Himachal Pradesh High Court
Sohan Lal & Another vs Thakur Dass & Others on 10 July, 2019
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 524 of 2004 Reserved on: 02.07.2019 Decided on: 10.07.2019 __________________________________________________________ .
Sohan Lal & another .....Appellants.
Versus Thakur Dass & others ......Respondents. ____________________________________________________ Coram The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
1 Whether approved for reporting? Yes. ____________________________________________________ For appellant No. 1: Mr. P.P. Chauhan, Advocate.
For appellant No. 2:
For the respondents: to Mr. Tara Singh Chauhan, Advocate.
Mr. Ramakant Sharma, Sr. Advocate, with Ms. Devyani Sharma, Advocate.
Chander Bhusan Barowalia, Judge.
The present regular second appeal has been maintained by the appellants, who were the defendants amongst others before the learned Trial Court (hereinafter referred to as "the defendants"), laying challenge to the judgment and decree, dated 14.10.2004, passed by learned Additional District Judge, Solan Camp at Nalagarh, District Solan, H.P., in Civil Appeal No. 46-NL/13 of 2002, whereby the appeal filed by the respondent, who was plaintiff before the learned Trial Court (hereinafter referred to as "the plaintiff) was partly allowed and defendants No. 1 to 6, 12 and No. 7 to 11 were held as owners-
in-possession of the suit land to the extent of 1/9th share each 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.::: Downloaded on - 29/09/2019 00:38:20 :::HCHP -2-
and a decree was granted in favour of the plaintiff for permanent injunction restraining the defendants No. 1 and 2 from alienating the share of the plaintiff in the suit land.
2. The key facts of the case can tersely be summarized .
as under:
The plaintiff maintained a suit seeking declaration that he is co-sharer-in-possession of the land measuring 13 bighas, 7 biswas, being 10/18 shares of land measuring 23 bighas, 19 biswas situated in village Bhatauli and Kasauli, Pargana Gullarwala, Tehsil Nalagarh, District Solan, H.P. (hereinafter referred to as "the suit land"). The plaintiff also contended that the defendants have no right, title and interest over the suit land and he sought the relief of permanent prohibitory injunction restraining the defendants from alienating the suit land and trees standing thereon and in the alternative for joint possession. As per the plaintiff he was born to Smt. Akki and from the loins of Shri Chuhra. Smt. Anto, predecessor-in-title of proforma defendants No. 7 to 11 and Smt. Shakuntla, proforma defendant No. 12, were also born to Smt. Akki. He has further contended that after the death of Smt. Akki, Shri Chuhra married with Smt. Kishni (defendant No. 3) and subsequently defendants No. 1, 2, 4 and 6 were born to her. The plaintiff and Shri Chuhra had joint Hindu family and they purchased the suit land and other property to the extent of ½ share through trust for the plaintiff. The plaintiff ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP -3- further contended that defendants No. 1 to 6 are admitting his claim that he is co-sharer-in-possession of the suit land by his act, conduct and acquiescence and defendants No. 7 to 12 also admitted the plaintiff to be the co-sharer. Earlier the plaintiff .
and his father, Shri Chuhra, used to reside at Mastanpura and subsequently they shifted to village Bhatauli and ultimately they came to village Karsoli. The plaintiff has further contended that he and his father built a residential house and also installed a well by contributing ½ shares each. As per the plaintiff, Shri Chuhra died intestate and defendants No. 1 to 6 got the revenue entries change in their favour and for effecting such entries they forged a Will. So, in view of the above contentions, the plaintiff sought a decree for declaration with consequential relief for permanent prohibitory injunction and in the alternative for joint possession.
3. Defendants No. 1 to 3 (i.e., Shri Sohan Lal, Shri Joginder Lal, both sons of deceased Chuhra and Smt. Kishani, widow of Shri Chuhra, respectively) contested the suit of the plaintiff. They raised preliminary objection of maintainability.
