Heard Sri Pankaj Saxena, learned counsel for the appellant and Sri Shashi Nandan, learned Senor Advocate, assisted by Sri B.R.J. Pandey, Advocate, learned counsels for the respondents.
This Second Appeal is directed against the Judgment and Decree dated 08.01.1986, passed by Civil Judge, Jhansi in Original Suit No.51 of 1980 partly decreeing the suit of the plaintiff for declaration that he is owner of H.No.831, 831/A on the basis of Will dated 24.11.1972 and dismissing his suit for declaration over H.No.693/32 (1504) and the Judgment and Decree dated 03.12.1992, passed by District Judge, Jhansi, in Civil Apeal No.72/1991, dismissing the appeal of the defendants with costs by allowing cross objection of the plaintiff and decreeing the suit in respect of H.No.693/32 (New No.1504) too thereby decreeing the suit of the plaintiff in its entirety with costs throughout.
The plaintiff instituted the Original Suit No.51/1980, praying for decree of declaration that he is exclusive owner of H.No.831, 831/A, Chaman Ganj, Sipri Bazar, Jhansi and H.No.693/32 (New No.1504), Civil Lines, Jhansi on the basis of Will dated 24.11.1972.
The brief facts of the plaint are that plaintiff and defendant nos. 1 to 7 are the sons and daughters of late Sri Ram Singh Tandon; that Sri Ram Singh Tandon retired from the post of Office Superintendent in 1962 and he constructed the H.No.831, 831/A, Chaman Ganj, Sipri Bazar, Jhansi and H.No.693/32, Civil Lines, Jhansi from his own earnings and are his self acquired properties; that Sri Ram Singh Tandon also purchased H.No.742, Chamanganj, Sipri Bazar, Jhansi in the name of defendant no.1; that in the record of defendant no.9, Cooperative Housing Society, he mentioned name of defendant no.1 as a nominee but later the aforesaid nomination was changed on 10.08.1963; that Sri Ram Singh Tandon executed the Will dated 24.11.1972, whereby he made the plaintiff owner of all his moveable and immoveable properties; that Sri Ram Singh Tandon died on 01.10.1976 at Katni at residence of his daughter and his last rites were performed by plaintiff; that thereafter on 30.10.1976 the locker which was in the name of plaintiff and his father in Central Bank of India was opened before Sri B.K.Shukla, Sri Gopal Singh Tandon and Sri S.S. Sirohi and Will of his father and some jwellery was also found therein, which is in his possession; that defendant no.1 started challenging the right of the plaintiff over H.No.693/32 and therefore, he has to institute the Suit.
The defendant no.1, Sri Ranjeet Singh Tandon filed his written statement but no other defendant filed their written statement; that defendant no.1 admitted the Shajra given in the plaint and has admitted that his father retired in 1962, but he has denied that on 10.08.1962 his nomination regarding H.No.693/32 was changed; that he admitted that his father died on 01.10.1976 at Katni; that Suit of the plaintiff is barred by Section-57 and 213 of Indian Succession Act, Section-17 of Registration Act, Section 22 and 25 of the Cooperative Societies Act, barred by time and Section-24 of Specific Reliefs Act; that deceased Sri Ram Singh Tandon never had any right to execute any Will since his grand father Baba Laxman Das was a very rich person and he left behind lots of money; that after his death his grand mother purchased H.No.31, Raiganj, Sipri Bazar, Jhansi and H.No.831/831-A, Chaman Ganj Jhansi and H.No.742 was purchased by the defendant no.1 from his own earnings and he is its exclusive owner; that in the locker of Central Bank of India which was in the name of his father and the plaintiff, there was jewelery worth about Rs.25,000/-; that this locker was opened in 1972-1973 by his father and he told him that in case the plaintiff marries within one year of his death then he will get half of the jewellery but he did not do so; that the disputed Will is forged and fabricated and his father never executed any Will; that the witnesses of the Will are men of the plaintiff; that defendant nos. 1 to 7 are equal share holders in the disputed property and he is in possession over H.No.1054, therefore, Suit of the plaintiff deserves to be dismissed.
