Page 1 1

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.4181-4182 OF 2015

(ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014

JAGDISH CHAND SHARMA ...….APPELLANT

Vs.

NARAIN SINGH SAINI (DEAD) …..RESPONDENTS

THROUGH HIS LRs & Ors.

J U D G M E N T

AMITAVA ROY, J.

Leave granted.

1. The genesis of the lingering dissension in the instant

proceeding lies in the Will claimed by the appellant

herein to have been executed on 22-10-1973 by Nathu

Singh (since deceased), the predecessor in the interest of

the respondents, thereby bequeathing the property

mentioned therein to him (appellant). The judgment and

order dated 15-05-2007 passed in P C No. 249/1980

(re-numbered as PC No. 160/2006), by the District

Judge, Tis Hazari Court, Delhi, granting Letter of

Page 2 2

Administration to him, has been reversed by the High

Court of Delhi by its judgment and order dated

02-07-2014 rendered in FAO No. 279 of 2007 as assailed

herein.

2. We have heard Mr. Paras Kuhad, Sr. Advocate for the

appellant and Mr. Daljeet Singh, Senior Advocate for the

respondents.

3. A brief outline of the pleaded facts would portray the

rival orientations. The appellant, to reiterate, filed an

application under Section 276 of the Indian Succession

Act 1925 (for short hereinafter referred to as the Act) with

the Will annexed, seeking grant of Letter of

Administration. He stated that the Will had been

executed by Mr. Nathu Singh on 22-10-1973, as the sole

and absolute owner amongst others of Municipal House

Tax No. 807 (Private No. A/152 to A/162/1) situated at

Sukhdev Nagar, Kotla Mubarakpur, New Delhi,

bequeathing the same to him. The appellant stated that

the testator nursed great love and affection for him for

Page 3 3

the services rendered by him and was not favourably

disposed towards his sons for their disagreeable conduct

and activities. It was mentioned that the testator expired

on 02-08-1980 at Delhi whereafter, Shri Harswaroop

Sharma, resident of 41, Subhash Market, Kotla

Mubarkpur, informed him to receive the Will lying in his

custody. It was, thereafter, according to the appellant

that the application for Letter of Administration was filed.

In the petition, he averred the names and particulars of

the sons and daughters of the deceased testator and

disclosed further that the subject matter of the Will was

located in New Delhi. That the Will was executed and

made in Delhi was also mentioned. The appellant did

provide and sign a verification declaring the correctness

of the statements made therein. Further another

verification subscribed by Mr. G. C. Kumar, Advocate,

Delhi in the capacity of an attesting witness to the Will,

was also made.

Page 4 4

4. On the receipt of the notice of the proceedings

registered on this petition, objections were filed by Mr.

Jaswant Singh (since deceased) son of the testator and

also by his other sons and daughters separately. For the

sake of brevity the substance of the objections registered

by the children of the testator would be synopsised.

5. It was pleaded that the property said to have been

bequeathed was ancestral joint Hindu family property

and thus, the testator had no authority to execute the

Will in favour of the appellant. While denying the claim

that the appellant did enjoy the love and affection of the

testator, it was asserted that he (appellant) in fact had

been appointed by the testator as his rent collector on

11-05-1973 and was endowed with a registered power of

attorney. The objectors averred that as the appellant

failed to render his sincere services, the power of attorney

was revoked. That the appellant did create tenancy in

favour of his wife, Shrimati Santosh Kumar Sharma in

respect of shop No.F–16 belonging to the testator without

Page 5 5

his knowledge for which he (testator) had instituted a

suit against him (appellant) in the year 1975 for recovery

of damages was also stated. The objectors did further

refer to several complaints made by the testator against

the appellant for his unsatisfactory services and misuse

of power including misappropriation of rents collected by

him. They also stated that the appellant had appeared

as a witness in a criminal case against the deceased and

was also placed under suspension by his employer where

he served as a teacher.

6. The respondents/objectors averred further that the

appellant was present at the time of execution of two

other Wills by the testator in favour of one Kisan Lal and

Vimala Devi and suggested that he (appellant) by playing

fraud on him (testator) might have got his Will signed, in

the process of getting the above two documents executed.

In all, the respondents/objectors assertively emphasized

that the facts and circumstances prevailing at the

relevant point of time did not at all warrant/justify

Page 6 6

execution of any Will by Mr. Nathu Singh in favour of the

appellant by depriving his children. They, in categorical

terms, denied the execution of the Will and also the

signatures and the thumb impressions of the Mr. Nathu

Singh thereon as claimed by the appellant. They averred

as well that the testator was conversant only with Hindi

language and that the contents of the Will in English had

never been read over or explained to him.

7. In his rejoinder, the appellant refuted the

respondent’s cavil based on jointness of the property.

While insisting that the property was the self acquired

asset of the deceased, the appellant stated that therefrom

the testator, not only, had conveyed portions by way of

sale, but also, had gifted some to his children. He

categorically denied the allegation of his disagreeable

activities and misuse of powers. He instead, did impute

fraudulent act of the respondent, Mr. Jaswant Singh in

getting his name mutated in the revenue records in place

of Mr. Nathu Singh for which, a litigation between the

Page 7 7

two did ensue. He accused the said respondent for being

responsible for institution of cases against him by Mr.

Nathu Singh.

8. On these competing pleadings, the following issues

were framed:

1.Whether Mr. Nathu Singh Saini, deceased

executed the Will dated 22-10-1973, validly while

possessed of a sound disposing mind?

2.Relief.

8.1 The parties thereafter adduced oral and documentary

evidence. Whereas, the appellant examined six witnesses

including himself, Mr. G. C. Kumar, Advocate (attesting

witness), AW 3 Mr. A. K. Jain, Sub-Registrar, New Delhi

and AW 5 Mr. Budh Ram (attesting witness), the

respondents offered 8 witnesses in support of their case.

Needless to say, the appellant proved amongst the others

the Will, Exhibit A-1.

