DHANPAT versus SHEO RAM (DECEASED) THROUGH LRS. & ORS. on 19 March 2020

[2020] 7 S.C.R. 131

DHANPAT

v.

SHEO RAM (DECEASED) THROUGH LRS. & ORS.

(Civil Appeal No. 1960 of 2020)

MARCH 19, 2020

[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]

Indian Succession Act, 1925:

s. 63 – Will – Admissibility of – Suit seeking declaration thatthe plaintiff, his mother and his sisters had equal share in the suitland which was given to defendant No. 5 by way of a Will – The Willwas challenged as being result of fraud and misrepresentation –Trial Court as well as first Appellate Court dismissed the suit holdingthat plaintiff had no share in the property as partition of the propertyhad already been done during lifetime of the testator and that theWill had been duly proved – High Court in second appeal decreedthe suit on the ground that Will was surrounded by suspiciouscircumstances and its execution was not proved in accordance withthe requirement of s. 63 of the Act – Appeal to Supreme Court –Held: The statement of the attesting witness and that of the scribeof the Will and the official from the Sub-Registrar’s Office provethe due execution of the Will – Exclusion of natural heirs would notmake the Will surrounded by suspicious circumstances – High Courterred in law in interfering with the concurrent finding of factsrecorded by Courts below.

Evidence Act, 1872:

ss. 65 and 68 – Secondary evidence – Admissibility of – s. 65permits secondary evidence where original document has beendestroyed or lost – In the present case execution of the Will was notdisputed, but only proof of the Will was subject matter of dispute –Once the evidence was brought by the opposite party that originalWill was lost and certified copy thereof was produced, sufficientground has been made out for leading of secondary evidence –There is no requirement for filing application in terms of s. 65(c)before leading secondary evidence.

131

A

B

CDE

F

G

H

APunjab Courts Act, 1941:

s. 41 – Second appeal – Scope of – Held: High Court interms of s. 41 cannot interfere with finding of fact.

Allowing the appeal, the Court

BHELD: 1. Substantial question of law may not be requiredto be framed in Punjab and Haryana but still, the finding of factrecorded cannot be interfered with even in terms of Section 41of the Punjab Courts Act, 1918. [Para 11][139-A-B]

Pankajakshi (D) through LRs & Ors. v. Chandrika & Ors.C(2016) 6 SCC 157 : [2016] 3 SCR 1018 – followed.Randhir Kaur v. Prithvi Pal Singh and Others [2019] 9 SCR776 – relied on.

2.1 Section 65 of the Evidence Act permits secondaryevidence of existence, condition, or contents of a documentDincluding the cases where the original has been destroyed orlost. If the witness in whose custody the deed should be deposedto its loss, unless there is some motive suggested for his beinguntruthful, his evidence would be accepted as sufficient to let insecondary evidence of the deed. And if in addition he was notcross-examined, this result would follow all the more. In theEpresent case, the Will was in possession of the beneficiary andwas stated to be lost. The Will is dated 30[th] April, 1980 whereasthe testator died on 15[th] January, 1982. There is no cross-examination of any of the witnesses of the defendants in respectof loss of original Will. The plaintiff had admitted the executionFof the Will though it was alleged to be the result of fraud andmisrepresentation. The execution of the Will was not disputedby the plaintiff but only proof of the Will was the subject matter inthe suit. Therefore, once the evidence of the defendants is thatthe original Will was lost and the certified copy is produced, thedefendants have made out sufficient ground for leading ofGsecondary evidence. [Paras 15 and 17][141-A-B, F-H; 142-A]

M. Ehtisham Ali for himself and in place of M. Sakhawat Ali,since deceased v. Jamna Prasad, since deceased & Ors. AIR1922 PC 56 – relied on.

H

Aher Rama Gova & Ors. v. State of Gujarat (1979) 4SCC 500 – referred to.

2.2 There is no requirement that an application is requiredto be filed in terms of Section 65(c) of the Evidence Act beforethe secondary evidence is led. A party to the lis may choose tofile an application which is required to be considered by the trialcourt but if any party to the suit has laid foundation of leading ofsecondary evidence, either in the plaint or in evidence, thesecondary evidence cannot be ousted for consideration onlybecause an application for permission to lead secondary evidencewas not filed. [Para 20][143-B-C]

Bipin Shantilal Panchal v. State of Gujarat & Anr. (2001)3 SCC 1 : [2001] 2 SCR 29; Z. Engineers ConstructionPvt. Ltd. & Anr. v. Bipin Bihari Behera & Ors. (2020)SCC OnLine SC 184– referred to.

