Will – Suspicious circumstances -- Testator of the Will died issueless on 23.07.1977 and his wife had predeceased him -- Will did not see the light of the day till the filing of the suit for almost 8 years -- No explanation is forthcoming for the plaintiff-respondent to have kept quiet for so long and not getting the mutation entered in his favour on the basis of the Will – Ld. Appellate Court held that the Will in favour of the plaintiff-respondent was duly proved – Held, Judgement and decree passed by the First Appellate Court cannot be sustained and the same is accordingly set aside.

(Para 4, 5, 8-13)

Will -- Examination of Scribe of Will – Video conferencing -- One of the attesting witness has expired and the other attesting witness has been summoned several times who is not coming forward to depose – Examination of scribe living abroad through video conferencing allowed -- Petitioner would not be in a position to get a Co-ordinator at the remote point -- Trial Court would give a direction in its order regarding appointment of a Coordinator at the remote point in accordance with the rules so that the petitioner is in a position to pursue his matter with the concerned consulate/ embassy/ High Commission.

(Para 8, 9)

Indian Succession Act, 1925 (39 of 1925), Section 63 -- Handwritten Will – Attesting witness is required to assert that the testator as well as another attesting witnesses have appended their thumb impressions on the Will in his presence -- No statement to this effect -- Will was produced in the First Appellate Court during the pendency of the suit after nearly 30 years from its execution – First Appellate Court found that propounder failed to prove the Will and it is surrounded by the suspicious circumstances – No error in finding -- Appeal dismissed.

(Para 10, 11)

A. Will – Health of testator – Suspicious circumstances -- From the evidence of the witnesses with reference to the health of the testator Court do not find that he was not in good senses and was unable to understand his welfare or take correct decisions -- Hence, the Will cannot be held to be suspicious on the ground of the alleged ill-health of the testator at the time of the execution of the Will.

(Para 9.5)

B. Will – Genuineness of -- Testator left behind about 8 acres of land and three houses -- Respondent is bequeathed merely 3.5 Acres of land -- Meaning thereby the balance property is in possession of widow and daughter -- This is how the interest of the natural legal heirs has been taken care of -- Expenses for his last rites were borne by the husband of the respondent who was taking care of the land of the testator -- Nothing on record to suggest that the appellants were taking care of the property left by the testator immediately after his death or that any steps were taken by them to get the same mutated in their favour – Will found to be genuine – Judgment upheld.

(Para 2, 15)

C. Code of Civil Procedure, 1908 (V of 1908), Order 8 Rule 3, 5 -- Pleadings – Admission and denial in written statement -- Order VIII Rules 3 and 5 CPC clearly provides for specific admission and denial of the pleadings in the plaint -- A general or evasive denial is not treated as sufficient -- Proviso to Order VIII Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved -- This is an exception to the general rule --  General rule is that the facts admitted, are not required to be proved.

(Para 15.1)

Indian Succession Act, 1925 (39 of 1925), Section 68, 276 – Probate of Will -- Attesting witness to the Will was examined, he not only identified the signatures of the testator on the Will but also categorically stated that he had put his signatures on the Will in the presence of the testator -- He further stated that he had witnessed the testator put his signatures on the Will and the other attesting witness had also put his signatures on the Will in the presence of the testator – Unchallenged and unrebutted testimony of the petitioner which is supported by the testimony of the attesting witness proves the authenticity of Will -- Probate of the Will granted.

(Para 5-7)

Indian Succession Act, 1925 (39 of 1925), Section 67, 68, 276 -- Probate of Will – One of the attesting witness duly proved the Will, the death certificate and has also categorically stated that the testator had signed the Will in the presence of the attesting witnesses, who had also signed the Will in the presence of the testator and in the presence of each other -- He has further stated that the testator was of sound disposing mind at the time of execution of the Will – The Will also makes a bequeath in favour of the attesting witnesses which has to be treated as void – Both the witnesses still have no objection to the grant of probate of the Will in favour of the petitioner – Said part of the Will whereby the testator had bequeath a part of his estate in favour of the two attesting witnesses will be treated as void – Petition allowed, probate of the Will ordered to be issued.

(Para 8)

A. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 -- Will -- Death of attesting witnesses – Proof of -- Sections 68 and 69 of Evidence Act are with regard to the procedure to be followed in order to prove any Will -- Section 69 of Evidence Act will be applicable as both the attesting witnesses of Will are stated to have died and as per the said provision of law the Will in question could be proved by examining witnesses who are able to identify the signatures/ attestation of one attesting witness atleast on the Will in question.

