Bombay High Court
Pralhad Ganpat Salgar vs Sunil Dilip Kakod on 10 January, 2019
Author: Chief Justice
Bench: Naresh H. Patil, N.M. Jamdar
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JPP
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO. 378 OF 2018
in
NOTICE OF MOTION NO. 228 OF 2017
Pralhad Ganpat Salgar ... Appellant
V/s.
Sunil Dilip Kakod ... Respondent.
Mr. Vishal Kanade a/w. Mr. Rohan Savant I/b. Sanjay Shivram
Gawde for the Appellant.
Mr. Tejas Vora a/w. Mr. D.R. Mishra, Mr. Sagar Kaskar & Mr. Sagar
Sheth for the Respondent.
CORAM : NARESH H. PATIL,C.J. &
N.M. JAMDAR, J.
DATE : 10 JANUARY, 2019.
Oral Judgment (Per Chief Justice):-
Heard finally by consent of the parties.
2. The Appeal is directed against the order passed by the
learned Single Judge dated 1 March 2018 in Notice of Motion No.
228 of 2017 in Testamentary Suit No. 173 of 2017. The Appellant
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filed a Testamentary Suit No. 173 of 2017. The Respondent herein
filed Notice of Motion No. 228 of 2017 in Testamentary Suit
No.173 of 2017 praying for following reliefs:-
"(a) That this Hon'ble Court be pleased to dismiss the
present Testamentary Suit being Suit No.173 of 2017 in
accordance with the provisions of Section 281 of the
Indian Succession Act, 1925;
(b) Ad-interim order in terms of prayer clauses (a)
above;
(c) For cost of this Notice of Motion be provided for;
(d) Such other and further reliefs be granted in favour
of the Applicant/Defendant as the nature and
circumstances of the case may require."
3. The Respondent herein pleaded in the affidavit in
support of Notice of Motion that as the Appellant herein has failed
to comply with the mandatory provisions of Section 281 of Indian
Succession Act, 1925, the Probate Petition be dismissed. Paragraphs
3, 4 and 5 of the said affidavit in support of Notice of Motion is
reproduced herein below:-
3. I say that on taking inspection of the original
proceedings in this Hon'ble High Court as well as the
purported Will dated 07.04.2007, which has been
deposited in this Hon'ble Court at the time of filing of
the Petition by the Plaintiff/Petitioner abovenamed, it
was observed and noticed by me that the Petitioner has
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not filed the affidavit of any attesting witness along with
the Petition as contemplated by Section 281 of the
Indian Succession Act, 1925. The said Section squarely
provides that when an application for Probate is made,
the Petition shall also be verified by at least one of the
attesting witness to the Will.
4. It is significant to note that the Plaintiff/Petitioner
has not filed the affidavit of any of the attesting
witnesses, viz. Mr. Mahesh Sadanand Redkar and/or
S.M. Asgar who are the attesting witnesses to the
purported Will dated 07.04.2007 of my deceased father
which is being propounded by the Plaintiff/Petitioner.
5. It is settled position in law that in the absence of
the verification by at least one witness to the Will, the
Petition shall be liable to be dismissed for non-
compliance of provisions of Section 281 of the Indian
Succession Act, 1925. The said Section applies to the
present Petition as the Plaintiff/Petitioner has not
annexed the affidavit of any of the attesting witness
along with the Petition. I crave leave to refer to and rely
upon the papers and proceedings of the said Petition in
support of my contention that in view of non-
compliance of Section 281 of the Indian Succession Act,
1925, the present Petition/Suit is liable and ought to be
dismissed with cost in the interest of justice, equity and
fair-play."
4. By order dated 1 March 2018, the learned Single Judge
of this Court dismissed Suit No. 173 of 2017 by allowing the Notice
of Motion filed by the present Respondent. The Testamentary Suit
No.2 of 2018 filed by the Respondent herein was directed to be
taken up for trial by the learned Single Judge.
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5. The learned Counsel appearing for the Appellant
submitted that the provisions of Section 281 of the Indian
Succession Act is not mandatory, but directory. It is not mandatory
for the Appellant to verify the Petition by at least one of the
witnesses to the Will in the manner so prescribed. The Appellant is
entitled in law to lead evidence. The Counsel submitted that in fact
the learned Single Judge in paragraph 3 of the order has held that
non-filing of an affidavit by an attesting witness is not itself fatal to
the Petition. Thus the Notice of Motion filed by the Respondent
ought to have been dismissed. He submitted that the issue on which
the learned Single Judge dismissed the Petition was not pressed into
service by the Respondent. Even otherwise, according to the learned
Counsel, the observations made by the learned Single Judge and
conclusions drawn except the two attesting witnesses signing both
the Wills are unwarranted and is not tenable in law in the facts of the
present case, the Appellant is yet to lead evidence. He submitted that
the Appellant has pleaded, in response to the Will propounded by
the Respondent that the testator was not in the fit state of mind. He
submitted that if on this ground the second will is not proved then
there will be no Will at all. The Counsel placed reliance on the
judgment delivered by the learned Single Judge of Madhya Pradesh
High Court in the case of Ramesh Chandra v/s. Mahendra Kumar
Sahu and Anr.1
1 2012(4) M.P.L.J.
