RAJ KUMARI AND OTHERSversusSURINDER PAL SHARMA

872                      [2019]REPORTS
               SUPREME COURT   18 S.C.R. 872                [2019] 18 S.C.R.


A                        RAJ KUMARI AND OTHERS
                                         v.
                           SURINDER PAL SHARMA
                         (Civil Appeal No. 9683 of 2019)
B                             DECEMBER 17, 2019
            [S. ABDUL NAZEER AND SANJIV KHANNA, JJ.]
             Indian Succession Act – cl(c) to s.63 – Will – Evidence Act,
      1872 – ss. 68 and 71 – ‘H’ applied for a two room accomodation –
      ‘H’ died – Wife of ‘H’ was issued allotment letter of the said two
C
      room tenement – Thereafter, wife of ‘H’ also expired – ‘H’ and his
      wife had four children – Two daughters ‘R’ and ‘P’ and two sons ‘S’
      and ‘M’ – Daughter ‘R’ filed a suit for partition of the tenement and
      decree of declaration that she and the defendants i.e. her siblings
      were owners of 1/4th unspecified and undivided share in the
D     tenement – The suit was contested by ‘S’, who in his written statement
      had propounded a registered Will dated 02.01.1992 purportedly
      executed by the wife of ‘H’, his mother, wherein the tenement was
      bequeathed absolutely to him – The Trial Court passed a preliminary
      decree of partition inter alia holding that the four siblings were
      entitled to 1/4th share each in the tenement after recording that ‘S’
E
      had failed to prove the purported registered Will – It was held that
      ‘S’ had failed to examine any of attesting witnesses to the Will
      required u/s. 68 of the Evidence Act – The High Court set aside the
      judgment of the Trial court – On appeal, held: In the instant case,
      the Will was attested by two witnesses namely ‘RK’ husband of ‘R’
F     and ‘MN’, Advocate – ‘S’ stated that ‘MN’ could not be served and
      hence was not examined and ‘RK’ was not summoned or examined
      as he was the husband of ‘R’ – The High Court has accordingly
      held that Will being registered was proved in terms of s. 71 of the
      Evidence Act – This finding of the High court is unacceptable, for
      recourse to s. 71 of the Evidence Act is impermissible without the
G
      examination of witness ‘RK’ – It would not matter if ‘RK’ is husband
      of ‘R’ – s.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 – Since, ‘RK’ was not summoned
      and examined, therefore, it cannot be said that he had denied or
H
                                        872
  RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                             873


did not recollect execution of the Will – Further, ‘S’ in a reply to a     A
legal notice by ‘R’ had not made any reference to a Will, the defence
of Will was taken for first time in his written statement – The Will
was not challenged in the Court of law as ‘R’ came to know about it
during pendency of the suit – Besides, the testator, mother of ‘S’
and ‘R’ was an illiterate lady – Even if signatures of the testator
                                                                           B
and witnesses are accepted, the ‘other evidence’ cannot be ignored
that mother of ‘S’ 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 – Therefore, the judgment of the High Court set aside and
judgment of the Trial Court restored.                                      C
       Evidence Act, 1872 – ss. 68 and 71 – The effect of ss. 68 and
71 in case of a Will – Held: s. 63 of the Indian Succession Act
requires and mandates attestation of a Will by two or more persons
as witnesses, albeit s.68 of the Evidence Act gives concession to
those who want to prove and establish a Will in the Court of law by        D
examining at least one attesting witness who could prove the
execution of the Will viz. Attestation by the two witnesses and its
execution in the manner contemplated by cl (c) to s.63 of the Indian
Succession Act – However, where one attesting witness examined
fails to prove due execution of the will, then other available attesting
witness must be called to supplement his evidence to make it               E
complete in all respects to comply with the requirement of proof as
mandated by s. 68 of the Evidence Act – The effect of s. 71 Evidence
Act can be requisitioned when the attesting witnesses who were being
called have failed to prove the execution of Will by reason of either
denying their own signatures, denying the signature of the testator        F
or due to bad recollection as to the execution of the document –
s.71 has no application when only one attesting witness who was
called and examined has failed to prove the execution of Will and
the other available attesting witness was not summoned.
      Allowing the appeal, the Court                                       G
      HELD: 1. In the facts of the present case, it is submitted
by ‘S’, the respondent, that summons/notice were issued to ‘MN’
Advocate to appear as a witness but he could not be served and
hence was not examined. ‘RK’ it is submitted, was not summoned
or examined as he was none other than the husband of ‘R’ and               H
874           SUPREME COURT REPORTS                     [2019] 18 S.C.R.


A     would not have supported execution of the Will. The High Court
      has accordingly held that the Will being registered was proved in
      terms of section 71 of the Evidence Act. This finding of the High
      Court is unacceptable, for recourse to Section 71 of the Evidence
      Act is impermissible without examination of ‘RK’. It would not
      matter if ‘RK’ is husband of ‘R’. Section 71 of the Evidence Act
B
      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. In that event, the execution can be proved by other
      evidence. The respondent accepts that ‘RK’ though a witness
      was not summoned and asked to depose as a witness and
C     therefore, it cannot be said that ‘RK’ as an attesting witness had
      denied or did not recollect execution of the Will. [Para 23][891-
      G; 892-A-C]
             2. ‘S’ had not propounded and referred to the Will in his
      reply to the legal notice, which defence was taken by him for the
D     first time in his written statement. This is also clear from the
      cross-examination of ‘S’ wherein he had accepted as correct that
      the Will was not challenged by ‘R’ in the court of law as she had
      come to know about the Will during the pendency of the present
      case. ‘S’ thus accepts that bestowal in his favour vide a written
      Will, was not known or within the knowledge of ‘R’, a surprising
E     statement as ‘RK’ is husband of ‘R’. Equally intriguing is the
      statement of ‘S’ in his cross-examination that he had not informed
      his lawyer while drafting the reply (to the legal notice) that he
      was in possession of the Will executed by his mother. ‘S’ in his
      cross examination had accepted that in 1972, he was studying in
F     Class VI and was hardly 11 to 12 years of age (This statement is
      at variance with the age of ‘S’ in Exhibit DW-1/P-3 but we would
      accept the statement in the oral testimony). ‘S’ had claimed that
      he would repair cycles and had contributed to the payments
      towards instalments of the quarter. It is in this aforesaid factual
      background that we would examine the Will, its wordings and
G     contents. [Para 26][893-B-E]
            3. The Will which purportedly makes the bequest, is oddly
      described as a Will Deed. This possibly explains why ‘S’ had
      claimed in his reply, that he was the owner of the tenement even
      during the lifetime of his mother. It is in this context that this
H
  RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                        875


