Babu
Singh & Ors Vs. Ram Sahai @ Ram Singh [2008] INSC 752 (30 April 2008)
S.B. Sinha & V.S. Sirpurkar
REPORTABLE CIVIL APPEAL NO. 3124 OF 2008 (Arising out of SLP (C) No.10288 of
2006) S.B. Sinha, J.
1. Leave granted.
2. Interpretation of Section 69 of the Evidence Act, 1872 is in question in
this appeal which arises out of a judgment and order dated 11.11.2005 passed by
the High Court of Punjab & Haryana.
3. One Ram Bux executed a Will dated 25.9.1981 in favour of the respondent
herein bequeathing his right, title and interest in the property in question.
Appellants claimed themselves to be the owner and in possession of the suit
property which is a shop, as a co-sharer to the extent of 6 marlas out of the
land measuring 3 kanal and one marla appertaining to Khasra No.53 situated in
the area of Chhoti Haveli, Tehsil and District Ropar.
4. Learned Trial Court, inter alia, raised the following issues :
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" Whether the plaintiff is owner of the suit property? OPP
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Whether the Plaintiffs are entitled to the possession of the shop in
question? OPP XXX XXX XXX
6. Whether the defendants are entitled to the counter claim to the effect
that they are owner of the shop in question and co-sharer to the extent of 0-6
marlas of the land fully detailed in the counter claim? OPD"
We need not go into other issues between the parties.
5. The learned Trial Judge, although opined that the suit was bad for
non-impleading Karam Kaur and Dalwinder Kaur, daughters of the testator as
parties to the suit, proceeded to consider the validity of the Will in order to
avoid any possibility of remand by the Trial Court, stating :
"The plaintiff was duty bound to examine at least one attesting
witnesses to prove the execution of the Will Ex.P/2. It has come in evidence
that Lambardar Mohan Singh expired before he could be examined as a witness.
Other attesting witnesses House was alive and had been given up by the
plaintiff on the plea that he had been won over by the other party. Thus, Will
Ex.P/2 has not been proved according to Section 68 of the Indian Evidence
Act."
6. The learned Judge, however, noticed that one of the attesting witnesses,
namely, Harnek Singh @ House, according to the learned counsel for the
plaintiff, had gone outside India and another attesting witness, namely, Lambardar
Mohan Singh being dead, the Will must be held to have been duly proved. It was
held :
"Though there is no plausible and cogent evidence on record to show
that House had gone to foreign country. But even if for argument sake the plea
of the Plaintiff is taken to be correct. Even in that eventuality the
Sub-Registrar has only identified the signatures on the will to be that of
Mohan Singh as attesting witness. Though the Plaintiff also examined PW-9
Davinder Parshad Handwriting expert who examined the signatures of the
executant on the Will Ex.P/2 and the sale deed but he took all these signatures
as standard signatures. The sale deeds, however, have not been proved by the
Plaintiff to contain the signatures of Ram Bux. Expert compared these standard signatures
with the questioned signatures on the family settlement. Therefore, there is
nothing on record to suggest that Handwriting expert took the signatures of
will as questioned and compared the same with admitted or proved signatures of
Ram Bux. Therefore, the Plaintiff miserably failed to show that the Will Ex.P/2
contained the signatures of Ram Bux.
Consequently, the Plaintiff failed to prove the due execution of the Will
Ex.P/2, as per the requirement of Section 69 of the Indian Evidence Act.
In result, the Plaintiff failed to show that deceased Ram Bux executed legal
and valid will dated 25.9.1981 in his favour. In view of this finding I need
not dilate on the argument of the learned counsel for the defendants that the
Will Ex.P/2 was surrounded by suspicious circumstanced."
7. An appeal was preferred thereagainst.
The First Appellate Court, however, on the said issue held :
"Now so far as the Will Ex.P/2 is concerned, it was allegedly executed
by Ram Bux Singh son of Daya Ram on 25.9.1981 and was duly got registered in
the office of the Sub-Registrar, Ropar, on the same date. It is evident that
this Will was attested by two witnesses, namely, Harnek Singh son of Ram
Prakash and Mohan Singh, Lamberdar. So far as Mohan Singh Lamberdar is
concerned, he had since died on 4.7.1983 vide death Certificate Ex.P3 and for
this reason he could not be brought in the witness box. However, Harnek Singh
son of Ram Parkash is alive but it is stated by Shri A.L.
Verma, counsel for the Plaintiff as well as Plaintiff himself on 29.10.1999
that Harnek Singh witness has joined hands with the opposite party and
moreover, he has intentionally left to a foreign country. For this reason,
Harnek Singh son of Ram Parkash also could not be examined by him.
Now the question arises whether the statement of the deed-writer who also
knew Ram Bux Singh can be relied upon or not and whether he can be treated as
an attesting witness or not."
8. The High Court by reason of the impugned judgment dismissed the Second
Appeal preferred by the appellant herein opining that no substantial question
of law arose for its consideration.
