Behera & Anr Vs. Braja Kishore Nanda & Ors  Insc 568 (15 May 2007)
S.B. Sinha & Markandey Katju
S.B. SINHA, J.:
1. Interpretation and application of Section 63 of the Indian Succession
as well as Section 68 of the Indian Evidence
Act, 1872 vis-`-vis the requirements of proof of execution of a document
falls for consideration in this appeal which arises out of the judgment dated
21.11.2002 in First Appeal.No.397/1990 of the High Court of Orissa at Cuttack.
However, before we embark upon the said question, we may notice the facts of
the matter in brief.
2. Admittedly, one Sarajumani Dasi was the owner of the property in
She was aged about 70 years when a Will was allegedly executed by her on or
about 15.1.1982. She expired on 5.6.1983. The beneficiary of the Will was the
first respondent herein. The testatrix was living in a math known as Bharati
Math at Puri. In the Will, she disclosed her profession to be "Singer of
Bhajans and Kirtans". It is not in dispute that the first respondent was a
complete stranger to the family. He is a businessman. His father was one of the
disciples of late Taponidhi Ramakrushna Bharati Goswamy, who had founded the
Math wherein the testatrix was living.
3. A deed of sale was also executed by the said Sarajumani Dasi in favour of
advocate Surendra Panda of Puri on the same day. The Will is said to have been
scribed by one Banabehari Upadhyaya (PW-9), an advocate's clerk. He as well as
one Chandramani Das Mohapatra who are said to be the attesting witnesses
thereto also identified the testatrix before the Registering Officer.
Respondent No.1 obtained the original Will from the Office of the Registering
Authority on 30.1.1982.
4. As noticed hereinbefore, Sarajumani Dasi expired on 5.6.1983. In 1986, an
application was filed by the first respondent in the court of the learned
District Judge, Puri for grant of Letters of Administration in respect of the
alleged Will with a copy of the Will annexed, in terms of Section 278 of the Indian Succession Act.
Respondent No.1 claimed that he had also been residing in the said Math. She
was assured of proper care by him and in consideration of the help and
assistance rendered to her by respondent No.1, the said Will was executed in
5. Appellants herein are the heirs and legal representatives of the
They contested the said application, inter alia, questioning execution of
the Will alleging the same to be a forged and a sham document.
6. We may notice that the original Will was never produced by the appellant.
7. Execution of the Will was sought to be proved by producing a certified
copy thereof. A purported xeroxed copy of the said will was also filed. The
registration of the said Will was sought to be proved by calling the document
in question wherein the contents of the document registered were noted.
8. To prove execution and attestation of the Will, the respondent No.1,
inter alia, examined Banabehari Upadhyaya (P.W.9), Purnchandra Rath (P.W.4) and
Surendra Panda (P.W.7).
9. We will notice their statements before the learned District Judge for
determining the question as to whether requirements of law had been complied
10. P.W.9- Banabehari Upadhyaya who, as noticed hereinbefore, not only
scribed the Will but also stated himself to be an attesting witness and
identifier of the testatrix, in his deposition stated as under:
" . On 15.1.82, Sarajumani Dasi executed a Will in favour of one
Brajakishore Nanda and the same was scribed by me..
I do not remember anything that happened on 15.1.82 except what I have
deposed with reference to the document.
I first saw Sarajumani Dasi when she executed the sale deed. I did not know
her before that. Surendranath Panda brought Sarajumani Dasi to me with him.
Sarajumani Dasi was with Surendranath Panda and I was called to scribe the Will
to become an identifying witness and also an attesting witness. Surendra Panda
identified Sarajumani Dasi to me and that is how I know her. . I did not make a
draft of the Will but scribed it as per dictation of Surendranath Panda.
Sarajumani Dasi did not put her L.T.I. in my presence on the Will at the time
of execution of it. . I attested her L.T.I. before she put her L.T.I. on the
sale deed and the Will.
