Will Challenged Before Punjab Haryana High Court Chandigarh

In this post we will discuss about PHHC Regular Second Appeal in Will Case wherein case the nuances of Will were discussed and the rule of registration was also discussed at length. The fact that succession was given more pediment as opposed to the Will which was produced as a secondary evidence is a point to be noted and used as a precedent for cases of the same instance ahead.

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The plaintiff is in the second regular appeal of the judgments passed by the Courts below dismissing their suit for declaration with consequential relief of permanent injunction. As stated under Section 100 of the Code of Civil Procedure, 1908 –

Second appeal:

(1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex parte.

(3)In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated. The respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this subsection shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it if it is satisfied that the case involves such question.[1]

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A second appeal by the above-stated section can only be filed in particular questions of law or any question of fact wrongly determined. The right to appeal arises after the Court passes the judgement, and it is available to both parties. The right to appeal begins from the proceeding itself and ends when judgement is pronounced. The appeal can lie when the case involves a substantial question of law, and the Court has the responsibility to formulate the significant question of law. Right to appeal is a statutory right that means it is created by statute. A Civil suit has to be filed subject to the condition as specified in the jurisdiction.

In the following case of Pratibha and another vs Nandi Devi and Others[2] it has been stated that the question of whether a registered Will kept in the office of the Sub-Registrar bearing signatures and photographs of the testator and attesting witnesses duly signed by the Sub-Registrar is primary or secondary evidence is put up which is a question fact and therefore, the appeal is valid. The question posed in the following case was whether the succession under the registered Will has been right and not been highjacked by the appellant.

ALSO READ- WILL PROBATE CASE CHANDIGARH PANCHKULA MOHALI

Facts

In the instantaneous case, the Will of Karam Singh Chauhan died on 27.09.2002. He left behind a widow, one son-Suresh and four daughters, namely Neena, Sunita, Anito and Kanta. Suresh married after his father’s death with plaintiff Pratibha on 16.09.2006, and a daughter Reshu was born to the married couple. The plaintiff claims that she previously filed a suit for an injunction claiming 1/6th share, but later on, she came to know about the Will and hence, she withdrew the case with permission to file a fresh one on 05.09.2008 and the present suit was filed on 09.09.2008. It has further been pleaded that the Will might own her mother-in-law, i.e., defendant. She also challenged the mutation of the property based on natural succession ignoring the Will.

Family Tree

(Deceased)

(Defendant)

(Appellant)))

Both the Courts have dismissed the plaintiffs’ suit mainly because the original Will has not been produced. The attesting witness has stated in cross-examination that Karam Singh Chauhan, the testator wanted to give the property to his son and daughters.

Two attesting witnesses attest the Will. As per Section 63 of the Succession Act, 1925, namely Bhopal Singh and Satish Kumar but Satish Kumar has not appeared in evidence.

As per section 63 of the Succession Act, 1925 –

Execution of unprivileged Wills. —Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [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 some other person shall sign it 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 them 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. 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 required.[3]

Also Read- Grounds On Which You Can Challenge A Will – PropTiger

The witness’s statement has to be read in entirety, and one line during cross-examination cannot be read in isolation/divorced from the entire statement. In her plaint and examination-in-chief, she has stated explicitly that she came to know of the existence of the registered testament in favour of her husband during the pendency of the previous suit. Hence, one line in the cross-examination would not result in defeating her claim because knowledge of the Will does not make any difference to the registered Will

‘s validity.

The Sub-Registrar, Sonipat, duly register will. Learned counsel for the appellants explained that when the Will was getting registered, two original wills precisely the same are produced for registration, and both are original. In both the copies, signatures/thumb impressions of executant and attesting witnesses are obtained, and photographs are also printed on the Will. After registration, one copy of the Will is passed in book No.3, whereas the second copy is handed over to the executant.

ALSO READ- 25 THINGS THAT YOU SHOULD KNOW ABOUT WILL REGISTRATION

As per Section 51 of the Registration Act,

The following books shall be kept in the several offices hereinafter named, namely: — A—In all registration offices— Book 1, “Register of non-testamentary documents relating to immovable property”. Book 2, “Record of reasons for refusal to register”. Book 3, “Register of wills and authorities to adopt”, and Book 4, “Miscellaneous Register”. B—In the offices of Registrars— Book 5, “Register of deposits of wills”.
Book 1 shall be entered or filed all documents or memoranda registered under sections 17, 18 and 89, which relate to immovable property, and are not wills.
Book 4 shall be entered all documents registered under clauses (d) and (f) of section 18, which do not relate to immovable property.

(4) Nothing in this section shall be deemed to require more than one set of books where the Registrar’s office has been amalgamated with the office of a Sub-Registrar.[4]

Also Read- Can You Waive Your Right To Challenge A Will? – India

In all registration offices book, No.3 would be a register of Wills and authorities to adopt. Section 52 deals with the Registering Officers’ duties when the document is presented for registration, and Section 53, 54 and 55 deals with how entries have to be made and the index are to be prepared.

As noted above, the Will, which bears the thumb impressions/signatures and photographs of the testator and the attesting witnesses and the aforesaid Will is duly registered by the Sub-Registrar, Sonipat. Learned counsel for the appellants explained that when the Will was getting written, two original wills the same are produced for registration, and both are original. In both the copies, signatures/thumb impressions of executant and attesting witnesses are obtained, and photographs are also printed on the Will. After registration, one copy of the Will is passed in book No.3, whereas the second copy is handed over to the executant. The Will has been pasted in Jild No.108, serialNo.249 in book No.3.

