Court dismisses woman's suit for transfer of house in Sec 44

Ramkrishan Upadhyay

Chandigarh, April 22

Due execution of will cannot be proved otherwise than by a recourse to Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act.

While observing this, Mayank Marwaha, Civil Judge (Junior Division), Chandigarh, dismissed a suit filed by a woman, Neelam, alias Kuldip Kaur, for declaration to the effect that the she becomes the exclusive owner a LIG house in Sector 44 on the basis of will of a person, Devinder Singh.

She also sought mandatory injunction directing the Chandigarh Housing Board to transfer the ownership of the house on her name on the basis of the registered will.

In the suit, she said a LIG house in Sector 44-C, Chandigarh, was allotted to Devinder Singh on October 16, 1985. She claimed that Devinder Singh executed a will dated May 5, 1989, which was duly registered and bequeathed the entire suit property in her favour.

She said Devinder died on December 8, 2016 leaving behind his wife Jagjit Kaur, daughter Harinder Kaur and son Amarjit Singh. She claimed that she became the owner of the suit property by virtue of the registered will on death of Devinder. She approached the CHB and submitted original documents, death certificate of Devinder and original registered will dated May 5, 1989 for getting the house transferred in her name. The CHB refused to process the transfer of suit property in her name.

Sajal Koser, counsel appearing for the CHB, said the suit was not maintainable in view of the instructions issued by the Chandigarh Administration (Finance Department) on December 19, 2017. In the instructions, transfer of immovable properties by way of GPA, sub-GPA and will had been put on hold by the administration.

It is stated that the wills executed along with GPA/SPA were not being considered for effecting mutation. On notice, wife and son of Devinder Singh failed to appear and were accordingly proceeded ex parte.

After hearing the arguments, the court has dismissed the suit of the plaintiff. The court said as per the provisions of Sections 63 and 68 of the Indian Evidence Act, 1872, propounder of the will was required to bring at least one attesting witness for the purpose of proving execution of the will. In the case, the plaintiff had failed to examine any attesting witness to the will of late Devinder Singh. The court said it had been argued on behalf of the plaintiff that the will had not been disputed. This argument of the counsel for the plaintiff does not hold ground in the light of settled law that even if the opposite party admits execution of the will, it has to be independently proved by examining at least one of the attesting witnesses of the will.

The High Court has also observed in one case that Section 68 of the Indian Evidence Act, 1872, does not contain any distinction between an admitted will and a disputed will as regards the mode of proof. It was further observed that due execution of will cannot be proved otherwise than by a recourse to Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. In view of this, the plaintiff is held not entitled to the relief that she has become exclusive owner in possession of residential dwelling unit of Sector 44-C, Chandigarh.