Janki Narayan
Bhoir Vs. Narayan Namdeo Kadam [2002] Insc 551 (17 December 2002)
Doraiswamy
Raju & Shivaraj V. Patil. Shivaraj V. Patil J.
This
appeal by special leave is by the defendant questioning the validity and
correctness of the impugned judgment and decree passed by the High Court in the
second appeal. The respondent herein filed the suit for possession of the suit
properties comprised of agricultural land and a house as owner under the will
said to have been executed by Honaji Dama Kadam. The trial court, accepting the
will on the basis of evidence placed on record, decreed the suit. The District
Judge in the Regular First Appeal set aside the decree passed by the trial
court. The High Court in the second appeal by the impugned judgment and decree
set aside the judgment of the first appellate court and restored the judgment
and decree passed by the trial court.
The
contentions urged by the learned counsel for the appellant were that the will
in question was not proved as required by law, having regard to Section 63 of
Indian Succession Act read with Section 68 of the Indian Evidence Act,1872 the
attestation of will by two witnesses was not established; the High Court
committed an error in treating the scribe as an attesting witness when he did
not sign as animo attestendi. The evidence of the one attesting witness
examined does not establish the attestation of the will by another attesting
witness; the other attesting witness though available, was not examined; the
High Court committed a serious error in setting aside the judgment of the first
appellate court which was based on proper appreciation of evidence in the
absence of any substantial question of law that arose for consideration.
On the
other hand, the learned counsel for respondent urged that although Section 63
of the Succession Act requires attestation of a will at least by two witnesses
but the will could be proved by examining one attesting witness as per Section
68 of the Evidence Act and by leading other evidence as per Section 71 of the Evidence
Act. He fairly conceded that the scribe was not and could not be treated as an
attesting witness in this case.
We
have carefully considered the respective contentions urged by the learned
counsel for the parties.
The
appellant is the only daughter of Honaji Dama Kadam (deceased). The respondent
is the son of cousin brother of said Honaji Dama Kadam. The respondent is
claiming the suit properties on the basis of the Will dated 23.10.1975, said to
have been executed by the deceased Honaji Dama Kadam. The High Court, by the
impugned judgment, set aside the judgment and decree of the first appellant
court holding that the Will was duly established and restored the decree passed
by the trial court. The District Judge on appreciating the evidence placed on
record had held that the respondent failed to prove the execution of the Will;
the respondent examined only one attesting witness and his evidence was not
sufficient to establish that the Will was duly executed; in that view reversing
the decree of the trial court dismissed the suit filed by the respondent. One Duttatray
Raikar was the scribe of the Will. Ramkrishna Wagle and Prabhakar Sinkar were
the attesting witnesses. During the trial the respondent, Raikar, the scribe,
and Prabhakar Sinkar, one of the attesting witnesses, were examined. Prabhakar Sinkar,
the attesting witness, in his deposition stated that he did not know whether
other attesting witness Ramkrishna Wagle was present in the house of the
respondent at the time of execution of the Will. He also stated that he did not
remember as to whether himself and Raikar were present when he put his
signature. He did not see witness Wagle at that time; he did not identify the
person who had put thumb impression on the Will. The scribe Raikar in his evidence
stated that he wrote the Will and he also stated that he signed on the Will
Deed as a scribe. He further stated that attesting witness, namely, Wagle and Prabhakar
Sinkar are alive. The High Court took the view that though Wagle, the other
attesting witness, was not examined but his signature on the Will was not
disputed; both the respondent and Raikar deposed that Wagle and Sinkar had
signed the Will as attesting witnesses; in these circumstances the evidence of Raikar
should have been accepted. The High Court was of the opinion that it was not
necessary to examine both the attesting witnesses and in case one attesting
witness examined was unable to remember whether the other attesting witness was
present and had signed, then it was open to the court to rely upon the
surrounding circumstances as well as the testimony of other witnesses. The High
Court also took the view that though Raikar had written down the Will he had
also signed it and he could have been treated as an attesting witness as he had
also signed the Will. Thus the High Court was of the opinion that the Will was
proved and the District Judge was wrong in reversing the judgment and decree of
the trial court.
At the
hearing the learned counsel for the respondent fairly submitted that Raikar was
only the scribe and he was not the attesting witness. Even looking to the
evidence of Raikar himself it is clear that he gave evidence as the scribe.
There is nothing on record to indicate that he had any intention to attest the
Will. The attesting witness Sinkar has not stated that the other attesting
witness Wagle attested the Will in his presence. On the other hand, he has
stated that he did not see Wagle present at the time of execution of the Will. Wagle,
the other attesting witness, being alive ought to have been examined in order
to prove the Will. Nothing is brought on record to show that any attempt was
made to examine Wagle or there was any impediment in examining him. It is true
that although will is required to be attested by two witnesses it could be
proved by examining one of the attesting witnesses as per Sections 68, Indian
Evidence Act.
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."
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.
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.
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.
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.
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.
The
view taken in Mt. Manki Kaur v. Hansraj Singh & Ors. [(AIR) 1938 Patna 301], on which heavy reliance was
placed by the learned counsel for the respondent, in our view is not a correct
view as to the scope and effect of Section 71 of the Evidence Act. That case
related to an action taken on mortgage bond and not on a Will. There were four
attesting witnesses. One of them was dead, two others, who were called, denied
execution. But the absence of fourth from Court was not explained. On the facts
of that case, the High Court took the view that the execution of the mortgage
bond could be proved by other evidence having recourse to Section 71 of the
Evidence Act. In our opinion, the position of law explained in relation to Section
71 of the Evidence Act in the judgment of Bombay High Court aforementioned is a
correct view which we approve.
In the
case on hand it was not established that the two witnesses attested the Will.
The High Court committed a serious error in reversing the judgment and decree
of the first appellate court on a finding of fact, which was based on proper
and objective appreciation of evidence. The High Court was also wrong in
treating the scribe of the Will, Raikar, as an attesting witness without any
basis. Further, the High Court while reversing the judgment and decree of the
first appellate court did not indicate as to any substantial question of law
that arose for consideration between the parties to deprive the suit properties
to the only daughter of deceased Honaji Dama Kadam.
Under
these circumstances we have no hesitation in holding that the High Court
committed a manifest error in reversing the judgment and decree of the first
appellate court. In this view the impugned judgment and decree cannot be
sustained. Hence, they are set aside. The judgment and decree of the first
appellate court are restored. In the result, the suit filed by the
respondent-plaintiff shall stand dismissed. There shall be no order as to
costs.
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