On the pleadings of the parties, the following issues were framed by the learned Trial Court,
i). Whether late Sri Ram Singh Tandon executed any Will in favour of the plaintiff and the plaintiff is the owner of the disputed property on the basis of such Will?
ii). Whether the suit of the plaintiff is barred by Section-57 and 213 of the Indian Succession Act?.
iii). Whether the suit of the plaintiff is barred by Section-17 of the Registration Act?
iv). Whether the suit of the plaintiff is barred by Section 22 and 25 of the Cooperative Societies Act?
v). Whether the suit of the plaintiff is barred by time?.
vi). To what relief is the plaintiff entitled to ?
vi). Whether the suit of the plaintiff is barred by Section-34 of the Specific Reliefs Act?
Issue No.1 was decided by the Trial Court by the finding that the Will executed by Sri Ram Singh is proved beyond doubt and on the basis of the same, the plaintiff is the owner of H.No.831, 831/A, 693/32. The disputed properties are not proved to be ancestral therefore Sri Ram Singh had the right to execute the Will.
Issue No.2 was decided holding that the suit is not barred by Section-57 and 213 of the Indian Succession Act.
Issue No.3 was decided holding that the suit is not barred by Section-17 of the Registration Act since no provision regarding Registration of the Will was pointed out by the defendant.
Issue No.4 was decided holding that Section-22 and 25 of the Cooperative Societies Act, do not provide for any bar to institution of Suit rather they are concerned with the transfer of rights.
Issue No.5 was decided holding that the suit for declaration instituted by the plaintiff is not barred by time.
Issue No.6 was decided holding that the plaintiff is only entitled to declaration regarding H.No.831 and 831-A and relief regarding H.No.693/32 can not be granted to him because it is barred by Section-34 of the Specific Reliefs Act.
Issue No.7 was decided by the trial court with the finding that since the plaintiff is not in possession over H.No.693/32 and the plaintiff has admitted the same therefore mere suit for declaration without possession can not be decreed regarding the aforesaid property.
The defendant no.1 preferred a Civil Appeal No.72 of 1991 against the Judgment and Decree passed by the Trial Court on the grounds that the testator had not signed the first 2 pages of the Will and it was forged and fictitious; because the due execution of the Will was not proved but the lower Court erred in holding otherwise; because it was not proved that the testator was fit for executing the Will on his own; because the signatures appear to have been obtained by the testator exercising undue influence; because the defendant was prevented from knowledge of the Will; because suit was barred by Sections 57 and 213 of the Succession Act and time too and Section 22 and 23 of the Cooperative Societies Act.
The plaintiff preferred a cross objection against the Judgment and Decree of the Trial Court before lower appellate court, praying that the decree of the trial court may be modified and his suit for H.No.993/32 (new no.1504) Civil Lines, Jhansi may also be decreed. The grounds were that the court below failed to appreciate that the house in dispute was let out by the plaintiff to one S.G. Gilani, who committed default in the payment of rent and then after filing a suit for arrears of rent and ejectment, he obtained decree on 08.05.1984 but the tenant illegally and unauthorizedly handed over the possession of the same to the defendant no.1. The trial court failed to consider the provision of Sections 108 and 111 of the Transfer of Property Act and the doctrine of lis pendens.
The lower appellate court has dismissed the appeal of the defendant and has allowed the cross-objection of the plaintiff, thereby decreeing the suit of the plaintiff in its entirety and hence the Second Appeal.
No Substantial Question of Law was framed for hearing of the Second Appeal at the time of admission and therefore, the following Substantial Question of Law framed in the Memorandum of Appeal arise for consideration,
1. Whether the lower appellate court was justified in allowing cross objection with respect to old house no.693/32, new no.1504 when admitted by plaintiff was not in possession and defendant appellant was in possession?.
2. Whether the suit would be barred by Section 34 Specific Relief Act with respect to old house no.693/32 and new 1504 when defendant no.1 was in possession and plaintiff was not in possession?.
