Punjab & Haryana HC Dismisses Second Appeal, Holds Sections 15 and 16 of Hindu Succession Act Do Not Apply Where Deceased Left a Valid Will

Justice Vikas Suri upheld concurrent findings restoring possession of a Ludhiana house to the legatee under a registered Will, rejecting the intestate succession argument raised by the dispossessing defendants.

The High Court of Punjab and Haryana at Chandigarh has dismissed a regular second appeal filed by defendants who had forcibly occupied the house of an aged issueless widow in Ludhiana and then sought to resist a possession decree by invoking the intestate succession provisions of the Hindu Succession Act, 1956. Justice Vikas Suri, sitting singly, held that Sections 15 and 16 of that Act are simply not attracted when the deceased female Hindu has left behind a valid, registered Will. Because the plaintiff had executed a registered Will dated 15 March 2013 in favour of her legatee, the devolution of her estate fell under Section 30 of the Act and not under the intestate succession regime. The court also rejected a challenge to the Will's attestation, reaffirming that there is no legal bar against the same person acting as both scribe and attesting witness, provided the animus attestandi is established.

The Dispute Over a Ludhiana House

Harbhajan Kaur @ Bhajan Kaur, an issueless widow aged about 65 years, owned a double-storey house of 79 square yards bearing house no. 169-C (old), 225 (new), situated in Janta Colony, Basti Jodhewal, Ludhiana. Defendant No. 1, Amarjit Kaur, is her sister; defendant No. 2 is Amarjit Kaur's husband.

The plaintiff averred that Amarjit Kaur had earlier obtained a Will from her through misrepresentation. Once the plaintiff became aware of this, she revoked that Will by a Revocation Deed registered with the Sub Registrar, Ludhiana, as Vasika No. 799 dated 15 February 2008. Amarjit Kaur then allegedly forged an agreement to sell dated 21 November 2006 and filed Civil Suit No. 798 on 1 December 2007 on the basis of that agreement; that suit was dismissed under Order 9 Rule 8 CPC on 17 August 2009.

The plaintiff's brother Tarsem Singh had been caring for her and defending the earlier litigation. After he died in the last week of December 2009, the defendants — in the plaintiff's absence while she was at Mayya Da Dera, Phillaur — forcibly took possession of the house in January 2010 and retained her household goods and the original sale agreement. When the plaintiff tried to re-enter, the defendants resisted her.

The plaintiff filed a suit for possession, mandatory injunction for return of household goods and title documents, and permanent injunction against alienation or encumbrance of the property. The suit against defendant Nos. 3 and 4 (the children of defendant Nos. 1 and 2) was dismissed by the Trial Court at the threshold.

Proceedings Before the Trial Court and First Appellate Court

Defendant Nos. 1 and 2 filed a joint written statement raising preliminary objections: that the plaintiff had not filed Form 4 Sawaal; that no title or possession documents had been placed on record; that the suit was under-valued and an abuse of process; and that the delay of five to six months in filing the suit showed malafide intent. On merits, they denied the allegations and asserted that the plaintiff had transferred the suit property under the agreement to sell dated 21 November 2006, for which they claimed a consideration of Rs. 3,75,500.

During the pendency of the suit, Harbhajan Kaur died. Gurwinder Kaur, described as a natural-born child of defendant Nos. 1 and 2 but claimed to have been adopted by the plaintiff, was impleaded as the plaintiff's legal representative by order dated 9 May 2017, being the legatee under a Will dated 15 March 2013 executed by the deceased plaintiff.

The Trial Court found that the defendants had admitted the plaintiff's title but failed to produce or prove the alleged agreement to sell dated 21 November 2006, and produced no documentary evidence of payment of Rs. 3,75,500. The Will dated 15 March 2013 was held duly proved under Section 68 of the Indian Evidence Act, 1872 (corresponding to Section 67 of the Bharatiya Sakshya Adhiniyam, 2023) read with Section 63 of the Indian Succession Act, 1925. The Trial Court partly decreed the suit on 21 October 2023, granting possession and permanent injunction but refusing mandatory injunction because ownership of the household articles could not be proved.

