United Kingdom, it must be proved by proving that the attestation of one of the attesting witness, at least, is in his handwriting and that the signatures of the person executing the document are in his handwriting.

Concluding from the above, the Court held that there are three requirements of Section 69 of the 1925 Act, namely, if no attesting witness can be found; the attestation of one of the attesting witnesses at least is in his handwriting; and the signatures of the person executing the document is in the handwriting of that person. 

In the present case, it was observed that no evidence was produced which proved that the attestation of one of the attesting witnesses was in his handwriting. The Court observed that it was a peculiar case where neither any photocopy nor the certified copy bearing the signatures of the executor of the Will was produced. Furthermore, Justice Kshetarpal asserted that the execution of the Will and its subsequent registration were two independent events. 

Further, it was noted that the 1976 Will was scribed by Sh. Om Parkash Puri. In normal circumstances, the Court held that after signing the Will, the executor along with the witnesses would go to the office of the Sub Registrar to get it registered and before the Sub Registrar, the testator and the attesting witness will be required to sign on the endorsement put the office of the Sub-Registrar. In such circumstances, the Court held that Mrs P.Ahluwalia was incapable of making a statement with regard to the execution of the Will. 

Thus, keeping in view the aforesaid discussion, the Court concluded that the findings of the First Appellate Court with regard to the last 1976 Will did not suffer from any error. Hence, the same was upheld. 

Next, the Court went to the 196 Will which was produced. Apart from the signatures and thumb impressions of late Smt. Basant Kaur, this Will bore the signatures of Sh. Chanda Singh and Sh. Sain Ditta. Their signatures were identified before the Trial Court. Both the Courts below concurrently found that the Will of 1963 was proved in accordance with Section 69 of the 1872 Act. Through this Will, Smt. Basant Kaur bequeathed the entire property in favour of his son Sh. Jagjit Singh. 

In view of the overwhelming evidence produced in favour of the 1963 Will, the Court opined that the Will (of 1963) was duly proved, in accordance with the law. Hence, in view thereof, the appeals were dismissed. 

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