1. The property in dispute belonged to one Sohan Singh, son of Ram Chand. Sohan Singh had a brother named Pir Mal who at the relevant time was no more. Pir Mal had five children, i.e., sons, namely, Mangal Singh, Piara Singh and Natha Singh and daughters, namely, Kartar Kaur and Bachan Kaur. He allegedly executed two Wills bequeathing his property differently to some of those children. The first one was on 24-12-1968 whereby he bequeathed his property to two of his nephews, namely, Piara Singh and Mangal Singh, sons of Pir Mal. Two days later, i.e., on 26-12-1968, he allegedly executed another Will bequeathing his property to his brother's daughter -- Gurbachan Kaur (also described as Bachan Kaur) mentioning therein that he had revoked his earlier Will, if any. On 26-12-1968 itself, he breathed his last. Then began the fight between the legatees in order to claim Sohan Singh's property.
2. Legatees of the first Will, i.e., Mangal Singh and Piara Singh instituted a suit for joint possession and declaration on the basis of the Will. One of the defendants in the suit being Bachan Kaur, the second legatee, projected her own Will contending that the first Will in favour of the plaintiffs was a forgery and not duly executed; whereas the Will in her favour was. It was found by the courts below that the Will in favour of Mangal Singh and Piara Singh was a forged one as also not duly proved. The second Will was held valid throughout before the courts below and the matter has culminated in this special leave petition. We sent for the records of the ca: e to examine both the Wills since it was contended on behalf of the appellants that the first Will should have been held to be genuine and duly proved and the second Will to be a concocted document, not proved to be duly executed and attested. Having examined both the Wills, we have thought it fit to grant leave and dispose of the matter.
3. After hearing learned counsel and going through the record, we concur with the views expressed by the courts below with regard to the first Will and go by the finding that it was a forged document. The only point which survives for consideration is whether the second Will satisfied the test of Section 63 of the Indian Succession Act, 1925. That provision reads as follows:
"63. Execution of unprivileged Wills.--Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his Will according to the following rules:
(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.
(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 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 time, and no particular form of attestation shall be necessary."
4. These requirements on the face of it have not been complied with while preparing the second Will. A bare look at it shows that it is handwritten on two pages of letterheads of a practising lawyer. The concluding part of the Will says as follows: "... now I am making this Will in the name of Gurbachan Kaur.... In witness whereof I have thumb marked this Will hereunder on this day of 26th December, 1968."
5. Surprisingly, the thumb-impression of Sohan Singh, testator, does not appear after the above recital even though the narration mentions that hereunder thumb-impression of the testator has been affixed. The narration continues further to say as follows; 'Thum(b) marked by the above named testator in our presence at the same time and each of us has in the presence of the testator signed his name hereunder as an attesting witness."
6. Curiously, the testator's thumb mark, and the signatures of the two attesting witnesses as well as that of the counsel drafting the Will appear in line with one another at the same place from one edge of the page to the other. The endorsement purporting to have been made by the two witnesses that they had seen the testator thumb mark in their presence before they attested the Will, was patently wrong, for the testator had nowhere first thumb mark the Will whereafter the witnesses had attested it. Due to lack of proper execution and without any plausible explanation rendered, we thus get to the considered view that the second Will can also not be relied upon. To this extent, the appellants must succeed.
7. We thus cast away the second Will from consideration as the governing factor of succession of the estate of Sohan Singh, deceased. His estate would thus go by natural succession.
8. Parties' counsel, as goes the earlier narration, are in unison that there were three nephews and two nieces of Sohan Singh; they being his brother, Pir Mal's children. Under the Hindu Succession Act, 1956 all those five would share the estate equally. Thus, the suit of the plaintiff-appellants would stand succeeded to the extent of their two shares out of the five shares of the property in dispute. The judgments and orders of the courts below would thus stand modified to this extent partly decreeing the suit to the extent of 2/5th share in the property in dispute in their favour.
9. The appeal thus stands partially allowed but without any order as to costs.