Kerala High Court
Devassykutty S/O. Dakkan Peter vs Visalakshy Amma on 29 June, 2010
Author: P.Bhavadasan
Bench: P.Bhavadasan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA.No. 1128 of 2003(A)
1. DEVASSYKUTTY S/O. DAKKAN PETER,
... Petitioner
2. VANAJA W/O. DEVASSYKUTTY,
3. THANKAM @ PARUKUTTY AMMA,
Vs
1. VISALAKSHY AMMA, D/O. KUNDUVALAPPIL,
... Respondent
2. AJITHKUMAR S/O. CHANDRASEKHARAN,
3. LATHA D/O. CHANDRASEKHARAN,
For Petitioner :SRI.D.ANIL KUMAR
For Respondent :SRI.R.S.KALKURA
The Hon'ble MR. Justice P.BHAVADASAN
Dated :29/06/2010
O R D E R
P. BHAVADASAN, J.
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R.S.A. No. 1128 of 2003
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Dated this the 29th day of June, 2010.
JUDGMENT
The defendants, who suffered a decree for recovery of possession and mesne profits, are the appellants. The parties and facts are hereinafter referred to as they are available before the trial court.
2. The suit properties admittedly belonged to one Bharathy Amma. The plaintiffs claimed rights over the property on the basis of Ext.A4 dated 4.4.1997, a Will said to have been executed by late Bharathy Amma. According to the plaintiffs, Bharathy Amma let the defendants reside in two rooms in the building temporarily since they were constructing a house nearby. After the death of Bharathy Amma, even though the defendants were directed to surrender possession of the room, they did not do so. That necessitated the suit. R.S.A.1128/2003. 2
3. The defendants resisted the suit. According to them, deceased Bharathy Amma was bed ridden about two years before her death. She was unable to move her limbs and could not manage her daily pursuits without the help of someone. The defendants took up the task of looking after Bharathy Amma and as a token thereof, the defendants were orally given permission to reside in the house till the death of the third defendant. According to the defendants, Bharathy Amma was incapable of executing any Will and that the Will now put forward by the plaintiffs is a concocted and fabricated one. Based on these contentions, they prayed for a dismissal of the suit.
4. The trial court raised necessary issues for consideration. The evidence consists of the testimony of P.Ws.1 and 2 and documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants had D.Ws. 1 and 2 examined. Both the trial court as well as the lower appellate court found the Will to be genuine and therefore decreed the R.S.A.1128/2003. 3 suit. The said judgments and decrees are assailed in this Second Appeal.
5. Though several questions of law have been formulated in the Memorandum of Second Appeal, learned counsel appearing for the appellants pressed only one point for consideration at the time of hearing of this appeal. According to learned counsel, there is no evidence or proof of proper attestation of the Will and the courts below were not justified in accepting the Will. Elaborating on his argument, learned counsel pointed out that even though one of the attesting witnesses has been examined, he has not spoken about the attestation of the Will by the other attesting witness. The other attesting witness has not been examined also. Therefore, the Will has to fail. In support of his contention, learned counsel relied on the decision reported in Janki Narayan Bhoir v. Narayan Namdeo Kadam (AIR 2003 SC 761), Benga Behera v. Braja Kishore Nanda (AIR 2007 SC 1975), Rur Singh v. Bachan Kaur (2009(1) KLT SN 48) and Yumnam Obgbi tampha R.S.A.1128/2003. 4 Ibema Devi v. Yumnam Joykumar Singh ((2005) 4 SCC
780).
