Delhi High Court
Parmeshwari Devi vs State & Ors. on 24 April, 2025
Author: Dharmesh Sharma
Bench: Dharmesh Sharma
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on : 24 March 2025
Judgment pronounced on: 24 April 2025
+ FAO 21/2009 & CM APPL. 13585/2010, CM APPL. 33941/2017
SMT. PARMESHWARI DEVI (DECEASED) THROUGH LRs
.....Appellant
Through: Mr. Shailender Dahiya, Adv.
versus
THE STATE & ORS. .....Respondents
Through: Mr. B.S. Yadav, Adv. for LRs
of R-2 and R-3.
CORAM:
HON'BLE MR. JUSTICE DHARMESH SHARMA
JUDGMENT
1. The appellant (now deceased) had preferred this appeal under
Section 299 of the Indian Succession Act, 1925 [hereinafter “the
Act”] against the order dated 01.12.2008 passed by learned Additional
District Judge-05, West District, Tis Hazari Courts, Delhi [“Probate
Court”] refusing to grant probate of the Will dated 04.10.2004.
FACTUAL BACKGROUND
2. Shorn of unnecessary details, appellant, Smt. Parmeshwari
Devi, was the widow of the deceased, Shri Sube Singh. Shri Sube
Singh was previously married to Smt. Angrej Kaur, who passed away,
leaving behind two children, Satbir (respondent No.2) and Smt. Azad
Kaur. After her demise, Shri Sube Singh married the appellant, and
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they had three sons–Jagbir, Raj Singh, and Ranbir Singh and one
daughter, Miss Kaushalya Devi.
3. During his lifetime, Shri Sube Singh was the sole and exclusive
owner of the agricultural land measuring 12 Bighas and 11 Biswas in
khasra No.44/9 (3-12), 12 (4-16), 19 (4-3), khata Khatauni No. 584,
situated in the revenue Estate of village Alipur, Delhi. He had also
applied for compensation under an award and maintained a savings
account with Allahabad Bank, Alipur. On 04.10.2004, Shri Sube
Singh executed a registered Will, bequeathing his land to the
appellant. The Will also stated that the appellant would be responsible
for solemnizing the marriage of their daughter, Miss Kaushalya Devi.
Shri Sube Singh passed away on 23.12.2004, leaving behind the
appellant and his children from both marriages.
4. Eventually, the appellant filed for probate of the Will, asserting
that it was executed voluntarily while the testator was of sound mind.
A key witness, PW-3/Zile Singh, testified as to the execution of the
Will, however, the probate petition was dismissed on the ground that
the second attesting witness was not examined. The appellant
contends that as per settled law and Section 68 of the Indian Evidence
Act, 1872, the examination of a single attesting witness was sufficient
to prove the attestation of a Will.
PROCEEDINGS BEFORE THE LEARNED PROBATE
COURT:
5. The learned Probate Court based on the pleadings of the parties,
framed the following issues:
“1. Whether late Sube Singh executed a valid and enforceable
Will dated 4-10-2004 as claimed by the petitioner? OPPSignature Not Verified
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2. Whether the petitioner is entitled for grant of
Probate/Letters of Administration in respect of aforesaid Will?
OPP
3. Whether the petition is liable to be rejected for the
objections raised by the respondents? OPR
4. Relief.
6. Firstly, issue No. (3) was considered, and the learned Probate
Court held that in probate proceedings the only material issue is
whether the Will in question is genuine and validly executed or not,
and whether the dispute about the right, share, ownership and title of
the property are alien to the probate proceedings and not to be
considered at all. Reliance for the same was placed on the decision in
the case of Chiranjilal Shrilal Goanka v. Jasjit Singh1, whereby it
was held that the Probate Court has not to decide the question of title
or ownership and even the existence of the property is not to be looked
into. The respondents are alleging that the immovable properties in
question are ancestral properties but this controversy is to be sorted
out by the civil court and cannot be dealt with in this probate
proceeding. Therefore, the said issue was decided in favour of the
petitioner.
