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2013 DIGILAW 436 (HP)

Som Dutt v. Padam Chand

2013-05-16

RAJIV SHARMA

body2013
JUDGMENT Justice Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 15.7.2002 rendered by the learned Additional District Judge, Sirmaur District at Nahan in Civil Appeal No. 15-N/ 13 of 2000. 2.“Key facts” necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as the “plaintiff) filed a suit for declaration with consequential relief of permanent prohibitory injunction against the appellants-defendants, namely, Som Dutt and Ram Chander (hereinafter referred to as defendants No.1 and 2) as originally arrayed in the civil suit and against Upender Dutt defendant No.3, who has been arrayed as proforma respondent/defendant No.3 in the present appeal and proforma respondents Anjana Devi, Nirmala Devi, Pushpa Devi, Phool Bala and Salochana. According to the plaintiff, his father Sh. Mahima Chander was owner of the suit land comprised in Khasra Nos. 25, 70, 134 and 136, Khata Khatauni No. 23/32 measuring 16-13 bighas situated at village Kaulan Wala Bhood, Tehsil Nahan, District Sirmaur, H.P. He died on 5.1.1997. He came to know from the revenue entries that he and proforma defendants have been excluded from the inheritance of the suit property on the basis of will. He raised objection before the Assistant Collector 2nd Grade requesting him not to attest the mutation of inheritance. According to the plaintiff, the “will” dated 17.7.1991 Ex.D-1 is not a valid document. According to him, the “will” has been got prepared by the contesting defendants by colluding with the marginal witnesses and scribe. According to him, he was entitled to equal share alongwith defendants and proforma defendants in the suit property. Plaintiff also sought decree for permanent prohibitory injunction restraining the defendants from alienating the suit land. 3. Suit was contested by the contesting defendants. According to the defendants, Som Dutt, Ram Chander and Upender Dutt, deceased Mahima Chander during his life time out of his free will had executed “will” on 17.7.1991 in favour of the contesting defendants No.1 to 3 whereby he had bequeathed the suit property in their favour. Proforma defendants are daughters of Mahima Chander. They were married and leading happy married life. The existence of “will” was in the knowledge of the plaintiff. The “will” was presented before the Revenue Officer for attestation of mutation. Proforma defendants are daughters of Mahima Chander. They were married and leading happy married life. The existence of “will” was in the knowledge of the plaintiff. The “will” was presented before the Revenue Officer for attestation of mutation. The Assistant Collector after satisfying himself qua the legality and validity of the “will”, sanctioned mutation No. 541 in favour of the contesting defendants. According to defendants No. 1 to 3, Mahima Chander was possessing good health. 4. Proforma defendants also contested the suit. According to them, “will” dated 17.7.1991 was duly got executed by their father Mahima Chander in his sound disposing mind in full senses out of his free will and according to them, contesting defendants No.1 to 3 were owners in possession of the suit land. 5. Replication was filed by the plaintiff. Issues were framed by the learned Senior Sub Judge on 21.9.1998. He decreed the suit on 5.6.2000. Contesting defendants, namely, Som Dutt, Ram Chander and Upender Dutt feeling aggrieved by the judgment and decree dated 5.6.2000 preferred an appeal before the learned Additional District Judge, Sirmaur District at Nahan. He partly allowed the appeal on 15.7.2002. Hence, this Regular Second Appeal. It was admitted on the following substantial questions of law: 1. Whether in the facts and circumstances of the case DW-3 P.S. Saini, Advocate, Scribe of will dated 17.7.199 1 Ex.D­1 fulfills all legal requirements to be an attesting witness of the said will and he has thus independently proved the execution of the will? 2. Whether suit as constituted by plaintiff is maintainable in the absence of Smt. Urmila Devi daughter of Sh. Mahima Chander and learned Additional District Judge is justified in decreeing the suit without giving an opportunity to Smt. Urmila Devi.” 6. Mr. K.S. Kanwar has strenuously argued that scribe of the will DW-3 P.S. Saini fulills all the legal requirements to be an attesting witness and he has proved the will independently. He has further argued that in the absence of Smt. Urmila Devi, daughter of Mahima Chand, the suit was not maintainable. 7.Mr. Sanjeev Kuthiala has supported the judgments and decrees passed by both the courts below. 8.I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 9.The “will” is dated 17.7.1991. It is a registered document. Sh. Mahima Chander has died on 5.1.1997. Plaintiff has appeared as PW-2. 7.Mr. Sanjeev Kuthiala has supported the judgments and decrees passed by both the courts below. 8.I have heard the learned counsel for the parties and have perused the records and pleadings carefully. 