6. Learned counsel for the respondents on the other hand pointed out that this issue was never raised before the courts below and it is raised for the first time before this court. It is also pointed out that the evidence of P.W.2, one of the attesting witnesses, is clear regarding the attestation of the Will. Her evidence is sufficient to show that the Will has been properly attested by the attesting witnesses. It is pointed out that it is not necessary to examine both the attesting witnesses, and that is not contemplated by the relevant provisions of the Evidence Act. All that the law requires in a case where the Will is relied on is that one of the attesting witnesses will have to be examined to prove the due execution of the Will and that has been done in the case on hand. The propounder has discharged the burden cast on him. Learned counsel appearing for the respondents relied on the following decisions in support of his contention: R.S.A.1128/2003. 5
i) H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443),
ii) Varghese v. Oommen (1994 (2) KLT 620)
iii) Simon v. George (2003(1) KLT 718)
iv) George v. Varkey (2004(1) KLT 21)
v) Kathrikutty v. V.J. Pappoo (2005(2) KLJ 303)
vi) Daulatram v. Sodha ((2005) 1 SCC 40)
vii) Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (AIR 2007 SC 614)
viii) Apolinde D'Souza v. John D'Souza ((2007) 7 SCC 225)
ix) Laxmanan v. Padmini (2009(1) KLT 29)
7. Both the courts below have considered the validity of the Will said to have been executed by Bharathy Amma and they came to the conclusion that the evidence of P.Ws. 1 and 2 are sufficient to show that the Will was infact executed by Bharathy Amma and she had a sound disposing mind at the relevant time. The courts below found that there was no suspicious circumstance surrounding the execution of the Will. The Will was thus accepted. R.S.A.1128/2003. 6
8. As rightly pointed out by the learned counsel for the respondents, it does not appear that the issue now raised before this court has been agitated before the courts below. Nevertheless being a question of law, it needs to be considered.
9. Before going into the question of law, the evidence of P.W.2, the attesting witness may be referred to. He is one of the attesting witnesses to the Will. He has clearly stated that he had seen Bharathy Amma affixing her signature on Ext.A4. He also says about him having signed the Will in the presence of Bharathy Amma. He said that the other witness had also signed. He has stated in categoric terms that Bharathy Amma signed the Will after the same was read over to her and she was convinced about the contents. He would also say that the attesting witness too heard the contents of the Will being read out to Bharathy Amma.
10. Section 59 of the Indian Succession Act, mentions about persons who are capable of executing a R.S.A.1128/2003. 7 testamentary deed. Section 63 deals with the execution of the unprivileged Will. They read as follows:
"59. Person capable of making Wills.- Every person of sound mind not being a minor may dispose of his property by Will."
"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.
) 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 R.S.A.1128/2003. 8 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."
The provision deals with persons who are competent to execute a testamentary document. It says, any person of sound mind and who is not a minor may dispose of his property. As per Section 63, 1) Will shall be in writing,
2) the testator shall either sign or affix his mark to the Will or 3) it may be signed by some other person in his presence and by his direction, 4) the signature or mark of testator or the person so directed shall appear in such a manner that it was intended to give effect to the writing as a Will and 5) it shall be attested by two witnesses, who have seen the testator signing the Will or has received an acknowledgement from him about the execution of the Will R.S.A.1128/2003. 9 and also that each of the attesting witness shall sign in the presence of the testator.
11. It needs to be noticed that while in the case of a testator, signature or mark or acknowledgment of signature or mark or sign is sufficient. In the case of an attesting witness he has to sign the document as an attesting witness. It is not necessary that each attesting witness should see the other sign the Will.
12. Section 59 deals with the person who can execute a will and Section 63 deals with the execution of the testamentary document, ie., the procedure in drawing up of a Will.
13. Section 68 of the Indian Evidence Act deals with the mode of proof of an attested document. It deals with a special mode of proof in case of documents which are to be compulsorily attested. The provision reads as follows:
"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 R.S.A.1128/2003. 10 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."
Section 69 provides for a situation where no attesting witness can be found. Section 70 deals with a case where the execution is admitted by the person, who executed the document and Section 71 deals with a situation where the attesting witness denies the execution. Section 68 of the Indian Evidence Act lays down the mode of proof of a Will by calling atleast one witness. It does not set out what is required to be proved. The provision only stipulates that such a document shall not be used in evidence until or unless at least one of the attesting witness has been R.S.A.1128/2003. 11 examined. That however has to be ascertained with reference to Section 63(c) of the Indian Succession Act.
