SUPREME COURT REITERATES THAT IN THE EVENT ATTESTING WITNESSES TO A DOCUMENT ARE NOT ALIVE, THE AUTHENTICITY OF SUCH DOCUMENT MAY BE PROVED BASED ON OTHER EVIDENCE
A two Judge Bench of the Supreme Court comprising of Justice S. Ravindra Bhat and Justice Hima Kohli passed a Judgment dated 14.03.2023 in the matter of Ashutosh Samanta (D) by Lrs. and others vs. SM. Ranjan Bala Dasi and others Civil Appeal No. 7775 of 2021 and observed that in the event that attesting witnesses to a testamentary document are not alive, then the propounder of such document has to prove the genuineness thereof, by placing reliance on other documents making reference to the Will, deposition of other witnesses, identification of handwriting of testator and attesting witnesses, etc, under Section 69 of the Evidence Act 1872 (Proof where no attesting witness found).
- In the present case, one, Gosaidas Samanta (Testator) left behind a Will dated 16.11.1929, whereby, he bequeathed his estate among three Sons i.e. Anukul, Mahadev and Upendra.
- However, one, Shibu, the Testator’s Grandson and Son of Upendra had sold off the Properties from Upendra’s share and thereby executed a disclaimer document in that regard.
- Meanwhile, all three Sons executed a Partition Deed dated 21.02.1945.
- In the year 1952, one, Ashutosh Samanta, the Appellant-Purchaser herein, filed a Suit for Partition and Possession before the Ld. Trial Court, Calcutta in Title Suit No. 647/1952 alleging that he was in occupation of a part of the Property owned by the Testator that the Appellant had purchased from Upendra. The Ld. Trial Court dismissed the Suit, vide Order dated 29.08.1957 thereby observing that the Appellant-Purchaser had no title to the said Property.
- Aggrieved by the Ld. Trial Court’s Order dated 29.08.1957, the Appellant-Purchaser filed Title Appeal No. 1027/1957 before the Ld. Appellate Court, which passed a preliminary Decree of Partition dated 17.02.1959.
- Aggrieved by the Ld. Appellate Court’s Order dated 17.02.1959, one, SM. Ranjan Bala Dasi, the Testator’s Grandson and Son of Mahadev, the Respondent herein, filed Appeal from Appellate Decree No. 950/1959 before the Hon’ble High Court of Calcutta.
- The Hon’ble High Court of Calcutta passed a Judgment dated 27.11.1967 and held that although the Will had been relied upon, it was neither the probated nor were letters of administration sought in respect of it.
- Thereafter, the Respondent- Heir filedS. No. 79/1969 before the Ld. Trial Court, Calcutta seeking letters of administration in respect of the Will. However, at the time of trial, as none of the attesting witnesses were alive, the Ld. Trial Court relied upon (i) the depositions of the Testator’s two Sons and deposition of one, Surendranath Bhowmik, who had seen the Testator signing the Will, (ii) the Registered Deed of Partition dated 21.02.1945 that expressly referred to the Will of the Testator and (iii) the Disclaimer Document executed by Upendra, which also referred to the said Will.
- Based on the aforesaid documents, the Ld. Trial Court, vide Order dated 31.05.1972, allowed the Petition for Grant of Letters of Administration under Section 278 of the Indian Succession Act 1925 (Petition for letters of administration) in favor of the Respondent-Heir herein.
- Aggrieved by the Ld. Trial Court’s Order dated 31.05.1972, the Appellant-Purchaser filed A. No. 664/1972 before the Hon’ble Calcutta High Court and thereby raised a doubt regarding suspicious circumstances surrounding the execution of the Testator’s Will and thereby, challenged the genuineness of the said Will.
- The High Court, vide Judgment dated 02.02.2007, dismissed the Appeal filed by the Appellant-Purchaser and held that the Respondent-Heir was entitled to the Letters of Administration.
Supreme Court’s Observations
Aggrieved by the High Court Judgment dated 02.02.2007, the Appellant-Purchaser through his Legal Representatives (LRs) filed Civil Appeal No. 7775 of 2021 before the Hon’ble Supreme Court. The Apex Court passed a Judgment dated 14.03.2023 and made the following observations regarding the genuineness of the Testator’s Will and whether the Respondent-Heirs was entitled to the Letters of Administration in respect of such Will:
(i) That in the event that any of the attesting witnesses are not alive, the propounder of the document i.e. one who has to prove the genuineness of the said document, has to prove that the attestation of at least one attesting witness is in his handwriting, and that the signature of the person executing the document is in the hand writing of such person, under Section 69 of the Evidence Act 1872 (Proof where no attesting witness found).
(ii) That in the present case, as both the attesting Witnesses had died, the Respondent / Propounder of the Will had successfully proved the existence and genuineness of the Will based on various depositions of the Testator’s two Sons and another person who deposed about their presence during the execution of the Will and also identified the signatures on the Will. Additionally, other documents referring to the said Will were also relied upon, which prove the existence of the Will. Hence, the Will was held to be conclusively executed.
Based on the aforesaid observations, the Supreme Court held that the Respondent had successfully proved the genuineness of the Will and that the Respondents-Heirs are entitled to grant of Letters of Administration in respect of the Testator’s Will. Thus, the Apex Court upheld the High Court Judgment dated 02.02.2007 and dismissed the Appeal filed by the LRs of the Appellant- Purchaser.
The Indian Lawyer