Chattisgarh High Court
Shiv Narayandied And Others vs Jaimangal And Others 65 Wpc/2638/2018 ... on 25 September, 2018
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
S.A.No.92/2001
Page 1 of 17
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.92 of 2001
Judgment reserved on: 20-9-2018
Judgment delivered on: 25-9-2018
1. Shiv Narayan (Died and deleted)
2. Bhagwanti (Died and deleted)
3. Ramgulam, S/o Shivnarayan, aged about 22 yr.
4. Jagjit, S/o Devmurat, aged about 50 yr.
All residents of Vill. Narayanpur, Teh. Surajpur, Distt. Surguja (C.G.)
(Defendants)
---- Appellants
Versus
1. Jaimangal (Died) Through LRs
(1a) Smt. Manti Bai, Wd/o Jai Mangal, aged about 35 years,
(1b) Ku. Premlata, D/o Late Jai Mangal, aged about 16 years,
(1c) Dinesh Kumar, S/o Late Jai Mangal, aged about 13 years.
No.1.b & 1.c minors, through natural guardian mother Smt. Manti
Bai.
All R/o Village Sarai-gahna, P.S. Baikunthpur, District Koriya (C.G.)
2. Shivmangal, S/o Mohan, aged about 30 yrs., R/o Village
Narayanpur, Teh. Surajpur, Distt. Surguja (C.G.)
3. Mohan (Died and deleted)
(Plaintiffs)
4. The State of M.P. (now the State of C.G.), through Collector,
Surguja, Ambikapur.
(Proforma Dfd)
---- Respondents
For Appellants: Mr. A.K. Prasad, Advocate.
For Respondents No.1a to 1c and 2: -
None present though served.
For Respondent No.4 / State: -
Mr. Arun Sao, Deputy Advocate General.
S.A.No.92/2001
Page 2 of 17
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Judgment
1. The substantial questions of law involved, formulated and to be
answered in the defendants' second appeal are as under: -
1. Whether the lower appellate court is right in holding
that the execution of will (Ex.D-1) has not been proved?
2. Whether the lower appellate court was justified in
reversing the judgment and decree passed by the trial
court in view of the evidence of DW-2, Mohan, regarding
execution of the will by its executor?
2. The plaintiffs / respondents herein filed a suit for declaration of title,
partition and separate possession in respect of the lands described
in Schedule A of the plaint stating inter alia that the suit property is
self-acquired property of one Sukhdev who died prior to the
Settlement of Surguja State. After his death, the suit land came in
ownership and possession of his son, the only successor, namely
Devmurat who also died in the year 1994. The settlement patta
was prepared in the name of Devmurat, father of plaintiff No.3.
Plaintiffs No.1 and 2 are sons of plaintiff No.3. It has been further
pleaded that Devmurat was having three sons namely Shivnarayan,
Mohan and Jagjit. After death of Devmurat, they got ⅓rd share in
the entire property of Schedule A. Since the defendants have
refused to give them the rights and partition in the said property and
got their names mutated, the plaintiffs have filed the suit and
alternatively, pleaded that the will in favour of the defendants is
forged and fabricated.
3. Defendants No.1 to 4 filed wirtten statement pleading inter alia that
Devmurat has executed a registered will dated 22-10-1984 in
S.A.No.92/2001
Page 3 of 17
favour of defendants No.2 to 4 as such, they are title holders of the
suit land.
4. The trial Court found the will to be established which was reversed
by the first appellate Court finding that the will has not been proved
in accordance with law against which the second appeal has been
preferred in which the substantial questions of law have been set-
out in the opening paragraph of the judgment.
5. Mr. A.K. Prasad, learned counsel appearing for the appellants/
defendants, would submit that the first appellate Court is absolutely
unjustified in holding that the will Ex.D-1 was not duly proved in
accordance with law, whereas it has been proved in accordance
with law by examining Mohan Ram Sahu (DW-2), who has clearly
stated that the testator has signed the will in his presence and he
has also signed in presence of the testator and in cross-
examination, he has also stated that other witness Mohd. Safique
has also signed the will, as such, the requirement of Section 63 of
the Succession Act, 1925 is duly met-out. He relied upon a
decision of the Supreme Court in the matter of M.B. Ramesh
(dead) by LRs. v. K.M. Veeraje Urs (dead) by LRs. and
others 1, a decision of this Court in the matter of Dayashankar and
others v. Jaishankar (since deceased) through his L.Rs. and
others 2 and a decision of the Gauhati High Court in the matter of
Damodhar Bordoloi v. Mrinalini Devi Trust Board and others 3
to buttress his submission.