14. The law regarding proof of Wills is well settled. The onus probandi in all cases where a person set up a Will lies on the propounder of the Will and he must satisfy the conscience of the court that the instrument is the last will of the testator, he had a sound disposing state of mind at the relevant time and the document reflects the true intent of the testator. Apart from proving the above facts, if there are suspicious circumstances surrounding the Will, the propounder has an added burden to remove the suspicious circumstance to the satisfaction of the court. As the Will often speaks after the death of a person, a certain amount of solemnity is attached to the proceedings and the courts usually adopt a very cautious approach. In the decision reported in H. Venkatachala Iyengar v. B.N. Thimmajamma (AIR 1959 SC 443) it was held as follows:
"Section 68 deals with the proof of the execution of the document required by law to be R.S.A.1128/2003. 12 attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relied on a document in a Court of law. Similarly, Ss.59 and 63 of the Indian Succession Act are also relevant. Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context. Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will? did he understand the R.S.A.1128/2003. 13 nature and effect of the dispositions in the will? did he put his signature to the will knowing what is contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of will. It would prima faie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S.63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters."
It was also held that "The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove R.S.A.1128/2003. 14 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." In the decision reported in Simon v. George (2003(1) KLT
718) it was held as follows:
"Of course, the appellant attempted to substantiate his case contending that the registration itself is sufficient to indicate that the Will has been executed for that purpose. The decisions reported in Varghese v. Oommen (1994 (2) KLT 620) and Irudayam Ammal v. Salayath Mary (AIR 1973 Mad. 421) had been relied on.
True, the receipt of registration or certificate from the Registrar is sufficient to indicate that a document has been properly executed and registered. It can only be in respect of a Will which has been duly proved as provided either under S.68 or 69 of the Evidence Act in the absence of proof in terms of mandatory statutory requirements, it cannot be taken that the Will has been proved. The former among the cited cases R.S.A.1128/2003. 15 is not, therefore, an authority. In the other case cited, two persons had signed, though not as attesters; they were taken as the attesters and Will has been taken as duly proved. It was in spite of that, relevance of certificate or registration was referred to. That is, thus a case where there was proof in terms of S. 68 itself. In this case, no such evidence is forthcoming. So the decisions cited cannot be applied to the fact frame of this case."
In the decision reported in George v. Varkey (2004(1) KLT
21) it was held as follows:
"To be a valid Will, apart from genuineness of the signature and testamentary capacity, it should also be proved that S.63(c) of the Indian Succession Act, 1925 is complied with. Attestation by two witnesses is compulsory. What is necessary is to call for the purpose of proving the execution on of the attesting witnesses, if he is alive. So the obligation is only to call at least one of the attesting witness, if he is alive, to the Court for proving the Will. But even if he denies the Will, if by other evidence it is proved that there is proper attestation, the Will can be R.S.A.1128/2003. 16 accepted. Court is free to believe or disbelieve him after analysing the entire evidence and deposition of attesting witness is also to be scrutinised by the Court like deposition of any other witness. Even if the attesting witness examined denies proper attestation, it is for the Court to decide whether the Will was duly attested considering the entire evidence. Appraisal of evidence is the duty of the Court."
