Smt Malti Bai v. Smt. Amrauteen Bai And Others

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No. 174 of 2007 Smt. Malti Bai, W/o Shri Mahesh Janghel, aged about 38 years, R/o Laxman Nagar, Raipur, Distt.

Raipur (C.G.) ---- Appellant/Defendant

Versus

Smt. Son Kunwar through her legal representatives:- 1.

Smt. Amrauteen Bai, aged about 45 years, W/o Shri Mata Prasad, R/o. Lodhipara Station Ward, Distt. Raipur (C.G.) 2.

Smt. Shanti Bai, aged about 47 years, W/o Shri Thelau, R/o Mova Tehsil, Distt. Raipur (C.G.) 3.

Smt. Bhaga Bai, aged about 43 years, W/o Shri Mahesh, R/o Ramnagar, Tehsil and Distt. Raipur (C.G.) 4.

Smt. Banwati, aged about 41 years, W/o Shri Dukhuram, R/o Ramnagar, Tehsil and Distt. Raipur (C.G.) 5.

Manoj Kumar Janghel (since deceased) through Lrs:- 5(i) Smt. Purnima Janghel, aged about 30 years, Wd/o. Late Manoj Kumar Janghel (ii) Anjali Janghel, aged about 12 years, D/o. Late Manoj Kumar Janghel (iii)Kanupriya Janghel, aged about 10 years, D/o. Late Manoj Kumar Janghel (iv) Kavita Janghel, aged about 7 years, D/o. Late Manoj Kumar Janghel Note- Lrs 5(ii) to 5(iv) are minors and they are represented through their mother and natural guardian LR's 1(i) Smt. Purnima Janghel, Wd/o. Late Manoj Kumar Janghel, all are r/o. Station

Road Lodhipara, P.S. Ganj, Raipur, Civil and Revenue District Raipur (C.G.) ---- Respondents/Plaintiffs.

For Appellant : Shri Y.C. Sharma , Advocate. For Respondents : Shri Ratan Pusty, Advocate. Hon'ble Shri Justice Sanjay K. Agrawal Order On Board 07/01/2020 (1) The substantial question of law involved, formulated and to be answered in this second appeal preferred by defendant No. 1/appellant herein states as under: "Whether both the courts below were justified in holding that defendant has failed to prove the due execution and attestation of Will (Ex.D-1) in her favour, by recording a finding, which is perverse to the record ?

(For the sake of convenience, parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court). (2) The imperative facts required to be noticed for adjudication of this appeal are as under:

(2.1) The suit property was originally held by Belkunwar. Original plaintiff -Sonkunwar was her sister. She filed a suit for declaration of title and for declaration of Will dated 28.8.2001 (Ex.D-1) as void and

illegal on the ground that the disputed properties were jointly purchased by plaintiff Son Kumwar and deceased Bel Kunwar vide sale deed dated 19.8.1954(Ex.P-7) and that the said Sonkunwar and Bel Kunwer were full blood sisters, their father being one Dayaram; that Bal Kunwar died on 30.8.2001 issueless leaving behind her only heir Son Kunwar (sister) and after death of Bel Kunwar, the plaintiff is continuing in possession over the suit land. It has further been averred that plaintiff had taken care of her sister Bel Kunwar during her old age and plaintiff had performed her last rites; Belkunwar had never executed any Will in favour of any one including defendant No. 1 Malti Bai. However, on the basis of a forged & fabricated Will dated 28.8.2001 (Ex.D-1), Malti Bai had got her name mutated in revenue records (vide Ex.P/5 & P/6) in collusion with revenue authorities and, therefore, he is entitled to get the decree for declaration of title and permanent injunction.

(2.2) Defendant, by filing written statement, had admitted the fact of joint ownership of land belonging to Son Kunwar & Bel Kunwar vide Ex.P/7 dated 19.5.1994 and further took a plea that Son Kunwar and Bel Kunwar were uterine sisters as their mother was same but were from different fathers; the relationship between the

plaintiff and Belkunwar was strained and they never resided together; that defendant Maliti Bai was adopted by Bel Kunwar and she had taken care of her (Bel Kunwar) during her old age; that Will (Ex.D-1) was executed by Bel Kunwar in sound disposing state; that two days before her death on 30.08.2001, she had fallen ill while the Will was executed on 28.8.2001, as such, defendant No. 1 being legatee under the Will, was the only heir of late Bel Kunwar.

