Chattisgarh High Court
Baban (Dead) Through Lrs vs Jagatram (Dead ) Through Lrs. 37 ... on 16 July, 2019
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.509 of 2003
1(A) Chatrapal S/o Baban, aged about 50 years,
1(B) Dilip Kumar S/o Baban, aged about 45 years,
1(C) Sadharam S/o Baban, aged about 40 years,
All above are R/o Village Rakeli, Tahsil Ambikapur, and District
Surguja (CG)
2(A) Asan Ram S/o Ramjatan, aged about 45 years
2(B) Mohit Ram S/o Ramjatan, aged about 40 years,
2(C) Palakdhari S/o Ramjatan, aged about 35 years,
All above are R/o Village Rakeli, Tahsil Ambikapur and District
Surguja (CG)
---- Appellants
Versus
1(A) Ramcharan S/o Jagarram, aged about 51 years,
1(B) Shivcharan S/o Jagarram, aged about 45 years,
All above are R/o Village Rakeli, Tahsil Ambikapur and District
Surguja (CG)
2. State of Chhattisgarh Through-Collector Surguja, Collector
Office, Ambikapur, Distt. Surguja
---- Respondents
For Appellants/Plaintiffs: Mr.Manoj Paranjape and Mr.Anurag Singh,
Advocates
For Respondent No.1(A)&(B):None present
For Respondent No.2 : Mr.Akash Pandey, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
Judgment On Board
16/07/2019
1. The substantial question of law involved, formulated and to be
answered in this plaintiffs' second appeal is as under: -
"Whether the court below has committed an error of law
in holding that will deed dated 03.03.1988 has been duly
proved in accordance with law. ?"
2
(Parties hereinafter will be referred as per their status shown
in the plaint before the trial Court.)
2. Plaintiffs No.1 and 2 and defendant No.1 are three brothers. The
plaintiffs father Tingu executed Will (Ex.D/4) on 3.3.1988 in favour
of his son defendant No.1 to the extent of his share, which was
challenged by the plaintiffs on the ground that Will is forged and
fabricated and defendant No.1 has no right on the basis of said Will.
The trial Court accepted the Will to be duly executed and attested in
favour of defendant No.1. In appeal, it was upheld by the first
appellate Court. Against which, this second appeal under Section
100 of the CPC has been preferred by the appellants/plaintiffs, in
which substantial question of law has been formulated and set-out
in the opening paragraph of this judgment.
3. Mr.Manoj Paranjape, learned counsel appearing for the
appellants/plaintiffs, would submit that both the Courts below have
committed legal error in holding that execution and attestation of
Will in favour of defendant No.1 by Tingu, original holder, has been
proved in accordance with law, which is liable to be set aside.
4. None present for the respondents.
5. I have heard learned counsel for the appellants/plaintiffs and
considered his submissions made herein-above and gone through
the record with utmost circumspection.
6. The short question for consideration would be, whether execution
and attestation of the Will (Ex.D-4) has been proved and
established by defendant No.1 in view of the provisions contained
in Section 63 of the Succession Act, 1925 read with Section 68 of
3
the Evidence Act, 1872?
7. It is trite law that a will as an instrument of testamentary disposition
of property being a legally acknowledged mode of bequeathing a
testator's acquisitions during his lifetime, to be acted upon only on
his/her demise, it is no longer res integra, that it carries with it an
overwhelming element of sanctity. [See Jagdish Chand Sharma
v. Narain Singh Saini (Dead) through Legal Representatives
and others 1.]
8. In order to consider the plea raised at the bar, it would be
appropriate to notice Section 63 of the Indian Succession Act, 1925
and Section 68 of the Evidence Act, 1872.
9. Section 63 of the Act of 1925 provides as under:-
"63. Execution of unprivileged Wills.--Every testator,
not being a soldier employed in an expedition or
engaged in actual warfare, or an airman so employed or
engaged, or a mariner at sea, shall execute his will
according to the following rules:-
(a) The testator shall sign or shall affix his mark to the
Will, or it shall be signed by some other person in his
presence and by his direction.
(b) The signature or mark of the testator, or the signature
of the person signing for him, shall be so placed that it
shall appear that it was intended thereby to give effect to
the writing as a will.
(c) The will shall be attested by two or more witnesses,
each of whom has seen the testator sign or affix his mark
to the Will or has seen some other person sign the Will,
in the presence and by the direction of the testator, or
has received from the testator a personal
acknowledgement of his signature or mark, or of the
signature of such other person; and each of the
witnesses shall sign the Will in the presence of the
testator, but it shall not be necessary that more than one
witness be present at the same time, and no particular
form of attestation shall be necessary."