(Para 5)

B. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 – Code of Civil Procedure, 1908 (V of 1908), Section 151 -- Will -- Death of attesting witnesses – Examination of son of attesting witness – Respondent intend to examine son of one of the attesting witness of the Will to identify the signatures of said attesting witness on will in question as per the provisions of Section 69 of Evidence Act -- Said evidence is necessary for the just decision of the case -- Request for the same was made at the belated stage and for that the learned trial Court rightly burdened the respondents with cost of Rs.10,000/- -- No ground to interfere -- Revision petition dismissed.

(Para 6-8)

A. Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will – Proof of -- A person propounding the Will has to prove that the Will was duly and validly executed -- That cannot be done simply by proving that the signatures on the Will were that of the testator but it must also be proved that attestations were also made properly as required by Section 63 of the Act, 1925 -- One attesting witness so examined should be in a position to prove the execution of Will – Such witness in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove due execution of the Will.

(Para 14)

B. Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will – Proof of -- Test to be applied is test of satisfaction of a prudent mind -- What is required to be seen is whether the propounder of the Will has produced satisfactory evidence that the Will was signed by the testator who at the relevant time was in a sound or disposing state of mind, understood the nature and effect of the disposition and had put his signatures/thumb impressions with his own free Will.

(Para 14)

C. Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will – Onus on propounder -- A person challenging the Will alleging fabrication, fraud, undue influence or coercion has to prove such pleas but it is also well settled that even in the absence of such pleas, it is a part of initial onus of the propounder to remove all reasonable doubt in the matter.

(Para 15)

D. Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Execution of Will – Suspicious circumstances -- A circumstance is suspicious when it is not normal or is not normally expected in a normal situation -- While applying the test of satisfaction of judicial conscience, with regard to execution of a Will, the Court has to address itself to the solemn question as to whether the testator had signed the Will while being aware of its contents and after understanding the nature and effect of dispositions of the Will.

(Para 15)

E. Indian Evidence Act, 1872 (1 of 1872), Section 65, 68 -- Will -- Secondary evidence -- As per Section 65 of the Evidence Act, secondary evidence may be given of the existence, condition and contents of a document, when the original has been lost or when the party offering evidence of its contents cannot, for any other reason not arising from his/her own default or neglect, produce it in reasonable time -- Once the appellant was allowed to prove the Will by way of secondary evidence and once she had examined the attesting witness of this Will as a witness, the requirement of law for formal proof of this document had been fulfilled.

(Para 16)

A. Transfer of Property Act, 1882 (4 of 1882), Section 52 -- Collusive proceedings -- Principle of lis pendens – Finding that Section 52 of the Transfer of Property Act dealing with doctrine of lis pendens is not applicable as proceedings were collusive in nature, upheld.

(Para 11)

B. Indian Succession Act, 1925 (39 of 1925), Section 67, 68, 217 – Probate of Will – Consent of parties – Observation that until and unless the Will is proved, no grant of probate can be made merely by the consent of the parties, upheld.

(Para 12)

Succession law -- Disinheritance notice in newspaper – Registered Will bequeathing equal share to plaintiff and defendant -- Courts below found that such notice was not sufficient to disinherit defendant from the property -- Will Ex.D1, duly executed by the testator/ father was not revoked by him during his life time – Held, findings given by the Courts below are based upon proper appreciation and correct interpretation of law.

(Para 10-12)

A. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Indian Evidence Act, 1872 (1 of 1872), Section 68, 90 – Will – Presumption as to 30 year old document – Applicability of -- Wills cannot be proved only on the basis of their age -- Presumption u/s 90 as to the regularity of documents more than 30 years of age is inapplicable when it comes to proof of wills, which have to be proved in terms of Sections 63(c) of the Succession Act, 1925, and Section 68 of the Evidence Act, 1872.

(Para 13)

B. Indian Evidence Act, 1872 (1 of 1872), Section 69 -- Will -- Attesting witness – Non-availability of -- In the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable.

(Para 17)

Indian Penal Code, 1860 (45 of 1860), Section 467, 468, 471, 120-B – Code of Criminal Procedure, 1973 (2 of 1974), Section 482 – Indian Evidence Act, 1872 (1 of 1872), Section 41 – Forged Will – Quashing of FIR – Genuineness of Will upheld upto Supreme Court  in probate proceedings – A judgment by a probate Court as per Section 41 of the Indian Evidence Act is in rem -- Whether any Court will be able to ignore the findings of the Civil Court regarding genuineness of the Will, answer is no – FIR and all the subsequent proceedings arising therefrom quashed.

(Para 1, 6, 12-13)

A. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Proof of Will – Suspicious circumstances – Burden to prove -- Mere proving of a Will does not establish the same to be valid in law, in case the same is surrounded by suspicious circumstances -- The beneficiary is not only required to discharge his burden to prove the Will; but is also to satisfy the conscious of the Court that there are no suspicious circumstances or if there are any, to explain them is also on the propounder of the Will -- It is only when such responsibility is discharged by the beneficiary, the Court can accept the Will to be genuine.

