Summary
The Supreme Court declined to disturb concurrent findings upholding a Will by which the testator left his lands to his sister, excluding his wife and children. Execution was proved by an attesting witness; mutation entries confer no title; non-registration does not detract from a Will; exclusion of natural heirs is not by itself a suspicious circumstance, especially where the Will gives reasons; substantial compliance with Order XLI Rule 31 CPC suffices; and untested affidavits of attesting witnesses are not evidence.
Issues
- Whether the concurrent findings upholding the execution and validity of the Will warranted interference.
- Whether delay in producing the Will, mutation in favour of the heirs, non-registration, and exclusion of natural heirs were suspicious circumstances vitiating it.
- Whether the first appellate judgment was vitiated for not framing proper points for determination under Order XLI Rule 31 CPC.
- Whether affidavits of the attesting witnesses denying attestation could be relied on.
Provisions considered
- Section 68, Indian Evidence Act, 1872A Will, being a document required by law to be attested, must be proved by calling at least one living attesting witness; the testimony of PW2, an attesting witness who deposed that he and the testator signed in each other's presence, satisfied this requirement. (¶¶ 27, 29, 30)
- Section 63, Indian Succession Act, 1925Its formalities (signature by the testator and attestation by two or more witnesses, each having seen the testator sign or received his acknowledgment, and signing in his presence) were set out as part of the settled principles for proving a Will and found satisfied. (¶¶ 29, 30)
- Order XLI Rule 31, Code of Civil Procedure, 1908Following G. Amalorpavam, non-compliance with the requirement to state points for determination does not vitiate an appellate judgment where there is substantial compliance; the first appellate court had scrutinised the evidence and given reasons though its points were general. (¶¶ 13, 35, 36, 37)
- Section 3 (definition of 'evidence'), Indian Evidence Act, 1872Relying on Ayaaubkhan Noorkhan Pathan, an affidavit is not evidence under Section 3 unless the court orders it under Order XIX CPC or the deponent is offered for cross-examination; the attesting witnesses' affidavits, filed even before the written statement without any notice from the court, could not be relied on. (¶ 38)
- Order XIX, Code of Civil Procedure, 1908Noted as the route by which an affidavit may be used as evidence on a court order for sufficient reasons; no such order existed for the attesting witnesses' affidavits. (¶ 38)
Held
- The settled principles for proving a Will were restated: the court must be satisfied by the test of a prudent mind that the testator executed it and it is his last Will; Section 63 formalities must be met; one living attesting witness must be examined; the propounder must dispel legitimate suspicious circumstances; and whoever alleges fraud or fabrication must prove it. Suspicious circumstances must be real and germane, not the fantasy of a doubting mind. (¶¶ 27, 28, 29)
- The Will was proved as voluntarily executed by a testator of sound mind through the testimony of an attesting witness who stated that he and the testator signed in each other's presence. (¶ 30)
- The alleged seven-year delay in producing the Will was answered by the plaintiff's prompt 1984 representation to the Tehsildar disclosing the Will; mutation entries in favour of the heirs confer no title and serve only fiscal purposes; and non-registration of a Will is no ground to doubt its genuineness. (¶ 31)
- Exclusion of natural heirs is not by itself a suspicious circumstance, since the purpose of a Will is to depart from the normal line of succession; though the absence of reasons may raise suspicion, here the Will expressly stated that the testator had already given enough to his wife and children, so their exclusion did not vitiate it. (¶¶ 32, 33, 34)
- Non-compliance with Order XLI Rule 31 CPC does not make an appellate judgment void where there is substantial compliance; the rule is not to be applied technically to defeat substantial justice. (¶¶ 35, 36, 37)
- An affidavit is not evidence unless admitted under Order XIX CPC or the deponent is made available for cross-examination; the attesting witnesses' affidavits denying attestation, filed in suspicious circumstances, were rightly disregarded. (¶ 38)
- The concurrent findings upholding the Will were well-reasoned and called for no interference. (¶ 39)
Result
Appeal dismissed; High Court judgment affirmed; no order as to costs.