Tripura High Court
Defendant vs Smt. Charubala Ghosh on 28 April, 2022
Author: Arindam Lodh
Bench: Arindam Lodh
[1]
HIGH COURT OF TRIPURA
AGARTALA
RFA No.5 of 2021
Sri Subhash Ghosh
S/O Late Tarani Ghosh,
resident of Purba Bagabasa (Karaia mura),
PO: Bagma, PS: R K Pur,
District: Gomati, Tripura.
---- Defendant 1-appellant
Versus
1. Smt. Charubala Ghosh,
wife of Late Dhirendra Ghosh,
resident of village: Samatal Bagama,
PO: Bagma, District: Gomati, Tripura.
2. Smt. Milan Rani Ghosh,
wife of Sri Subhash Ghosh,
resident of West Kupilang
PS & PO: Killa, District: Gomati, Tripura.
3. Smt. Chinu Rani Ghosh,
wife of Sri Habul Ghosh,
resident of Purba Bagabasa (Karaia mura),
PO: Bagma, PS: R K Pur,
District: Gomati, Tripura.
---- Plaintiffs-respondents
4. Sri Sunil Ghosh, son of Late Tarani Ghosh, resident of Purba Bagabasa (Karaia mura), PO: Bagma, PS: R K Pur, District: Gomati, Tripura.
5. Smt. Parul Ghosh, wife of Late Upendra Ghosh, residing under the care of Sri Dilip Ghosh of Purba Bagabasa PO: Bagma, [2] PS: R K Pur, District: Gomati, Tripura;
Permanent residence: village: Nakara, PS: Hajiganja, District: Comilla, Bangladesh.
---- Defendants-respondents
For Appellant(s) : Mr. D.K. Daschoudhury, Advocate
For Respondent(s) : Mr. Soumendu Roy, Advocate
Mr. Kohinoor N. Bhattacharjee, Advocate
Date of hearing
and delivery of
Judgment and order : 28.04.2022
Whether fit for reporting : Yes
HON'BLE MR JUSTICE ARINDAM LODH
J U D G M E N T & O R D E R (O R A L)
This is a first appeal under Section 96 of the Code of Civil Procedure, 1908 preferred by the appellant, challenging the legality and propriety of a part of the judgment dated 20.02.2021 and preliminary decree dated 23.02.2021, passed in TS (Partition) 13 of 2018 by the court of learned Civil Judge (Senior Division), Court No. 2, Udaipur, Gomati District, Tripura holding that execution of the Will (Ext-C) has not been proved and thus, the plaintiffs and the defendants are equally entitled to 1/6th share of the Will property described in Schedules B(i) and B(ii) land.
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2. Heard Mr. D. K. Daschoudhury, learned counsel appearing for the appellant. Also heard Mr. Kohinoor N. Bhattacharjee, learned counsel appearing for respondent no.3 and Mr. Soumendu Roy, learned counsel appearing for respondent no.4.
3. The appellant herein, the respondents no.4 and 5 were the defendants no.1, 2 and 3 respectively and the respondents no.1, 2 and 3 were the plaintiffs in the original title suit. The parties in this appeal shall be referred to here-in-after according to their original status in the suit.
4. The plaintiffs instituted the present suit for partition of the land of Schedules A, B(i) and B(ii) described in detail in the Schedules of the plaint. The plaintiffs have stated in the plaint that after the death of Tarani Ghosh, they along with the defendants, being his sons and daughters became the co-owners of the land described in Schedule A having their equal shares over the said land. The plaintiffs have also sought for partition of the land described in Schedules B(i) and B(ii). The plaintiffs have averred that one Nabin Chandra Ghosh was the elder brother of Late Tarani Ghosh. Late Kanaki Bala Ghosh was his wife. Nabin Chandra Ghosh by dint of allotment became the owner of the land described in Schedule B(i) and his wife Kanaki Bala Ghosh got allotment of the land described in Schedule B(ii). Both the lands described in Schedules B(i) and B(ii) were recorded in their respective [4] names. Nabin Chandra Ghosh and Kanaki Bala Ghosh died issueless. Nabin Chandra Ghosh being predeceased, his wife Kanaki Bala Ghosh as his sole inheritor, became the owner of the land described in Schedule B(i). On 01.07.2021, Kanaki Bala Ghosh died leaving behind the plaintiffs and the defendants as her sole legal heirs under the Hindu Succession Act, 1956 since she died issueless. Thus, the plaintiffs and the defendants became the joint owners of the land described in Schedules A, B(i) and B(ii) in equal shares. The above Scheduled lands were not partitioned. The plaintiffs requested the defendants no.1 and 2 to partition the suit land repeatedly, but, it was not materialized. Lastly, on 15.05.2013, the defendants refused to partition the suit land. The plaintiffs have, however, stated in their plaint that they instituted a partition suit which was registered as TS (P) 16/2013 against the present defendants prior to the filing of the instant suit. In that suit, the defendants no.1 and 2, namely Sri Subhash Ghosh and Sri Sunil Ghosh filed joint written statement, interalia stating that Kanaki Bala Ghosh, wife of Nabin Chandra Ghosh executed an unregistered Will and Nadabipatra (deed of relinquishment) in favour of defendant no.1, namely, Sri Subhash Ghosh. But, according to the plaintiffs, the said Kanaki Bala Ghosh had never executed any deed, registered or unregistered in favour of any party at any point of time relinquishing her right in respect to her land as mentioned in [5] Schedule B(ii) of the plaint. The plaintiffs have further stated that Kanaki Bala Ghosh did not receive any land from her paternal side.