1 (2013) 7 SCC 490
2 2012(2) C.G.L.J. 518
3 AIR 1999 Gauhati 53
S.A.No.92/2001
Page 4 of 17
6. None has appeared on behalf of the plaintiffs despite service of
notice.
7. I have heard learned counsel for the appellants herein and
considered their rival submissions made herein-above and went
through the record with utmost circumspection.
8. The short question for consideration is whether the will Ex.D-1 has
been proved and established by defendants No.2 to 4 in view of the
provisions contained in Section 63 of the Succession Act, 1925
read with Section 68 of the Evidence Act, 1872.
9. 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 4.]
10. 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.
11.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.
4 (2015) 8 SCC 615
S.A.No.92/2001
Page 5 of 17
(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."
12. 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.
13. 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 of Janki Narayan Bhoir v. Narayan Namdeo Kadam 5.
14. 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:
5 (2003) 2 SCC 91
S.A.No.92/2001
Page 6 of 17
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."
15. 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.
16. In the matter of Girja Datt Singh v. Gangotri Datt Singh 6, 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
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
6 AIR 1955 SC 346
S.A.No.92/2001
Page 7 of 17
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."
17. In the matter of H. Venkatchala Iyengar v. B. N. Thimmajamma and others 7 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 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 7 AIR 1959 SC 443 S.A.No.92/2001 Page 8 of 17 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 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."
18. The principle laid down in the above-stated judgment has been S.A.No.92/2001 Page 9 of 17 followed with approval in Smt. Jaswant Kaur v. Smt Amrit Kaur and others 8, Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another 9, Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others 10 and Jagdish Chandra Sharma (supra).
19. In the matter of Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal Representatives and another 11, 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.
20. 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 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 8 (1977) 1 SCC 369 9 (1974) 2 SCC 600 10 (2009) 4 SCC 780 11 (2017) 1 SCC 257 S.A.No.92/2001 Page 10 of 17 remove by clear and satisfactory evidence.
21. 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."
22. 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 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 S.A.No.92/2001 Page 11 of 17 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, 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."
23. The principle of law laid down in Janki Narayan Bhoir (supra) has S.A.No.92/2001 Page 12 of 17 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 the other available attesting witness has to be called to supplement his evidence to make it complete in all respects."
24. 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 Shri Devmurat executed a will in respect of his properties in favour of defendant No.2 (his elder son's wife), S.A.No.92/2001 Page 13 of 17 defendant No.3 (his grandson) and defendant No.4 (son) jointly, excluding his middle son Mohan (plaintiff No.3) on 22- 10-1984 and got it registered in the office of the Sub- Registrar, Surajpur.
2. The will is said to be attested by two witnesses namely Mohanram Sahu (DW-2) and Safique Mohd. (not examined) and scribed by B.N. Choubey (not examined).
3. Ramgulam (defendant No.3), one of the propounders of the will, was present at the time of execution of will.
4. One of the attesting witnesses Mohanram Sahu was examined on behalf of the defendants as DW-2. He stated that at the time of execution of will, testator (Devmurat) was of sound and disposing mind. He has also stated that the testator affixed his thumb mark on the will after getting it written by one Choubey Mukhtar and thereafter got it registered. He also signed as a witness.
5. In cross-examination, Mohanram Sahu (DW-2) has stated that another attesting witness namely Safique Mohammad had also signed the will. He did not state that the testator had signed the will in presence of Safique Mohammad and Safique Mohammad signed in presence of the testator. He also omitted to state that other attesting witnesses had seen the testator signing / putting his thumb impression on the will.
25. From the above-stated narration of facts, it is quite vivid that compliance of Section 63(c) of the Succession Act, 1925 is missing S.A.No.92/2001 Page 14 of 17 though strict compliance of the said provision is imperative. Defendants No.2 to 4 being propounders of the will must have proved that the testator has signed the will in presence of Safique Mohammad and Safique Mohammad has also signed in presence of the testator. Section 63(c) of the Succession Act, 1925 clearly lays down the requirement of valid and enforceable will that it shall be attested by two or more witnesses, each of them has seen the testator signing or affixing his mark to the will and each of the witnesses has signed the will in presence of the testator as held by the Supreme Court in H. Venkatachala Iyengar (supra) that a will has to be proved like any other document except that evidence tendered in proof of will should additionally satisfy the requirement of Section 63 of the Succession Act, 1925 apart from under Section 68 of the Evidence Act, 1872.