3. Whether the lower appellate court was justified in considering examination in Chief of P.W.1 Bhajan Lal and not considering the admissions made in the cross examination when the witness admitted till he signed the will and left the place, no one except Ram Singh and Sri K.N.Shivpuri were there ?
4. Whether the execution of Will could be proved when the 2 attesting witnesses did not sign in the presence of each other nor the executants signed in presence of both the witnesses?.
5. Whether suit for declaration of title on the basis of Will without obtaining probate or letters of administration was maintainable and would not be barred by Section 213 Indian Succession Act?
The Substantial Questions of Law Nos.1 and 2 are same and are being considered and decided together.
The learned Counsel for the defendant-appellant has argued that Section-34 of the Specific Relief Act, 1963 allows discretion to the Court as to declaration of status or right regarding any property in a suit duly instituted by the plaintiff against any person denying or interested to deny his title. He has emphasized that the only proviso to Section-34 provides that no Court shall make any such declaration, where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.
The learned Counsel for the plaintiff- respondent no.1 has argued that the possession of the plaintiff over the H.No.693/32 (new no.1504) was always of the plaintiff and he had instituted a Suit for arrears of rent and ejectment of the tenant from the aforesaid property, which was decreed in his favour and the decree was affirmed by the revisional court. However, the tenant instead of giving possession to the plaintiff-respondent no.1 handed over the same to the defendant-appellant. Legally the possession over the property shall be construed to be that of the plaintiff- respondent no.1 and there was no occasion for him to seek any further relief regarding possession.
After hearing the rival contentions on the above substantial questions of law, the object of the proviso to Section-34 of the Specific Reliefs Act is required to be considered. As per the Judgment in the cases of John Guruprakasam Vs. Yovel Nesan, AIR 1979 Ker 96 Pg. at 99; Anirudha Padhan Vs. Chhai Padhan, AIR 1981 Ori 74 Pg.75; Ram Nagendra Tiwari Vs. Jagdamba Ojhain, AIR 1984 Pat 316 at Pages 321, 33; Laisram Aber Singh Vs. Pingong Devi, 1986 (1) Civil LJ 478(Gau) at Pg.482, its object is to avoid multiplicity of suits by preventing a person from getting a mere declaration of right in one suit and then instituting another suit for seeking further remedy without which the declaration granted in the first suit would be useless. Another object of the proviso to Section-34 aforesaid as per Anirudha Padhan Vs. Chhai Padhan, AIR 1981 Ori 74 Pg.75 is to protect the revenue from having a suit brought without proper ad valorem court fees having been paid. Court fees for mere declaration is a nominal fee of Rs.200/- whereas if consequential relief is asked for it would be ad valorem.
The Apex Court in the case of Ramaraghav Reddy Vs. Sheshu Reddy, AIR 1967 SC 436 at Pg. 439 has traced the level development of declaratory suits as follows, The legal development of the declaratory action is important. Formerly it was the practice in the Court of Chancery not to make declaratory orders unaccompanied by any other relief. But in exceptional cases the Court of Chancery allowed the subject to sue the Crown through the Attorney-General and gave declaratory judgments in favour of the subject even in cases where it could not give full effect to its declaration. In 1852 the Court of Chancery Procedure Act was enacted and it was provided by S. 50 of that Act that no suit should be open to objection on the ground that a merely declaratory decree or order was sought thereby, and it would be lawful for the court to make binding declarations of right without granting consequential relief. By s. 19 of Act VI of 1854, s. 50 of the Chancery Procedure Act was transplanted to India and made applicable to the Supreme Courts. With regard to courts other than the courts established by Charters the procedure was codified in India for the first time by the Civil Procedure Code, 1859, where the form of remedy under s. 19 of Act VI of 1854 was incorporated as s. 15 of that Act which stood as follows:
"No suit shall be open to objection on the ground that a merely declaratory decree or order is sought thereby, and it shall be lawful for the civil Courts to make binding declarations of right without granting consequential relief."
