Raj Kumari and Others v. Surinder Pal Sharma

Civil Appeal · 2019 INSC 1388Decided 17 Dec 2019
Civil Appeal No. 9683 of 2019
Justice S. Abdul Nazeer · Justice Sanjiv Khanna

Background

A government-allotted Delhi tenement, originally allotted to the family matriarch Suhagwanti, became the subject of a partition suit filed by her daughter Raj Kumari after Suhagwanti's death, seeking a one-fourth share for each of the four siblings. One brother, Surinder Pal Sharma, resisted the suit by producing a registered Will under which their mother had allegedly left the entire property to him alone, naming Raj Kumari's own husband as an attesting witness. The trial court held the Will unproved, since only one of the two named attesting witnesses was examined and the other, a lawyer, was found to have signed merely as the drafter, and granted the partition. The High Court reversed this, holding the Will was validly proved because it was registered and the "presumption of regularity" under the Evidence Act could substitute for live witness testimony.

Decision Breakdown

The Supreme Court held that Section 71 of the Evidence Act, which allows proof of a Will by "other evidence", only applies once all available attesting witnesses have actually been called and have denied or forgotten the execution; it cannot be invoked where an available attesting witness (here, Raj Kumari's husband) was simply never summoned. The Court also found several surrounding circumstances casting serious doubt on the Will's genuineness: the respondent had never mentioned the Will in his initial reply to the family's demand for partition, the document was oddly phrased as a "Will Deed," and his claims of ownership predating his mother's death were inconsistent. It held the High Court's reliance on registration alone to presume proof was legally impermissible, allowed the appeal, set aside the High Court's judgment, and restored the trial court's partition decree.

Lesson Learnt

A registered Will is not automatically "proved" in law: the person relying on it must call all available attesting witnesses, and even then, any suspicious circumstances surrounding its execution (such as an unexplained, late-emerging claim of sole ownership) must be fully explained before a court will accept it as genuine.

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