Chattisgarh High Court
Smt.Shanti Bai And Others vs Kartik Das And Others 52 Fam/71/2013 ... on 28 March, 2019
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.81 of 2004
1. Smt. Shanti Bai, daughter of late Shri Ganga Das, aged about 48
years,
2. Smt. Sahuain, daughter of late Shri Ganga Das, aged about 50 years
(Both are resident of village-Jogibandh, Police Station & Tahsil :
Ambikapur, District Surguja (CG)
(Defendants)
---- Appellants
Versus
1. Kartik Das, Son of Rangbaj Das, aged about 46 years, resident of vill :
Jogibandh, Police Station & Tahsil : Ambikapur, Distt : Surguja (CG)
2. State of Chhattisgarh through the Collector, Surguja, Ambikapur, Distt :
Surguja (CG)
---- Respondents
For Appellants:- Mr.V.K.Pandey and Ms Neha Verma, Advocates
For Respondent No.1:- Mr.A.K.Prasad, Advocate
For Respondent No.2 / State: -
Mr. Sumit Singh, Panel Lawyer
Hon'ble Shri Justice Sanjay K. Agrawal
Judgment on Board
28.03.2019
1. The substantial question of law involved, formulated and to be
answered in the second appeal preferred by the defendants is as
under: -
"Whether the finding of the learned first Appellate Court that
the will deed dated 25.05.1996 executed by late Narkohlin
Bai in favour of the plaintiff, has been proved by the plaintiff
and whether it is legally justified in view of the material
available on records ?
[For the sake of convenience, the parties would be referred
hereinafter as per their status shown and ranking given in
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the suit before the trial Court].
2. The suit property was originally owned by Narkohlin Bai, widow of
Ganga. She executed a Will in respect of the suit land in favour of the
plaintiff on 25.5.96 (Ex.P-2). The plaintiff filed a suit for declaration of
title and permanent injunction stating inter-alia that he is title-holder of
the suit land on the strength of Will dated 25.5.96 (Ex.P-2) executed
by Narkohlin Bai, yet defendants No.1 and 2, daughters of Narkohlin
Bai, are trying to dispossess him from the suit land.
3. Defendants No.1 and 2 set-up counter-claim with respect to the suit
property apart from other properties. The trial Court after appreciating
oval and documentary evidence available on record, by its judgment
and decree dated 30.8.2003, dismissed the suit of the plaintiff.
However, allowed the counter-claim preferred by defendants No.1 and
2 with respect to khasra Nos.259, 196 and 198. In appeal preferred by
the plaintiff, the first appellate Court partly allowed the appeal and
granted decree in favour of the plaintiff to the property, which is
subject-matter of Will, against which, this second appeal under Section
100 of the CPC has been preferred by the appellants/defendants, in
which substantial question of law has been formulated, which has
been set-out in the opening paragraph of this judgment.
4. Mr.V.K.Pandey, learned counsel for the appellants/defendants, would
submit that the first appellate Court is unjustified in holding that Will
dated 25.5.96 (Ex.P-2) allegedly executed by Narkohlin Bai in favour
of plaintiff-Kartik Das is proved in accordance with Section 63(c) of the
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Indian Succession Act, 1925 (hereinafter called "the Act of 1925")
read with Section 68 of the Indian Evidence Act, 1872 (hereinafter
called as "the Act of 1872") by recording a finding, which is perverse to
record and therefore, it is liable to be set aside.
5. Mr.A.K.Prasad, learned counsel for respondent No.1/plaintiff, would
support the impugned judgment and decree and submit that the first
appellate Court has rightly decreed the suit in favour of the plaintiff.
6. I have heard learned counsel for the parties herein and considered
their rival submissions made herein-above and went through the
record with utmost circumspection.
7. The short question for consideration is whether the Will (Ex.P-2) has
been proved and established by the plaintiff in view of the provisions
contained in Section 63 of the Succession Act, 1925 read with Section
68 of the Evidence Act, 1872.
8. It is trite law that a will as an instrument of testamentary disposition of
property being a legally acknowledged mode of bequeathing a
testator's acquisitions during his lifetime, to be acted upon only on
his/her demise, it is no longer res integra, that it carries with it an
overwhelming element of sanctity. [See Jagdish Chand Sharma v.
Narain Singh Saini (Dead) through Legal Representatives and
others 1.]
9. In order to consider the plea raised at the bar, it would be appropriate
to notice Section 63 of the Indian Succession Act, 1925 and Section
68 of the Evidence Act, 1872.