9. The learned Trial Court, on its assessment of the

evidence adduced, concluded that the appellant could

Page 8 8

prove that the Will dated 22-10-1973 Exhibit A -1 was

executed by the testator in a sound disposing state of

mind after fully understanding its contents and that it

was duly registered. Having held so, it observed that the

onus of proving that the document was not a genuine

Will did shift to the respondents. On an analysis of the

evidence offered by the respondents, the learned Trial

Court was of the view that the same was inadequate to

displace the validity of the Will. It thus returned a

finding that the Will dated 22-10-1973 Exhibit A-1 had

been validly executed by the testator with a sound

disposing state of mind in presence of two attesting

witnesses. Consequently, the Letter of Administration as

prayed for, by the appellant vis-à-vis the said Will was

granted.

10. Aggrieved, the respondents preferred appeal being

FAO 279/2007 in the High Court of Delhi. By the

impugned judgment and order, as adverted to herein

above, the verdict of the learned Trial Court has been

Page 9 9

reversed. The High Court on a threadbare evaluation of

the pleadings and the evidence on record, on the

touchstone of the relevant provisions of the Act and the

Indian Evidence Act, 1872 (for short hereinafter referred

to as Act 1872), determined that the Will dated

22-10-1973 had not been proved as per law and that no

Probate or Letter of Administration could be granted.

Referring to the testimony of the attesting witnesses, the

High Court held that they could not prove the execution

of the Will as well as the attestation thereof within the

meaning of Section 63 (c) of the Act, a mandatory legal

edict. The High Court also dismissed the plea based on

Section 71 of the Act, 1872 noting that the evidence of

the attesting witnesses produced by the appellant, did

not only demonstrate lack of intention to attest the Will,

but also, rendered the execution of the document and

their signatures thereon doubtful. The High Court

noticed as well the circumstances attendant on the

bequest to render it doubtful in view of the suspicious

bearing thereof. It amongst others noted therefore to

Page 10 10

arrive at this conclusion, that the deceased/testator was

versed only in Urdu and that the Will was drafted in

English, and that on the very same day he had executed

two other Wills involving different properties with the

possibility that the Will in question, was got signed, by

representing it to be a part of the other transactions. The

history of past litigation between the testator and the

appellant involving allegations of his unauthorized acts

and misuse of power also did weigh with the High Court

to deduce that it was unlikely that the testator would out

of natural love and affection bequeath his property or any

portion thereof to such a person, by depriving his own

children. The decision of the Trial Court was thus

interfered with.

11. Mr. Kuhad has insistently argued that the impugned

judgment and order suffers from apparent misreading of

pleadings and evidence on the record and is thus liable to

be annulled. Relying in particular on the testimony of

the witnesses AW 1 and AW 5, the learned senior counsel

Page 11 11

has urged that the execution and the attestation of the

Will in question have been duly proved as required under

Section 63 of the Act. Drawing sustenance from Section

71 of Act 1872, the learned senior counsel has

maintained that even assuming that the testimony of AW

1 and AW 5 was deficient vis-à-vis the requirement of the

Section 63 (c) of the Act, the appellant having examined

both the attesting witnesses, it was permissible for him to

prove the execution and attestation of the Will by

adducing other evidence. Mr. Kuhad has thus argued

that the evidence of AW 3, Sub-Registrar before whom,

the Will had been registered on completion of all legal

formalities, did as well assuredly establish the execution

and attestation of the Will as required by law and thus

the High Court had erred in holding to the contrary. As

the testimony of AW 3, the Sub-Registrar amply proved

all the essentials of Section 63 (c) of the Act, the learned

Trial Court had validly granted the Letter of

Administration, he maintained. Referring to the evidence

of AW 1, Mr. G. C. Kumar, Advocate, Mr. Kuhad urged

Page 12 12

that the verification signed by him at the foot of the

application for Letter of Administration did buttress, the

correctness of the contents thereof and, thus the stray

deviations in his version at the trial ought to have been

discarded as inconsequential. In any case, the

casualness of the testimony of the attesting witnesses

does not adversely impact upon the validity of the Will, as

such conduct could have been the yield of an endeavour

of the respondents to gain them over. While repudiating

the conclusions of the High Court inferring denial of

execution by the attesting witnesses and lack of animus

on their part to attest the Will as well as the suspicious

circumstances noticed by it, to be perverse and opposed

to the weight of the materials on record, the learned

senior counsel insisted that having regard to the basic

requisites of valid Will in law, namely, free and sound

disposing state of mind of the testator, understanding of

the implication of the bequest, admission of execution

thereof by him/her and due attestation thereof, the

deductions of the High Court contrary thereto are

Page 13 13

indefensible and are thus liable to be negated. Apart

from contending that the respondents had failed to

discharge their onus to prove their objections in the face

of the overwhelming evidence of execution and attestation

of the Will in law, the learned senior counsel has urged

that the High Court had fallen in error as well in acting

upon the additional evidence adduced before it under

Order 41 Rule 27 of the Civil Procedure Code (for short

hereinafter referred as Code), without offering an

opportunity to the appellant to counter such prayer. The

following decisions were relied upon to reinforce the

above contentions.

AIR 1955 SC 346 Bhaiya Guruji Dutt Singh Vs Gangotri

Dutt Singh, AIR 1959 SC 443 H Venkatachala Iyengar Vs

B N Thimmajamma and Others,(1974) 2 SCC 600 Kewal

Pati (Smt) Vs State of UP and Others, (1995) 4 SCC 459

Surendra Pal and Ors. Vs. Dr. (Mrs.)Saraswati Arora and

Anr.,(2003) 2 SCC 91 Janki Narayan Bhoir Vs. Narayan

Namdeo Kadam, (2005) 8 SCC 67 Pentakota

Page 14 14

Satyanarayana and Ors. Vs. Pentakota Seetharatnam

and Ors., (2013) 7 SCC 490 M.B. Ramesh (D) by LRs. Vs.

KM Veeraje Urs (D) by LRs and Ors.

