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The Supreme Court has held that the requirement mentioned under Section 63 of the Indian Succession Act, 1925 cannot be said to be fulfilled by mechanical compliance of the stipulations therein and that evidence of meeting the requirements of the said provision must also be reliable.

Section 63 of the 1925 Act deals with Execution of unprivileged Wills. The provision enumerates certain rules that every testator will follow while executing a will.

These observations were made by a bench of Justices L Nageshwar Rao and Aniruddha Bose while deciding an appeal filed by the State of Haryana against a judgment of the High Court whereby it had set aside the concurrent finding of the Trial Court and the First Appellate Court on the point of genuinity of a Will of one Kishan Singh.

As per the will, agricultural land comprising of 52 kanals and 3 marlas in the district of Kurukshetra in Haryana stood bequeathed to one Harnam Singh (since deceased).

Harnam Singh (deceased) was not related to late Kishan Singh by blood. In the Will, the genuinity of which was contested by the State of Haryana, it was recorded that Harnam Singh was looking after late Kishan Singh.

The authority of the first instance, on the basis of the said Will, had mutated the land in favour of Harnam Singh, but the Assistant Collector had turned down the plea of mutation as he did not accept the existence of the Will. Applying the doctrine of escheat, the land was mutated in favour of the State.

Accordingly, a suit was instituted in 1978 by Harnam Singh. In the said suit, Diwan Singh, Sohan Singh and Kehar Singh were impleaded as defendants, following the subsisting rule of succession, as they were nephews of late Kishan Singh.

The Trial Court dismissed the suit in 1981, which was contested by only State of Haryana. Later, First Appellate Court affirmed the said judgment in 1982.

After admitting the Second Appeal of Harnam Singh, the High Court took a view different from that of the fact finding Courts and opined that the Will was proved in terms of Section 63 of the Indian Succession Act, 1925 and while coming to such finding the High Court went deep into factual inquiry.

The following question of law was formulated by the High Court:

“Whether the will alleged to have been executed by Kishan Singh is genuine or it could be disbelieved by both the Courts below, which 6 has been proved as per the provisions of section 63 of the Indian Succession Act."

The Supreme Court found that the person claiming to be scribe of the Will as well as the two attesting witnesses deposed to support the case of the original plaintiff, but both the Trial Court and the First Appellate Court disbelieved their testimony.

It was further found that the thumb impression of Kishan Singh did not match and there was contradiction in the evidences of attesting witnesses as regards the place of execution.

The High Court was held to have erred in formulating the question of law on the basis that the Will was proved in terms of Section 63 after both the fact-finding Courts-the Trial Court and the First Appellate Court, had found that the Will was not proved.

"The evidences of the witnesses were disbelieved as they failed to inspire the confidence of fact finding Courts. The High Court, however, went into a detailed factual enquiry to come to its finding. We are of the opinion that an enquiry of such nature was impermissible while hearing an appeal under Section 100 of the Code of Civil Procedure, 1908", further held the bench.

With this view, the division bench allowed the appeal and set aside the judgment of the High Court and restored the judgments of the Trial Court and the First Appellate Court.

Since the legal heirs of late Kishan Singh had also contested the instant appeal before the Court and had raised their claim in course of the proceeding over their right on the subject-land under Sections 47 and 48 of the Indian Succession Act, 1925, the Court left it open to them to question the claim of the State of Haryana over the subject-land under the doctrine of escheat. 

Cause Title: STATE OF HARYANA v HARNAM SINGH (DEAD) THR. LRS. & ORS.