(Para 7)

B. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will – Suspicious circumstances -- It is settled proposition of law that mere exclusion or dis-heritance of a natural heir while executing a Will is not to be taken as a suspicious circumstance as the very purpose of execution of a Will is to divert from the line of natural succession -- However, it has also been settled and expounded upon by the Hon’ble Supreme Court in catena of judgments that any unnatural, improbable or unfair disposition made in the Will has to be considered as a suspicious circumstance.

(Para 9)

C. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will – Suspicious circumstances -- Respondent happened to be the legally wedded wife of deceased, neither the testator has recorded the factum of his marriage with the respondent in the Will; nor even her name has been mentioned therein -- More than that, no provision has even been made for her maintenance particularly under the circumstances wherein it has been established/ proved on record that the relationship between the husband and wife remained amicable throughout – From cumulative effect of the aforesaid facts and circumstances, one can easily see through that the testator’s mind was not free at the time of making disposition of Will.

(Para 9-14)

A. Hindu Succession Act, 1956 (30 of 1956), Section 6 – Will -- Ancestral property/ Co-parcenery property – Plea of – Proof of -- Contention that the suit properties is ancestral in the hands of testator  and upon his death the plaintiffs derived a share in the same – Held, it was incumbent upon appellant/plaintiff to establish that the suit properties were ancestral, however, the plaintiffs miserably failed to establish this stand -- There is no revenue record or other document showing that the suit properties devolved upon testator from his father and forefathers --  In the absence of any evidence, it cannot be held that the suit properties were ancestral.

(Para 14, 15)

B. Will – Suspicious circumstance -- Merely because the daughters of the Testator have been left out from the Will is not sufficient ground to discard it.

(Para 14)

Indian Succession Act, 1925 (39 of 1925), Section 317 -- Will in favour of wife – Suspicious circumstances – Probate denied by Courts below -- One of the attesting witnesses of the Will who had appeared in the witness box as PW2 is the maternal uncle of the appellant-wife, no reason forthcoming as to why he did not inform his niece i.e. the appellant for two years -- Certain words have been inserted at a later point of time which are in a different font – Handwriting Expert was produced by the respondents who had matched the alleged signatures of deceased on the Will Ex.P4 with Ex.R5, which is a registered power of attorney -- Though the execution of the power of attorney by the deceased is in favour of his mother, the knowledge of this power of attorney, Ex.R5, has been denied by the appellant, however no evidence was led by the appellant by way of Handwriting Expert to prove to the contrary -- No reason forthcoming from the Will as to why the minor child and the mother of the deceased, who were the natural heirs, had been excluded from the Will – Appeal dismissed.

(Para 8-11)

Indian Evidence Act, 1872 (1 of 1872), Section 68 – Registered Will – Proof of -- Attesting witness – Deposition of -- Contention of appellant/ plaintiff that ‘T’ is the only attesting witness examined by the defendants and he has failed to prove that the Will was signed by second witness, Lambardar either in his presence or in the presence of the testator -- Deposition of ‘T’, the testator as well as both the witnesses were present at the place where the Will was executed at the same time and the appellant plaintiff failed to solicit explanation from ‘T’ as to whether the other attesting witness had signed the Will at the time of execution in his presence or in the presence of testator – It was for the plaintiff to lay the foundation before objecting to the registered Will -- Registered Will bears not only thumb impressions of testator but also her photographs -- Plaintiff does not dispute the correctness of the photographs of the testator -- Plaintiff has not led any evidence to prove that Testator did not affix her thumb impressions on each page of the registered Will at the time of execution and also thumb marked on the Will at the time of its registration – Trial court decreed the suit, however the ld. First Appellate Court reversed the judgment of the trial Court after reappreciating the evidence -- No ground to interfere made out – Appeal dismissed.

(Para 3, 5-12)

A. Indian Succession Act, 1925 (39 of 1925), Section 70 -- Revocation of Will -- Will was not revoked by executing a new Will or a codicil – It is not the case that the Will was either destroyed or burnt by M or by someone else as per his express instructions -- Therefore, the Will was not revoked during the lifetime of M – Agreement thereafter purports to record that R will be the owner of 5 Bigha of land after the death of M and S will become owner of 2 Bigha and 3 Biswa of land after the demise of M -- Said agreement is not registered -- It is not a sale deed executed by M – Held, agreement will not have the effect of transferring the property to S and R – Will upheld.

(Para 12, 13)

B. Will – Excess sale – Joint land – Remedy of suit for partition -- Sale deed was executed by R after death of M – Held, sale deed executed by R will be valid only to the extent of the area which she acquired under the Will of M -- As the land held by M was not partitioned, suit for partition has to be filed – Decree modified.

