SC:Not mentioning some natural heirs in will is no suspicious circumstance

The Hon’ble Supreme Court, on 19th March 2020, in the matter of Dhanpat v.Sheo Ram (Deceased) Through Lrs. & Ors. observed that an argument that some of the natural heirs were not even mentioned in the Will, therefore, the Will is surrounded by suspicious circumstances is not tenable.

The Hon’ble Supreme Court observed that:

Substantial question of law may not be required to be framed in Punjab and Haryana but still, the finding of fact recorded cannot be interfered with even in terms of Section 41 of the Punjab Courts Act, 1918. (Para 11)

Secondary evidence of a will can be admitted in evidence, even though no application to lead secondary evidence is filed.(This inference has been drawn on the basis of Paras 16 and 17)

Once the evidence of the party is that the original Will was lost and the certified copy is produced, the party has made out sufficient ground for leading of secondary evidence. (This inference has been drawn on the basis of Para 17)

There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. (Para 20)

A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. (Para 20)

Once the Will has been proved then the contents of such document are part of evidence. Thus, the requirement of Section 63 of the Hindu Succession Act and Section 68 of the Evidence Act stands satisfied. The witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. It is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence. (Para 23)

An argument that some of the natural heirs were not even mentioned in the Will, therefore, the Will is surrounded by suspicious circumstances is not tenable. (Para 30)

Copy of judgement: Judgement_19-Mar-2020

-Adv. Tushar Kaushik

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