4. The requirement of Section 63 of the Hindu SuccessionAct, 1963 and Section 68 of the Evidence Act, 1872 standssatisfied in the present case. At least one of the attesting witnessesis required to be examined to prove his attestation and theattestation by another witness and the testator. In the presentcase, DW-3 deposed that the testator had executed his Will infavour of his four grandsons and he and another person signed aswitnesses. He deposed that the testator also signed it in Tehsiloffice. The witnesses to the execution of the Will were alsowitnesses before the Sub-Registrar. In the cross-examination,he stated that he had come to Tehsil office in connection withother documents for registration. He deposed that Ex.D-4-theWill, was typed in his presence. He denied the question that noWill was executed in his presence. There was no cross-examination about his not being present before the Sub-Registrar.Once the Will has been proved, then the contents of suchdocument are part of evidence. It is a question of fact in eachcase as to whether the witness was present at the time ofexecution of the Will and whether the testator and the attestingwitnesses have signed in his presence. The statement of theattesting witness proves the due execution of the Will apart fromthe evidence of the scribe and the official from the Sub-Registrar’soffice. [Para 23][144-F-G; 145-A-B]

A

B

C

DE

F

G

H

134SUPREME COURT REPORTS

[2020] 7 S.C.R.

AM.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons& Ors. (1969) 1 SCC 573 : [1969] 3 SCR 513; N.Kamalam (Dead) & Anr. v. Ayyasamy & Anr. (2001) 7SCC 503 : [2001] 1 Suppl. SCR 272; Janki NarayanBhoir v. Narayan Namdeo Kadam (2003) 2 SCC 91 :[2002] 5 Suppl. SCR 175 – distinguished.BH. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.AIR 1959 SC 443 : [1959] Suppl. SCR 426; Seth BeniChand (since dead) now by LRs. v. Smt. Kamla Kunwar& Ors. (1976) 4 SCC 554 : [1977] 1 SCR 578 –referred to.C5. The Will cannot be said to be surrounded by suspiciouscircumstances, on account of the fact that some of the naturalheirs were not mentioned in the Will. [Para 30][147-G]

Rabindra Nath Mukherjee & Anr. v. PanchananDBanerjee (Dead) by LRs. & Ors. (1995) 4 SCC 459;Ved Mitra Verma v. Dharam Deo Verma (2014) 15 SCC578; Leela Rajagopal & Ors. v. Kamala MenonCocharan & Ors. (2014) 15 SCC 570 : [2014] 7 SCR697 – relied on.

E6. The High Court has clearly erred in law in interferingwith the concurrent findings of fact recorded by both the Courtsbelow. The entire judgment runs on misconception of law and is,therefore, not sustainable in law. The same is set aside and thedecree of the First Appellate Court is restored. [Para 33][149-E]

Case Law Reference

F

DHANPAT v. SHEO RAM (DECEASED) THROUGHLRS. & ORS.

C

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1960of 2020.

From the Judgment and Order dated 27.03.2014 of the High Courtof Punjab and Haryana at Chandigarh in RSA No. 3131/1987.

Rishi Malhotra, Utkarsh Singh and Mohit Chaudhary, Advs. forthe Appellant.

D

Manoj Swarup, Sr. Adv., Neelmani Pant, Ms. Vidisha Swarupand Ajay Kumar, Advs. for the Respondents.

The Judgment of the Court was delivered by E

HEMANT GUPTA, J.

1. The challenge in the present appeal is to an order passed by theHigh Court of Punjab & Haryana on 27[th] March, 2014 whereby theconcurrent findings of fact recorded by both the courts below were setaside and the suit filed by the respondent-plaintiff was decreed.

F

2. The High Court has framed the following two substantialquestions of law:

“1. Whether the Will dated 30.4.1980 Ex.D-3 was surrounded bysuspicious circumstances and due execution thereof was also notproved, in accordance with the requirements of Section 63 of theSuccession Act; G

2. Whether the learned courts below have completely misread,misconstrued and misinterpreted the evidence available on record,particularly the Will Ex.D-3, because of which the impugnedjudgments cannot be sustained.”

H

A

3. The admitted facts are that one Misri was the grandfather ofthe Plaintiff-Sheo Ram and defendant No.5-Sohan Lal and defendantNos.7-9 were his granddaughters. Chandu Ram was the father of theplaintiff and defendant Nos.5, 7-9 and the husband of Chand Kaur hadinherited the suit land from his father, Misri.