9.The “will” is dated 17.7.1991. It is a registered document. Sh. Mahima Chander has died on 5.1.1997. Plaintiff has appeared as PW-2. According to him, the suit land measures 16 bighas and 13 biswas. It was owned by his father. He died on 5.1.1997. When the defendants tried to get the mutation attested in July, 1997, he came to know about the “will. According to him, the “will” is forged. His father was suffering from some serious ailment. Defendants have got the “will” executed in collusion with attesting marginal witnesses. His father was not required to execute the “will” in favour of contesting defendants excluding him and his sister from inheritance. Their father used to live with all the brothers. 10.One of the defendants, Som Dutt has appeared as DW- 1. According to him, his father was Numberdar of the area. Earlier he used to live with Upender and thereafter with him since 1974 till his death. Plaintiff was living separately from his father after his marriage for the last 40 years. Plaintiff was not taking care of his father. His father has executed the “will” on 17.7.1991. It was typed by Mr. P.S. Saini, Advocate. He has produced “will” mark ‘X’. All the members of the family knew about the execution of the “will”. 11. DW-3 P.S. Saini has scribed the “will”. According to him, it was got typed by Mahima Chander. It was typed in the presence of Swaran Singh (PW-4) and Pratap Singh Saini. According to him, the contents of Ex. D- 1 were read over to Mahima Chander. He after admitting the same to be correct put his signatures on each and every page. Thereafter, the witnesses signed the “will” and finally he signed the same. According to him, Mahima Chander was physically and mentally fit. 12.DW-4 Sawaran Singh has deposed that the “will” was got scribed from Sh. P.S. Saini. He and one Sh. Saini were the marginal witnesses. Nobody else was present. He has signed the “will” and thereafter, he left since his mother was ill. Defendants have not examined Pratap Singh Saini since he has died after the “will” was executed. 12.DW-4 Sawaran Singh has deposed that the “will” was got scribed from Sh. P.S. Saini. He and one Sh. Saini were the marginal witnesses. Nobody else was present. He has signed the “will” and thereafter, he left since his mother was ill. Defendants have not examined Pratap Singh Saini since he has died after the “will” was executed. DW-4 has not seen the testator signing the “will” in his presence nor has the testator seen him attesting the “will”. According to DW-3, he has typed the “will” at the instance of Mahima Chander in presence of DW-4 Swaran Singh and Pratap Singh Saini. He has identified the signatures of Pratap Singh Saini. According to him, the contents of “will” were read over to the testator. He after admitting the same to be correct put his signatures. Thereafter, the marginal witnesses Swaran Singh and Pratap Singh Saini have signed the “will” in the presence of testator. According to him, the “will” was got registered in the office of Registrar, Nahan. He has not deposed that the marginal witnesses have attested the “will” in presence of each other. Statement of DW-3 is contradicted by DW-4. According to DW-4, Mahima Chandeer was not present when he signed the “will”. Though according to DW-3, marginal witnesses were present at the time of attestation of the “will”. According to DW-3, Mahima Chander was physically and mentally fit. However, according to DW-4, he was suffering from paralysis. In his cross-examination, he has categorically deposed that his signatures on Ex.D- 1 were obtained by Saini and did not know what had been scribed in the “will”. DW- 1 Som Dutt has also admitted that his father was suffering from paralysis since 1992. According to Ex. D- 1, plaintiff and daughters of Mahima Chander have been left out from inheritance. There are no reasons why the plaintiff and daughters have been disinherited except the residential house has been granted to the plaintiff at a distance of 200 meters from the suit land and mutation to this effect was also attested. According to the plaintiff, his father used to live with all the brothers. Though it is projected by the defendants that relations of their father with plaintiff were not cordial. However, there is no such recital in Ex. D- 1. 13. What emerges from the evidence discussed hereinabove is that “will” dated 17.7.1991 has not been legally proved. According to the plaintiff, his father used to live with all the brothers. Though it is projected by the defendants that relations of their father with plaintiff were not cordial. However, there is no such recital in Ex. D- 1. 