In the decision reported in Kathrikutty v. V.L. Pappoo (2005(2) KLJ 303) it was held as follows:
"Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act provide that the will shall be attested atleast by two witnesses and that while proving the will atleast one among them shall have to be examined. In a probate proceedings it is the duty of the propounder to show that the "will was signed by the testator; that he was at the relevant time in sound disposing state of mind; that he understood the nature and effect of disposition and had put his signature to the testament of his own free will and that he had signed it in the presence of the two witnesses who attested in his presence and in R.S.A.1128/2003. 17 the presence of each other" (See Sreedevi v. Jayaraj Shetty (AIR 2005 SC 780)"
In the decision reported in Daulat Ram v. Sodha ((2005) 1 SCC 40) it was held as follows:
"In order to assess as to whether the Will has been validly executed and is a genuine document, the propounder has to show that the Will was signed by the testator and that he had put his signatures to the testament of his own free will; that he was at the relevant time in a sound disposing state of mind and understood the nature and effect of the dispositions and that the testator had signed it in the presence of two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. But where there are suspicious circumstances, the onus is on the propounder to remove the suspicion by leading appropriate evidence. The burden to prove that the Will was forged or that it was obtained under undue influence or coercion or by playing a fraud is on the person who alleges it to be so." R.S.A.1128/2003. 18
In the decision reported in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao (AIR 2007 SC 614), it was held as follows:
"Section 63 of the Indian Evidence Act lays down the mode and manner in which the execution of an unprivileged Will is to be proved. Section 68 postulates the mode and manner in which proof of execution of document is required by law to be attested. It is in unequivocal terms states that execution of Will must be proved at least by one attesting witness, if an attesting witness is alive subject to the process of the court and capable of giving evidence. A Will is to prove what is loosely called as primary evidence, except where proof is permitted by leading secondary evidence. Unlike other documents, proof of execution of any other document under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence Act, execution must be proved at least by one of the attesting witnesses. While making attestation, there must be an animus attestandi, on the part of the attesting witness, meaning thereby, he must intend to attest and extrinsic evidence on this point is receivable. R.S.A.1128/2003. 19
The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may e held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.
There are several circumstances which would have been held to be described by this Court as suspicious circumstances:-
R.S.A.1128/2003. 20
(i) When a doubt is created in regard to the condition of mind of the testator despite his signature on the Will.
(ii) When the disposition appears to be unnatural or wholly unfair in the light of the relevant circumstances.
(iii) Where propounder himself takes prominent part in the execution of Will which confers on his substantial benefit.
We may not delve deep into the decisions cited at the Bar as the question has recently been considered by this Court in B.Venkatamuni v. C.J. Ayodhya Ram Sing (2006(1)SCALE 148), wherein this 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 probe deeper into the matter only because the signature of the propounder on the Will is otherwise proved."
In the decision reported in Apoline D'Souza v. John D'Souza ((2007) 7 SCC 225) it was held as follows: R.S.A.1128/2003. 21
"What should be the mode of execution of a will has been laid down in Section 63 of the Succession Act in the following terms:
"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.
) 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 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."
R.S.A.1128/2003. 22
.............. ..............
What would be the requirement for proof of a will has recently been considered by this court in B.Venkatamuni v. C.J. Ayodhya Ram Singh stating:
"14(15).... Proof of a will shall strictly be in terms of the above mentioned provisions.
15(16). it is, however, well settled that compliance with statutory requirements itself is not sufficient as would appear from the discussions hereinafter made."
It was observed:
"19(20) Yet again Section 68 of the Evidence Act postulates the mode and manner of proof of execution of document which is required by law to be attested stating that the execution must be proved by at least one attesting witness, if an attesting witness is alive and subject to the process of the court and capable of giving evidence."
It was further observed:
"22(24)... However, having regard to the fact that the will was a registered one and the propounder had discharged the onus, it was held that in such circumstances, the onus shifts to the contestant opposing the will to bring material on record meeting such prima facie case in which event the onus shifts back on the propounder to satisfy the court affirmatively that the testator did not (sic) know well R.S.A.1128/2003. 23 the contents of the will and in sound disposing capacity executed the same."
In the decision reported in Laxman v. Padmini (2009(1) KLT 29) it was held as follows:
"What is in dispute and is open to further litigation are only the properties covered by Ext./B2 and B3 which were held by both the appellate courts to be available for division. since we are concerned with the legality of execution of Deed of Will and Deed of Gift, S.68 of the Act would have some relevance, which reads as follows:-
"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 R.S.A.1128/2003. 24 execution by the person by whom it purports to have been executed is specifically denied."