In 1862 the provisions of the Civil Procedure Code of 1859 were extended to the courts established by Charters when the Supreme Courts were abolished and the present High Courts were established. In 1877 the Civil Procedure Code, 1859 was repealed and the Civil Procedure Code of 1877 was enacted. The provision regarding declaratory relief was transferred to s. 42 of the Specific Relief Act which was passed in the same year. This section which is said to be a reproduction of the Scottish action of declaratory, has altered and to some extent widened the provisions of s. 15 of the old Code of 1859.
In the case of State Vs. Khan Bahadur, AIR 1971 MP 65; Smt. Nanhoo Bibi Vs. Ram Swaroop Rastogi, AIR 1965 AP 266: Narain Vs. Vaidhyanath, AIR 1975, Kant 117, the requisites for a declaratory suit have been mentioned. It has been held that in order to obtain relief of this kind, the plaintiff must establish that (i) the plaintiff is at the time of the suit entitled to any legal character or any right to any property,(ii) the defendant has denied or is interested in denying the character or the title of the plaintiff; (iii) the declaration asked for is a declaration hat the plaintiff is entitled to a legal character or to a right to property, and (iv) the plaintiff is not in a position to claim a further relief from a bare declaration of his title. Even if all these conditions are fulfilled, the Court has still a discretion to grant or not to grant a declaratory relied depending on the circumstances of each case.
In the case of Kalyan Singh Vs. Vakilsingh, AIR 1990 MP 295, It has been held after considering the legal position regarding the scope of only proviso to Section-34 of the Specific Relief Act, 1963 as follows, " The legal position that flows from the authorities is as under:
(i). Further relied from a mere declaration referred to in the proviso to Section 34 of the Specific Relief Act, 1963 contemplates the entitlement of the plaintiff as obtaining on the date of the suit,
(ii). Entitlement of the plaintiff enabling seeking further relief based on an event occurring during the pendency of the suit would not render the suit not maintainable.
(iii). It is the choice of the plaintiff to rest content by a mere decree for declaration in that suit and then to sue for further relied by bringing an independent suit subject to Law of Limitation or to pray for further relief by making an amendment in the plaint in that suit itself,
(iv). Bar enacted by the proviso does not automatically entail dismissed of the suit but the plaintiff must be afforded an opportunity of amending the plaint if so desired.
(v). Further relied cannot be granted to the plaintiff without the same having been specifically asked for, It has to be stated that during the course of the hearing, the learned Counsel for the plaintiff/appellant did make a prayer for being afforded an opportunity to amend the plaint. In the opinion of the Court, such an opportunity ought not to be denied to the plaintiff. It is therefore, directed that the plaintiff may move an appropriate application for necessary amendment in the plaint so as to seek the further relief as to possession. A fortnight's time is granted for the purpose."
The Apex Court in the case of Vinay Krishna Vs. Keshav Chandra and another, AIR 1993 SC 957 has held that if the plaintiff had been in possession, then a suit for mere declaration would be maintainable; the logical corollary whereof would be that if the plaintiff is not in possession, a suit for mere declaration would not be maintainable.
In view of the above legal position it is clear that although the suit of the plaintiff for declaration over H.No.693/32 (new no.1504) was maintainable but without the relief of possession over the same, it could not have been decreed. The plaintiff never prayed for any amendment in plaint at any stage of litigation and therefore, the aforesaid substantial questions of law are decided against him.
The IIIrd and IVth substantial questions of law can be decided together being parts of the same issue i.e., whether the disputed Will was legally proved or not.