12. Per contra, Mr. Singh has argued that it being

apparent on the face of the records that neither the

execution nor the attestation of the Will involved had

been proved by any of the witnesses, the impugned

judgment is unassailable and thus the instant petition is

liable to be dismissed in limine. The findings recorded by

the High Court being founded on an indepth scrutiny of

the materials on record, are unmistakably conclusive and

thus this Court would not embark upon a fresh appraisal

thereof, he maintained. The learned senior counsel by

referring to the evidence of the witnesses AW 1, AW 5 in

particular has emphatically pleaded that as the appellant

had failed to prove either the execution or the attestation

of the Will, Section 71 of the Act of 1872 is inapplicable

to the facts of the present case, and thus the testimony of

AW 3 is wholly irrelevant. Without prejudice to this, the

Page 15 15

learned senior counsel has urged that the evidence of AW

3 as well falls short of the requirements of Section 63 (c)

of the Act and thus, cannot be invoked to the advantage

of the appellant. As the evidence of AW 1 and AW 5 does

not attract the contingencies enumerated in Section 71 of

Act 1872, the version of AW 3, in any view of the matter,

is of no avail to the appellant, he asserted. The learned

senior counsel maintained that even de hors the

additional evidence laid before the High Court under

Order 41 Rule 27 of the Code, the findings recorded in

the impugned judgment and order are sustainable in law

and on facts and thus no interference therewith is called

for. Mr. Singh relied on the decisions hereunder to

endorse his arguments.

(1977) 1 SCR 925 Smt. Jaswant Kaur Vs Smt. Amrit Kaur

and Ors., (2001) 9 SCC 503 Neki Ram and Ors. Vs. Ama

Ram Godara and Ors., (2003) 2 SCC 91 Janki Narayan

Bhoir Vs. Narayan Namdeo Kadam.

Page 16 16

13. The contentious pleadings and the assertions based

thereon in the backdrop of the evidence as a whole have

been duly analysed by us. The competing perspectives

notwithstanding, the purport and play of Section 63 of

the Act read with Sections 68 and 71 of Act 1872 as

deciphered by various judicial enunciations would have a

decisive bearing on the process of resolution of the

irreconcilable issues that demand to be addressed. It

would thus be apt, nay, imperative to refer to these legal

provisions before embarking on the appreciation of the

evidence to the extent indispensible. Section 63 of the

Act and Sections 68 and 71 of the Act 1872, are thus

extracted hereunder for ready reference.

Indian Succession Act, 1922

“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.

Page 17 17

(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 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 acknowledgement of his

signature or mark, or 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 by

present at the same time, and no particular form of

attestation shall be necessary.

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.

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.

Page 18 18

14. As would be evident from the contents of Section 63

of the Act that to execute the Will as contemplated

therein, the testator would have to sign or affix his mark

to it or the same has to be signed by some other person

in his presence and on his direction. Further the

signature or mark of the testator or the signature of the

person signing for him has to be so placed that it would

appear that it was intended thereby to give effect to the

writing as Will. The Section further mandates that the

Will shall have to be attested by two or more witnesses

each of whom has seen the testator sign or affix his mark

to it or has seen some other persons sign it, in the

presence and on the direction of the testator, or has

received from the testator, personal acknowledgement of

a signature or mark, or the signature of such other

persons and that each of the witnesses has signed the

Will in the presence of the testator. It is, however,

clarified that it would not be necessary that more than

one witness be present at the same time and that no

particular form of attestation would be necessary.

Page 19 19

15. It cannot be gainsaid that the above legislatively

prescribed essentials of a valid execution and attestation

of a Will under the Act are mandatory in nature, so much

so, that any failure or deficiency in adherence thereto

would be at the pain of invalidation of such

document/instrument of disposition of property.

15.1. In the evidentiary context Section 68 of the Act

1872 enjoins that if a document is required by law to be

attested, it would not be used as evidence unless one

attesting witness, at least, if alive, and is subject to the

process of Court and capable of giving evidence proves its

execution. The proviso attached to this Section relaxes

this requirement in case of a document, not being a Will,

but has been registered in accordance with the provisions

of the Indian Registration Act 1908 unless its execution

by the person by whom it purports to have been

executed, is specifically denied.

15.2. These statutory provisions, thus, make it

incumbent for a document required by law to be attested

Page 20 20

to have its execution proved by at least one of the

attesting witnesses, if alive, and is subject to the process

of Court conducting the proceedings involved and is

capable of giving evidence. This rigour is, however, eased

in case of a document also required to be attested but not

a Will, if the same has been registered in accordance with

the provisions of the Indian Registration Act, 1908 unless

the execution of this document by the person said to

have executed it denies the same. In any view of the

matter, however, the relaxation extended by the proviso

is of no avail qua a Will. The proof of a Will to be

admissible in evidence with probative potential, being a

document required by law to be attested by two

witnesses, would necessarily need proof of its execution

through at least one of the attesting witnesses, if alive,

and subject to the process of the Court concerned and is

capable of giving evidence.

15.3 Section 71 provides, however, that if the attesting

witness denies or does not recollect the execution of the

Page 21 21

document, its execution may be proved by other

evidence. The interplay of the above statutory provisions

and the underlying legislative objective would be of

formidable relevance in evaluating the materials on

record and recording the penultimate conclusions. With

this backdrop, expedient it would be, to scrutinize the

evidence adduced by the parties.

15.4 As hereinbefore mentioned, the appellant has

endeavoured to prove the execution and attestation of the

Will, Ex. A–1 through AW 1 Mr. G. C. Kumar and AW 5

Mr. Budh Ram. He has examined as well AW 3 Mr. A. K.

Jain, Sub Registrar, New Delhi before whom the Will was

registered on the very same day of its execution i.e.,

22-10-1973.