5. On presentation of the plaint, all the defendants were duly notified. The defendant no.3 did not contest the suit and it proceeded ex parte against her. The defendant no.2, Sri Sunil Ghosh by filing written statement supported the case of the plaintiffs.
It is only the defendant no.1, Sri Subhash Ghosh, the appellant herein who contested the suit by filing written statement, wherein apart from denying and disputing all the contentions raised by the plaintiffs in their plaint, had prayed for dismissal of the suit.
In his pleading, the defendant no.1 has pleaded that Kanaki Bala Ghosh during her lifetime bequeathed her land described in Schedules B(i) and B(ii) of the plaint in his favour. Thus, in view of the Will (Ext-C), according to defendant no.1, he became the absolute owner and possessor of the property under the Will (Ext-C) mentioned in B(i) and B(ii) Schedules of the plaint.
6. After exchange of pleadings and on perusal of the pleadings of the parties and the documents submitted therewith, learned trial court framed the following issues:
―i) Whether the suit is maintainable in its present form and nature?
ii) Whether the suit is barred by limitation?[6]
iii) Whether the suit is bad for non-joinder of necessary parties?
iv) Whether the plaintiffs and the defendants are co-sharers of the suit property. If so to what extent?
v) Relief.‖
7. The contesting parties adduced their respective evidences and introduced the relevant documents, but, defendant no.2 did not put forth any documentary evidence. There is no dispute regarding the survival certificate of Late Tarani Ghosh, wherein the names of all the plaintiffs and defendants were recorded. The defendant no.1, Sri Subhash Ghosh brought on record the unregistered Will which was marked as "Ext. C". Learned trial Court decided issues no.(i), (ii) and (iii) in favour of the plaintiffs.
8. I also find that the suit is maintainable and within the prescribed period of limitation for filing the instant suit. Issue no.(iii) needs a little discussion. The defendant no.1 has taken a plea that the suit is bad for non- joinder of necessary parties as the plaintiffs have not impleaded the legal heirs of Late Kanaki Bala Ghosh from her parental side in the plaint, who might have claimed over the lands of Schedules B(i) and B(ii). The learned court held that the heirs from the parental side of Late Kanaki Bala Ghosh were not at all necessary parties to the suit.
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9. Having gone through the records and considering the submissions of learned counsels appearing for the parties to the lis, I find that Kanaki Bala Ghosh during her lifetime did not acquire any property from her parental side. Admittedly, both Kanaki Bala Ghosh and her husband became the owners of the land of Schedules B(i) and B(ii) by dint of allotment.
In view of this, none of the heirs from parental side of late Kanaki Bala Ghosh is entitled to get any share of the land described in Schedules B(i) and B(ii) in the light of Section 15 of the Hindu Succession Act, 1956. As such, learned trial court has rightly rejected the plea of the defendant No.1 that the land described in Schedules B(i) and B(ii) had also been devolved into the heirs from the parental side of Late Kanaki Bala Ghosh. For convenience, Section 15(1) of the Hindu Succession Act may be reproduced here-in-below:
―15. General rules of succession in the case of female Hindus. - (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16, -
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.‖ [8]
10. In the instant case, on plain reading of the above provisions, in the opinion of this court, the learned trial Judge has rightly held that since Kanaki Bala Ghosh admittedly died issueless, no question of devolution of her property to her sons or daughters as per the clause (a) arises and in the context of the case, her property would devolve upon the heirs mentioned in clause (b), i.e. upon the heirs of her husband, late Nabin Chandra Ghosh since she has not acquired any property from her parental side. As such, it can easily be said that the heirs of Kanaki Bala Ghosh from her parental side cannot have any claim over the land described in Schedules B(i) and B(ii) and are accordingly not at all necessary parties. By application of Section 15(1), the land described in Schedules B(i) and B(ii) would devolve upon the plaintiffs and the defendants equally, provided she did not execute any Will in favour of any party. In sequel, the instant suit cannot be held to be barred by non-joinder of necessary parties.
(Emphasis supplied)
11. Now, the vital issue remains whether the plaintiffs and the defendants are the co-sharers of the suit property and if so, to what extent? In the case at hand, it is the specific plea of the defendant-appellant that Kanaki [9] Bala Ghosh executed a Will (Ext-C) divesting her property described in Schedules B(i) and B(ii) in his favour.
The learned counsel appearing for the appellants has submitted that since Tarani Ghosh was the sole owner of the „A‟ Schedule land, upon his death, his legal heirs i.e. the plaintiffs and the defendants became the joint owners of the same having equal shares.
12. Now the principal issue remains is the correctness of the finding of the learned trial Judge that the Will(Ext-C) has not been proved in accordance with the essentialities of Section 68 of the Evidence Act and Section 63(c) of the Succession Act for the reason that the attesting witness (D.W.3) while adducing evidence is found to be silent about the attestation of the Will by other attesting witnesses and has not stated anything about the other two attestors. It is pertinent to mention here that Ext-C, i.e. the Will properties comprise the lands described in Schedules B(i) and B(ii) of the plaint.
