Summary
The Supreme Court restored concurrent findings upholding a will and dismissing the succession challenge. Evidence of loss, unchallenged in cross-examination, supported use of the registered certified copy; no separate application for secondary evidence was mandatory. The examined attesting witness sufficiently proved execution and attestation. Omission of some natural heirs did not by itself invalidate the will, and the High Court had improperly displaced factual findings in second appeal.
Issues
- Whether secondary evidence of the lost will required a prior permission application.
- Whether examination of one attesting witness proved due execution.
- Whether exclusion of natural heirs and second-appellate scrutiny justified reversal.
Provisions considered
- Section 65(c), Indian Evidence Act, 1872A sufficient foundation of loss permitted secondary evidence without requiring a separate permission application. (¶¶ 13, 14, 17, 20)
- Section 68, Indian Evidence Act, 1872One attesting witness sufficiently established the testator’s execution and both attestations on this record. (¶¶ 21, 22, 23, 28, 29)
- Section 63, Indian Succession Act, 1925The attestation requirements were satisfied by the evidence accepted by the trial and first appellate courts. (¶¶ 21, 23, 28, 29)
Held
- A party laying a proper foundation in pleadings or evidence for secondary evidence under Section 65(c) cannot have it excluded solely for not filing a permission application. Here evidence of the original will’s loss was unchallenged and a certified registered copy was produced, furnishing sufficient grounds for secondary evidence, subject to proof of execution. (¶¶ 13, 14, 17, 20)
- At least one examined attesting witness must establish his attestation and the other witness’s attestation and due execution. Maha Singh’s evidence established the testator’s and both witnesses’ signatures and presence; statutory words need not be repeated mechanically. Cases involving a mere scribe or deficient attestation evidence were distinguishable. (¶¶ 21, 22, 23, 24, 25, 26, 27, 28, 29)
- Exclusion of natural heirs is not, by itself, a suspicious circumstance. Any suspicious features require an overall assessment of their cumulative effect, rather than invalidation based on a single feature. (¶¶ 30, 31, 32)
- Even where Section 41 of the Punjab Courts Act does not require framing a substantial question of law, second appeal does not permit substituting a preferred factual view merely because another interpretation seems better. The High Court’s interference with the concurrent factual findings rested on legal misconceptions. (¶¶ 10, 11, 33)
Result
Appeal allowed; High Court judgment set aside, first appellate decree restored and plaintiff’s suit dismissed.