1 (2015) 8 SCC 615
4
10. As per the provisions of Section 63 of the Succession Act, 1925 for
due execution of a will (1) the testator should sign or affix his mark
to the will; (2) the signature or the mark of the testator should be so
placed that it should appear that it was intended thereby to give
effect to the writing as a will; ( 3) the will should be attested by two
or more witnesses; and (4) each of the said witnesses must have
seen the testator signing or affixing his mark to the will and each of
them should sign the will in the presence of the testator.
11. The above-stated provision of attestation of will under Section 63(c)
of the Succession Act, 1925 by two or more witnesses has been
held to be mandatory by Their Lordships of the Supreme Court in
the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam 2.
12. Section 68 of the Evidence Act, 1872 provides as under:-
"68. Proof of execution of document required by law
to be attested.--If a document is required by law to be
attested, it shall not be used as evidence until one
attesting witness at least has been called for the purpose
of proving its execution, if there be an attesting witness
alive, and subject to the process of the Court and
capable of giving evidence:
Provided that it shall be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been registered in
accordance with the provisions of the Indian Registration
Act, 1908 (16 of 1908), unless its execution by the
person by whom it purports to have been executed is
specifically denied."
13. By the aforesaid provision, a document required by law to be
attested to have its execution proved by at least one of the attesting
witnesses if alive and it is subject to process of the court conducting
the proceedings involved and is capable of giving evidence.
2 (2003) 2 SCC 91
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However, proviso to Section 68 of the Evidence Act, 1872 is not
available in case of will.
14. In the matter of Girja Datt Singh v. Gangotri Datt Singh 3, Their
Lordships of the Supreme Court have held that in order to prove the
due attestation of will, the propounder of will has to prove that 'A'
and 'B', the two witnesses saw the testator sign the will and they
themselves signed the same in the presence of the testator. Their
Lordships while considering Section 68 of the Evidence Act, 1872
further held that from the mere signature of two persons appearing
at the foot of the endorsement of registration of will it cannot be
presumed that they had appended their signature to the document
as an attesting witness or can be construed to have done so in their
capacity as attesting witness. It was pertinently observed as
under:-
"In order to prove the due attestation of the will Ex. A-36
Gangotri would have to prove that Uma Dutt Singh and
Badri Singh saw the deceased sign the will and they
themselves signed the same in the presence of the
deceased. The evidence of Uma Dutt Singh and Badri
Singh is not such as to carry conviction in the mind of the
Court that they saw the deceased sign the will and each
of them appended his signature to the will in the
presence of the deceased. They have been
demonstrated to be witnesses who had no regard for
truth and were ready and willing to oblige Gur Charan Lal
in transferring the venue of the execution and attestation
of the documents Ex. A-23 and Ex. A-36 from Gonda to
Tarabganj for reasons best known to themselves."
*****
"One could not presume from the mere signature of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as 3 AIR 1955 SC 346 6 attesting witnesses. Section 68, Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri."
15. In the matter of H. Venkatchala Iyengar v. B. N. Thimmajamma and others 4 the Supreme Court speaking through Gajendragadkar, J., elaborately laid down the principles relating to the nature and standard of evidence required to prove a will. It was held as under:-
"(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.
(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.
(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.
(4) Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the 4 AIR 1959 SC 443 7 signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator.
(5) It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator.
(6) If a caveator alleges fraud, undue influence, coercion, etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter."
16. The principle laid down in the above-stated judgment has been followed with approval in Smt. Jaswant Kaur v. Smt Amrit Kaur and others 5, Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another 6, Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others 7 and Jagdish Chandra Sharma (supra).
17. In the matter of Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal 5 (1977) 1 SCC 369 6 (1974) 2 SCC 600 7 (2009) 4 SCC 780 8 Representatives and another 8, the Supreme Court has again reiterated the need of proving the attestation of will in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872.
18. In Surendra Pal (supra), the Supreme Court while re-stating the guidelines regarding the nature and extent of burden of proof on the propounder of a will held that propounder has to show that the will was signed by the testator; that he was at the relevant time in a sound disposing state of mind; that he understood the nature and effect of the dispositions; that he put his signature to the testament of his own free will; and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. It was further held that in cases where the propounder has himself taken a prominent part in execution of a will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence.
19. The Supreme Court in Yumnam Ongbi Tampha Ibema Devi (supra) has clearly held that the attestation of will is not an empty formality. Highlighting the importance of attestation of Will it was held it means signing a document for the purpose of testifying of the signatures of the executant. The attesting witness should put his signature on the will animo attestandi and it was held as under:-
"13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession 8 (2017) 1 SCC 257 9 Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator."
