Jharkhand High Court
Satya Prakash Keshri vs Arun Prasad Keshri on 4 July, 2022
Author: Anil Kumar Choudhary
Bench: Anil Kumar Choudhary
1
M.A. No. 272 of 2009
IN THE HIGH COURT OF JHARKHAND AT RANCHI
M.A. No.272 of 2009
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1. Satya Prakash Keshri
2. Aditya Prakash Keshri
3. Dibya Prakash Keshri
4. Yagya Prakash Keshri (All sons of Sri Basant Kumar Keshri, resident of Village -Mohalla Choudharana Bazar, Garhwa, P.O., P.S. & District -Garhwa .... .... .... Appellants Versus
1. Arun Prasad Keshri
2. Binod Kumar Keshri (Both sons of Late Gauri Shankar Gupta, resident of Village -Keshri Mohalla, P.O., P.S. & District -Garhwa) .... .... .... Respondents
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For the Appellants : Mr. V.P. Singh, Sr. Advocate
: Mrs. Rashmi Kumar, Advocate
: Ms. Bandana Kumari Sinha, Advocate
For the Respondents : Mr. Jai Prakash, Sr. Advocate
: Ms. Omiya Anusha, Advocate
PRESENT
HON'BLE MR. JUSTICE ANIL KUMAR CHOUDHARY
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By the Court:-
1. Heard the parties.
2. This appeal has been preferred against the judgment and decree dated 28.11.2008, passed by the 1st Additional District Judge, Garhwa in Title Suit No. 3 of 2006 whereby and where under the learned court below ordered that the plaintiffs are not entitled for grant of Probate or Letter of Administration of the Will filed by them.
3. The brief facts of the case is that according to the plaintiffs the deceased Gouri Shankar Gupta in full sense and under sound mind has executed a Will annexed with the plaint at Garhwa in respect of the property described in Schedule -A of the plaint on 11.10.2001 in presence of two attesting witnesses namely Basudeo Prasad (P.W.3) and Md. 2 M.A. No. 272 of 2009 Halim Khan (P.W.2). The Will was scribed by Md. Israr Khan (P.W.1) and was duly registered on 11.10.2001 in the office of Registrar. The plaintiffs are the grandsons of the testator and they were looking after the testator-Gouri Shankar Gupta with great love and affection. Accordingly, the testator -Gouri Shankar Gupta executed the Will for his property. It is further the case of the plaintiff, that after the death of the testator, the plaintiffs are in possession of the property of the testator. It is the further case of the plaintiffs that they spent a sum of Rs.2,00,000/- in the Shradha of the testator. It is undisputed fact that the alleged testator
-Gouri Shankar Gupta left behind his three sons namely Basant Kumar Keshri -father of the plaintiffs-appellants, Arun Kumar Keshri and Binod Kumar Keshri. Both Arun Kumar Keshri and Binod Kumar Keshri and two daughters namely Madhuri Devi and Veena Devi are the defendants of the suit. It is also the undisputed fact that the testator had his wife living at the time of execution of the Will and the testator pre-deceased his wife. The defendants besides the technical pleas, pleaded that the Will is shrouded with suspicious circumstances and the plaintiffs - profounder of the Will were not in a position to explain the suspicion. The defendants further pleaded that the father of the plaintiffs namely Basant Kumar Keshri has got created the Will by the testator, by using pressure and coercion, if at all the said Will is executed by the testator. It is the specific plea of the defendants that the testator-Gouri Shankar Gupta has neither executed the alleged Will nor there was any necessity for creation of such a Will. It is then pleaded by the defendants that Gouri Shankar Gupta used to live with the defendant -Binod Kumar Keshri in the same house and Binod Kumar Keshri and his family members used to look after Gouri Shankar Gupta, who was a very old 3 M.A. No. 272 of 2009 man and was not in a position to understand anything. Gouri Shankar Gupta was bed ridden and was not able to speak or move. It is, the case of the defendants that in the month of October, 2001, the defendant - Binod Kumar Keshri along with his family members had gone to his father-in-law's house at Munger and requested -Basant Kumar Keshri to look after Gouri Shankar Gupta in his absence and taking advantage of the absence of Binod Kumar Keshri, Basant Kumar Keshri played fraud upon Gouri Shankar Gupta and got the Will prepared in the name of his sons in connivance with some professional Deed Writers and Taeeds. It is then submitted that though there were several relatives and well-wishers of the alleged testator -Gouri Shankar Gupta, if at all the said alleged testator had to execute any Will, he must have contacted his relatives and well-wishers. Another ground for suspicion regarding execution of the Will pleaded was that the testator did not give any property to his old wife. It is also the case of the defendants that the defendant no.2 -Binod Kumar Keshri performed the last rites of Late Gouri Shankar Gupta and the cost of funeral and Shradha was borne by all the three defendants. Hence, it was pleaded that the suit ought not to be allowed.