B4. The plaintiff filed a suit for declaration that he along with hismother, Chand Kaur and his sisters, defendants Nos. 7-9, were the ownersand in possession of equal shares of the suit land measuring 489 kanals4 marlas. He asserted that he belonged to the Jat community and wasgoverned by Punjab Customary Law. Further, that his brother, defendantNo. 5, got a Will dated 30[th] April, 1980 executed in favour of his sons,Cfrom Chandu Ram. Such a Will contravened Jat Customary Law andwas the result of fraud and misrepresentation. Defendant No.5 and hissons, the beneficiaries under the Will filed a common written statementand asserted that the custom had been abrogated after passing of theHindu Succession Act, 1956 and that Chandu Ram had separated all hisDsons during his life time and given sufficient amount to his daughters, defendant Nos.7-9, in the shape of dowry and other ceremonial andcustomary festivities. In this regard, sufficient land had also been givento the plaintiff, therefore, there was no Joint Hindu Family. The Will hadbeen executed by Chandu Ram out of his natural love and affection andwas without any inducement or fraud or misrepresentation.

E

5. The learned trial court framed as many as 12 issues but for thepurpose of deciding the present appeal, Issue Nos. 1, 3 and 7 are relevantwhich read as under:

“1. Whether the plaintiff and the proforma defendants are theFowners and in possession of the property in dispute?

xxxxxx

3. Whether the Will dated 30.4.1980 was validly executed byChandu Ram in favour of defendants No. 1 to 4?

xx

xxxx

G

7. Whether deceased Chandu had separated all his sons duringhis life time and had given sufficient amount to his daughters inthe shape of dowry etc. and land to his sons as alleged in H

preliminary objection no. 5 of the written statement? If so to whateffect?”

6. In respect of Issue No. 7 relating to the partition of the propertyby Chandu Ram, the defendants relied upon a judgment and decree in asuit filed by the Plaintiff-Sheo Ram and defendant No.5, Sohan Lal againsttheir father Chandu Ram. Chandu Ram admitted the fact of partitionand that a judgment (Ex.D-21) and decree (Ex.D-22) to this effect waspassed. Thereafter, a mutation was also sanctioned. Chandu Ram hadfiled a suit for permanent injunction to the effect that the property indispute fell to his share while the defendant (present plaintiff) was given50 acres of land situated in Village Gawar, 15½ acres of land in VillageBairan, 10 acres of land in Village Hariawas and 6 acres of land inVillage Baliali, totaling 81½ acres. It was also pleaded that the defendanttherein sold 50 acres of land of Village Gawar and 15½ acres of land ofVillage Bairan after this partition. The defendant therein asserted thatthe properties mentioned above were purchased by him from his exclusivefunds and, therefore, he has right to sell the same. The certified copy ofjudgment and decree are Ex. D-17 and D-18. Therefore, the learnedtrial court held that Chandu Ram had separated his sons during his lifetime and had settled his daughters as well. Such findings were affirmedby the learned First Appellate Court.

7. In respect of Issue No. 3, the learned trial court held that theWill is duly proved on the basis of statement of DW-3 Maha Singh, anattesting witness, DW-4 Advocate D.S. Panwar, the scribe, DW-5 Sohan,the defendant and Krishan Kant, Registration Clerk as DW 2. The Courtnoticed that DW-4 D.S. Panwar was Chandu Ram’s advocate in thecases before the Civil Court who had scribed the Will at his instance andMaha Singh had put his signatures on the original Will in his presence.DW-4 D.S. Panwar deposed that the original Will was stated to havebeen lost and that he was not sure as to whether Ex. D-3 was thecorrect photocopy of the original Will. Chand Kaur, wife of ChanduRam was examined as PW-1 who had deposed that Chandu Ram hadousted her from his house. Therefore, the Court found that it was naturalfor Chandu Ram to execute the Will in favour of Defendant No.5, SohanLal’s sons. The Court did not find any merit in the argument that adeviation from natural succession will make the Will doubtful. It wasalso held that the scribe cannot be treated as an attesting witness butthat since two attesting witnesses have signed the Will, the execution of AB

C

D

E

F

G

H

Athe Will is proved by examining one of the attesting witnesses. With theaforesaid findings, the learned trial court dismissed the suit filed by theplaintiff.

8. The learned First Appellate Court affirmed the findings recordedby the trial court and dismissed the suit filed by the plaintiff vide judgmentBand decree dated 11[th] May, 1987. It was held that the Will had beenexecuted by Chandu Ram in favour of the defendant Nos. 1 to 4, i.e. thesons of Defendant No.5, Sohan Lal and was not surrounded by suspiciouscircumstances.