Also Read- challenging the will – Indian Kanoon

As stated above, it is evident that being a piece of evidence is not available in the Court, a copy of the Will is being produced as secondary evidence.

Secondary evidence– Secondary evidence means and includes—

(1) certified copies were given under the provisions from now on contained;

(2) copies made from the original by mechanical processes, which ensure the copy and copies’ accuracy compared with such copies.

(3) copies made from or compared with the original;

(4) counterparts of documents as against the parties who did not execute them;

(5) oral accounts of the contents of a document given by some person who has himself seen it.[5]

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In the considered view of this Court, the genuineness of the registered Will cannot be left to the mercy and support from the attesting witnesses. Once the execution of the Will is proved, a slight deviation by the attesting witness in the cross-examination would not result in Court ignoring the Will.

Also Read- Things to know before challenging a will – 99 Acres

Section 68 of the Evidence Act provide that examination of one attesting witness is sufficient if the witness has proved the execution of the Will in accordance.

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][6]

Also Read- How long a Will is valid as per Indian Law? – Quora

In the present case, one attesting witness, namely Bhopal Singh has appeared. In his affidavit

submitted in examination-in-chief, he has stated that the executant was in full senses and could hear and understand everything. He has stated that Karam Singh, the testator, was read over and explained the contents of Will, and thereafter the testator put his thumb impression in their presence, including second witness Satish Kumar. He further stated that the testator and both the attesting witnesses thereafter went to the Sub-Registrar office where their photographs were clicked through computer, and their signatures and thumb impressions were obtained in the presence of the Sub-Registrar. He has further stated that he identified the testator Karam Singh as having personal acquaintance. As noted above when he appeared in evidence, he did not dispute the correctness of the execution of the Will but in the cross has stated that Karam

Also Read- How & When To Challenge A Will – Makaan.com

Singh had told him that he wants to give the property to his son and daughters. He stated that the Will had been drafted before he arrived, and it was not read over in his presence. He has gone to the extent of saying that he signed the Will under the impression that the Will is in favour of son and daughters.

The fact that there is a possibility of the will being fake on the subject matter that the first-class heirs have been ignored in the following matter. This has been ignored at the first appeal. A statement of evidentiary value that enhances his argument is that Bhopal Singh calling Karam Singh Chaudhary an acquaintance recorded his age wrong with a clear distinction of more than 20 years.

ALSO READ- ADDITION OF PARTIES IN WILL PROBATE CASES

Judgement

After having heard the arguments at some length, this Court while directing the Sub-Registrar to produce the original register containing entry of the registered Will, had passed the following order: –

“Validity of the registered Will is in dispute. The original Will has not been produced; however, certified copy thereof was produced by the official examined from the office of the Sub- Registrar, Sonepat who certified that the attested copy is correct copy of the original. The Will was registered in the year 2002.In order to decide this controversy effectively, it is considered appropriate to direct Sub-Registrar, Sonepat to produce the register in which registration of the Will has been noted. Learned State counsel, who is present in Court, is requested to inform the registration authority for deputing an official who would bring the original bahii.e.Bahi No.3 registered No.249 dated 16.08.2002, Jild No.18, pages 111 and112.”

Also Read- Satbir vs Rameshwar And Ors on 26 November, 2014

Original register was produced and it was noted that the copy which has been pasted in the register meets with all characteristics of the Will as the testament bears the thumb impression of the executant and signatures and thumb impression of the attesting witness duly endorsed by the Sub-Registrar apart from having photographs of the executant and attesting witnesses.

As stated above, Section 68 of the Registration Act has specific necessities which comply with the following Will. Therefore, the fact that it is an unauthorized will is wiped out.

It will be noted that the testator Karam Singh has duly referred to his four daughters and the wife. He has stated that all the four daughters have been married and he has given sufficient dowry/gifts at their marriage, and they are happily settled in their respective in-laws’ houses. He has also stated in the Will that his other children would also have no right in his property. Apart from that, he further refers to his wife Smt. Nandi but has stated that she would not get any share in the property. It has been written in the Will that his son late Sh. Suresh is serving him during his illness and being happy with his services, he is executing the Will. It is itself written in the Will that contents of the Will have been read over and explained and he admit its correctness. In view of the discussion above, the courts’ judgments below are not correct and, therefore, set aside—however, the plaintiffs, namely widow and minor child of late Sh. Suresh Kumar shall only be entitled to 2/3rd share in the property left by Suresh Kumar at the time of his death as Suresh Kumar’s mother is also class-I heir entitled to share equivalent to the widow and daughter.

Also Read-Challenging a Registered Will in India – Aapka Consultant

Hence, there would be a decree for a declaration to the effect that the plaintiffs-appellants are owners to the extent of 2/3rd share in the property in dispute, whereas 1/3rd would vest with defendant Smt. Nandi Devi.

Conclusion

In the present case the nuances of Will were discussed and the rule of registration was also discussed at length. The fact that succession was given more pediment as opposed to the Will which was produced as a secondary evidence is a point to be noted and used as a precedent for cases of the same instance ahead.

Also Read- High Court of Punjab and Haryana RSA 2943- 2017

This post is written by Tanya Gorshi.

For case specific advice, please contact best top expert will/property/succession case lawyers advocates in Chandigarh Panchkula Mohali Kharar Zirakpur Derabassi.