4. After considering the rival pleadings, the learned court below framed the following five issues :
1. Whether the suit filed by the plaintiff is maintainable in its present form?
2. Whether plaintiffs have proper cause of action for filing the suit?
3. Whether Gouri Shankar Gupta was able to execute the alleged Will out of his free will and free mind?4 M.A. No. 272 of 2009
4. Whether the Will filed along with the plaint is a genuine Will executed by Late Gouri Shankar Gupta and has been properly attested by two witnesses?
5. Are the plaintiffs entitled for the reliefs claimed?
5. In support of their contention, the plaintiffs examined seven witnesses besides proving the documents which were marked Ext. -1 to Ext. -1/3 and Ext. -2. From the side of the defendants also four witnesses were examined.
6. The learned trial court after considering the evidence in the record first took up issue no.3 and came to the conclusion that certainly there appear suspicious circumstances with regard to the fact that, Late Gouri Shankar Gupta went to court himself and got prepared the Will by the Scribe and produced it for registration before the Registrar. The learned trial court thereafter took up issue no.4 and considering the evidence in the record that the testator was living jointly with his sons and there was no partition amongst them, it went on to a conclusion that the plaintiffs failed to produce witnesses who can be treated as attesting witnesses and held that the attestation by P.W.2 and P.W.3 cannot be held to be lawful. Thereafter, the learned court below took up issue nos. 1, 2 & 5 together and held that the Will was executed in respect of a joint property and held that the suit is not maintainable and there is no cause of action for the plaintiffs filing the case and the plaintiffs are not entitled to any relief and dismissed the suit.
7. Mr. V.P. Singh, the learned senior counsel for the appellants submits that since the Will in question was a registered document being registered in the office of the Registrar, the presumption to be drawn is that the Registrar conducted an enquiry before registering the said Will 5 M.A. No. 272 of 2009 as envisaged under Section 34 of the Registration Act, 1908. It is next submitted by Mr. Singh relying upon the Judgment of Hon'ble Supreme Court of India, in the case of Kanwarjit Singh Dhillon vs. Hardyal Singh Dhillon and Ors., reported in AIR 2008 SC 306, para-10 of which reads as under:-
"10. Xxxxxxxxxxx It is well settled law that the functions of a probate Court are to see that the Will executed by the testator was actually executed by him in a sound disposing state of mind without coercion or undue inference and the same was duly attested. It was, therefore, not competent for the probate Court to determine whether late S. Kirpal Singh had or had not the authority to dispose of the suit properties which he purported to have bequeathed by his Will. The probate Court is also not competent to determine the question of title to the suit properties nor will it go into the question whether the suit properties bequeathed by the Will were joint ancestral properties or acquired properties of the testator." (Emphasis supplied) that probate court is not competent to determine the question of title to the suit property nor it is entitled to go into the question whether suit property is bequeathed by the Will were joint ancestral properties or acquired properties of the testator. Hence, it is submitted that the learned trial court erred by holding that the suit is not maintainable only because the property in respect of which the Will was executed was the joint ancestral property of the testator with his co-
sharers. It is further submitted by Mr. Singh that the learned court below totally erred in properly appreciating the record in its proper perspective. It is further submitted by Mr. Singh that since the defendants have not specifically pleaded that the Will does not bear the signature of the testator, so it is not open for them to question the signature put by the testator on the Will and as such, the trial court has committed an error by going into details to come to the conclusion that the signature of the testator on the Will does not appear to be affixed by 6 M.A. No. 272 of 2009 the testator himself. It is further submitted by Mr. Singh that the learned court below erred by failing to consider that the testator was identified by his son-P.W.5 -Basant Kumar Keshri before the Registrar at the time of registration of the Will. It is next submitted by Mr. Singh that as the evidence in the record is sufficient to establish that the requirement of Section 63 and 68 of the Indian Succession Act, 1925 is complete, hence the learned trial court ought to have probated the Will. Hence, it is submitted that the impugned judgment and decree passed by the learned trial court be set aside and the probate of the will be granted. It is next submitted that the learned trial court by not considering the application dated 06.10.2007, filed by the respondent no.1 -Arun Prasad Keshri wherein he prayed to allow the probate of the Will in favour of the appellants admitting that the Will was duly executed by his late father Gouri Shankar Gupta committed grave error in law. Mr Singh lastly submits that the impugned judgment of the learned trial court be set aside and the probate of Will as sought for be allowed.