15.5. Be that as it may, AW 1 Mr. Kumar deposed on

oath that he was enrolled as a lawyer in or about 1971

and used to assist his father who was a deed writer in

Urdu language. The witness stated that he used to come

to Tis Hazari Court for attending his cases. He testified

Page 22 22

to have seen the Will Ex. A-1 which he claimed had been

drafted by him. He failed to remember as to whether the

testator, Mr. Nathu Ram Singh had come to his father in

his presence or that his father had given him instructions

to write the Will. The witness even failed to remember

whether the Will had been given to him by his father or to

the testator. He also could not recall as to whether he

was present when the testator had signed the Will. The

witness, however, admitted that Ex. A-1 did bear his

signatures as an attesting witness but deposed that due

to lapse of time, he did not remember whether any other

person was also present and had attested the document

when he had signed it. He, however, stated to have been

present in the office of the Sub Registrar when the Will,

Ex. A-1 was presented for registration. He also admitted

to have signed the document on the backside thereof in

the presence of the clerk of the office. The witness stated

that he had also identified the testator before the Sub

Registrar but clarified that it was as per the prevalent

practice for an identifying witness to do so. He added by

Page 23 23

stating that he had signed the document only in that

capacity. The witness deposed further, that he could not

say whether the thumb impression and the signatures of

the testator at the time of the registration and appearing

on the back of page one of the Will had been obtained in

his presence or not. He even failed to recall as to

whether the contents of the Will had been read over and

explained to the testator by him or by his father.

15.6 This witness was declared hostile and was

cross-examined on behalf of the appellant in course

whereof he deposed that he could not say whether he had

signed the Will in presence of the testator. When

confronted, he admitted to have signed the certificate at

the foot of the application in Section 276 of the Act

praying for grant of Letter of Administration but denied to

have done so as an attesting witness of the Will. He

stated instead that he had put his signatures as the

appellant wanted him to do so. He even denied to have

read the contents of the certificate. He refuted the

Page 24 24

suggestion that he had made a false statement in Court

being won over by the respondents.

16. AW 2 Shri. Harswaroop has stated on oath that in

November, 1973, the testator had handed over to him

one Will with a direction to deliver it to the appellant

upon his death. According to this witness, he did so

after the demise of Mr. Nathu Singh and handed over the

Will to the appellant. The witness stated to have seen the

Will Ex. A-1, bearing the signature of Mr. Nathu Singh at

several places. He claimed of being conversant with the

handwriting and signature of the Mr. Nathu Singh.

Admittedly, however, this witness is neither one to the

execution of the Will, nor the attestation thereof as

obligated by law.

17. Before reverting to AW 3 in the ordinary sequence,

the testimony of AW 5 figuring in the chain of attestation

as presented by the appellant would be referred to. This

witness, Mr. Budh Ram claimed to have known the

deceased/testator. He stated on oath that he had seen

Page 25 25

the document Ex. A-1 and identified his signatures

thereon. He deposed to have signed the document in

presence of the testator. He, however, hastened to add

that he had not seen the testator signing the Will. He

denied to have appeared before the Sub Registrar or to

have identified the testator before the said authority. He

stated that he had signed the document outside the

office. Though, he asserted that testator was mentally

alert on the date on which he (witness) had signed the

Will, he clarified that he did not do so on the asking of

the testator. The witness, however, admitted the

presence of the testator at that time.

17.1 In cross-examination, the witness disclosed that

the appellant was also present on the date on which he

had signed the document and that he did not know the

contents of the said document. He stated further that he

had not been told that any Will was executed by Mr.

Nathu Singh and that he was to attest it. Noticeably, this

witness had not been declared to be hostile.

Page 26 26

18. AW 3 Mr. A. K. Jain who at the relevant time was the

Sub Registrar, New Delhi, on oath, stated that the Will

Ex. A-1 had been presented before him for registration on

22-10-1973. According to this witness, the testator was

identified before him by one Mr. Budh Ram and Mr. G. C.

Kumar, Advocate. The witness stated that these persons

did sign the document in his presence as identifying

witnesses on the back of page No. 1 of Ex. A-1. He

deposed as well that the testator was read out the

contents of the document and was asked as to whether

he was executing the Will himself and that on his

acknowledgement in the affirmative, he (witness) made

his endorsement on the document in his own hand.

While proving his endorsement, the witness iterated that

the testator had admitted the execution of the Will and

also proved his (testator) signatures and thumb

impressions thereon.

18.1 In his cross-examination, the witness stated that

he did not know the testator personally and that he had

Page 27 27

made his endorsements on the Will in the capacity of a

registering authority only. He admitted that on the very

same date, another document purporting to be a Will

executed by Mr. Nathu Singh was also presented for

registration for which the identifying witnesses had been

the same.

19. The testimony of AW 4 Mr. Ramchander Sharma is

to the effect that the appellant had borne the expenses

for the firewood of the funeral pyre of the deceased Nathu

Singh. The testimony of AW 7 Mr. M. S. Santosh Goel

and AW 8 Mr. Satish Kumar being insignificant vis-à-vis

issues involved is not necessary to be dilated upon.

20. AW 6 Mr. Jagdish Chander Sharma, appellant

deposed that he had joined the deceased Mr. Nathu

Singh, in the year 1952 on the recommendation of his

brother-in-law. He stated that the deceased entrusted

him the duty to realise rent of his property and also to

look after the matters pertaining to litigation in

connection therewith. The witness stated that in the

Page 28 28

process, he was also made the attorney of the deceased

and while realising rent used to accompany Mr. Jaswant

Singh, his (Nathu Singh) son. He referred to some

differences between the father and the son with regard to

alleged wrong doings of the latter qua immovable

properties resulting in institution of a suit by Mr. Nathu

Singh against Mr. Jaswant Singh. According to this

witness, Mr. Jaswant Singh was inimically disposed

towards him for which he made a complaint against him

in his department for which he was placed under

suspension. He stated that Mr. Nathu Singh thereafter,

in the interest of his job, cancelled his power of attorney

but asked him to look after the property and to realise

the rents. According to the witness, Mr. Jaswant Singh

out of his persisting animosity caused a raid to be

conducted in his house, and after the demise of Mr.

Nathu Singh did openly intimidate him of dire

consequences. He denied to have visited the office of the

Sub Registrar on 22-10-1973 and insisted that AW 1 Mr.

G. C. Kumar, Advocate had signed the certificate of the

Page 29 29

petition under Section 276 of the Act. He also asserted

that AW 1 had attested the Will after seeing the same.

According to this witness, the relationship of Mr. Nathu

Singh with his sons was strained as they had been

endeavouring to take over the possession of his

properties. The witness identified the signature of the

testator on the Will Ex. A-1.

