Allahabad High Court
Shyam Sundar & Another vs Kanti Prasad & Another on 12 January, 2018
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved On 15.12.2017
Delivered on 12.01.2018
Court No. - In Chamber
Case :- SECOND APPEAL No. - 1751 of 1999
Appellant :- Shyam Sundar & Another
Respondent :- Kanti Prasad & Another
Counsel for Appellant :- Krishna Murari,H.M.B. Sinha
Counsel for Respondent :- M.K.Gupta,Alka Srivastava,Pankaj Agarwal,S.Shekhar,Santosh Kumar Srivastava
Hon'ble Ajit Kumar,J.
Heard Shri H.M.B. Sinha, learned Advocate for the appellants and Shri V.K. Singh, Senior Advocate assisted by Shri S. Shekhar Advocate for the respondents.
This Second Appeal was admitted on 23.12.1999, on the substantial questions of law No. III as framed in the memo of appeal:
"III. Whether the lower appellate court was justified in allowing the additional evidence at the appellate stage although none of the conditions mentioned in the Order 41 Rule 27 of the C.P.C. For production of Additional evidence in appellate court exist in the case."
Learned Senior Advocate, Shri V.K. Singh argued that said (supra) substantial question of law does not arise in the present appeal inasmuch as the substantial question of law No. III is not at all substantial question of law.
Coming to the basic pleading of the parties, the plaintiff-appellant herein instituted suit seeking declaratory decree in respect of three properties given in the foot of the plaint as Schedule A, B & C. The claim set up by plaintiff-appellant is that husband of the defendant No.1 (Smt. Ramo Devi) executed Will on 02.02.1949 with free mind, and without any pressure in respect of the Scheduled properties in his favour and, therefore, on his death on 20.08.1983, he became owner of the suit properties. He further claimed to be co-partner in the business of religious rituals that used to be performed by late Mange Lal on the bank of river in Garh Mukteshwar and so he claimed to have continued in possession of the properties and thus the decree of permanent prohibitory injunction was prayed for in the suit.
The defendants denied all allegations of the plaint and claimed that alleged Will was fraudulently prepared for the purpose to somehow grab the entire property of late Mange Lal as the defendant No. 1 being widow of late Mange Lal was having absolute title by succession.
The Will was produced in original before the trial court by the plaintiff himself from his possession and one Lallu Dutta was produced as one of the attesting witnesses to prove the Will.
Plaintiff further produced a letter dated 03.04.1982 written by the plaintiff to Mange Lal, the testator of the Will in which he asked Mange Lal not to make any further clarification about the rights relating to properties and not to open such issues which have already got settled by both of them mutually. The defendants claimed that this letter was written in response to a declaration got published by Mange Lal in weekly newspaper 'Jwala' denying signing of any document creating or bestowing any right in respect of his properties and if someone had any such document he disowned the same and declared that one might keep such document at his own risk as it would not create any right in favour of any such person.
The plaintiff claimed to have proved the Will as required under Section 68 of the Indian Evidence Act, 1863 as one of the attesting witnesses deposed and proved the Will before the Court and thus plaintiff claimed to have established absolute right to the suit property to the exclusion of all person including the widow, the natural successor of late Mange Lal.
The trial Court recorded findings of fact regarding proof of the Will in respect of scheduled properties A and B but claim regarding Schedule ''C' property was rejected as it not being the property of the testator of the Will. Thus the suit was decreed in respect of Schedule A & B properties and was dismissed regarding Schedule ''C' properly. The plaintiff did not prefer any appeal and thus is satisfied with the decree of the trial court.
The defendants filed civil appeal under Section 96 of Code of Civil Procedure (hereinafter referred to as "Civil P.C.") against the judgment and decree of the trial court. At the stage of appeal after getting copy of newspaper 'Jwala' (relevant page) dated 14.02.1982 from the office of the publisher the appellant filed the same as additional evidence under Order 41 Rule 27 Civil P.C. The plaintiff filed objection but the same was rejected and the lower appellate court admitted the additional evidence. The publisher Shri Devi Prasad Gaur was produced by the defendants who did not deny the publication and its contents as forged but said who issued this copy of newspaper from his office he did not know. He however, claimed that any one on payment can obtain copy of newspaper. He did not cast any doubt regarding newspaper and its content saying whoever wanted to publish such item could do so on payment and such article/item/news used to be published in the said newspaper.