8. Mr. Jai Prakash, the learned senior counsel for the respondent- defendants on the other hand defended the impugned judgment and decree and submitted that the execution of the Will is surrounded with suspicion. It is next submitted by Mr. Jai Prakash, that the witnesses of the Will cannot be termed as animo attestendi. It is then submitted that as has rightly been held by the learned trial court, the alleged signature of the testator on the Will is totally different from his admitted signatures which have also been marked exhibits. It is then submitted by Mr. Jai Prakash that the defendants have categorically pleaded that the Will was not executed by the alleged testator -Gouri Shankar Gupta, so the fact that Gouri Shankar Gupta has not signed the Will is the evidence of the 7 M.A. No. 272 of 2009 pleading of the defendants that Gouri Shankar Gupta has not executed the Will, hence no fault can be found which the learned trial court in saying in so many words that the signature claimed to be that of the testator on the will is not genuine. Hence the trial court in discharge of the duties cast upon it by the statute has verified the genuineness of the execution of the will has considered the variations in the signature claimed to be put by the testator on the will and his admitted signature, on different grounds as specifically mentioned in the impugned judgment itself. It is next submitted by Mr. Jai Prakash that the fact that if the Will is to be treated as genuine, then as the testator has excluded and deprived of his old wife from any of the properties and there is no any provision for the beneficiaries of the Will to look after her creates a grave doubt about the genuineness of the Will as no sane person can do so by leaving his old wife in lurch at the fag end of his life when the wife has also no independent source of earning or sustenance, more so when there is no plausible explanation for the same. Mr. Jai Prakash further submits that involvement of the father of the plaintiffs by signing as a witness in the Will is another ground which creates suspicion about the genuineness of the Will. Mr. Jai Prakash further submits that undisputedly all the sons of the alleged executor of the Will were living in joint mess but as the time for execution of the Will was chosen when none of the sons of the alleged testator were in the town and only the father of the plaintiffs was there and none of the relatives of the alleged testator were either informed or made animo attestendi witnesses also creates a grave doubt regarding execution of the Will. Mr. Jai Prakash further files the certified copy of the order dated 27.06.2019 in F.A. No. 108 of 2017 and submits that the same is a certified copy of a public 8 M.A. No. 272 of 2009 document and can be looked into by this Court and this Court can take judicial note of the same and submits that the said appeal was filed by the father of the plaintiffs against the judgment and decree passed by the trail court by directing partition of the selfsame property, in respect of which Will has been executed; between the sons of the said Gouri Shankar Gupta and the said appeal though was filed in the High Court but subsequently remitted to the court of Principal District Judge consequent upon the pecuniary jurisdiction of the District Judge having been increased to Rs.25,00,000/- in respect of pecuniary jurisdiction to entertain appeals. It is next submitted by Mr. Jai Prakash that there is reference in the testimony of the witnesses about the pendency of a partition suit between the parties and submits that the certified copy of the order filed in this appeal by the appellant, is related to the appeal in connection with the judgment and decree passed in Partition Suit No. 20 of 2006, passed by the Civil Judge (Sr. Division) -II, Garhwa dated 18.01.2017 by which partition of the property which is the subject matter of the Will has been granted by the Civil Judge (Sr. Division) -II, Garhwa; between the father of the plaintiffs and the respondents of this appeal. It is next submitted by Mr. Jai Prakash that the witness - Md. Halim Khan (P.W.2) has categorically stated that he signed the Will on being told by a Taeed obviously meaning thereby not by the testator, hence he cannot be certainly termed as the animo-attestendi witness, moreover, there are lots of discrepancies and contradictions in the statement of the witnesses examined by the plaintiffs and under such circumstances, the learned trial court has rightly held that the plaintiffs are not entitled for grant of Probate or Letter of Administration in respect of the Will.