7. Further, as far as issues No. (1) & (2) are concerned, the learned
Probate Court examined the validity of a Will dated 04.10.2004,
allegedly executed by the deceased Sh. Sube Singh, which was typed
in English language, but a registered document bearing his thumb
impression and signatures in Urdu. The respondents challenged the
Will on grounds of the testator’s physical and mental incapacity, but
the learned Probate Court found no iota of medical evidence to
1
(1993) 2 SCC 507
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substantiate their objections, holding that mere old age or general
uneasiness, as alleged by the respondents, did not establish mental
incapacity. Additionally, the Will’s execution occurred nearly one and
a half months before the testator’s death, and hospitalization shortly
before death did not automatically imply incapacity at the time of
execution.
8. The learned Probate Court, however, observed that while
registration of a Will creates a presumption of due execution, this
presumption is rebuttable, and it was held that significant doubts had
arisen regarding the registration process since the concerned Sub-
Registrar was not examined as a witness, and the attesting witness
viz., PW-3 Zile Singh denied that the Sub-Registrar had read the Will
to the testator. The learned Probate Court found that the brief time
spent in the office of the Sub-Registrar was insufficient for the proper
completion of registration formalities, leading to the conclusion that
the execution of the Will could not benefit from the presumption of
validity due to registration.
9. Regarding execution under Section 63 of the Act, the learned
Probate Court emphasized that a Will must be attested by at least two
witnesses. Although Section 68 of the Indian Evidence Act, 1872
permits proof by one attesting witness, the witness examined must
establish that both witnesses signed in the presence of the testator; and
in the instant case, PW-3/Zile Singh attested only his own signature
but did not confirm the attestation by the second witness, Mr. R.S.
Beniwal, Advocate. Since the second witness was neither examined
nor his signature verified, the Will’s execution remained unproven.
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The probate court relied on the Supreme Court’s ruling in Janki
Narayan Bhoir v. Narayan Namdeo Kadam 2 to hold that the Will
was not properly executed.
10. Additionally, the appellant/petitioner failed to establish that the
Will was drafted on the testator’s instructions. There was no evidence
regarding its preparation, and PW-3/Zile Singh admitted that the
document was already typed when he arrived at the Sub-Registrar’s
office. Furthermore, there was no proof that the testator, who signed in
Urdu, understood the contents of the Will written in English language.
The absence of reasons for excluding close family members from
inheritance further raised suspicion about its authenticity.
11. Given these findings, the court concluded that the Will was not
duly executed as per law and could not be enforced. The petitioner
failed to establish its validity and merely highlighting weaknesses in
the respondents’ defense did not justify granting relief. Consequently,
both issues were decided against the petitioner.
12. Consequently, the said petition was dismissed.
SUBMISSIONS ON BEHALF OF THE PARTIES: –
13. Learned counsel for the appellant submitted that the learned
Probate Court has erred in refusing to grant probate of the will as it is
against the procedures of statute and settled law. It was emphasized
that Section 68 of the Indian Evidence Act, 1872 clearly provides that
examination of one attesting in court itself is sufficient to prove the
execution of the Will if the said witness, through his deposition proves
the attestation of the Will. In the present case the attesting witness,
2
(2003) 2 SCC 91
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Zile Singh through his deposition proved the attestation of the Will,
and therefore, the non-examining second witness Sr. R.S. Beniwal is
not fatal.
14. Learned counsel for the appellant further urged that the learned
Probate Court is wrong in holding that there was nothing in the
statement of PW-3/Zile Singh that contents of the Will were read over
and explained to the deceased and to him, he denied the suggestion in
his cross-examination that the Will (Ex.PW-2/1) was not read over to
Sh. Sube Singh or to him. The learned counsel for the appellant has
placed reliance on the decision of M.B. Ramesh (D) by LRs v. K.M.
Veeraje Urs (D) by LRs & Ors.3, whereby the Supreme Court held
that:
“25. As stated by this Court also in H. Venkatachala Iyengar [H.
Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 :
1959 Supp (1) SCR 426] and Jaswant Kaur [Jaswant
Kaur v. Amrit Kaur, (1977) 1 SCC 369 : AIR 1977 SC 74], while
arriving at the finding as to whether the will was duly executed, the
Court must satisfy its conscience having regard to the totality of
circumstances. The Court’s role in matters concerning wills is
limited to examining whether the instrument propounded as the last
will of the deceased is or is not that by the testator, and whether it
is the product of the free and sound disposing mind [as observed by
this Court in para 77 of Gurdev Kaur v. Kaki [(2007) 1 SCC 546].
In the present matter, there is no dispute about these factors. The
issue raised in the present matter was with respect to the due
execution of the will, and what we find is that the same was
decided by the trial court, as well as by the first appellate court on
the basis of an erroneous interpretation of the evidence on record
regarding the circumstances attendant to the execution of the will.
The property mentioned in the will is admittedly ancestral property
of Smt Nagammanni. She had to face a litigation, initiated by her
husband, to retain her title and possession over this property.
Besides, she could get the amounts for her maintenance from her
husband only after a court battle, and thereafter also she had to3
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enter into a correspondence with the appellant to get those amounts
from time to time. The appellant is her stepson whereas the
respondents are sons of her cousin. She would definitely desire that
her ancestral property protected by her in a litigation with her
husband does not go to a stepson, but would rather go to the
relatives on her side. We cannot ignore this context while
examining the validity of the will.”
15. Per Contra, learned counsel for the respondents submitted that
proving a Will requires more than just verifying the testator’s
signature, and all formalities under Section 63 of the Act must be met.
It was urged that the key witness PW-3 failed to establish that the Will
was signed by the testator in the presence of both attesting witnesses.
He could not recall the date when the testator signed the Will and
admitted that no other witness was present during the execution and
also acknowledged that he and the testator were at the Sub-Registrar’s
office for only 10 minutes, which is insufficient time for completing
the execution and registration process. Also, the Will was already
typed before they arrived, raising concerns about its authenticity.
16. Furthermore, respondents submitted that the Will was neither
read over to the testator by the Sub-Registrar nor was it proved that
the testator understood its contents, and the testator signed in Urdu,
suggesting he might not have comprehended the document, which
places an additional burden on the appellant to establish the Will’s
validity.
CM APPL. 13585/2010 & CM APPL. 33941/2017
17. It is in the aforesaid backdrop, that these applications have been
filed on behalf of the appellant to bring certain additional evidence on
the record.
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18. It is submitted that the applicant/appellant had submitted a list
of witnesses before the learned Probate Court including Mr. R.S.
Baniwal, Advocate and an application dated 10.09.2007 was filed to
summon him, and the diet money of Rs. 200/- was deposited.
However, the witness was not served and did not appear for evidence;
and upon visiting Sh. R.S. Baniwal’s office at Sub-Registrar Complex,
Pitampura, Delhi, the applicant/appellant discovered that he was
unavailable due to illness and had undergone two major surgeries at
Sir Ganga Ram Hospital. Consequently, no further attempts were
made to summon him during that period.
19. It is stated that after filing the appeal, the applicant/appellant
came to know that Mr. R.S. Baniwal, Advocate had recovered and was
now available for examination as a witness. It is, thus, stated that since
Mr. R.S. Baniwal, Advocate is an attesting witness to the impugned
will, his non-examination during the trial has adversely affected the
applicant’s material rights, and thus may allowed to be summoned and
examined to set at rest all the dust over the execution of the will.
Reliance is placed on the case of Shalimar Chemical Works Ltd. v.
Surendra Oil & Dal Mills (Refineries) & Ors.4, the relevant
paragraph is extracted below:
“8…In support of his submission he relied upon the decision of
this Court in K. Venkataramiah vs. A. Seetharama Reddy & Ors.,
1964 (2) SCR 35 (at page 46).