(Para 14, 15)

A. Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1 – Indian Evidence Act, 1872 (1 of 1872), Section 68 – Proof of Will – Onus of – Framing of issue – Onus was upon the plaintiff to get the issues framed rightly if he was wanting to set up the plea that the onus of the Will should have been upon the propounder.

(Para 7)

B. Indian Succession Act, 1925 (39 of 1925), Section 61 -- Son living separately – Exclusion of son in Will -- Admission of the plaintiff that he was residing separately for the last 35 years after his marriage would be reason enough for the testator to keep him out of the zone of succession.

(Para 7)

Code of Civil Procedure, 1908 (V of 1908), Section 25 – Indian Succession Act, 1925 (39 of 1925), Section 212, 213, 250, 264, 273, 300 – Testamentary Succession -- Partition suit -- Will -- Probate of -- Transfer of suit --  Partition suit pending in District Court of Delhi is 8 years old -- Written statement was filed way back in November, 2012 – In reply petitioner has pleaded the execution of the disputed Will -- True copy of the Will is stated to have been annexed as D-1/5, to the written statement -- Obviously petitioner was convinced that there was no bar for him to establish his right as a legatee under the will, even without first obtaining letters of administration -- Legal contention raised on behalf of the petitioner that the partition suit should follow the testamentary case, is liable to be rejected in the facts and circumstances of this case -- Testamentary Case pending on the file of the High Court of Uttarakhand is ordered to be transferred to the file of the High Court of Delhi – Partition suit shall stand transferred to the High Court of Delhi and clubbed along with the testamentary proceeding and taken up together for disposal -- Parties are at liberty to move applications for examination of the witnesses including the attesters of the Will, either through Video Conference or through Court appointed Commissioners and applications for such reliefs may be considered by the High Court favourably.

(Para 40-49)

Indian Succession Act, 1925 (39 of 1925), Section 63 -- Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Proof of Will -- Attesting witness – Non-examination of -- One can appreciate that the plaintiff would not have been able to get defendant depose in his/her favour but it remains unexplained as to why the plaintiff could not examine the other attesting witness -- Testimony of the scribe cannot be substituted for testimony of an attesting witness – Court find no reason differ with concurrent finding that, plaintiff is unable to prove the genuineness of the Will.

(Para 8)

Code of Civil Procedure, 1908 (V of 1908), Section 25 – Probate of Will – Partition suit -- Transfer of petition -- Probate of Will proceedings pending at Bombay High Court – Partition suit pending at Delhi High court – Certain common issues would arise for adjudication of both these proceedings – Held, Probate Court having primacy in determining the question of grant of Letters of Administration or Probate, it would be expedient for the ends of justice that the Bombay High Court, which is hearing the Testamentary petition, should decide the suit for partition as well -- Will has been executed in Mumbai and the two attesting witnesses who have affirmed affidavits to support the Will are also from Mumbai – Partition suit transferred to Bombay High Court.

(Para 7, 8)

A. Registration Act, 1908 (16 of 1908), Section 17 -- Registration of Will – Requirement of -- It is not mandatory to get the will registered -- Registration of the will is optional -- Therefore, an unregistered wills are also valid and enforceable.

(Para 21)

B. Registration Act, 1908 (16 of 1908), Section 17 -- Registered Will – Signature in Registrar office but not before Registrar – Effect of -- Registrar is a complete office -- Officials posted in the office of Registrar are there to assist the Registrar -- Even if the signatures of the testator and the attesting witnesses were obtained on the endorsement to be signed at the time of registration in a separate room in the presence of the officials of the Registrar and not in its presence would not be sufficient to ignore the registered testament unless it is proved that the testator and the attesting witnesses did not appear before the Registrar while acknowledging their signatures on the registered Will and accepting the correctness of the Will -- In an ideal situation, the signatures on the testament should have been taken before the Registrar, however, that itself would not be sufficient to ignore the Will, particularly when registration of the Will is not compulsory.

(Para 21)

C. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Ancestral property – Onus to prove -- Courts cannot be expected to depend upon the bald statements of the witnesses to the fact that the property is ancestral -- Plaintiff has to prove that the property was inherited by a male Hindu from his father, father's father, father's father's father -- Plaintiff has failed to discharge its onus -- Absence of positive evidence in examination-in-Chief, failure of the defendant to cross-examine the witnesses produced by the plaintiff on a particular aspect cannot be conclusive to hold that the property is ancestral.