On merits, defendants No. 1 to 3 contended that the plaintiff started maltreating Shri Chuhra and his step mother Smt. Kishani, so Shri Chuhra started living separately. Defendants No. 1 to 3 further contended that in the year 1958 Shri Chuhra purchased land measuring 22 bighas, 11 biswas, in village Bhatauli from Gurbax Singh, Shri Gurdayal Singh, Shri ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP -4- Harnam Kaur for consideration of Rs. 3500/-. Shri Chuhra also purchased land measuring 1 (one) bigha, 16 biswas in village Bhatauli for Rs. 400/- and land measuring 5 bighas, 13 biswas was exchanged with one Shri Dharam Singh. So, the property .
of Shri Chuhra was self acquired property, as he purchased it by spending his money, which he used to earn from tailoring.
As per defendants No. 1 to 3, the plaintiff used to reside in different villages and he has no concern with the suit land. Shri Chuhra (deceased) executed a valid Will in favour of the defendants and mutation consequent thereto was also attested.
Defendants No. 1 to 3 prayed that the suit be dismissed.
4. r Defendants No. 4 to 6 filed a separate written statement. They denied the contentions of the plaintiff and asserted that the suit land is self acquired property of the deceased and the plaintiff has no concern in the suit property.
These defendants prayed that the suit be dismissed.
5. Defendants No. 7 to 12 also filed separate written statement and they conceded to the claim of the plaintiff.
6. The plaintiff filed replication and refuted the contentions of the defendants. He reiterated the averments made in the plaint.
7. The learned Trial Court on 28.05.1998 framed the following issues for determination and adjudication:
"1. Whether this suit property is joint Hindu family and coparcenary property in the hands of deceased Sh. Chuhra as alleged? OPP ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP -5-
2. If issue No. 1 is proved whether the plaintiff is co-owner and co-sharer in the suit property? OPP
3. Whether the plaintiff is entitled for the relief of injunction? OPP
4. Whether deceased Sh. Chuhra executed legal and valid Will dated 8.8.95 in .
favour of the defendant No. 1 to 3? OPD 1-3
5. Whether the suit is not maintainable in the present form? OPD 1-3
6. Whether the plaintiff has no cause of action? OPD 1-3
7. Relief."
8. After deciding issues No. 1 to 3 against the plaintiff, issue No. 4 in favour of defendants No. 1 to 3, issue No. 5 against defendants No. 1 to 3, issue No. 6 against the plaintiff the suit of the plaintiff was dismissed. Subsequently, the plaintiff preferred an appeal before the learned Lower Appellate Court, which was partly allowed, vide impugned judgment dated 14.10.2004, hence the present regular second appeal, which was admitted for hearing on the following substantial question of law:
"Whether the propounder of the Will is discharged of his onus of proving the execution of Will by examining both the attesting witnesses. The onus thereafter Will shift on the person challenging the Will to the unconscionability of the Will, if so its effect thereto."
9. I have heard the learned Counsel for the appellants and the learned Senior Counsel for the respondents and have carefully gone through the records.
10. Mr. P.P. Chauhan, learned Counsel for appellant No. 1 has argued that the learned Lower Appellate Court has passed the impugned judgment and decree ignoring ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP -6- all the material facts which were brought on record and the learned Lower Appellate Court has failed to appreciate the fact that the Will was duly proved as per Section 63 of The Indian Succession Act, 1925. Mr. Tara Singh Chauhan, learned .
Counsel for appellant No. 2 has also argued that the Will executed by the deceased in favour of the appellants is valid and the same is as per Section 63 of the Act. He has argued that the appeal be allowed the impugned judgment of the learned Lower Appellate Court be set aside.