13. To deal with the correctness of the above finding, a deeper consideration of the law on the subject would help this Court to resolve the principal issue as aforestated. At the outset, it would be worthy to reproduce Section 68 of the Evidence Act, which is as under:
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―68. Proof of execution of document required by law to be attested.- If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.‖ Again, Section 63 of the Indian Succession Act, 1925 reads 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 the signature of such other person; and each of the [11] 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."
14. On conjoint reading of Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act, it becomes aptly clear that while Section 63(c) mandatorily requires attestation of a Will by two or more witnesses; however, Section 68 of the Indian Evidence Act does not contemplate that such two or all the attesting witnesses must be examined to prove the execution of the Will. Section 68 of the Indian Evidence Act clearly stipulates 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 to prove its due execution, if such witness is alive and subject to the process of this court and capable of giving evidence. As a sequel, a Will being a document within the purview of Section 68 of the Indian Evidence Act has to be attested mandatorily by two or more witnesses, but, can well be proved by calling and examining only one attesting witness, provided the evidence of such sole attesting witness fulfils the essentialities embodied in Section 63 (c) of the Indian Succession Act.
15. In my opinion, Section 59 of the Indian Succession Act enjoins equal significance and relevance to examine the validity and integrity of a Will. Section 59 of Succession Act reads as under:
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―59. Person capable of making Wills. - Every person of sound mind not being a minor may dispose of his property by Will.
Explanation 1. - A married woman may dispose by Will of any property which she could alienate by her own act during her life.
Explanation 2. - Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it. Explanation 3. - A person who is ordinarily insane may make a Will during interval in which he is of sound mind.
Explanation 4. - No person can make a Will while he, is in such a state of mind, whether arising from intoxication or from illness or from any other cause, that he does not know what he is doing‖
16. In the instant case, it comes to fore that there are 3 (three) attesting witnesses in the Will (Ext-C) in question. So, the first requirement that the Will must be attested by two or more witnesses has been fulfilled. Again, to prove the due execution of the Will, the defendant no.2, i.e. the beneficiary of the Will has called for one attesting witness, namely, Sri Nilmohan Sarkar who has deposed as D.W.3 and thus meets the requirement of Section 68 of the Indian Evidence Act. As I said earlier, examination of more than one attesting witness is not the mandate of Section 68 of the Evidence Act. As such, the learned trial Judge has committed an error of law when he held that the evidence of one attesting witness cannot displace the requirement of the statute. This finding of the learned trial court is wholly uncalled for being contrary to the mandate embodied in Section 68 of the Evidence Act. The plaintiff being the propounder is only legally bound to call [13] upon at least one attesting witness to prove due the execution of the Will as analyzed here-in-above and there is no compulsion that such beneficiary has to make the other attesting witnesses available to prove of the execution of the Will.
17. Now, it is to be seen whether the said sole attesting witness (D.W.3) has been able to prove the due execution of the Will (Ext-C) as per the essential requirements of Section 63 of the Succession Act. Here, it will be useful to extract the findings of the learned trial Judge as regards the nature of evidence let in by D.W.3, which are as under:
―Evidence of the D.W.3 Sri Nilmohan Sarkar reveals that he witnessed the executants Kanaki Bala Ghosh execute and put her thumb impression in the Ext. C Will after admitting its contents and that he also signed the Will as attesting witness. This witness also proved his signature as Ext. C/3. His failure to remember date of execution of the deed, place of its drafting and other land particulars cannot be a ground to doubt him as to his witnessing the executrix putting her thumb impression in the deed, since it is quite impossible for an attesting witness to remember such details‖.
18. From the above findings of the learned trial court it is crystal like clear that the learned court below is satisfied with the evidence of D.W.3, Sri Nilmohan Sarkar as regards the proof of the due execution of the Will. However, learned trial court has held that the Will (Ext-C) has not been proved in accordance with law since D.W.3 in his testimony is silent about the attestation of the Will by other witnesses and has not stated anything [14] about the attestation of the Will by any other attesting witnesses, namely, Gopal Debnath or Maran Debnath.
19. Here, the learned trial court has misconstrued the provision as laid down in Section 63 (c) of the Succession Act. Section 63 (c) only contemplates that each of the attesting witnesses has to see the testator to sign or affix his/her mark to the Will. Such Will has to be attested by the witnesses in the presence of the testator 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. Here, it will be pertinent to reproduce the deposition of D.W.3, which is as under:
―I am one of the attesting witnesses in the Will dated- 15/04/1995 executed by Kanaki Bala Ghosh in favour of Sri Subhash Chandra Ghosh in presence of witnesses and at the time of executing of the said Will said Kanaki Bala Ghosh was in sound mind and Kanaki Bala Ghosh put her thumb impression in my presence on the said Will after admitting the contents of the Will and I put my signature in the Will as attested witness.‖ From the above statements, it is clear that D.W.3 had seen the testator Kanaki Bala Ghosh to put her thumb impression in the Will not only in his presence but in presence of other witnesses and Kanaki Bala Ghosh executed the Will in sound and disposing state of mind. Furthermore, it reveals that D.W.3 has put his signature as attesting witness in the presence of Kanaki Bala Ghosh. DW-3 further deposed that Kanaki Bala Ghosh before [15] putting her thumb impression on the Will(Ext-C) admitted the contents of the Will which crystalises that the said testator understood the nature and effect of the dispositions.