Sarajumani Dasi was not present when I scribed the sale deed and will and
made the endorsements attesting her L.T.I. I do not know if any other person
attested the Will and the sale deed. I scribed whatever was dictated by
Sri Panda without understanding the meaning or purport. . I did not disclose
before the Sub-Registrar or before any body that I identified Sarjumani Dasi
without knowing her or attested her L.T.I. even though her L.T.I. were not affixed
in my presence. ."
11. In his deposition, P.W.4-Purnachandra Rath (An Advocate) stated:
"Thereafter on 15.1.82, Sarajumani again came to the Bar Association
and met me there. Brajakishore Nanda (P.W.1 - Plaintiff) and his father
Sanmajaya Nanda (not examined) accompanied the Mata. She expressed before me
that she would execute the Will and also the sale deed. On her instruction, I
made a gist of the Will and asked Banabehari Upadhyaya to scribe the same. ..
The scribe read over and explained the contents of the Will to Sarajumani and
she acknowledged the same to be true and correct. When Sarajumani affixed her
L.T.I. on the Will, myself, Banabehari Upadhyaya, (P.W.9) advocate Sri Surendra
Panda and Chandramani Das Mohapatra and Sanmajaya Nanda were present..
I am attesting witness to the will. .. I endorsed a certificate in the Will
to the effect that the executant was my client and the Will was written by my
clerk in my office on my direction. "
12. In his deposition, P.W.7-Surendra Panda (An Advocate) stated thus:
"On 15.1.82, Sarajumani Dashi came to the Bar Association, Bhubaneswar.
She was accompanied by Brajakishore Nanda and Jammajjaya Nanda at that time.
That day i.e.15.1.82 Sarajumani Dashi expressed her desire before her lawyer Purnchandra
Rath (P.W.4) to execute the Will in favour of Brajakishore Nanda. Then the
lawyer made a rough draft of the Will. Mr. Rath called Benabehari Upadhyaya to
scribe the Will. The contents of the document were read and explained to
Sarajumani Dashi. ..
Sarajumani Dashi acknowledged the contents of the document to be true and
correct and gave her L.T.I.. thereon. Attesting witness P.C. Rath, Chandramani
and Banabehari Upadhaya were present when Sarajumani Dashi affixed her L.T.I.
on the Will. ."
13. P.W.9- Banabehari Upadhyaya did not, thus, admittedly know the testatrix
from before. He had seen her for the first time on the day when the Will was
executed and because Surendra Panda had asked him to identify her, he did so.
It was stated that the same was scribed by him as per dictation of Surendra
Panda, but in the Will, it was stated that he himself did it.
14. If he had put his signature before the testatrix had put her thumb
impression on the sale deed and the Will, he does not answer the requirement of
attesting witness. He was not aware of any other person attesting the Will and
the sale deed.
P.W.9, therefore, failed to prove execution or attestation of the Will. Not
only he did not take any instruction from the testatrix before the Will was
scribed, but the same was done on the dictation of P.W.7. There is nothing on
record to show that the testatrix understood the meaning, purport and contents
of the Will. She had put her thumb impression in his presence. There is nothing
on record to show that the Will was read over and explained to the testatrix
and she had put her thumb impression upon understanding the contents and
purport of the Will and put her thumb impression as admission thereof. A
certificate to that effect was in ordinary course required to be given by the
scribe of the Will, particularly when the same had been found to be given by
him in the sale deed executed by her on the same day which was marked as
15. P.W.4-Purnachandra Rath, as noticed hereinbefore, gave a completely
different picture of the stay. According to him on 15.1.1982 the testatrix
expressed her desire to execute a Will as also a sale deed, whereupon he made a
gist of the contents of the Will and then asked P.W.9 to scribe it. No draft of
the Will was prepared although drafts of the sale deeds were prepared. Although
in his deposition P.W.-4 contended that he had endorsed a certificate in the
Will to the effect that the Will was written by his clerk in his office on his
direction, the certified copy of the Will did not show the same. A certificate
to that effect appeared in the Xeroxed copy of the Will which was brought on
record and marked at Ext.-13/a, but such a certificate did not find place in
the certified copy of the Will, and thus, no reliance can be placed thereupon.