21. In his detailed cross-examination, the witnesses

referred to several legal proceedings, civil and criminal

instituted by the testator which according to him,

however, did fizzle out with time without yielding any

adverse verdict against him. While mentioning that Mr.

Nathu Singh used to dispose of his properties by

executing Wills, the witness also mentioned about

litigations between him and his son Mr. Jaswant Singh.

He admitted that at the time of death of the testator, his

wife, sons, daughters and several grand children were

alive. In categorical terms, he stated that the testator

had no quarrel with his wife and daughters. He also

Page 30 30

mentioned about gift of properties by Mr. Nathu Singh to

his sons.

22. The testimony of RW 1 Mr. Ramesh Kumar, RW 2

Mr. M. S. Rao and RW 4 Mr. Ramesh Chander Sharma

being not of any determinative significance is not being

referred to. RW 3 Mr. Narayan Singh Saini, son of the

testator deposed that his(testator) family comprised of his

wife, Smt. Chanderwati, three sons and three daughters.

He stated that during the life time of the testator, he had

executed three separate gift deeds conveying property to

each of his sons. That Mr. Nathu Singh had a host of

grand children was also stated by this witness. He

mentioned in particular that the testator had a very

cordial relationship with the children till he died so much

so that they along with the grand children used to

congregate on all family functions. He averred that the

testator had appointed the appellant as his attorney for

collecting rent from his tenants. Thereby, the testator

had also authorized the appellant to prepare documents

Page 31 31

with regard to the properties which he intended to sell

from time to time. The witness deposed that the testator

eventually had to cancel the power of attorney as the

appellant was found indulging in interpolation of

tenancies without his consent and with malafide

intention misappropriated his properties. He stated

further that at the time of his death, the testator was

aged ninety years. He reiterated that the Will in question

was deceitfully inserted amongst other documents to

procure the signature of the testator.

23. The version of RW 5 Mr. Gulab Chand and RW 6 Mr.

Bhupesh Gupta is also of not any consequence vis-à-vis

the issues involved. RW 7 Mr. Ram Chander Saini

deposed on oath that he used to represent Mr. Nathu

Singh in various legal proceedings including one

instituted against the appellant. He denied the

suggestion that Mr. Nathu Singh had a very cordial

relationship with the appellant.

Page 32 32

24. RW 8 Mr. Rajinder Singh, grandson of Mr. Nathu

Singh, in his statement on oath expressed his ignorance

about any litigation between his grandfather and his

father Mr. Jaswant Singh.

25. The fascicule of the evidence viewed as hereinabove

qua the execution and the attestation of the Will thus can

be compartmentalised into two slots. The first comprising

of the testimony of AW 1 Mr. G. C. Kumar and Mr. Budh

Ram and the other of AW 3 Mr. A. K. Jain, Sub Registrar,

New Delhi.

26. Evident it would be from the deposition of AW 1 that

though he owned to be the author of the document,

having drafted it, he could not recall whether he did so

on the instruction of the testator. He did not remember

as well as to whether the Will had been handed over by

him to his father or the testator. He failed to recollect

also whether he was present when the testator had

signed the Will, Ex. A-1. Though, he admitted that the

document did bear his signatures as an attesting witness

Page 33 33

at two places being point “A” and “B”, he could not recall

whether there was any other person also present and had

similarly attested the document when he had signed at

point “A”. He was categorical in stating that he was

present in the office of the Sub Registrar when the Will

was presented for registration and had signed on the

back page thereof but clarified that he did so only as an

identifying witness. He could not say as to whether the

signatures and thumb impressions of the testator at

point “Y” and “Y–1” on the back page of the Will had been

obtained in his presence or not. He also could not state

whether the contents of the Will were read over and

explained to the testator by him or his father. He was

candid to assert that he was not sure as to whether he

had signed the Will in presence of the testator or not or

whether the testator had signed the document in his

presence. He was unequivocal in stating that he had

signed the certificate at the foot of the petition for grant

of Letter of Administration as he was asked to do so by

the appellant and he did not do so in the capacity of an

Page 34 34

attesting witness to the Will. He even denied to have

gone through the contents of the certificate before

subscribing thereto.

27. The evidence of AW 1, as a whole is, therefore clearly

deficient vis-à-vis with the requirements of Section 63 (c)

of the Act. Noticeably, he does not deny either the

execution of the Will or has not failed to recollect the said

event. In clear terms, this witness stated that though he

had signed the document, he was not sure that he did so

in the presence of any other person attesting the same.

He could not also remember as to whether he was

present when the testator had signed the Will. He

clarified in no uncertain terms that his signatures on the

Will before the Sub Registrar were only as an identifying

witness. His is thus not a stance of either denial of the

execution of the Will or of failure to recollect such

execution as contemplated in Section 71 of the Act 1872.

28. To cap it all, he even endeavoured to represent that

he had signed the certificate at the foot of the application

Page 35 35

for the Letter of Administration not voluntarily but on

being insisted upon by the appellant. He was categorical

in his testimony to the effect that he had not signed the

certificate acknowledging the fact that he was an

attesting witness. The evidence of AW 1 Mr. G. C.

Kumar, Advocate thus does not inspire confidence to be

acted upon in proof of the execution and attestation of

the Will, EX. A-1.

29. AW 5 Mr. Budh Ram was categorical in owning his

signatures on the Will at points “C” AND “Y-2” and

claimed to have to put the same in the presence of the

testator. He, however, was unhesitant in testifying that

he had not seen the testator signing the document at the

points “B”, “Y-1”. He denied to have appeared before the

Sub Registrar or to have identified the testator before the

said authority. His unambiguous statement on oath is

that he had signed the document outside the office of the

Sub Registrar. His evidence as well cannot be construed

to be one of denial of execution of the Will. This witness,

Page 36 36

as his evidence would clearly demonstrate, also did

neither falter nor, was equivocal so as to suggest that he

failed to recollect the execution of the document. The

conditions, precedent for application of Section 71 of the

Act 1872, therefore, are also not available in the context

of the evidence of this witness.