The learned Counsel for the defendant- appellant has argued that unregistered Will dated 24.11.1972 allegedly executed by Sri Ram Singh was not proved according to the provisions of Section-63(c) of the Succession Act. There were 2 witnesses namely, Sri Bhajan Lal Sharma and Sri Chandra Bahadur Mathur. Sri Bhajan Lal Sharma appeared as P.W.1 in the Suit and stated in examination-in-chief that Sri Chandra Bahadur Mathur was present when signatures were made. He had no where stated that Sri Chandra Bahadur Mathur attested the Will. Moreover, in his cross- examination he has admitted that when he went to the house of Sri Shivpuri, Advocate with Sri Ram Singh Tandon, testator, no one except Sri Shivpuri and Sri Ram Singh Tandon were there and he remained there for 45 minutes and no body came and thereafter he left. Therefore, presence of Sri Chandra Bahadur Mathur, the second attesting witness of the Will, is not proved and is doubtful. Sri Bhajan Lal Sharma neither turned hostile nor failed to recollect the events leading to the attestation of the Will, therefore, Section-71 of the Evidence Act is not applicable. The signature of Sri Chandra Bahadur Mathur ought to have been proved with the help of old signature, testimonial and report of handwriting expert. Sri Shivpuri was the counsel of Sri Raghuvir Singh, plaintiff, his statement can not override the statement of attesting witness. Both the courts below have committee substantial error of law in considering the Will as proved when it was not proved in accordance with Section-63(c) of the Succession Act. He has relied upon paragraph nos.7, 8, 9, 10, 11 and 12 of the Judgment in the case of Janki Narain Bhoir Vs. Narayan Namdeo Kadam, AIR 2003 (SC) Pg. 761,
7. We think it appropriate to look at the relevant provisions, namely, Section 63 of the Indian Succession Act, 1925 and Sections 68 and 71 of the Indian Evidence Act, 1872 which read:
Section 63 of the Succession Act "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) .....
(b) .....
(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."
Section 68 of the Evidence Act "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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided..."
Section 71 of the Evidence Act "71. Proof when attesting witness denies the execution.- If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence."
8. To say will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator.
9. It is thus clear that one of the requirements of due execution of will is its attestation by two or more witnesses which is mandatory.
10. 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 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 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 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 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 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.
11. 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, its execution may be proved by other evidence. However, in a case where an attesting witness examined fails to 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 attesting 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 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.
12. Turning to the facts of the case on hand, it is evident that only one attesting witness Prabhakar Sinkar, examined in the case, did not prove the execution of the Will inasmuch as he did not prove the attestation of the Will by the other attesting witness Wagle who though available was not examined. The scribe examined in the case was not an attesting witness, which is clear from the evidence on record and as rightly conceded so by learned counsel for the respondent before us. Hence, it is unnecessary to go into the question whether the scribe in this case could or could not be an attesting witness. The evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of Section 68 of the Evidence Act. We are not in a position to accept the contention urged on behalf of the respondent that the evidence of other witnesses, namely, that of the respondent and the scribe could be considered under Section 71 of the Evidence Act. Section 71 has no application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the will and other attesting witness though available has not been examined. 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 Ramkrishna & Ors. v. Nathu Vithal & Ors. [(AIR) 1949 Bom. 266], Chagla, C.J., speaking for the Division Bench in similar circumstances has stated that although Section 63 of the Succession Act requires that a 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.
He has further relied upon paragraph nos. 45, 45.1 and 45.2 of the Judgment in the case of Jagdish Chandra Sharma- Appellant Vs. Narain Singh Saini (dead), through his LRs and others- Respondents, 2015, AIR (SC) 2149, which are as follows,
45. 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. As understandably, the testator/testatrix, as the case may be, at the time of testing the document for its validity, would not be available, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. This is more so, as many a times, the manner of dispensation is in stark departure from the prescribed canons of devolution of property to the heirs and legal representatives of the deceased. The rigour of Section 63 (c) of the Act and Section 68 of 1872 Act is thus befitting the underlying exigency to secure against any self serving intervention contrary to the last wishes of the executor.