16. The High Court in its judgment proceeded on the basis that P.W.-4 was
also a witness to the execution of the Will by the testatrix and thus would
come within purview of the definition of the term 'attesting witness'.
17. So far as the deposition of P.W.7-Surendra Panda is concerned, he
contradicts P.W.-9 as according to him he was not present when the testatrix
had put her thumb impression and he had attested her thumb impression before
she gave her thumb impression. His evidence to the effect that the Will was
read over and explained to the testatrix does not find mention in the Will and
even a statement that three attesting witnesses signed the Will does not appear
to be correct as only the name of P.W.-7 and P.W.-9 appeared as attesting
witnesses in the Will.
18. Learned counsel appearing on behalf of the respondents, however, would
submit that as the attesting witnesses were not willing to depose, it was not
necessary to prove attestation in terms of Section 71 of the Indian Evidence
Summons were issued to the attesting witnesses by the Court. One of the
attesting witnesses did not appear, P.W.9 appeared but he was declared hostile.
Our attention in this connection has also been drawn to a part of his statement
in the cross-examination where he has deposed as under:
" My Moharir licence might have been cancelled due to my misconduct and
19. It is not for this Court, as submitted by the learned counsel, to
consider the integrity and honesty of the said witness. According to the
learned counsel, not only P.W.4 should be treated to be an attesting witness,
but must also be held to have proved due execution of the Will.
20. We may deal with the contention of the learned counsel in respect of
application of Section 71 of the Indian Evidence
Act a little later. But, in our opinion, P.W.-4 cannot be considered to be
a witness to execution of the will as he had nothing to do therewith. He comes
into the picture only because an endorsement was found on the Xerox copy of the
Will which, in our opinion, is of doubtful origin, keeping in view the fact
that the same did not find a mention in the certified copy thereof. His
evidence, in our opinion, would, thus, not be of much significance. This aspect
of the matter was not considered by the High Court at all.
We are, therefore, unable to agree with the following finding of the High
"The attesting witnesses Purna Chandra Rath(P.W.4) Chandramani Das
Mohapatra and Banahihari Upadhay (P.W.9) were present when she affixed her LTI
on the Will. All the three attesting witnesses signed the Will in presence of
Sarajumani inasmuch as no reliance, whatsoever, can be placed on the testimony
of P.W.-4, PW-4 is an advocate. He is supposed to know the importance of
attestation. If he intended to be an attesting witness, he could have done so.
21. It was also not necessary for the appellants to confront him with his
signature in the Xeroxed copy of the Will, inasmuch as the same had not
appeared in the certified copy. Execution of a Will is required to be proved in
terms of Section 63 of the Succession Act, in terms whereof a Will must be attested
by two or more witnesses. Execution of a Will, therefore, can only be proved in
terms of clause (c) of Section 63 when at least one of the two witnesses proves
the attestation. A Will is required to be attested by two or more witnesses,
each of whom has seen the testator sign or affix his mark to the Will. Section
68 of the Evidence Act provides for the requirements for proof of execution of
the Will. In terms of said provision, at least one attesting witness has to be
examined to prove execution of a Will.
22. P.W.-9, as noticed hereinbefore in his deposition, stated that
Sarajumani Dasi did not put her thumb impression in his presence on the Will at
the time of its execution. Whether the same would amount to denial of the
execution of a Will even within the meaning of Section 71 of the Indian Evidence
Act is the question.
23. Section 71 of the Evidence Act reads as under:
"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."
24. He neither denies the execution nor has failed to recollect the
execution of the Will. According to him, the testatrix had put her LTI only
after he had put his signature.