29.1 On a cumulative assessment of the evidence of AW

1 and AW 5, we are of the unhesitant opinion that

Section 71 of the Act, is not invocable in the facts and

circumstances of the case so as to permit the

propounder/appellant to resort to any other evidence to

prove the execution and attestation of the Will involved

as comprehended therein. The account of the relevant

facts bearing on the execution and attestation of the Will

as provided by these witnesses though is thoroughly

inadequate qua the prescriptions of Section 63 (c) of the

Act does not amount to denial of execution or failure to

recollect the said event as contemplated in this provision.

Page 37 37

30. The above notwithstanding, expedient it would be, in

the face of the protracted controversy, to examine as well

the evidence of AW 3, Mr. A. K. Jain Sub Registrar, New

Delhi, refuge whereof has been sought for by the

appellant under Section 71 of the Act, in the alternative.

30.1 This witness, to reiterate, was the Sub Registrar at

Asaf Ali road, New Delhi on the date on which, as he had

testified, the Will was laid before him for registration.

Incidentally, it was on the very same date of its execution

i.e. 22-10-1973. He deposed that the testator Mr. Nathu

Singh was identified before him by AW 1 Mr. G. C. Kumar,

Advocate, AW 1 and Mr. Budh Ram AW 5. According to

this witness, these two persons did sign the document in

his presence as identifying witnesses on the back of page

No. 1 thereof. He stated further that the contents of the

Will were read out to the testator and he was asked as to

whether he did execute the same himself. The witness

deposed that to this, the testator acknowledged in the

affirmative whereupon he (witness) endorsed the same.

Page 38 38

The witness proved his endorsements at the portions

encircled “S” and “S-1”. He also stated that the testator

had signed and put his thumb marks as “Y” and “Y-1” in

his presence in acknowledgement of the execution of the

Will by him.

30.2 In cross-examination, the witness admitted that he

had made his endorsements in the capacity of a

registering authority only. While admitting that on the

very same date another document, purporting to be a Will

executed by the same testator had also been presented

before him for registration, he admitted that both the

identifying witnesses of the Will involved were also the

identifying witnesses of the other Will.

31. A plain perusal of the Will presented in course of the

arguments would reveal that the space therein meant to

mention the age and the date of execution thereof had

remained vacant till it was produced for registration. This

was though as claimed by the appellant, the document

had already been executed by the testator by putting his

Page 39 39

signature at points “B” on both the pages along with the

signatures of the attesting witnesses AW 1 and AW 5 as

well. On the back of page No. 1 of the Will, there are two

signatures and thumb impressions “Y” and “Y-1” said to

be of the testator beneath the stamped endorsements in

the official proforma signed by AW 3. On the same page,

the signature of AW 1 Mr. G. C. Kumar, Advocate, and

thumb impression of AW 5 Budh Ram are also available

at points “X” and “Y-2” respectively.

31.1 Noticeably, though the official endorsements, as

above seem to suggest that those signified admission of

execution of the document by the testator before AW 3,

the evidence of this witness on oath, does neither prove

nor demonstrate in unmistakable terms that both the

identifying witnesses had seen the testator put his

signatures and thumb impressions for the execution of

the Will. His testimony also does not establish that the

witnesses AW 1 and AW 5 had put their signature/thumb

impression before the Sub Registrar in presence of the

Page 40 40

testator. This assumes significance not only as per the

non-relaxable mandate of Section 63 (c) of the Act but

also for the version of AW 1 that he had signed the

document at the time of registration only as an identifying

witness and that he did not remember as to whether the

thumb impressions and the signatures of the testator at

“Y” and “Y-1” were obtained in his presence or not. The

testimony of AW 5 to the effect that his signature as well

as thumb impression at “Y-2” though made in presence of

the testator was taken outside the Sub Registrar’s office is

significant as the same, if accepted, would mean that he

had not seen the testator signing the Will either at point

“B” or putting his signature and thumb impression at “Y”

and “Y-1” on the backside of page No. 1 of the Will. To

reiterate, he stated on oath that he had not identified the

testator before the Sub Registrar. Evidently, AW 3 was not

present at the time of initial execution of the Will and

thus could not have witnessed the said event.

Page 41 41

32. In the overall perspective thus, the testimony of AW

3, in our estimate, does not conform to the imperatives of

the Section 63 (c) of the Act. His narration on affirmation

at the trial, does not either by itself meet the

essentialities of Section 63 (c) of the Act or can be

construed to be a supplement of the evidence of AW 1

and AW 5 to furnish the proof of execution and

attestation of the Will as enjoined by law.

33. The evidence of AW 1, AW 3 and AW 5, anlaysed

collectively or in isolation, does not evince animo

attestandi, an essential imperative of valid attestation of a

Will. As Section 71 of the Act, 1872 by no means can be

conceived of to be a diluent of the rigour of Section 63 of

the Act, the testimony of these witnesses fall short of the

probative content to construe Ex. A-1 to be a validly

executed and attested Will as envisaged in law.

34. In Bhaiya Guruji Dutt Singh (supra), the testimony

of the two attesting witnesses was found wanting in

credibility for which the propounder did fall back on the

Page 42 42

admission of the testator about the execution of the Will

involved at the time of registration in presence of two

persons Mr. Mahadeo Prasad and Mr. Nageshur, who

also had appended their signatures at the foot of the

endorsement of the Sub Registrar. These signatures were

contended to be enough to prove due attestation of the

Will. It was held that mere signatures of these two

persons appearing at the foot of the endorsement of

registration could not be presumed to have been made as

attesting witnesses or in the capacity of attesting

witnesses and absence of animo attestandi was

underlined.