9. In second appeal, the learned High Court allowed the appealCfiled by the plaintiff holding that the Will dated 30[th] April, 1980 wassurrounded by suspicious circumstances. The substantial question of lawframed by the High Court was only to this effect. It was argued by thedefendants that the finding that the Will stands executed and was notsurrounded by suspicious circumstances and has been illegally interferedby the High Court.D

10. The High Court had held that only Maha Singh was examinedas attesting witness as DW-3 whereas the second attesting witness AzadSingh was not produced, therefore, the Will was not proved. It also heldthat the Will had been completely misread, misconstrued andmisinterpreted. The High Court found that in the Will, there was noEmention of Chandu Ram’s wife and the other son i.e. the Plaintiff, andtherefore, such fact was a suspicious circumstance to doubt thegenuineness of the Will. The High Court referred to the judgment of thetrial court dated 7[th] December, 1981 filed by Chandu Ram to prove thatthe house and agricultural land were ancestral property though noFsubstantial question of law on the said aspect relating to the nature ofland was framed. In fact, the judgment dated 7[th] December 1981 (Ex-D-17) in the suit filed by Chandu Ram, has been produced by therespondent with the present appeal. A perusal of the judgment showsthat Chandu Ram had asserted partition of the property about 8-10 yearsback. The Plaintiff-Sheo Ram had asserted that he is in joint possessionGof the property. In the said suit, a decree for permanent injunction waspassed restraining the defendant from interfering with the disputedproperty after returning a finding on Issue No. 5 that a family partitionhad taken place and that the property cannot be said to be joint propertyof the parties. The High Court has not referred to the findings recordedHin the suit filed by the Plaintiff-Sheo Ram.

11. It may be noticed that in view of Constitution Bench judgmentof this Court in Pankajakshi (D) through LRs & Ors. v. Chandrika& Ors.[2], substantial question of law may not be required to be framed inPunjab and Haryana but still, the finding of fact recorded cannot beinterfered with even in terms of Section 41 of the Punjab Courts Act,1918. The said question was examined by this Court in Randhir Kaurv. Prithvi Pal Singh and Others[3], wherein, the scope for interferencein the second appeal under Section 41 of the Punjab Courts Act applicablein the States of Punjab and Haryana was delineated and held as under:

“16. A perusal of the aforesaid judgments would show that thejurisdiction in second appeal is not to interfere with the findings offact on the ground that findings are erroneous, however, gross orinexcusable the error may seem to be. The findings of fact willalso include the findings on the basis of documentary evidence.The jurisdiction to interfere in the second appeal is only wherethere is an error in law or procedure and not merely an error on aquestion of fact.

17. In view of the above, we find that the High Court could notinterfere with the findings of fact recorded after appreciation ofevidence merely because the High Court thought that anotherview would be a better view. The learned first appellate court hasconsidered the absence of clause in the first power of attorney topurchase land on behalf of the Plaintiff; the fact that the plaintiffhas not appeared as witness.”

12. In support of the findings recorded by the High Court,Mr. Manoj Swarup, learned senior counsel for the plaintiff-respondentargued that in terms of Section 63 of the Indian Succession Act, 1925(for short the ‘Act’) a Will is required to be attested by two witnesseswho have seen the testator and in which the testator and two of theattesting witnesses sign in presence of each other. It is argued that MahaSingh, DW-3 had not deposed that all three were present at the sametime, therefore, the finding of the High Court has to be read in thatcontext, when the Will was found to be surrounded by suspiciouscircumstances as the second attesting witness was not examined. It isalso argued that the original Will has not been produced and no applicationfor leading secondary evidence was filed. Therefore, the secondaryevidence could not be led by the defendant to prove the execution of theWill.

2 (2016) 6 SCC 157

3 Civil Appeal No. 5822 of 2019 decided on 24th July, 2019

A

B

C

D

E

F

G

H

A13. Section 65(c) of the Indian Evidence Act, 1872[4] is applicablein the facts of the present case as the defendants asserted that theoriginal Will is lost. The Section 65 reads as under:

“65. Cases in which secondary evidence relating to documentsmay be given. – Secondary evidence may be given of the existence,Bcondition, or contents of a document in the following cases:- In cases (a), (c) and (d), any secondary evidence of the contentsof the document is admissible.

