Telangana High Court
Basavatarakam Memorial Medical Trust vs Nandamuri Lakshmi Parvathi on 18 March, 2025
Author: G.Radha Rani
Bench: G.Radha Rani
THE HONOURABLE Dr. JUSTICE G.RADHA RANI
CIVIL REVISION PETITION No.198 of 2019
ORDER:
This Civil Revision Petition is filed by the petitioners, who were the respondents in Trust O.P.No.336 of 2009 on the file of the learned Chief Judge, City Civil Court, Hyderabad, aggrieved by its order dated 28.11.2018 passed in I.A.No.3395 of 2018 in the above O.P.
2. The respondent Smt. Nandamuri Lakshmi Parvathi had filed Trust O.P.No.336 of 2009 under Section 74 of the Indian Trust Act, 1920 to appoint her as Managing Trustee of the petitioner No.1 - Trust in terms of the supplemental Will dated 18.11.1995 executed by Sri late Nandamuri Taraka Rama Rao and to direct the trust members and their followers and henchmen not to interfere with her administration in the schedule premises. She relied upon the supplemental Will dated 18.11.1995, which was marked as Ex.P1. The said supplemental Will was stated to be executed by late N.T.Rama Rao in the presence of two witnesses J.Venkata Subbaiah and Y.Tirupathi Rao, as attestors of the said Will. She filed an application vide I.A.No.5347 of 2017 under Order XVI of CPC to issue summons to one Y.Madhav, S/o. Tirupathi Rao by filing an affidavit stating that she came to know that Y.Tirupathi Rao, 2 Dr.GRR, J crp_198_2019 one of the witnesses passed away and to identify his signature, requested to issue summons to the son of Tirupathi Rao by name Y.Madhav.
3. The said petition was dismissed by the trial court on 27.12.2017, as the petitioner therein i.e. Smt. Nandamuri Lakshmi Parvathi filed an affidavit stating that they were trying to procure the whereabouts of another attestor J.Venkata Subbaiah. Thereafter, she filed the affidavit of Sri Y.Madhav as PW.2. The respondents in the Trust O.P i.e. the petitioners herein filed I.A.No.783 of 2018 to eschew the evidence of PW.2, as the petition filed to summon him as a witness was already dismissed vide I.A.No.5347 of 2017. The chief affidavit of PW.2 was eschewed as per the orders passed in I.A.No.783 of 2018 dated 20.06.2018. Thereafter, the petitioner in the Trust O.P. i.e. Smt. Nandamuri Lakshmi Parvathi filed the chief affidavit of PW.3 Sri J.V.Prasad Rao, son of another attestor J.Venkata Subbaiah, wherein he stated in his affidavit that his father passed away 9 years ago and that his father informed him about the execution of the alleged Will dated 18.11.1995 and that he acted as one of the attestors. The petitioners herein filed I.A.No.3395 of 2018 to eschew the affidavit filed in lieu of chief examination of PW.3, contending that the affidavit was filed by a person, who was neither a signatory to the alleged Will nor the Will was scribed and executed in his presence. The genuineness of the Will could only be established in the manner provided under Section 68 of the Indian Evidence Act, 1872. Section 68 of the Indian Evidence 3 Dr.GRR, J crp_198_2019 Act, 1872 provided special procedure for proving a Will, as such, the general procedure of examining a person for identifying the signature to prove the execution of the Will, could not be invoked.
4. Learned counsel for the petitioner in the Trust O.P. filed counter submitting that both the witnesses of the said Will died, as such the respondent in I.A.No.3395 of 2018 intended to examine the son of the first witness in his personal capacity. Section 69 of the Indian Evidence Act, 1872 envisages the procedure when both the witnesses of the Will deed died. The respondent therein was at liberty to adduce evidence to protect her rights. He also further contended that the petition was filed after the Court appointed the Advocate Commissioner to record the cross-examination of the witness and that the petitioner without contesting the case on merits, was filing frivolous petitions.