Court has read the different portions of the testimony of ‘R’ and     A
‘S’; the notice and the reply to hold that there exists grave doubt
whether the “Will Deed” was executed and is a “Will” as it
purports to be. The marriage of one of the grand daughter as per
her wish is not challenged. The testator was an illiterate lady.
Even if this Court is to accept signatures of the testator and the
                                                                      B
witnesses, this Court cannot ignore “other evidence” that mother
of ‘S’ and ‘R’ 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 ‘S’, as the propounder of the Will, has not been
able to repel and remove so as to satisfy this Court that the Will    C
was validly executed. For these reasons, this Court would hold
that execution of the Will has not been proved by “other
evidence” in terms of Section 71 of the Evidence Act. [Para
28][894-F-H; 895-A-B]
      Jagdish Chand Sharma v. Narain Singh Saini (Dead)               D
      Through LRs. and Others (2015) 8 SCC 615 : [2015] 6
      SCR 397; Janki Narayan Bhoir v. Narayan Namdeo
      Kadam (2003) 2 SCC 91 : [2002] 5 Suppl. SCR 175 –
      relied on.
      M.B. Ramesh (Dead) by LRs. v. K.M. Veeraje Urs (Dead)           E
      by LRs. and Others (2013) 7 SCC 490 : [2013] 8 SCR
      573; H. Venkatachala Iyengar v. B.N. Thimmajamma
      and Others AIR 1959 SC 443 : [1959] Suppl. SCR
      426; Jaswant Kaur v. Amrit Kaur and Others (1977) 1
      SCC 369 : [1977] 1 SCR 925; Surendra Pal and Others.
      v. Dr. (Mrs.) Saraswati Arora and Another (1974) 2 SCC          F
      600 : [1975] 1 SCR 687; Rabindra Nath Mukherjee
      and Another v. Panchanan Banerjee (Dead) by LRs.
      and Others (1995) 4 SCC 459; Benga Behera and
      Another v. Braja Kishore Nanda and Others (2007) 9
      SCC 728 : [2007] 6 SCR 853; Dharam Singh v. Aso                 G
      and Another (1990) Suppl. SCC 684 – referred to.
      Vishnu Ramkrishna v. Nathu Vithal and Others AIR
      1949 BOM 266; Dhira Singh v. Moti Lal and Others
      63 Ind. Cas. 266; Mt. Manki Kaur v. Hansraj Singh
      and Others AIR 1938 Pat 301 – referred to.                      H
876            SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A                            Case Law Reference
      [2013] 8 SCR 573                referred to           Para 10
      [1959] Suppl. SCR 426           referred to           Para 13
      [1977] 1 SCR 925                referred to           Para 14
B     [1975] 1 SCR 687                referred to           Para 14
      (1995) 4 SCC 459                referred to           Para 14
      [2015] 6 SCR 397                relied on             Para 15
      [2002] 5 Suppl. SCR 175         relied on             Para 18
C
      [2007] 6 SCR 853                referred to           Para 22
      (1990) Suppl. SCC 684           referred to           Para 22
            CIVIL APPELLATE JURISDICTION: Civil Appeal No. 9683
      of 2019.
D          From the Judgment and Order dated 09.03.2018 of the High Court
      of Delhi at New Delhi in RFA No. 234 of 2018.
            Rajesh Srivastava, Pramod Kumar Ahuja, Ms. Suresh Kumari,
      Advs. for the Appellants.
           S.B. Upadhyay, Sr. Adv., Kushal Kumar, Ms. C. Rubavathi, Harsh
E
      Ahuja, Nishant Kumar, M.A. Chinnasamy, Advs. for the Respondent.
            The following Judgment of the Court was delivered :
                                  JUDGMENT
            1. Leave granted.
F
             2. On account of migration to Delhi on partition, Harbans Lal
      being a displaced person had vide application dated 13.04.1958, marked
      as Exhibit DW-1/P-3, applied for a two room accommodation at Gur
      Mandi, Civil Lines, Delhi with the Municipal Corporation of Delhi. This
      application records that Harbans Lal was a shopkeeper, Suhagwanti
G     was his wife and Madan Lal, Puran Kumari, Surinder Kumar and Baby
      were his children. Madan Lal was described as being in service and all
      other children were described as dependants.
            3. Harbans Lal died in 1965.

H
  RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                                 877


        4. On 15.03.1972, Suhagwanti Devi, being the wife of late Harbans      A
Lal, was issued allotment letter for duplex type tenement under the
Redevelopment Scheme at Gur-ki-Mandi for Rs. 14,325/-, which amount
was payable in 20 equal annual instalments with interest at the rate of
5% per annum and on default, penal interest at the rate of 8% per annum.
Collection charges at the rate of 24% were also payable. The allotment
                                                                               B
letter had a stipulation that the allottee would have to surrender vacant
possession of Quarter No. 27 New Padam Chand Land within 3 days.
The allotment letter though not a marked Exhibit is an undisputed
document.
      5. Suhagwanti Devi expired on 10.10.1999.
                                                                               C
      6. Raj Kumari daughter of Harbans Lal, who by then was married,
on or about 15.10.2004 filed a suit for partition of the tenement and
decree of declaration that she and the defendants namely Surinder Pal
Sharma, Puran Devi née Kumari, and Santosh Rani (widow of Madan
Lal who had by then expired), were owners of 1/4th unspecified and
undivided share in the tenement. A decree for rendition of accounts and        D
permanent injunction was also prayed for.
       7. The suit was contested by Surinder Pal Sharma, who in his
written statement had propounded a registered Will dated 02.01.1992,
purportedly executed by Suhagwanti wherein the tenement had been
bequeathed solely and absolutely to him. It was stated that husband of         E
Raj Kumari namely Ramesh Kumar was an attesting witness to the
Will. Puran Devi and Santosh Rani despite service did not file their written
statements. Santosh Rani during the pendency of the suit expired and
was represented by her daughter Veena Malhotra. Puran Devi has also
expired and is now represented by her daughter Meenakshi Sharma.               F
       8. The trial court vide judgment dated 17.01.2018 passed a
preliminary decree of partition inter alia holding that the four siblings
were entitled to 1/4th share each in the tenement after recording that
Surinder Pal Sharma had failed to prove the purported registered Will of
Suhagwanti dated 02.01.1992. The judgment held that Surinder Pal               G
Sharma had failed to examine any of the attesting witnesses to the Will
as required vide Section 68 of the Evidence Act and therefore, could not
prove that Suhagwanti had signed the Will at her free will in a sound
disposing state of mind after having understood its contents. It was also
held that as per the testimony of Surinder Pal Sharma the Will marked
Exhibit DW-1/2 was attested by one witness only and therefore,                 H
878               SUPREME COURT REPORTS                        [2019] 18 S.C.R.