20. Next, Section 63(c) of the Indian Succession Act categorically contemplates that it is not necessary that more than one witness be present at the same time at the time of putting their signatures on the Will, but the requirement is that each of the attesting witnesses must have seen the testator has signed or affixed his mark to the Will with additional requirement is that each of the attesting witness shall also sign the Will in the presence of the testator. On minute reading of clause (c) of Section 63 of the Succession Act, I am of the opinion that the said provision does not contemplate that each of the attesting witness shall sign the Will in the presence of each other, but, to re-iterate, it only mandates that the attesting witnesses have to sign the Will in presence of the testator.
In view of this, an attesting witness deposing in favour of a Will is not legally bound to explain the role of other attesting witnesses. To reiterate, here, D.W.3 being one of the attesting witnesses has clearly deposed that he has seen the testator to put her thumb impression in the Will in presence of witnesses including D.W.3, who has put his signature in the Will in the presence of the testator, i.e. Kanaki Bala Ghosh, which, in the opinion [16] of this Court, fulfils the essential ingredients of Section 63 (c) of the Succession Act. As such, the finding of the learned trial court that the silence of D.W.3 in regard to the signing of the Will (Ext-C) by other attesting witnesses is contrary to the essential requirements as embodied in clause (c) of Section 63 of the Succession Act.
21. I deem it pertinent to hold that the learned trial court has misconstrued the ratio settled in the case of Janki Narayan Bhoir vs. Narayan Namdeo Kadam,(2003) 2 SCC 91.
A bare perusal of this judgment, it comes to fore that the Hon‟ble Supreme Court has clearly held that ―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 the attesting witness can be dispensed with‖.
Further, in Janki Narayan Bhoir (supra), the Hon‟ble Supreme Court has further held that 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. [17]
22. Thereafter, learned trial court relying upon the judgment passed in Janki Narayan Bhoir (supra) found deficiency in the evidence of D.W.3, Nilmohan Sarkar on the ground that this witness was silent about attestation of the Will by any other attesting witness and thus held that the defendant no.1 failed to discharge his liabilities to fulfil the essentialities of Section 63
(c) of the Succession Act.
This leads me to look into the facts and evidence let in by one of the attesting witnesses in the case of Janki Narayan Bhoir (supra). In this matter, the attesting witness who adduced evidence to prove the Will had not stated in his deposition that other attesting witness had attested the Will in his presence. The court noted the relevant facts in para 5 of the judgment, which are as under: [SCC p. 96] ―5. ... Prabhakar Sinkar, the attesting witness, in his deposition stated that he did not know whether the other attesting witness Ramkrishna Wagle was present in the house of the respondent at the time of execution of the will. He also stated that he did not remember as to whether himself and Raikar were present when he put his signature. He did not see the witness Wagle at that time; he did not identify the person who had put the thumb impression on the will. The scribe Raikar in his evidence stated that he wrote the will and he also stated that he signed on the will deed as a scribe. He further stated that the attesting witnesses, namely, Wagle and Prabhakar Sinkar are alive.‖ On minute reading of the above evidence, it comes to light that Prabhakar Sinkar being one of the attesting witnesses to the Will has failed to [18] depose in clear terms as to whether he was present when the testator put his signature on the Will. In furtherance thereof, Sinkar has failed to identify the person, that is, the testator who had put the thumb impression on the Will. Sinkar also was not categoric whether he signed the Will in presence of the testator.
In that background, the court held that Prabhakar Sinkar being one of the attesting witnesses failed to meet the requirements of Section 63(c) of the Succession Act and further held that in such circumstances it would be the obligation of the propounder to prove the due execution of the Will by producing another attesting witness.
23. It is well-settled that each case must be determined in the fact situation obtained therein. Following the aforesaid principle, if we revert to the facts of the instant case, it is found that D.W.3, Nilmohan Sarkar has categorically stated that he was one of the attesting witnesses of the Will (Ext-C) which was executed by Kanaki Bala Ghosh in favour of Sri Subhash Chandra Ghosh in presence of witnesses in sound disposition of mind and put her thumb impression in his presence on the said Will after admitting the contents of the Will and he put his signature in the Will as attesting witness.
Cross-examination of D.W.3 made by the plaintiff carries utmost importance in the context of the present case. He stated that Kanaki Bala [19] Ghosh was known to him and he could not say who brought her to execute the deed and at that time her age would have been 60/65 years. Being further questioned that "How many signatures she had put in the deed", he answered that "It would be 4/5 in number". Noticeable feature is that the testimony of D.W.3 that the executrix Kanaki Bala Ghosh put her thumb impression in presence of other witnesses and also in his presence has not been confronted by the plaintiffs.
