Muhmet Bai (Dead ) v. Shyam Das

NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Second Appeal No.294 of 2003

1. Muhmet (died and deleted) 1.a. Shivchand S/o Sahadev, aged about 45 years, R/o Village Saskalo, P.S. Darima, Tehsil - Ambikapur, District - Surguja (CG)

2. Gyanchand s/o Baiga, Caste-Panika, aged about 55 years, r/o village Kotaya, P.S. Darima, Tehsil Ambikapur, Distt. Surguja C.G. (Defendants) ---- Appellants

Versus

1. Shyam Das s/o Akalu Das, Caste-Panika, aged about 45 years, Occupation-Agriculture, r/o village Kotya, P.S. Darima, Tehsil Ambikapur, Distt. Surguja (CG) 2.a. Shri Chand S/o Samudri and Bodra, aged about 32 years 2.b. Bodra H/o Samudri, aged about 55 years Both R/o Village - Gorrapara, P.S. Darima, Tahsil - Ambikapur, District Surguja (CG)

3. Kunja d/o Gokul, Caste-Panika, age 35 years r/o village Gorrapara, P.S. Darima, Tehsil Ambikapur, Distt. Surguja (CG)

4. The State of Chhattisgarh, through Collector, Surguja ---- Respondents For Appellants/Defendants : Mr.A.K.Prasad, Advocate For Respondent No.1/Plaintiff: Ms Priyanka Mehta, Advocate For Respondent No.4/State : Mr. Sumit Singh, P.L. Hon'ble Shri Justice Sanjay K. Agrawal Judgment on Board 12/03/2019

1. The substantial question of law involved, formulated and to be answered in the second appeal preferred by defendants No.1 and 4 is as under: -

"Whether first appellate Court was justified in holding that execution of Will by Ramkunwar in favour of plaintiffShyamdas is proved in accordance with law and thereby justified in reversing the judgment & decree of the trial Court?

[For the sake of convenience, the parties would be referred hereinafter as per their status shown and ranking given in the suit before the trial Court].

2. The suit property was held by Smt. Ramkunwar. Ramkunwar died on 8.6.1995. Plaintiff-Shyamdas filed a suit for declaration of title and permanent injunction in relation to land mentioned in Schedule "C" stating inter-alia that Ramkunwar has executed a Will in favour of the plaintiff on 27.7.1988 (Ex.P/11) in presence of two witnessesPilandas and Tilakdas and after death of Ramkunwar, he has become title-holder of the suit land and defendant No.1 is interfering with his peaceful possession.

3. Defendants No.1 and 4 filed their written statement stating inter-alia that Will is not executed in accordance with law and suit property is joint family property and therefore, the plaintiff is not entitled for decree as claimed. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 17.2.2000, dismissed the suit holding that the plaintiff has failed to prove due execution of Will in accordance with Section 63(c) of the Indian Succession Act, 1925 (hereinafter called as "the Succession Act, 1925") read with Section 68 of the Indian Evidence Act, 1872 (hereinafter called as "the Evidence Act, 1872"). On appeal being preferred by the plaintiff, the first appellate Court reversed the judgment and decree of the trial Court and held that

Will has been proved by the plaintiff in accordance with law, against which, this second appeal under Section 100 of the CPC has been filed by defendants No.1 and 4, in which the substantial question of law has been formulated and set-out in the opening paragraph of the judgment.

4. Mr.A.K.Prasad, learned counsel appearing for the appellants/ defendants No.1 and 4, would submit that the first appellate Court is absolutely unjustified in holding that the plaintiff has proved due attestation of Will dated 27.7.1988 (Ex.P/11) by testator in his favour in accordance with Section 63(c) of the Succession Act, 1925" read with Section 68 of the Evidence Act, 1872. He would further submit that attesting witness Tilakdas (PW-2) failed to state that Will was read over to Ramkunwar and thereafter Ramkunwar signed the Will in presence pf Tilakdas (PW-2) and other attesting witness Pilandas, therefore, the judgment and decree of the first appellate Court deserves to be set aside.

5. On the other hand, Ms Priyanka Mehta, learned counsel for respondent No.1/plaintiff, would submit that the first appellate Court has rightly held that Will has been proved in accordance with law.

6. I have heard learned counsel for the parties herein and considered their rival submissions made herein-above and also went through the record with utmost circumspection.

7. The short question for consideration is whether the Will Ex.P-11 has been proved and established by the plaintiff in view of the provisions contained in Section 63 of the Succession Act, 1925 read with Section 68 of the Evidence Act, 1872.

8. 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.]

9. 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.

10.

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 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."

11. As per the provisions of Section 63 of the Succession Act, 1925 for (2015) 8 SCC 615

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. 12.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.

13. 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 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."

14. 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 (2003) 2 SCC 91

available in case of will.

15.In the matter of Girja Datt Singh v. Gangotri Datt Singh 3, 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 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 AIR 1955 SC 346

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."