(Para 27-28)

D. Hindu Succession Act, 1956 (30 of 1956), Section 6 -- Joint Hindu Family -- Joint Hindu Family ancestral property – Nature of -- There is a distinction between Joint Hindu Family and Joint Hindu Family ancestral property -- Merely because the family is having a joint ration card is not sufficient to hold that the property is also Joint Hindu Family ancestral property.

(Para 32)

A. Indian Succession Act, 1925 (39 of 1925), Section 63(c) -- Attestation of Will -- No particular form of attestation is necessary -- Will is required to be attested by two or more witnesses each of whom should have seen the testator sign or put his mark on the Will or should have seen some other person sign the Will in his presence and by the direction of the testator or should have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person – Will must be signed by the witness in the presence of the testator, but it is not necessary that more than one witness should be present at the same time.

(Para 12)

B. Indian Succession Act, 1925 (39 of 1925), Section 63(c) – Indian Evidence Act, 1872 (1 of 1872), Section 71 -- Will -- Other evidence – Recourse of -- Attesting witnesses i.e. advocate could not be served -- Another witness not called by defendant being husband of plaintiff -- High Court held that the Will being registered was proved in terms of section 71 of the Evidence Act --  Held, finding of the High Court is unacceptable -- Recourse to Section 71 of the Evidence Act is impermissible without examination, it would not matter if witness is husband of plaintiff – Section 71 of the Evidence Act would come into operation, once and if all the attesting witnesses deny or do not recollect the execution of the document, that is, the Will.

(Para 23)

C. Indian Evidence Act, 1872 (1 of 1872), Section 71 -- Will – Other evidence – Suspicious circumstances – Consideration of -- Will which purportedly makes the bequest, is oddly described as a Will Deed – This possibly explains why defendant had claimed in his reply, that he was the owner of the tenement even during the lifetime of the mother – There exists grave doubt whether the “Will Deed” was executed and is a “Will” as it purports to be -- Testator was an illiterate lady, testator and her family members did not understand the true nature of the document executed -- There are substantial and good reasons to legitimately suspect and question execution of the Will, which propounder of the Will, has not been able to repel and remove so as to satisfy the Court that the Will was validly executed – Held, execution of the Will has not been proved by “other evidence” in terms of Section 71 of the Evidence Act.

(Para 28)

A. Indian Succession Act, 1925 (39 of 1925), Section 82,85,87 – Will – Bequest of -- Life Estate -- Testator has clearly recited in the testament that after her death, her husband would be sole owner in possession of her entire property including the property which testator is likely to acquire or succeed from her grandmother -- No doubt, in the next sentence it has been written that in case of death of her husband before or after her death, then both the sons would get the property in equal share -- Will nowhere restricts the estate of her husband to be a life estate -- There is no restriction on the rights of (first beneficiary) her husband to use or deal with the property in any manner -- Courts below have interpreted the Will in favour of Husband to be restricted life estate – Held, interpretation by the Courts below is erroneous.

(Para 11, 12)

B. Indian Succession Act, 1925 (39 of 1925), Section 82,85,87 – Will –Legality of -- A testament is regulated by the provision of Indian Succession Act, 1925 -- Section 82 of the Indian Succession Act, 1925 provide that meaning of any clause in a Will is to be collected from the entire instrument and its various Clauses are to be construed with reference to each other -- Section 85 provide that no part of the testament shall be rejected as destitute of meaning if it is possible to put a reasonable construction upon it -- Section 87 of the Indian Succession Act, 1925 provide that the intention of the testator shall not be set aside.

(Para 13)

A. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise arrived – Adjournment in case – Effect of -- No doubt, first proviso to Rule 3 of Order 23 of the Code of Civil Procedure provides that the court shall decide the question about the compromise on the same day and no adjournment shall be granted but there is no absolute bar for grant of such adjournment -- Delay of more than 10 years in disposal of the appeal – No subsequent development which makes the compromise inequitable or impossible on account of delay -- Inaction on the part of the court cannot be made ground to deprive fruits of a valid settlement arrived at between the parties.

(Para 26)

B. Indian Contract Act, 1872, Section 10 -- Deed of compromise – Validity of -- Deed of compromise is a contract between the parties can be unlawful only as per the provisions of the Contract Act.

(Para 35)

C. Registration Act, 1908 (16 of 1908), Section 17(2)(vi) – Compromise decree dealing with immovable property – Compulsorily registration – Requirement of -- Deed of compromise even if dealing with the immovable property which subject matter of litigation does not require registration.

(Para 37)

D. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise between some of parties – Permissibility of -- Compromise can be between some of the parties to the litigation or a part of the dispute involved -- 3rd proviso to Rule 3 of Order 23 as applicable to the State of Punjab, Haryana and Union Territory of Chandigarh uses the words “all the parties” but however that proviso deals with the adjournment -- The words “all the parties” has not been used in the main provision, therefore, proviso cannot be read in a manner to give a different meaning to the main provision.