9M.A. No. 272 of 2009
9. Relying upon the Judgment of Hon'ble Supreme Court of India in the case of Benga Behera and Another vs. Braja Kishore Nanda and Others, reported in (2007) 9 SCC 728 paragraph nos. 34 to 36 and 38,40 to 41 of which reads as under:
"34. A question has also been raised as to whether a certificate by Sub-Registrar at the time of registration proves attestation. A Sub- Registrar in the matter of registration of a document acts under the provisions of the Registration Act, 1908 (the 1908 Act). Section 52 of the 1908 Act prescribes the duty of Registering Officer when a document is presented in terms thereof. The signature of every person presenting a document for registration is required to be endorsed on every such document at the time of presentation. Section 58 prescribes the particulars to be endorsed on documents admitted for registration, such as:
(a) signature of the person admitting the execution of the document;
(b) any payment of money or delivery of goods made in presence of Registering Officer in reference to the execution of the document shall be endorsed by the Registering Officer in the document presented for registration.
Therefore this is the only duty cast on the registering authority to endorse on the will i.e. to endorse only the admission or execution by the person who presented the document for registration. The compliance with this provision leads to the legal presumption that the document was registered and nothing else.
35. If an authority in performance of a statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Property Act and Section 63 of the Succession Act. The term "attestation" means:
to "attest" is to bear witness to a fact. The essential conditions of valid attestation are (i) two or more witnesses have seen the executant sign the instrument; (ii) each of them has signed the instrument in presence of the executant.
36. "Animus attestandi" is a necessary ingredient for proving the attestation. If a person puts his signature in a document only in discharge of his statutory duty, he may not be treated to be an attesting witness.
38. In Dharam Singh v. Aso [1990 Supp SCC 684] this Court held: (SCC p. 685, paras 2-3) "2. The two attesting witnesses did not support the execution of the will. The trial court relied upon the statement of the registering authority and on the basis of decisions of the Lahore and Punjab and Haryana High 10 M.A. No. 272 of 2009 Courts found that the will had been proved. The lower appellate court reversed the decision by relying upon two decisions of this Court in M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons [(1969) 1 SCC 573] and Seth Beni Chand v. Kamla Kunwar [(1976) 4 SCC 554] .
3. We have examined the record and are satisfied that the appellate court and the High Court were right in their conclusion that the Registrar could not be a statutory attesting witness. Therefore, the conclusion that the will had not been duly proved cannot be disturbed."
40. It is now well settled that requirement of the proof of execution of a will is the same as in case of certain other documents, for example gift or mortgage. The law requires that the proof of execution of a will has to be attested at least by two witnesses. At least one attesting witness has to be examined to prove execution and attestation of the will. Further, it is to be proved that the executant had signed and/or given his thumb impression in presence of at least two attesting witnesses and the attesting witnesses had put their signatures in presence of the executant. (See Madhukar D. Shende v. Tarabai Aba Shedage [(2002) 2 SCC 85] ; Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91] and Bhagat Ram v. Suresh [(2003) 12 SCC 35] .)
41. The Court granting letters of administration with a copy of the will annexed or probate must satisfy itself not only about the genuineness of the will but also satisfy itself that it is not fraught with any suspicious circumstances." (Emphasis supplied) Mr. Jai Prakash, the learned senior counsel for the respondents submits that in view of Section 52 and 58 of the Registration Act, 1908, the only duty cast upon the registering authority is to endorse the admission or execution by the person who presented the document for registration. The compliance with that provision leads to the legal presumption that the document was registered and nothing else. If an authority in performance of his statutory duty signs a document, he does not become an attesting witness within the meaning of Section 3 of the Transfer of Properties Act and Section 63 of the Indian Succession Act, 1925 as the word 'attest' is to bear witness to a fact. It is then submitted that the essential condition of valid attestation are that two or more witnesses have seen the executant signed the instrument and each of 11 M.A. No. 272 of 2009 them have signed the instrument in presence of the executants animo attestandi and the same is the necessary ingredient of proving the attestation. It is next submitted by Mr. Jai Prakash that in the case of Benga Behera and Another vs. Braja Kishore Nanda and Others (supra), it has also been held by the Hon'ble Supreme Court of India that the court granting Letters of Administration with a copy of the Will annexed or probate must satisfy itself not only about the genuineness of the Will but also satisfy itself that it is not fraught with any suspicious circumstances and existence of suspicious circumstances itself may be held to be sufficient to arrive at a conclusion that the execution of the Will has not been duly made.