Exxxxxx”

14. The defendants produced a certified copy of the Will obtainedfrom the office of the Sub-Registrar. The defendants also produced thephotocopy of the Will scribed by DW 4- D.S. Panwar.

F15. In a judgment reported as M. Ehtisham Ali for himself andin place of M. Sakhawat Ali, since deceased v. Jamna Prasad, sincedeceased & Ors.[5], the appellants-plaintiffs filed a suit on the basis of asale deed. During trial, the stand of the plaintiffs was that the originalsale deed was lost but since it was registered, secondary evidence byway of a certified copy prepared by the office of the Registrar wasGproduced. It was not disputed that the copy produced was not the correctcopy of the registered document. The suit was dismissed for the reasonthat the plaintiffs have not succeeded in satisfactorily establishing theloss of the original sale deed. The Court held as under:

4 for short, ‘Evidence Act’H5 AIR 1922 PC 56

“It is, no doubt, not very likely that such a deed would be lost, butin ordinary cases, if the witness in whose custody the deed shouldbe deposed to its loss, unless there is some motive suggested forhis being untruthful, his evidence would be accepted as sufficientto let in secondary evidence of the deed. And if in addition he wasnot cross-examined, this result would follow all the more. Thereis no doubt that the deed was executed, for it was registered, andregistered in a regular way, and it is the duty of the registrar,before registering, to examine the grantor, or some one whom heis satisfied is the proper representative of the grantor, before heallows the deed to be registered.”

16. In another judgment reported as Aher Rama Gova & Ors. v.State of Gujarat[6], the secondary evidence of dying declaration recordedby a Magistrate was produced in evidence. This Court found that thoughthe original dying declaration was not produced but from the evidence, itis clear that the original was lost and was not available. The Magistratehimself deposed on oath that he had given the original dying declarationto the Head Constable whereas the Head Constable deposed that hehad made a copy of the same and given it back to the Magistrate.Therefore, the Court found that the original dying declaration was notavailable and the prosecution was entitled to give secondary evidencewhich consisted of the statement of the Magistrate as also of the HeadConstable who had made a copy from the original. Thus, the secondaryevidence of dying declaration was admitted in evidence, though noapplication to lead secondary evidence was filed.

17. Even though, the aforesaid judgment in para 15 is in respectof the loss of a sale deed, the said principle would be applicable in respectof a Will as well, subject to the proof of the Will in terms of Section 68 ofthe Evidence Act. In the present case as well, the Will was in possessionof the beneficiary and was stated to be lost. The Will is dated 30[th] April,1980 whereas the testator died on 15[th] January, 1982. There is no cross-examination of any of the witnesses of the defendants in respect of lossof original Will. Section 65 of the Evidence Act permits secondaryevidence of existence, condition, or contents of a document includingthe cases where the original has been destroyed or lost. The plaintiffhad admitted the execution of the Will though it was alleged to be theresult of fraud and misrepresentation. The execution of the Will was not 6 (1979) 4 SCC 500

AB

C

D

E

F

G

H

Adisputed by the plaintiff but only proof of the Will was the subject matterin the suit. Therefore, once the evidence of the defendants is that theoriginal Will was lost and the certified copy is produced, the defendantshave made out sufficient ground for leading of secondary evidence.

18. This Court in Bipin Shantilal Panchal v. State of Gujarat &BAnr.[7], deprecated the practice in respect of the admissibility of anymaterial evidence, where the Court does not proceed further withoutpassing order on such objection. It was held that all objections raisedshall be decided by the Court at the final stage. The Court held as under:

“14. When so recast, the practice which can be a better substituteCis this: Whenever an objection is raised during evidence-takingstage regarding the admissibility of any material or item of oralevidence the trial court can make a note of such objection andmark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to suchobjections to be decided at the last stage in the final judgment. IfDthe court finds at the final stage that the objection so raised issustainable the Judge or Magistrate can keep such evidenceexcluded from consideration. In our view there is no illegality inadopting such a course. (However, we make it clear that if theobjection relates to deficiency of stamp duty of a document theEcourt has to decide the objection before proceeding further. Forall other objections the procedure suggested above can befollowed).

15. The above procedure, if followed, will have two advantages.First is that the time in the trial court, during evidence-taking stage, would

Fnot be wasted on account of raising such objections and the court cancontinue to examine the witnesses. The witnesses need not wait forlong hours, if not days. Second is that the superior court, when the sameobjection is recanvassed and reconsidered in appeal or revision againstthe final judgment of the trial court, can determine the correctness of theview taken by the trial court regarding that objection, without botheringGto remit the case to the trial court again for fresh disposal. We may alsopoint out that this measure would not cause any prejudice to the partiesto the litigation and would not add to their misery or expenses.”