The lower appellate court after appreciating the entire oral and documentary evidence relied heavily upon the newspaper publication and letter of the plaintiff in reply to the news item and held that the execution of alleged Will was surrounded by suspicious circumstances and created serious doubt regarding factum of execution of the Will. Further the suspicious circumstances could not be ruled out as the age of person who executed his Will was just 40 years on the date of the alleged execution of Will and lived 30 years further thereafter. The lower appellate court held no one could be presumed to write a Will at such a young age nor, there appeared any compelling circumstance for such a person to write his Will at the age of 40 years. Thus the decree of trial court was set aside and suit of the plaintiff was dismissed rejecting the Will and any right flowing from the same to the plaintiff.
In this second appeal arguments advanced by learned counsel for the appellants are:
A. The court below manifestly erred in allowing additional evidence at the stage of appeal;
B. The court instead of appreciating a new additional evidence should have remitted the matter to trial court;
C. The Will was proved as per Section 68 of the Indian Evidence Act, 1863; and D. The findings of court below that execution of Will was surrounded by suspicious circumstances is perverse.
Per contra, learned counsel for the respondents submitted as under:
A. The will was never written and executed by the late Mange Lal;
B. The lower appellate Court has absolutely correctly recorded finding to the effect that the Will claimed cannot be ruled out to be one without suspicious circumstances;
C. There was nothing wrong with the order allowing additional evidence as the court had the jurisdiction and so correctly exercised the same; and D. There arises no substantial question of law in this appeal for consideration of the Court.
Coming to the substantial question of law ''III' on which this appeal was admitted, I find that this document if admitted as an additional evidence in the given facts and circumstances, did not cause any serious prejudice to the plaintiff as he himself admitted to have written a letter in response to the news item (declaration) which letter was already brought on record by the plaintiff himself. So bringing this document on record only advanced the cause of justice. In fact, substantial justice has been done for proper adjudication of lis between the parties. Rule 27 of Order 41 Civil P.C. reads as under:
"27. Production of additional evidence in Appellate Court- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or [(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or]
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause, the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission. "
The argument advanced by the learned counsel for appellant that the conditions that have been laid down for allowing an application under Rule 27 of Order 41 were not fulfilled and therefore, it is a substantial question of law that in the absence of the necessary condition being met the lower appellate court was not justified in allowing the application for additional evidence and thus admitting a newspaper publication dated 14.02.1982 as additional evidence by the defendants was a manifest error of law. The provision as contained in Rule 27 (supra) in no manner of doubt gives discretion to the Court to admit an additional evidence where oral or documentary evidence at the stage of appeal in the discretion Court is required to enable it to pronounce judgment or for any other substantial cause. The Court below has recorded cogent reason for admitting the evidence in its order dated 24.09.1999 giving opportunity to plaintiff to lead evidence in rebuttal and I find justification for the same also because newspaper which has been produced as an additional evidence was obtained only from the publisher. Explaining justifiable reason for not filing a document at the stage of trial to enable the court to record its satisfaction for allowing additional evidence at appellate stage is only one aspect. Considering the scope of Order 41 Rule 27 of Civil P.C. as an enabling provision to file additional evidence at first appellate and second appellate stage the Supreme Court in the case of Union of India v. K.V. Lakshman & others1 the Court held thus:
"...After all, the Court has to do substantial justice to the parties. Merely because the Court allowed one party to file additional evidence in appeal would not by itself mean that the Court has also decided the entire case in its favour and accepted such evidence. Indeed once the additional evidence is allowed to be taken on record, the appellate Court is under obligation to give opportunity to the other side to file additional evidence by way of rebuttal."
Moreover, in view of fact that plaintiff had already led evidence at the stage of trial in the form of paper no. 29c which was a letter written by plaintiff himself in response to the declaration made by the testator in the newspaper bringing in such evidence is corroborative in nature. The plaintiff himself admitted such declaration and newspaper. So once declaration in the newspaper was not doubted, a mere admission of such newspaper in evidence by the lower appellate court could not be said to have caused any prejudice to the other side. It is not an evidence which can be said to have explored a new fact and which can be said to have made out a new cause or defence.