11. Conversely, the learned Senior Counsel for respondents No. 1 to 6 has argued that the Will in question failed the test of Section 63(c) of The Indian Succession Act, 1925, as the attesting witness, Shri Nirmal Singh (DW-3) while appearing in the Court did not state that he put his signatures on the Will. He has argued that due to non-compliance of Section 63(c) of The Indian Succession Act, 1925, the present appeal is liable to be dismissed. He prayed that the appeal be dismissed, as the same is devoid of merits. In order to draw lateral support to his arguments the learned Senior Counsel has relied upon the following judicial pronouncements:
1. Girja Datt Singh vs. Gangotri Datt Singh, AIR 1955 SC 346;
2. Gopal Swaroop vs. Krishna Murari Mangal & others, (2010) 14 SCC 266.
12. In rebuttal, the learned counsel for the appellants have argued that after re-appreciating the evidence and law, the ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP -7- appeal be allowed the impugned judgment rendered by the learned Lower Appellate Court be quashed and set aside.
Learned Counsel appearing for appellant No. 2 has relied upon the decision of Hon'ble Kerala High Court rendered in K.M. .
Varghese and others vs. K.M. Oommen and others, AIR 1994 Kerala 85.
13. In order to appreciate the rival contentions of the parties I have gone through the record carefully.
14. The controversy in the case in hand mainly relates to Section 63(c) of the Indian Succession Act, 1925 (hereinafter referred to as "the Act"). At the very outset the same is extracted hereunder:
"Section 63 in The Indian Succession Act, 1925
63. Execution of unprivileged Wills. --
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [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 ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP -8- presence and by the direction of the testator, or has received from the testator a personal acknowledgement 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."
Thus, as highlighted above, as per the mandate of Section 63(c) of the Act, a Will is to be attested by two or more witnesses, each of them must have seen the testator of the Will putting his/her signatures or affix mark on the Will and the witnesses must put their signatures on the Will in the presence of the testator. Thus, Section 63 of the Act lays down conditions qua proof of execution of valid Will. A Will has to be proved in the manner provided in Section 63 of the Act. Section 63(c) clearly provides that a Will has to be attested by two or more witnesses, but it is not mandatory that both these witnesses should be present simultaneously and they put their signatures in each others' presence. The mandatory requirement is that these witnesses must have seen the testator signing the Will or affixing his mark thereon or they have received personal acknowledgement from the testator of his signature or mark on the Will. Besides this, other mandatory prerequisite is that the attesting witnesses of the Will must sign the Will in presence of the testator.
::: Downloaded on - 29/09/2019 00:38:20 :::HCHP -9-15. Thus, in view of mandatory requirements laid down by Section 63 of the Act the propounder of the Will must prove that the attesting witnesses saw him signing the Will or affixing his mark thereon and they also signed in his presence.
.
16. In the above backdrop, it can safely be held that a Will has to be attested by at least two witnesses and they must sign or affix their mark in presence of the testator and the testator also sign the Will or affix his mark in presence of the attesting witnesses. Thus, the law provides that for a valid Will, it should be attested by two witnesses. The law also postulates that in case a document is required to be attested then it must be proved in the manner provided under Section 68 of the Indian Evidence Act, 1872. Section 68 of the Indian Evidence Act, 1872, for ready reference is extracted hereunder:
"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: 1[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 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.]"::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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Thus, in view of the mandate of law ingrained in Section 68 of the Indian Evidence Act, due execution and attestation of the Will can only be proved by calling at least one attesting witness of the Will, in case he/she is alive. So, in view of the law, as .
discussed hereinabove, now this Court has to see the testimonies of witnesses examined by both the plaintiff and the defendants.
17. Will, Ex. D-4, in question is dated 08.08.1995. As per the testimony of DW-2, Shri Raj Kumar Sharma, who purportedly is the Scribe of the Will, Ex. D-4, stated that he scribed the Will on the instructions of Shri Chuhra Ram (testator) and Shri Nirmal Singh, DW-3 and Shri Charan Singh, DW-4, were present there. He has further deposed that the Will was readover to the testator and thereafter he affixed his thumb mark thereon. As per this witness, the witnesses also thumb marked and signed the Will at his instance. DW-3, Shri Nirmal Singh was the witness of the Will. Thereafter, he entered the Will in his register at serial No. 540. He also signed the Will and thumb marked the same. Subsequently, the Will was presented before the Sub-Registrar. This witness, in his cross-
examination feigned ignorance that what was the time of scribing the Will. He deposed that he was not acquainted with Shri Chuhra Ram (testator) and could not say that on that day Shri Chuhra Ram was wearing spectacles.