A     mandatory requirement of clause (c) to Section 63 of the Indian
      Succession Act was not satisfied. The trial court having perused the Will
      held that Mr. M.N. Sharma, Advocate had signed as a draftsman and
      counsel and not as an attesting witness. It was observed that mere
      registration of the Will, as proved by Parveen Kumar Rana, UDC working
      in the office of Sub-Registrar, Kashmere Gate, who has deposed as
B
      DW-3, would not prove the Will.
             9. Aggrieved, Surinder Pal Sharma had filed an appeal before the
      Delhi High Court, bearing RFA No. 234 of 2018, and by the impugned
      judgment dated 09.03.2018 has succeeded. Consequently, the judgment
      of the trial court dated 17.01.2018 has been set aside and the suit has
C     been dismissed.
             10. The High Court held that the Will was attested by two witnesses
      namely Ramesh Kumar and Mr. M.N. Sharma, Advocate and thus,
      satisfies the requirement of clause (c) to Section 63 of the Indian
      Succession Act. It was also observed that Surinder Pal Sharma had
D     made all efforts to summon the attesting witness Mr. M.N. Sharma,
      Advocate, through court notices, but he did not appear. In light of Section
      71 of the Evidence Act, the Will should be treated as proved as the same
      was registered and the presumption under Section 114 of the Evidence
      Act would apply. Accordingly, it should be presumed that the Sub-
      Registrar, who was holding a public office, had validly carried out the
E
      registration after ascertaining that the Will was attested by the two
      witnesses including Mr. M.N Sharma, Advocate. Reliance was placed
      on the judgment of this Court in M.B. Ramesh (Dead) by LRs. v. K.M.
      Veeraje Urs (Dead) by LRs. and Others1 which we shall subsequently
      advert to. The contention of the first appellant before us, namely Raj
F     Kumari, that Surinder Pal Sharma had forged her signature for obtaining
      mutation in the Municipal Corporation record was brushed aside observing
      that at best it would show that the mutation was illegal but this would
      have no bearing on the question of attestation and validity of the Will.
            11. Raj Kumari, Meenakshi Sharma and Veena Malhotra have
G     preferred the present appeal before this Court with a prayer that the
      preliminary decree of partition passed by the trial court should be restored
      and the impugned judgment of the High Court dated 09.03.2018 passed
      in RFA No. 234 of 2018 should be set aside.


H     1
          (2013) 7 SCC 490
     RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                              879


      12. We would first expound the law relating to the execution and         A
proof of Wills under the Indian Succession Act and the Evidence Act.
Clause (c) of Section 63 of the Indian Succession Act reads as follows:
         “63. Execution of unprivileged wills.––Every testator, not being
         a soldier employed in an expedition or engaged in actual warfare,
         or an airman so employed or engaged, or a mariner at sea, shall       B
         execute his will according to the following rules––
         (a)-(b)      *            *                *
         (c) The will shall be attested by two or more witnesses, each of
         whom has seen the testator sign or affix his mark to the will or
         has seen some other person sign the will, in the presence and by      C
         the direction of the testator, or has received from the testator a
         personal acknowledgment of his signature or mark, or of the
         signature of such other person; and each of the witnesses 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           D
         time, and no particular form of attestation shall be necessary.”
       As per the mandate of clause (c), a 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   E
have received from the testator a personal acknowledgment of his
signature or mark, or of the signature of such other person. The 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. No particular form of attestation is necessary. Thus, there is no
prescription in the statute that the testator must necessarily sign the Will   F
in the presence of the attesting witnesses only or that the attesting
witnesses must put their signatures on the Will simultaneously, that is, at
the same time, in the presence of each other and the testator.
       13. The need and necessity for stringent requirements of clause
(c) to Section 63 of the Indian Succession Act has been elucidated and         G
explained in several decisions. In H. Venkatachala Iyengar v. B.N.
Thimmajamma and Others.2 dilating on the statutory and mandatory
requisites for validating the execution of the Will, this Court had
highlighted the dissimilarities between the Will which is a testamentary
2
    AIR 1959 SC 443                                                            H
880               SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A     instrument vis-à-vis other documents of conveyancing, by emphasising
      that the Will is produced before the court after the testator who has
      departed from the world, cannot say that the Will is his own or it is not
      the same. This factum introduces an element of solemnity to the decision
      on the question where the Will propounded is proved as the last Will or
      testament of the departed testator. Therefore, the propounder to succeed
B
      and prove the Will is required to prove by satisfactory evidence that (i)
      the Will was signed by the testator; (ii) the testator at the time was in a
      sound and disposing state of mind; (iii) the testator understood the nature
      and effect of the dispositions; and (iv) that the testator had put his signature
      on the document of his own free will. Ordinarily, when the evidence
C     adduced in support of the Will is disinterested, satisfactory and sufficient
      to prove the sound and disposing state of mind of the testator and his
      signature as required by law, courts would be justified in making a finding
      in favour of the propounder. Such evidence would discharge the onus on
      the propounder to prove the essential facts. At the same time, this Court
      observed that it is necessary to remove suspicious circumstances
D
      surrounding the execution of the Will and therefore no hard and fast or
      inflexible rules can be laid down for the appreciation of the evidence to
      this effect.
             14. In Jaswant Kaur v. Amrit Kaur and Others3, it was held
      that suspicion generated by disinheritance is not removed by mere
E     assertion of the propounder that the Will bears the signature of the testator
      or that the testator was in sound and disposing state of mind when the
      Will disinherits those like the wife and children of the testator who would
      have normally received their due share in the estate. At the same time,
      the testator may have his own reasons for excluding them. Therefore, it
F     is obligatory for the propounder to remove all the legitimate suspicions
      before a Will is accepted as a valid last Will of the testator. Earlier, in
      Surendra Pal and Others. v. Dr. (Mrs.) Saraswati Arora and
      Another 4, this Court had observed that the propounder should
      demonstrate that the Will was signed by the testator and at the relevant
      time, the testator was in a sound and disposing state of mind and had
G     understood the nature and effect of the dispositions, that he had put his
      signature on the testimony of his own free will and at least two witnesses
      have attested the Will in his presence. However, suspicion may arise
      where the signature is doubtful or when the testator is of feeble mind or
      3
          (1977) 1 SCC 369
H     4
          (1974) 2 SCC 600
     RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                             881