25. Section 71 of the Act provides for one of the exceptions where it is not
possible to strictly comply with the requirements of Section 68. Sections 69,
70 and Section 71 are exceptions to Section 68. Section 69 provides for proof
of a document where no attesting witness is found. Section 70 provides for
admission of execution by party to attested document. Section 71 deals with a
situation where the attesting witness denies or does not recollect the
execution of the document and only in that eventuality, the document's
execution may be proved by other evidence.
26. As indicated hereinbefore, P.W.-9 does not deny the execution. His
statement, thus, does not satisfy the requirements of Section 63(c) of the
Succession Act. While appreciating evidence of a witness, we cannot go beyond
the same and while doing so, we cannot raise a legal fiction that he must have
done so only because the first respondent had cross-examined him on certain
issues. By cross-examining one's own witness, the effect of his statement in
examination-in- chief in a case of this nature cannot be ignored. Whether
Section 71 of the Evidence Act was applicable in the facts of the present case
must be found out upon reading his evidence in its entirety.
27. Strong reliance has been placed by learned counsel on Ittoop Varghese v.
Poulose and Others, AIR 1975 Kerala 141. The High Court in that case
proceeded on the basis that Section 71 of the Act would be attracted when a
witness deliberately and falsely denies that he had attested the Will and in a
situation of that nature, the Court would be entitled to look into the totality
of the circumstances so as to enable it to arrive at a conclusion on the
question of attestation. In Ittoop Varghese case (supra), the witnesses
categorically stated that they had not seen the testator signing and did not
gather any personal acknowledgement from the testator on his signature in the
Will and further that they did not sign in the presence of the testator. It was
a case where the statement of the witnesses was found to be wholly false. It
was found having regard to the fact situation obtaining therein and in
particular having been found that the testator knew about the formalities for
the due execution of a valid Will which was also corroborated by the
endorsement made therein. The Kerala High Court, furthermore, reassured itself
from the other evidence that the testator had expressed his desire to execute
the Will and in fact wanted to assure himself that no quarrel should arise
between his sons after his death regarding the Will or his signature and only
for that purpose he got it registered. It was furthermore noticed that the
Sub-Registrar who had registered the document, on his examination, affirmed
that the document was read over to the testator and the testator acknowledged
his signature in the Will and also signed in token of presenting the Will
before the Sub-Registrar. The Sub-Registrar had also signed it as one of the
witnesses. When a Sub-Registrar had signed the document as a witness and after
that D.W. -5 had signed as an attesting witness upon execution of the document
by the testator, according to the High Court the circumstances of the case were
sufficient to come to the conclusion that there was proof of the due compliance
of the formalities required by Section 63 of the Succession Act in that case .
28. We may notice that this Court in Janki Narayan Bhoir v. Narayan Namdeo
Kadam, [(2003) 2 SCC 91] laid down the law on interpretation and application of
Section 71 of the Act in the following terms:
"11. Section 71 of the Evidence Act is in the nature of a safeguard to
the mandatory provisions of Section 68 of the Evidence Act, to meet a situation
where it is not possible to prove the execution of the will by calling the
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 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"
29. Another vital aspect of the matter cannot also be ignored. Respondent
No.1 in his evidence accepted that he had obtained the registered Will from the
office of the Sub-Registrar upon presenting 'the ticket' on 30.1.1982. After
receipt of the Will, he had shown it to Sarajumani Dasi. He did not say how the
Will was lost, particularly when he had not only shown the original Will to the
testatrix but also had consulted a lawyer in relation thereto. No information
was lodged about the missing of the document before any authority. Even
approximate point of time the Will was lost, was not stated. In his
cross-examination, he stated: "I cannot say where and how the original
will was lost."