10. Mr. Jai Prakash, the learned senior counsel for the respondents next relied upon the Judgment of Hon'ble Supreme Court of India in the case of H. Venkatachala Iyengar vs. B.N. Thimmajamma and Others, reported in AIR 1959 SC 443, paragraph nos. 19 to 22 of which reads as under:
"19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.12 M.A. No. 272 of 2009
20. There may, however, be cases in which the execution of the will may be surrounded by suspicions circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that, if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter.
21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mention the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would, in our opinion, be purely technical and academic, if not pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Court is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on wills, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a propounder of the will has to prove the due and valid execution of the will and 13 M.A. No. 272 of 2009 that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (A I R 1946 P C 156) "where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth," It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilent, cautious and circumspect."
and submitted that unlike other documents, Will speaks from the death of the testator and in cases in which the execution of the Will is surrounded by suspicious circumstances such as the alleged signature of the testator may be very shaky and doubtful and the evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature, the condition of testator's mind may appear to be very feeble and debilitated and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator, the dispositions made in the Will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or, the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind and in such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last Will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus upon the propounder of the Will very heavy; and, unless it is satisfactorily discharged, Courts would be reluctant to treat the document as the last 14 M.A. No. 272 of 2009 Will of the testator.
11. Mr. Jai Prakash, the learned senior counsel for the respondents next relied upon the Judgment of Hon'ble Supreme Court of India in the case of A. Raghavamma and another v. A. Chenchamma and another, reported in AIR 1964 SC 136 paragraph no. 25 of which reads as under:
"25. Now we shall proceed to deal with the will, Ex. A-2 (a) on which strong reliance is placed by the learned Advocate-General in support of his contention that on January 14, 1945, that is, the date when the Will was executed, Chimpirayya must be deemed to have been divided in status from his grandson Subbarao. A will speaks only from the date of death of the testator. A member of an undivided coparcenary has the legal capacity to execute a will; but he cannot validly bequeath his undivided interest in the joint family property. If he died an undivided member of the family, his interest survives to the other members of the family, and therefore, the will cannot operate on the interest of the joint family property. But if he was separated from the family before his death, the bequest would take effect. So, the important question that arises is whether the testator in the present case became separated from the joint family before his death." (Emphasis supplied) And submits that a principle of law has been settled therein that a member of an undivided coparcenary has the legal capacity to execute a Will but he cannot validly bequeath his undivided interest in the joint family property and if the testator dies as an undivided member of the family his interest survives to the member of the family and therefore the Will cannot operate on the interest on the joint family property of course if he was separated from the family before his death, the bequeath would take effect and submitted that in this case, as the testator has died as an undivided member of the joint Hindu family, the Will cannot operate in the interest of the joint family property.
12. Mr. Jai Prakash, the learned senior counsel for the respondents next relied upon the Judgment of Hon'ble Supreme Court of India in the case of Bhagwan Kaur w/o Bachan Singh v. Kartar Kaur w/o Bachan Singh and Others, reported in (1994) 5 SCC 135, paragraph nos. 4, 7 and 15 M.A. No. 272 of 2009 8 of which reads as under:
"4. Decision on due execution of will, strictly speaking, is not primarily arriving at a finding of fact, as it has an admixture of law due to the specific requirements of Section 63 of the Indian Succession Act, 1925 towards due execution. A method is proceeded (sic provided) in which a will shall be duly executed. It inter alia provides that 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 acknowledgment 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. In the matter of proof of a will Section 68 of the Indian Evidence Act, 1872 enjoins that 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. Proviso thereto states 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.
7. This witness too contradicted his earlier statement. Should the evidence of these two witnesses be discarded, as it is capable of being discarded, then due execution of the will cannot be said to have been proved. The endorsement Ex. D-1/A made by the Sub-Registrar, Gyan Chand Jain, DW 3 to the effect that the endorsement D-1/A was made in his presence and in the presence of the witnesses and that the witnesses signed the said endorsement in the presence of Bachan Singh does not satisfy the requirements of Section 63 of the Indian Succession Act and does not reach up to the level of proof as required under Section 68 of the Indian Evidence Act. Therefore, the mere registration of will said to have been executed by Bachan Singh is of no consequence.
