Andhra HC (Pre-Telangana)
Bandlamuri Venkateswara vs Janikamma And Ors. on 8 February, 2005
Equivalent citations: 2005(3)ALD502, 2005(4)ALT16
JUDGMENT Devinder Gupta, C.J.
1. This Letters Patent Appeal is against the judgment of the learned Single Judge of this Court dated 12.11.2001 in AS No. 2072 of 1986, allowing the appeal of plaintiff-respondent No. 1 thereby setting aside the judgment and decree passed by the Principal Subordinate Judge, Kurnool dated 5.3.1984 in OS No. 41 of 1991 dismissing the suit of plaintiff. Respondent No. 1 herein is the plaintiff, Respondent No. 2 was Defendant No. 1, Respondents 3 to 6 were Defendants 3 to 6 and appellant was Defendant No. 2 in the suit.
2. Facts-in-brief are that late B. Chinna Busi Reddy had three sons, viz., Nandaiah, Tirupamaiah and Swamy Reddy. Plaintiff is the daughter of Tirupamaiah through his first wife Mangamma. Defendant No. 1 is the second wife of Tirupamaiah. Tirupamaiah had only one issue i.e., the plaintiff. Defendant No. 2 is the grandson of Nandaiah and Defendants 3 to 6 are sons of Swamy Reddy. Admittedly, the three sons of Chinna Busi Reddy had partitioned their properties. Dispute herein pertains to the estate of deceased Tirupamaiah. After the death of Tirupamaiah, his daughter (plaintiff) filed the suit claiming her half share in the property left behind by her father late Tirupamaiah from Defendant No. 2, the second wife of Tirupamaiah. According to the plaintiff, Defendant No. 1 told her that Tirupamaiah had executed gift deed Ex.B1 dated 15.10.1980 in her favour bequeathing part of the property owned by Tirupamaiah with absolute rights and had bequeathed major portion of the remaining property by a Registered Will Ex.B2 dated 15.10.1980 in favour of B. Koteswara (D2) the grandson of Sri Nandaiah and the remaining smaller part in favour of the plaintiff. In the suit, the plaintiff alleged that the will is a forged one. The gift deed and the will were obtained under undue influence by practising fraud. Tirupamaiah was not in sound and disposing state of mind on 15.10.1980 when the will is alleged to have been executed and that the will was not executed voluntarily. It was executed under influence and was result of practice of fraud. Particulars of fraud alleged were that it was a collusive act on the part of Defendant No. 1 and the father of Defendant No. 2. It was quite unnatural that the only daughter would be given negligible share by her father in the property whereas major part would go in favour of D. 2 who had never been brought up by his father.
3. Suit was contested by Defendants 1 and 2. Defendant No. 2 was a minor represented by his father Venkatesam who also appeared as D.W.2. Suit was tried on six issues. Issues No. 1 and 2 now relevant for the purpose of this appeal reads as follows:
1. Whether the will and gift deed dated 15.10.1980 executed by late B. Tirupamaiah are true, valid and binding on the plaintiff?
2. Whether the will and gift deed dated 15.10.1980 were obtained by fraud and undue influence?
4. The Trial Court by its judgment answered both the issues against the plaintiff and held that both Exs.B1 and B2 were registered documents and since there was no fraud played or undue influence exercised, the will and gift deed dated 15.10.1980 stood duly proved. Plaintiff was held not entitled to half share in the property. Accordingly, it was held that the plaintiff was not entitled to partition as prayed for and she has to take her share as per Will Ex.B2. Feeling aggrieved, the plaintiff filed appeal. By the impugned judgment, the appeal was allowed by the learned Single Judge holding that as the defendants failed to examine any attestors as witnesses in proof of execution of Ex.B2 Will, it must be held that Will Ex.B2 does not stand proved. Resultantly, the judgment of the Trial Court was set aside and the suit was decreed. The plaintiff was held to be entitled to half share in the suit schedule property. Against this judgment and decree, only Defendant No. 2 felt aggrieved and has filed this Letters Patent Appeal. Defendant No. 1 has not challenged the judgment and decree passed by the learned Single Judge.
5. The only question that arises for consideration in this appeal is, whether Will Ex.B2 dated 15.10.1980 can be said to have been duly proved without examining the attesting witnesses.
