In RSA-3680-2007-PUNJ HC- Once propounder of Will has successfully discharged onus by examining both attesting witnesses in terms of Sec.68 of Evidence Act, then it was for defendants to rebut said evidence: P&H HC  
Justice Manoj Bajaj [21-10-2022]

Read Order: Nachhattar Kaur and Others v. Satwant Singh Bhangoo and Others 

Monika Rahar

Chandigarh, October 25, 2022:  While making a reference to Section 63 of the Indian Succession Act, 1925, the High Court of Punjab and Haryana has recently held that every testator is required to sign or affix his/her mark to the Will or it shall be signed by some other person in the presence and on the direction of the testator.

Further, the Bench of Justice Manoj Bajaj also held, in light of Section 68 of the Indian Evidence Act, 1872, that where the propounder has relied upon a Will, it is mandatory for such a propounder to discharge the onus at least by examining one of the witnesses to prove execution of the instrument and in the absence of this requirement such a document shall not be used as evidence

“Once the propounder of the Will has successfully discharged the onus by examining both the attesting witnesses in terms of Section 68 Evidence Act, 1872, then it was for the defendants to rebut the said evidence”, the Court held. 

In this case, the plaintiff filed a suit for declaration claiming to be the owner in possession of the suit property. In the alternative, he prayed for a decree for possession of the suit property, and as a consequential relief prayed for a decree for permanent injunction restraining the defendants from selling, mortgaging, gifting or alienating the suit property, or dis-possessing the plaintiff. 

As per the pleadings, the property belonged to one Gurdev Singh and after his death, his Surjit Kaur and mother inherited the property in equal shares. Later, upon the mother’s demise, the suit property devolved upon Surjit Kaur. The plaintiff being cousin of Gurdev Singh was related to Surjit Kaur, who used to reside with the plaintiff in Calcutta or at his village, and he also used to visit her (Surjit Kaur) where she was having her own house. 

As the plaintiff was serving Surjit Kaur, she had executed a registered Will in his favour in 1992 which was registered in the office of Sub Registrar, Calcutta. 

It was the plaintiff’s case that when Surjit Kaur was unconscious and hospitalized, her brother and his family (defendants) got executed three forged sale deeds (in respect of a part of the suit property) in connivance with the numberdar and attesting witnesses. It was further argued that the Will allegedly executed by Surjit Kaur relating to her remaining land in favour of the fourth and fifth defendants, was also a forged document.

The plaintiff came to know about the execution of these sale deeds and Will, when mutation of inheritance was entered in favour of defendants.

The Trial Court dismissed the suit by discarding both the Wills propounded by the rival parties, as well as sale deeds relied upon by defendants. The lower appellate court accepted the plaintiff’s appeal whereas the cross objections filed by the defendants were dismissed. Hence, the defendants filed a separate set of appeals to challenge the decision of the lower appellate Court. 

The Counsel for the appellants argued that Surjit Kaur lived her life in Ludhiana and died there, thus, she had no occasion to go to Calcutta for executing the Will propounded by the plaintiff. He further submitted that neither the Will initially attached with the plaint bore the thumb impression of the testator, nor each part of the original Will contained her thumb impression. The Counsel further argued that Surjit Kaur was an illiterate lady and the beneficiary of the Will or his nephew (attesting witness) did not even attend her cremation.  

Also, it was the Counsel’s case that the original Will was at variance with the certified copy, and the photocopy attached with the plaint, therefore, it was surrounded with suspicious circumstances. According to the counsel, the valid proof as required under Section 63 Indian Succession Act, 1925 and Section 68 Indian Evidence Act, 1872 was missing, therefore, the trial Court had rightly discarded this Will, but the appellate Court erroneously reversed the said finding by misreading the evidence.

On the merits of the case, the Court perused the provisions of Section 63 Indian Succession Act, 1925 and observed that every testator is required to sign or affix his/her mark to the Will or it shall be signed by some other person in the presence and on the direction of the testator. Further, the Court added that clause (c) of the above section contemplates that the Will shall be attested by two or more witnesses in the manner prescribed. 

Further, the Court made reference to Section Section 68 Indian Evidence Act, 1872 and observed that where the propounder has relied upon a Will, it is mandatory for such a propounder to discharge the onus at least by examining one of the witnesses to prove execution of the instrument and in the absence of this requirement such a document shall not be used as evidence. 

Also, the Bench added that Clause (a) of Section 63 Indian Succession Act, 1925 contains two parts and as per the first part, it contemplates that the testator shall sign or affix the mark on the Will, whereas second part is an alternative to the first part, where some other person signs the instrument in the presence and direction of the testator. 

Coming to the present case, the Court was of the found that certified copy of original Will was not copy of the original, but it was a certificate issued by registration office, therefore, it could not have contained thumb impression of either the testator or the attesting witnesses, as it carried the expression “sd/-” at proper places to indicate signatures/thumb impressions of attesting witnesses and testator

Also, the Court added that a close analysis of the certificate showed that it specifically mentioned the fact that the witness had signed the Will in gurmukhi (Punjabi), so, expression “by the pen of Jagdeep Singh” could not be attached any significance, much less construing it as handwriting.

Against this light, the Court held, 

“ Once the propounder of the Will has successfully discharged the onus by examining both the attesting witnesses in terms of Section 68 Evidence Act, 1872, then it was for the defendants to rebut the said evidence. Here, it is also relevant to note that the Will… is a registered instrument, which carries presumption of correctness that the document is validly executed, therefore, if the defendants have questioned the Will on the ground of fraud, it is for them to adduce convincing evidence to rebut the said presumption, whereas in the present case, the defendants have failed to adduce any such evidence in this regard.”

Also, the Court held that the Will which was a registered document was proved by the propounder to establish its valid execution, therefore, the trial Court committed an error of law in holding that it was surrounded by suspicion.

Thus, the Court held that the appellate Court rightly exercised its jurisdiction in interfering with the findings returned by trial Court upon Ex.P-1 against the plaintiff, and the conclusion drawn by the appellate Court holding the Will valid, was based upon proper appreciation of evidence. 

Consequently, the Court held that these findings did not warrant any interference by exercising jurisdiction under Section 100 CPC.