is overawed by powerful minds interested in getting his property or where     A
the disposition appears to be unnatural, improbable and unfair or where
there are other reasons to doubt the testator’s free will and mind. The
nature and quality of proof must commensurate with such essentiality so
as to remove any suspicion which a reasonable or prudent man may, in
the prevailing circumstances, entertain. Where coercion and fraud are
                                                                              B
alleged by an objector, the onus is on him to prove the same and on his
failure, probate of the Will must necessarily be granted when it is
established that the testator had full testamentary capacity and had in
fact executed the Will with a free will and mind. In Rabindra Nath
Mukherjee and Another v. Panchanan Banerjee (Dead) by LRs.
and Others5, this Court had observed that the doubt would be less             C
significant if the Will is registered and the Sub-Registrar certifies that
the same was read over to the executor who, on doing so, had admitted
the contents. In each case, the court must be satisfied as to the mandate
and requirements of clause (c) to Section 63 of the Indian Succession
Act.
                                                                              D
        15. In Jagdish Chand Sharma v. Narain Singh Saini (Dead)
Through LRs. and Others6, this Court referring to Section 63 of the
Indian Succession Act had illustrated that the provisions contemplate
that in order to validly execute the Will, the testator would have to sign
or affix his mark to it or the same has to be signed by some other person
in his presence and on his direction. Further, the signature or mark of the   E
testator or signature of the person signing for him has to be so placed
that it was intended to give effect to the writing as a Will. Section 63
mandates that the Will should be attested by two or more witnesses
each of whom has seen the testator sign or affix his mark to it or has
seen some other person sign it in the presence and on the direction of        F
the testator, or has received from the testator a personal acknowledgement
of his signature or mark, or the signature of such other person and each
of the witnesses has signed the Will in the presence of the testator,
though it is not necessary that more than one witness be present at the
same time and that no particular form of attestation is necessary. The
execution and attestation of the Will are mandatory in nature and any         G
failure and deficiency in adhering to the essential requirements would
result in invalidation of the instrument of disposition of the property.

5
    (1995) 4 SCC 459
6
    (2015) 8 SCC 615                                                          H
882            SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A           16. Sections 68 and 71 of the Evidence Act, which relate to proof
      of documents required by law to be attested, read as under:
            “68. Proof of execution of document required by law to be
            attested.—If a document is required by law to be attested, it
            shall not be used as evidence until one attesting witness at least
B           has been called for the purpose of proving its execution, if there
            be an attesting witness alive, and subject to the process of the
            Court and capable of giving evidence:
            Provided that it shall not be necessary to call an attesting witness
            in proof of the execution of any document, not being a will, which
C           has been registered in accordance with the provisions of the Indian
            Registration Act, 1908 (16 of 1908), unless its execution by the
            person by whom it purports to have been executed is specifically
            denied.
                                    *     *    *
D           71. Proof when attesting witness denies the execution.—If
            the attesting witness denies or does not recollect the execution of
            the document, its execution may be proved by other evidence.”
            17. In Jagdish Chand Sharma (supra) referring to Sections 68
      and 71 of the Evidence Act, it was observed:
E
            “22.2. These statutory provisions, thus, make it incumbent for a
            document required by law to be attested to have its execution
            proved by at least one of the attesting witnesses, if alive, and is
            subject to the process of the court conducting the proceedings
            involved and is capable of giving evidence. This rigour is, however,
F           eased in case of a document also required to be attested but not a
            will, if the same has been registered in accordance with the
            provisions of the Registration Act, 1908 unless the execution of
            this document by the person said to have executed it denies the
            same. In any view of the matter, however, the relaxation extended
            by the proviso is of no avail qua a will. The proof of a will to be
G
            admissible in evidence with probative potential, being a document
            required by law to be attested by two witnesses, would necessarily
            need proof of its execution through at least one of the attesting
            witnesses, if alive, and subject to the process of the court
            concerned and is capable of giving evidence.
H
RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                               883