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18. DW-3, Shri Nirmal Singh, who is a witness to the Will deposed that on 08.08.1995 he and Shri Charan Singh, DW-4, went to Nalagarh with Shri Chuhra Ram (testator), where he got scribed a Will from Shri Raj Kumar, DW-2. As per this .
witness, Shri Chuhra Ram signed the Will after admitting its veracity and truthfulness. Thereafter, the Will was registered and presented before the Sub Registrar. As per this witness, Shri Chuhra Ram was of sound mind and admitted the execution of the Will. This witness, in his cross-examination, deposed that they reached to the Scribe prior to 09:00 a.m. and in between 10-11 a.m. he signed the Will and 12 noon the Will was presented before the Sub Registrar.
19. DW-4, Shri Charan Singh, is also an important witness in the instance case, as he is second attesting witness of the Will in question. He deposed that Shri Chuhra Ram took him and Shri Nirmal Singh (DW-3) for execution of the Will. As per this witness, Shri Chuhra Ram, after admitting the correctness of the Will, affixed his thumb mark on the Will and Shri Nirmal Singh also signed the same. Thereafter, the Will was presented before the Sub Registrar and there also Shri Chuhra Ram admitted the execution of the Will. He has further deposed that before the Sub Registrar also they signed. This witness, in his cross-examination, deposed that Shri Chuhra Ram executed the Will to the persons who were looking after him. Subsequently, the Sub Registrar signed the Will and sent ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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the same to Clerk, before whom thumb impressions were obtained and thereafter they again appeared before the Sub Registrar.
20. In the wake of what has been stated by the key .
witnesses and also keeping in mind the settled position of law, as discussed hereinabove. The present is a case where the Will is not proved, as evidence clearly establish that the Will could not succeed the rigors of Section 63(c) of the Indian Succession Act, 1925, provisions whereof are mandatory in nature. The reasons for not succeeding are that admittedly Will in question is a document of two sheets and both these sheets must bear the thumb impression of the testator, but both the attesting witnesses do not depose that Shri Chuhra Ram (testator) affixed his thumb marks on both the sheets. Shri Nirmal Singh, DW-3, referred to signing of the Will by Shri Chuhra Ram, but DW-4, Shri Charan Singh, deposed that the Will does not bear the signatures of Shri Chuhra Ram and it bears his thumb impression. Thus, there is clear deviance inter se the depositions of DW-3 and DW-4 and the same is not ignorable, especially in view of the position of law. In fact, Shri Nirmal Singh, DW-3, did not say that the Will was also signed by him and Shri Chuhra Ram (testator) affixed his thumb mark thereon. Thus, Shri Nirmal Singh cannot be said to be attesting witness of the Will, Ex. D4. Similarly, as per DW-4, Shri Charan Singh, deposed that he alongwith Shri Nirmal Singh ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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signed the Will, but Will, Ex. D4, allegedly contains his thumb impression and not his signatures. Thus, the fact as narrated by DW-4 that he signed the Will stands clearly proved otherwise. The testimony of DW-4 further reveals that neither .
he had seen the testator signing or affixing thumb impression on the Will nor he had seen DW-3, Shri Nirmal Singh signing or affixing his thumb impression on the Will. In fact, the testimonies of DW-3 and DW-4 are contrary to each other and they fail to stand the test of credibility. After analyzing the testimonies of both these witnesses, it cannot be said with conviction that Shri Chuhra Ram (testator) executed a valid Will in their presence. Admittedly, registration of a Will is no guarantee of valid execution of Will. The deposition of DW-3, Shri Nirmal Singh, stands severely contradicted by DW-4, Shri Charan Singh, as DW-4 specifically deposed that Will was thumb marked before the Clerk and not before the Sub Registrar. This fact also creates a veil of doubt on the genuineness of the Will as to how the signatures of Shri Nirmal Singh (DW-3) were obtained on the Will in question.
