Andhra HC (Pre-Telangana)
Gondrala Sithamahalakshmi And Anr. vs Pulipati Rajarao And Ors. on 17 April, 2002
Equivalent citations: 2002(4)ALD277, 2002(4)ALT426
JUDGMENT B.S.A. Swamy, J.
1. This LPA was filed against the decision of our learned brother Chelameswar, J., in P. Raja Rao v. G. Silhamahalakshmi, 1999 (6) ALT 584, (AS No. 1750 of 1985 and Cross-objections) wherein he was held that Ex. Bl will, on the evidence of its scribe, DW3, in the absence of examination of its attestors, holds good.
2. The facts are not in dispute. There was a registered partition between one Kotaiah, first respondent-first defendant (son of the said Kotaiah), the second defendant (wife of the said Kotaiah) and plaintiffs 1 and 2 (wife and daughter of one Ramalingaiah, the second son of the said Kotaiah) in Ex.A3. Each one of them was allowed one share in the joint family property. Subsequently the said Kotaiah died intestate in the year 1970. The first respondent-first defendant and the second defendant took possession of the property that fell to the share of the said Kotaiah without giving share to the branch of his 2nd son, Ramalingaiah. In those circumstances, the appellants filed OS No.234 of 1979 on the file of the Additional Subordinate Judge, Guntur against the first respondent-first defendant, the second defendant, and respondents 2 to 4 (defendants 3 to 5) seeking partition of the property that fell to share of Kotaiah at the time of partition. It is seen from the record that the second defendant, the wife of the said Kotaiah died during the pendency of the proceedings. Both of them contended in the written statement that the said Kotaiah executed Ex. Bl unregistered will dated 4-4-1970 bequeathing the properties that fell to his share to his wife, the second defendant, for life time and the vested reminder to the first respondent-first defendant. Subsequently the second defendant died. The first respondent-first defendant filed additional written statement contending that his mother, the second defendant, bequeathed the properties under Ex.B2 registered will dated 16-11-1973 and those properties are not the subject-matter of the dispute. Hence we need not go into the correctness or otherwise of that will.
3. The trial Court disbelieved Ex. Bl unregistered will and ordered partition of the properties between the branches of late Kotaiah. Aggrieved by the said judgment and decree the first respondent-first defendant filed AS No.1750 of 1985 and the appellants herein seem to have filed cross-objections with regard to Ex.B2 which was upheld by the Court below. Since both the Counsel agreed that the properties covered under Ex.B2 are not the subject-matter of the partition suit we need not go into the correctness or otherwise of the will executed by the second defendant, the wife of the said Kotaiah.
4. In the appeal in P. Raja Rao v. G. Sithamahalakshmi (supra) (AS No.1750 of 1985 and Cross-objections), the learned single Judge having relied on the decision of Andhra High Court in Venkatasubbaiah v. Sitbbamma, 1956 Andhra 195, and some other judgments of Madras and Orissa High Courts, held at paragraph 22 of the judgment:
"Therefore, 1 see no conflict in the view propounded by this Court in M. Venkatasubbaiah 's case, referred to (supra), with the view expressed by their Lordships of the Supreme Court in Kashibai w/o. Lachiram referred to (supra). What is required is that ultimately it has to be established before the Court that the executant of an instrument falling within the ambit of Section 68 of the Evidence Act, must be proved to have signed the document before an attesting witness and the attesting witness, who had in fact seen the executant signing the instrument must also sign the document in proof of the fact of witnessing the execution of document. As there is no specific form of attestation under the law, any person who actually witnesses the act of signing by the executant of an instrument and subscribes his signature to the document, in my opinion, can be treated as an attesting witness, having regard to the definition of the term "attested" according to the Transfer of Property Act and also as per the judgment in M. Venkatasubbaiah's case referred to (supra)."
5. Of course the learned single Judge believed the evidence of DW3 who scribed Ex. Bl. A reading of the judgment in that decision clearly shows that Section 69 of the Evidence Act was not brought to the notice of that learned single Judge while arguing the matter, which had taken care of a situation where no attesting witnesses are found for examination. Section 69 of the Evidence Act reads:
"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 documents is in the handwriting of that person."