  22.3. Section 71 provides, however, that if the attesting witness        A
  denies or does not recollect the execution of the document, its
  execution may be proved by the other evidence. The interplay of
  the above statutory provisions and the underlying legislative
  objective would be of formidable relevance in evaluating the
  materials on record and recording the penultimate conclusions.
                                                                           B
  With this backdrop, expedient it would be, to scrutinise the evidence
  adduced by the parties.
                         xxx xxx xxx
  57.1. Viewed in premise, Section 71 of the 1872 Act has to be
  necessarily accorded a strict interpretation. The two contingencies      C
  permitting the play of this provision, namely, denial or failure to
  recollect the execution by the attesting witness produced, thus a
  fortiori has to be extended a meaning to ensure that the limited
  liberty granted by Section 71 of the 1872 Act does not in any
  manner efface or emasculate the essence and efficacy of Section
  63 of the Act and Section 68 of the 1872 Act. The distinction            D
  between failure on the part of an attesting witness to prove the
  execution and attestation of a will and his or her denial of the said
  event or failure to recollect the same, has to be essentially
  maintained. Any unwarranted indulgence, permitting extra liberal
  flexibility to these two stipulations, would render the predication      E
  of Section 63 of the Act and Section 68 of the 1872 Act, otiose.
  The propounder can be initiated to the benefit of Section 71 of the
  1872 Act only if the attesting witness/witnesses, who is/are alive
  and is/are produced and in clear terms either denies/deny the
  execution of the document or cannot recollect the said incident.
  Not only, this witness/witnesses has/have to be credible and             F
  impartial, the evidence adduced ought to demonstrate unhesitant
  denial of the execution of the document or authenticate real
  forgetfulness of such fact. If the testimony evinces a casual
  account of the execution and attestation of the document
  disregardful of truth, and thereby fails to prove these two essentials   G
  as per law, the propounder cannot be permitted to adduce other
  evidence under cover of Section 71 of the 1872 Act. Such a
  sanction would not only be incompatible with the scheme of Section
  63 of the Act read with Section 68 of the 1872 Act but also would
  be extinctive of the paramountcy and sacrosanctity thereof, a
                                                                           H
884            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           consequence, not legislatively intended. If the evidence of the
            witnesses produced by the propounder is inherently worthless and
            lacking in credibility, Section 71 of the 1872 Act cannot be invoked
            to bail him (the propounder) out of the situation to facilitate a
            roving pursuit. In absence of any touch of truthfulness and
            genuineness in the overall approach, this provision, which is not a
B
            substitute of Section 63(c) of the Act and Section 68 of the 1872
            Act, cannot be invoked to supplement such failed speculative
            endeavour.
            57.2. Section 71 of the 1872 Act, even if assumed to be akin to a
            proviso to the mandate contained in Section 63 of the Act and
C           Section 68 of the 1872 Act, it has to be assuredly construed
            harmoniously therewith and not divorced therefrom with a
            mutilative bearing. This underlying principle is inter alia embedded
            in the decision of this Court in CIT v. Ajax Products Ltd.”
            After referring to H. Venkatachala Iyengar (supra), this Court
D     in Jaswant Kaur (supra) had laid down the following propositions of
      law:
            “(1) Stated generally, a will has to be proved like any other
            document, the test to be applied being the usual test of the
            satisfaction of the prudent mind in such matters. As in the case of
E           proof of other documents, so in the case of proof of wills, one
            cannot insist on proof with mathematical certainty.
            (2) Since Section 63 of the Succession Act requires a will to be
            attested, it cannot be used as evidence until, as required by Section
            68 of the Evidence Act, one attesting witness at least has been
F           called for the purpose of proving its execution, if there be an
            attesting witness alive, and subject to the process of the court and
            capable of giving evidence.
            (3) Unlike other documents, the will speaks from the death of the
            testator and therefore the maker of the will is never available for
G           deposing as to the circumstances in which the will came to be
            executed. This aspect introduces an element of solemnity in the
            decision of the question whether the document propounded is
            proved to be the last will and testament of the testator. Normally,
            the onus which lies on the propounder can be taken to be discharged
            on proof of the essential facts which go into the making of the
H
            will.
     RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                                 885


        (4) Cases in which the execution of the will is surrounded by             A
        suspicious circumstances stand on a different footing. A shaky
        signature, a feeble mind, an unfair and unjust disposition of property,
        the propounder himself taking a leading part in the making of the
        will under which he receives a substantial benefit and such other
        circumstances raise suspicion about the execution of the will. That
                                                                                  B
        suspicion cannot be removed by the mere assertion of the
        propounder that the will bears the signature of the testator or that
        the testator was in a sound and disposing state of mind and memory
        at the time when the will was made, or that those like the wife
        and children of the testator who would normally receive their due
        share in his estate were disinherited because the testator might          C
        have had his own reasons for excluding them. The presence of
        suspicious circumstances makes the initial onus heavier and
        therefore, in cases where the circumstances attendant upon the
        execution of the will excite the suspicion of the court, the
        propounder must remove all legitimate suspicions before the
                                                                                  D
        document can be accepted as the last will of the testator.
        (5) It is in connection with wills, the execution of which is
        surrounded by suspicious circumstances that the test of satisfaction
        of the judicial conscience has been evolved. That test emphasises
        that in determining the question as to whether an instrument
        produced before the court is the last will of the testator, the court     E
        is called upon to decide a solemn question and by reason of
        suspicious circumstances the court has to be satisfied fully that
        the will has been validly executed by the testator.
        (6) If a caveator alleges fraud, undue influence, coercion, etc. in
        regard to the execution of the will, such pleas have to be proved         F
        by him, but even in the absence of such pleas, the very
        circumstances surrounding the execution of the will may raise a
        doubt as to whether the testator was acting of his own free will.
        And then it is a part of the initial onus of the propounder to remove
        all reasonable doubts in the matter.”                                     G
      18. In M.B. Ramesh (supra) reference was made to the view
expressed by the Division Bench of the Bombay High Court in Vishnu
Ramkrishna v. Nathu Vithal and Others7 wherein it was observed:

7
    AIR 1949 BOM 266                                                              H
886               SUPREME COURT REPORTS                         [2019] 18 S.C.R.


A              “27. […] We are dealing with the case of a will and we must
               approach the problem as a court of conscience. It is for us to be
               satisfied whether the document put forward is the last will and
               testament of Gangabai. If we find that the wishes of the testatrix
               are likely to be defeated or thwarted merely by reason of want
               of some technicality, we as a court of conscience would not
B
               permit such a thing to happen. We have not heard Mr Dharap
               on the other point; but assuming that Gangabai had a sound and
               disposing mind and that she wanted to dispose of her property as
               she in fact has done, the mere fact that the propounders of the
               will were negligent—and grossly negligent—in not complying with
C              the requirements of Section 63 and proving the will as they ought
               to have, should not deter us from calling for the necessary evidence
               in order to satisfy ourselves whether the will was duly executed
               or not.”
                                                              (emphasis supplied)
D           The judgment in M.B. Ramesh (supra) also refers to Janki
      Narayan Bhoir v. Narayan Namdeo Kadam8 in which with reference
      to Sections 68 and 71 of the Evidence Act, it was observed:
               “22. […] 6. … It is true that although a will is required to be
               attested by two witnesses it could be proved by examining one of
E              the attesting witnesses as per Section 68 of the Evidence Act.
                                     xxx xxx xxx
               11. … Aid of Section 71 can be taken only when the attesting
               witnesses, who have been called, deny or fail to recollect the
F              execution of the document to prove it by other evidence. …
               12. … Section 71 has no application when the one attesting witness,
               who alone has been summoned, has failed to prove the execution
               of the will and the other attesting witness though available has not
               been examined.”
G           Highlighting the aforesaid aspects in M.B. Ramesh (supra), it
      was held that:
               “28. As stated by this Court also in H. Venkatachala Iyengar
               and Jaswant Kaur, while arriving at the finding as to whether the