“… Apart from this, it is well to remember that the appellate court
has the power to allow additional evidence not only if it requires
such evidence “to enable it to pronounce judgment” but also for
“any other substantial cause”. There may well be cases where even
though the court finds that it is able to pronounce judgment on the4
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state of the record as it is, and so, it cannot strictly say that it
requires additional evidence “to enable it to pronounce judgment,”
it still considers that in the interest of justice something which
remains obscure should be filled up so that it can pronounce its
judgment in a more satisfactory manner. Such a case will be one
for allowing additional evidence “for any other substantial cause”
under Rule 27(1)(b) of the Code.”
20. The learned counsel for the respondents has objected to the said
request and placed reliance on the judgment of State Bank of India v.
Pawanveer Singh. 5
ANALYSIS AND DECISION
21. I have given my thoughtful consideration to the submissions
advanced by the learned counsel for the parties at the bar and I have
also perused the relevant record of the case.
22. First things first, insofar as the CM APPL. 13585/2010 &
33941/2017 are concerned, it would be apposite to reproduce
provisions of Order XLI Rule 27 of the CPC which provides as under:
“Order XLI Rule 27
27. Production of additional evidence in Appellate Court.–(1) The
parties to an appeal shall not be entitled to produce additional
evidence, whether oral or documentary, in the Appellate Court. But
if —
(a) the Court from whose decree the appeal is preferred has refused
to admit evidence which ought to have been admitted, or
1[(aa) the party seeking to produce additional evidence, establishes
that notwithstanding the exercise of due diligence, such evidence
was not within his knowledge or could not, after the exercise of
due diligence, be produced by him at the time when the decree
appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or
any witness to be examined to enable it to pronounce judgment, or
for any other substantial cause, the Appellate Court may allow such
evidence or document to be produced, or witness to be examined.
5
2015 (4) CLJ 482 Del.
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(2) Wherever additional evidence is allowed to be produced by an
Appellate Court, the Court shall record the reason for its
admission.”
23. A bare perusal of the aforesaid provision would show that the
additional evidence cannot be allowed to be produced at appellate
stage except where the Court whose decree is challenged in the appeal
refused to admit the evidence although it ought to have been admitted,
or additional evidence was not available despite exercise of due
diligence or the party wishing to produce it had no knowledge of such
evidence, or lastly where the appellate Court requires the document to
produce or any witness to be examined to enable it to pronounce
judgment, or for any other substantial cause.
24. In the instant case, the other alleged attesting witness, namely
Mr. R.S. Baniwal, Advocate was very much available but it appears
that the appellant did not take any diligent steps to summon the said
witness and examine him in the matter. Though, summons were once
issued thereafter further attempts were aborted. That being the case,
none of the conditions which are specified under Order XLI Rule 27
of the CPC for the production of additional evidence at the appellate
stage comes into play.
25. In the cited case of State Bank of India v. Pawanveer Singh
(supra), the appellant/judgment debtor challenged the decree passed
by the District Court not only for ejectment but also towards grant of
mesne profits claiming the same to be exorbitant. At the appellate
stage, an application was moved under Order XLI Rule 27 of the CPC
for leading evidence with regard to the market value of the property as
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also market rental value besides other commercial aspects, which
application was declined by this Court, holding as under:
“8. Mr Relan’s contention that the appellant/ defendant should
be allowed to lead evidence at this stage cannot be accepted, as the
evidence, now sought to be produced, was surely accessible to it
at the relevant stage. The law recognizes three circumstances,
for invocation of the provisions of Order 41 Rule 27 of the
CPC: First, where the trial court has refused to admit
evidence, though it ought to have been admitted. Second, when,
evidence was not available to the party concerned, despite
exercise of due diligence. Lastly, when the appellate court
requires additional evidence to be produced to enable it to
pronounce judgement or for any other substantial cause.
8.1 Surely, the appellant’s/ defendant’s case does not fall
within the ambit of the first two circumstances. In so far as the
third circumstance is concerned, according to me, having regard to
the fact that the appellant/defendant (which is, an entity with
enormous wherewithal available at its disposal) chose not to
present the necessary evidence, at its own peril, cannot, at this late
stage, be shown any indulgence. If, the appellant’s/defendant’s
request is admitted, it will set back the decision in this case by
several years. Conduct of trial involves usage of public money
and time. Such like situations do not, to my mind, fall under
the third circumstance.”
