NDLI: Raj Kumari and Others Vs. Surinder Pal Sharma

Content Provider	Supreme Court of India
e-ISSN	30484839
Language	English
Access Restriction	NDLI
Subject Keyword	1872 cl(c) to s.63 Evidence Act ss. 68 and 71 Indian Succession Act Will
Content Type	Text
Resource Type	Law Judgement
Jurisdiction	India
Act(s) Referred	Registration Act, 1908 (16 of 1908) Indian Evidence Act, 1872 (1 of 1872) Indian Succession Act, 1925 (39 of 1925)
Case(s) Referred	Referred Case 0 Referred Case 1 Referred Case 2 Referred Case 3 Referred Case 4 Referred Case 5 Referred Case 6
Case Type	Appeal
Court	Supreme Court of India
Disposal Nature	Appeal Allowed
Headnote	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 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.
Judge	Hon'ble Mr. Justice S. Abdul Nazeer Hon'ble Mr. Justice Sanjiv Khanna
Neutral Citation	2019 INSC 1388
Petitioner	Raj Kumari And Others
Respondent	Surinder Pal Sharma
SCR	[2019] 18 S.C.R. 872
Judgement Date	2019-12-17
Case Number	9683

Sl.	Authority	Responsibilities	Communication Details
1	Ministry of Education (GoI), Department of Higher Education	Sanctioning Authority	https://www.education.gov.in/ict-initiatives
2	Indian Institute of Technology Kharagpur	Host Institute of the Project: The host institute of the project is responsible for providing infrastructure support and hosting the project	https://www.iitkgp.ac.in
3	National Digital Library of India Office, Indian Institute of Technology Kharagpur	The administrative and infrastructural headquarters of the project	Dr. B. Sutradhar bsutra@ndl.gov.in
4	Project PI / Joint PI	Principal Investigator and Joint Principal Investigators of the project	Dr. B. Sutradhar bsutra@ndl.gov.in Prof. Saswat Chakrabarti will be added soon
5	Website/Portal (Helpdesk)	Queries regarding NDLI and its services	support@ndl.gov.in
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8	Digital Preservation Centre (DPC)	Assistance with digitizing and archiving copyright-free printed books	dpc@ndl.gov.in
9	IDR Setup or Support	Queries related to establishment and support of Institutional Digital Repository (IDR) and IDR workshops	idr@ndl.gov.in

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