30. Loss of the original Will was, thus, not satisfactorily proved.
31. A document upon which a title is based is required to be proved by
primary evidence, and secondary evidence may be given under Section 65(c) of
the Evidence Act. The said clause of Section 65 provides as under:
"When the original has been destroyed or lost, or when the party
offering evidence of its contents cannot, for any other reason not arising from
his own default or neglect, produce it in reasonable time."
Loss of the original, therefore, was required to be proved.
32. In a case of this nature, it was obligatory on the part of the first
respondent to establish the loss of the original Will, beyond all reasonable
doubt. His testimony in that behalf remained uncorroborated.
33. Furthermore, secondary evidence, inter alia, could be led by production
of a certified copy given in terms of the provisions of the Indian Registration
Act. In support of the proof of the Will, purported Xerox copy and a certified
copy thereof have been produced. In the Xerox copy, an endorsement has been
made by an advocate that the executant was his client and it was written by his
clerk in his office on his dictation, whereas in the certified copy there is no
such endorsement of the advocate.
34. A question has also been raised as to whether a certificate by
Sub-Registrar at the time of registration proves attestation. A Sub-Registrar
in the matter of registration of a document acts under the provisions of the
Registration Act, 1908 (1908 Act). Section 52 of the 1908 Act prescribes the
duty of Registering Officer when document is presented in terms thereof. The
signature of every person presenting a document for registration is required to
be endorsed on every such document at the time of presentation. Section 58
prescribes the particulars to be endorsed on documents admitted to
registration, such as :
"(a) Signature of the person admitting the execution of the document;
(b) Any money or delivery of goods made in presence of Registering Officer
in reference to the execution of the document shall be endorsed by the
Registering Officer in the document presented for Registration.
Therefore this is the only duty cast on the Registering authority to endorse
on the will, i.e. to endorse only the admission or execution by the person who
presented the document for registration. The compliance of this provision leads
to the legal presumption that the document was registered and nothing else.."
35. If an authority in performance of a statutory duty signs a document, he
does not become an attesting witness within the meaning of Section 3 of the
Transfer of Property Act and Section 63 of the Succession Act. The term
"to `attest' is to bear witness to a fact. The essential conditions of
valid attestation are (i) two or more witnesses have seen the executant sign
the instrument (ii) each of them has signed the instrument in presence of the
36. "Animus attestandi" is a necessary ingredient for proving the
attestation. If a person puts his signature in a document only in discharge of
his statutory duty, he may not be treated to be an attesting witness.
37. The Registering Officer Rabindranath Mohanty was examined as P.W.8. He,
in his deposition, stated:
" . I asked the executant her name, the name of the person in whose
favour the Will was executed and the nature of the document. .. She admitted
before me that she has executed the Will after understanding the full import of
the admission of execution of the Will."
While registering the Will, the Registering Officer has endorsed:
"Execution is admitted by the above Sarajumani Dasi who is identified by
Sri Banabihari Upadhyay S/o Harihar Upadhyaya, Advocate's clerk of
38. In Dharam Singh v. Aso and Another [1990 (Supp) SCC 684], this Court
"2. The two attesting witnesses did not support the execution of the
will. The trial court relied upon the statement of the registering authority
and on the basis of decisions of the Lahore and Punjab and Haryana High Courts
found that the will had been proved. The lower appellate court reversed the
decision by relying upon two decisions of this Court in M.L. Abdul Jabhar Sahib
v. H.V. Venkata Sastri & Sons and Seth Beni Chand v. Kamla Kunwar.
3. We have examined the record and are satisfied that the appellate court
and the High Court were right in their conclusion that the Registrar could not
be a statutory attesting witness. Therefore, the conclusion that the will had
not been duly proved cannot be disturbed."