19. This Court in Z. Engineers Construction Pvt. Ltd. & Anr. v.Bipin Bihari Behera & Ors.[8], held that even in respect of deficiencyof stamp duty in the State of Orissa where a question arose as to whetherpossession had been delivered in pursuance of a registered power ofattorney, the same was a question of fact which was required to bedecided after the evidence was led.

20. There is no requirement that an application is required to befiled in terms of Section 65(c) of the Evidence Act before the secondaryevidence is led. A party to the lis may choose to file an application whichis required to be considered by the trial court but if any party to the suithas laid foundation of leading of secondary evidence, either in the plaintor in evidence, the secondary evidence cannot be ousted for considerationonly because an application for permission to lead secondary evidencewas not filed.

21. Now, coming to the question as to whether the defendantshave proved the due execution of the Will, reference will be made to ajudgment reported as H. Venkatachala Iyengar v. B.N.Thimmajamma & Ors.[9]. This Court while considering Section 63 ofthe Act and Section 68 of the Evidence Act laid down the test as towhether the testator signed the Will and whether he understood the natureand effect of the dispositions in the Will. The Court held as under:

“18. …Thus the question as to whether the will set up by thepropounder is proved to be the last will of the testator has to bedecided in the light of these provisions. Has the testator signedthe will? Did he understand the nature and effect of the dispositionsin the will? Did he put his signature to the will knowing what itcontained? Stated broadly it is the decision of these questionswhich determines the nature of the finding on the question of theproof of wills. It would prima facie be true to say that the will hasto be proved like any other document except as to the specialrequirements of attestation prescribed by Section 63 of the IndianSuccession Act. As in the case of proof of other documents so inthe case of proof of wills it would be idle to expect proof withmathematical certainty. The test to be applied would be the usualtest of the satisfaction of the prudent mind in such matters.”

8 2020 SCC OnLine SC 184

9 AIR 1959 SC 443

A

B

C

D

E

F

G

H

A22. This Court in a judgment reported as Seth Beni Chand (sincedead) now by LRs. v. Smt. Kamla Kunwar & Ors.[10] held that onusprobandi lies in every case upon the party propounding a Will, and hemust satisfy the conscience of the court that the instrument so propoundedis the last will of a free and capable testator. The Court held as under:

B“9. The question which now arises for consideration, on whichthe Letters Patent Court differed from the learned Single Judgeof the High Court, is whether the execution of the will by JaggoBai is proved satisfactorily. It is well-settled that the onus probandilies in every case upon the party propounding a will, and he mustsatisfy the conscience of the court that the instrument soCpropounded is the last will of a free and capable testator. [SeeJarman on Wills (8th Edn., p. 50) and H. Venkatachala Iyengarv. B.N. Thimmajamma, AIR 1959 SC 443 : 1959 Supp (1) SCR426] By “free and capable testator” is generally meant that thetestator at the time when he made the will had a sound and disposingDstate of mind and memory. Ordinarily, the burden of proving thedue execution of the will is discharged if the propounder leadsevidence to show that the will bears the signature or mark of thetestator and that the will is duly attested. For proving attestation,the best evidence would naturally be of an attesting witness andindeed the will cannot be used as evidence unless at least oneEattesting witness, depending on availability, has been called forproving its execution as required by Section 68 of the EvidenceAct….”

23. In view of the aforesaid judgments, at least one of the attestingwitnesses is required to be examined to prove his attestation and theFattestation by another witness and the testator. In the present case,DW-3 Maha Singh deposed that Chandu Ram had executed his Will infavour of his four grandsons and he and Azad Singh signed as witnesses.He deposed that the testator also signed it in Tehsil office. He and AzadSingh were also witnesses before the Sub-Registrar. In the cross-Gexamination, he stated that he had come to Tehsil office in connectionwith other documents for registration. He deposed that Ex.D-4-the Will,was typed in his presence. He denied the question that no Will wasexecuted in his presence. There was no cross-examination about his notbeing present before the Sub-Registrar. Once the Will has been proved then the contents of such document are part of evidence. Thus, therequirement of Section 63 of the Act and Section 68 of the Evidence Actstands satisfied. The witness is not supposed to repeat in a parrot likemanner the language of Section 68 of the Evidence Act. It is a questionof fact in each case as to whether the witness was present at the time ofexecution of the Will and whether the testator and the attesting witnesseshave signed in his presence. The statement of the attesting witness provesthe due execution of the Will apart from the evidence of the scribe andthe official from the Sub-Registrar’s office.