{Bold portions emphasized}
26. Reliance placed by the learned counsel for the appellant on the
decision in the case of Shalimar Chemical Works Ltd (supra) is
misplaced as it was the case where the trial Court in a suit for
permanent injunction based on allegations of infringement of its
trademark, did not allow the plaintiff to place on record original
registration certificate under the Trademarks Act, 1999. The same was
allowed to be placed at the appellate stage as the photocopies of the
same had already been proven during the course of the trial.
27. The plea by the learned counsel for the appellant that additional
evidence can also be allowed for any substantial cause is also not
sustainable as the appellant cannot be allowed to fill up the lacunae in
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his evidence at a belated stage. If the request of the appellant is
allowed, it would set the clock back in time and would result in a de
novo trial at great public costs.
28. In view of the foregoing discussion, the instant applications
merit rejection and the same are accordingly rejected.
DECISION ON APPEAL:
29. First things first, it would be apposite to reproduce the reasons
that prevailed in the mind of the learned Probate Court in deciding the
issues No. 1 and 2 against the present appellant, that go as under:
“Registration of the Will is not mandatory. However registered
document draws a presumption of its due execution but this
presumption rebuttable. In case, even it is established that Will was
not properly registered then also, if it is otherwise proved as per
law, it can be relied upon. Will in question Ex. PW2/1 was not
registered either in presence of PW-2 or RW-1 who have come
from same office of Sub-Registrar and they had no personal
knowledge about the same. Petitioner has not examined the
concerned Sub-Registrar who got it registered. That Sub-Registrar
could have been the best witness to prove that procedure of
registration adopted by him was not suffering from any defect or
lacunas. The endorsement of Sub-Registrar in the shape of stamp
impression on the back side first page of the Will that contents of
the Will were read over to the parties are falsified by PW-3 who
denied that the Will was read over by Sub-Registrar either to him
or to the testator. PW-3 stated that he remained in office of Sub-
Registrar only for about 10 minutes. This short time is highly
improbable to complete the necessary formalities and due
registration of the document in the office of Sub-Registrar. Hence
these grounds are sufficient to rebut the presumption of due
execution to be raised due to registration of the Will. In such
situation the Will in question has to be treated as unregistered
document. Otherwise also registration of the Will itself is not
sufficient to prove that it was duly executed as per requirements of
section 63 of the Act. Even if for the sake of arguments, it is
presumed that the Will was duly registered before Sub-Registrar,
then also simple registration is not sufficient to treat the Will as
valid one. If the procedure and manner prescribed under section 63
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enforced, even if it is registered. Registration of the Will and due
execution of the Will is two different things. Accordingly simple
proving of registration of the Will cannot be treated as due
execution also.
The Will Ex. PW2/1 is described as forged and fabricated
by the respondents but they have not examined any handwriting or
finger print expert to show that signatures or thumb impressions on
it were not of deceased Sh. Sube Singh. There is no dispute that
deceased was maintaining a bank account where signatures and
thumb impressions of him could be easily available but no steps
were taken to get the same compared with the Will in question so it
cannot be said that signatures and thumb impressions on the Will
are not genuine or does not belong to the deceased. However
simple existence of genuine signatures or thumb impression on
Will itself is not sufficient to treat it having been executed in the
manner as prescribed under section 63 of Indian Succession Act.
Respondents are taking contradictory stand. In their
objections, they describe the Will as forged and fabricated but in
the cross examination of witnesses of the petitioner, contradictory
suggestions about getting Will prepared under coercion, deception,
fraud and undue influence etc. has been put. RW-2 in his statement
took another contradictory ground that signatures of his father were
obtained on the Will forcibly by giving threats to throw away him
from the house and the petitioner used to pressurize him from time
to time. The evidence of RW-3 is also not of much help to the
respondents to prove that signatures and thumb impressions of
deceased were obtained forcibly on the Will. Respondents did not
take any firm ground to challenge the correctness of the Will and
appears to have taken all types of defenses including contradictory
one. However the weakness of defence itself is not a ground to
presume the due execution of the Will which fact is required to be
established by the petitioner by leading evidence.