9. Mr. Viraj Datar, learned counsel appearing on behalf of the appellant,
submitted that in the facts and circumstances of this case, Section 69 of the
Evidence Act cannot be said to have any application whatsoever and, thus, the
High Court committed a serious error in passing the impugned judgment.
10. Indisputably a Will is to be attested by two witnesses in terms of
Section 68 of the Indian Evidence Act (Act). Indisputably, the requirement of
Section 63(1)(c) of the Indian Succession Act is required for to be complied
with for proving a writ. Section 68 of the Act mandates proof by attesting
witnesses of not merely of execution but also attestation by two witnesses. That
is to say, not only the execution of Will must be proved but actually execution
must be attested by at least two witnesses. Attestation must of execution of
Will be in conformity with the provisions of Section 3 of the Transfer of
Property Act.
'Attestation' and 'execution' connote two different meanings. Some documents
do not require attestation. Some documents are required by law to be attested.
11. In terms of Section 68 of the Act, although it is not necessary to call
more than one attesting witness to prove due execution of a Will but that would
not mean that an attested document shall be proved by the evidence of one
attesting witness only and two or more attesting witnesses need not be examined
at all. Section 68 of the Act lays down the mode of proof. It envisages the
necessity of more evidence than mere attestation as the words 'at least' have
been used therein. When genuineness of a Will is in question, apart from
execution and attestation of Will, it is also the duty of a person seeking declaration
about the validity of the Will to dispel the surrounding suspicious
circumstances existing if any. Thus, in addition to proving the execution of
the Will by examining the attesting witnesses, the propounder is also required
to lead evidence to explain the surrounding suspicious circumstances, if any.
Proof of execution of the Will would, inter alia, depend thereupon.
12. The Court, while granting probate of the will, must take into
consideration all relevant factors. It must be found that the will was product
of a free will. The testator must have full knowledge and understanding as
regards the contents thereof. For the said purpose, the background facts may
also be taken note of. Where, however, a plea of undue influence was taken, the
onus wherefor would be on the objector and not on the offender. {See Savithri
& Ors. v. Karthyayani Amma & Ors. [JT (2007) 12 SC 248]} 13. Section 69
of the Act reads, thus :
"Section 69Proof where no attesting witness foundIf no such attesting
witness can be found, or if the document purports to have been executed in the
United Kingdom, it must be proved that the attestation of one attesting witness
at least is in his handwriting, and that the signature of the person executing
the documents is in the handwriting of that person."
14. It would apply, inter alia, in a case where the attesting witness is
either dead or out of the jurisdiction of the court or kept out of the way by
the adverse party or cannot be traced despite diligent search. Only in that
event, the Will may be proved in the manner indicated in Section 69, i.e., by
examining witnesses who were able to prove the handwriting of the testator or
executant. The burden of proof then may be shifted to others.
15. Whereas, however, a Will ordinarily must be proved keeping in view the
provisions of Section 63 of the Indian Succession Act and Section 68 of the
Act, in the event the ingredients thereof, as noticed hereinbefore, are brought
on record, strict proof of execution and attestation stands relaxed.
However, signature and handwriting, as contemplated in Section 69, must be
proved.
16. Indisputably, one of the attesting witnesses was dead. Our attention,
however, has been drawn to the fact that a purported summons were taken out
against the said Harnek Singh. Admittedly, it was not served. There is nothing
on record to show that any step was taken to compel his appearance as a
witness. Ram Sahai in his deposition did not make any statement that the said
Harnek Singh had been won over by the appellant. He did not say that despite
service of summons, Harnek Singh did not appear as a witness.
In his cross-examination, he alleged that he and Harnek Singh were
enimically disposed of towards each other even prior to 1991 and in fact
"since the time of his ancestors". It was furthermore alleged that
they are not on speaking terms. A suggestion was given to him that in fact
Harnek Singh had come to Court on that day to which he denied his knowledge. It
is only in answer to a question in cross-examination, he stated that he did not
intend to examine the said Harnek Singh.
Harnek Singh may be a person who had been won over by the appellant but
there must be some evidence brought on records in that behalf.
The learned Trial Judge, in our opinion, rightly rejected the bare statement
made by the learned counsel for the plaintiff that the other attesting witness
had gone out of the country. Respondent himself did not say so on oath. He did
not examine any other witness.
He did not make any attempt to serve another summons upon him.
No process was asked for to be served by the court. Interestingly, a
statement was made by a counsel before the appellate court. That statement is
said to have been made before the appellate court by the plaintiff himself on
29.10.1999. We are at a loss to understand how such a statement by a counsel or
by the respondent himself was taken into consideration for the purpose of
invoking Section 69 of the Indian Evidence Act. A purported statement, not as a
witness but through the counsel, cannot be said to be an evidence. We have
noticed hereinbefore that learned Trial Judge did not accept such a statement.
In that view of the matter, the first appellate Court, in our opinion,
committed a serious legal error.