The court is fully empowered to admit additional evidence at the stage of appeal. Procedural laws are meant to advance the course of justice and not impede the same. Moreover, the law provides a discretion in the hands of court and exercise of such discretion is not without jurisdiction and if the question is how the court exercised such discretion it could be said to be a question of law only. Judicious approach to admit evidence could be justiciable if appeal is admitted but could not be termed an exercise not vested in law to make it as a substantial question of law to maintain second appeal in the given facts and circumstances of the case. It is a fact that after additional evidence was admitted it was not assailed of further and publisher was summoned in witness box and was cross-examined and that being so, I fully agree with the learned counsel for the respondents that question No. ''III' as framed is not a substantial question of law arising in this appeal nor, it can be said that court below manifestly erred in exercising power and discretion under Rule 27 of Order 41 Civil P.C. Considering the scope of Sub section 5 of Section 100 Civil P.C. that gives right to the respondent to argue at the stage of hearing that appeal does not involve substantial question of law in fact will include also the right to argue that a particular substantial question of law is not a substantial question of law involved in the appeal. Substantial question of law is born out of the facts of a particular case. Pleading raised by rival parties are specific to a case and so a point raised may be substantial question of law in one, case may be only a question of law in other case, of course depending upon the pleadings raised and evidence led.
Although this appeal had been admitted only on a substantial question of law no. III for the hearing of appeal but learned counsel for appellants has also pressed for substantial question of law no. I as framed in memo of appeal:
"I. Whether, the lower appellate court was justified in placing reliance upon the additional evidence adduced at the appellate stage and which was not proved in accordance with law."
Once it is held that Court did not fell in error of law or fact in admitting additional evidence and that the editor of the newspaper was also got examined, it is quite natural that the Court shall also appreciate such documentary evidence and it would be a totally an argument misplaced that lower appellate court was not justified in appreciating additional evidence. The question as to whether the lower appellate court was justified in placing reliance upon additional evidence can safely be answered in affirmative because the plaintiff himself had led evidence in the form of paper no. 29c, a letter dated 1.03.1982, in response to the declaration in the newspaper made on 14.02.1982 (led in additional evidence). The contents of the letter dated 1.03.1982 clearly show that the plaintiff got disturbed by declaration made in the newspaper on 14.02.1982 by testator to the effect that he was the sole owner of the property and if any document had got signed or any thumb impression had been taken by the plaintiff on any plain paper of Mange Lal then any content of such document will all be forged and fraudulent one and would not create any legal right in favour of the plaintiff. Under the circumstances, if the plaintiff himself led an evidence paper no. 29c, letter dated 01.03.1982 in which he questioned the statement/declaration made by Mange Lal in the newspaper on 14.02.1982, it becomes an admission by the plaintiff himself of such publication made at the instance of Mange Lal. The law is very much clear that admission is the best piece of evidence and if on such admitted evidence the lower appellate court had placed reliance then it did not commit any manifest error either in law or on facts. Hence the argument advanced by the learned counsel for the appellant that the court below wrongly placed reliance on additional evidence is highly misplaced an argument and is liable to be rejected and is hereby rejected.
Further court of first appeal is also a court of fact and is fully entitled to appreciate evidence both oral and documentary. Evidence by plaintiff to prove claim of title itself creates doubt over execution of Will and further documentary evidence referred to in the evidence led by plaintiff, if admitted as an additional evidence, could have always been appreciated in appeal and I do not think that there was any error of law much less a substantial one in doing so by the court below.
The substantial question of law No. II as framed in memo of appeal:
"Whether, the lower appellate court was justified in discarding the will which was duly proved in accordance with law before the trial court merely holding that the circumstances are suspicious."
is heavily asserted by the appellant at the time of hearing of appeal. The argument advanced that the Court below was not justified in discarding Will as it was duly proved as per Section 68 of the Evidence Act, requires close scrutiny of findings recorded by the court below so as to appreciate whether there is any error apparent on the face of record to find fault with the findings recorded by the lower appellate court and to render it perverse.