(Para 40)

E. Code of Civil Procedure, 1908 (V of 1908), Order 23 Rule 3 – Compromise deed – Validity of -- Once a compromise deed is alleged by one party and denied by other party, the court shall decide the question – Compromise deed is in writing, signed by the parties who are educated belonging to affluent families represented by senior counsels -- Not the allegation that compromise deed is either not signed or is result of misrepresentation -- Party No.1 has already received the payment as agreed to under the deed of settlement/compromise deed -- Hence, no further enquiry is required.

(Para 45)

F. Code of Civil Procedure, 1908 (V of 1908), Section 2(12), Order 20 Rule 12 – Mesne profit – Co-sharer – Right of -- A co-sharer cannot be held to be in unauthorised possession and hence he is not liable to pay mesne profit.

(Para 65)

G. Code of Civil Procedure, 1908 (V of 1908), Order 2 Rule 2, Section 12 – Barring of subsequent suit -- Cause of action – In the present suit, plaintiffs have pleaded a cause of action which arose after the death of ‘JK’ -- Such cause of action was not available when previous litigation was filed -- Present suit is for resolving the dispute inter-se between the legal heirs of ‘JK’ on the basis of registered Will, which was not the cause of action in the previous suits -- Hence, bar under Section 12 or under Order 2 Rule 2 CPC would not be attracted.

(Para 78)

H. Sale of undivided specific share – Effect of -- Any sale or alienation made by a co-sharer even if with respect to land comprised in specific khasra numbers would ultimately be sale of an undivided share from the joint property.

(Para 86)

I. Sale of undivided specific share – Protection of Possession – Right of -- Once a co-sharer has put his subsequent vendee in possession of the property may be of undivided share, the vendee is entitled to protect his possession subject to partition.

(Para 87)

J. Indian Succession Act, 1925 (39 of 1925), Section 63(c) – Will – Execution of -- On careful reading of Section 63(c) of the Succession Act, it is apparent that Section 63(c) can be divided into 3 parts.

--     First part deals with attestation of the testament by 2 or more witnesses, each of whom has seen testator signed or affixed his mark to the Will;

--     or has seen some other persons signed the Will in the presence and by directions of the testator:

--     or has received from the testator a personal acknowledgement of his signature or mark or the signatures of such person and each of the witness 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 necessary.

(Para 92)

K. Indian Succession Act, 1925 (39 of 1925), Section 68 – Will -- Testament signed by other – Effect of -- Whenever the testament is signed by some other person and not by the testator, it is mandatory that some other person has signed the testament in the presence and by the directions of the testator -- In such circumstances, it is necessary to prove that the testament was signed in the presence and by direction of the testator.

(Para 93)

L. Indian Succession Act, 1925 (39 of 1925), Section 68 – Will – Execution of – Proof of -- One attesting witness who has been examined is required to testify that the testator signed in the presence of both the witnesses and attesting witness signed in the presence of the testator.

(Para 93)

M. Indian Succession Act, 1925 (39 of 1925), Section 63 -- Will – Attestation of -- Registration of -- Execution and attestation of the Will by the testator and two attesting witnesses is separate than the act of getting the same registered -- Some time there can be a gap of few days in between the execution and attestation of the Will by the attesting witnesses and registration of the Will – Registration of the Will is a separate independent act which is only optional -- Registration of the Will is not mandatory.

(Para 100)

N. Indian Succession Act, 1925 (39 of 1925), Section 68 -- Will -- Validity of -- Will is to be examined with reference to the status of the parties and their expected exposure to the world – Testament has not been executed in favour of stranger but in favour of her son and other heirs -- Testator had bequeathed the property in favour of his two sons, daughter, grand children from the sons and some of the grand children from the daughter -- Hence, the testament cannot be said to be unnatural -- Some difference in the share granted to each of the heir cannot be treated with suspicion.

(Para 102)

Indian Evidence Act, 1872 (1 of 1872), Section 68 -- Will -- Proof of -- Will proved for the following reasons;

--       First, the Will dated 12.03.1980 is a registered Will.

--      Second, it was executed by none other than the father in favour of his minor daughter and minor son born from first wife.

--      Third, when the father bequeathed his property to his minor children then nothing unnatural in it -- It is a natural bequeath out of love and affection.

--      Fourth, there is no question of minor daughter and son playing an active role in execution of the Will dated 12.03.1980 in their favour. It is for the simple reason that both were too young to indulge in any kind of illegal acts to grab the suit property.

--      Fifth, it has come in the evidence that the original Will dated 12.03.1980 was not in possession of the plaintiff but it was in possession of defendant No.1. For this reason, the plaintiff filed its certified copy after obtaining from Registrar’s office.

