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2005 DIGILAW 682 (PNJ)

Sampuran Singh v. Kartar Singh

2005-07-01

M.M.KUMAR

body2005
Judgment M.M.Kumar, J. 1. The plaintiff-appellant has filed the instant appeal under Section 100 of the Code of Civil Procedure, 1908 (for brevity, the Code) challenging concurrent findings of facts recorded by both the Courts below holding that the plaintiff-appellant alongwith others has failed to prove due execution of the Will dated 10.9.1994 allegedly executed by their father Arjun Singh. Both the Courts below have discarded the statement of Hukam Singh who was one of the attesting witness because Hukam Singh was produced only at the stage when the Civil Judge was considering the application filed under Order XXXIX Rules 1 and 2 of the Code. He was produced as a Court witness on 25.11.1995 to verify the Will. The aforementioned statement made by attesting witness Hukam Singh has not been found to satisfy the requirement of law because after framing of issues, Hukam Singh was never produced at the trial of the suit. The statement made by Hukam Singh was not subjected to any cross-examination to pass through the test of veracity. The other attesting witness was one Angrej Singh son of Chuhar Singh. He was also not summoned at the trial to depose with regard to execution of the Will dated 10.9.1994 (Ex.P-7). These facts are sufficient to conclude that the will has not been proved in accordance with the provisions of Section 63(c) of the Indian Succession Act, 1925 (for brevity, the Succession Act) read with Section 68 of the Indian Evidence Act, 1872 (for brevity, the Evidence Act). The aforementioned provisions came up for consideration of the Supreme Court in the case of Janki Narayan Bhoir v. Narayan Namdeo Kadam, wherein it has been held that out of the two attesting witnesses, at least one of them has to be examined before the Court and such a witness should be in a position to prove the execution of will, namely, attestation by two attesting witnesses in the manner contemplated in Section 63(c) of the Succession Act. The observations of the Supreme Court in this regard reads as under: - "Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. The observations of the Supreme Court in this regard reads as under: - "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 capable of giving evidence and subject to the process of the Court and capable of giving 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 the Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has been 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 the will has to be attested at least by two witnesses mandatorily under Section 63 of the Succession Act. 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 the 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 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 thereon, the examination of the 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 the 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 added) 2. When the principles laid down by the Supreme Court in Janki Narayan Bhoirs case (supra) are applied to the facts of the present case, it is evident that one of the two attesting witnesses has to prove all the substantial feature of Section 63(c) of the Succession Act. In other words, such a witness must state the due execution by the testator and attestation of the will by him as well as by the other attesting witness. In other words, such a witness must state the due execution by the testator and attestation of the will by him as well as by the other attesting witness. If such a witness fails to satisfy the aforementioned requirement, then it falls short of attestation of will as contemplated by Section 63(c) of the Succession Act. In the present case, none of the two attesting witnesses has been produced. One of the attesting witnesses, namely, Hukam Singh was produced as a Court witness at pre-trial stage. That statement was made by Hukam Singh on 25.11.1995 for the "purposes of deciding the application under Order XXXIX Rules 1 and 2 of the Code and it could not be regarded as a statement made at the trial because he was neither examined in chief after framing of issues nor the witness was handed over to the other side for cross examination. The statement of Hukam Singh, therefore, has been rightly discarded. 3. Both the courts below have scrutinised the evidence in detail and serious doubts have been raised with regard to the signatures of testator Arjun Singh. It has also been found that the will was executed by the testator on a date close to the date of his death. The will is dated 10.9.1994 and the testator died on 23.9.1994. 4. Learned counsel for the plaintiff-appellant by referring to paras 17 and 20 of the judgment of Appellate Court has made an attempt to persuade me to accept due execution of the will by urging that one of the defendant-respondent had admitted the claim of the plaintiff-appellant in the written statement. The aforemention argument would not make any difference because the plaintiff-appellant was required to prove due execution of the will in accordance with Section 63(c) of the Succession Act read with Section 68 of the Evidence Act. It has also been found by the Courts below that admission made by defendant-respondent No. 1 Kartar Singh in his written statement after withdrawing his earlier contested written statement has not been explained. He was neither present at the tune of execution of the will nor he was a marginal witness of the same. It has further been found that the plaintiff-appellant was granted numerous opportunities to prove the will dated 10.9.1994 and despite ample opportunities, the plaintiff-appellant failed to prove it. He was neither present at the tune of execution of the will nor he was a marginal witness of the same. It has further been found that the plaintiff-appellant was granted numerous opportunities to prove the will dated 10.9.1994 and despite ample opportunities, the plaintiff-appellant failed to prove it. The order directing the closure of the evidence has not been challenged as is evident from reading of para 20 of the judgment of the Appellate Court. Therefore, I do not find any substance in the argument raised by the learned counsel. No other argument has been raised. In view of the above, no question of law arises warranting admission of the appeal which is wholly without substance. It is well settled that for admission of the appeal under Section 100 of the Code, existence of a question of law is a sine qua non. Therefore, the appeal is dismissed in limine.