      8
H         (2003) 2 SCC 91
     RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                                 887


          will was duly executed, the Court must satisfy its conscience having    A
          regard to the totality of circumstances. The Court’s role in matters
          concerning wills is limited to examining whether the instrument
          propounded as the last will of the deceased is or is not that by the
          testator, and whether it is the product of the free and sound
          disposing mind [as observed by this Court in para 77 of Gurdev
                                                                                  B
          Kaur v. Kaki]. In the present matter, there is no dispute about
          these factors.”
       19. In Jagdish Chand Sharma (supra) reference was made to
the facts of the case in M.B. Ramesh (supra) to observe that on
consideration of the totality of circumstances emerging from the narration
given by the attesting witness, the omission on the part of this witness to       C
specifically state about the signature by the other attesting witness on
the Will in the presence of the testatrix would amount to failure to recollect
the fact which deficiency could be replenished with the aid of Section 71
of the Evidence Act. It was observed that the validity of the Will in M.B.
Ramesh (supra) was upheld in the context of the attendant singular                D
facts.
       20. On the question of need to examine the second attesting
witnesses when one attesting witness falters, way back in 1921 in Dhira
Singh v. Moti Lal and Others9, two judges of the Patna High Court
had held that where the attesting witness was neither summoned nor                E
examined under the provisions of Section 68 of the Evidence Act, recourse
to Section 71 is impermissible. Under the provisions of Section 68 of the
Evidence Act, it is incumbent on the plaintiff/propounder to call the
attesting witness even though he may be the defendant/opposite side. It
was observed:
                                                                                  F
          1. […] Section 68 requires that a document which is required by
          law to be attested shall not be used as evidence until one attesting
          witness at least has been called for the purpose of proving its
          execution, and Section 71 enacts that if the attesting witness denies
          or does not recollect the execution of the document, its execution
          may be proved by other evidence.                                        G
          2. A case on all fours with the present case is that of Tula Singh v.
          Gopal Singh 38 Ind. Cas. 604 : 1 P.L.J. 389 : 2 P.L.W. 353. In that
          case the learned Judges decided that Section 68 of the Evidence
9
    63 Ind. Cas. 266                                                              H
888                SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A              Act was imperative and so long as there was a witness alive and
               subject to the process of the Court, no document which is required
               by law to be attested can be used in evidence until such witness
               has been called. The fact that, when sailed (sic – assailed), he
               will prove hostile, does not excuse the party producing the document
               from this duty. The learned Subordinate Judge was, therefore,
B
               wrong in thinking that it was not necessary to call the defendant
               No. 2.
             21. Majority of earlier judgments like Vishnu Ramkrishna (supra)
      follow the ratio in Dhira Singh (supra), with a few exceptions like Mt.
      Manki Kaur v. Hansraj Singh and Others10. The issue was resolved
C     beyond controversy and debate in Janki Narayan Bhoir (supra) wherein
      it has been held that clause (c) of Section 63 of the Indian Succession
      Act requires and mandates attestation of a Will by two or more persons
      as witnesses, albeit Section 68 of the Evidence Act gives concession to
      those who want to prove and establish a Will in the court of law by
D     examining at least one attesting witness who could prove the execution
      of the Will viz., attestation by the two witnesses and its execution in the
      manner contemplated by clause (c) to Section 63 of the Indian Succession
      Act. However, where one attesting witness examined fails to prove due
      execution of the Will, then the other available attesting witness must be
      called to supplement his evidence to make it complete in all respects to
E     comply with the requirement of proof as mandated by Section 68 of the
      Evidence Act. It was held:
               “11. Section 71 of the Evidence Act is in the nature of a safeguard
               to the mandatory provisions of Section 68 of the Evidence Act, to
               meet a situation where it is not possible to prove the execution of
F              the will by calling the attesting witnesses, though alive. This section
               provides that if an attesting witness denies or does not recollect
               the execution of the will, its execution may be proved by other
               evidence. Aid of Section 71 can be taken only when the attesting
               witnesses, who have been called, deny or fail to recollect the
G              execution of the document to prove it by other evidence. Section
               71 has no application to a case where one attesting witness, who
               alone had been summoned, has failed to prove the execution of
               the will and other attesting witnesses though are available to prove
               the execution of the same, for reasons best known, have not been
      10
H          AIR 1938 Pat 301
  RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                                 889


      summoned before the court. It is clear from the language of Section      A
      71 that if an attesting witness denies or does not recollect execution
      of the document, its execution may be proved by other evidence.
      However, in a case where an attesting witness examined fails to
      prove the due execution of will as required under clause (c) of
      Section 63 of the Succession Act, it cannot be said that the will is
                                                                               B
      proved as per Section 68 of the Evidence Act. It cannot be said
      that if one attesting witness denies or does not recollect the
      execution of the document, the execution of will can be proved by
      other evidence dispensing with the evidence of other attesting
      witnesses though available to be examined to prove the execution
      of the will. Yet another reason as to why other available attesting      C
      witnesses should be called when the one attesting witness
      examined fails to prove due execution of the will is to avert the
      claim of drawing adverse inference under Section 114 Illustration
      (g) of the Evidence Act. Placing the best possible evidence, in the
      given circumstances, before the Court for consideration, is one of
                                                                               D
      the cardinal principles of the Indian Evidence Act. Section 71 is
      permissive and an enabling section permitting a party to lead other
      evidence in certain circumstances. But Section 68 is not merely
      an enabling section. It lays down the necessary requirements,
      which the court has to observe before holding that a document is
      proved. Section 71 is meant to lend assistance and come to the           E
      rescue of a party who had done his best, but driven to a state of
      helplessness and impossibility, cannot be let down without any
      other means of proving due execution by “other evidence” as
      well. At the same time Section 71 cannot be read so as to absolve
      a party of his obligation under Section 68 read with Section 63 of
                                                                               F
      the Act and liberally allow him, at his will or choice to make
      available or not a necessary witness otherwise available and
      amenable to the jurisdiction of the court concerned and confer a
      premium upon his omission or lapse, to enable him to give a go-by
      to the mandate of law relating to the proof of execution of a will.”
       This judgment overruled the judgment of Manki Kaur (supra)              G
and approved the ratio of Vishnu Ramakrishna (supra) to the effect
that Section 71 of the Evidence Act can be requisitioned when the
attesting witnesses who were being called have failed to prove the
execution of the Will by reason of either denying their own signatures,
denying the signature of the testator or due to bad recollection as to the     H
890               SUPREME COURT REPORTS                       [2019] 18 S.C.R.