1939 Cal. 688], B.K. Mukherjea, J. referring to Section 71 stated the law
thus :
"This presupposes in my opinion that the witness is actually produced
before the Court and then if he denies execution or his memory fails or if he
refuses to prove or turns hostile, other evidence can be admitted to prove execution.
In the case referred to above the witness was actually before the Court and
afterwards turned hostile. In this case however, the witness was not before the
Court at all and no question of denying or failing to recollect the execution
of the document did at all arise. The plaintiff simply took out a summons as
against this witness and nothing further was done later on. In a case like this
where the attesting witnesses are not before the Court, S. 71, Evidence Act,
has in my opinion, got no application. In such cases it is the duty of the
plaintiff to exhaust all the processes of the Court in order to compel the
attendance of any one of the attesting witnesses and when the production of
such witnesses is not possible either legally or physically, the plaintiff can
avail himself of the provisions of S. 69, Evidence Act."
18. In Amal Sankar Sen & Ors. v. The Dacca Co-operative Housing Society
Ltd. (in liquidation) by Inspector Liquidator, Co-operative Society, Dacca
[(A.I.R (32) 1945 Calcutta 350], it was held :
"As we have already stated, that proposition of law cannot be
challenged at this date. In order that S.69, Evidence Act, may be applied, mere
taking out of the summons or the service of summons upon an attesting witness
or the mere taking out of warrant against him is not sufficient. It is only
when the witness does not appear even after all the process under Order 16 Rule
10, which the Court considered to be fit and proper had been exhausted that the
foundation will be laid for the application of Section 69, Evidence Act. The
party, namely, the plaintiff, must move the Court for process under Order 16,
Rule 10, Civil P.C., when a witness summoned by him has failed to obey the
summons but when the plaintiff does move the Court but the Court refuses the
process asked for we do not see why Section 69, Evidence Act, cannot be
invoked. The other view would place the plaintiff in an impossible position
when the witness is an attesting witness to the document on which he has
brought the suit, and the Court refuses coercive processes contemplated in
Order 16 Rule 10 Civil P.C."
same principle was reiterated, stating :
"11. D. 2. 2 merely identifies the signature of Palani Navithan found
in Ex. B-1 as that of his father. The mere fact that the signature of Palani
Navithan is proved, in our opinion, is not sufficient to prove the due
execution of the will. The evidence of this witness is relied on for proving
the signature of one of the attesting witnesses and thus enable the third
defendant to adduce secondary evidence regarding the due execution of the will.
The evidence of D.W. 2 will be relevant only for the purposes of S. 69 of
the Evidence Act.
Section 69 will come into play only when no attesting witness can be found.
In this case, as already stated, an attesting witness D.W. 4 has been examined
and he has denied his attestation of the document. Therefore S. 69 can have no
application. The evidence of D.W. 2, therefore, even if accepted, will not help
the third defendant."
20. We may notice that in Apoline D' Souza v. John D' Souza [(2007) 7 SCC
225], this Court held that the question as to whether due attestation has been
established or not will depend on the fact situation obtaining in each case.
Therein, it was held :
"13. Section 68 of the Evidence Act, 1872 provides for the mode and
manner in which execution of the will is to be proved. Proof of attestation of
the will is a mandatory requirement.
Attestation is sought to be proved by PW 2 only.
Both the daughters of the testatrix were nuns. No property, therefore, could
be bequeathed in their favour. In fact one of them had expired long back.
Relation of the testatrix with the respondent admittedly was very cordial.
The appellant before us has not been able to prove that she had been staying
with the testatrix since 1986 and only on that account she was made a
beneficiary thereof.
The will was full of suspicious circumstances. PW 2 categorically stated
that the will was drafted before her coming to the residence of the testatrix
and she had only proved her signature as a witness to the execution of the will
but the document was a handwritten one. The original will is typed in Kannada,
although the blanks were filled up with English letters. There is no evidence
to show that the contents of the will were read over and explained to the
testatrix. PW 2 was not known to her. Why was she called and who called her to
attest the will is shrouded in mystery. Her evidence is not at all satisfactory
in regard to the proper frame of mind of the testatrix. There were several
cuttings and overwritings also in the will."
In the aforementioned situation, the Will was said to have not been proved.
This Court therein noticed, inter alia, the decision of B. Venkatamuni v.
C.J. Ayodhya Ram Singh & Ors. [(2006) 13 SCC 449] wherein the law has been
laid down in the following terms :
"25. 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."
21. We generally agree with the aforementioned view of the Calcutta High
Court. Assuming, however, that even taking the course of Order XVI of the Code
of Civil Procedure might not be necessary, what was imperative was a statement
on oath made by the plaintiff. A deposition of the plaintiff is a witness
before the Court and not the statement through a counsel across the Bar. Such a
statement across the Bar cannot be a substitute for evidence warranting
invocation of Section 69 of the Evidence Act.
22. For the reasons, aforementioned, the impugned judgment of the High Court
as also the First Court of Appeal cannot be sustained. They are set aside
accordingly. Appeal is allowed with no order as to costs.
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