13. What emerges from the evidence discussed hereinabove is that “will” dated 17.7.1991 has not been legally proved. Mahima Chander had suffered paralytic attack. The “will” was required to be proved by two marginal witnesses. However, in this case, one of the marginal witnesses Pratap Singh Saini has died. DW-4 Swaran Singh has deposed, as noticed above, that testator was not present at the time when he signed the “will” though Saini was present. DW-3 P.S. Saini has scribed the “will” on the basis of instructions imparted to Mahima Chander. Mahima Chander had signed each and every page of the document. However, it has not come in his statement that marginal witnesses have seen the testator putting signatures on “will” nor it has come that the testator has seen signing the marginal witnesses on Ex.D­1 dated 17.7.1991. There are no cogent reasons assigned why the plaintiff and daughters of Mahima Chander have been left out from disinheritance. 14. Mr. K.S. Kanwar has argued that one of the sisters Nirmala Devi was a necessary party. The law is well settled that what has to be seen is whether such person is necessary to effectively adjudicate upon the question involved in the suit. It has come in the “will” Ex.DW- 1 that all the daughters of Mahima Chander were happily married. Five daughters were already on record and the interest of Urmila Devi was taken care of properly. 15. Mr. K.S. Kanwar has vehemently argued that the “will” has been duly proved by DW-3 Sh. P.S. Saini, who has scribed the “will”. He has relied upon section 71 of the Indian Evidence Act. He has relied upon Itoop Varghese versus Poulose and others, AIR 1975 Kerala 141. The Division Bench of the Kerala High Court has held that when the witnesses deliberately and falsely denied that they attested the will, the court is entitled to look into the other circumstances and the regularity of the will on the face of it and come to the conclusion on the question of attestation. The Division Bench has held as under: 5. The Division Bench has held as under: 5. But, as we have pointed out earlier, when the court is satisfied as in this case that the witnesses deliberately and falsely denied that they attested the will, the court is entitled to look into the other circumstances and the regularity of the will on the face of it and come to the conclusion on the question of attestation. The law on this point is stated thus by a Division Bench of the Calcutta High Court in Brahmadat Tewari v. Chaudan Bibi, AIR 1916 Cal 374. At page 375 the principle is stated thus:— “The principle is well settled that when the evidence of the attesting witnesses is vague, doubtful or even conflicting upon some material point, the Court may take into consideration the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with, in other words, the Court may, on consideration of the other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at fault, that their evidence is of a suspicious character or that they are wilfully misleading the Court, and accordingly disregard their testimony and pronounce in favour of the will.” Again, at page 376 it is observed thus:— “It is not necessary, however, that affirmative evidence should be forthcoming that the testator did, as a matter of fact, see the attesting witnesses put their signatures or that the attesting witnesses did actually see the testator sign the document. It is enough if the circumstances show that their relative position was such that they might have seen the execution and the attestation respectively, or as Walde, J., said In re Trimnell, 1865 II Jur (NS) 284 the true test is whether the testator might have seen, not whether he did see, the witnesses sign their names, Newton v. Clarke, (18391 2 Curt 320. In cases of this description, as was pointed out by this Court in Sibo Sundari Debi v. Hemangini Debi, 1900-4 Cal WN 204 on the authority of Wright v. Sanderson, (1884) 9 PD 149 Sanderson, In re (1884) 53 LJP 49, every presumption will be made in favour of due execution and attestation in the case of a will regular on the face of it and apparently duly executed.” Again, in Manindra Nath Ganguli v. Durga Charan Ganguli, ILR (1949) 1 Cal 471 at page 475 it is observed thus:— “The question, therefore, arises whether the probate Court is entitled to hold in favour of the will where the attesting witnesses or some of them prove hostile. In our opinion, Courts are not powerless in those circumstances and a probate Court may pronounce in favour of the validity of the will from the circumstances of the case taken as a whole. The leading decision on this point is the decision in the case of Wright v. Sanderson, 1884-9 PD 149, 163.” In the light of these weighty pronouncements with which we respectfully agree we are entitled to look into the whole circumstances of this case and pronounce on the validity of the will. The various circumstances have already been stated. We are satisfied that the circumstances of this case are sufficient to come to the conclusion that there is proof of the due compliance of the formalities required by Section 63 of the Indian Succession Act in this case.” 16.Mr. K. S. Kanwar has also relied upon Bandaru Veeramma and others versus Chirravuri Ramakrishna Sarma and others, AIR 1976 A.P. 370 . This judgment is not applicable in the present case. In this case, the attestator was declared hostile. In the instant case, DW-4 Swaran Singh was never declared hostile. 