6. We have heard learned Counsel for the parties and duly considered the submissions made at the bar. Learned Counsel for the appellant vehemently contended that the defendants had taken all possible steps of procuring the presence of the attesting witnesses. Defendants also got warrants issued to Ranga Reddy and Ramakrishna Reddy, the attesting witnesses of Will Ex.B2. The defendants could not succeed in getting the warrants executed as the witnesses had been won over by the plaintiff and were avoiding execution of warrants. Ex.B2 Will being a registered document the Trial Court had rightly accepted the will and there was no justifiable reason in appeal to have reversed the findings recorded by the Trial Court.
7. Having duly considered the submissions made at the bar, we are of the view that no interference is called for in the judgment of the learned Single Judge inasmuch as the point raised is squarely covered by the decision of the Supreme Court in N. Kamalam (Dead) and Anr. v. Ayyasamy and Anr., 2001 (5) ALD 69 (SC) = 2001 (7) SCC 503.
8. In the instant case, we have duly considered the statement of D.W.3 the scribe of the will. He alone is the witness produced to prove the Will Ex.B2. Names of two attesting witnesses were not shown in the list of witnesses. Summons were got issued to them but they failed to attend despite service of notice. Application was also moved for obtaining warrants. Warrants, however, were not executed and thereafter the application was withdrawn. No effort thereafter was ever made to examine the attesting witnesses. It is not a case where the attesting witnesses were not available. Question is, whether the status of a scribe who appended his signature on to the will as a scribe can be equated to that of attesting witness, and, whether his evidence can be equated to that of attestor or can be relied upon as to the attestation of the will. Similar was the position in Kamalam's case and Supreme Court held:
The requirement of attestation presently in the country is statutory in nature, as noticed hereinbefore, and cannot as such be done away with, under any circumstances. While it is true that in a testamentary disposition, the intent of the attestor shall have to be assessed in its proper perspective but that does not however mean and imply non-compliance with a statutory requirement. The intention of the attestor and its paramount importance cannot thwart the statutory requirement. No doubt the scribe has subscribed his signature but a scribe in accordance with common English parlance means and implies the person who writes the document. Significantly, however, in England the King's Secretary is popularly known as Scribaregis. Be that as it may, in common parlance an attribute of scribe as a mere writer as noted above, does not stretch the matter further. In the contextual facts, while the writer did, in fact, subscribe his signature but the same does not underrate the statutory requirement of attestation as more fully described hereinbefore. True it is, that strenuous submissions have been made in support of the appeal that "attesting witnesses" have no other role to play but to subscribe their signatures in order to prove the genuineness of the will and that in fact, when the scribe signs the will, the same can be read as attestation. Needless to record, however, that the scribe Arunachalam was examined and it is on this score the learned Advocate contended that the evidence of an attestor thus can be said to be on record so as to make the document namely the "will" in the instant case thus otherwise in accordance with law.
The effect of subscribing a signature on the part of the scirbe cannot in our view be identified to be of the same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, requiring attestation (admittedly in the case of a will the same is required), is a requirement of the statute, thus cannot be equated with that of the scribe.
9. Therefore, the evidence of scribe is of no help to the party propounding the will and the statutory requirement of proof of will by one of the attesting witnesses cannot be dispensed with, as the signature of a scribe cannot be equated to that of attesting witness and his evidence cannot be relied upon as to the proof of will.
10. In a subsequent decision in Janki Narayan Bhoir v. Narayan Namdeo Kadam, , the Supreme Court held that one of the attesting witnesses can be examined even though the other one is available. But, he must prove due execution of the will as required under Section 63(c) of the Succession Act. If one of the witnesses fails to prove, the other witnesses has to be called to supplement his evidence. One of the requirements of due execution of will is attestation by two witnesses which is mandatory and must be proved by leading evidence. In the said case also one attesting witness was examined but he did not prove execution and attestation of the will. The other attesting witness though available was not examined. It was submitted that the evidence of the scribe could be considered under Section 71 of the Evidence Act. It was held Section 71 of the Evidence Act has no application when one of the attesting witnesses though examined, has failed to prove the attestation of the will and other attestor though available was not examined. When document is not proved as mandatorily required under Section 68 of the Evidence Act, resort to provisions of Section 71 of the Evidence Act is not permissible.
11. In view of the clear exposition of law, as discussed above, we are of the view that the learned Single Judge rightly allowed the appeal setting aside the Judgment and Decree of the Trial Court and we see no reason to interfere with the impugned order. We, therefore, find no force in the appeal, which is accordingly dismissed. No costs.