The defendants appealed. The Additional District Judge, Ludhiana, re-appraised the entire evidence, found that Amarjit Kaur's entry into possession through the earlier Will stood undisputed, that the revocation of that Will was likewise undisputed, and that the agreement to sell was neither proved nor produced in original. The first Appellate Court also noted that an agreement to sell does not by itself confer title. The appeal was dismissed on 29 April 2026.

The Legal Arguments in the Second Appeal

Before Justice Vikas Suri, counsel for the defendant-appellants advanced two main contentions.

The first was that because the suit property was owned by a female Hindu, the general rules of succession under Section 15 of the Hindu Succession Act, 1956, applied, and that the property ought therefore to devolve among her heirs in the order prescribed under Section 16 of that Act.

The second was that one person cannot be both a scribe and an attesting witness to a Will, seeking to undermine the validity of the registered Will dated 15 March 2013.

The Court's Reasoning on Intestate Succession

Justice Suri began by extracting Sections 15 and 16 of the Hindu Succession Act, 1956 in full. He observed that Section 15(1) is engaged only when two conditions are simultaneously satisfied: the property belongs to a female Hindu, and she has died intestate. In the present case, the plaintiff had executed a registered Will dated 15 March 2013, which stood proved on record. That fact alone was sufficient to take the matter outside Section 15 and Section 16 altogether.

Instead, the court held, the devolution of the deceased plaintiff's estate was governed by Section 30 of the Hindu Succession Act, 1956, which provides that any Hindu may dispose of by will any property capable of being so disposed of, in accordance with the Indian Succession Act, 1925. The intestate succession argument was therefore rejected as legally untenable.

The Court's Reasoning on Will Attestation and Animus Attestandi

On the attestation challenge, Justice Suri noted that the question was res integra no longer. The Supreme Court in Mathew Oommen v. Suseela Mathew, (2006) 1 SCC 519, decided on 3 January 2006, had held that there is no legal requirement that a scribe cannot be an attesting witness. The court drew a distinction: a scribe cannot be treated as an attesting witness automatically, but there is no bar on a person being a scribe as well as an attesting witness, provided the intention to attest — the animus attestandi — is present.

Justice Suri elaborated on what Section 63(c) of the Indian Succession Act, 1925 requires: attestation by two or more witnesses, each of whom must have seen the testator sign or received a personal acknowledgment of signature, and each of whom must sign the Will in the testator's presence. The Succession Act prescribes no qualification for who may be an attesting witness; the only indispensable element is the intent to attest.

The court also referred to the Supreme Court's decision in N. Kamalam (dead) and another v. Ayyasamy and another, (2001) 7 SCC 503, decided on 3 August 2001, which identified two requirements for valid attestation: the attestor must witness execution of the Will (implying presence), and must certify execution by subscribing his name as a witness (implying consciousness and intention to attest).

In this case, one of the attesting witnesses, S.L. Mahey, Advocate, had signed as both attesting witness and scribe. He was examined and categorically deposed in favour of the Will made in favour of Gurwinder Kaur. The fact that the Will had apparently been prepared before the testator came to him did not, by itself, mean that he was not an attesting witness or that he had not appended his signatures in both capacities. Despite lengthy cross-examination, counsel for the appellants could point to nothing that cast doubt on his credibility. The Will was a registered document, and the court held it to be validly proved.

No Substantial Question of Law

Justice Suri observed that the two courts below had recorded concurrent findings of fact on proper appreciation of evidence, and those findings were not shown to be perverse in law or on facts. He further held that counsel for the appellants had not been able to identify any substantial question of law for the consideration of the High Court — which is a sine qua non for the maintainability of a second appeal under Section 100 CPC. The court referred to Ramachandra Reddy (dead) through Legal Representatives and others v. Ramulu Ammal (dead) through Legal Representatives, (2025) 8 SCC 788, and Gurvachan Kaur and others v. Salikram (dead) through LRs, (2010) 15 SCC 530, in this connection.

Order

The regular second appeal RSA-2338-2026 was dismissed on 15 July 2026. The concurrent judgments and decrees of the Civil Judge (Junior Division), Ludhiana, dated 21 October 2023, and the Additional District Judge, Ludhiana, dated 29 April 2026 — granting possession of the house at Janta Colony, Basti Jodhewal, Ludhiana, and permanent injunction in favour of the plaintiff's legatee — accordingly stand confirmed. The court marked the judgment as speaking and reasoned, and reportable.