Strong reliance was placed on this provision also by the learned counsel appearing for the parties. A bare reading of the aforesaid provision will make it crystal clear that so far as a Deed of Will is concerned, the position in law is no longer in doubt for the onus of proving the will is on the propounder. The propounder has to prove the legality of the execution and genuineness of the said Will by proving absence of suspicious circumstances surrounding the said Will and also by proving the testamentary capacity and the signature of the testator. Once the same is proved, it could be said that the propounder has discharged the onus.
When there are suspicious circumstances regarding the execution of the Will, the onus is also on the propounder to explain them to the satisfaction of the Court and only when such responsibility is discharged, the Court would accept the Will as genuine. Even where there are no such pleas, but circumstances give rise to doubt, it is on the propounder to satisfy the conscience of the Court. Suspicious R.S.A.1128/2003. 25 circumstances arise due to several reasons such as with regard to genuineness of the signature of the testator, the conditions of the testator's mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indications in the Will to show that the testator's mind was not free. In such a case, the Court would naturally expect that all legitimate suspicious should be completely removed before the document is accepted as the last Will of the testator. The aforesaid view is taken by us in consonance with the decision of this Court in Shashi Kumar Banerjee v. Subodh Kumar Banerjee (AIR 1964 SC
529) and Pushpavathi v. Chandraraja Kadamba ((1973) 3 SCC 291)."
Therefore, it could thus be seen that the law regarding proof of Wills has been consistent and uniform. The initial burden is on the propounder to show that the Will has been duly executed and it has also to be established that it is duly attested. So also that the testator had the necessary testamentory capacity. For the purpose of doing so, it is R.S.A.1128/2003. 26 necessary that atleast one of the attesting witness is examined. Apart from proving the due execution and attestation of the Will as noticed in the decisions mentioned above, if there are any suspicious circumstance, the propounder has an added burden to remove the suspicious circumstance to the satisfaction of the court.
15. A Will has to be proved, like any other document, except as to the special requirement of proof prescribed by Section 63 of the Indian Succession Act. The test to be applied would be the usual test of the satisfaction of a prudent mind. The law does not insist for proof beyond reasonable doubt, but only on preponderance or probability. However, the courts are more cautious in the case of proof of Will as the testator is not before the court. In the case of a Will, whether it is admitted or disputed, it is incumbent on the part of the propounder to adduce evidence in accordance with law, ie., Section 68 of the Indian Evidence Act. In order to prove the due execution and attestation of the Will, it is necessary that the witness called upon to give R.S.A.1128/2003. 27 evidence regarding the attestation should state that the testator had signed the Will in his presence and that he had signed in the presence of the testator.
16. It will be useful here to consider as to what is meant by attestation. In the case of documents, which need not be attested, compulsory, proof of execution alone is sufficient going by Section 67 of the Indian Evidence Act. But in the case of documents, where attestation is mandatory, proof of both execution and attestation is necessary and without the proof of the latter, the document is not valid. In other words, the principle is that there should be not only proof of execution, but also of valid attestation. Unless and until the attestation is also proved, the document is of no value.
17. To attest an instrument means not merely to subscribe one's name in the document as having been present at its execution, but includes also, essentially, the being infact present at the time of execution. It is often said that there should be animus attestandi. Even though Indian R.S.A.1128/2003. 28 succession Act does not contain the definition of attestation, Section 3 of the Transfer of Property Act defines the term. One may again notice that the testator may sign or affix his mark or direct some other person to sign in his presence. The reason for such a provision is quite obvious. Quite often people who are desirous of executing testamentary disposition may be physically incapacitated in doing so. It does not mean that such a person cannot make a Will. So the law provides that instead of signing or affixing his mark, they may direct some other person to do so on their behalf and in their presence. The attesting witnesses have no such privilege. Section 63 is very clear to the effect that each of the attesting witness shall sign the Will in the presence of the testator. Therefore a clear distinction is drawn by the provision between the 'testator' and the 'attesting witness'.