The learned counsel for appellant has argued broadly placing reliance upon the testimony of the plaintiff and the attesting witness Lallu Datta. Now it is to be seen as to whether the Will stood proved as per the Section 68 of the Evidence Act and the attestation of the Will as claimed by the plaintiff stood satisfied as per Section 63 of the Succession Act, and did not warrant any further discussion by the lower appellate court over the findings recorded by the trial court in favour of the Will, or there were attending circumstances as to the time the Will being executed and the manner of its attestation which can be said to have created suspicious circumstances and the Court was to travel beyond the testimony of attesting witnesses to rule out any possibility of existence of suspicious circumstances to uphold the Will. The plaintiff made a statement before the trial court that he was in possession of most of the properties and that certain properties were jointly purchased by him along with one Mange Lal who was issueless and that his wife was not residing with him and so Mange Lal executed a Will of his entire property out of his free Will in favour of the plaintiff and that at the time of execution of the will he was present. After the will was written it was read out to all the persons present and that Mange Lal signed the Will in his presence and other attesting witness Shri Mathura Prashad, Shri Lalla Ram, Shri Kali Ram and Shri Lallu Ram had singed the Will as attesting witnesses. During the cross-examination, he stated that certain properties were also purchased after the Will was executed and that certain constructions were made in 1965, 1970 and 1980. What is very interesting to note that plaintiff had stated that Will was written at the residence of Mange Lal.
The witness Lallu Datta son of Pandit was claimed to be one of the ten attesting witnesses of the Will and it was he only who was produced by the plaintiff to prove the Will. In his statement Lallu Datta had clearly stated that Will was written before him by one Shri Vishamber Shah and it was written at the residence of Vishamber Shah and in that room 10 to 15 persons were present. He stated that the Will was written on 02.02.1949 and at that time Mange Lal was having good health. During cross-examination he stated that Will was got written by Vishamber Shah at his residence but he did not know as to why so much of witnesses were called for. He further stated that he, in fact, had gone to a Vaidya to take medicine since Vaidya did not meet him, he went to one Mangu Hakim where he had singed the Will. Thus it is clear that he did not sign Will either at the residence of testator Mange Lal or at the residence of the Will writer Vishamber Shah and he admits at the same time that Will came to be written at the residence of Vishamber Shah. This is the sole attesting witness who has been produced and he himself is not sure as to where the Will was written and it is also clear from his statement that it was per chance he happened to sign the Will otherwise he had no occasion to visit purposefully to sign the Will. He had, in fact, gone to take medicine from another person. He admits that he has no relation with Mange Lal but he is closely associated with the plaintiff from his childhood days. Thus it is clear that he has turned up to the witness box only to prove his signature on the document. He has not been able to prove and establish that Will was written before him or that he happened to sign document at the residence of Mange Lal only whereas the plaintiff to the contrary has stated that the Will was written at the residence of Mange Lal and, all the witnesses including Lallu Datta had signed after it was written and read out there itself.
In view of the above statement of facts made by the sole attesting witness, it is very much clear that he did not sign document in question, in presence of other attesting witnesses and therefore, the requirements as provided for attestation of a document under Section 63 of the Succession Act is not met and in view of this also the Will cannot be said to be proved by a sole attesting witness produced as required under Section 68 of the Evidence Act.
Suspicious circumstances mean circumstances creating doubt over creation and existence of an event which is questioned. The person placing reliance on happening of such an event has to lead evidence sufficient enough to rule out such suspicious circumstances.
In the present case four questions do arise creating suspicion about execution of the Will:
A. Why would a man in his 40s when healthy would execute a Will and then handover the same to the beneficiary the same.
B. Why a person would bestow his entire property to a person who is not related to him while his own wife is alive.
C. Why would testator require a number of persons 10 in number in the present case to be attesting witness.
D. Why a Will would be written at a third person's place and would require attestation by person not close to testator.
The Court will certainly not presume answer to any of such questions in the negative but the statement of the person producing the Will and claiming rights thereunder, and those of attesting witness who is produced to prove the execution of the Will, may be sufficient enough to create enough room of doubt in the mind of the court appreciating oral evidence, or to dispel any such suspicion.
