Andhra HC (Pre-Telangana)
M.V.P. Rama Rao And Anr. vs To Whomsoever It May Concern on 15 December, 1992
Equivalent citations: 1993(2)ALT187
Author: Syed Shah Mohammed Quadri
Bench: Syed Shah Mohammed Quadri
JUDGMENT Syed Shah Mohammed Quadri, J.
1. The short question that arises in this appeal filed under Section 299 of the Indian Succession Act, 1925 (for short the Act) is: Whether the appellants are entitled to grant of probate under Section 222 of the Act?
2. The facts giving rise to this appeal may be briefly stated hereunder. The appellants filed O.P.No. 33 of 1986 on the file of the learned District Judge, Rangareddy district at Saroornagar, Hyderabad praying to grant a probate of the will executed by one Rasheed Khana Sri Ramamurthy son of Kamojee Pantulu on 6-3-1985 (marked as Ex.A-1). Under the said will the testator bequeathed his money standing in his name in the Fixed Deposits and Savings Bank Accounts with the State Bank of Hyderabad, Sanathnagar, Industrial Estate Branch, Hyderabad in favour of the second appellant herein and all his movable properties and immovable properties bearing S.R.T.No. 10, Municipal No. 7-2-231, Sanathnagar Colony, Hyderabad and other immovable properties in favour of his brother-in-law the first appellant herein. On the application notice by way of publication in the newspapers was ordered. Nobody appeared and opposed the grant of probate.
3. The appellants examined themselves as P.Ws. 1 and 2 and one of the attesting witness N. Chandrasekhara Rao as P.W.3 to prove the will. However, on the evidence on record the learned District Judge was not satisfied of the execution of the will and entertained a doubt about the genuineness of the will and consequently dismissed the petition by order dated 3-4-1986. The correctness and legality of this order is assailed by the appellants in this appeal.
4. In this Court after the admission of the appeal, notice by way of publication in the news papers was ordered . None entered appearance and contested the appeal. As the matter was uncontested in the trial court, we requested Sri. S. Srinivasareddy, advocate to assist the court for the Amicus Curiae.
5. Sri. E. Ellareddy, learned counsel for the appellants submits that under Section 68 of the Indian Evidence Act the will have been properly proved; but the learned District Judge erroneously dismissed the petition entertaining a doubt without any basis.
6. Mr. Srinivasa Reddy, the learned counsel amicus curiae, contended that though there is no basis for the learned District Judge to entertain a doubt and he is unable to support the order on that ground yet the will has to be attested by two witnesses and the same has to be proved to the satisfaction of the court to show that the requirements of Section 63 of the Act have been compiled with.
7. It would be appropriate to refer to the relevant provisions of the Act to answer the question that arises for consideration in this appeal. Section 222 of the Act provides that probate shall be granted only to an executor appointed by the will. Sub-section (2) of Section 222 of the Act says that the appointment of an executor may be expressed or by necessary implication. It necessarily leads to the enquiry as to whether the will. Section 65 of the Act defines the privileged wills. It reads as follows:-
"Any soldier being employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or any mariner being at sea, may, if he has completed the age of eighteen years, dispose of his property by a will made in the manner provided in Section 66. Such wills are called privileged wills."
Wills other than those which fall under Section 65 of the Act, are unprivileged wills. Section 63 of the Act deals with the execution of unprivileged wills. The relevant provision is Section 63(c) of the Act, which reads as under:
"63(c): The will shall be attested by two or more witness, each of them 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 of mark, or of 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 satisfaction shall be necessary"
A perusal of Clause (c) of Section 63 of the Act would make it clear that the will shall be attested by two or more witnesses, each of whom should have seen the testator signing or affixing his mark to the will or has seen some other person signing the will. That should be in the presence and by the direction of the testator, receiving personal acknowledgement from the testator of his signature or mark or of the signature of such other person is enough. But each of the witnesses shall sign the will in the presence of the testator. It is made clear that it shall not be necessary that more than one witness be present at the same time and no particular form of attestation is necessary.
8. To prove the executive of the will, we have to go to Section 68 of the Indian Evidence Act I of 1972, which reads as follows:
"If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908, unless its execution by the person by whom it purports to have been executed is specifically denied."
This section provides that if document is required to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving the execution, if the attesting witness is alive and subject to the process of the Court and capable of giving evidence. We are not concerned with the proviso added to this Section by Act XXXI of 1926.
9. A combined reading of these provisions would show that to prove the execution of the will, examination of one of the attesting witnesses is enough. But that witness shall speak that he has seen the testator signing or affixing his mark to the will and has seen the other person attesting the will.
10. In H. Venkatachala Iyengar v. B.N. Thimmajamma, the Supreme Court observed as follows:
"The party propounding a will or otherwise making a claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, reference must inevitably be made to the statutory provisions which govern the proof of documents. Sections 67 and 68 of the Evidence Act are relevant for this purpose.
Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law.
Similarly, Sections 59 and 63 of the Indian Succession Act are also relevant. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. It would prime facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by Section 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters".
We may also refer to the decision cited by the learned counsel for the appellants. In Venkatarama Raju v. Narasa Raju, 1966 (2) An.W.R. 134 the question before the Division Bench of this court was: Where the attestors were not available, how the will should be proved? The Division Bench observed as follows:
"Where there is proof of the testator's signatures and the attestors' signatures and none of the attestors is available, there is a presumption that the will had been duly executed in terms required by Section 63 of the Succession Act."
Inasmuch as one of the attesting witnesses is available and is examined, this judgment is of no help to the appellants.
11. In Umasashi v. Paribala, , a Division bench of Calcutta High Court had to consider a case of grant of probate under Section 222 of the Act. It was also an uncontested case. The learned Judges held that "If a will is not contested the same can be proved in common form and in the High Court probate would be granted as a matter of course." They added: "whether, however, a caveat is filed and a contention is raised, the case is marked as contentious and thereafter the proceedings take the colour of a regular suit. Even if at a subsequent stage the contention or the contest is not pressed the same still has to be disposed of as a suit. It follows that once a probate proceeding is marked as contentious, the same, even if it is undefended, has to be disposed of as an undefended suit and the probate will not be granted automatically."
12. Now coming to the facts of this case it would be enough if we refer to the evidence of P.W.3 the attesting witness of the will Ex.A-1. He stated that the testator executed the will in his presence and in the presence of the other attesting witness Sham Mohan and that they signed in the will.
13. As the requirement of proof under Section 68 of the Indian Evidence Act read with Section 63 (3) of the Act have been complied with, there was no justification for the learned District Judge to entertain a doubt and dismiss the application. In the will Ex.A-1 the appellants are referred to and would be deemed to have been appointed as executors and consequently they are entitled to a probate.
14. In the result the appeal is allowed granting probate in favour of the appellants by allowing the O.P. Inasmuch as there is nobody contesting the case, we do not make any order as to costs.
15. Before parting with the case, we would like to record our appreciation of Sri. S. Srinivasa Reddy assisting the Court with thoroughness in the aspects of law involved in this appeal.