(3) The trial Court, by its judgment & decree dated 28.06.2006 passed in Civil Suit No. 1-A/04, decreed the suit holding that the defendant has failed to prove the due execution and attestation of Will (Ex.D-1) in her favour.

(4) The defendant preferred first appeal thereagainst. The First appellate Court by its impugned judgment & decree dated 13.12.2006 passed in Civil Appeal No. 3A/2006, after re-appreciating the oral and documentary evidence available on record, dismissed the appeal by affirming the judgment and decree of the trial Court, against which, this second appeal has been preferred by the appellant/defendant in which the substantial question of law has been formulated and set out in the opening paragraph of the judgment.

(5) Mr. Y.C. Sharma, learned counsel appearing for the appellant/defendant would submit that both the courts below have grossly erred in holding that defendant No. 1, being propounder of the Will, has not proved due execution and attestation of Will (Ex.D-1) dated 28.8.2001 in accordance with Section 63 (c) of the Indian Succession Act, 1925 read with Section 68 of the Evidence Act, 1872, as such, judgments & decrees of both the courts below are liable to be set aside.

(6) Mr. Ratan Pusty, learned counsel appearing for the plaintiffs/respondents herein, would support the impugned judgment & decree.

(7) I have heard learned counsel for the parties and considered their rival submissions made herein-above and gone through the record with utmost circumspection. (8) The short question for consideration would be, whether execution and attestation of the Will Ex.D-1 has been proved and established by defendant No. 1 in view of the provisions contained in Section 63 of the Indian Succession Act, 1925 read with Section 68 of the Evidence Act, 1872?

(9) It is trite law that a will as an instrument of testamentary disposition of property being a legally acknowledged mode of bequeathing a testator's

acquisitions during his lifetime, to be acted upon only on his/her demise, it is no longer res integra, that it carries with it an overwhelming element of sanctity. [See Jagdish Chand Sharma v. Narain Singh Saini (Dead) through Legal Representatives and others1.]

(10) In order to consider the plea raised at the bar, it would be appropriate to notice Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872.

(11) Section 63 of the Act of 1925 provides as under:- "63. Execution of unprivileged Wills.-Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:- (a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.

(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign (2015) 8 SCC 615

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."

(12) As per the provisions of Section 63 of the Succession Act, 1925 for due execution of a will (1) the testator should sign or affix his mark to the will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a will; (3) the will should be attested by two or more witnesses; and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the will and each of them should sign the will in the presence of the testator.

(13) The above-stated provision of attestation of will under Section 63(c) of the Succession Act, 1925 by two or more witnesses has been held to be mandatory by Their Lordships of the Supreme Court in the matter of Janki Narayan Bhoir v. Narayan Namdeo Kadam2.

(14) Section 68 of the Evidence Act, 1872 provides as under:- "68. Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting (2003) 2 SCC 91

witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:

Provided that it shall be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied."

(15) By the aforesaid provision, a document required by law to be attested to have its execution proved by at least one of the attesting witnesses if alive and it is subject to process of the court conducting the proceedings involved and is capable of giving evidence. However, proviso to Section 68 of the Evidence Act, 1872 is not available in case of will.

(16) In the matter of Girja Datt Singh v. Gangotri Datt Singh3, Their Lordships of the Supreme Court have held that in order to prove the due attestation of will, the propounder of will has to prove that 'A' and 'B', the two witnesses saw the testator sign the will and they themselves signed the same in the presence of the testator. Their Lordships while considering Section 68 of the Evidence Act, 1872 further held that from the mere signature of two persons appearing at the AIR 1955 SC 346

foot of the endorsement of registration of will it cannot be presumed that they had appended their signature to the document as an attesting witness or can be construed to have done so in their capacity as attesting witness. It was pertinently observed as under:- "In order to prove the due attestation of the will Ex. A-36 Gangotri would have to prove that Uma Dutt Singh and Badri Singh saw the deceased sign the will and they themselves signed the same in the presence of the deceased. The evidence of Uma Dutt Singh and Badri Singh is not such as to carry conviction in the mind of the Court that they saw the deceased sign the will and each of them appended his signature to the will in the presence of the deceased. They have been demonstrated to be witnesses who had no regard for truth and were ready and willing to oblige Gur Charan Lal in transferring the venue of the execution and attestation of the documents Ex. A-23 and Ex. A-36 from Gonda to Tarabganj for reasons best known to themselves."