5. The trial court i.e. the learned Chief Judge, City Civil Court, Hyderabad dismissed the petition observing that:
"The Will is to be proved by examining atleast one attesting witness. The case of the respondent is that supplemental Will was executed in the presence of two attestors i.e. J.V.Subbaiah and Y.Tirupathi Rao. Admittedly, both of them died. As per Section 69 of the Evidence Act, in case no attestor is available, any person who is acquainted with the handwriting of the attestor can be examined. As the burden of proving the Will is on the respondent, now they came up with the affidavit of PW.3, who was the son of one of the attestors to identify the signature of the father. Previously when they intended to examine the son of Y.Tirupathi Rao, it was represented before the Court that another 4 Dr.GRR, J crp_198_2019 attestor was alive, as such, the Court felt that it is proper on the part of the petitioners to examine another attestor instead of son of one of the attestors. But presently both the attestors died. Therefore, it is just and reasonable to allow the respondent to examine PW.3, son of late Venkata Subbaiah, who was attestor to the Will to be examined before the Court. The petitioners herein are having ample opportunity to cross-examine the witness. Therefore, the petition is devoid of merit and is liable to dismissed."
6. Aggrieved by the said order in dismissing the petition filed by them for eschewing the evidence of PW.3, the petitioners in I.A.No.3395 of 2018 preferred this revision.
7. Heard Sri Ashok Anand Kumar, learned Senior Counsel for the petitioners and Sri V.V.Raghavan, learned counsel for the respondent.
8. Learned Senior Counsel for the petitioners submitted that the court below failed to see that the attestation of the Will had to be established only in the manner provided under Section 68 of the Indian Evidence Act, 1872, as it provided for a special procedure for proving a Will and it would override the general procedure of examining a person to identify the signatures of a person. Section 69 of the Indian Evidence Act had no application unless a foundation was laid that the attestors were dead or not available. No affidavit was filed by the respondent stating that the attestors were not alive. The counter in I.A.No.3395 of 2018 was filed by the counsel for the respondent, but not by the respondent. No death certificate of the attestors was filed. No summons were taken to the attestors to prove that the attestors were not available or that they 5 Dr.GRR, J crp_198_2019 were not alive. As such, no foundation was laid before filing the evidence affidavit of PW.3. The person sought to be examined was neither an attestor nor a scribe or a person capable of proving the Will under Section 68 of the Indian Evidence Act, 1872. The person sought to be examined had not pleaded that the attestation, scribing and execution of the Will was done in his presence. Therefore, he was incapable of proving the execution of the Will. The court below ought to have seen that I.A.No.5347 of 2017 filed to summon Sri Y.Madhav, son of another signatory of the Will to identify the signature of his father, was dismissed on 27.12.2017. There was neither pleading nor representation that another attestor of the Will was alive in I.A.No.5347 of 2017 filed by the respondent, which was dismissed on 27.12.2017. As such, the reasoning given in the order that the respondent contended in the previous I.A. that they were making efforts to secure the presence of first witness was incorrect. There was neither assertion nor denial in any of the pleadings either in I.A.No.5347 of 2017 or in I.A.No.783 of 2018. Therefore, the reasoning assigned by the court below to dismiss the petition was not sustainable and relied upon several judgments of the Hon'ble Apex Court and of the various other High Courts.
9. Learned counsel for the respondent on the other hand contended that an interim stay was granted by this Court on 14.02.2019 and the same was extended time to time till 07.12.2022. But subsequently, the matter was not 6 Dr.GRR, J crp_198_2019 listed for a long time since then, as such, the stay was not extended. The trial court insisted to proceed with the enquiry and PW.3 was also cross-examined by the counsel for the revision petitioners herein. As such, the cause of action would not survive and the CRP would become infructuous and prayed to dismiss the CRP
10. However, learned Senior Counsel for the revision petitioners vehemently opposed the said contention stating that though the cross-examination of PW.3 was conducted at the insistence of the trial court, the order under challenge would not become infructuous and relied upon the judgment of the Hon'ble Apex Court in Union of India and others v. Narender Singh1 wherein it was held that a writ petition questioning the Tribunal's order on merits does not become infructuous by giving effect to the Tribunal Order. By implementing an order, the challenge to the validity of the order is not wiped out and is not rendered redundant. Hence, merely because the Tribunal's order of reinstatement, which had been challenged in writ petition before High Court, had been implemented, that did not render the writ petition infructuous.