17. Mr. K.S. Kanwar has also relied upon Maria Stella and others versus T. Joseph Catherine and others, AIR 2003 Madras 270. Learned Single Judge of Madras High Court has held that in the event of non- availability of attesting witness or his inability to recollect facts, propounder can prove execution by any other secondary evidence.This judgment is also distinguishable. In the present case, marginal witness DW-4 Swaran Singh was available. Learned Single Judge of Madras High Court has held that in the event of non- availability of attesting witness or his inability to recollect facts, propounder can prove execution by any other secondary evidence.This judgment is also distinguishable. In the present case, marginal witness DW-4 Swaran Singh was available. In the judgment cited hereinabove, testatrix has admitted signatures in presence of witness and witness has also deposed that he had signed as identifying witness and that testatrix was in sound disposing state of mind. In the instant case, the witness has deposed that the testator had suffered from paralytic attack and when he signed the documents, he was not present at that time. 18. He has also relied upon Janki Narayan Bhoir versus Narayan Namdeo Kadam, AIR 2003 SC 761 . In this case, their Lordships of the Hon’ble Supreme Court have held that requirement of attestation by two or more witnesses is mandatory and the same is required to be proved as required by section 63 (c) of Succession Act. Their Lordships have further held that if one attesting witness if able to prove execution i.e. if satisfies requirement of attestation of will by other witness also, examination of other attesting witness can be dispensed with. However, in the case in and, only attesting witness DW-4 Swaran Singh has failed to prove the due execution of “will” as per section 63 (c) of Succession Act. 19.He has further relied upon Ram Lal and another versus Mohinder Singh and others, AIR 2005 Punjab and Harayana 49. In this case, one of the attesting witnesses was not in a position to speak well and other witness had mixed up with the opposite party. However, the scribe of the “will” assuming the roll of attesting witness and stating that he had scribed will under instructions of deceased who had thumb-marked will in presence of attesting witnesses who had also signed in presence of deceased, execution of will was duly proved. In the case in hand, it has not come that the attesting witnesses have seen the testator signing the “will”. 20. Mr. Sanjeev Kuthiala has submitted that section 71 of the Indian Evidence Act can be pressed into service when the attesting witness, who has failed to prove the execution or denied the execution of document. In the case in hand, it has not come that the attesting witnesses have seen the testator signing the “will”. 20. Mr. Sanjeev Kuthiala has submitted that section 71 of the Indian Evidence Act can be pressed into service when the attesting witness, who has failed to prove the execution or denied the execution of document. In the instant case, DW-4 Swaran Singh has not denied or did not have the recollection about the execution of the document. He has stated that he has signed the “will”, but executant was not present. 21. Learned Single Judge of Orissa High Court in Harish Chandra Sahu and another versus Basant Kumar Sahu and others, AIR 1974 Orissa 170 has held that when the only living attesting witness omits to testify as to attestation, the omission cannot be cured with the evidence of other witnesses like the beneficiary under the will and the scribe. Learned Single Judge has further held that section 71 of the Evidence Act permitting other evidence on execution is no help in such a situation and the “will” then is not properly proved. Learned Single Judge has held as under: “5. The judgment in this case, however, need not rest on the above conclusions because even assuming that the Will is genuine its execution has not been properly proved. Section 63 of the Indian Succession Act requires proof of three things, mentioned in Sub-clauses (a), (b) and (c) of that section before it can be said that a Will has been duly executed. The first is that the testator has to sign or affix his marks to the Will or it has got to be signed by some other person in his presence and by his direction. The first is that the testator has to sign or affix his marks to the Will or it has got to be signed by some other person in his presence and by his direction. The second is that the signature or mark of the testator, or the signature of the person signing for him, has to appear at a place from which it would appear that by that mark or signature the document was intended to have effect as a Will and the third which is the most important and with which we are concerned in this appeal, is that the Will has to be attested, by two or more witnesses and each of these witnesses must have seen the testator sign or affix his marks to the Will, or must have seen some other person signing the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses has to sign the Will in the presence of the testator.Section 68 of the Indian Evidence Act provides that 