***** "One could not presume from the mere signature of Mahadeo Pershad and Nageshur appearing at the foot of the endorsement of registration that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses.

Section 68, Indian Evidence Act requires an attesting witness to be called as a witness to prove the due execution and attestation of the will. This provision should have been complied with in order that Mahadeo Pershad and Nageshur be treated as attesting witnesses. This line of argument therefore cannot help Gangotri."

(17) In the matter of H.Venkatchala Iyengar v. B. N. Thimmajamma and others4 the Supreme Court speaking through Gajendragadkar, J., elaborately laid down the principles relating to the nature and standard of evidence required to prove a will. It was held as under:- "(1) Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty.

(2) Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 63 of the Evidence Act, one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the court and capable of giving evidence.

(3) Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator.

Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will.

(4) Cases in which the execution of the will is surrounded by suspicious AIR 1959 SC 443

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 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."

(18) The principle laid down in the above-stated judgment has been followed with approval in Smt. Jaswant Kaur v. Smt Amrit Kaur and others5, Surendra Pal and others v. Dr. (Mrs.) Saraswati Arora and another6, Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others7 and Jagdish Chandra Sharma (supra).

(19) In the matter of Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal Representatives and another8, the Supreme Court has again reiterated the need of proving the attestation of will in accordance with Section 63(c) of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872.

(20) In Surendra Pal (supra), the Supreme Court while re-stating the guidelines regarding the nature and extent of burden of proof on the propounder of a will held that propounder has to show that the will was signed by the testator; that he was at the relevant time in a sound disposing state of mind; that he understood the nature and effect of the dispositions; that he put (1977) 1 SCC 369 (1974) 2 SCC 600 (2009) 4 SCC 780 (2017) 1 SCC 257

his signature to the testament of his own free will; and that he has signed it in the presence of the two witnesses who attested it in his presence and in the presence of each other. Once these elements are established, the onus which rests on the propounder is discharged. It was further held that in cases where the propounder has himself taken a prominent part in execution of a will which confers on him substantial benefit that is itself one of the suspicious circumstances which he must remove by clear and satisfactory evidence.

(21) The Supreme Court in Yumnam Ongbi Tampha Ibema Devi (supra) has clearly held that the attestation of will is not an empty formality. Highlighting the importance of attestation of Will it was held it means signing a document for the purpose of testifying of the signatures of the executant. The attesting witness should put his signature on the will animo attestandi and it was held as under:- "13. Therefore, having regard to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession 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."

(22) In Janki Narayan Bhoir (supra), the Supreme Court while considering Section 63(c) of the Indian Succession Act, 1925 and Section 68 of the Evidence Act, 1872 held that mere proof of signature of the testator on the will was not sufficient, the attestation thereof is also to be proved as required by Section 63(c) of the Indian Succession Act, 1925. It was observed as under: - "10. Section 68 of the Evidence Act speaks of as to now a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving an evidence.

It flows from this Section that if there be an attesting witness alive capable of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply proving that the signature on the will was that of the testator but must also prove that attestations were also made properly as required by Clause (c) of Section 63 of the Succession Act. It is true that Section 68 of Evidence Act not say that both or all the attesting witnesses must be examined.

execution of the Will as envisaged in Section 63 although Section 63 of the Succession Act requires that a will has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is required by law to be attested, shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution if such witness is alive and capable of giving evidence and subject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a will in a Court of law by examining at least one attesting witness even though will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that that one attesting witness examined should be in a position to prove the execution of a will.

To put in other words, if one attesting witness can prove execution of the will in terms of Clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined, in his evidence has to satisfy the attention of a will by him and the other attesting witness in order to prove there was due execution of the will.

If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attention of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects.

Where one

attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act."

(23) The principle of law laid down in Janki Narayan Bhoir (supra) has been followed with approval in Jagdish Chandra Sharma (supra) by which it was held as under:- "52. While dwelling on the respective prescripts of Section 63 of the Act and Sections 68 and 71 of Act 1872 vis-à-vis a document required by law to be compulsorily attested, it was held Janki Narayan Bhoir (supra) that if an attesting witness is alive and is capable of giving evidence and is subject to the process of the Court, he/she has to be necessarily examined before such document can be used in evidence.