8. The High Court took support for its view from the fact that the testator was a clerk of a lawyer, presumably knowing the intricacies of law, and that since he died about 4 years later that left no room for suspicion to the due execution of the will. The High Court, however, ignored two important suspicious circumstances those being--
(i) the legatee took active part in the execution of the will; and
(ii) no provision was made in the will for the two widows of the testator, when one of whom, the appellant, was not even related to the legatee.
The pious wish expressed by the High Court that it was expected of the legatee to look after the welfare of the appellant was, according to us, of no consequence. Had these two suspicious circumstances been kept in mind by the High Court, we have no doubt that the finding of fact disturbed by the High Court would not have occasioned in the totality of 16 M.A. No. 272 of 2009 circumstances. Thus, we have no option, but to upset the decision of the High Court." (Emphasis supplied) And submits that where the evidence of the witnesses are not acceptable, as such due execution is not proved, the endorsement made by the Registrar does not satisfy the requirement of Section 63 of the Indian Succession Act, 1925 and does not reach up the level of proof required under Section 68 of the Evidence Act, hence mere registration of the Will is of no consequence and as the Hon'ble Supreme Court of India in that case also observed that having regard to the suspicious circumstances, the High Court erred in disturbing the finding of fact regarding due execution of Will arrived at by the trial court. Hence, it is submitted by Mr. Jai Prakash that as in this case, the learned trial court for cogent reasons having rightly disbelieved the due execution of the Will by the said Gouri Shanka Gupta and as the deceased died in joint mess so the bequeath Will not take effect therefore, the learned trial court has rightly dismissed the suit. Hence, it is submitted that this appeal being without any merit be dismissed.
13. Having heard the submissions made at the Bar and after going through the materials in the record, this Court is of the considered view that the only point for determination that crop up in this appeal is:
"Whether the learned trial court has rightly appreciated the evidence in the record to arrive at a conclusion being not satisfied about due execution of the Will by the alleged testator namely Gouri Shankar Gupta?"
14. Out of the witnesses examined by the rival parties, P.W.1 -Md. Israr Khan is the scribe of the will. He has stated about Gouri Shankar Gupta having come to him with his grandson meaning thereby one of the plaintiffs on 11.10.2001 for preparing a Will. At the time of the execution 17 M.A. No. 272 of 2009 of the Will, Basudeo Prasad- Taeed and Md. Halim Khan- Taeed became the witnesses of the Will and put their signatures in presence of the P.W.1. Gouri Shankar Gupta signed each page of the Will in presence of the P.W.1 and on being proved by him, the Will was marked Ext.1. In his cross-examination, the P.W.1 has stated that on 15.05.2007 he deposed on affidavit filed in shape of examination-in-chief and on that date he did not see the original Will. The brother and nephew of Gouri Shankar Gupta are residing at Garhwa town. The son of the alleged testator namely Binod Keshri is also residing in the same house with Gouri Shankar Gupta. At the time of execution of the Will, Basant Kumar Keshri and Gouri Shankar Gupta came. They came with a draft prepared by them which was handed over by Gouri Shankar Gupta to the P.W.1.
15. P.W.2 -Md. Halim Khan is a deed writer by profession. He has stated that the plaintiffs are the grandson of Gouri Shankar Gupta. On 11.10.2001, Gouri Shankar Gupta came to execute the Will in respect of his right of an immovable property in the name of his grandsons. In his examination in chief, filed in the shape of an affidavit, he has stated about the execution of a Will by Gouri Shankar Gupta. In his cross- examination, he has stated that he is a professional Taeed and Deed Writer in Civil Court, Garhwa and by the time of his adducing evidence in the Court, he was witness in thousands of deeds. In para-11, he has stated that he becomes the witness to help the scribes and as a professional, he became the witness of Ext. -2 and put his signature. In para-12, he has stated that on being told by the P.W.1, P.W.2 and Gouri Shankar Gupta together signed on the deed. In para-26, he has stated that prior to this Will, he did not have any conversation with Gouri Shankar Gupta in respect of the Will. In para-29, he has categorically stated that 18 M.A. No. 272 of 2009 he did not see, as per whose instruction, the Will was drafted and written. The deed of Will was placed before the P.W.2 between 11:00 - 11:30 A.M. for being witness. First the P.W.2 and thereafter the P.W.3 signed as witness. He did not remember, in how many pages of the Will, Gouri Shankar Gupta signed.