45.1 Viewed in premise, Section 71 of the 1872 Act has to be necessarily accorded a strict interpretation. The two contingencies permitting the play of this provision, namely, denial or failure to recollect the execution by the attesting witness produced, thus a fortiori has to be extended a meaning to ensure that the limited liberty granted by Section 71 of 1872 Act does not in any manner efface or emasculate the essence and efficacy of Section 63 of the Act and Section 68 of 1872 Act. The distinction between failure on the part of a attesting witness to prove the execution and attestation of a Will and his or her denial of the said event or failure to recollect the same, has to be essentially maintained. Any unwarranted indulgence, permitting extra liberal flexibility to these two stipulations, would render the predication of Section 63 of the Act and Section 68 of the 1872 Act, otiose. The propounder can be initiated to the benefit of Section 71 of the 1872 Act only if the attesting witness/witnesses, who is/are alive and is/are produced and in clear terms either denies /deny the execution of the document or cannot recollect the said incident. Not only, this witness/witnesses has/have to be credible and impartial, the evidence adduced ought to demonstrate unhesitant denial of the execution of the document or authenticate real forgetfulness of such fact. If the testimony evinces a casual account of the execution and attestation of the document disregardful of truth, and thereby fails to prove these two essentials as per law, the propounder cannot be permitted to adduce other evidence under cover of Section 71 of the 1872 Act. Such a sanction would not only be incompatible with the scheme of Section 63 of the Act read with Section 68 of the 1872 Act but also would be extinctive of the paramountcy and sacrosanctity thereof, a consequence, not legislatively intended. If the evidence of the witnesses produced by the propounder is inherently worthless and lacking in credibility, Section 71 of Act 1872 cannot be invoked to bail him (propounder) out of the situation to facilitate a roving pursuit. In absence of any touch of truthfulness and genuineness in the overall approach, this provision, which is not a substitute of Section 63 (c ) of the Act and Section 68 of the 1872 Act, cannot be invoked to supplement such failed speculative endeavour 45.2 Section 71 of the 1872 Act, even if assumed to be akin to a proviso to the mandate contained in Section 63 of the Act and Section 68 of the 1872 Act, it has to be assuredly construed harmoniously therewith and not divorced therefrom with a mutilative bearing. This underlying principle is inter alia embedded in the decision of this Court in the Commission of Income Tax, Madras Appellant Versus Ajax Products Limited Respondent AIR 1965, Supreme Court 1358.
A perusal of the statement of the only attesting witness of the Will, Sri Bhajan Lal Sharma, P.W.1, proved that he was the only witness who signed the Will after Sri Ram Singh Tandon, testator, made signatures on the Will in his presence. No other person except Sri Shivpuri, Advocate and the testator Ram Singh Tandon were there when the Will was executed. This witness stated in his examination-in-chief that late Sri Chandra Bahadur Mathur was also one of the witness of the Will but he did not proved even the presence of Sri Chandra Bahadur Mathur at the time of execution of the Will. Therefore, the requirement of Section-63 (c) of the Succession Act was not complied. The signing of the Will in the presence of Sri Chandra Bahadur Mathur, another attesting witness of the Will was not proved by Sri Bhajan Lal Sharma, the attesting witness of the Will, who deposed as P.W.1 before the learned Trial Court.
The learned Counsel for the plaintiff- respondent has argued that the Will was duly proved by Sri Bhajan Lal Sharma, P.W.1, one of the attesting witness as per the Law and in the cross- examination nothing could be extracted which could lead to doubt his statement. The other attesting witness of the Will, Sri Chandra Bahadur Mathur, had died and therefore, could not be produced. He has relied upon the case of Daulat Ram Vs. Sodha, (2005) 1 SCC 40, 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.
Second Judgment relied upon by the learned Counsel for the plaintiff- respondent is Smt. Guro Vs. Atma Singh and other, 1992 (2) SCR Pg.30, the relevant portion cited are, With regard to proof of a will, the law is well-settled that the mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement prescribed in the case of a will by section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and signature of the testator as required by law is sufficient to discharge the onus.