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6. The learned Counsel appearing for the Respondent
submitted that it was mandatory for the Appellants to have
submitted affidavits of the attesting witnesses in accordance with the
provisions of Section 281 of the Indian Succession Act, 1925. For
want of an affidavit, the Petition deserved to be dismissed at the
threshold. In support of the submission, the learned Counsel has
referred the provisions of Rule 374(c) of the Bombay High Court
(Original Side), Rules, which reads as follows :-
"Rule 374. Application for probate - The application
for probate shall be made by Petition. There shall be
annexed to the Petition a copy of the last will and
testament of the deceased. If the will be not in the
English language, an official translation thereof shall be
annexed. The original will shall be filed separately and
kept by the Prothonotary and Senior Master in the
strong room of his office. There shall also be annexed to
the petition (1) a schedule of the property and credits
which the deceased dies possessed of or entitled to at the
time of his death which have or are likely to come to the
petitioner's hands, (2) a schedule showing the debts of
the deceased and all other items which by law the
petitioners is allowed to deduct for the purpose of
ascertaining the net estate of the deceased, and (3) a
schedule of property, if any, held by the deceased in trust
for another and not beneficially or with general power to
confer a beneficial interest. The petition shall be in
Form No.97 with such variations as the circumstances of
each case may require and shall be accompanied by -
(a) .........
(b) .........
(c) the affidavit of one of the attesting witnesses,
if available (Form No. 102).
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The learned Counsel referred to the averments made by the
Appellant in the Testamentary Suit. The Counsel submitted that the
Appellant failed even to plead that the Petition is supported by an
affidavit of the attesting witnesses and verified in accordance with
the manner prescribed under Section 281 of the Indian Succession
Act, 1925. The Counsel referred to a Judgment of the learned
Single Judge of this Court in the case of P. Ramachandran Nair v/s.
Smt. Suparana Tapan Das2 in support of his contention that the
provisions of Section 281 of the Indian Succession Act are
mandatory in nature. As regards the submissions of affidavits of the
attesting witnesses by a party praying for a grant of probate, reliance
was placed to the observations made by the learned Single Judge in
paragraph 22 which reads as under:-
"22. Shri Merchant contended that there is no
proper pleading regarding execution and attestation of
the Will. He further submitted that there is no evidence
to indicate that attesting witnesses signed the Will in the
presence of the deceased, Shri Merchant referred to the
decision in Rangu Vithoba v. Rambha Dina, AIR 1967
Bom 282 wherein the learned Single Judge of this Court
held that in a case which is based upon the Will, the
propounder must plead that the document was properly
executed and duly attested and was the last Will of the
testator. It was further held that he cannot say that the
defendant has not denied this fact. In order to
appreciate the submission of Shri Merchant, it is
necessary to look to the relevant averments made by the
2 AIR 2003 Bombay 457
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plaintiff in the petition. In paragraph 3, the plaintiff has
stated that deceased left a writing which is his last Will
and testament. Paragraph 4 of the petition reads "That
the said Will was duly executed at Bombay on 26th
November 1994". There is no averment in the petition
regarding due attestation of the Will. The petition does
not mention the names of the persons who attested the
Will. However, as required by Rule 374 of the Original
Side Rules, the plaintiff has filed the original Will and
annexed a copy thereof to the petition which mentions
the names of two attesting witnesses. But that does not
satisfy the requirement of proper pleadings regarding the
Will having been duly attested. It is not enough to aver
in the petition that Will was duly executed, but it must
be averred specifically that Will was duly executed.
Execution of document and attestation thereof are two
different things. Execution of a document consists of
signing a document written of, read over and
understood. It does not consist of merely signing a
paper or document which are not required to be attested
but only those documents which law requires, are
required to be attested by witnesses. For example, a
mortgage deed and a Will. These documents cannot
merely be executed, but they have necessarily to be
attested by witnesses. Attestation means the act of
witnessing the executant, signing the document and
subscribing the name of witnesses in testimony of such
fact. By attestation, it is meant that signing of the
document to signify the attestor and his witness to the
execution of the document. An attesting witness is one
who signs the document in the presence of the executor
after seeing the execution of the document and after
receiving a personal acknowledgment from the
executant as regards the execution of the document. In
this connection reference should also be made to Section
3 of the Transfer of Property Act which defines the term
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"attested" as meaning the instrument having been
attested by two or more witnesses, each of whom as seen
the executant signing or affixing his mark to the
instrument or has seen some other person signing the
instrument in the presence and by direction of the
executant, or has received from the executant a personal
acknowledgment of his signature or mark, or of the
signature of such other person, and each of them has
signed the instrument in the presence of executant, but
it shall not be necessary that more than one of such
witnesses shall be present at the same time, and no
particular form of attestation shall be necessary. Clause
(c) of Section 63 of Indian Succession Act which deals
with the attestation of the Will, is almost similar to the
definition of the term "attested" as given in Section 3 of
the Transfer of Property Act. In short, execution of a
document and attestation of a document are two
different things and therefore, where a document is by
law, requires to be attested by one or more witnesses, at
least one witness required to be examined to prove the
execution thereof. It is necessary for the party relying
upon the said document to plead specifically both the
execution and attestation of it. Section 68 of Evidence
Act inter alia states that if a document is required by law
to be attested. It shall not be used as evidence until at
least one attesting witness has been called for the
purpose of proving its execution, if the attesting witness
is alive and subject to process of Court and capable of
giving evidence. It is basic law that what is sought to be
proved, must first be pleaded. A fact cannot be allowed
to be proved unless it is first pleaded. As stated earlier
there is absolutely no pleading regarding the attestation
of Will in question."