The circumstances that would normally lead to genuineness are that Will is got written by the testator while he grows old and has no hope of his life prolonging any further and he wants to remove chances of litigation amongst the successors if more than one or to oust a natural successor for his ill treatment towards him as would be made apparent through the contents, attesting witnesses are close to the testator and are men of confidence and the Will is got written and signed in presence of close friends and relative who would be attesting witnesses and in the knowledge of testator are men who may ensure that Will is honoured.
Though the above stated circumstances are not exhaustive but if present would appeal to a prudent mind that document of Will is genuine, though still required proof of its due execution as per Section 68 of the Evidence Act.
In the present case all the above stated circumstances are lacking and statements of plaintiff, the beneficiary of the Will and those of attesting witness Lallu Datta further create enough room of doubt to strengthen the point that Will in question is surrounded by the suspicious circumstances. As discussed in earlier part of this judgment, the plaintiff very clearly stated that Will was got written by testator Mange Lal at his own residence and in his presence and all the attesting witnesses were read out the contents of it and signed the same and admitted that Mange Lal was quite healthy at the time of execution of Will. However, the attesting witness Lallu Datta claimed that he had gone to a Vaidya (Ayurvadic Doctor) to take medicine on that day and since Vaidaya was not available so he went to plaintiff's house and Mangu Haquim and there he happened to sign the Will. So in any case he was not aware that any Will was being executed on that day. He also admitted that he was not having any close relation with Mange Lal and had met him one or two times. Though in his affidavit he stated that Mange Lal was healthy but in cross-examination he claimed that Mange Lal was not having good health. He did not claim any acquaintance with other attesting witnesses but claimed all of them signed before him. However, he denied to have any knowledge as to why a large number of witnesses were called for.
Thus from oral statements referred to above this much is clear that regarding place of writing and execution of the Will, statements of above two witnesses are contradictory. While plaintiff claimed Will was written at the place of Mange Lal, the attesting witness stated otherwise. As he stated to have visited plaintiff's place and Mangu Haquim and signed the Will and then stated Vishambher Shah wrote it at his residence, it appears quite easy to understand that this attesting witness Lallu Datta had not seen the event of writing of the Will and its execution by testator. He in fact never visited the house of Mange Lal and Vishamber Shah. According to his own statement, he had gone to take medicine at Vaidya's place and then visited plaintiff's place. It can very genuinely be understood that plaintiff got this witness to sign the document of alleged Will and produced him to prove the same. It remains a totally unanswered a circumstance as to why Mange Lal would get the Will attested by a witness who is completely stranger to him and happened to meet him, if so, per chance on the day when alleged Will is stated to have been executed. It appears from the circumstances and appeals to reason that plaintiff got the document signed by a large number of persons as attesting witnesses to produce any of them as and when required.
However, the theory of ill health by attesting witness during cross-examination contradicts his statement in affidavit that at the time of execution of the Will testator was having good health. This earlier statement finds support also from the statement made by the plaintiff himself that at the time of execution of the Will testator Mange Lal was keeping good health. The statement made by plaintiff does not anywhere show that there was any such compelling circumstance for Mange Lal to execute Will in his favour at such an early age of 40 years. Instead, the statement reiterates about many properties jointly held and about joint business which would rather show that Mange Lal being issueless, possibly the plaintiff himself got the document prepared after getting signatures on blank papers of Mange Lal, while at the time of execution of various deeds as he himself claimed to have won the trust of Mange Lal as according to him, wife of Mange Lal was living elsewhere. This is not being presumed but is proved from various circumstances attending alleged execution of Will and also the letter written by plaintiff himself to Mange Lal on 01.03.1982 in reply to a declaration made by Mange Lal in Hindi weekly newspaper dated 14.02.1982, in which Mange Lal had very clearly stated about dispute being created by the plaintiff regarding properties and further about signing of certain papers which can be misused by Rama Shankar, the plaintiff. As discussed earlier, there was a clear declaration by Mange Lal in the newspaper that he did not nominate any successor to his property nor, did he execute any such document, and if any such execution had been got done then it was an act of forgery and no recognition should be given to such document. The contents of the letter written by the plaintiff Rama Shanker in reply to the above declaration clearly shows his anger and caution for Mange Lal that he should not take his steps back with regard to the settlement of properties that had already arrived between them. The letter confirms stand of Mange Lal who declared to have never executed any document creating any nomination or succession regarding his property in favour of any person. These two documents clearly demonstrated that there was some earlier dispute regarding property may be joint between the plaintiff and Mange Lal and it is quite possible that during settlement if any, such document got signed by Mange Lal at the instance of the plaintiff which Mange Lal could not know. Will is a document which is written out of free will and volition and also out of love and affection by the testator and it is therefore, required that any suspicious circumstance if exists the burden lies heavily upon beneficiaries of such document to rule out any such suspicious circumstance. Merely because a witness claimed to be an attesting witness and has been produced and he has deposed that the Will was genuinely executed, does not mean that all such suspicious circumstances are removed that would otherwise create doubt regarding happening of such an event.