The manner of execution of the Will is defined in section
63 of Indian Succession Act. Will is required to be attested atleast
by two attesting witnesses. Though as per section 68 of Indian
Evidence Act, examination of one attesting witness in court itself is
sufficient to prove the Will but that witness must also through his
deposition prove the attestation of the Will by himself as well as by
the second witness. A person propounding the Will is also under an
obligation to show how and in which manner both witnesses
attested and signed the Will. Examination of both attesting witness
in court is not required but the manner of attestation by both must
come on record. Where an attesting witness simply proves
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second witness also. Here in the present case, Will Ex. PW2/1 was
not executed or registered in presence of PW-1. Attesting witness
PW-3 has not spoken any word about the attestation of the Will in
question by second witness Sh. R.S. Beniwal, advocate. PW-3
deposed only about his own attestation of the Will. Infact the
second witness advocate Sh. R.S. Beniwal was not present when
PW-3 signed on the Will. This advocate as per admission made by
PW-3 even had not signed on the Will in his presence. PW-3 even
did not know when and where the second witness signed on it. The
existence of alleged signatures of an advocate Sh. R.S. Beniwal
being second attesting witness on the Will itself is not sufficient to
prove the due execution of the Will because it is not established
when and in which manner this attesting witness also signed on it.
Signatures of this attesting witness Sh. R.S. Beniwal is not proved
by anyone, even by PW-3. At the most from the statement of PW-
3, it can be said that attestation of Will by one witness is
established by the petitioner but she has failed to prove how and in
which manner, the second witness signed on it whether in presence
of testator or by getting his personal acknowledgment. The manner
of attestation of the Will by two witnesses as described in clause
(c) of Section 53 of Indian Succession Act is not proved by the
petitioner. Non examination of second attesting witness Sh. R.S.
Beniwal is thus fatal to the case of the petitioner in the present
circumstances and it can be said that petitioner has failed to prove
the due execution of the Will in question. In this regard reliance
can be placed upon decision of Supreme Court given in case Janki
Narayan Bhoir vs. Narayan Namdeo Kadam (2003) 2 see 91.
Accordingly, it is hereby held that due execution of the Will as per
requirement of section 63 (c) of Indian Succession Act is not
established and thus this Will Ex. PW2/1 cannot be enforced.
Further more, no evidence has been led by the petitioner
that Will was drafted or prepared at the instructions of the
deceased. It is not disclosed when, where and who had prepared the
Will and at whose instructions. PW-3 stated in his cross
examination that it was already typed when he reached in the office
of Sub-Registrar. It was necessary for the petitioner to prove that
Will was got prepared by testator himself or at his instructions.
There is nothing in the statement of PW-3 to point out that contents
of the Will were read over and explained to the deceased by any
one before putting their signatures/thumb impressions on it. PW-3
admitted in his eross examination that Will was neither read over to
him nor to the deceased by the Sub-Registrar. It appears that
deceased was not knowing English language as he had put
signatures in Urdu. Petitioner was required to show that testator
executed the Will after understanding the contents but she failed to
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prove this fact. This makes an additional ground not to grant any
relief to the petitioner as prayed for.
Counsel for the respondents had cited case law Smt. Devku
vs. Smt. Sunari AIR 2008 HP 15. When the relations between
deceased and respondents were cordial and not strained, then non
giving of any reasons of excluding them from the benefit of estate
also create a suspicion which is not sufficiently removed by the
petitioner.
Hence in view of the above discussions, Will Ex. PW2/1
cannot be held as duly executed Will being not proved as per law.
Failure of the respondents to establish their defence itself is not a
ground to grant the relief claimed by the petitioner automatically.
Petitioner is not entitled to any relief on basis of this Will. Both
these issues are thus decided against the petitioner and in favour of
respondents.”