18. In the case on hand, the evidence of P.W.2, one of the attesting witnesses, is already referred to. It is true that he only says that the other witness has also signed. He did not in so many words say that he had seen the other R.S.A.1128/2003. 29 witness sign the document in the presence of the testator. The question is whether that evidence is sufficient.
19. Going by Section 68 of the Indian Evidence Act, the provision mandates that in cases falling within the ambit of the provision, one of the attesting witnesses will have to be called upon to give evidence regarding the due attestation. In support of the view that only one of the attesting witnesses needs to be examined to prove the due execution and attestation, learned counsel appearing for the respondents relied on the decision reported in Varghese v. Oommen (1994(2) KLT 620). In the said decision, the issue considered was as to whether the evidence given by one of the attesting witnesses, even though he does not speak about the attestation by the other witness, is sufficient in law to prove the due execution and attestation of the Will. In the said decision it was held as follows:
"Counsel for the respondent submitted that the requirement that at least one attesting witness has to be examined for the purpose of proving the will postulates that the witness who is examined R.S.A.1128/2003. 30 for the purpose of proving the will should say that the attesting witness who has not been examined has signed the will in the presence of the executants after seeing the executants signing he will. This proposition of law is seriously disputed by counsel for appellants and the appellants in M.F.A. No.631 of 1992. In this context, it is relevant to note S.63(c) of the Act, wherein it is only stated that ".............. 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."
From the above quote, it is clear that it is not an imperative condition that both the witnesses shall be present at the same time. If two attesting witnesses have signed at differed time, it will not be a cause for saying that the will is invalid. If two different witnesses signed at different time, it will be difficult for one witness to say that he has seen the other witness signing the will and also the fact that the other witness has signed the will in the presence of the testator or after obtaining an acknowledgment from the testator. If this is the R.S.A.1128/2003. 31 position, it is difficult to insist the only attesting witness examined, to say before court that he has seen the other witnesses signing the will in the presence of the testator. In this case it has to be noted that P.W.2 has said that the second witness also signed the will describing himself as the scribe. In the collocation of events stated by P.W.2 it is possible to infer from the statement of P.W.2 that Sivarama Pillai, the second witness signed after witnessing the signing of the executors and in their presence.
Now, we may refer to S.68 of the Evidence Act which only mandates that a document which requires by law to be attested, shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. S.68 of the Evidence Act does not say what the attesting witness called for proving the wills should depose before the court in regard to the attestation or witnessing of the other witnesses.
.......... ............
It is possible for executing a will with proper attestation by the attesting witnesses signing at different times and without knowing each other. R.S.A.1128/2003. 32 Since the requirement of S.63 Succession Act is only that there should be two attesting witnesses in the will and that there is no insistence that the attesting witnesses also should be present at the same time, we find it difficult to extend the provision of S.68 of the Evidence Act so as to make it obligatory even when only one attesting witness is called and the propounder is not in a position to call the other witness, to elicit a fact which the attesting witness called may not be in a position to speak honestly before the court. We feel that such an insistence would only be an addition of an unnecessary technicality and that it may lead to witness called for proving, execution and attestation of wills deposing falsehood before the court. In this view, we find it difficult to follow the decisions reported in AIR 1946 Bombay 12, AIR 1949 Bombay 266, AIR 1974 AP 13, AIR 1981 Mad.252 and the observations in SA 1053/63 and 1336 of 1965 and 9, 10 and 160 of 1966."