1 (2015) 8 SCC 615
4
10. Section 63 of the Act of 1925 provides as under:-
"63. Execution of unprivileged Wills.--Every testator, not
being a soldier employed in an expedition or engaged in
actual warfare, or an airman so employed or engaged, or a
mariner at sea, shall execute his will according to the
following rules:-
(a) The testator shall sign or shall affix his mark to the Will,
or it shall be signed by some other person in his presence
and by his direction.
(b) The signature or mark of the testator, or the signature of
the person signing for him, shall be so placed that it shall
appear that it was intended thereby to give effect to the
writing as a will.
(c) The will shall be attested by two or more witnesses,
each of whom 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 or 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 attestation shall be necessary."
11. As per the provisions of Section 63 of the Succession Act, 1925 for
due execution of a will (1) the testator should sign or affix his mark to
the will; (2) the signature or the mark of the testator should be so
placed that it should appear that it was intended thereby to give effect
to the writing as a will; (3) the will should be attested by two or more
witnesses; and (4) each of the said witnesses must have seen the
testator signing or affixing his mark to the will and each of them should
sign the will in the presence of the testator.
12. The above-stated provision of attestation of will under Section 63(c) of
the Succession Act, 1925 by two or more witnesses has been held to
be mandatory by Their Lordships of the Supreme Court in the matter
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of Janki Narayan Bhoir v. Narayan Namdeo Kadam 2.
13. Section 68 of the Evidence Act, 1872 provides as under:-
"68. Proof of execution of document required by law to
be attested.--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 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 (16 of 1908),
unless its execution by the person by whom it purports to
have been executed is specifically denied."
14. By the aforesaid provision, a document required by law to be attested
to have its execution proved by at least one of the attesting witnesses
if alive and it is subject to process of the court conducting the
proceedings involved and is capable of giving evidence. However,
proviso to Section 68 of the Evidence Act, 1872 is not available in
case of will.
15. In the matter of Girja Datt Singh v. Gangotri Datt Singh 3, Their
Lordships of the Supreme Court have held that in order to prove the
due attestation of will, the propounder of will has to prove that 'A' and
'B', the two witnesses saw the testator sign the will and they
themselves signed the same in the presence of the testator. Their
Lordships while considering Section 68 of the Evidence Act, 1872
further held that from the mere signature of two persons appearing at
the foot of the endorsement of registration of will it cannot be
2 (2003) 2 SCC 91
3 AIR 1955 SC 346
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presumed that they had appended their signature to the document as
an attesting witness or can be construed to have done so in their
capacity as attesting witness. It was pertinently observed as under:-
"In order to prove the due attestation of the will Ex. A-36
Gangotri would have to prove that Uma Dutt Singh and
Badri Singh saw the deceased sign the will and they
themselves signed the same in the presence of the
deceased. The evidence of Uma Dutt Singh and Badri
Singh is not such as to carry conviction in the mind of the
Court that they saw the deceased sign the will and each of
them appended his signature to the will in the presence of
the deceased. They have been demonstrated to be
witnesses who had no regard for truth and were ready and
willing to oblige Gur Charan Lal in transferring the venue of
the execution and attestation of the documents Ex. A-23
and Ex. A-36 from Gonda to Tarabganj for reasons best
known to themselves."
*****
"One could not presume from the mere signature of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri."
16. In the matter of H. Venkatchala Iyengar v. B. N. Thimmajamma and others 4 the Supreme Court speaking through Gajendragadkar, J., elaborately laid down the principles relating to the nature and standard of evidence required to prove a will. It was held as under:-
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of 4 AIR 1959 SC 443 7 wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, 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.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved.
That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances 8 the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
17. The principle laid down in the above-stated judgment has been followed with approval in Smt. Jaswant Kaur v. Smt Amrit Kaur and others 5, Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another 6, Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others 7 and Jagdish Chandra Sharma (supra).
18. In the matter of Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal Representatives and another 8, the Supreme Court has again reiterated the need of proving the attestation of will in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872.
19. In Surendra Pal (supra), the Supreme Court while re-stating the guidelines regarding the nature and extent of burden of proof on the propounder of a will held that propounder has to show that the will was signed by the testator; that he was at the relevant time in a sound 5 (1977) 1 SCC 369 6 (1974) 2 SCC 600 7 (2009) 4 SCC 780 8 (2017) 1 SCC 257 9 disposing state of mind; that he understood the nature and effect of the dispositions; that he put his signature to the testament of his own free will; and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. It was further held that in cases where the propounder has himself taken a prominent part in execution of a will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence.
20. The Supreme Court in Yumnam Ongbi Tampha Ibema Devi (supra) has clearly held that the attestation of will is not an empty formality. Highlighting the importance of attestation it was held it means signing a document for the purpose of testifying of the signatures of the executant. The attesting witness should put his signature on the will animo attestandi and it was held as under:-
"13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator."