30. On a careful perusal of the aforesaid reasons, although there
was no evidence to suggest that the deceased-testator was suffering
from any kind of mental disability or any unsoundness of mind,
however, there are certain doubtful aspects that came out in the
testimony of PW-3/Mr. Zile Singh besides other attendant
circumstances, create grounds for raising justifiable suspicion about
the genuineness of the Will purportedly executed by the deceased-
testator.
31. At this juncture, it would be apposite to reproduce Section 63 of
the Act, 1925 which provides as follows:
“63. Execution of unprivileged wills.–Every testator, not being a
soldier employed in an expedition or engaged in actual warfare,
1[or an airman so employed or engaged,] or a mariner at sea, shall
execute his will according to the following rules:–
(a) The testator shall sign or shall affix his mark to the will, or it
shall be signed by some other person in his presence and by his
direction.
(b) The signature or mark of the testator, or the signature of the
person signing for him, shall be so placed that it shall appear that it
was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of
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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.”
32. It would also be appropriate to reproduce Section 68 of the
Indian Evidence Act, 1872, which provides as follows:
“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.]
33. It is well ordained in law that although Section 68 of the Indian
Evidence Act, 1872, postulates the mode and manner of proof of
execution of the document, which is required by law to be attested
stating that the execution must be proved by at least one of the
attesting witness if an attesting witness is alive and subject to the
process of the Court and capable of giving evidence. However,
compliance with such statutory requirement by itself is not sufficient
since the mandate of Section 63 of the Act must also be credibly
established.
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34. Reference can be invited to the decision in the case of Smt.
Jaswant Kaur v. Smt. Amrit Kaur6, wherein the Supreme Court
had an occasion to lay down the proposition of law in the following
manner:
“10. There is a long line of decisions bearing on the nature and
standard of evidence required to prove a will. Those decisions have
been reviewed in an elaborate judgment of this Court in R.
Venkatachala Iyengar v. B.N. Thimmajamma [AIR 1959 SC 443 :
1959 Supp 1 SCR 426]. The Court, speaking through
Gajendragadkar, J., laid down in that case the following
propositions :
1. Stated generally, a will has to be proved like any other
document, the test to be applied being the usual test of the
satisfaction of the prudent mind in such matters. As in the case of
proof of other documents, so in the case of proof of wills, one
cannot insist on proof with mathematical certainty.
2. Since Section 63 of the Succession Act requires a will to be
attested, it cannot be used as evidence until, as required by Section
68 of the Evidence Act, 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.
3. Unlike other documents, the will speaks from the death of the
testator and therefore the maker of the will is never available for
deposing as to the circumstances in which the will came to be
executed. This aspect introduces an element of solemnity in the
decision of the question whether the document propounded is
proved to be the last will and testament of the testator. Normally,
the onus which lies on the propounder can be taken to be
discharged on proof of the essential facts which go into the making
of the will.
4. Cases in which the execution of the will is surrounded by
suspicious circumstances stand on a different footing. A shaky
signature, a feeble mind, an unfair and unjust disposition of
property, the propounder himself taking a leading part in the
making of the will under which he receives a substantial benefit
and such other circumstances raise suspicion about the execution of
the will. That suspicion cannot be removed by the mere assertion
of the propounder that the will bears the signature of the testator or
that the testator was in a sound and disposing state of mind and6
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memory at the time when the will was made, or that those like the
wife and children of the testator who would normally receive their
due share in his estate were disinherited because the testator might
have had his own reasons for excluding them. The presence of
suspicious circumstances makes the initial onus heavier and
therefore, in cases where the circumstances attendant upon the
execution of the will excite the suspicion of the court, the
propounder must remove all legitimate suspicions before the
document can be accepted as the last will of the testator.
5. It is in connection with wills, the execution of which is
surrounded by suspicious circumstances that the test of satisfaction
of the judicial conscience has been evolved. That test emphasises
that in determining the question as to whether an instrument
produced before the court is the last will of the testator, the court is
called upon to decide a solemn question and by reason of
suspicious circumstances the court has to be satisfied fully that the
will has been validly executed by the testator.