A     execution of the document. Section 71 has no application when only one
      attesting witness who was called and examined has failed to prove the
      execution of the Will and the other available attesting witness was not
      summoned.
             22. The ratio in Janki was reiterated in Benga Behera and
B     Another v. Braja Kishore Nanda and Others11. This judgment also
      examines the issue and question whether a Sub-Registrar in the matter
      of registration of documents under the provisions of Indian Registration
      Act, 1908 can possibly be treated as a witness. Reference was made to
      Sections 52 and 58 of the Registration Act to observe that the duty of
      the Registering Officer is to endorse the signature of every person
C     presenting the document for registration and to make an endorsement to
      that effect, that is, to endorse only the admission or execution by the
      person who presented the document for registration. The Registering
      Officer can also endorse and certify the payment of money or delivery
      of goods made in the presence of the Registering Officer in reference to
D     the execution of the document. The expression ‘attesting witness’ within
      the meaning of Section 3 of the Transfer of Property Act and Section 63
      of the Indian Succession Act means “bearing witness to a fact”. The
      two valid conditions of attestation of documents are – (i) two or more
      attesting witnesses have seen the executant sign the instrument; (ii) each
      of them has signed the instrument in the presence of the executant.
E     Further and importantly, attestation requires animus attestandi, that is,
      a person puts his signature on a document with the intent to attest it as a
      witness. If a person puts his signature on a document only in discharge
      of a statutory duty, he may not be considered as an attesting witness as
      was held in Dharam Singh v. Aso and Another12. Similarly, a scribe or
F     an advocate who has drafted the document may not be the attesting
      witness as was held by this Court in Jagdish Chand Sharma (supra),
      for attestation requires that the witness should have put his signature
      animus attestandi, that is, for the purpose of attesting that he has seen
      the executant sign or has received from him a personal acknowledgement
      of his signature.
G
            23. Returning to the facts of the present case, it is submitted by
      Surinder Pal Sharma, the respondent before us, that summons/notice
      were issued to Mr. M.N. Sharma, Advocate to appear as a witness but

      11
           (2007) 9 SCC 728
H     12
           1990 Suppl SCC 684
  RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                                 891


he could not be served and hence was not examined. Ramesh Kumar, it            A
is submitted, was not summoned or examined as he was none other than
the husband of Raj Kumari and would not have supported execution of
the Will. The High Court has accordingly held that the Will being registered
was proved in terms of section 71 of the Evidence Act. This finding of
the High Court is unacceptable, for recourse to Section 71 of the Evidence
                                                                               B
Act is impermissible without examination of Ramesh Kumar. It would
not matter if Ramesh Kumar is husband of Raj Kumari. 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. In that event, the execution can be proved by other evidence.
The respondent accepts that Ramesh Kumar though a witness was not              C
summoned and asked to depose as a witness and therefore, it cannot be
said that Ramesh Kumar as an attesting witness had denied or did not
recollect execution of the Will.
       24. Even on the question of “other evidence” we have grave and
serious reservations. It is apparent that late father of Raj Kumari and        D
Surinder Pal Sharma and grandfather of appellants Meenakshi Sharma
and Veena Malhotra being a displaced person had applied for a two-
room accommodation which was allotted to his wife Suhagwanti on
15.03.1972 as by then he had expired. One of the terms and conditions
of the allotment was that the possession of the tenement would be issued
on the payment of the first instalment and on giving an undertaking that       E
she would vacate the quarter at Padam Chand Land within three days
from the allotment letter. It has also come on record that Madan Lal, the
eldest sibling was earning and in service at the time of allotment. There
is also evidence that Madan Lal had contributed and financially helped
at the time of marriage of his sisters namely Raj Kumari and Puran             F
Devi.
       25. There is no doubt that the Will was registered but there are
several circumstances which cast doubt on the Will. Raj Kumari in her
cross-examination with reference to the disputed Will of Suhagwanti
has stated:                                                                    G
      “Q. I put to you that mother namely Smt. Suhagwanti had executed
      a Will in favour of your brother Mr. Surender Pal and it was attested
      by your husband Sh. Ramesh Kumar as attesting witness?
      My mother had obtained signature of my husband who is totally
      illiterate on a document on the pretext that she intend to disowned      H
892             SUPREME COURT REPORTS                           [2019] 18 S.C.R.


