RAJ KUMARI AND OTHERS versus SURINDER PAL SHARMA

RAJ KUMARI AND OTHERS versus SURINDER PAL SHARMA

The registered Will dated 02.01.1992 was not validly proved as required by Section 68 of the Evidence Act because neither attesting witness was examined, and recourse to Section 71 of the Evidence Act was impermissible in absence of summoning all available attesting witnesses. Furthermore, substantial suspicious circumstances surrounding the execution of the Will, particularly given the testatrix’s illiteracy and absence of disclosure of the Will at relevant times, have not been dispelled by the propounder. Hence, the Will cannot be accepted and the preliminary decree of partition in favour of all siblings stands restored.

Parties
Appellants: Raj Kumari and others; Respondent: Surinder Pal Sharma
Jurisdiction
India
Judgment Date
17 December 2019
Procedural Posture
Civil Appeal / Appeal From High Court Judgment in RFA No. 234 of 2018 (delhi High Court), Challenging Reversal of Trial Court's Preliminary Decree of Partition
Outcome
Appeal allowed; judgment of High Court set aside; preliminary decree of partition by Trial Court restored.
Legal Topics
Partition, Will and Testament, Proof of Execution of Will, Attestation Requirements, Registered Wills
Succession Law Evidence Law Partition Will and Testament Proof of Execution of Will Attestation Requirements Registered Wills

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Parties

Raj Kumari and others

Appellants

Surinder Pal Sharma

Respondent

Procedural Posture

Civil Appeal / Appeal From High Court Judgment in RFA No. 234 of 2018 (delhi High Court), Challenging Reversal of Trial Court's Preliminary Decree of Partition

Legal Issues

  1. 1 Whether the registered Will dated 02.01.1992 was validly executed and proved in accordance with law
  2. 2 Whether Section 71 of the Evidence Act permits proof of Will without summoning all available attesting witnesses
  3. 3 Whether the factual circumstances create substantial suspicion regarding the execution of the Will

Ratio Decidendi

The registered Will dated 02.01.1992 was not validly proved as required by Section 68 of the Evidence Act because neither attesting witness was examined, and recourse to Section 71 of the Evidence Act was impermissible in absence of summoning all available attesting witnesses. Furthermore, substantial suspicious circumstances surrounding the execution of the Will, particularly given the testatrix’s illiteracy and absence of disclosure of the Will at relevant times, have not been dispelled by the propounder. Hence, the Will cannot be accepted and the preliminary decree of partition in favour of all siblings stands restored.

Court Disposition

Appeal allowed; judgment of High Court set aside; preliminary decree of partition by Trial Court restored.

Orders

  • Judgment dated 09.03.2018 of the High Court set aside.
  • Judgment and decree dated 17.01.2018 of the Trial Court restored.