Indisputably, DW-3 deposed that Will was executed before the Sub Registrar, it was thumb marked by Shri Chuhra Ram in his presence and he and Shri Charan Singh (DW-4) also signed the same, but the testimony of DW-4, who is portrayed to be other attesting witness of the Will, through his testimony, creates doubts on the genuineness of the Will.
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21. The learned Counsel/Senior Counsel have relied upon certain judicial pronouncements. Mr. Tara Singh Chauhan, learned counsel for appellant No. 2 has placed reliance on a judgment of Hon'ble Kerala High Court rendered in .
K.M. Varghese and others vs. K.M. Oommen and others, AIR 1994 Kerala 85, relevant paras of the judgment (supra) are extracted hereunder:
"33. Section 63 of the Act deals with the execution of Wills. Section 63 of the Act reads thus:
63. Execution of unprivileged wills :--Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, or an r ariman so employed or engaged, or a mariner at sea, shall execute his will acceding to the following rules :
(a).....
(b).....
(c) The will shall be attested by two or more witnesses, each of whom has been 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 signators or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator but it shall not be necessary that more than one witness be present at the same time and no particular form of attestation shall be necessary".
In Ext. A1, there are seven sheets of paper. In all these sheets of paper both the testator and the testatrix have signed. On the reverse of the first sheet both the testator and the testatrix have signed and the Registrar has made his endorsement. As identifying witness one Prathapan has signed, who was ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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examined in this case as P W 3. In the last sheet two persons have signed as witnesses. Raman Narayanan has signed as witness No. 1. He has described himself as licencee AD/B 153. Then one P. K. Sivarama Pillai has singed as .
witness No. 2.
(He has not been examined since he was not well). He has described as the person who has written Ext. A1 and has given his licence number.
Counsel for the first defendant submitted that the two witnesses signed in Ext. A1 are not attesting witnesses. Both the witnesses look animo attestandi and so they cannot be considered as attesting witnesses.
Appellant in M.F.A. No. 631/92 submitted that both the witnesses are attesting witnesses and further the identifying witness Prathapan and also the Registrar can be considered as j attesting witnesses r in the circumstances of the case.
Further he submitted that if this Court is satisfied about the genuineness of the Will and that the Will is beyond reproach for reasons known to law and recognised by law, the court will be slow and hesitant to reject a registered Will on the technical ground that though there are two witnesses signed in the Will they had no animo attestandi. We will never forget when we examine the question of proof of the Will the requirement that the attesting witness examined should satisfy the court that the witnesses signed the will to bear witness to the fact that the signature of the testator was made or acknowledged in their presence.
34. Now we are only concerned with the question whether the document Ext. Al taken without evidence at all can be rejected as not a Will since there are no attesting witnesses. We may not be wrong in saying that no form of attestation is prescribed by statute, but it is necessary that the witness should put his signature with the intention of attesting it and ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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the attestation must follow execution, and not precede it -- vide Pemandes v. Alves, ILR 3 Bombay 322 and in the matter of Hemlata Dobee. (1883) ILR 9 Cal 226. We also think it correct that a witness to be attesting witness need not be .
labelled as attesting witness and the place at which the signatures or thumb mark of witness is subscribed to the document is not decisive to hold whether witness was or was not an attesting witness. A mere pcrsual of the document Ext. Al it is difficult to say that there is non-compliance with the provisions contained in Section 63 of the Act. The fact that both the witnesses have given their identifying description referring to their licence numbers and one of the witnesses saying that he is the person who has prepared the document may not be sufficient to say that those witnesses are not r attesting witnesses. Counsel for the first defendant very strenuously argued that the second witness can never be treated as an attesting witness, since he has singed not as a witness, but as a person who has written the document. But it has to be noted that in the document it is stated that he is the second witness. We see no reason to be so technical to say that since the witness has written words indicating that he is the person who has prepared/written the document will lose his character as a witness. It is not necessary for the witnesses who are attesting the document to declare in the document itself that they are attesting witnesses."