7. We have perused the record placed before us, and the
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judgments cited.
8. The Respondent in the Notice of Motion prayed for
dismissal of the Probate Petition on the ground of non-compliance
of provisions of Section 281 of the Indian Succession Act. The
learned Single Judge observed that the non-filing of the affidavit by
an attesting witness is not itself fatal to the Petition. However, the
learned Single Judge proceeded to observe further that same
attesting witness cannot attest both, the later and the earlier Will,
and if they do, then the first will automatically does not remain the
last Will and there for the petition based on such will has to be
dismissed. The learned Single Judge observed that the signatures of
the attesting witnesses is not an idle formality. Reference was made
to provisions of Section 59 and 63(c) of the Indian Succession Act,
1925.
9. The view taken by the learned single judge that section
281 is not mandatory, is correct. For reference Section 281 of the
Indian Succession Act is reproduced as under:-
281. Verification of Petition for probate, by one
witness to the Will.- Where the application is for
probate, the Petition shall also be verified by at least one
of the witnesses to the Will (when procurable) in the
manner or to the effect following, namely :
"I (C.D.), one of the witnesses to the last Will and
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testament of the testator mentioned in the above
petition, declare that I was present and saw the said
testator affix his signature (or mark) thereto (or that the
said testator acknowledged the writing annexed to the
above petition to be his last will and testament in my
presence.)"
Section 281 of the Succession Act, states a verification has to be
made at least by one of the attesting witness to the Will when
procurable. Legislature has placed the words "when procurable" in
brackets as an emphasis. Thus this section cannot be held as
mandatory for the reason that there are various contingencies which
can arise if the attesting witness is not available. Such as if he had
died before filing of the application for probate. The word shall
employed this provision has to be read as directory, since it has to be
read with when procurable. We may also quote Rule 384 of the
Bombay High Court (Original Side) Rules, which reads as under:-
"R. 384. In the absence of attesting witness, other
evidence to be produced. - If it is not possible to file an
affidavit of any of the attesting witnesses, an affidavit of
some other person, if any, who may have been present at
the execution of the Will shall be filed, but if no affidavit
of any such person can be filed, evidence on affidavit
shall be produced of that fact and of the handwriting of
the deceased and attesting witnesses, and also of any
circumstances which may raise a presumption in favour
of due execution."
Considering the provisions of Section 281 of the Indian Succession
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Act and Rule 374(c) of the Bombay High Court (Original Side)
Rules, we are of the considered opinion that the Probate Petition
cannot be dismissed at the threshold without trial merely on the
non-submission of affidavits of the attesting witnesses along with the
Probate Petition
10. The issue as regards the effect of same witnesses being
attesting witnesses to both the Wills was not the issue raised in the
Notice of Motion by the Respondent. The Notice of Motion taken
out for dismissal of the Petition was only on the premise that the
section 281 was mandatory and was breached. Having held that it
was not mandatory, the Notice of Motion should have been
dismissed. The further observation that nothing survived in the
Petition since the will propounded by the appellant was not the first
will, overlooked the case of the appellant. Caveat Application
(Lodg.) Nos. 339 of 2017 and 340 of 2017 in Testamentary Petition
No. 1699 of 2017 filed by the Appellant, they have raised the
objections to the second Will on various grounds. The Appellant
has pleaded that the attesting witness was not in town that day and
the Testator was not in fit state of mind. This required leading of
evidence.
11. This is not to say that the outcome indicated by the
learned single was not a probable one, but that it was not the only
one. There was an area of argument left for the Appellant,which
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required trial. As pointed out by the Counsel for the Appellant, if
the second Will is not proved to be validly executed, there was a case
for the Appellant.
12. In the facts of the case and considering the pleadings of
the parties, we find that this issue relating to attestation by the same
set of witnesses should be gone into by the learned Single Judge after
the parties are permitted to lead oral evidence.
13. We pass following order:-
ORDER
(a) The Appeal is allowed.
(b) The impugned order is quashed and set aside.
(c) The Probate Petition in Testamentary Suit No. 137
of 2017 is restored to file.
14. It is clarified that all issues on merits are kept open in respect of both the Suits. The observations made by the learned Single Judge in respect of the effect of the same set of witnesses attesting both the Wills, are prima-facie. Such issues, as and when raised by the parties during the trial, will be looked into on its own merits by the learned Single Judge.
N.M. JAMDAR, J. CHIEF JUSTICE
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