16. P.W.3 -Basudeo Prasad is the other witness of the deed. He is also a Deed Writer by profession. In his examination in Chief filed in the shape of an affidavit, he has stated about the Will being executed in his presence and he is the witness of the Will. In his cross-examination, he has stated that being a Taeed professionally, he signs as witness on the deeds and in this deed of will also, he has signed in his professional capacity. At the time of the scribing of the Will or prior to that, he did not have any conversation with Gouri Shankar Gupta. The scribe wrote the will and showed to the P.W.3 and he signed it. In para-8, he has stated that he only put one signature on the original deed and the second signature on the copy of the same.
17. P.W.4 -Paras Nath Keshri is the nephew of Gouri Shankar Gupta by relation and he deposed that Gouri Shankar Gupta told him about executing the Will in favour of the plaintiffs and getting the same registered; about six months prior to his death. In his cross-examination, he has stated that he does not remember as to how many days prior to the death of Gouri Shankar Gupta, the P.W.4 met him. In para-10, he has stated that at the time of his deposing, he was involved in 8-10 cases which were pending in court.
18. P.W.5 -Basant Kumar Keshri is the father of the plaintiffs. In his examination-in-chief filed in the shape of an affidavit, he has stated about execution of the Will by his father in favour of his sons and about 19 M.A. No. 272 of 2009 registration of the same. In para-6, he has stated that one partition suit was pending in the court of Sub-Judge, Garhwa for the land in respect of which, the will has been executed. It is pertinent to mention here that the P.W.5 was cross-examined in court on 19.07.2008 and the P.W.5 appeared in the said partition suit. In para-11, he has admitted that the property in respect of which, the Will has been executed was purchased by his grandfather who is the father of Gouri Shankar Gupta. He does not know whether, Gouri Shankar Gupta- his father was having one-fourth share of the entire property in respect of which the Will has been executed. In para-24, he has stated that now also Binod Kumar Keshri and Arun Prasad are residing in that house.
19. P.W.6 -Krishna Tiwari is an Advocate's Clerk. He has stated that on the direction of Gouri Shankar Gupta, he has gone to his house to call his son Basant Kumar Keshri to the court campus.
20. P.W.7 -Aditya Prakash is one of the plaintiffs. He has supported the case of the prosecution.
21. Besides the oral testimony, the writing and signature of the P.W.1 over the will has been marked Ext.1, the deed of Will has been marked Ext.2. The signature of Gouri Shankar Gupta over the Will has been marked Ext. 1/1, signature of Md. Halim Khan has been marked Ext.1/2 and signature of Basudeo Prasad on the Will has been marked Ext.1/3.
22. From the side of the defendants, D.W.1 -Binod Kumar Keshri has stated that his father was not well, mentally and physically, to execute the Will. The Will is a forged one. The properties in respect of which the Will has been executed were not the self-acquired properties of Gouri Shankar Gupta. In his cross-examination, he has stated that he was 20 M.A. No. 272 of 2009 not present at Grahwa town at the time of alleged execution of the said Will.
23. D.W.2 -Bijay Kumar Keshri, D.W.3 -Binay Prakash, D.W.4 - Gyan Prakash Keshri are the relatives of Gouri Shankar Gupta and they have stated about Gouri Shankar Gupta having not disclosed about the execution of the said Will to them. In their cross-examination, they have stated that the property in respect of which the Will has been executed was a joint property. The defendants, besides the oral testimony proved the unregistered agreement which was marked as Ext.A, the Panch Faisala -Ext.B and also two deeds of partnership as Ext.C and Ext.C/1 which contains the admitted signature of Gouri Shankar Gupta. The certified copy of order of Misc. Case No. 5 of 1987 was marked Ext.D. The certified copy of the petition filed in Misc. Case No. 5 of 1987 was marked Ext. D/1. The certified copy of decree of Partition Suit No. 6/88 has been marked Ext.E and the certified copy of the decision of a Panch has been marked Ext.F and the map annexed with the Ext.F has been marked Ext.G.
24. After going through the evidence in the record, it is crystal clear that the case of the plaintiffs is that Gouri Shankar Gupta himself went to the court campus for preparation of the deed and produced it before the Registrar for its execution where he was identified by his son Basant Kumar Keshri but the evidence regarding Gouri Shankar Gupta coming to court is full of contradictions. Though, P.W.1 has stated in his examination in chief about Gouri Shankar Gupta coming alone but in his cross-examination, he has stated that both Gouri Shankar Gupta and Basant Kumar Keshri came to him along with a draft of the Will and Gouri Shankar Gupta handed the draft of the Will to be scribed by the 21 M.A. No. 272 of 2009 P.W.1.