6. If a caveator alleges fraud, undue influence, coercion etc. in
regard to the execution of the will, such pleas have to be proved by
him, but even in the absence of such pleas, the very circumstances
surrounding the execution of the will may raise a doubt as to
whether the testator was acting of his own free will. And then it is a
part of the initial onus of the propounder to remove all reasonable
doubts in the matter.”
35. In light of the said proposition of law, reverting to the instant
matter, it is evident that the deceased only used to sign in Urdu
whereas the Will was typed in English. The scribe or writer of the
Will was not produced. Further, PW-3/Mr. Zile Singh testified that the
Will (Ex.PW-2/1) had been signed by the deceased-testator at point
‘A’ in his presence and he had also signed at point ‘B’, but at the same
time he testified that no one else signed the Will except him. In other
words, although the signing of the Will was proven by PW-3/Mr. Zile
Singh, he failed to prove the attestation of the Will in the manner as
provided by Section 63(c) of the Act.
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36. Without further ado, the facts of the present matter appear to be
squarely covered by the decision in the case of Jagdish Chand
Sharma vs Narain Singh Saini (Dead) Thr. Lrs.7, wherein it was
held as under:
“51. Janki Narayan Bhoir [(2003) 2 SCC 91] witnessed a fact
situation where one of the attesting witnesses of the will, though
both were alive at the relevant time, was produced to prove the
execution thereof. The scribe of the document was also examined.
The attesting witness deposed that he had not seen the other
witness present at the time of execution of the will and further he
did not remember as to whether he along with the latter were
present either when the testator had put his signature on the will or
that he had identified the person who had put the thumb impression
on the document. The issue raised before this Court was that the
evidence of the said attesting witness had failed to establish the
attestation of the will by the other attesting witness who though
available had not been examined and thus the will was not
proved. The contrary plea was that though Section 63 of the Act
required attestation of a will by at least two witnesses, it could be
proved by examining one attesting witness as per Section 68 of the
1872 Act and by furnishing other evidence as per Section 71
thereof.
52. While dwelling on the respective prescripts of Section 63 of the
Act and Sections 68 and 71 of the 1872 Act vis-à-vis a document
required by law to be compulsorily attested, it was held in Janki
Narayan Bhoir case [(2003) 2 SCC 91] that if an attesting witness
is alive and is capable of giving evidence and is subject to the
process of the court, he/she has to be necessarily examined before
such document can be used in evidence. It was expounded that on a
combined reading of Section 63 of the Act and Section 68 of the
1872 Act, it was apparent that mere proof of signature of the
testator on the will was not sufficient and that attestation thereof
was also to be proved as required by Section 63(c) of the Act. It
was, however, emphasised that though Section 68 of the 1872 Act
permits proof of a document compulsorily required to be attested
by one attesting witness, he/she should be in a position to prove the
execution thereof and if it is a will, in terms of Section 63(c) of the
Act viz. attestation by two attesting witnesses in the manner as
contemplated therein. It was exposited that if the attesting7
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witness examined besides his attestation does not prove the
requirement of the attestation of the will by the other witness,
his testimony would fall short of attestation of the will by at
least two witnesses for the simple reason that the execution of
the will does not merely mean signing of it by the testator but
connotes fulfilling the proof of all formalities required under
Section 63 of the Act. It was held that where the attesting witness
examined to prove the will under Section 68 of the 1872 Act fails
to prove the due execution of the will, then the other available
attesting witness has to be called to supplement his evidence to
make it complete in all respects.” {bold portions emphasized}
37. In view of the foregoing discussion, this Court finds that the
impugned judgment passed by the learned Probate Court does not
suffer from any illegality, perversity or any incorrect approach in law.
Learned Probate Court has rightly held that although PW-3 has proven
his own attestation of the Will in the manner provided under Section
68 of the Indian Evidence Act, 1872, however, the conditions laid
down in clause (c) of Section 63 of the Act were not proven as there
was no evidence as to when did the second witness sign or whether he
signed in the presence of the deceased-testator after getting his
personal acknowledgment.
38. In view of the above discussion, the present appeal fails and the
same is hereby dismissed.
DHARMESH SHARMA, J.
APRIL 24, 2025
Sadiq
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