Third Judgment of Ramabai Padmakar Patil (d) through LRs, and others Vs. Rukminibai Vishnu Vekhande and others, 2003, Suppl (2) SCR 583 dated 14.08.2003 has been relied,
5. Before we advert to the submissions made by learned counsel for the parties, it will be useful to briefly notice the legal position regarding acceptance and proof of a Will. Section 63 of Indian Succession Act deals with execution of unprivileged Wills. It lays down that 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. It further lays down that the Will shall be attested by two or more witnesses, each of whom has seen the testator signing or affixing his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator and each of the witness shall sign the Will in the presence of the testator. Section 68 of the Evidence Act mandates examination of one attesting witness in proof of a Will, whether registered or not. The law relating to the manner and onus of proof and also the duty cast upon the Court while dealing with a case based upon a Will has been examined in considerable detail in several decisions of this Court viz. H. Venkatachala lyengar v. B.N. Thimmajamma and Ors., AIR (1959) SC 443, Rani Purinima Debi and Anr. v. Kumar Khagendra Narayan Deb and Anr. AIR (1962) SC 567 and Shashi Kumar Banerjee and Ors. v. Subodh Kumar Banerjee and Ors., AIR (1964) SC 529. It will be useful to reproduce the relevant part of the observations made by this Court in the Constitution Bench decision in Shashi Kumar Benerjee (supra) which are as under :
"The mode of proving a Will does not ordinary differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63, Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the court. The suspicious circumstances may be as to the genuineness of the signature of the testator, the condition 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 suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the court would grant probate, even if the will might by unnatural and might cut off wholly or in part near relations.
The learned Counsel for the plaintiff- respondent has further argued that the findings of fact recorded by the Courts below can not be interfered by the High Court in the exercise of its Second Appellate Jurisdiction and has relied upon of the Judgment in the case of Manjunath Anandappa Vs. Tammansa, (2003) 10 SCC 390 and has argued that the Court of Appeal could not ordinarily interfere with the discretion exercised by the Courts below.
Lastly he has relied upon the Judgment of the Apex Court in the case of Rur Singh (dead) through LRs. and others Vs. Bachan Kaur, (2009) 11 SCC 1 and has argued that the question whether the Will has been duly proved and/or was otherwise genuine is essentially a question of fact. He has relied upon paragraph no.14 of the Judgment, as follows:
14. The High Court essentially entered into the arena of appreciation of evidence. It interfered with the concurrent findings of fact arrived at by the courts below.
Execution of a Will is required to be proved in terms of the provisions of Section 63(c) of the Indian Succession Act and Section 68 of the Indian Evidence Act.
The statutory requirements to prove a Will in terms of the aforementioned provisions have been laid down in a large number of decisions. We may notice a few of them.
In Janki Narayan Bhoir v. Narayan Namdeo Kadam, [(2003) 2 SCC 91], while dealing with the question elaborately, this Court held:
"8. To say will has been duly executed the requirement mentioned in Clauses (a), (b) and (c) of Section 63 of the Succession Act are to be complied with i.e., (a) the testator has to sign or affix his mark to the will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place form which it could appear that by that mark or signature the document is intended to have effect as a will; (c) the most important point with which we are presently concerned in this appeal, is that the will has to be attested by two or more witnesses and each of these witnesses must have seen the testator sign or affix his mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgement of signature or mark, or of the signature of such other person, and each of the witnesses has to sign the Will in the presence of the testator."
As regards compliance of the provision of Section 68 of the Evidence Act, it was opined :-
"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 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 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."
(Emphasis supplied) Following the said decision, as also the other decisions in Benga Behera & Anr. v. Braja Kishore Nanda & Ors. [2007 (7) SCALE 228], this Court held:
"...Execution of a Will must conform to the requirement of Section 63 of the Succession Act, in terms whereof a Will must be attested by two or more witnesses. Execution of a Will, however, can only be proved in terms of Section 68 of the Indian Evidence Act. In terms of said provision, at least one attesting witness has to be examined to prove execution of a Will."
Yet again, recently in Anil Kak v. Kumari Sharada Raje & Ors.
[(2008) 6 SCALE 597], it was opined :
"40. Whereas execution of any other document can be proved by proving the writings of the document or the contents of it as also the execution thereof, in the event there exists suspicious circumstances the party seeking to obtain probate and/ or letters of administration with a copy of the Will annexed must also adduce evidence to the satisfaction of the court before it can be accepted as genuine.