24. I have further perused the evidence of the scribe of the Will, namely Sri Suvajit Roy, who deposed as D.W.2. He deposed that the Will of Kanaki Bala Ghosh was written by him as per her direction and he read over the contents of the Will to the executant, who after admitting the contents of the Will as true put her thumb impression on the said Will in every page of the Will and he put his signature on the said Will as witness. Being confronted with cross-examination D.W.2, Sri Suvajit Roy denied the suggestion that Ext-C deed was not written by him as per direction of Kanaki Bala Ghosh. He further stated that Kanaki Bala Ghosh was not known to him personally and the executant identified herself as Kanaki Bala Ghosh. He denied that there was any collusion between him and the defendant no.1.
25. Now, the question is whether omission to make the statement that DW-3 has seen the other attesting witnesses to sign the Will (Ext-C) can [20] be a ground to disbelieve the execution and attestation of the Will? From the evidences of other witnesses deposed on behalf of both the plaintiffs and the defendant no.1, it is evinced that the defendant no.1, that is, the appellant used to reside in the Will (Ext-C) property described in Schedules B(i) and B(ii) which are the properties of late Kanaki Bala Ghosh. 25.1. In the case of M.B. Ramesh v. K.M. Veeraje Urs (Dead) and Ors, (2013) 7 SCC 490, the Hon‟ble Supreme Court came across almost similar situation where one of the attesting witnesses appeared and was not found to be very categoric as regards the fact that he had seen the other attesting witnesses to put their signatures on the Will in his presence and in presence of the testatrix. After being scanned the evidence of the said case, the Hon‟ble Supreme Court at para 26 held that ―While drawing the appropriate inference in a matter like this, a court cannot disregard the evidence on the attendant circumstances brought on record.‖ 25.2. While dealing with the validity and legality of the Will, the Hon‟ble Supreme Court in M.B. Ramesh supra had emphasized that: [SCC pp. 505,506, paras 27, 28] ―27. The approach to be adopted in matters concerning wills has been elucidated in a decision on a first appeal by a Division Bench of the Bombay High Court in Vishnu Ramkrishna v. Nathu Vithal [AIR 1949 Bom 266] . In that matter, the respondent Nathu was the beneficiary of the will. The [21] appellant filed a suit claiming possession of the property which was bequeathed in favour of Nathu, by the testatrix Gangabai. The suit was defended on the basis of the will, and it came to be dismissed, as the will was held to be duly proved. In appeal it was submitted that the dismissal of the suit was erroneous, because the will was not proved to have been executed in the manner in which it is required to be, under Section 63 of Succession Act. The High Court was of the view that if at all there was any deficiency, it was because of not examining more than one witness, though it was not convinced that the testatrix Gangabai had not executed the will. The Court remanded the matter for additional evidence under its powers under Order 41 Rule 27 CPC. The observations of Chagla, C.J., sitting in the Division Bench with Gajendragadkar, J. (as he then was in the Bombay High Court) in para 15 of the judgment are relevant for our purpose : (AIR pp. 270-71).
15. ... We are dealing with the case of a will and we must approach the problem as a court of conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a court of conscience would not permit such a thing to happen. We have not heard Mr Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent--and grossly negligent--in not complying with the requirements of Section 63 and proving the will as they ought to have, should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will was duly executed or not.‖ (emphasis supplied)
28. As stated by this Court also in H. Venkatachala Iyengar [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 : 1959 Supp (1) SCR 426] and Jaswant Kaur [Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 : AIR [22] 1977 SC 74] , while arriving at the finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of circumstances. The Court's role in matters concerning wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator, and whether it is the product of the free and sound disposing mind [as observed by this Court in para 77 of Gurdev Kaur v. Kaki [(2007) 1 SCC 546] ]. In the present matter, there is no dispute about these factors‖.
25.3. In the case on hand also, it is proved that while executing the Will (Ext-C), Kanaki Bala Ghosh was in sound and disposing state of mind and considering the totality of circumstances the conscience of this Court does not permit to defeat or thwart the wishes of the testatrix only on the ground that D.W.3, the sole attesting witness adducing evidence has not stated that he has seen other attesting witnesses to sign the Will, for obvious reason that the statement of D.W.3 that the testatrix has put her thumb impression "in presence of witnesses" after being satisfied and admitting the truthfulness of its contents, according to this Court, is sufficient compliance with the provisions of Sections 59 and 63(c) of the Succession Act which satisfies the conscience of this Court.
25.4. Furthermore, in the instant case, we find from the evidence of D.W.2 (the scribe) and D.W.3 (one of the attesting witness) that the testator Kanaki Bala Ghosh executed the Will putting her thumb impression in presence of the witnesses including D.W.2 and D.W.3 and both of them put [23] their signatures, D.W.3 being the attesting witnesses and D.W.2 being the scribe as well as the witness to the Will.
25.5. The Hon‟ble Supreme Court, in M.B. Ramesh (supra) also made reference to the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 as well as the judgment rendered in Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369: AIR 1977 SC 74. [SCC pp. 501, 502, para 21].