The judgment (supra) is of no use to the learned Counsel for appellant No. 2, as the depositions of DWs 3 and 4, who purportedly are the attesting witnesses of the Will in question, fail to withstand the rigors of Section 63 of the Indian Succession Act, 1925. Both these witnesses, through their ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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testimonies, instead of proving the Will create a doubt qua the genuineness and veracity of Will, Ex. D4. DW-4, Shri Charan Singh, one of the attesting witnesses, stated in the Court that he had not signed the Will. In view of this, the judgment (supra) .
is of no help to the appellants.
22. On the other hand, Mr. Ramakant Sharma, learned Senior Counsel, for the respondents also placed reliance on some judicial pronouncements. First in the queue is a decision of Hon'ble Supreme Court rendered in Girja Datt Singh vs. Gangotri Datt Singh, AIR 1955 SC 346, paras 14 and 15 whereof, being relevant, are extracted hereunder:
r"14. It still remains to consider whether the attestation of the signature of the deceased on the will, Ex. A-36 was in accordance with the requirements of S. 63, Indian Succession Act. Section 63 prescribes that:
"(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 of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator ...
......."
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 ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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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.
If no reliance could thus be placed upon their oral testimony, where would be the assurance that they actually saw the deceased execute the will in their presence and each of them signed the will in the presence of the deceased. It may as well be that the signature of the deceased on the will was appended at one time, the deceased being there all alone by himself and the attestations were made by Uma Dutt Singh and Badri Singh at another time without having seen the deceased sign the will or when the deceased was not present when they appended their signatures thereto in token of attestation. We have no satisfactory evidence before us to enable us to come to the conclusion that the will was duly attested by Uma Dutt Singh and Badri Singh and we are therefore unable to hold that the will Ex. A-36 is proved to have been duly executed and attested.
When this position was realised the learned counsel for Gangotri fell back on an alternative argument and it was that the deceased admitted execution and completion of the will Ex. A-36 and acknowledged his signature thereto before the Sub-Registrar at Tarabganj and this acknowledgment of his signature was in the presence of the two persons who identified him before the Sub-Registrar, viz., Mahadeo Pershad and Nageshur who had in their turn appended their ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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signatures at the foot of the endorsement by the Sub-Registrar. These signatures it was contended were enough to prove the due attestation of the will Ex. A-36. This argument would have availed Gangotri if Mahadeo Pershad and .
Nageshur had appended their signatures at the foot of the endorsement of registration 'animo attestandi'.
But even apart from this circumstance it is significant that neither Mahadeo Pershad nor Nageshur was called as a witness to depose to the fact of such attestation if any. 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 r witnesses or can be construed to have done so in their capacity as attesting witnesses. Section 68, Indian Evidence Act requires an stetting 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."
The judgment (supra) is applicable to the facts of the present case, as a valid Will has to withstand the test of Section 63 of the Indian Succession Act. In the instant case, the Will in question could not be proved in accordance with the manner as provided under Section 63 of the Act.
23. The learned Senior Counsel for the respondents has also relied upon judgment of Hon'ble Supreme Court rendered in Gopal Swaroop vs. Krishna Murari Mangal & others, ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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(2010) 14 SCC 266, relevant paras whereof as reproduced hereunder:
"13. Section 68 of the Evidence Act reads 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 not be necessary to call an attesting witness in proof of the execution of any document, not being a will, r 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 specially denied.
It is evident that in cases where the document sought to be proved is required by law to be attested, the same cannot let be in evidence unless at least one of the attesting witnesses has been called for the purpose of proving the attestation, if any such attesting witness is alive and capable of giving evidence and is subject to the process of the Court.
14. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills and, inter alia, provides that every Testator except those mentioned in the said provision shall execute his Will according to the rules stipulated therein. It reads:
63. Execution of unprivileged wills.-
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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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 r 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.
