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Madhya Pradesh High Court · body

2009 DIGILAW 245 (MP)

Ramautar v. Ram Naresh

2009-02-17

A.K.SHRIVASTAVA

body2009
JUDGMENT 1. This second appeal of defendant was heard and allowed by this Court on 5.7.2007 by dismissing the suit of plaintiff. Against the judgment of this Court, plaintiff (who is respondent No.1 in this second appeal) filed Civil Appeal No.4768 of 2008 before the Supreme Court. The Supreme Court set aside the judgment of this Court dated 5.7.2007 holding that the substantial question of law which was formulated by this Court on 14.7.1987 is not a substantial question of law within the meaning of the provisions of sub-section (4) of section 100 CPC. The substantial question of law which was formulated at that time reads thus: "Whether the lower appellate Court was justified in law in reversing the judgment and decree of the trial Court?" The Supreme Court while deciding the above said appeal and remanding the case to this Court further observed that the High Court may formulate such substantial question of law as in its opinion arises in the matter. This Court after having heard learned counsel for the parties formulated the following substantial question of law on 16.2.2009 : "Whether in absence of the proof of due attestation of the Will EX.P-l in terms of section 63( c) of Indian Succession Act, the learned first appellate Court erred in substantial error of law in decreeing the suit of plaintiff-respondent No.1 ?" Learned counsel for the parties are heard on the said substantial question of law. 2. The plaintiff-respondent No.1 Ramnaresh has filed the instant suit for declaration and possession in regard to certain agricultural land, the details of which are mentioned in the plaint and which is the subject-matter of the suit on the basis of the Will dated 31.10.1972 said to have been executed by Katrawali (hereinafter referred to as "testator") in his favour. It is not in dispute that the testator was Chachi (aunt) of the plaintiff's grand father, namely, Paramlal. The family tree has been shown in para 2 of the plaint and in the written statement relationship has not been denied. Thus, it is an admitted fact that testator was Chachi (aunt) of plaintiff's grand father. 3. According to the plaintiff, on account of love and affection looking and to the service rendered by plaintiff to the testator, she bequeathed the suit property to him by executing a Will on 31.10.1972. The testator after executing the Will, died after few days. Thus, it is an admitted fact that testator was Chachi (aunt) of plaintiff's grand father. 3. According to the plaintiff, on account of love and affection looking and to the service rendered by plaintiff to the testator, she bequeathed the suit property to him by executing a Will on 31.10.1972. The testator after executing the Will, died after few days. Thus, on the basis of the said Will plaintiff is seeking declaration of his Bhumiswami right with a further relief to deliver possession of the suit property because the suit property was owned by the testator and the same was bequeathed to the plaintiff. 4. The defendants No.1 to 4 (including appellant-defendant Ramautar) filed their joint written statement and challenged the Will. According to the defendants, the Will is a forged document. 5. Learned trial Court framed necessary issues and after recording the evidence of the parties, came to hold in para 22 of its judgment that the Will (Ex.P-l) is a forged document and hence dismissed the suit. 6. An appeal which was preferred by plaintiff before learned first appellate Court against the judgment and decree passed by learned trial Court has been allowed and the suit of plaintiff has been decreed. 7. In this manner, this second appeal has been filed by defendant No.4. 8. After remand from the Supreme Court, this Court on 16.2.2009 formulated following substantial question of law: "Whether in absence of the proof of due attestation of the Will Ex.P-l in terms of section 63(c) of Indian Succession Act, the learned first appellate Court erred in substantial error of law in decreeing the suit of plaintiff-respondent No.1 ?" 9. The contention of Shri Rakesh Jain, learned counsel for the appellant is that claim of plaintiff is based on the Will (Ex.P-l), but the attestation of the Will has not at all been proved and, therefore, learned first appellate Court erred in substantial error of law in decreeing the suit of plaintiff holding the Will to be proved. In support of his contention, learned counsel has placed heavy reliance on Single Bench decision of this Court Illyas and others v. Badshah alias Kamla [ AIR 1990 MP 334 ]. 10. In support of his contention, learned counsel has placed heavy reliance on Single Bench decision of this Court Illyas and others v. Badshah alias Kamla [ AIR 1990 MP 334 ]. 10. On the other hand Shri L.S. Baghel, learned senior counsel appearing for the respondent No.1-plaintiff argued in support of the impugned judgment and has submitted that the Will has not only been duly proved from the evidence of attesting witness Indrajeet (PW3), but has also been proved from the statement of scribe Umashankar (PW2) and, therefore, this appeal is devoid of any substance and the same be dismissed. In support of his contention, learned senior counsel has placed reliance on the decision of the Supreme Court Savithri and others v. Karthyayani Amma and others [ AIR 2008 SC 300 ]. 11. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. Regarding substantial question of law: 12. The entire case of plaintiff is based on the Will said to have been executed by testator in his favour. The document of Will EX.P-l is dated 31.10.1972. On going through this document it is gathered that testator put her thumb impression and there are as many as six attesting witnesses to the Will. It is well settled in law that if the Will is in dispute, the same is required to be proved by the propounder of the Will by removing all suspicions and he is further obliged to prove its due attestation in order to prove due execution of the Will. 13. According to section 68 of the Indian Evidence Act, which speaks about "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 its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence. Thus, the execution of the Will can be proved only by examining an attesting witness to the Will. Thus, the execution of the Will can be proved only by examining an attesting witness to the Will. According to section 63(c) of the Indian Succession Act, 1925 (in short "the Act of 1925") the 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 and each of the witnesses shall sign the Will in the presence of the testator. For better understanding it would be proper to quote section 63( c) of the Act of 1925 which reads thus: "63(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 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". Thus, on conjoint reading of the aforesaid provisions of law, I shall now examine the evidence of Indrajeet (PW3) who is the only attesting witness who has been examined to prove the Will. On going through his evidence it is revealed that he was called by Panchas and testator of the Will was also present there. The document of Will was written by Umashankar (PW2), who read over the same to the testator and thereafter she put her thumb impression on the Will. According to this witness, he also put his thumb impression on the document. Further this witness has stated that he himself, Rajaram, Premnarayan, Thakur Prasad, Ramasre and Shyamsundar put their thumb impressions as well as they also signed the document. Again he has stated that he put his thumb impression only. In his testimony nowhere he has stated that testator put her thumb impression in presence of the attesting witness or acknowledged her thumb impression in presence of attesting witnesses. Again he has stated that he put his thumb impression only. In his testimony nowhere he has stated that testator put her thumb impression in presence of the attesting witness or acknowledged her thumb impression in presence of attesting witnesses. From his testimony only this much is gathered that testator put her thumb impression on the document of Will, but in specific words this witness is not saying that in his presence or in presence of other attesting witnesses, testator put her thumb impression or acknowledged her thumb impression. Even for the sake of argument, from the evidence of this witness, if inference is drawn that testator put her thumb impression in presence of the attesting witness Indrajeet (PW3), in absence of evidence of this witness that he also put his thumb impression in presence of the testator, according to me, the execution and attestation of the Will is not at all proved. In this context I may profitably place reliance on two decisions of the Supreme Court, they are Kashibai w/o Lachiram and another v. Parwatibai w/o Lachiram and others [1995 AIR SCW4631], and Girja Datt Singh v. Gangotri Datt Singh [ AIR 1955 SC 346 ]. In Kashibai (supra), the Supreme Court in para 11 by emphasizing the term "attested" has held that the execution of the Will cannot be said to be proved in accordance with law unless and until attesting witnesses to the Will depose that testator had signed Will before them and they had attested it. In Kashibai (supra), the Supreme Court in para 11 by emphasizing the term "attested" has held that the execution of the Will cannot be said to be proved in accordance with law unless and until attesting witnesses to the Will depose that testator had signed Will before them and they had attested it. The Supreme Court further clarified the word "attested" by taking into consideration section 3 of the Transfer of Property Act, which reads thus: "attested", in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary." In earlier decision of Girja Datt Singh (supra), also the Supreme Court laid down the same principle. The Supreme Court further clarified in this case that it cannot be presumed from mere signature of two persons appearing at the foot of the endorsement of registration of a Will that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witnesses. According to apex Court section 68 of the Evidence Act requires an attesting witnesses to be called as a witness to prove the due execution and attestation of the Will. 14. If a Will is required to be proved, merely because signature of the testator and the attesting witnesses are proved, would in itself is no ground to hold that attestation and execution of the Will is proved. According to me it is obligatory on the part of the propounder of the Will to