16.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 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 AIR 1959 SC 443

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."

17.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).

18. In the matter of Ramesh Verma (dead) Through Legal Representatives v. Lajesh Saxena (dead) by Legal (1977) 1 SCC 369 (1974) 2 SCC 600 (2009) 4 SCC 780

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.

19. 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 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.

20. 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 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 (2017) 1 SCC 257

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."

21. In Janki Narayan Bhoir (supra), the Supreme Court while considering Section 63(c) of 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 Act 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.

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."

22. 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.

It was exposited that if the attesting witness examined besides his attestation does not prove the requirement of the attestation of the Will by the other witness, his testimony would fall short of attestation of the Will by at least two witnesses for the simple reason that the execution of the Will does not merely mean signing of it by the testator 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."

23. 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-noted judgments (supra) qua execution and attestation of Will by a testator, the following factual position would emerge on the face of record.

1. Testator-Smt.Ramkunwar executed a Will in favour of her sister's son i.e. plaintiff in respect of her properties described in Schedule "C" on 27.7.1988 (Ex.P/11) and got it registered in the office of the Sub-Registrar, Ambikapur.

2.

The Will is said to be executed by testator-Ramkunwar on 27.7.1988 and she died on 8.6.1995. Before her death, she has made an application on 29.4.95 (Ex.P/3) before the Tahsildar, Ambikapur for mutation in the name of the plaintiff on the basis of her Will dated 27.7.1988 (Ex.P/11) and also filed affidavit in support of application for mutation stating that

she executed a Will in favour of the plaintiff, in which defendant No.1 filed an application, but did not dispute the execution of Will in favour of the plaintiff. 3.

The Will is said to be attested by two witnesses namely Pilandas (not examined) and Tilakdas (PW-2) and scribed by Shri Santosh Gupta (PW-3).

4.

The plaintiff, the propounder of the Will, was present at the time of execution of Will.

5.

One of the attesting witnesses Tilakdas was examined on behalf of the plaintiff as PW-2. He has stated that in his examination in chief before the Court that when he signed the Will, testator was present, other witness Pilandas was also present. Scribed Mr.Santosh Gupta was examined as PW-3. He has also stated about the attestation of Will by testator Ramkunwar in presence of Tilakdas (PW-2) and Pilan das. 6.

It is submission of learned counsel for defendants No.1 and 4 that since testator did not sign the Will in presence of two attesting witnesses and attesting witnesses did not sign the Will in presence of the testator, the requirement of Section 63 of the Succession Act, 1925 is not made out.

7.

In para -8 it has clearly been stated by Tilakdas (PW-2) that the time on which testator signed the Will, he and other attesting witness Pilandas both were present and when they signed the Will testator was present. Moreso, scribed Mr.Gupta also signed the Will and he has supported the fact

of attestation and presence of attesting witnesses at the time of attestation of Will. Moreso, the defendants have not crossexamined the plaintiff on the question raised hereinabove.

24. In this regard, the judgment of the Supreme Court rendered in the matter of Naresh Charan Das Gupta v. Paresh Charan Das Gupta and another9 is pertinent, in which it has been held that whether the attesting witnesses signed in the presence of the testator, this is a pure question of fact depending on appreciation of evidence. The first appellate Court after appreciating the evidence available on record clearly came to the conclusion that the requirement of Section 63 of the Succession Act, 1925 is duly metout.

25. In the present cast, testator-Ramkunwar executed a Will in favour of the plaintiff on 27.7.1988 (Ex.P/11) and she died after 7 years on 8.6.1995, but before her death, she made an application on 29.4.95 (Ex.P/3) before the Tahsilar, Ambikapur for mutation in the name of the plaintiff stating that she has executed a Will in favour of plaintiffShyamdas on 27.7.1988 (Ex.P/11). That application is supported by affidavit of deceased testator dated 29.4.95 (Ex.P/5) clearly stating that she has executed a Will in favour of the plaintiff, in which defendant No.1 was noticed, she appeared, but did not dispute the execution of Will by Ramkunwar in favour of the plaintiff.

26. The Supreme Court in the matter of Pentakota Satyanarayana and others v. Pentakota Seetharatnam and others 10 in the like situation in which the testator has made statement before his death AIR 1955 SC 363 10 (2005) 8 SCC 67

in the written statement so filed has held that the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. It was held as under:- "25........In the instant case, there was unequivocal admission of the Will in the written statement filed by P. Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside....."

27. Thus, in view of the aforesaid circumstances apparent on the face of record, it cannot be held that the first appellate Court is unjustified in holding that the plaintiff has proved due execution of Will by testator in his favour. I do not find any illegality or perversity in the said finding. The substantial question of law is answered in favour of the plaintiff and against the defendants.

28. The second appeal is liable to be and is hereby dismissed leaving the parties to bear their own cost(s).

29. A decree be drawn-up accordingly.

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