Chapter 1 - The Will

I was born and raised in Kanpur, Uttar Pradesh. Since childhood, I had heard about disputes over ancestral property among the heirs, conflicts between tenants and homeowners, and cases of adverse possession of land. These kind of events are common in any society where rule of law is weak and judicial process is long, tedious, and callous. They are the source of many hushed conversations at any common gatherings in parts of northern states where these situations are more common.

Fate has a curious way of reminding one of their roots. It was an ordinary morning on the 10th of April 2018 when I received a call from my father. He informed me that a few people had broken into our home in Kanpur and attempted to take possession forcefully. They loaded our belongings and household goods onto trucks in broad daylight, perpetrating a robbery with the support of some individuals in our locality inclined towards crime. These individuals received assistance from relatives on my father’s side, who aided them in breaking into the house and attempting a fraudulent property sale in which they had no stake. They believed they could execute this plan since my father had not completed the mutation of the property to his name, and the ownership in the government records still displayed his grandfather’s name. The incident shook me to the core, making me realize that I could no longer remain oblivious to the property disputes that had long haunted my family. This drove me to initiate conversations, seek legal understanding, consult experts, and take actions towards resolution. It was during this time that I came to learn about the will, a document of immense importance in our ongoing property dispute, which my father had in his possession.

Background Story and the Case

My father, along with his family, came to this property when it was a plain plot with no construction on it. This plot was allotted to his grandfather in 1949 by the Kanpur Development Authority (KDA), and his name was on the ownership records. Since he was the only working person in his family, he constructed a small kutcha house with his own money and later built a pakka house after marriage. He also possessed a will dated June 15, 1958. This will was composed by my great-grandfather with the assistance of a legal advocate. It bears his signature, alongside the signatures of two witnesses and the advocate, as well as the advocate’s stamp. In 1997, my father got this will through one of the two witnesses to the will who was his uncle and nephew to his grandfather. Since, this plot was his only possession, he named it to my father who was the first male child of the family. In the Will, he explicitly mentioned his family structure and reasons why he wanted to give his possessions to his first grandson. Since, he died after 6 days of creating the Will on June 21, 1958, the Will stayed unregistered.

With the will in his possession, my father initiated the process of mutating the property’s ownership based on its contents. However, given the inefficient and bribe-seeking system at Kanpur Development Authority and Kanpur Nagar Nigam, the action on his application was slow and required a lot of follow-up. On further follow-up, a demand for a huge bribe came up from the officials at KDA and Nagar Nigam, which discouraged my father from proceeding any further. The application for mutation is still pending in the files of KDA with an incomplete process.

At this juncture, my father sought advice from relatives and a trusted advocate who had experience in such matters. Their counsel was consistent - there was no immediate urgency to pursue property mutation since we were already residing in the ancestral property, and there were no intentions of selling it or realizing capital gains in the near future. Since my father has a stable job in Kanpur and has no plans to leave the city, this made sense. With this guidance in mind, my father decided not to pursue the mutation any further at that time, putting it on the back burner as we continued to live in the property.

Everyone in the family is aware of the will and knows that my father is the sole beneficiary. My father’s brothers, particularly, were upset because they were not even born when the will was created. Although they lived separately in their own houses, they often bothered my father, asking for money since they felt they were not getting anything due to the will. My father paid them on two occasions, but their demands persisted.

Later, in 2013, my parents had to move out of Kanpur due to a job change. My brother and I were already living outside Kanpur after completing our engineering degrees. While we (myself, my father, mother, and brother) visited our home in Kanpur two or three times a year, either together or individually, the house remained locked most of the time. We heard rumors from some relatives and local neighbors that something untoward was transpiring concerning the property. These rumors were consistently centered on their plan to sell the property in our absence to local goons, seeking financial gain while simultaneously intending to forcefully expel my father from his rightful possession of the premises. Fearing that our ancestral property was under threat, on April 9, 2018, he took a decisive step and, after consulting a senior lawyer, initiated an Original Suit to assert his ownership rights. Since that pivotal moment, a flurry of paperwork has transpired between the involved parties. Yet, despite all these legal intricacies, the linchpin of this entire dispute, “The Will”, which, in my view, holds the key to determining rightful ownership, remains unaddressed and unresolved.

Analysis

This revelation about the unregistered will marked the beginning of my intricate legal journey. As the property dispute escalated within the court of law, I embarked on a mission to navigate the complexities of property law, with the overarching goal of finding a resolution for the property dispute and securing peace of mind for both myself and my family.