15. From a conjoint reading of the two provisions extracted above it is evident that a Will is required to be attested by two or more witnesses each of whom has seen the Testator signing or affixing his mark on the Will or has seen some other person signing the Will in the presence and by the direction of the Testator or has received from the Testator a personal acknowledgment of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the Will in the presence of the Testator. Section 68 of the Evidence Act is against the use of a Will in evidence unless one attesting witness has been examined to prove the execution.
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16. The question, however, is whether the Will propounded by the appellant and purporting to have been attested by two witnesses, namely, Manoj Kumar and Vilas Tikhe has been validly proved. It is not disputed that one of the said .
witnesses namely, Vilas Tikhe has been summoned and examined as a witness. What is to be seen is whether the examination of the said witness satisfies the requirements of Section 63 of the Evidence Act (supra).
17. A careful analysis of the provisions of Section 63 would show that proof of execution of a Will would require the following aspects to be proved:
(1) That the Testator has signed or affixed his mark to the Will or the Will has been signed by some other person in the presence and under r the direction of the Testator.
(2) The signature or mark of the Testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a Will.
(3) That the Will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the Will or has been seen by some other person signing the Will in the presence and by the direction of the Testator or has received from Testator a personal acknowledgement of the signature or mark or the signature of each other person.
(4) That each of the witnesses has singed the Will in the presence of the Testator.
18. The decisions of this Court in Bhagwan Kaur W/o Bachan Singh v.
Kartar Kaur W/o Bachan Singh and Ors., 1994 5 SCC 135, Seth Beni Chand (since dead) now by LRs. v.
Smt. Kamla Kunwar and Ors., 1976 ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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4 SCC 554, Janki Narayan Bhoir v.
Narayan Namdeo Kadam, 2003 2 SCC 91, Gurdev Kaur and Ors. v.
Kaki and Ors., 2007 1 SCC 546, Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and Ors., 2009 4 SCC 780, Rur Singh .
(dead) Through LRs. and Ors. v.
Bachan Kaur, 2009 11 SCC 1 and Anil Kak v. Kumari Sharada Raje and Ors., 2008 7 SCC 695 recognize and reiterate the requirements enumerated above to be essential for the proof of execution of an unprivileged Will like the one at hand. It is, therefore, not necessary to burden this judgment by a detailed reference of the facts relevant to each one of these pronouncements and the precise contention that was urged and determined in those cases. All that needs to be examined is whether the requirements stipulated in Section r 63 and distinctively enumerated above have been satisfied in the instant case by the appellant propounder of the Will."
Again, as held above, provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, in juxtaposition, provide that a Will has to be attested by two or more witnesses and each of them has seen the testator signing or affixing his mark on the Will or has seen some other person signing the Will. The judgment (supra) is fully applicable to the facts of the present case.
24. In view of settled position of law, as highlighted above, and after analyzing the testimonies of the key witnesses, it is amply clear that the Will in question could not pass the test of Section 63 of the Indian Succession Act. So, in these ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP
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circumstances, the only substantial question of law is answered holding that the propounder of the Will could not discharge his onus of proving the execution of Will, as one of the attesting witness has not stated that he has signed the Will and there are .
contradictions with respect to affixing of thumb marks or signatures, as is apparent from the statement of DW-4, Shri Charan Dass. The substantial question of law is answered accordingly.
25. In view of what has been discussed hereinabove, this Court finds that the findings arrived at by the learned Lower Appellate Court are reasoned, after appreciating the evidence, which has come on record, to its true and correct perspective. The learned Lower Appellate Court has also applied the law to the facts of the present case correctly.
26. The net result of the above discussion is that the appeal, which sans merits, deserves dismissal and is accordingly dismissed. However, taking into consideration the facts and circumstances of the case, the parties are left to bear their own costs.
27. In view of the disposal of the appeal, pending application(s), if any, shall also stand(s) disposed of.
(Chander Bhusan Barowalia) Judge 10th July, 2019 (virender) ::: Downloaded on - 29/09/2019 00:38:20 :::HCHP