11. Learned Senior Counsel for the petitioners also relied upon the judgment of the Hon'ble Apex Court in Union of India and others v. Ram Kumar Thakur 2 , wherein also it was held that merely because the impugned order 1 (2005) 6 SCC 106 2 (2009) 1 SCC 122 7 Dr.GRR, J crp_198_2019 before the High Court was implemented, to avoid possible contempt proceedings, that would not take away the right of the appellants to prefer an appeal and question the correctness of the impugned order. Even in cases where interim relief was not granted in favor of the applicant and the order was implemented that does not furnish a ground for not entertaining the appeal to be heard on merits. (See: Nagar Mahapalika v. State of U.P. [2006 (5) SCC 127]. Similar view was also taken in Nagesh Datta Shetti v. State of Karnataka [2005(10) SCC 383].
12. Considering the principle stated by the Hon'ble Apex Court in the above cases, though PW.3 was cross-examined, it is considered necessary to decide the merit of the order passed by the learned Chief Judge, City Civil Court in I.A.No.3395 of 2018 dated 28.11.2018, as to whether the same was in accordance with law or procedure mandated under the law.
13. On merits, learned counsel for the respondent supported the order of the learned Chief Judge, City Civil Court, Hyderabad on the ground that the evidence of PW.3 was necessary to prove the Will, as both the attestors of the Will died and Section 69 of the Indian Evidence Act, 1872 would prescribe the procedure for proof of the Will. Where no attesting witness was found, it would mandate that the Will must be proved by demonstrating that the attestation of atleast one attesting witness is in their handwriting. 8
Dr.GRR, J crp_198_2019
14. In view of the contentions of both the learned counsel, it is considered necessary to examine the provisions, which provides for proof of Will.
15. Section 63 of the Indian Succession Act, 1925 deals with execution of unprivileged Wills. It reads as follows:
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 acknowledgment of his signature or mark, or 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."
16. Section 3 of the Transfer of Property Act, 1882 defines the term "attested" as:
"Attested - In relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the 9 Dr.GRR, J crp_198_2019 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 acknowledgement 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."
17. Section 68 of the Indian Evidence Act, 1872 prescribes the manner in which a compulsory attestable document has to be proved. It reads thus:
"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 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 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"
18. Section 69 of the Indian Evidence Act, 1872 provides manner of proof of a document, where no attesting witness was found. It reads thus:
"69. Proof where no attesting witness is found.
If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person."10
Dr.GRR, J crp_198_2019
19. The 3-Judge Bench of the Hon'ble Apex Court in M.L.Abdul Jabbar Sahib v. M.Venkata Sastri and Sons and others 3 while considering the definition of the word "attested" under Section 3 of the Transfer of Property Act, 1882, noted that:
"8. 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.
"9. In every case the Court must be satisfied that the names were written animo attestandi", see Jarman on Wills, 8th ed. p.137. Evidence is admissible to show whether the witness had the intention to attest. "The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not," see Theobald on Wills, 12th ed. p. 129. In Giria Datt v. Gangotri [AIR 1955 SC 346 (351)], the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the Sub-Registrar, were not attesting witnesses as their signatures were not put "animo attestandi". In Abinash Chandra Bidvanidhi Bhattacharya v. Dasarath Malo [ILR 56 Cal 598 = AIR 1929 Cal 123], it was held that a 3 AIR 1969 Supreme Court 1147 11 Dr.GRR, J crp_198_2019 person who had put his name under the word "scribe" was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a "scribe". In Shiam Sundar Singh v. Jagannath Singh [54 Mad LJ 43 = AIR 1927 PC 248], the Privy Council held that the legatees who had put their signatures on the will in token of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees.
20. This High Court in Lingala Potha Raju (died) per LRs. and others v. Chagantipati Annapurnamma and others 4 after considering the judgments of the Hon'ble Apex Court in M.L.Abdul Jabbar Sahib v. M.Venkata Sastri and Sons and others [AIR 1969 SC 1147], Girja Datt v. Gangotri [AIR 1955 SC 346], N.Kamalam v. Ayyasamy [2001 (6) ALT 44 (SC)], S.R.Srinivasa v. S.Padmamma [2010 (4) ALT 12 (SC)], held that:
"On a close scrutiny of Section 3 of Transfer of Property Act, Section 68 of Evidence Act and the above precedential jurisprudence thereof, it is clear that when law ordains that a particular fact is to be proved in a specific mode that has to be followed. Compulsory attestable documents are concerned, Section 68 of Evidence Act ordains that the due execution of such documents can be established only by way of examining atleast one of the attestors. The precedents referred to supra would explain us that the scribe or identifying witnesses of an attestable document including Wills, cannot be regarded as attesting witnesses because there was no animo attestandi i.e. they have not signed on the document for the purpose of attestation but they have signed for a different purpose. In such an instance, examining them instead of attestors will not amount to proof of due execution of the document."