24. Mr. Swarup referred to judgment of this Court reported asM.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons & Ors.[11].The primary issue discussed therein was a summary suit for recoverywherein an application for leave to defend was granted on the conditionof furnishing a security for a sum of Rs.50,000/-. The question examinedwas whether the security bond is attested by the two witnesses and, ifnot, whether it was invalid. While considering the attestation, this Courtdiscussed the question of attestation of witnesses as well and held asunder:

“8. “In every case the Court must be satisfied that the nameswere written animo attestandi”, see Jarman on Wills, 8th Edn.,p. 137. Evidence is admissible to show whether the witness hadthe intention to attest. “The attesting witnesses must subscribewith the intention that the subscription made should be completeattestation of the will, and evidence is admissible to show whethersuch was the intention or not,” see Theobald on Wills, 12th Edn.,p. 129. In Girja Datt v. Gangotri [AIR 1955 SC 346, 351] , theCourt held that the two persons who had identified the testator atthe time of the registration of the will and had appended theirsignatures at the foot of the endorsement by the sub-Registrar,were not attesting witnesses as their signatures were not put“animo attestandi”. In Abinash Chandra BidvanidhiBhattacharya v. Dasarath Malo [ILR 56 Cal 598] it was heldthat a person who had put his name under the word “scribe” wasnot an attesting witness as he had put his signature only for thepurpose of authenticating that he was a “scribe”. In Shiam SunderSingh v. Jagannath Singh [54 MLJ 43], the Privy Council heldthat the legatees who had put their signatures on the will in token AB

C

D

E

F

G

H

146SUPREME COURT REPORTS

Aof their consent to its execution were not attesting witnesses andwere not disqualified from taking as legatees.”

25. In the aforesaid case, it had been held that the person who puthis name under the word “scribe” was not an attesting witness, furtherthat the legatees who had put their signatures on the Will were not attestingBwitnesses. In the present case, Maha Singh and Azad Singh have signedthe Will as attesting witnesses not only at the time of execution but alsoat the time of registration before the Sub-Registrar. Therefore, the saidjudgment is not helpful to the argument raised.

26. Mr. Swarup relied on judgment reported as N. KamalamC(Dead) & Anr. v. Ayyasamy & Anr.[12] that in the absence of MahaSingh deposing that he is the attesting witness along with Azad Singh, hisstatement cannot be treated to be that of attesting witness. We do notfind any merit in the said argument. In the aforesaid case, it was thescribe who was said to be the attesting witness. This Court held asunder:D“27. …The animus to attest, thus, is not available, so far as thescribe is concerned: he is not a witness to the will but a merewriter of the will. The statutory requirement as noticed abovecannot thus be transposed in favour of the writer, rather goesagainst the propounder since both the witnesses are named thereinEwith detailed address and no attempt has been made to bring themor to produce them before the court so as to satisfy the judicialconscience. Presence of scribe and his signature appearing onthe document does not by itself be taken to be the proof of dueattestation unless the situation is so expressed in the documentFitself — this is again, however, not the situation existing presentlyin the matter under consideration. Some grievance was madebefore this Court that sufficient opportunity was not being madeavailable, we are however, unable to record our concurrencetherewith. No attempt whatsoever has been made to bring theattesting witnesses who are obviously available.”G27. The said judgment has no applicability inasmuch as MahaSingh is the attesting witness and has been examined as such by thedefendant.

H12 (2001) 7 SCC 503

28. Mr. Swarup further relied upon a judgment of this Courtreported as Janki Narayan Bhoir v. Narayan Namdeo Kadam[13] tocontend that if one attesting witness is examined, he has to depose aboutthe presence of the second attesting witness by relying upon the followingfindings:

“10. …The one attesting witness examined, in his evidence hasto satisfy the attestation of a will by him and the other attestingwitness in order to prove there was due execution of the will. Ifthe attesting witness examined besides his attestation does not, inhis evidence, satisfy the requirements of attestation of the will bythe other witness also it falls short of attestation of will at least bytwo witnesses for the simple reason that the execution of thewill does not merely mean the signing of it by the testator but itmeans fulfilling and proof of all the formalities required underSection 63 of the Succession Act. Where one attesting witnessexamined to prove the will under Section 68 of the Evidence Actfails to prove the due execution of the will then the other availableattesting witness has to be called to supplement his evidence tomake it complete in all respects. Where one attesting witness isexamined and he fails to prove the attestation of the will by theother witness there will be deficiency in meeting the mandatoryrequirements of Section 68 of the Evidence Act.”