prove due attestation of the Will in order to prove its execution. I have already mentioned hereinabove that what is the meaning of term 'attestation'. According to me it is obligatory on the part of the propounder of the Will to prove due attestation of the Will in order to prove its execution. I have already mentioned hereinabove that what is the meaning of term 'attestation'. The propounder of the Will, therefore, is required to examine at least one attesting witness if alive so as to prove the statutory conditions by reason of section 63(c) of the Act of 1925 and section 68 of the Evidence Act which cannot at all be ignored. In this context I may profitably place reliance on the latest pronouncement of the Supreme Court Anil Kak v. Kumari Sharda Raje and others [ 2008(2) JLJ 247 = (2008)7 SCC 695 (para 49)]. The Supreme Court in Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao [(2006)13 SCC 433], has held that unlike other documents, proof of execution of any other document under the Act of 1925 would not be sufficient as in terms of section 68 of the 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. This decision of Niranjan Umeshchandra Joshi (supra), has been placed reliance by the Supreme Court in the decision of Anil Kak (supra), in para 51. By applying aforesaid ratio descinendi of abovesaid two decisions of the Supreme Court in the present factual scenario, since, the attesting witness to the Will of this case, namely, Indrajeet (PW3) has not at all proved animus attestandi in his evidence, therefore, in the present case the Will is not proved. 15. In another decision B. Venkatamuni v. C.J. Ayodhya Ram Singh and others [AIR 2007 SC 311], in para 13 the Supreme Court after quoting I section 63 of the Act of 1925 in para 14 has held that the proof of a Will should be strictly in terms of the abovementioned provisions, hence the propounder of the Will is legally obliged to prove the Will in terms of the attestation stated by the Legislature in section 63( c) of the Act of 1925. The same principles have been elucidated by the Supreme Court in another decision Janki Narayan Bhoir v. Narayan Namdeo Kadam [2003(I) MPWN 130= (2003)2 SCC 91 ], and in para 10 it has been specifically held that the attesting witness, in his evidence, has to satisfy the attestation of the Will by him and other attesting witnesses in order to prove that there was due attestation of the Will. The Supreme Court further held that 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 the 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. Single Bench of this Court presided by Chief Justice A.K. Mathur, as His Lordship then was, in Mannudas v. Govinddas and another [1997(2) Vidhi Bhasvar 199], by placing reliance on the decision of the Supreme Court Kashibai (supra), also took the same view. Thus, looking to the evidence of Indrajeet (PW3) since attestation of the Will EX.P-l is not proved, the impugned Will itself is not proved. 16. I am not at all impressed by the submission of learned senior counsel appearing for the respondent No.1-plaintiff that from the testimony of scribe Umashankar (PW2) execution and due attestation of the Will has been proved. True, the Supreme Court in Savithri (supra), which has been placed reliance by learned senior counsel for respondent, has held that attestation of the Will can be proved from other witness also if he has seen the testator signing the Will in presence of the attesting witnesses and the attesting witness are putting their signatures in presence of testator. But, Umashankar (PW2), who is scribe of the Will has also not stated in his testimony that the testator put her thumb impression in presence of the attesting witnesses and attesting witnesses have put their signature or thumb impressions in presence of the testator. Hence, according to me, the decision placed reliance by learned senior counsel for the respondent No.1-plaintiff is not applicable in the present case. 17. Hence, according to me, the decision placed reliance by learned senior counsel for the respondent No.1-plaintiff is not applicable in the present case. 17. Single Bench of this Court in Illyas (supra), has also followed the same principle which has been laid down by the Supreme Court in Girja Datt Singh (supra), and has held that execution of the Will is proved only if at least one attesting witness is examined and he should speak not only about testator's signature but also that each of witnesses has signed Will in presence of the testator. 18. According to me, since execution and due attestation of the Will has not been proved either from the testimony of the attesting witness lndrajeet (PW3) or from the evidence of Umashankar (PW2), who is scribe of the Will, the Will (Ex.P-l), said to have been executed by testator in favour of plaintiff, is not at all proved. 19. The substantial question of law is thus answered that since due attestation of the Will (Ex.P-l) in terms of section 63( c) of the Act of 1925 has not been proved, execution of the Will (Ex.P-l), said to have been executed by testator in favour of plaintiff, is not proved. 20. Resultantly, this appeal is allowed. The judgment and decree passed by learned first appellate Court is hereby set aside and the suit of plaintiff is hereby dismissed with costs. Counsel's fee R.s.3,000/-, if pre-certified.