--      Sixth, this explanation was rightly accepted by the High Court.

--      Seventh, since the original Will was not in plaintiff's possession, its existence and legality could be proved by the plaintiff by leading the secondary evidence.

--     Eighth, the plaintiff proved the Will dated 12.03.1980 in accordance with the requirement of Section 68 of the Evidence Act, 1872 by adducing her own evidence and by examining one attesting witness of the Will -- Such evidence was sufficient to prove the Will.

--      Ninth, it is not in dispute that the later Will dated 20.05.1995 disclosed by the defendants did not find mention therein the fact of execution of first Will dated 12.03.1980 by the testator. Will dated 20.05.1995 should have found reference of the earlier Will dated 12.03.1980 because Will dated 12.03.1980 was a registered Will and in order to prevail the last Will over the earlier one, the reference of revocation of the earlier Will dated 12.03.1980 was necessary in the later Will. It was not so.

--      Tenth, since the plaintiff was not a party to the compromise decree dated 25.01.1997, it was not binding on her.

--      Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will.

(Para 17)

A. Limitation Act, 1963 (36 of 1963), Section 3 – Code of Civil Procedure, 1908 (V of 1908), Order 14 Rule 1 -- Civil Suit -- Limitation – Framing of issue – Requirement of – Though no issue on whether the plaintiffs’ suit was within limitation or not was ever framed by the learned Sub Judge in the suit, and no objection thereto is ever seen to be raised, however, limitation being a basic issue, this Court would not discard that question.

(Para 52)

B. Indian Evidence Act, 1872 (1 of 1872), Section 63, 68, 69 – Registered Will – Proof of -- Even a registered will, unlike any other registered document, has to be proved first strictly in terms of Section 63 of the Indian Succession Act, and then as per Section 68 of the Indian Evidence Act, with at least one of the attesting witnesses examined, if such witness be alive, and if not, then by taking recourse to Section 69 of the Evidence Act.

(Para 53)

C. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 – Registered Will -- Death of witnesses – Proof of -- Two conditions are required to be fulfilled; the first being that in the absence of an attesting witness, the attestation is recognized to be in the hand of that witness and the second being that the signature of the person executing the document is in the hand writing of that person.

(Para 58)

D. Indian Evidence Act, 1872 (1 of 1872), Section 68, 69 – Registered Will -- Death of witnesses – Proof of -- Signatures of the attesting witness and of the Sub-Registrar duly identified by persons who would normally recognize those signatures -- No evidence led by the defendants to disprove that the thumb impressions on the will were not those of testatrix, their only substantive contention that such thumb impressions, even if taken, were so taken by undue influence  -- Held, conditions necessary to prove the authenticity of the will in terms of Section 63 of the Indian Succession Act, 1925 and Section 68 read with Section 69 of the Indian Evidence Act, 1872, the will was duly proved by the plaintiff.

(Para 59-61)

E. Indian Evidence Act, 1872 (1 of 1872), Section 63, 68, 69 – Registered Will -- Testatrix died, 28 years after the execution of Will -- Delay of 3 year in showing the Will – Effect of -- Suit land was in possession of the plaintiff either in the capacity of a mortgagee or otherwise, during the entire life time of testatrix -- It was only when the defendants, i.e. the daughters of testatrix, got a mutation entered in their own favour qua the suit land, that the plaintiff actually instituted the suit seeking a declaration and permanent injunction in his favour, on the basis of the will -- Thus, though the delay in producing the will is not fatal to the plaintiffs' case.

(Para 63)

F. Indian Evidence Act, 1872 (1 of 1872), Section 63, 68, 69 – Registered Will – Undue influence -- Testatrix did not disclose factum of undue influence to her daughter for 28 years -- With the thumb impression of testatrix on the will not having been disproved in any manner by the defendants, and the will being a registered document, also more than 30 years old, with the signatures of two attesting witnesses and of the Sub-Registrar having been duly proved in terms of Section 69 of the Evidence Act, it cannot be held to be a fabricated document.

(Para 64)

G. Indian Evidence Act, 1872 (1 of 1872), Section 63 – Registered Will – Unsound mind -- Defendants' own witness admitted that she was in a fully sound mind right till her death – In view of the lack of any medical or other evidence to the contrary it has to be held that she was in a healthy state of mind.

(Para 66)

H. Indian Evidence Act, 1872 (1 of 1872), Section 63 – Registered Will in favour of nephew – Ignorance of natural succession -- Good reason for diverting natural succession have been given; to the effect that with two daughters of the testatrix having pre-deceased her, and two having been married off with enough given to them on their marriage and other occasions and the marriages also having been performed with the help of the plaintiffs' father; with the father having looked after every need of the testatrix, and the plaintiff also having looked after her – Held, the diversion from natural succession would be for sufficient cause shown.