A            my niece Ms. Veena Malhotra, who had married at her own. My
             mother had told this fact to me on the same day when she returned
             from the Office of Sub Registrar.
             It is correct that my husband has signed in the office of Sub
             Registrar. Vol. But his signatures were obtained under the pretext
B            as I have above stated.
             It is correct that photo of my mother is pasted on Mark A. I
             cannot identify signature of my husband on Mark A. I have never
             seen my husband signing any document. It is wrong to suggest
             that my husband has signed at point B on Mark A. It is wrong to
C            suggest that my husband has signed at point B on Mark A. It is
             wrong to suggest that instalments of suit property were paid by
             my brother Sh. Surender Pal Sharma. Vol. My mother used to
             pay instalment and after her death Surender Pal has paid 1 or 2
             instalments. Again said, I used to accompany my mother to Town
             Hall for making the payment of instalments.”
D
             26. Before filing the civil suit, Raj Kumari had issued a legal notice
      dated 25.09.2000 (Exhibit P-1/1) in which she had stated that Suhagwanti
      has died intestate leaving behind four children, that is, Raj Kumari, Surinder
      Pal Sharma, Madan Lal, represented through his wife Santosh Rani, and
      Puran Devi. Further, after the death of Suhagwanti, she had repeatedly
E     requested Surinder Pal Sharma to partition the property with metes and
      bounds and give her due share. Surinder Pal Sharma had thereafter
      responded to the legal notice vide undated letter marked Exhibit PW-1/
      2 accepting that Raj Kumari was his sister and that the tenement was
      allotted to their mother. He, however, had claimed that the tenement
F     belongs to him as an absolute owner and therefore, there was no question
      of partition. The relevant portion of the said reply reads as under:
             “For the reason that the said property is absolutely belong to me,
             during the life time of my respected mother Smt. Suhagwanti and
             the said property is belong to me being the absolute ownership,
G            thus no question is arisen of partition of the said property. It is in
             my possession during the life time of my mother and is totally
             stands in all Govt. records in my name.
             Thus it is not compulsory to me to give the reply of your client’s
             further notice or any letter and she is fully known about it. If you
             wish to approach the higher authority it is the responsibility of
H
  RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                                893


      your client to bear all costs, legal expenses, whatsoever and also      A
      bear my expenditure whatever may be suffer or gone to me in
      this connection.”
       Clearly, Surinder Pal Sharma had not propounded and referred to
the Will in his reply, which defence was taken by him for the first time in
his written statement. This is also clear from the cross-examination of       B
Surinder Pal Sharma wherein he had accepted as correct that the Will
was not challenged by Raj Kumari in the court of law as she had come
to know about the Will during the pendency of the present case (please
refer page 97 of the paper book). Surinder Pal Sharma thus accepts that
bestowal in his favour vide a written Will, was not known or within the
knowledge of Raj Kumari, a surprising statement as Ramesh Kumar is            C
husband of Raj Kumari. Equally intriguing is the statement of Surinder
Pal Sharma in his cross-examination that he had not informed his lawyer
while drafting the reply (to the legal notice) that he was in possession of
the Will executed by his mother. Surinder Pal Sharma in his cross
examination had accepted that in 1972, he was studying in Class VI and        D
was hardly 11 to 12 years of age (This statement is at variance with the
age of Surinder Pal Sharma in Exhibit DW-1/P-3 but we would accept
the statement in the oral testimony). Surinder Pal Sharma had claimed
that he would repair cycles and had contributed to the payments towards
instalments of the quarter. It is in this aforesaid factual background that
we would examine the Will, its wordings and contents.                         E

      27. The purported Will dated 02.01.1992 is a rather short and an
odd one. For the sake of completeness, we would like to reproduce the
same in its entirety.
      “                           WILL DEED                                   F
            THIS “WILL DEED” is executed on this 2nd day of Jan.
      1992 at Delhi by Shrimati Suhag Wanti aged about 65 year w/o
      Late Shri Harbans Lal R/o H. No. 26, Duplex Flat, Gur Mandi,
      Delhi – 7 hereinafter called the Testator.
                            IN FAVOUR OF                                      G
            Shri Surinder Lal Sharma S/o Late Shri Harbans Lal R/o
      H.No. 26, Duplex Flat, Gur Mandi, Delhi-7, hereinafter called the
      Testimony.

                                                                              H
894            SUPREME COURT REPORTS                          [2019] 18 S.C.R.


A           LIFE IS BUT SHORT AND UNCERTAIN, God know when it
            may come to end. Hence I with my free will and consent and
            without any force or compulsion from others and in my sound
            estate of mind to make this will as under:-
                   Whereas I the Testator is the owner and in the possession
B           of built up property bearing No.26, built on a piece of land area
            measuring 80 Ft. situated in the abadi known as Duplex Flat, Gur
            Mandi, Delhi-7, and bounded as under:-
                       East…………..Other property
                       West………….Other property
C
                       North………… Road
                       South………… Road
            Whereas I the Testator hereby bequeath that after my death the
            aforesaid property shall got and devolve to the aforesaid testimony,
D           shall be the sole and absolute owner of the above mentioned
            property.


            Witnesses:-                                TESTATOR
            Sd/-                                           Sd/-
E           Shri Ramesh Kumar                       Smt. Suhagwati
            S/o Shri Ram Lal Sharma
            R/o H.N. 10/4, Gandhi Nagar, Geeta Colony,
            Delhi.                                                 “
             28. The Will which purportedly makes the bequest, is oddly
F     described as a Will Deed. This possibly explains why Surinder Pal Sharma
      had claimed in his reply, that he was the owner of the tenement even
      during the lifetime of the mother Suhagwanti. It is in this context that we
      have read the different portions of the testimony of Raj Kumari and
      Surinder Pal Sharma; the notice and the reply to hold that there exists
G     grave doubt whether the “Will Deed” was executed and is a “Will” as it
      purports to be. The marriage of Veena Malhotra as per her wish is not
      challenged. The testator was an illiterate lady. Even if we are to accept
      signatures of the testator and the witnesses, we cannot ignore “other
      evidence” that Suhagwanti and her family members did not understand
      the true nature of the document executed. There are substantial and
H
  RAJ KUMARI AND OTHERS v. SURINDER PAL SHARMA                               895


good reasons to legitimately suspect and question execution of the Will,     A
which Surinder Pal Sharma, as the propounder of the Will, has not been
able to repel and remove so as to satisfy this Court that the Will was
validly executed. For these reasons, we would hold that execution of the
Will has not been proved by “other evidence” in terms of Section 71 of
the Evidence Act.
                                                                             B
       29. Looked and examined from all angles, we are satisfied that
the present appeal should be allowed and the judgment of the High Court
should be set aside. Accordingly, we restore the judgment and decree
dated 17.01.2018 passed by the court of Additional District Judge-03,
North District, Rohini District Courts, New Delhi. There would no order
as to costs.                                                                 C


Ankit Gyan                                                 Appeal allowed.



                                                                             D




                                                                             E




                                                                             F




                                                                             G




                                                                             H