It was expounded that on a combined reading of Section 63 of the Act and Section 68 of the 1872 Act, it was apparent that mere proof of signature of the testator on the Will was not sufficient and that attestation thereof was also to be proved as required by Section 63 (c) of the Act. It was, however, emphasised that though Section 68 of the 1872 Act permits proof of a document compulsorily required to be attested by one attesting witness, he/she should be in a position to prove the execution thereof and if it is a Will, in terms of Section 63 (c) of the Act, viz., attestation by two attesting witnesses in the manner as contemplated therein.

but connotes fulfilling the proof of all formalities required Under Section 63 of the Act. It was held that where the attesting witness examined to prove the Will Under Section 68 of 1872 Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects."

(24) Reverting to the facts of the present case in light of the principle of law rendered by Their Lordships of the Supreme Court in the above-cited judgments (supra) qua execution and attestation of Will by a testator, the following factual position would emerge on the face of the record :- 1.

The suit property was originally held by Belkunwar. She is said to have executed unregistered will in respect of her property in favour of defendant No. 1 excluding her full blood sister Son Kunwar on 28.08.2001 (Ex.D-1). The said Will was executed by Belkunwar before two days of her death as she died on 30.8.2001. The said Will (Ex.D-1) has been attested by number of witnesses but defendant No. 1 has restricted them and examined only two witnesses namely Bhabai (DW-2) & Mahesh (DW-3) as attesting witnesses.

2.

The trial Court as well as the first appellate Court have held that Will (Ex.D-1) is not proved in accordance with Section 63 (c) of the Succession Act, 1925 read with Section 68 of Evidence Act;

and further held that

identification of thumb impression of the testatrix was suspicious and witnesses examined to prove execution of the Will were illiterate and the Will was not read over to the testatrix and there is no reason for exclusion of the full blood sister (plaintiff) in the property, while executing a Will in favour of defendant No.1. 3.

Attesting witness Bhan Bai (DW-2) has stated on oath that Belkuwar has executed a Will in favour of Smt. Malti Bai, in which she and Belkunwar have signed; her sign in the Will is "c" to "c" and thumb impression of Belkunwar is "l" to "l". She omitted to state that she attested the Will in presence of testatrix Belkunwar or Belkunwar signed the Will in her presence. She also failed to state that at the time of execution of Will, another attesting witness Mahesh was present.

4.

Likewise, another attesting witness Mahesh (DW-2) has also not stated that another attesting witness Bhan Bai (DW-1) was present at the time of execution of Will by Belkunwar in favour of Malti Bai. Thus, both the attesting witnesses of the Will have simply said that they have signed the Will but they did not state before the Court that they have signed with the intention of attesting the Will in presence of the testator and they have seen the testatator signing the Will, which is sine-qua-non for proving the attestation of the Will.

5.

It is well settled that mere signing of a will as a witness would not per se amount to compliance of Section 63(c) of the Succession Act, 1925 as animo attestandi is absolutely lacking. In the matter of Bhagat Ram v. Suresh9, it has been held that to be an attesting witness it is essential that the witness should have put his signature animo attestandi for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgement of his signature.

(25) Even otherwise, both the courts below have not accepted the due execution and attestation of Will; and also found suspicious circumstances, which were required to be explained and which have not been explained properly and the Will suffers from suspicious circumstances, as testatrix was seriously ill before execution of Will and she died on 30.08.2001 i.e. after two days of the execution and attestation of the Will. As such, the finding recorded by both the courts below that execution and attestation of Will has not been proved in accordance with Section Section 63 (c) of the Indian Succession Act, 1925 read with Section 68 of Evidence Act, is a finding of fact based on material available on record and I do not find it either perverse or contrary to the record.

(2003) 12 SCC 35

(26) In view of above, judgments and decrees of both the Courts below are hereby affirmed, as such, the substantial question of law is answered accordingly. In the result, the judgment and decree passed by the first appellate Court is hereby affirmed.

(27) As a fallout and consequence of the above-stated discussion, the substantial questions of law framed is answered against defendant No.1 and in favour of plaintiffs and this second appeal is dismissed accordingly leaving the parties to bear their own cost(s).

(28) A decree be drawn-up accordingly.

Sd/- (Sanjay K. Agrawal) Judge D/-