(Para 67)

I. Limitation Act, 1963 (36 of 1963), Article 58, 65 – Indian Evidence Act, 1872 (1 of 1872), Section 63 – Registered Will – Limitation – Suit after 3 year of death of Testatrix – Suit was held to be within limitation.

(Para 71)

J. Code of Civil Procedure, 1908 (V of 1908), Order 7, Rule 1,3,5,7,8, -- Non-pleadings in suit – Maintainability of suit -- Claim made simply in the head note and prayer clause of a plaint, cannot be accepted to be sufficient compliance of Order 7 Rules 1, 3, 5, 7 and 8 of the CPC, even with a list of documents in support of such prayer, accompanying the plaint in terms of Rule 14 of Order 7.

(Para 81, 82)

A. Specific Relief Act, 1963 (47 of 1963), Section 34 -- Suit for declaration and permanent injunction – Maintainability of -- Suit was filed for declaration that defendant is owner in equal share of ½ share of the suit land and Will is null and void and mutation sanctioned on the basis thereof are also null and void -- Plaintiffs had also sought relief of permanent injunction -- That way the present suit was not simpliciter suit for declaration and the same is maintainable.

(Para 20)

B. Indian Succession Act, 1925 (39 of 1925), Section 63 – Will – Execution of – Proof of -- Execution of the Will has to be proved strictly in accordance with Section 63 of the Indian Succession Act -- It is also the requirement of law that both the witnesses should sign or append their signatures or thumb marks on the Will in the presence of testator and in the absence of that, the execution of document i.e. Will, itself cannot be said to have been proved.

(Para 20)

C. Indian Succession Act, 1925 (39 of 1925), Section 63 – Will – Suspicious circumstances -- Beneficiary of the Will was actively participating at the time of execution thereof, though that fact alone is not sufficient but keeping in view the other attending circumstances that daughters had been excluded from the vast empire of the deceased and the propounder of the Will failed to prove the due execution of the same -- More so, the scribe of the Will did not appear before the Sub Registrar – Will is held to be null and void.

(Para 5, 21)

Indian Succession Act, 1925 (39 of 1925), Section 63-C – Indian Evidence Act, 1872 (1 of 1872), Section 68 – Will – Execution of – Proof of – Will has been proved through the testimony of the Lambardar, his statement is as per the provisions of Section 63-C of the Indian Succession Act – One attesting witness of the Will, is sufficient to prove the ingredients of Section 68 of the Indian Evidence Act.

(Para 8)

A. Will – Executant of Will 100 year old – Contention that the executant was more than 100 years of age and therefore, he should be presumed to be mentally unfit and feeble in understanding things -- No medical evidence has come forth on record at the instance of the plaintiff, indicating that the mental state of health of executants was not good, rather, as per evidence of defendants he was of sound health and he died after about 3 years of execution of Will in question -- Will is meant to be dislodge someone from natural course of succession in respect of property -- Ground of disinheritance of the appellant cannot be treated to be a ground to presume that the Will is shrouded by any suspicious circumstance.

(Para 13)

B. Indian Succession Act, 1925 (39 of 1925), Section 105, 109 -- Will – Son has pre-deceased executant of Will -- Section 109 of Indian Succession Act will override Section 105 of the Act and the bequest shall not lapse but shall take effect as if the death of the legatee has happened immediately after the death of the testator.

(Para 14)

Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34-37 – Unregistered Will – Mutation –  Sanction of – Unregistered Will should not be accepted as the basis of the mutation if it contains even the slightest suspicious circumstances – Disinheritance of first class heirs without stating adequate reasons, non-mentioning about the mother in unregistered Will, the signature of the deceased in Will not matched with signatures in the arbitration notice are suspicious circumstances attending to the execution of Will – Mutation declined.

(Para 4)

Punjab Land Revenue Act, 1887 (XVII of 1887), Section 35,36 – Mutation – Mutation sanctioned on the basis of Will -- Will challenged by way of Suit – Attesting witnesses not examined – Even the Will was not placed on file by the defendant -- Sanction of mutation on the basis of Will was fraudulent and bogus transaction.

(Para 6, 8)

Punjab Land Revenue Act, 1887 (XVII of 1887), Section 34-37 – Mutation of inheritance -- Will – The evidence of the deed writer and marginal witnesses are not sufficient for sanctioning mutation on the  basis of unregistered Will -- Will must also be free of suspicious circumstances – Non-mentioning of fact of having three sons and two daughters in the Will and disinheriting them without giving any reason –  Is by self is an extremely suspicious circumstance -- Mutation on the basis of Will declined -- Mutation of inheritance is ordered to be sanctioned.

(Para 4)