21. In Janki Narayan Bhoir (supra), the Supreme Court while considering Section 63(c) of Succession Act, 1925 and Section 68 of the Evidence Act, 1872 held that mere proof of signature of the testator on the will was not sufficient, the attestation thereof is also to be proved as 10 required by Section 63(c) of the Act Succession Act, 1925. It was observed as under: -
"10. Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested 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 an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63 although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attention of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, 11 satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
22. The principle of law laid down in Janki Narayan Bhoir (supra) has been followed with approval in Jagdish Chandra Sharma (supra) by which it was held as under:-
"52. While dwelling on the respective prescripts of Section 63 of the Act and Sections 68 and 71 of Act 1872 vis-à-vis a document required by law to be compulsorily attested, it was held Janki Narayan Bhoir (supra) that if an attesting witness is alive and is capable of giving evidence and is subject to the process of the Court, he/she has to be necessarily examined before such document can be used in evidence. It was expounded that on a combined reading of Section 63 of the Act and Section 68 of the 1872 Act, it was apparent that mere proof of signature of the testator on the Will was not sufficient and that attestation thereof was also to be proved as required by Section 63 (c) of the Act. It was, however, emphasised that though Section 68 of the 1872 Act permits proof of a document compulsorily required to be attested by one attesting witness, he/she should be in a position to prove the execution thereof and if it is a Will, in terms of Section 63 (c) of the Act, viz., attestation by two attesting witnesses in the manner as contemplated therein. It was exposited that if the attesting witness examined besides his attestation does not prove the requirement of the attestation of the Will by the other witness, his testimony would fall short of attestation of the Will by at least two witnesses for the simple reason that the execution of the Will does not merely mean signing of it by the testator but connotes fulfilling the proof of all formalities required Under Section 63 of the Act. It was held that where the attesting witness examined to prove the Will Under Section 68 of 1872 Act fails to prove the due execution of the Will, then 12 the other available attesting witness has to be called to supplement his evidence to make it complete in all respects."
23. Reverting to the facts of the present case in light of the principle of law rendered by Their Lordships of the Supreme Court in the above-noted judgments (supra) qua execution and attestation of will by a testator, the following factual position would emerge on the face of record.
1. Testator Narkolhin executed a Will in respect of her property bearing khasra No.259 area 0.360 hectare in favour of plaintiff- Kartik Das excluding her two daughters i.e. defendants No.1 and 2 in presence of two attesting witnesses namely Parshuram (PW-2) and Ramsai (PW-3) and it remained unregistered.
2. Propounder - Kartik Das was also present at the time of execution of Will.
3. Both the attesting witnesses have been examined. Parshuram has been examined as PW-2. He has stated on oath before the Court that Will was read over to Narkolhin and thereafter she marked her thumb impression, thereafter Kartik Das signed the Will and thereafter he signed the Will. This witness did not state that other attesting witness Ramsai was present at the time when Will was executed by Narkolhin, but Ramsai (PW-3) in his cross-examination has clearly stated that Will was read over and thereafter testator - Narkolhin affixed her thumb impression and thereafter he and Parsuram signed the Will in presence of testator.
4. The reason for bequeathing the suit land in favour of the plaintiff 13 is that testator - Narkolhin and her husband Ganga have no male issue and the plaintiff performed last rituals of her husband and she also desire that her last rituals should also be performed by the plaintiff.
24. From the above-stated narration of facts, it is quite vivid that compliance of Section 63(c) of the Succession Act, 1925 is fully satisfied by examining two attesting witnesses, particularly Ramsai (PW-3) who has clearly stated that testator has signed the Will in presence of him and Parsuram (PW-3). Therefore, execution and attestation of Will is found established in accordance with law and the plaintiff has discharged his burden placed upon him by law to prove the attestation of Will.
25. So far as depriving defendants No.1 and 2 from the suit land is concerned, it is stated that Narkolhin has only bequeathed the part of suit land which she had, in lieu of the plaintiff performed last rituals of her husband and she also wished that her last rituals should also be performed by the plaintiff, therefore, exclusion of her daughters from the property for the aforesaid purpose cannot be said to be unnatural and it is quite natural and for that reason, Will cannot be said to be suspicious. The first appellate Court is justified in holding that Will is proved in accordance with Section 63(c) of the Act of 1925 read with Section 68 of the Act of 1872. I do not find any illegality in the said finding. The substantial question of law is answered in favour of the plaintiff and against the defendants.
26. The second appeal is liable to be and is hereby dismissed leaving the 14 parties to bear their own cost(s).
27. A decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal) Judge B/-