41. As an order granting probate is a judgment in rem, the court must also satisfy its conscience before it passes an order.
It may be true that deprivation of a due share by the natural heir by itself may not be held to be a suspicious circumstance but it is one of the factors which is taken into consideration by the courts before granting probate of a Will.
Unlike other documents, even animus attestandi is a necessary ingredient for proving the attestation."
[See also Lalitaben Jayantilal Popat v. Pragnaben Jamnadas Kataria & Ors. 2009 (1) SCALE 328].
After considering the rival submissions and the Judgments cited at the bar, it is clear that the requirement of proof of a Will is given in Section-63(c) of the Succession Act read with Section-68 of the Evidence Act. From the Judgments cited on behalf of the parties, there is no dispute regarding the application of the aforesaid Sections of statutes to the proof of Will. The only consideration required is whether P.W.1, Sri Bhajan Lal Sharma, the only attesting witness of the Will proved the attestation of the Will by two attesting witnesses. In his cross- examination, he did not proved the presence and signature of other attesting witness of the Will, late Sri Chandra Bahadur Mathur, therefore, the requirement of Section-63(c) that the testator "has signed it in the presence of two witnesses, who attested it in his presence and in the presence of each other" has not been complied with. In the Judgments cited by the Counsel for the defendant-appellant i.e., Janki Narain Bhoir Vs. Narayan Namdeo Kadam, AIR 2003 (SC) Pg. 761, Jagdish Chandra Sharma- Appellant Vs. Narain Singh Saini (dead), through his LRs and others- Respondents, 2015, AIR (SC) 2149 and also in the Judgments relied upon by the Counsel for the plaintiff- respondent i.e, Daulat Ram Vs. Sodha, (2005) 1 SCC 40 Smt. Guro Vs. Atma Singh and other, 1992 (2) SCR Pg.30, Ramabai Padmakar Patil (d) through LRs, and others Vs. Rukminibai Vishnu Vekhande and others, 2003, Suppl (2) SCR 583 dated 14.08.2003 Manjunath Anandappa Vs. Tammansa, (2003) 10 SCC 390, there is no dispute regarding the requirements of law in proof of a Will. In all the Judgments, there is no exception made that even if one attesting witness of the Will proves the attestation of the Will, without proving the presence of the other attesting witness and his signatures on the Will, when the other attesting witness has died, even then the Will would be deemed to have been executed and proved in accordance with law.
The last argument of the Counsel for the plaintiff- respondent relying upon the Judgment in the case of Rur Singh (dead) through LRs. and others Vs. Bachan Kaur, (2009) 11 SCC 1 that the question whether the Will has been duly proved is essentially a question of fact and should not be disturbed in Second Appeal required consideration. In the present case the Will has not been proved in accordance with Section-63(c) of the Succession Act and this has been proved from the authorities cited at the bar. Therefore, the argument of the learned Counsel for the plaintiff- respondent that the findings of facts recorded by the Courts regarding the proof of Will should not be interfered is incorrect. When the Will is clearly not proved in accordance with the requirements of law, the findings of fact recorded by the Courts below is clearly perverse and if allowed to stand would occasion the failure of Justice, therefore, this Court has no hesitation to hold that the Will in dispute was not legally proved in accordance with Section-63(c) of the Succession Act.
After consideration of the substantial questions of law Nos. 1 and 2, this Court comes to a conclusion that the plaintiff was rightly not granted the declaration regarding the H.No. 693/32 (new no.1504) by the Trial Court and the Appellate Court illegally reversed the same without considering the only proviso to Section-34 of the Specific Relief Act. Regarding substantial questions of law nos. 3 and 4 it has been found that the Will was not proved by the only attesting witness of the Will, P.W.1, in accordance with Section-63(c) of the Succession Act.
The Vth substantial question of law has not been pressed by either of the parties and therefore, is not been decided.
Therefore the Judgments and Decrees passed by both the Courts below are hereby set aside. The Second Appeal is allowed. The suit of the plaintiff is dismissed with costs throughout.
Order Date :- 30.04.2018 SS