―21. The propositions laid down in Venkatachala Iyengar [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 : 1959 Supp (1) SCR 426] have been followed and explained in another judgment of a Bench of three Judges in Jaswant Kaur v. Amrit Kaur [Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 : AIR 1977 SC 74] , wherein the law has been crystallised by Y.V. Chandrachud, J. (as he then was), into the following propositions : (Jaswant Kaur case [Jaswant Kaur v. Amrit Kaur, (1977) 1 SCC 369 : AIR 1977 SC 74] , SCC pp. 373-74, para 10) ―10. There is a long line of decisions bearing on the nature and standard of evidence required to prove a will. Those decisions have been reviewed in an elaborate judgment of this Court in H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 : 1959 Supp (1) SCR 426] . The Court, speaking through Gajendragadkar, J., laid down in that case the following propositions:
(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.[24]
(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 68 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 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 [25] 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.‖ 25.6. So, from the above propositions, it is clear that 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. Furthermore, as in the case of proof of other documents, so in the case of proof of Will one cannot insist on proof with mathematical certainty. Again, initial burden lies upon the propounder to remove all reasonable doubts or suspicious circumstances and 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.
(emphasis supplied)
26. In the instant case, except the statements made by the plaintiffs in their plaint as well as in evidence that Kanaki Bala Ghosh during her lifetime did neither execute any registered nor any unregistered Will in [26] favour of anyone, no other statements and evidence had been let in by them. To re-iterate, the deposition of D.W.2 and D.W.3 that Kanaki Bala Ghosh executed the Will in sound disposition of mind in presence of witnesses including D.W.2 and D.W.3 and that they put their signatures on the Will (Ext-C) as scribe (also as a witness) and as attesting witness respectively have not been confronted by them during their cross-examinations and the plaintiffs have not averred of any suspicious circumstances in their plaint. 26.1. In the context of the controversy centering round the Will and the finding of the learned trial Judge as enumerated here-in-above, I may gainfully refer the case of Ganesan (Dead) v. Kalanjiam and Ors, 2020 (11) SCC 715, the Hon‟ble Supreme Court has interpreted Sections 63 (c) of the Succession Act in the manner as under: [SCC pp. 716, 717, paras 5, 6, 7] "5. The appeals raise a pure question of law with regard to the interpretation of Section 63(c) of the Act. The signature of the testator on the will is undisputed. Section 63(c) of the Succession Act requires an acknowledgment of execution by the testator followed by the attestation of the will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgment may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgment on part of the testator. Where a testator asks a person to attest his will, it is a reasonable inference that he was admitting that the will had been executed by him.
[27]There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed will, read it out to them after which they attested the will.
6. In H. Venkatachala Iyengar v. B.N. Thimmajamma [H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443] , it was observed: (AIR pp. 451-52, para 19) ―19. ... Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.‖
7. In Pachigolla Venkatarao v. Palepu Venkateswararao [Pachigolla Venkatarao v. Palepu Venkateswararao, 1955 SCC OnLine AP 189 : AIR 1956 AP 1] , it was observed as follows: (SCC OnLine AP para 31) ―31. ...‗There is nothing wrong, as was thought by the learned Subordinate Judge, for a testator to get the attestation of witness after acknowledging before them that he had executed and signed the will. It is not always necessary that the attesting witness should actually see the testator signing the will. Even an acknowledgment by him would be sufficient.' ‖ 26.2. What is garnered from the above propositions that Section 63 of Succession Act contemplates certain alternatives and it is sufficient if one of these alternatives is proved by the propounder. Furthermore, this provision [28] does not mandate that the testator must sign the Will in presence of the attesting witnesses. It is also not the requirement of the provision that the attesting witnesses must sign the Will simultaneously at the same time in presence of each other. It is also not the mandate of law that the attesting witnesses have to see the testator signing the Will, and only his/her acknowledgement that he/she executed and signed the Will would be enough compliance of the requirements of law on the subject. For example, there may be a situation where the testator approaches a person "A" individually and asks him to be witness to the Will after acknowledging that he has expressed his/her last wishes disposing of his/her property in favour "X" and also acknowledges his/her signature or mark on the Will, and after that the said witness „A‟ has attested the said Will putting his signature. Similarly, the same testator approaches another person "B" individually and obtained B‟s signature on the Will. In such a case, neither "A" has seen "B" to put his signature nor "B" has seen "A". Now, when the said Will is questioned in a suit, "A" has adduced evidence deposing all circumstances of the execution of Will but has not stated that he has seen "B" to sign the Will. In this circumstance, would it be wise for a prudent mind to hold that the Will is not the true reflection of the last desire or wish of the testator and throw it out only because "A" has not stated that he has seen "B" to sign the Will? The [29] answer, in the opinion of this Court must be in the negative taking into account the entire scheme of the statute as embodied in Section 68 of the Evidence Act and Section 59 and 63 of the Succession Act. 26.3. In the case of Gopal Swaroop v. Krishna Murari Mangal and Ors reported in (2010) 14 SCC 266, the Hon‟ble Supreme Court has dealt with similar issue in regard to the requirements of Section 63 of the Succession Act to prove a Will and held that: [SCC pp. 272, 273, paras 17, 18, 19, 20, 21] ―17. A careful analysis of the provisions of Section 63 would show that the 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 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 the testator a personal acknowledgment of the signature or mark or the signature of each other person.