20. Going by the above decision, the submission of the learned counsel for the respondents appears to be well founded. But the decisions relied on by the learned counsel for the appellants seem to take a different view. R.S.A.1128/2003. 33 One may have a look at the decisions cited by the learned counsel for the appellants. In the decision reported in Janaki Narayan Bhoir v. Narayan Namdeo Kadam (AIR 2003 SC 761), it was held as follows:
"Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving an evidence. It flows from this Section that if there be an attesting witness alive, capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the Will has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but R.S.A.1128/2003. 34 must also prove that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. But, at least one attesting witness has to be called for proving due execution of the Will as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of providing its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at least one attesting witness even though Will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But, what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a Will. To put in other words, if one attesting witness R.S.A.1128/2003. 35 can prove execution of the Will in terms of clause
(c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the Will by other witness also, it falls short of attestation of Will by at least by two witnesses for the simple reason that the execution of the Will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities requited under Section 63 of the Succession Act.
Where one attesting witness examined to prove the Will under Section68 of the Evidence Act fails to prove the due3 execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be R.S.A.1128/2003. 36 deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.
Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68. Evidence Act, to meet a situation where it is not possible to prove the execution of the Will by calling attesting witnesses, though alive. This Section provides that if an attesting witness denies or does not recollect the execution of the Will, its execution may be proved by other evidence. Aid of Section 71 can be taken only when the attesting witnesses, who have been called, deny or fail to recollect the execution of the document to prove it by other evidence. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the Will and other attesting witnesses though are available to prove the execution of the same, for the reasons best known, have not been summoned before the Court. It is clear from the language of Section 71 that if an attesting witness denies or does not recollect execution of the document, tis execution may be proved by other evidence. However, in a case where an attesting witness examined fails to R.S.A.1128/2003. 37 prove the due execution of Will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the Will is proved as per Section 68 of the Evidence Act. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of Will can be proved by other evidence dispensing with the evidence of other witnesses though available to be examined to prove the execution of the Will. Yet, another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the Will is to avert the claim of drawing adverse inference under Section 114, Illustration (g) of Evidence Act. Placing the best possible evidence, in the given circumstances, before the Court for consideration, is one of the cardinal principles of Indian Evidence Act. Section 71 is permissive and an enabling Section, permitting a party to lead other evidence in certain circumstances. But, Section 68 is not merely an enabling section. It lays down the necessary requirements, which the Court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come R.S.A.1128/2003. 38 to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by "other evidence" as well. At the same time, Section 71 cannot be read so as to absolve a party of his obligation under Section 68 read with Section 63 of the Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the Court concerned and confer a premium upon his omission or lapse, to enable him to give a go-bye to the mandate of law relating to proof of execution of a Will.
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When the document is not proved as mandatorily required under Section 68 of the Evidence Act, the provision of Section 71 of the Evidence Act, which is permissive and enabling in certain circumstances, as discussed above does not help the respondent. In Vishnu Ramakrishna & Ors. v. Nathu Vithal & Ors., AIR 1949 Bom 266. Chagla, CJ., speaking for the Division Bench in similar circumstances, has stated that although Section 63 of the Succession Act requires that a R.S.A.1128/2003. 39 Will has to be attested by two witnesses. Section 68 of the Evidence Act permits the execution of the Will to be proved by only one attesting witness being called. Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the Will by the second witness, the evidence of the witness called falls short to the mandatory requirements of Section
68. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the Will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. This Section has no application when one attesting witness has failed to prove the execution of the Will and other attesting witnesses were available who could prove the execution if they were called."
The decision also held that the evidence of scribe or any other person other than the other attesting witness can satisfy the requirement of law.
R.S.A.1128/2003. 40
21. In the decision reported in Benga Behera v. Braja Kishore Nanda (AIR 2007 SC 1975) the decision reported in Janaki Narayan Bhoir's case is seen referred to. In the decision reported in Rur Singh v. Bachan Kaur (2009(1) KLT SN 48), it was held as follows:
"In a way, S.68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under S.63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of CI(c) of S.63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined R.S.A.1128/2003. 41 besides his attestation does not, in his evidence, satisfy the requirements of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under S.63 of the Succession Act. Where one attesting witness examined to prove the will under S.68 of the Evidence Act fails to prove the due execution of the will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness, there will be deficiency in meeting the mandatory requirements of S.68 of the Evidence Act."