39. The said witness did not know the testatrix personally. Even her
parentage was not asked for and inquired into. He was examined eight years
after the registration. It is difficult for any ordinary person after a period
of eight years, inter alia, on the basis of a certified copy to depose in
regard to evidence of such nature, particularly, in a case where a Will has
been executed on the day on which she had executed a deed of sale in favour of
a complete stranger. His evidence, therefore, does not inspire confidence. In
any event he cannot be said to have proved due execution or attestation of the
40. It is now well settled that requirement of the proof of execution of a
Will is the same as in case of certain other documents, for example Gift or
Mortgage. The law requires that the proof of execution of a Will has to be
attested at least by two witnesses. At least one attesting witness has to be
examined to prove execution and attestation of the Will. Further, it is to be
proved that the executant had signed and/or given his thumb impression in
presence of at least two attesting witnesses and the attesting witnesses had
put their signatures in presence of the executant.
(See Madhukar D. Shende v. Tarabai Aba Shedage, (2002) 2 SCC 85; Janki
Narayan Bhoir v. Narayan Namdeo Kadam, (2003) 2 SCC 91 and Bhagatram v.
Suresh and Others, (2003) 12 SCC 35).
41. The Court granting Letters of Administration with a copy of the Will
annexed, or probate must satisfy itself not only about the genuineness of the
Will but also satisfy itself that it is not fraught with any suspicious
42. No independent witness has been examined to show how the testatrix came
close to the respondent No.1. Why valuable agricultural land measuring Ac 4.187
and homestead land along with a house standing thereon had been gifted in
favour of the first respondent, has not been explained. The original Will has
not been produced. Why both the Will and the sale deed should have been
executed on the same day, has not been explained.
43. The burden on the first respondent was heavy, he being a stranger to the
family. He failed to discharge the said burden. Variance, inconsistencies and
contradictions have been brought on record, particularly in the statements of
P.W.- 4 and P.W.-9 and other witnesses vis-`-vis the contents of the document,
which we have noticed hereinbefore.
44. Learned trial Judge as also the High Court did not take into
consideration the effect of such contradictions and inconsistencies,
particularly the interpolation/variance in the Xerox copy of the Will vis-`-vis
certified copy thereof. Serious consideration was required to be bestowed on
the contention of the appellants that thumb impressions of the testatrix on
different pages of the Xerox copy did not tally. No effort was made to compare
the thumb impression appearing on the Xerox Copy with the thumb impression
appearing on other admitted documents. Non-production of the original Will
stating that the Will got lost, gives rise to an inference that it might have
been that the Will did not contain the thumb impression of the testatrix. The
testatrix was an old and ill lady. She had no independent adviser in the matter
of the execution of the Will. On the other hand, the plaintiff/respondent No.1
and his father being disciple of her Guru were in a position to dominate her
45. Respondent No.1 was a student at the relevant time. His father had taken
an active part in the entire process in registering and culmination of the Will
in favour of his son. There are materials on record to show that although
sufficient time had been granted for examination of the other attesting
witnesses, Chandramani Das Mohapatra was not summoned. No summon could be issued
only because his correct address had not been furnished.
46. Existence of suspicious circumstances itself may be held to be
sufficient to arrive at a conclusion that execution of the Will has not duly
47. In Rabindra Nath Mukherjee and Another v. Panchanan Banerjee (Dead) By
LRs. And Others [(1995) 4 SCC 459], this Court opined:
"8. If a total view is taken of the aforesaid circumstances, which has
to be the approach, we are of the opinion that the courts below overplayed some
circumstances which they regarded as suspicious and somehow missed some
circumstances which bolstered the case of the propounders."
48. We may, however, notice that in B. Venkatamuni v. C.J. Ayodhya Ram Singh
& Ors. [2006 (11) SCALE 148], this Court upon considering a large number of
decisions opined that proof of execution of Will must strictly satisfy the
terms of Section 63 of the Indian Succession
Act. It was furthermore held:
"It is, however, well settled that compliance of statutory requirements
itself is not sufficient as would appear from the discussions hereinafter
It was observed:
"Yet again Section 68 of the Indian Evidence
Act postulates the mode and manner in which proof of execution of document
required by law to be attested stating that the execution must be proved by at
least one attesting witness, if an attesting witness is alive and subject to
the process of the Court and capable of giving evidence."