29. We do not find any merit in the said argument as well. Thestatement of Maha Singh produced on record shows that he along withAzad Singh, the other attesting witness and the testator had signed theWill. In the cross-examination, the statement that he has signed the Willhad not been disputed nor that the testator or the other attesting witnesswas not present at that time. Therefore, the ratio of the aforesaid judgmentis not applicable to the facts of the present case. In fact, it is finding offact, recorded by the First Appellate Court.

30. In respect of an argument that some of the natural heirs werenot even mentioned in the Will, therefore, the Will is surrounded bysuspicious circumstances is again not tenable. Mr. Rishi Malhotra, learnedcounsel for the appellant referred to the judgment of this Court reportedas Rabindra Nath Mukherjee & Anr. v. Panchanan Banerjee (Dead)by LRs. & Ors.[14] wherein it had been held that the Will was executed 13 (2003) 2 SCC 91

14 (1995) 4 SCC 459

A

BC

D

E

F

G

H

Afor the exclusion of the natural heirs. The suspicious circumstances foundby the High Court to deprive the natural heirs by the testatrix was notfound to be sufficient. The Court held as under:

“4. As to the first circumstance, we would observe that this shouldnot raise any suspicion, because the whole idea behind executionBof will is to interfere with the normal line of succession. So naturalheirs would be debarred in every case of will; of course, it may bethat in some cases they are fully debarred and in others onlypartially. As in the present case, the two executors are sons of ahalf-blood brother of Saroj Bala, whereas the objectorsdescendants of a full blood sister, the disinheritance of latter couldCnot have been taken as a suspicious circumstance, when some ofher descendants are even beneficiaries under the will.”

31. Mr. Malhotra referred to another judgment of this Courtreported as Ved Mitra Verma v. Dharam Deo Verma[15]wherein thisCourt held that the exclusion of the children of the testator and executionDof the Will for the sole benefit of one of the sons by the testator, is not asuspicious circumstance. This Court held as under:

“8. The exclusion of the other children of the testator and theexecution of the will for the sole benefit of one of the sons i.e. therespondent, by itself, is not a suspicious circumstance. The propertyEbeing self-acquired, it is the will of the testator that has to prevail.”

32. Mr. Malhotra also referred to the judgment of this Courtreported as Leela Rajagopal & Ors. v. Kamala Menon Cocharan &Ors.[16] wherein it was held that it is the overall assessment of the Courton the basis of the unusual features appearing in the Will or the unnaturalFcircumstances surrounding its execution, that justifies a close scrutiny ofthe same before it can be accepted. Herein, the cumulative effect of theunusual features and circumstances surrounding the Will, would weighupon the court in the determination required to be made by it. The judicialverdict will be based on the consideration of all the unusual features andGsuspicious circumstances put together and not upon the impact of anysingle feature that may be found in a Will or a singular circumstance thatmay appear from the process leading to its execution. The Court held asunder:

15 (2014) 15 SCC 578H16 (2014) 15 SCC 570

“13. A will may have certain features and may have beenexecuted in certain circumstances which may appear to besomewhat unnatural. Such unusual features appearing in a willor the unnatural circumstances surrounding its execution willdefinitely justify a close scrutiny before the same can beaccepted. It is the overall assessment of the court on the basisof such scrutiny; the cumulative effect of the unusual featuresand circumstances which would weigh with the court in thedetermination required to be made by it. The judicial verdict, inthe last resort, will be on the basis of a consideration of all theunusual features and suspicious circumstances put togetherand not on the impact of any single feature that may be foundin a will or a singular circumstance that may appear from theprocess leading to its execution or registration. This, is theessence of the repeated pronouncements made by this Courton the subject including the decisions referred to and reliedupon before us.

14. In the present case, a close reading of the will indicates itsclear language, and its unambiguous purport and effect. Themind of the testator is clearly discernible and the reasons forexclusion of the sons is apparent from the will itself…”

33. In view of the above, we find that the High Court has clearlyerred in law in interfering with the concurrent findings of fact recordedby both the Courts below. The entire judgment runs on misconception oflaw and is, therefore, not sustainable in law. The same is set aside andthe decree of the First Appellate Court is restored. Accordingly, theappeal is allowed and the suit is dismissed.

Kalpana K. Tripathy

Appeal allowed.

AB

C

D

E

F

G

H