35. This Court in H. Venkatachala Iyengar (supra) while

dilating on the statutory requisites of valid execution of a

Will, observed that unlike other documents this

testamentary instrument speaks from the death of the

testator and by the time when it is produced before a

Court, the testator had departed from his temporal state

and is not available to own or disown the same. It was

Page 43 43

thus emphasised that this does introduce an element of

solemnity in the decision on the question as to whether

the document propounded is proved to be the last Will

and testament of the departed testator. In this context, it

was emphasised that the propounder would be required

to prove by satisfactory evidence that (i) the Will was

signed by the testator, (ii) he at the relevant time was in a

sound and disposing state of mind, (iii) he understood

the nature and effect of the dispositions, and that (iv) he

put his signature to the document of his own free will. It

was observed that ordinarily when the evidence adduced

in support of the Will is disinterested, satisfactory and

sufficient to prove the sound and disposing state of the

testator’s mind and his signature as required by law, the

court would be justified in making a finding in favour of

the propounder signifying that he/she had been able to

discharge his/her onus to prove the essential facts. The

necessity of removal of the suspicious circumstances

attendant on the execution of the Will, however, was

underlined as well. That no hard and fast or inflexible

Page 44 44

rule can be laid down for the appreciation of the evidence

to this effect was acknowledged.

36. That a propounder has to demonstrate that the Will

was signed by the testator and that he was at the

relevant time in a sound disposing state of mind and that

he understood the nature and effect of the disposition

and further that he had put his signature to the

testament on his own free will and that he had signed it

in presence of two witnesses who had attested it in

presence and in the presence of each other, in order to

discharge his onus to prove due execution of the said

document was reiterated by this Court amongst others in

Surendra Pal and Ors. (supra) It was held as well that

though on the proof of the above facts, the onus of the

propounder gets discharged, there could be situations

where the execution of a Will may be shrouded by

suspicious circumstances such as doubtful signature,

feeble mind of the testator, overawed state induced by

powerful and interested quarters, prominent role of the

Page 45 45

propounder, unnatural, improbable and unfair bequests

indicative of lack of testator’s free will and mind etc. In

all such eventualities, the conscience of the Court has to

be satisfied and thus the nature and quality of proof

must be commensurate to such essentiality so much so

to remove any suspicion which may be entertained by

any reasonable and prudent man in the prevailing

circumstances. It was propounded further that where the

caveator alleges undue influence, fraud and coercion, the

onus, however, would be on him to prove the same, and

on his failure, probate of the Will must necessarily be

granted if it is established that the testator had full

testamentary capacity and had in fact executed it validly

with a free will and mind.

37. In Jaswant Kumar (supra) this Court held that

suspicion generated by the distrustful circumstances

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

Page 46 46

state of mind and memory when the Will was made or

that those like the wife and children of the testator, who

would normally receive their due share in the estate,

were disinherited because the testator might have had

seen reasons for excluding them. It was underscored that

it was obligatory for the propounder to remove all

legitimate suspicions before the document could be

accepted as the last Will of the testator.

38. In Ravindra Nath Mukharji and Another (supra) this

Court entertained the view that the, witnesses to the Will,

if interested for the propounder is perceived to be a

suspicious circumstance, the same would lose

significance if the document is registered and the Sub

Registrar does certify that the same had been read over

to the executor who on doing so admits the contents.

39. In Pentakota Satyanarayan and Others (supra) the

testator P. Mr. Ram Murthi had admitted the execution of

the Will involved. He, however, expired while the suit was

pending. The Will was registered and the signature of the

Page 47 47

testator was identified by two witnesses whereupon the

Sub Registrar had signed the document. In this textual

premise, it was held that the signatures of the registering

officer and of the identifying witnesses affixed to the

registration endorsement did amount to sufficient

attestation within the meaning of the Act. It was held as

well that the endorsement of the Sub Registrar that the

executant had acknowledged before him the execution,

did also amount to attestation. The facts revealed that

the Will was executed before the Sub Registrar on which

the signature of the testator as well as signature and the

thumb impression of the identifying witnesses were taken

by the said authority, whereafter the latter signed the

deed. In general terms, it was observed that registration

of the Will per se did not dispense with the need of

proving its execution and the attestation in the manner

as provided in Section 68 of the 1872 Act. It was

enunciated as well that execution consisted of signing a

document, reading it over and understanding and

Page 48 48

completion of all formalities necessary for the validity of

the act involved.

39.1 The facts as obtained in this decision are

distinguishable from those in hand and are incomparable

on many counts. No anology can be drawn from this case

to conclude that the testimony of AW 3 even if read with

that of AW 1 and AW 5 can sum up to prove valid

execution and attestation of the Will as stipulated by

Section 63 (c ) of the Act.

40. Janki Narayan Bhoir (supra) 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

Page 49 49

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 the Section 71 thereof.

While dwelling on the respective prescripts of Section 63

of the Act and Sections 68 and 71of Act 1872 vis-à-vis a

document required by law to be compulsorily attested, it

was held 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

Page 50 50

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

attesting 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

1872 Act fails to prove the due execution of the Will, then

the other available attesting witness has to be called to

Page 51 51

supplement his evidence to make it complete in all

respects.

41. Qua Section 71 of 1872 Act, it was held to be in the

form of a safeguard to the mandatory provision of Section

68 to cater to a situation where it is not possible to prove

the execution of the Will by calling the attesting

witnesses though alive i.e. if the witnesses either deny or

do not recollect the execution of the Will. Only in these

contingencies by the aid of Section 71, other evidence

can be furnished. It was further clarified that Section 71

of Act 1872 would have no application to a case where

one attesting witness who alone had been summoned

fails to prove the execution of the Will and the other

attesting witness though available to prove the execution

of the same, for reasons best known, is not summoned

before the Court.

42. This Court underlined that Section 71 of the Act

1872 was meant to lend assistance and come to the

rescue of a party who had done his best, but driven to a

Page 52 52

state of helplessness and impossibility and cannot be let

down without any other opportunity of proving the due

execution of the document by other evidence. That,

however, Section 71 cannot be invoked so as to absolve

the party of his obligation under Section 68 read with

Section 63 of the Act and to liberally allow him, at his will

or choice, to make available or not, necessary witness

otherwise available and amenable to jurisdiction of the

Court, was highlighted in emphatic terms. That no

premium upon such omission or lapse so as to enable

him to give a go-bye to the mandates of law relating to

proof of execution of a Will, as contemplated by these

statutory provisions, was precisely underlined. In the

facts and circumstances of that case, as the second

attesting witness though available had not been

summoned, the benefit of Section 71 of Act 1872 was not

extended. The Will was thus held to be not proved for the

failure of the attesting witness so produced, to testify as

per the ordainment of Section 63 (c) of the Act.