11(a) Will is concerned, different persons play different roles to assist the executant to execute the Will. For instance, the scribe, on receiving the 4 2018 (2) ALT 316 (SB) 12 Dr.GRR, J crp_198_2019 instructions from the executant, write down the last testament of the executant in black and white portraying the contents of his instructions in a legal and understandable form. His role is confined to that extent only. Sometimes, after scribing the contents to the satisfaction of the executant and reading over them to him, the scribe may leave some space for the signature/thumb impression of the executant and attestors and beneath, he will subscribe his signature mentioning as scribe and hand over the drafted Will to the executant and may depart. He need not necessarily see the executant and the attestors signing or putting their thumb impressions on the Will, which is not his duty. Later, the executant and attestors may affix their signatures at the respective slots. Still the Will can be held valid because it is not mandatory for the scribe to witness the due execution of the Will. The proof of due execution has to come from horses mouth i.e. attestors but none others.
b) Going by the definition attested, it is evident that attestors take upon the responsibility of witnessing the executant affixing his signature or thumb mark to the instrument or they have seen some other person signing the instrument in the presence and by the direction of executant or has received from the executant a personal acknowledgement of his signature or mark or of the signature of such other person. Further, each of the attestors has signed the instrument in the presence of the executant.
c) Similarly, the role of identifying witness is also a different one. He only identifies the executant before the Sub-Registrar. His physical presence was not mandatory when executant was signing/putting his thumb mark on the Will.
d) Perhaps, in view of clear segregation of their roles, the law did not accept the scribe or identifying witnesses speaking for attestors. It was held, it was only the attestors who could speak for due execution of the Will. In a given case, may be the scribe and identifying witnesses have also witnessed the execution of the Will by the executant. However, law did not allow them to don the cloak of attestors to speak about execution as there was no animo attestandi. It is because, unlike other compulsory attestable documents, Will 13 Dr.GRR, J crp_198_2019 comes into life only after the death of the executant who cannot appear before the Court to speak of its truth or falsity. Hence, strict proof rule was imposed by law."
21. This High Court in Chintham Ramanaiah and others v. Yalagala Subbamma and others 5 while holding that the Court was at a loss to know as to how by examining the son of the scribe, the petitioners could prove that the attestation of atleast one attesting witness was in his handwriting and that the signature of person executing the document was in the handwriting of that person, held that:
"7. I cannot understand as to how examining the son of the scribe will improve the case of the petitioners in view of the provisions of Section 68 of Indian Evidence Act, 1872 (for short 'the Act'), which envisages that if a document is required by law to be attested, it shall not be used as evidence, unless 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.
8. Under Section 69 of the Act, if no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.
9. Thus under law, in order to succeed in proving Ex.Bl - Will, the petitioners have to examine at least one attesting witness and in case the attesting witnesses are not alive, they have to prove that the attestation of one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person.5
2015 (1) ALD 346 14 Dr.GRR, J crp_198_2019
10. I am at a loss to know as to how by examining the son of the scribe, the petitioners can prove that the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person.
11. It is not stated in the affidavit of the petitioners that Ex.Bl -Will was scribed and attested in the presence of the son of the scribe who is proposed to be examined by the petitioner. Unless it was specifically averred that the proposed witness has witnessed the execution of Ex.Bl-Will, he is not expected to speak to the attestation of at least one attesting witness or confirm the handwriting of the executant of Ex.Bl-Will. In the absence of such an averment, it will be wholly unnecessary to summon the son of the scribe. Though the lower Court dismissed the IAs only on the ground of delay, the aforementioned reasons constitute substantive grounds for dismissing the IAs."
