Will Can't Be Presumed To Be Valid Merely Because It Is Registered : Supreme Court

The Supreme Court on Friday (06.10.2023) held that mere registration would not sanctify a document by attaching to it an irrebuttable presumption of genuineness.

The Apex Court was considering a property dispute, in which the validity and legality of a Will was called into question. The matter had reached the Apex Court after a series of appeals.

The Trial Court had held that valid execution of the Will had not been proved despite its registration. In the exercise of its second appellate jurisdiction, the High Court had held that mere registration of the Will would not suffice to dispel the suspicious circumstances surrounding it.

A bench of Justice C.T. Ravikumar and Justice Sanjay Kumar agreeing with the view of the Trial Court and affirming the order of the High Court said:

“…the Trial Court rightly opined that mere registration of the Will would not be sufficient to prove its validity, as its lawful execution necessarily had to be proved in accordance with Section 68 of the Indian Evidence Act, 1872 (for brevity, ‘the Evidence Act’), and Section 63 of the Indian Succession Act, 1925 (for brevity, ‘the Succession Act’)”

The Apex Court found that the essential legal requirements, under Sections 68 (Proof of execution of document required by law to be attested) and 71 (Proof when attesting witness denies the execution) of the Evidence Act, 1872 and Section 63 (Execution of unprivileged Wills) of the Hindu Succession Act, 1956 had not been established to prove the execution of the Will in question.

“Section 68 of the Evidence Act requires at least one attesting witness to the Will to prove its execution in terms of Section 63 of the Succession Act”, the Court said. However this requirement had not been satisfied in the case at hand, the Top Court observed. The Court also observed that the statements of the two attesting witnesses showed that they were not on same page.

The Apex Court dismissed the Appeal by affirming the order of the High Court. Since the Appellant in the case failed to prove the execution of the Will in terms of the legal requirements under the Succession Act and the Evidence Act, the Respondent would be entitled to succeed to the properties by intestate succession under Section 15 of the Hindu Succession Act 1956, the Apex Court concluded.

Case Title: Dhani Ram (died) through LRs. & others V. Shiv Singh, Civil Appeal No. 8172 of 2009

Citation : 2023 LiveLaw (SC) 862

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