26. Analysing the facts of the present case, it would appear that defendants No.2 to 4 - propounders of the will, have failed to prove the attestation of will in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of Evidence Act, 1872, as one of the attesting witnesses Mohanram Sahu (DW-2) examined before the Court did not state before the Court that the testator - Devmurat signed the will in presence of another attesting witness Safique Mohammad and the said witness marked his affix in presence of the testator and mere signing of a will as a witness would not per se amount to compliance of Section 63(c) of the Succession Act, 1925 as animo attestandi is absolutely missing. In the matter of Bhagat Ram v. Suresh 12, it has been held that to be 12 (2003) 12 SCC 35 S.A.No.92/2001 Page 15 of 17 an attesting witness it is essential that the witness should have put his signature animo attestandi for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature. Therefore, this Court is fully satisfied that execution and attestation of will is not found established in accordance with law and defendants No.2 to 4 have failed to discharge their burden placed upon them by law to prove attestation of a will.
27. Faced with this situation, Mr. Prasad, learned counsel appearing on behalf of the defendants, relied upon the decision of the Supreme Court in M.B. Ramesh (supra). In that case, Their Lordships of the Supreme Court invoked and applied Section 71 of the Evidence Act, 1872 and held that deficiency can be taken care of by looking to other evidence / attendant circumstances placed on record which is permissible under Section 71 of the Evidence Act. It was pertinently held as under: -
"25. The issue of validity of the will in the present case will have to be considered in the context of these facts. It is true that in the case at hand, there is no specific statement by PW 2 that he had seen the other attesting witness sign the will in the presence of the testatrix, but he has stated that the other witness had also signed the document. He has proved his signature, and on the top of it he has also stated in the cross-examination that the other witness (Mr. Mallaraje Urs), Smt Nagammani, himself and one Sampat Iyanger and the writer of the will were all present while writing the will on 24-10-1943 which was registered on the very next day. This statement by implication and inference will have to be held as proving the required attestation by the other witness. This statement along with the attendant circumstances placed on record would certainly constitute proving of the will by other evidence as permitted by Section 71 of the Evidence Act."
28. In order to consider the plea, it would be appropriate to notice S.A.No.92/2001 Page 16 of 17 Section 71 of the Evidence Act, 1872 which reads as follows: -
"71. Proof when attesting witness denies the execution.--If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
29. In Janki Narayan Bhoir (supra), the Supreme Court considered the inter-relation between Section 63(c) of the Succession Act, 1925 and Sections 68 & 71 of the Evidence Act, 1872. In that matter, the other attesting witness though alive and available was not examined. Their Lordships held as under: -
"9. ... that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory.
11. ... Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. ...
12. ... Section 71 has no application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the will and the other attesting witness though available has not been examined."
30. In the present case also, one attesting witness Mohanram Sahu (DW-2) was summoned and examined to prove the attestation of will, which was legally permissible as per Section 68 of the Evidence Act, 1872, but he had failed to prove the due attestation of will as held herein-above and other attesting witness namely Safique Mohammad though available has not been examined for the reason best known to the defendants, therefore, Section 71 of the Evidence Act, 1872 would not be applicable to the facts of the present case and, therefore, the principle of law laid down in M.B. Ramesh (supra) would not be applicable and clearly S.A.No.92/2001 Page 17 of 17 distinguishable.
31. Consequently, I hold that the first appellate Court is absolutely justified in holding that defendants No.2 to 4 being the propounders of will have failed to establish due attestation of will in accordance with Section 63(c) of the Succession Act, 1925 and Section 68 of the Evidence Act, 1872, the said finding recorded by the first appellate Court is hereby re-affirmed.
32. As a fallout and consequence of the above-stated discussion, the substantial questions of law framed are answered against the defendants and in favour of the plaintiffs and this second appeal is dismissed accordingly leaving the parties to bear their own cost(s).
33. A decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal) Judge Soma