It was emphasised that where there are suspicious circumstances, the onus
would be on the propounder to remove the suspicion by leading appropriate
"However, having regard to the fact that the Will was registered one
and the propounder had discharged the onus, it was held that in such
circumstances, the onus shifts to the contestant opposing the Will to bring
material on record meeting such prima facie case in which event the onus shifts
back on the propounder to satisfy the court affirmatively that the testator did
not know well the contents of the Will and in sound disposing capacity executed
Each case, however, must be determined in the fact situation obtaining
The Division Bench of the High Court was, with respect, thus, entirely wrong
in proceeding on the premise that compliance of legal formalities as regards
proof of the Will would sub-serve the purpose and the suspicious circumstances
surrounding the execution thereof is not of much significance.
The suspicious circumstances pointed out by the learned District Judge and
the learned Single Judge of the High Court, were glaring on the face of the
They could not have been ignored by the Division Bench and in any event, the
Division Bench should have been slow in interfering with the findings of fact
arrived at by the said court. It applied a wrong legal test and thus, came to
an erroneous decision."
49. Yet again in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao & Ors.
[2006 (14) SCALE 186], this Court held:
"Section 63 of the Indian Evidence
Act lays down the mode and manner in which the execution of an unprivileged
Will is to be proved. Section 68 postulates the mode and manner in which proof
of execution of document is required by law to be attested. It in unequivocal
terms states that execution of Will must be proved at least by one attesting
witness, if an attesting witness is alive subject to the process of the court
and capable of giving evidence. A Will is to prove what is loosely called as
primary evidence, except where proof is permitted by leading secondary
evidence. Unlike other documents, proof of execution of any other document
under the Act would not be sufficient as in terms of Section 68 of the Indian Evidence
Act, execution must be proved at least by one of the attesting witnesses.
While making attestation, there must be an animus attestandi, on the part of
the attesting witness, meaning thereby, he must intend to attest and extrinsic
evidence on this point is receivable.
The burden of proof that the Will has been validly executed and is a genuine
document is on the propounder. The propounder is also required to prove that
the testator has signed the Will and that he had put his signature out of his
own free will having a sound disposition of mind and understood the nature and
effect thereof. If sufficient evidence in this behalf is brought on record, the
onus of the propounder may be held to have been discharged. But, the onus would
be on the applicant to remove the suspicion by leading sufficient and cogent
evidence if there exists any. In the case of proof of Will, a signature of a
testator alone would not prove the execution thereof, if his mind may appear to
be very feeble and debilitated. However, if a defence of fraud, coercion or
undue influence is raised, the burden would be on the caveator. [See Madhukar
D. Shende v. Tarabai Shedage (2002) 2 SCC 85 and Sridevi & Ors. v. Jayaraja
Shetty & Ors. (2005) 8 SCC 784]. Subject to above, proof of a Will does not
ordinarily differ from that of proving any other document."
Noticing B. Venkatamuni (supra), it was observed:
"The proof a Will is required not as a ground of reading the document
but to afford the judge reasonable assurance of it as being what it purports to
We may, however, hasten to add that there exists a distinction where
suspicions are well founded and the cases where there are only suspicions
alone. Existence of suspicious circumstances alone may not be sufficient.
The court may not start with a suspicion and it should not close its mind to
find the truth. A resolute and impenetrable incredulity is demanded from the
judge even there exist circumstances of grave suspicion. [See Venkatachala
[See also Joseph Antony Lazarus (Dead) By LRs. V. A.J. Francis, (2006) 9 SCC
50. For the reasons aforementioned, the impugned judgment cannot be
sustained which is set aside. Accordingly, the appeal is allowed with costs.
Counsel's fee assessed at Rs.5,000/-.
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