20. In Janki Narayan Bhoir (supra), the Supreme Court while considering Section 63(c) of Succession Act, 1925 and Section 68 of the Evidence Act, 1872 held that mere proof of signature of the testator on the will was not sufficient, the attestation thereof is also to be proved as required by Section 63(c) of the Act Succession Act, 1925. It was observed as under: -
"10. Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63 although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 10 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attention of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."
21. The principle of law laid down in Janki Narayan Bhoir (supra) has been followed with approval in Jagdish Chandra Sharma (supra) by which it was held as under:-
"52. While dwelling on the respective prescripts of Section 63 of the Act and Sections 68 and 71 of Act 1872 vis-à-vis a document required by law to be compulsorily attested, it was held Janki Narayan Bhoir (supra) that if an attesting witness is alive and is capable of giving evidence and is subject to the process of the Court, he/she has to be necessarily examined before such document can be used in evidence. It was expounded that on a combined reading of Section 63 of the Act and Section 68 of the 1872 Act, it was apparent that mere proof of signature of the testator on the Will was not sufficient and that attestation thereof was also to be proved as required by Section 63 (c) of the Act. It was, 11 however, emphasised that though Section 68 of the 1872 Act permits proof of a document compulsorily required to be attested by one attesting witness, he/she should be in a position to prove the execution thereof and if it is a Will, in terms of Section 63 (c) of the Act, viz., attestation by two attesting witnesses in the manner as contemplated therein. It was exposited that if the attesting witness examined besides his attestation does not prove the requirement of the attestation of the Will by the other witness, his testimony would fall short of attestation of the Will by at least two witnesses for the simple reason that the execution of the Will does not merely mean signing of it by the testator but connotes fulfilling the proof of all formalities required Under Section 63 of the Act. It was held that where the attesting witness examined to prove the Will Under Section 68 of 1872 Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects."
22. In Madhukar D. Shende (supra), which is the judgment cited by Mr. Sharma, the Supreme Court has laid down that the propounder of the will has to establish the will in the manner contemplated by law and held as under: -
"9. It is well-settled that one who propounds a Will must establish the competence of the testator to make the Will at the time when it was executed. The onus is discharged by the propounder adducing prima facie evidence proving the competence of the testator and execution of the Will in the manner contemplated by law. The contestant opposing the Will may bring material on record meeting such prima facie case in which event the onus would shift back on the propounder to satisfy the Court affirmatively that the testator did know well the contents of the Will and in sound disposing capacity executed the same. The factors, such as the will being a natural one or being registered or executed in such circumstances and ambience, as would leave no room for suspicion, assume significance. If there is nothing unnatural about the transaction and the evidence adduced satisfies the requirement of proving a will, the court would not return a finding of 'not proved' merely on account of certain assumed suspicion or supposition. Who are the persons propounding and supporting a will as against the person disputing the will and the pleadings of the parties would be relevant and of significance."12
23. Similarly, in Gopal Swaroop (supra), it has been held as under: -
"21. That brings us to the third requirement, namely, that the will must be attested by two or more witnesses each of whom has seen the testator signing and affixing his mark to the will or has seen some other person signing in the presence and by the direction of the testator. ..."
24. Reverting to the facts of the present case in light of the principle of law rendered by Their Lordships of the Supreme Court in the above-noted judgments (supra) qua execution and attestation of will by a testator, the following factual position would emerge on the face of record: -
1. Testator Tingu is said to have executed unregistered Will to the extent of his share in favour of defendant No.1 excluding his two sons namely, plaintiff No.1-Baban and plaintiff No.2-
Ramjatan on 3.3.1988 vide Ex.D-4.
2. The Will dated 3.3.1988 is said to be attested by two witnesses namely, Heeraram (DW-3) and Gambhir Sai (DW-4). They have been examined before the trial Court on behalf of defendant No.1 in which they have stated that Will was prepared at the instance of Tingu and was read over to him and after that, it was signed by Tingu and in presence of Tingu they have also signed the Will and they have seen the testator signing the Will.
25. Both the Courts below have concurrently held that Will has been attested in accordance with Section 63(c) of Succession Act, 1925 read with Section 68 of the Evidence Act, 1872 and further recorded that the plaintiffs have failed to prove force and coercion 13 used by defendant No.1 at the time of execution of Will by Tingu in his favour, as such, finding of fact recorded by two Courts below is the finding of fact based on evidence available on record, which is neither perverse nor contrary to record. I do not find any perversity or illegality in the said finding. The substantial question of law is answered in favour of defendant No.1 and against the plaintiffs.
26. Accordingly, the second appeal deserves to be and is hereby dismissed. The parties shall bear their own cost.
27. A decree be drawn-up accordingly.
Sd/-
(Sanjay K. Agrawal) Judge B/-