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 Section 68 makes an important concession to those who wish to prove and establish a Will in a Court of law. Although the Indian Succession Act requires that a Will has to be attested by two witnesses, Section 68 of the Evidence Act permits the execution of the Will to be proved by only one attesting witness being called. But that attesting witness must be in a position to prove the execution of the Will. 6. In this case, of the two attesting witnesses, one was admittedly dead by the time this case came up for trial and the other, attesting witness was examined as P. W. 1. His evidence regarding execution of the Will may be quoted : “I knew Krushnamoni Sahu. She executed a Will which I know. That Will was scribed by Mahendra Prasad Das under the instruction of Krushnamoni Sahu. His evidence regarding execution of the Will may be quoted : “I knew Krushnamoni Sahu. She executed a Will which I know. That Will was scribed by Mahendra Prasad Das under the instruction of Krushnamoni Sahu. After the Will wvas scribed, the contents of it were read over and explained to the executant and she executed the Will by putting her thumb mark. I and late Motilal Bardhan were present, when the Will was scribed and executed. Ext. 1 is the said Will and Ext. 1/a and Ext. 1/b are the signatures of attesting witnesses viz; myself and Dr. Motilal Bardhan.” The execution of the Will does not merely mean the signing of it by the testatrix or putting her thumb impression on the document, but it means all the formalities required and laid down by Section 63 of the Indian Succession Act. Although P. W. 1 has not specifically stated as required by Section 63 that he and the other attesting witness had seen Krushnamoni putting her thumb mark on Ex. 1, his statement that he and the other attesting witness were present when Krushnamoni executed the Will by putting her thumb mark may be construed to mean that both of them saw her putting the thumb mark. But P. W. 1 has nowhere said that each of them had signed the Will in the presence of the testator. This is a very serious lacuna in the evidence of the only attesting witness that was examined in this case. Doubtless this omission has been supplied by P. W. 2 (appellant No. 1) and P. W. 3 (the scribe of Ext. 1) P. W. 2 has deposed: “After the Will was scribed, it was read over and explained to the executant and the executant put thumb marks on it, Motilal Bardhan, Bikram Mishra have seen Krushnamoni. executing the Will produced by me. The witnesses signed it in presence of executant who put her thumb mark in their presence.” P. W. 3 the scribe has deposed— “I wrote the will in presence of witnesses and the executant and after it, I read it over and explained the contents of the same to her and then she put her thumb mark, on the will in due execution of the deed. Dr. Motilal Bardhan and Bikram Mishra attested the Will there in presence of the executant.” It is argued by Mr. Dr. Motilal Bardhan and Bikram Mishra attested the Will there in presence of the executant.” It is argued by Mr. L. K. Dasgupta ap-pearing for the appellants that the evidence of appellant No. 1 and the scribe can supplement the evidence given by the attesting witness, and the evidence of the three wit-nesses read together proves the due execution of the Will. Tn support of this contention he has relied on Section 71 of the Evidence Act. That section provides that if the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence. This is a sort of safeguard introduced by the Legislature to the mandatory provisions of Section 68 where it is not possible to prove execution of the Will by calling the attesting witnesses though alive. Section 71 can be availed of only when the attesting witnesses who have been called failed to prove execution of the Will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. It has no application when an attesting witness fails to prove the execution of the Will. The difficulty with the evidence of P. W. 1 is that he spoke only about a part of the execution of the document and failed to depose about all the other formalities which go to constitute the execution of the Will. I am unable to accept the contention of Mr. Dasgupta and he has cited no authority in support of his submission that where the attesting witness who has been called does not succeed in speaking to all the ingredients which go to make the due execution of the Will, his evidence can be supplemented by the evidence of other witnesses who are not attesting witnesses. The whole principle underlying Section 68 of the Evidence Act is that the execution of the Will must be proved by at least one attesting witness; that it is only an attesting witness who is entitled to prove execution of the Will. It is a con-cession which the Legislature has made and if that concession does not result in complying with the mandatory requirements of Section 68, then the only proper method is to-call the other attesting witness, if he is available. It is a con-cession which the Legislature has made and if that concession does not result in complying with the mandatory requirements of Section 68, then the only proper method is to-call the other attesting witness, if he is available. The position would have been different if none of the attesting witnesses was available. Provision for such a contingency is made in Section 69 of the Evidence Act which says that if no such attesting witness can be found, execution of the document can be proved by leading evidence to show that attestation by one attesting witness is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person. 