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1986 DIGILAW 28 (MAD)

W. Dhasaratha Rao v. Heroji Rao

1986-01-17

S.NAINAR SUNDARAM

body1986
JUDGMENT S. Nainar Sundaram, J. 1. Some of the legal representatives of the deceased plaintiff are the appellants in this second appeal. The first respondent is the defendant in the suit and the other respondents are the other legal representatives of the deceased plaintiff. The plaintiff's claim for declaration that the will executed by her step-mother one Kasi Bai is not valid and is not binding on her and for consequential reliefs in respect of the suit properties was discountenanced by the two Courts below. The defendant is the legatee under the will in question, marked in the case as Ex B1. At the time of admission of this second appeal, the only substantial question of law which was formulated by this Court runs as follows: That the will Ex. B-1 has not been proved or established to have been validly attested. 2. On the question of execution, of unprivileged wills like Ex. B1. the statutory' principles that govern the same are to be gleaned from S.63 of the Indian Succession Act, hereinafter referred to as 'the Act' and it stands extracted as follows: Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules: (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary. 3. 3. The bone of contention that survives between the parties in the second appeal, as reflected in the substantial question of law extracted above, relates to valid attestation of the will. The requirements are set out in Clause (C) of Section 63 of the Act. Of these, the submissions which were made by Mr. R.S. Venkatachari, learned Counsel for the appellants, related to the necessity of each of the witnesses signing the will in the presence of the testator. Two attesting witnesses have been summoned and examined in the case as P.Ws. 2 and 4. Learned Counsel for the appellants would submit that none of these two witnesses deposed that they signed the will in the presence of testator. As to how the satisfaction of this requirement should be arrived at by Courts has been set out by four learned Judges of the Supreme Court in Naresa Charan v. Parkash Charan at 367 as follows: It cannot be laid down as a matter of law that because the witnesses did not state in examination-in-chief that they signed the will in the presence of the testator, there was no due attestation. It will depend upon the circumstances elicited in evidence whether the attesting witnesses signed in the presence of the testator. This is a pure question of fact depending on appreciation of evidence. In that case, it has been found that the execution and attestation of the will took place at one sitting, where the testator and the witnesses had assembled by appointment. 4. Coming to the evidence of P.Ws. 2 and 4 in the present case, both deposed that the testatrix took them to the house of one P.T. Venkatachari, Vakil, and the whole process of execution, reading out, verifying its correctness, signing by the testatrix and attestation, were all done at one stretch. It was not even suggested to any of these two witnesses that Kasi Bai left the premises after she signed the will. A cogent assessment of the evidence of those two witnesses, P.Ws. 2 and 4, does demonstrate that the entire process of execution and attestation was done at one sitting and it is legitimate to draw the inference that the attesting witnesses signed the will in the presence 5of the testatrix. A cogent assessment of the evidence of those two witnesses, P.Ws. 2 and 4, does demonstrate that the entire process of execution and attestation was done at one sitting and it is legitimate to draw the inference that the attesting witnesses signed the will in the presence 5of the testatrix. It is not possible in every case to expect the attesting witnesses to repeat verbatim the language of the statute on the question of attestation. As pointed out by the highest Court in the land, this is a pure question of fact depending on appreciation of evidence. The failure on the part of any or all of the attesting witnesses to specifically say that the attesting witnesses signed the will in the presence of the testator need not necessarily in every case lead to an inference that each of the attesting witnesses did not sign the will in, the presence of the testator if the cumulative, effect of the assessment of the evidence as a whole clearly indicates td this conclusive alone. It could have been a matter of inadvertence on the part of the said witnesses if they had not borrowed the language of the statute and deposed to the same effect before the Court. The sequence of the events do have a significance to assess this par of the evidence. As I have already pointed out. In the present case, the sequence of events demonstrates that the entire process of execution, reading out the will, verification, signing by the testatrix, and attestation-all took place at one sitting and, if the evidence is viewed hot disjointedly, it shows that the requirement of Clause (C) of Section 63 of the Act was in fact satisfied on the question of each of the attesting witnesses signing in the presence of the testatrix. Tyagi, J. in Ladhi Bai v. Thakur Shriji Beespanthiya Digambar jain Temple and Ors. I.L.R. 1967 Raj. 630, after adverting to the principle laid down by the Supreme Court in the renouncement cited above also summed up the position in the following terms: This is purely a question of fact whether the attesting witnesses had signed the will in the presence of the testator. I.L.R. 1967 Raj. 630, after adverting to the principle laid down by the Supreme Court in the renouncement cited above also summed up the position in the following terms: This is purely a question of fact whether the attesting witnesses had signed the will in the presence of the testator. Section 63 of the Indian Succession Act simply ways down that the testator shall sign he will in the presence of the attestor and vice versa but it does not say how the compliance of the requirements of the provisions of Section 63 shall be established. Where the witnesses come before the court and narrate the sequence of events showing that after the testator had put her thumb impression on the document they attested the document, the court can easily draw an inference that the witnesses had appended their signatures to the document in the presence of the testator. If a witness owing to inadvertence omits to say that he had attested the document in the presence of the testator and narrates the sequence which leads to no other inference but the one that he had put his signature in the presence of the testator then this omission on the part of the witness would not invalidate, the will and it shall not preclude this Court to infer this fact from other evidence on the record that the attestor had signed the document in the presence of the testator. The law does not emphasize that the witness must use the language of the section to prove the requisite-merits thereof. If it is clear from the sequence of events described by a witness, that the witness had attested the document in the presence of the testator, then this technicality that he did not say so in the language used in Section 63 would not be of any avail to the opposite pary. I do not find any weight in this contention of learned Counsel for the appellant and it is, therefore, repelled. 5. In the present case I have no ambiguity in my mind that the requirements of Clause (c) of Section 63 of the Act on the question of valid attestation have been fully Satisfied. Learned Counsel for the appellants drew my attention to very many pronouncements which have countenanced the need to satisfy the statutory requirement. 5. In the present case I have no ambiguity in my mind that the requirements of Clause (c) of Section 63 of the Act on the question of valid attestation have been fully Satisfied. Learned Counsel for the appellants drew my attention to very many pronouncements which have countenanced the need to satisfy the statutory requirement. But here we are more concerned with the question as to how the court should assess satisfaction of the, statutory requirement from the evidence placed in the case. The second appeal fails and the same is dismissed. No costs.