22. The Hon'ble Apex Court in Babu Singh and others v. Ram Sahai alias Ram Singh6 while explaining the law on the proof of execution of Will, held as such:
"12. Indisputably a Will is to be attested by two witnesses in terms of Section 68 of the Indian Evidence Act (Act). Indisputably, the requirement of Section 63(1)(c) of the Indian Succession Act is required for to be complied with for proving a Will. Section 68 of the Act mandates proof by attesting witnesses of not merely of execution but also attestation by two witnesses. That is to say, not only the execution of Will must be proved but actual execution must be attested by at least two witnesses. Attestation of execution of Will must be in conformity with the provisions of Section 3 of the Transfer of Property Act.
13. 'Attestation' and 'execution' connote two different meanings. Some documents do not require attestation. Some documents are required by law to be attested.6
(2008) 14 SCC 754 15 Dr.GRR, J crp_198_2019
14. In terms of Section 68 of the Act, although it is not necessary to call more than one attesting witness to prove due execution of a Will but that would not mean that an attested document shall be proved by the evidence of one attesting witness only and two or more attesting witnesses need not be examined at all. Section 68 of the Act lays down the mode of proof. It envisages the necessity of more evidence than mere attestation as the words 'at least' have been used therein. When genuineness of a Will is in question, apart from execution and attestation of Will, it is also the duty of a person seeking declaration about the validity of the Will to dispel the surrounding suspicious circumstances existing if any. Thus, in addition to proving the execution of the Will by examining the attesting witnesses, the propounder is also required to lead evidence to explain the surrounding suspicious circumstances, if any.
Proof of execution of the Will would, inter alia, depend thereupon.
17. It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69, i.e., by examining witnesses who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
18. Whereas, however, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Indian Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved.
21. The respondent did not make any attempt to serve another summons upon him. No process was asked for to be served by the court. Interestingly, a statement was made by a counsel before the appellate court. That statement is said to have been made before the appellate court by the plaintiff himself on 29.10.1999. We are at a loss to understand how such a statement by a counsel or by the respondent himself was taken into consideration for the purpose of invoking Section 69 of the Indian Evidence Act. A purported statement, not as 16 Dr.GRR, J crp_198_2019 a witness but through the counsel, cannot be said to be an evidence. We have noticed hereinbefore that learned Trial Judge did not accept such a statement. In that view of the matter, the first appellate Court, in our opinion, committed a serious legal error.
23. In Amal Sankar Sen & Ors. v. The Dacca Co-operative Housing Society Ltd. [(AIR 1945 Calcutta 350], it was held :
"As we have already stated, that proposition of law cannot be challenged at this date. In order that Section 69, Evidence Act, may be applied, mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient. It is only when the witness does not appear even after all the process under Order XVI Rule 10, which the Court considered to be fit and proper had been exhausted that the foundation will be laid for the application of Section 69, Evidence Act. The party, namely, the plaintiff, must move the Court for process under Order XVI, Rule 10 of CPC, when a witness summoned by him has failed to obey the summons but when the plaintiff does move the Court but the Court refuses the process asked for we do not see why Section 69, Evidence Act, cannot be invoked. The other view would place the plaintiff in an impossible position when the witness is an attesting witness to the document on which he has brought the suit, and the Court refuses coercive processes contemplated in Order XVI Rule 10 of the Code of Civil Procedure."
27. We generally agree with the aforementioned view of the Calcutta High Court. Assuming, however, that even taking the course of Order XVI of the Code of Civil Procedure might not be necessary, what was imperative was a statement on oath made by the plaintiff. A deposition of the plaintiff is a witness before the Court and not the statement through a counsel across the 17 Dr.GRR, J crp_198_2019 Bar. Such a statement across the Bar cannot be a substitute for evidence warranting invocation of Section 69 of the Evidence Act."
23. Thus, in the above case, the Hon'ble Apex Court specifically held that the statement by a counsel cannot be taken into consideration for the purpose of invoking Section 69 of the Indian Evidence Act, 1872 and the Will can be proved in the manner indicated in Section 69 of the Indian Evidence Act, 1872 only after laying foundation that the attesting witness was either dead or out of jurisdiction of the Court or kept out of the way by the adverse party or cannot be traced despite diligent search.
24. The Hon'ble Apex Court specifically held that mere taking out the summons or service of summons upon an attesting witness or taking out warrant against him is not sufficient and only when the witness does not appear even after all the process under Order XVI Rule 10 was exhausted, the foundation will be laid for the application of Section 69 of the Indian Evidence Act, 1872 and held that a statement on oath made by the plaintiff was imperative and not the statement through a counsel across the bar and it would not substitute for evidence warranting invocation of Section 69 of the Indian Evidence Act, 1872.