From the above discussion, it is quite clear that Lallu Datta, the attesting witness had not seen the signing of the Will by its testator nor, did he witness the other attesting witness putting their respective signatures on the document of Will in question. In the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam2 the Court held thus:
"8. To say a will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e. (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the will, or must have seen some other person sign the will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of a will is its attestation by two or more witnesses, which is mandatory.
10. Section 68 of the Evidence Act speaks of as to how 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 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 does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be called for proving due execution of the will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a court of law by examining at least one attesting witness even though the 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 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 attestation 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. " (emphasis supplied) A question of law needs no proof. It is applied to a fact and if the fact fits in law, it is declared proved. The legal principle as has been enunciated with regard to execution of document of Will in respect of its due execution vis-a-via provisions as contained under Section 63 of the Succession Act and its proof under Section 68 of the Indian Evidence Act, it is to be seen as to the fact in respect of suspicious circumstances surrounding the Will has been proved in the negative to dispel the all doubts regarding execution of such document or not. A mere fulfillment of statutory requirement of proof of the Will, will not atomatically result in ruling out suspicious circumstance surrounding the Will. In the case of Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria and Others3 the issue of ruling out of suspicious circumstances surrounding the Will has come to be discussed at a great length and it has been held thus:
"20. Whether a will is surrounded by suspicious circumstances or not is essentially a question of fact. We have noticed hereinbefore that there were a large number of suspicious circumstances in the instant case. We have also pointed out that suspicious circumstances appear on the face of the will. Inferences of suspicious circumstances must be drawn having regard to the evidence of Ranjit Singh. Even the statutory requirements for proof of the will have not been complied with. It is trite law that execution of a will must be held to have been proved not only when the statutory requirements for proving the will are satisfied but the will is also found to be ordinarily free from suspicious circumstances. When such evidences are brought on record, the court may take aid of the presumptive evidences also."
In the said case (supra), the Court has also relied upon the judgment of Anil Kak v. Sharada Raje4 wherein it has been held that the person claiming rights under the Will is to prove execution of the same like any other document by adducing such evidence as may be necessary to the satisfaction of the Court. In the instant case, I am of this considered opinion that except the statement of plaintiff and that of Lallu Datt the sole attesting witness out of 10 who was produced, there is no other evidence led to prove the Will. As the statement of the sole attesting witness itself contradictory and does not remove the doubts and the attending suspicious circumstances surrounding execution of the Will, it cannot be said that Will in question in this case was proved by the plaintiff. The statement of plaintiff and that of the attesting witness Lallu Datt are also contradictory to each other with regard to place and execution of the document of Will and this being the outcome of the statements of plaintiff and the attesting witness, the substantial question of law no. II is answered in negative against the plaintiff-appellant.
In view of the above the judgment and decree passed by the XIIIth Additional District Judge, Ghaziabad in civil appeal no. 34 of 1992 dated 24.09.1999 is hereby confirmed. This appeal is accordingly dismissed.
Cost made easy.
Order Date :- 12.01.2018 S. Thakur (Ajit Kumar J.)