(4) That each of the witnesses has signed the will in the presence of the testator.[30]
18. The decisions of this Court in Bhagwan Kaur v. Kartar Kaur [(1994) 5 SCC 135] , Seth Beni Chand v. Kamla Kunwar [(1976) 4 SCC 554] , Janki Narayan Bhoir v. Narayan Namdeo Kadam [(2003) 2 SCC 91] , Gurdev Kaur v. Kaki [(2007) 1 SCC 546] , Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh [(2009) 4 SCC 780 : (2009) 2 SCC (Civ) 348] , Rur Singh v. Bachan Kaur [(2009) 11 SCC 1 : (2009) 4 SCC (Civ) 387] and Anil Kak v. Sharada Raje [(2008) 7 SCC 695] recognise 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 63 and distinctively enumerated above have been satisfied in the instant case by the appellant propounder of the will.
19. Our answer to that question is in the affirmative. The deposition of Shri Vilas Tikhe clearly proves that Panna Lal had executed a will in favour of the appellant, Gopal Swaroop and had signed and affixed his signature in his presence. The trial court and the High Court have concurrently held that the will had been signed by the testator in the presence of the attesting witnesses. First and the foremost requirement prescribed under Section 63 of the Succession Act, 1925 is, therefore, clearly satisfied.
20. Coming then to the second requirement, namely, the placement of the signature of the testator on the will, we find that the signature of the testator appear at the right hand bottom part of the will. The placement of the signature on the document is, therefore, appropriate and clearly suggestive of the fact that the document was intended to be given effect to as a will. We must also mention that no argument was advanced by the learned counsel for the respondent on the requirement of an appropriate placement of the signature of the testator on the document.
[31]
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. The deposition of Shri Vilas Tikhe in our opinion satisfies this requirement also inasmuch as the witness has in clear and unambiguous terms stated that not only he but Shri Manoj, the other attesting witness to the will, was also present at the time the testator affixed his signature on the will. It is noteworthy that, the above statement has not been questioned in cross-examination nor any suggestion made to the effect that while Shri Vilas Tikhe, the witness may have been present, Manoj was not so present at the time the will was signed by the testator........‖ 26.4. In the case at hand also, it would be worthy to note that deposition of D.W.3 has not been confronted during his cross-examination in respect of his statement that Kanaki Bala Ghosh signed the Will in presence of other witnesses, that other witnesses were present, and further, he was not asked/suggested about identity of those "attesting witnesses", who were stated to be present at the time of execution of the Will or whether D.W.3 has seen other witnesses to sign the Will. In this situation, it can easily be said that the deposition of D.W.3 about the execution of the Will in his presence and in presence of other witnesses aptly satisfies the essentialities of Section 63(c) of the Succession Act.
26.5. In the context of the present case, I may profitably refer the decision of B. Venkatamuni v. C.J. Ayodhya Ram Singh and Ors, 2006 (13) [32] SCC 449, wherein the Apex Court has held that the court must satisfy its conscience as regards due execution of the Will by the testator and the court would not refuse to prove deeper into the matter only because the signature of the propounder on the Will is otherwise proved.
26.6. More importantly, the plaintiffs in the instant case have not pleaded or adduced any evidence in regard to any suspicious circumstances behind the execution of the Will by the testator Kanaki Bala Ghosh. Mere statement that the testator has not executed any Will during her lifetime without pointing out the suspicious circumstances in pleadings would not be enough to brush aside a Will. In this circumstance, I find no reason to suspect the due execution of the Will by the testator Kanaki Bala Ghosh.
27. The finding of the learned trial court that the defendant No.1 i.e. appellant herein failed to examine any other attesting witness to the Will (Ext.C) and also failed to prove satisfactory factum of non-availability of other attesting witnesses to the Will appears to be inconsistent to the requirements of clause (c) of Section 63 of the Succession Act and Section 68 of the Evidence Act.
28. To arrive at my aforesaid conclusion, I am further fortified by a recent decision of the Hon‟ble Supreme Court in Mr. Murthy v. C. Saradambal, reported in (2022) 3 SCC 209 wherein after an in-depth [33] discussion of its earlier authorities it was held that Section 63(c) of the Succession Act, firstly states that the Will has to be attested by two or more witnesses/attestators, each of whom should have seen the testator sign on the Will in his presence, or has received from the testator, a personal acknowledgement of his signature on the Will. Secondly, each of the witnesses shall sign on 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 is necessary. The aforesaid two mandatory requirements have to be complied with for a testament to be valid from the point of view of its execution.[SCC.p.225, para 49].
29. A Will may have certain features and may have been executed in certain circumstances which may appear to be unnatural. After close scrutiny, the judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by the Supreme Court. [Leela Rajagopal v. Kamala Menon Cocharan reported in (2014) 15 SCC 570; SCC.p. 576, para 13].
[34]
30. Again, in repeated pronouncements, the Apex Court held that the Court must satisfy its conscience as regards due execution of the Will by the testator.
31. On minute reading of the relevant provisions connected to the mode of proof of Will and what is discernable from the afore-discussed authoritative pronouncements, to hold a valid execution and attestation of the Will the following conditions must be satisfied:
(i) The testator must execute the Will in sound disposing state of mind;
(ii) The Will must be attested at least by two witnesses;
(iii) Each of them (witnesses)
(a) must either see the testator sign, or affix his mark to the Will or must see some other person sign the Will, in the presence and by the direction of the testator, or
(b) an attestor must receive from the testator personal acknowledgement of his signature or mark or of the signature of such other person.