25. In the present case also, the petitioner in the Trust O.P. i.e. Smt. Lakshmi Parvathi had not stated in her evidence nor filed an affidavit about the non- availability of the attestors or that they expired. The petitioner in the O.P. had not taken any summons for the attestors under Order XVI Rule 10 of CPC. The 18 Dr.GRR, J crp_198_2019 procedure as mandated by the Hon'ble Apex Court in the above case is not followed to invoke Section 69 of the Indian Evidence Act, 1872.
26. Learned Senior Counsel for the petitioners relied upon the judgment of the Hon'ble Apex Court in Ashutosh Samanta (Dead) by LRs. and others v. SM.Ranjan Bala Dasi and others 7, wherein it was held that:
"14. There are often situations when Wills which otherwise may have satisfied the requirements of being attested, as provided by law, cannot be proved in terms of the said two provisions, for the reason that the attesting witnesses are not available, or if one of the witnesses denies having attested the Will. Sections 69 and 71 of the Evidence Act, 1872 then come to the aid of the propounder. Section 69 reads as follows:
"Section 69 - Proof where no attesting witness found - If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the documents is in the handwriting of that person."
16. In Babu Singh & Ors. v. Ram Sahai alias Ram Singh [Civil Appeal No.3124/2006, dated 30.04.2008], the Court held as follows with regard to Section 69:
"It would apply, inter alia, in a case where the attesting witness is either dead or out of the jurisdiction of the court or kept out of the way by the adverse party or cannot be traced despite diligent search. Only in that event, the Will may be proved in the manner indicated in Section 69 i.e. by examining witnesses 7 2023 SCC OnLine SC 255 19 Dr.GRR, J crp_198_2019 who were able to prove the handwriting of the testator or executant. The burden of proof then may be shifted to others.
18. Whereas, however, a Will ordinarily must be proved keeping in view the provisions of Section 63 of the Succession Act and Section 68 of the Act, in the event the ingredients thereof, as noticed hereinbefore, are brought on record, strict proof of execution and attestation stands relaxed. However, signature and handwriting, as contemplated in Section 69, must be proved.
17. Section 69 was also considered in K. Laxmanan v. Thekkayil Padmini & Ors [Civil Appeal No.7082/2008, decided on 03.12.2008]:
"Since both the attesting witnesses have not been examined, in terms of Section 69 of the Act it was incumbent upon the Appellant to prove that the attestation of at least one attesting witness is in his handwriting and that the signature of the person executing the document is in the handwriting of that person. DW 3, who was an identifying witness also in Ext. B-2, specifically stated that he had not signed as an identifying witness in respect of Ext. B-2 and also that he did not know about the signature in Ext. B-2. Besides, considering the nature of the document which was a deed of gift and even assuming that no pleading is filed specifically denying the execution of the document by the executant and, therefore, there was no mandatory requirement and obligation to get an attesting witness examined but still the fact remains that the Plaintiff never admitted the execution of the gift deed and, therefore, the same was required to be proved like any other document."
18. V. Kalyanaswamy (D) by L.Rs. & Ors. v L. Bakthavatsalam (D) by L.Rs. & Ors. [Civil Appeal No.1021-26/2013, decided on 20 Dr.GRR, J crp_198_2019 17.07.2000] considered the effect of Sections 68 and 69, and observed as follows:
"70. Reverting back to Section 69 of the Evidence Act, we are of the view that the requirement therein would be if the signature of the person executing the document is proved to be in his handwriting, then attestation of one attesting witness is to be proved to be in his handwriting. In other words, in a case covered Under Section 69 of the Evidence Act, the requirement pertinent to Section 68 of the Evidence Act that the attestation by both the witnesses is to be proved by examining at least one attesting witness, is dispensed with. It may be that the proof given by the attesting witness, within the meaning of Section 69 of the Evidence Act, may contain evidence relating to the attestation by the other attesting witness but that is not the same thing as stating it to be the legal requirement under the Section to be that attestation by both the witnesses is to be proved in a case covered by Section 69 of the Evidence Act. In short, in a case covered Under Section 69 of the Evidence Act, what is to be proved as far as the attesting witness is concerned, is, that the attestation of one of the attesting witness is in his handwriting. The language of the Section is clear and unambiguous. Section 68 of the Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved. But that is not the requirement in Section 69 of the Evidence Act."