In the decision reported in Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh ((2009) 4 SCC
780) it was held as follows:
"As per the provisions of Section 63 of the Succession Act, for the due execution of a will ; (1) the testator should sign or affix his mark to the will ;
R.S.A.1128/2003. 42 (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will ;
(3) the will should be attested by two or more witnesses and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.
The attestation of the will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attests (sic attesting witness should put his signature on the will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a will is required by law to be attested, its execution has to be proved in the manner laid down in the section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. R.S.A.1128/2003. 43
13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator." Going by the principle laid down in the above decisions, it is evident that, one of the attesting witnesses called upon to give evidence in relation to the execution and attestation of the Will, apart from speaking about his part of attestation has to speak about the attestation by the other attesting witness also. If he fails to do so, then it was incumbent on the part of the propounder to call upon the other attesting witness to give evidence. In a case where the attesting witness is not available, there are other methods which can be resorted to. So also it is well settled that the fate of a Will dos not depend upon the whims and fancies of an R.S.A.1128/2003. 44 attesting witness. Whatever that be, unless the attesting witness examined as already mentioned, proves the attestation by the other witness also, it cannot be said that the attestation has been duly proved. In the light of the decisions referred to above, the decision reported in Varghese's Case cannot be treated as good law.
22. Therefore the principle that only one of the attesting witnesses needs to be called upon to give evidence regarding attestation and execution of the Will is qualified by the fact that the said witness should not only speak about the execution of the document but also about the attestation by both the witnesses. The attesting witness called upon to give evidence must speak about his own attestation and the attestation by the other witness also. If he does not do so, the attestation of the deed could not be said to be duly proved unless the other attesting witness is also called upon to speak about the same.
23. It is true that in the case on hand there is no specific statement by P.W.2 that he had seen the other R.S.A.1128/2003. 45 attesting witness sign the Will in the presence of the testator, but he has stated that the other witness had also signed in the document. That statement by implication and inference shows the attestation by the other witness also.
24. Before going further, a few facts may be noticed. As already mentioned, both the courts have concurrently found that the Will was infact executed by Bharathy Amma and she had a sound disposing state of mind at the relevant time. One cannot omit to note that while the plaintiffs are related to Bharathy Amma, the defendants are total strangers.
25. It is in this context that the validity of the Will in the present case will have to be adjudged. The Will has been found to be valid. One cannot ignore the fact that the Will is a registered document also. Even though registration by itself is not proof, when due execution is proved, registration becomes an added circumstance going in favour of the Will. That shows that the Will has been drawn up satisfying the provisions of the law. Moreover, the R.S.A.1128/2003. 46 defendants pleaded several vitiating circumstances, none of which was proved. In the decision reported in Gurudev Kaur v. Kaki ((2007) 1 SCC 546) it was held as follows:
"If a will appears on the face of it to have been duly executed and attested in accordance with the requirements of the statute, a presumption of due execution and attestation applies."
The principle in the above decision applies to facts of this case.
26. Apart from the above facts, the issue now raised before this court was never raised before any of the forums below and even the questions of law formulated in this Memorandum of Second Appeal does not contain a question of law as to whether the evidence on record is sufficient to prove the due attestation of the document.
27. Therefore, the contention based on want of attestation is of no avail to the appellants. Reading the evidence of P.W.2 as a whole, one can reach the conclusion that he had seen the other witness sign the document in the R.S.A.1128/2003. 47 presence of the testator. The appellants are unable to show any factual or legal infirmity in the orders of the courts below.
In the result, this appeal is without merits and it is accordingly dismissed. There will be no order as to costs.
P. BHAVADASAN, JUDGE sb.