Facts:

Let’s delve into the key points and facts of the case:

1. There is an original Will that exists, dated June 15, 1958, making it more than 60 years old.
2. The Will is unregistered.
3. The testator, the two witnesses, and the advocate whose names appear on the Will are all deceased.
4. The property in question is an ancestral property.
5. There exists a Lease Deed of the Property from June 16, 1950, bearing the signature of the testator.
6. The Will is complete in all legal aspects with proper signatures and justifications.
7. The Will in original form is in possession of my father.
8. The Testator died a normal death without any mental illness on June 21, 1958. He created the Will in full senses as mentioned on the will and obtained signatures of his two nephews as witnesses.
9. The age of the only beneficiary of the will was only 5 years when the will was created.
10. The Testator passed away six days after writing the Will.
11. The Will existed in 1999 when my father applied for mutation at KDA and Nagar Nigam. Copies of the will are still present in the records of KDA and Nagar Nigam.

Evidences:

1. The Original Will.
2. The Lease Deed.
3. The Mutation Application from my father to KDA and Nagar Nigam.
4. Death Certificate of the Testator.

On the opposing side of this legal skirmish, the parties contesting our claim assert that the Will is nothing more than a false, fictitious, forged, and fabricated document. Their claims, while vehement, appear to lack substantial proof, and it seems convenient for them to assert the Will’s invalidity simply because it serves their interests. This challenge, however, served as a catalyst for me to delve into the intricacies of Indian law, determined to establish the validity of the Will as a crucial piece of evidence for our case.

Through extensive research, I uncovered the pertinent sections of the Indian Acts applicable in the jurisdiction of Kanpur that are vital to our case. These sections will serve as our guiding light as we seek to prove the authenticity and legality of the Will, thus bolstering our claim to rightful ownership. I have outlined the relevant Indian legal provisions and my interference w.r.t this case below:

1. Section 18 Clause (e) of the Indian Registration Act, 1908

18. Documents of which registration is optional. Any of the following documents may be registered under this Act, namely, (e) wills;

My Inference:

The registration of Will is an optional requirement. The unregistered nature of the Will, should not have posed a problem in the process of property mutation, as it is, in fact, a valid and legally recognized document. This aspect should have been duly considered by the Kanpur Development Authority and Nagar Nigam when evaluating our request for property mutation. However, it seems that these agencies are considering unregistered Will only with court order to save themselves from any litigation. Nonetheless, it’s essential to emphasize that the Will remains perfectly valid in the court of law and should be acknowledged as a crucial piece of evidence in our case. Despite its unregistered status, the Will bears substantial weight in our pursuit of establishing our rightful ownership of the ancestral property.

2. Section 63 of Indian Succession Act, 1925

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 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 acknowledgement of his signature or mark, or 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.

These section states that a Will must be in writing and signed by the testator (the person making the Will) or by some other person in his presence and by his direction. The Will must also be attested by two or more witnesses.

Reference Cases and Verdict:

• Meena Pradhan v. Kamla Pradhan (2023): This case discusses the validity of a will and the requirements for its execution, including the presence of witnesses.

Ref: https://indiankanoon.org/doc/124157393/

My Inference:

The original Will, is composed using a typewriter in the Hindi language and carries the signature of the Testator, two witnesses and the advocate who drafted the Will. This key detail unequivocally establishes the Will’s validity and authenticity under the Indian legal framework. The fact that it was composed using a typewriter, stamped with Advocate seal and is penned in the language understood by the Testator bolsters its legal standing. In the will, the testator also states that he is of sound mind and making this will of his own volition.

3. Section 61 and 62 of the Indian Evidence Act, 1872:

61. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.

62. Primary Evidence. Primary evidence means the documents itself produced for inspection of the Court.

My Inference:

The Original Will stands as the primary evidence and the authoritative source of the testator’s intention and wishes. Additionally, the presence of a Lease Deed of the property in records further strengthens our position. This Lease Deed contains reference signatures of the testator and is documented in the official government property records as well. The existence of this reference document in official records adds an extra layer of credibility and authenticity to the Will, reinforcing its status as a valid legal instrument. To bolster the already substantial primary evidence, a handwriting analysis of the testator’s signature should provide another layer of assurance regarding the authenticity and validity of the Will.

4. Section 69 of the Indian Evidence Act, 1872:

69. Proof where no attesting witness found. If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

Reference Cases and Verdict:

1. J. Naval Kishore v. D. Swarna Bhadran, J. Parasmul, P. Venugopal and Ors. (2007 AIR 2899), in this case, the Supreme Court held that the attestation of one attesting witness is sufficient to prove the execution of an unregistered will when both attesting witnesses are dead.