19. It is therefore clear that in the event where attesting witnesses may have died, or cannot be found, the propounder is not helpless, as Section 69 of the Evidence Act, 1872 is applicable."
27. As per Section 69 of the Indian Evidence Act, 1872, if no such attesting witness was found, it must not only be proved that the attestation of one 21 Dr.GRR, J crp_198_2019 attesting witness was in his handwriting, but also the signature of the person executing the document was in the handwriting of that person. Both these requirements are mandatory to be proved under Section 69 of the Indian Evidence Act, 1872.
28. Thus, PW.3 should not only prove that the Will was attested by his father and that the same was in his handwriting, but also the signature of the person, who executed the document was in the handwriting of that person. When both these requirements were satisfied only, the Will can be said to be proved.
29. Learned Senior Counsel for the petitioners relied upon the judgment of the High Court of Madras in N.Durga Bai v. Mrs.C.S.Pandari Bai 8, wherein also the requirements as to how the foundation can be laid before resorting to the provision under Section 69 of the Indian Evidence Act, 1872 was stated by the said Court as follows:
"13. In the petition filed by the Plaintiffs for Letters of Administration it is the categorical pleadings of the plaintiffs to the effect that both the attesting witnesses were dead. Whereas in the chief examination, it is the contention of P.W.1, that the attesting witnesses whereabouts are not known. These two contradictions in the statements of the Plaintiffs clearly invites a serious doubt in the mind of the Court and if the attesting witnesses are really dead the plaintiffs can very well prove the will by resorting to Section 69 of the Indian Evidence Act by examining one of the persons who has acquaintance with the signature of any one of the attesting witnesses and also the executant of the document. Before resorting to the provision under Section 69 of the Indian 8 LAWS (MAD)-2017-2-524 22 Dr.GRR, J crp_198_2019 Evidence Act to prove the will, it must be established by the plaintiffs the factum of death of attesting witnesses. Mere pleading in the plaint as to their death itself is not sufficient for establishing the factum of the death of the attesting witnesses. The plaintiff ought to have filed death certificates of the concerned attesting witnesses to prove their alleged death. But no attempt whatsoever has been made by the plaintiffs in that regard. Therefore, the contention of the plaintiffs that both the attesting witnesses were dead, cannot be countenanced without establishing the factum of death of the above witnesses.
14. When the specific address of the attesting witnesses has been given, the entire evidence of P.W.1 when carefully seen they have not made any attempt to summon these witnesses before this Court by resorting to Order XVI Rule 10 of CPC. No coercive step was also taken as against them to procure their presence before the Court. Further, to countenance the pleading in the plaint that both the attesting witnesses were died no one was examined to prove the same and no death certificates whatsoever were filed. In the absence of any evidence as to the diligent search made by the plaintiff to secure the attesting witnesses, mere statement of the plaintiff about the non availability of the attesting witnesses itself is not sufficient to hold that the attesting witnesses either dead or their whereabouts are not known. Therefore, the plaintiff has failed to prove the will by examining the attesting witnesses. Of course the plaintiffs examined one P.M.Ganesh, P.W.2 said to be the son of Munivel to prove the signature found in the will that of the Munivel.
16. The Calcutta High Court in Amal Sankar Sen case [AIR 1945 Cal 350], rightly observed: (AIR p.352) "... In order that Section 69, Evidence Act, may be applied, mere taking out of the summons or the service of summons upon an attesting witness or the mere taking out of warrant against him is not sufficient. It is only when the witness does not appear even after all the processes under Order XVI Rule 10, which the Court considered to be fit and proper had been exhausted that the foundation will be laid for the application of Section 69, Evidence Act."23
Dr.GRR, J crp_198_2019
18. When there is no attesting witness found, then Section 69 of the Indian Evidence Act comes into play, before resorting Section 69 of Evidence Act plaintiff should establish either factum of death of attesting witnesses or their non availability by convincing evidence. Then in the event of the attesting witnesses do not support the will, propounder can resort to Section 71 of the Indian Evidence Act for proving the document by other mode. Only by these procedures, the Will can be admitted in evidence. Without establishing the execution and attestation of will Ex.P1 same cannot be admitted in evidence. Therefore, this Court is of the view that since the document in question Ex.P1 will has not been proved in the manner known to law, and the same cannot be used as an evidence, hence the question of deciding its truth and genuineness does not arise at all. "
30. As seen from the above judgment before resorting to Section 69 of the Indian Evidence Act, 1872, the petitioner should establish the factum of death of the attesting witnesses or their non-availability by convincing evidence.