7. Mr. Dasgupta drew my attention to a decision of the Supreme Court in Naresh Charan v. Paresh Charan. AIR 1955 SC 363 . In that case, the two attesting witnesses stated in examination-in-chief that the testator signed the Will in their presence and that they attested his signature. They did not add that they signed the Will in presence of the testator. It was contended that in the absence of such evidence it must be held that there was no due attestation. Rejecting this contention their Lordships held that it cannot be laid down as a matter of law that because the witnesses did not state in examination-in­chief that they signed the Will in the presence of the testator, there was no due attestation. It will depend upon the circumstances elicited in the evidence whether the attesting witnesses signed in presence of the testator. It would however be noticed that although the attesting witnesses in that case did not specifically say that they signed the Will in presence of the testator, they did say that they attested his signature. But in the present case, the sole attestor P. W. 1 did not even say that he and the other attesting witness had attested the document. His evidence, as already pointed out, only goes to this extent that he and the other attestor were present when Krushnamoni put her thumb mark in the Will. The facts of this case therefore are distinguishable from the Supreme Court case referred to above.” 22. His evidence, as already pointed out, only goes to this extent that he and the other attestor were present when Krushnamoni put her thumb mark in the Will. The facts of this case therefore are distinguishable from the Supreme Court case referred to above.” 22. Their Lordships of the Hon’ble Supreme Court in Janki Narayan Bhoir versus Narayan Namdeo Kadam, (2003) 2 SCC 91 have held that attestation of “will” by two or more witnesses is mandatory. Their Lordships have further held that one of the two attesting witnesses can be examined even though the other is available, but he must prove due execution of the will as required under section 63 (c) of Succession Act, i.e. attestation by him as well as by the other witness in the manner contemplated therein. Their Lordships have further held that section 71 of Evidence Act will not apply where out of two available attesting witnesses to a will, only one is examined but he fails to prove due execution of the will as required under section 63 (c) of Succession Act and thus will is not proved as per section 68. Their Lordships have further held that the scribe of a will cannot be treated as an attesting witness. Their Lordships have held as under: “9. It is thus clear that one of the requirements of due execution of Will is its attestation by two or more witnesses which is mandatory. 10. 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, and subject to the process of the court and capable of giving an 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. 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 appear 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 Evidence Act does not say that both or all the attesting witnesses must be examined. But at least one attesting witness has to be 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 what to prove and establish a Will in a court of law by examining at least one attesting witness even though 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 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 therein, the examination of the attesting witness can be dispensed with. 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 therein, the examination of the 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 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. 11. Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of section 68, Evidence Act, to meet a situation where it is not possible to prove the execution of the Will by calling 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 the reasons best known, have not been summoned before the court. 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 the 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. Yet, another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the Will is to avert the claim of drawing adverse inference under section 114 illustration (g) of Evidence Act. Placing the best possible evidence, in the given circumstances, before the court for consideration, is one of the cardinal principles of Indian Evidence Act. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But section 68 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by ‘other evidence’ as well. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility cannot be let down without any other means of proving due execution by ‘other evidence’ as well. At the same time section 71 cannot be read so as to absolve a party of his obligation under section 68 read with section 63 of the Act and liberally allow him, at his Will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go bye to the mandate of law relating to proof of execution of a Will. 12. Turning to the facts of the case on hand, it is evident that only one attesting witness Prabhakar Sinkar, examined in the case, did not prove the execution of the Will inasmuch as he did not prove the attestation of the Will by the other attesting witness Wagle who though available was not examined. The scribe examined in the case was not an attesting witness, which is dear from the evidence on record and as rightly conceded so by learned counsel for the respondent before us. Hence, it is unnecessary to go into the question whether the scribe in this case could or could not be an attesting witness. The evidence of Sinkar, the only attesting witness, does not satisfy the mandatory requirements of section 68 of the Evidence Act. We are not in a position to accept the contention urged on behalf of the respondent that the evidence of other witnesses, namely, that of the respondent and the scribe could be considered under section 71 of the Evidence Act. Section 71 has no application when the one attesting witness, who alone has been summoned, has failed to prove the execution of the Will and other attesting witness though available has not been examinad. When the document is not proved as mandatory required under section 68 of the Evidence Act, the provision of section 71 of the Evidence Act, which is permissive, and enabling in certain circumstances as discussed above does not help the respondent. In Vishnu Ramkrishna & Ore. When the document is not proved as mandatory required under section 68 of the Evidence Act, the provision of section 71 of the Evidence Act, which is permissive, and enabling in certain circumstances as discussed above does not help the respondent. In Vishnu Ramkrishna & Ore. v. Nathu Vithal & Ore., Chagla, C.J., speaking for the division bench in similar circumstances has stated that although section 63 of the Succession Act requires that a Will has to be attested by two witnesses, section 68 of the Evidence Act permits the execution of the Will to be proved by only one attesting witness being called. Where the attesting witness, who is called to prove the execution, is not in a position to prove the attestation of the Will by the second witness, the evidence of the witness called falls short to the mandatory requirements of section 68. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the Will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. This section has no application when one attesting witness has failed to prove the execution of the Will and other attesting witnesses were available who could prove the execution if they were called. 14. In the case on hand it was not established that the two witnesses attested the Will. The High Court committed a serous error in reversing the judgment and decree of the first appellate court on a finding of fact, which was based on proper and objective appreciation of evidence. The High Court was also wrong in treating the scribe of the Will, Raikar, as an attesting witness without any basis. Further, the High Court while reversing the judgment and decree of the first appellate court did not indicate as to any substantial question of law that arose for consideration between the parties to deprive the suit properties to the only daughter of deceased Honaji Dama Kadam.” 23. Further, the High Court while reversing the judgment and decree of the first appellate court did not indicate as to any substantial question of law that arose for consideration between the parties to deprive the suit properties to the only daughter of deceased Honaji Dama Kadam.” 23. Similarly, their Lordships of the Hon’ble Supreme Court in Benga Behera and another versus Braja Kishore Nanda and others, (2007) 9 SCC 728 have held that section 71 of Evidence Act 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 available to prove the execution of the same, have not been summoned before the court. Their Lordships have further held that 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. Their Lordships have held as under: “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. 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. 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. 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 Succes sion 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_” (Emphasis supplied). 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. 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 ).” 