25. The P.W.2 has categorically stated in para-29 that he had not seen on whose direction, the Will was typed or drafted contradicting the contents of the affidavit filed in his examination-in-chief and in para-38 he has stated that no one told him that the man present there was Gouri Shankar Gupta.
26. The P.W.3 in his cross-examination, as already indicated above has categorically stated not having any conversation with Gouri Shankar Gupta or not knowing him before the execution of the will and his becoming a witness for professional purpose.
27. P.W.5 in his cross-examination has stated that he did not accompany his father for scribing the deed but went later on for identification of his father before the Registrar thereby contradicting the P.W.1 who has categorically stated that both Gouri Shankar Gupta and Basant Kumar Keshri came together and Gouri Shankar Gupta delivered the draft of the Will to him. It is not forthcoming, as to what happened to that draft of the Will handed over by Gouri Shankar Gupta to the P.W.1. From this evidence, it is crystal clear that there is also discrepancy regarding age of the alleged testator -Gouri Shankar Gupta. P.W.3 has stated his age to be 70-75 years whereas, the P.W.5 has stated his age to be 80-85 years at the time of alleged execution of the Will. It is the specific case of the defendants and they have adduced cogent evidence also that Gouri Shankar Gupta was bed ridden and was not able to go anywhere from the house or think properly. The defendants also adduced evidence that all the sons of Gouri Shankar Gupta bore the expenses connected with his Shradha. When all the brothers are living together even till the date of examination of the witnesses in the court in connection with this 22 M.A. No. 272 of 2009 case as stated by the P.W.5 himself that his brothers where still staying in the house in respect of which the will was executed by Gouri Shankar Gupta, the contention of the plaintiffs that only their father bore the expenses of Shradha ceremony is not plausible. The evidence in the record goes to show that the property described in the Will was the joint property in which Gouri Shankar Gupta was having a share but he died while the property was still in jointness. As rightly observed by the learned court below; in his admitted signature appearing in Exhibits -A, B, C & C/1, Gouri Shankar Gupta signed freely and put the date along with his signature in Devnagri Script but the signature of Gouri Shankar Gupta goes to show that the same has not been freely written and the dates have been written in numeric English instead of Devnagri. So there is considerable difference between the signatures appearing in the Will and the admitted signatures. It is pertinent to mention here that undisputedly, though the wife of the testator was alive and was an old lady without any independent income, no provision has been made in the Will regarding her sustenance and that is a ground which creates a suspicion about the execution of the Will. It is a settled principal of law that the witness to a Will should put his signature animo attestendi i.e. for the purpose of attesting that he has seen the executants signed or has received from him a personal acknowledgement of his signature. If a person puts his signature on the document for some other purpose, he cannot be an attesting witness as has been held by the Hon'ble Supreme Court of India, in the case of M. L. Abdul Jabbar Sahib v. H. Venkata Sastri and Sons and others etc., reported in AIR 1969 SC 1147, para-8 of which reads as under:-
"8. Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words:-23 M.A. No. 272 of 2009
"'Attested', in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the 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 whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary."
It is to be noticed that the word 'attested", the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e. g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness." (Emphasis supplied)
28. After going through the evidence of the P.W.2 and P.W.3 who are claimed to be the attesting witnesses of the Will in question, this Court has no hesitation in holding that they fall short of being animo attestandi as in their respective cross-examination, they have admitted having singed the Will after the same was prepared but it is not forthcoming from their testimony that they signed the will in presence of Gouri Shankar Gupta and at his instance. The active part played by the father of the plaintiffs in execution of the Will in their favour is also a cause for suspicion about the genuineness of the Will.
29. Under such circumstances, this Court has no hesitation in holding that the learned court below rightly appreciated the evidence in the record and did not allow probate of the Will. The only point for determination is answered accordingly.
30. In view of the discussions made above, this Court has no hesitation in holding that there is no merit in this appeal. Accordingly, 24 M.A. No. 272 of 2009 the same is dismissed on contest but under the circumstances, without any costs.
31. Let a copy of this Judgment along with Lower Court Records be sent back to the learned court below forthwith.
(Anil Kumar Choudhary, J.) High Court of Jharkhand, Ranchi Dated the 4th July, 2022 AFR/ Sonu-Gunjan/-