Mere statement of the plaintiff about the non-availability of the attesting witnesses itself was not sufficient to hold that the attesting witnesses were either dead or their whereabouts were not known. The petitioner need to take steps to procure their presence by resorting to Order XVI Rule 10 of CPC and to adduce evidence that the attesting witnesses died or that they were not available and their death certificates need to be filed. Mere pleading as to their death was not sufficient for establishing the factum of death of the attesting witnesses.
31. In the present case, no death certificates of the attesting witnesses were filed by the respondent herein to prove the factum of their death. No summons were taken by the respondent herein to procure the presence of the attesting 24 Dr.GRR, J crp_198_2019 witnesses or to prove that they died. No statement was even made by the respondent herein about the non-availability of the attesting witnesses that they died or that their whereabouts were not known.
32. The High Court of Madras in Annapoorani and another v. Muthusamy and Others 9 also held in a similar manner that:
"28. It is thus seen that the Will has to be proved in a manner known to law under Section 68 of the Indian Evidence Act by examining the attesting witnesses. If the attesting witnesses do not respond to summons issued under Order XVI Rule 10 CPC, then after following due procedure laid down therein, any other witness as stipulated under Section 69 of the Indian Evidence Act, can be examined to prove the Will. It is imperative that Order XVI Rule 10 CPC is complied with in letter and spirit before resorting to Section 69 of the Indian Evidence Act, 1872.
29. If it is stated that the attesting witnesses have died then the said fact has to be established in manner known to law by producing their death certificates or some other credible evidence to establish death. These safeguards are mandatory. If the safeguards are not strictly followed, then it would only open a window for any unscrupulous litigant to produce a document to be a Will and examine any stranger to prove the signatures in the said document purported to be a Will. That should not be allowed.
35. I further hold that the District Munsif Court had committed grave error in comparing signature between Ex.A1 and the Will. Such a procedure should never be adopted by any Court to prove a Will. The procedure as stated under Section 68 and Order XVI Rule 10 CPC and Section 69 of the Indian Evidence Act alone should be adhered to."9
2022 SCC OnLine Madras 4229 25 Dr.GRR, J crp_198_2019
33. Thus, the Court held that it was imperative to comply with Order XVI Rule 10 of CPC before resorting to Section 69 of the Indian Evidence Act, 1872 and only when the attesting witnesses do not respond to the summons issued under Order XVI Rule 10 of CPC, then after following due procedure laid down therein, any other witness as stipulated under Section 69 of the Indian Evidence Act, 1872 can be examined to prove the Will. It was held that it was imperative that Order XVI Rule 10 of CPC is complied with in letter and spirit before resorting to Section 69 of the Indian Evidence Act, 1872.
34. Thus, considering the law laid down by the Hon'ble Apex Court and of this Court and of the High Court of Madras in the above cases, as the respondent had not followed the procedure as mandated by taking summons under Order XVI Rule 10 of CPC to the attestors, which was mandatory and had not even filed her affidavit stating that the attestors expired and were not available to examine before the Court and not filed their death certificates, the trial court ought not to have permitted the evidence of PW.3 to be brought on record to identify the signature of one of the attestors of the said Will. No foundation was laid by the respondent to adduce the evidence of PW.3. The witness examined also must be in a position to identify the signature of the person executing the document i.e. the alleged supplemental Will. Without proof of all these requirements, the evidence of PW.3 cannot be considered or read into evidence and the same is liable to be eschewed. 26
Dr.GRR, J crp_198_2019
35. In the result, the Civil Revision Petition is allowed setting aside the order dated 28.11.2018 passed in I.A.No.3395 of 2018 in O.S.No.336 of 2019 on the file of the learned Chief Judge, City Civil Court, Hyderabad, eschewing the evidence of PW.3.
No order as to costs.
As a sequel, miscellaneous applications pending in this petition, if any, shall stand closed.
____________________ Dr. G.RADHA RANI, J Date: 18th March, 2025 Nsk