6. From this it is seen that in the absence of attesting witnesses i.e., either they are not found or they are dead, the concerned persons relying upon the document has to prove that atleast the signature of one attesting witness is in his own handwriting and the executant's signature is in his handwriting. Neither Section 68 nor Section 69 of the Evidence Act postulates the examination of scribe treating the scribe as attesting witness. The facts of this case are squarely covered by a decision of the Supreme Court in N. Kamalam (Dead) and another v. Ayyasamy (Umesh C. Banerjee, J.), . Their Lordships of the Supreme Court having not only taken note of legislative changes that took place with regard to the possession of attesting witness but also having considered the case law held at paragraph 28:
"The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the profounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the Court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to the proof of due attestation unless the situation is so expressed in the document itself- this is again however, not the situation existing presently in the matter under consideration."
The Supreme Court also held therein that the scribe who has signed the document cannot be treated as attestor, in the following words at paragraph 33:
"While it is true that Arunachalam, in the facts of the matter under consideration did write the will and has also signed it but it is of utmost requirement that the document ought to be signed by the witnesses in order to have the statutory requirement fulfilled.
Arunachalam has signed the document as a scribe not as a witness, if there were no 'signatures available as witness, probably we would have to specifically deal with such a situation and consider that aspect of the matter but presently in the facts situation of the matter under consideration, we have the advantage of two attesting witnesses, none of whom have been examined and the factum of their non-availability also does not satisfactorily been proved. The evidence of one person namely Arunachalam, cannot displace the requirement of the statute when Arunachalam himself has specifically identified himself as writer and not as a witness though in his evidence, he tried to improve the situation, but this improvement however, cannot said to be accepted.
The will thus fails to have its full impact and its effect stands out to be non-est."
Their Lordships of the Supreme Court held that a scribe who signed the document as executant cannot be treated as an attestor.
7. In the case on hand also the plea of the respondents-defendants is that one attesting witness died and the whereabouts of another attesting witness was not known. In those circumstances, a duty is cast on the respondents-defendants to prove that the signature of the executant on the document is of his own and atleast the signature of one attesting witness has to be identified in a manner known to law. We are sure that mere saying that the signature of attesting witness is of him may not be sufficient unless he produces the signature of the attesting witness on some admissible document and make both the signatures available for comparison by the Court to find out whether the person acted as real witness. Those things had not taken place in this case. Hence we have to respectfully follow the said decision of the Supreme Court and hold that the scribe cannot act as attesting witness more so in the case of a will when the statute mandates that atleast one attesting witnesses should be thereto prove the execution of I will.
8. On merits of the case, as stated supra, the evidence of DW 3, the scribe, was found acceptable by the learned single Judge. We perused the evidence of DW3. DW3 in his cross-examination stated that normally he writes the documents at his house and goes to the office of the Registrar in case of registration and that he scribed Ex. Bl will at the house of the father of the first respondent-first defendant. But DW3 in his cross-examination also stated that he does not remember whether Ex. Bl will was written at the house of the executant (Kotaiah, the father of the first respondent-first defendant). His further statement is that he does not know the said Kotaiah till one Sidda Nagaiah came and asked him to come to the house of the said Kotaiah for writing the document, whom he know very well. But the respondents-defendants did not examine the said Sidda Nagaiah as a witness. He further deposed that he cannot say whether Kotaiah was able to move and walk at the time when he met him, after scribing of Ex.Bl, by him. Kotaiah signed and thereafter attestors signed, in Ex. Bl. DW3 never stated who those attesting witnesses are. DW3 also never stated whether he knows the attesting witnesses personally, whether he can identify the attesting witnesses and whether the attestors signed after seeing the executant signing Ex. Bl will, etc. The evidence of DW3 is vague. The above statements of DW3 create doubt whether he scribed Ex. Bl will at all.
9. In the light of the above discussion and the circumstances of the case, with great respect to the learned single Judge we are inclined to differ with his (learned single Judge's) view and disbelieve the evidence of DW3, the scribe of Ex. Bl will, about the execution thereof by the said Kotaiah and we cannot but reverse the judgment of the learned single Judge and holding that Ex. Bl unregistered will dated 4-4-1970 is not proved satisfactorily and it cannot be acted upon by the parties. Accordingly we set aside the judgment and decree of the learned single Judge of this Court in the said decision in P. Raja Rao v. G. Sithamahalakshmi (supra) (AS No. 1750 of 1985 and cross-objections) and restore the judgment and decree of the trial Court.
10. The LPA is accordingly allowed. There shall be no order as to costs.