Ref: https://indiankanoon.org/doc/667095/ My Inference:

While our primary evidence should suffice to establish the authenticity and validity of the Will, it’s worth considering secondary evidence, especially in a case like ours where both of the original witnesses are no longer with us. We have learned that one of the witnesses, now deceased, held a bank account with XYZ bank during their lifetime.

If deemed necessary, the court has the authority to issue an order to retrieve the signatures from the authoritative source of XYZ bank, enabling a comprehensive handwriting analysis. Such an analysis would provide an additional layer of assurance, further reinforcing the Will’s legitimacy. This secondary evidence could potentially serve as a powerful corroborative measure, offering another perspective on the authenticity and intent of the testator. The son of that witness is also alive and well; he may also attest to the signature of his father.

Similarly, the second witness has registered property documents in possession of his family, which also bear his signature. His daughter-in-law and grandchildren are also alive, and they may corroborate the proof by identifying his signatures. A handwriting expert can easily verify the signatures since registered sources of signatures of the testator and witnesses are available.

5. Section 65 of Indian Evidence Act, 1872:

Secondary evidence may be given of the existence, condition or contents of a document in the following cases :(a)When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it

Reference Cases and Verdict:

1. Pulukuri Kottaya vs. Emperor (AIR 1947 PC 67), this landmark case established the importance of Section 65 of the Indian Evidence Act. It emphasized that the provision is a valuable aid in the assessment of the genuineness of a document, particularly when it is more than 30 years old.

Ref: https://indiankanoon.org/doc/254739/

6. Section 90 of the Indian Evidence Act, 1872:

Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purport to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.

Illustrations a. A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land, showing his titles to it. The custody is proper.

Uttar Pradesh. - The following amendments have been made in Section 90 and a new Section 90-A has been added vide U.P. Act XXIV of 1954:“1. The existing section shall be renumbered as Section 90(1), and(a) For the words “thirty years” the words “twenty years” shall be substituted, and(b) The following shall be inserted thereafter as a new sub-section (2):(2) Where any such document as is referred to in sub-section (1) was registered in accordance with the law relating to registration of documents and a duly certified copy thereof is produced, the Court may presume that the signature and every other part of such document which purports to be in the handwriting of any particular person, is in that person’s handwriting, and in the case of a document executed or attested, that it was duly executed by the person by whom it purports to have been executed or attested.'

My Inference:

The Original Will, dated June 15, 1958, undeniably qualifies as a document that has stood the test of time, being more than 60 years old. In the eyes of the court, this document is presented by my father, the heir and custodian, and obtained from a relative who is also one of the original witnesses to the Will. These custodial arrangements are not only legally sound but also lend an air of trustworthiness to the document’s authenticity.

Perspective on other aspects of the Will

Why did the Will remain unregistered?

Considering the fact, that the testator passed away six days after creating the will, the circumstances clearly indicate why the will remained unregistered. Also, during those times (~ 1958), the registration of wills was not very common, and the creation of a will by a competent advocate was deemed sufficient.

Chances of Tempering of Will and influencing the testator to make a Will in favor.

The will existed in 1999 when my father applied for mutation at KDA and Nagar Nigam. Copies of the will are still present in the records of KDA and Nagar Nigam. So, its not so, that the will was created after the dispute started.

A 5-year-old child cannot influence a mature man to write a will in his favor. So, influencing seems out of question here.

Conclusion

Given these compelling facts under law, there should be minimal room for contention in the court’s deliberations. The age of the document, the credible custodial arrangements, and the presence of multiple reliable sources all converge to support the claim that the Will is not only genuine but also an irreplaceable testament to the testator’s wishes.

In the labyrinthine corridors of the Indian legal system, the prolonged battles for justice can exact a heavy toll on one’s mental peace and stability. It often feels as though the system takes more than it gives, leaving individuals in a state of seemingly endless waiting. Instead of being productive and contributing to our own well-being, our families, and society at large, we often find ourselves entrapped in a ceaseless legal struggle. However, I’ve chosen to view this extended ordeal as an opportunity, a chance to understand the law, put it through my unique perspective and present it to the world through this blog post.

While I am by no means an expert, I am a novice who has embarked on a journey of research and the sharing of personal opinions. Through this blog post, I hope to engage in a constructive and open-minded dialogue with the wider community. I understand that this conversation may yield benefits not just for me but also for many others who find themselves in similar positions. Your thoughts, opinions, suggestions, and advice on this article are invaluable.

Together, as an open-minded community, we can collectively work towards building a better India—a place where the pursuit of justice is not a cumbersome burden but a fundamental right accessible to all. Let’s join hands and contribute to the ongoing transformation of our legal system and our society. Together, we can build a brighter and more just India.