(iv) Each of the attesting witnesses must put their signatures on the Will in the presence of the testator.[35]
There may be situations, that a testator asks a witness to put his attestation saying that the signature below the document is his, then, it must be held that such acknowledgement amounts to an implied acknowledgement of the execution of the Will by the testator, and is a sufficient compliance with the provisions of Section 63 of the Succession Act. The position would be the same, if instead of saying that the document was his Will, the testator actually reads it over to the attesting witness and asks him to attest his signature below it. If, therefore, these attesting witnesses can be believed, the execution of the Will and the testator's testamentary capacity must be held as proved.
32. Thus, neither it is the requirement of law nor Section 63(c) of Succession Act mandates that each of the attesting witnesses have to attest the Will at the same time, place or sitting simultaneously. Here, it would be relevant to refer to Section 3 of the Transfer of Property Act, 1882 which reads as under:
―3.Interpretation clause.--In this Act, unless there is something repugnant in the subject or context,--
―attested‖, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other [36] person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.‖
33. The above definition also stipulates that when a document/instrument is required to be attested by two or more witnesses, then, each of the attesting witnesses has to sign the instrument in the presence of the executants, but, it does not contemplate that each of such attesting witnesses has to witness each other signing the instrument or in other words to sign such instrument in presence of each other because it is not the requirement of law that each of such witnesses be present at the same time. As a logical corollary, if it is not the mandate of law that each of the witnesses is required to remain present at the same time and that no particular form of attestation is necessary, then, how it can be said that one witness must see the other attesting witnesses signing the instrument.
34. Similarly, as regards the attestation of Will, the clause(c) of Section 63 requires that the Will shall be attested by two or more witnesses. It is not necessary that both of them be present simultaneously at the time of putting their signatures, but, the requirement is that each of the attesting witness must have seen the testator sign or affix his/her mark to the Will or has received from the testator a personal acknowledgement of his/her [37] signature or mark on the Will. There is also an additional requirement that each of the attesting witness shall also sign the Will in the presence of the testator.
35. In terms of above, if one attesting witness while adducing evidence satisfies/fulfils the four conditions as enumerated here-in-above, then, examination of any other attesting witnesses to the Will is not at all the requirement of Section 63(c) of the Succession Act. In other words, if one attesting witness adducing evidence fails to satisfy the aforesaid essential conditions, then, the propounder would have the liability to call another attesting witness to prove the due execution of the Will. It is re-iterated that each case must be determined in the fact situation obtaining therein.
36. Apart from what are being discussed here-in-above, lastly, after perusal of the Will in its entirety, I find that the thumb impression of the testator i.e., Kanaki Bala Ghosh is so placed, that is, at the right hand of the bottom part of the Will which already suggests the fact that the document, Exhibit-„C‟ was intended to give effect to the writing as a Will as embodied in Section 63(b) of the Succession Act. This fact is also required to be looked into while examining the validity and genuinity of a Will [Ref.-Gopal Swaroop supra, para 20].
[38]
37. On overall consideration of the evidence, particularly, the evidence of D.W.3, one of the attesting witnesses as recapitulated at para 17 of this judgment and discussed in the preceding paragraphs meets all the requirements of Section 68 of the Evidence Act and Sections 59 and 63 of the Succession Act. In sequel, keeping in mind the longline of authoritative judgments as portrayed here-in-above, in the opinion of this Court, the defendant no.1 has been able to prove the due execution of the Will in favour of him by Kanaki Bala Ghosh. Hence, the Will (Ext-C) is held to be valid in the eye of law and executable/enforceable as well.
38. The offshoot of the entire analysis made here-in-above on law and facts is that the silence of one attesting witness as regards the presence/identity of the attesting witnesses or whether he has seen the other attesting witnesses signing the Will should not be held to be deficient to the compliance to prove the due execution of Will or to determine the legality and validity of a Will if such attesting witness adducing evidence satisfies/fulfils the essential requirements of Section 68 of the Evidence Act and Section 59 and 63 of the Succession Act as encapsulated in this judgment. Accordingly, the finding of the learned trial Court that the Will has not been proved since D.W.3 being one of the attesting witnesses is silent about other two attesting witnesses is erroneous and inconsistent to the [39] essential requirements of law as embodied in Section 63(c) of the Succession Act.
39. In the light of above, the plaintiffs have failed to dislodge the evidence let in by the propounder, that is, the defendant no.1 (the appellant herein) in support of the Will (Ext-C) properties and thus, the plaintiffs cannot have any claim of share in respect of the lands under „Ext-C‟. Consequently, the plaintiffs are not entitled to get a declaration of partition in respect of the land described in Schedules B(i) and B(ii), that is, the Will (Ext-C) properties shall not be the subject of partition. However, the plaintiffs are entitled to get a decree of partition in respect of "A" schedule land as held by the learned trial court.
40. Accordingly, the judgment and decree passed by learned court below holding that the suit land described in Schedules B(i) and B(ii) of the plaint are liable to partition amongst the plaintiffs and the defendants in equal shares are hereby set aside and quashed.
41. The instant appeal stands allowed to the extent as indicated above.
42. Draw the decree accordingly.
Send down the LCRs.
JUDGE Snigdha