Page 53 53

43. In M. B. Ramesh (dead) by LRS (supra), one Smt.

Nagammanni had executed a Will. One of the attesting

witnesses P. Basavaraje Urs, in his evidence, stated

about the presence of the other witness (naming him),

the testatrix, himself and one Sampat Iyengar to be

present when the Will was written. He deposed further

that one Mr. Narayan Murthi was the scribe. This witness

proved that the Will was signed by Smt. Nagammanni

and that he had signed the document too in her

presence. On a consideration of the totality of the

circumstances emerging from the narration of the

attesting witness, this Court held that the omission on

the part of this witness to specifically state about the

signature of the other witness on the Will in presence of

the testatrix did amount to his failure to recollect the said

fact and thus the deficiency could permissibly be

replenished by the aid of Section 71 of the Act 1872. In

no uncertain terms, this Court did hold that the issue of

validity of the Will was to be considered in context of the

attendant singular facts.

Page 54 54

44. The legal propositions adumbrated by the judicial

pronouncements, adverted to hereinabove, do not admit

of any exception. However, these are of no avail to the

appellant herein in the conspectus of present facts. The

evidence of the witness AW 1, AW 3 and AW 5 does not

exhibit either denial of the execution of the Will or their

failure to recollect the said phenomenon and thus, does

not attract the applicability of Section 71 of the Act 1872.

45. A Will as an instrument of testamentary disposition

of property being a legally acknowledged mode of

bequeathing a testator’s acquisitions during his lifetime,

to be acted upon only on his/her demise, it is no longer

res integra, that it carries with it an overwhelming

element of sanctity. As understandably, the

testator/testatrix, as the case may be, at the time of

testing the document for its validity, would not be

available, stringent requisites for the proof thereof have

been statutorily enjoined to rule out the possibility of any

manipulation. This is more so, as many a times, the

Page 55 55

manner of dispensation is in stark departure from the

prescribed canons of devolution of property to the heirs

and legal representatives of the deceased. The rigour of

Section 63 (c) of the Act and Section 68 of 1872 Act is

thus befitting the underlying exigency to secure against

any self serving intervention contrary to the last wishes of

the executor.

45.1 Viewed in premise, Section 71 of the 1872 Act has

to be necessarily accorded a strict interpretation. The

two contingencies permitting the play of this provision,

namely, denial or failure to recollect the execution by the

attesting witness produced, thus a fortiori has to be

extended a meaning to ensure that the limited liberty

granted by Section 71 of 1872 Act does not in any

manner efface or emasculate the essence and efficacy of

Section 63 of the Act and Section 68 of 1872 Act. The

distinction between failure on the part of a attesting

witness to prove the execution and attestation of a Will

and his or her denial of the said event or failure to

Page 56 56

recollect the same, has to be essentially maintained. Any

unwarranted indulgence, permitting extra liberal

flexibility to these two stipulations, would render the

predication of Section 63 of the Act and Section 68 of the

1872 Act, otiose. The propounder can be initiated to the

benefit of Section 71 of the 1872 Act only if the attesting

witness/witnesses, who is/are alive and is/are produced

and in clear terms either denies /deny the execution of

the document or cannot recollect the said incident. Not

only, this witness/witnesses has/have to be credible and

impartial, the evidence adduced ought to demonstrate

unhesitant denial of the execution of the document or

authenticate real forgetfulness of such fact. If the

testimony evinces a casual account of the execution and

attestation of the document disregardful of truth, and

thereby fails to prove these two essentials as per law, the

propounder cannot be permitted to adduce other

evidence under cover of Section 71 of the 1872 Act. Such

a sanction would not only be incompatible with the

scheme of Section 63 of the Act read with Section 68 of

Page 57 57

the 1872 Act but also would be extinctive of the

paramountcy and sacrosanctity thereof, a consequence,

not legislatively intended. If the evidence of the witnesses

produced by the propounder is inherently worthless and

lacking in credibility, Section 71 of Act 1872 cannot be

invoked to bail him (propounder) out of the situation to

facilitate a roving pursuit. In absence of any touch of

truthfulness and genuineness in the overall approach,

this provision, which is not a substitute of Section 63 (c )

of the Act and Section 68 of the 1872 Act, cannot be

invoked to supplement such failed speculative endeavour

45.2 Section 71 of the 1872 Act, even if assumed to be

akin to a proviso to the mandate contained in Section 63

of the Act and Section 68 of the 1872 Act, it has to be

assuredly construed harmoniously therewith and not

divorced therefrom with a mutilative bearing. This

underlying principle is inter alia embedded in the

decision of this Court in the Commission of Income Tax,

Page 58 58

Madras Appellant Versus Ajax Products Limited

Respondent AIR 1965, Supreme Court 1358.

46. The materials on record, as a whole, also do not, in

our comprehension, present a backdrop, in which, in

normal circumstances, the testator would have preferred

the appellant to be the legatee of his property as set out

in the Will, Ex. A-1, by denying his wife, children and

grand children who were alive and with whom he did

share a very warm affectionate and cordial relationship.

Viewed in this context, the bequest is exfacie unnatural,

unfair and improbable thus reflecting on the testator’s

cognizant, free, objective and discerning state of mind at

the time of the alleged dispensation. The suspicious

circumstances attendant on the disposition, in our

opinion, do militatively impact upon the inalienable

imperatives of solemnity and authenticity of any bequest

to be effected by a testamentary instrument.

Page 59 59

47. In the wake of the determinations made herein

above, we are of the unhesitant opinion that the

challenge laid in the instant appeal lacks in merit.

48. The High Court, in our estimate, has appropriately

appreciated the law and the facts in the right perspective

and the impugned decision does not call for any

interference. The appeals are dismissed.

49. No cost.

…………………… ..J.

(Kurian Joseph)

…………………… ..J.

(Amitava Roy)

New Delhi

Dated: May 01, 2015