24. According to Mr. K.S. Kanwar since the “will” is registered, the same would be deemed to have been validly executed. The “will” is required to be proved in accordance with mandatory provisions of Indian Evidence Act and Succession Act. Mere registration of the “will” will not make it valid. Their Lordships of the Hon’ble Supreme Court in the same judgment [ (2007) 9 SCC 728 ] have held that in view of sections 52 and 58 of the Registration Act, 1908, the only duty cast on the registering authority to endorse the will is to endorse the admission or execution by the person who presented the document for registration and nothing else. 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. Their Lordships have further held that 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 executant. Their Lordships have held as under: “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 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.” 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.” 25. In the case in hand, DW-3 P.S. Saini has not deposed that the witnesses have seen the testator signing the “will” and they have signed the “will” in presence of the testator. 26.Their Lordships of the Hon’ble Supreme Court in S.R. Srinivasa and others versus S. Padmavathamma, (2010) 5 SCC 274 have held that examination of scribe of will, who had not signed the will with intention to attest was not sufficient to satisfy the statutory requirement of examination of at least one attesting witness for proving the “will”. Their Lordships have held as under: “38. In the case of H. Venkatachala Iyengar v. B.N. Thimmajamma, [1959 Supp (1) SCR 426] Gajendragadkar J. stated the true legal position in the matter of proof of Wills. The aforesaid statement of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [ (1977) 1 SCC 369 ] as follows: “1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. The aforesaid statement of law was further clarified by Chandrachud J. in the case of Jaswant Kaur v Amrit Kaur [ (1977) 1 SCC 369 ] as follows: “1. Stated generally, a will has to be proved like any other document, the test to be applied being the usual test of the satisfaction of the prudent mind in such matters. As in the case of proof of other documents, so in the case of proof of wills, one cannot insist on proof with mathematical certainty. 2. Since Section 63 of the Succession Act requires a will to be attested, it cannot be used as evidence until, as required by Section 68 of the Evidence Act, 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. 3. Unlike other documents, the will speaks from the death of the testator and therefore the maker of the will is never available for deposing as to the circumstances in which the will came to be executed. This aspect introduces an element of solemnity in the decision of the question whether the document propounded is proved to be the last will and testament of the testator. Normally, the onus which lies on the propounder can be taken to be discharged on proof of the essential facts which go into the making of the will. 4. Cases in which the execution of the will is surrounded by suspicious circumstances stand on a different footing. A shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit and such other circumstances raise suspicion about the execution of the will. That suspicion cannot be removed by the mere assertion of the propounder that the will bears the signature of the testator or that the testator was in a sound and disposing state of mind and memory at the time when the will was made, or that those like the wife and children of the testator who would normally receive their due share in his estate were disinherited because the testator might have had his own reasons for excluding them. The presence of suspicious circumstances makes the initial onus heavier and therefore, in cases where the circumstances attendant upon the execution of the will excite the suspicion of the court, the propounder must remove all legitimate suspicions before the document can be accepted as the last will of the testator. 5. It is in connection with wills, the execution of which is surrounded by suspicious circumstances that the test of satisfaction of the judicial conscience has been evolved. That test emphasises that in determining the question as to whether an instrument produced before the court is the last will of the testator, the court is called upon to decide a solemn question and by reason of suspicious circumstances the court has to be satisfied fully that the will has been validly executed by the testator. 6. If a caveator alleges fraud, undue influence, coercion etc. in regard to the execution of the will, such pleas have to be proved by him, but even in the absence of such pleas, the very circumstances surrounding the execution of the will may raise a doubt as to whether the testator was acting of his own free will. And then it is a part of the initial onus of the propounder to remove all reasonable doubts in the matter.” Applying the aforesaid principles to this case, it would become evident that the Will has not been duly proved. 39. As noticed earlier in this case, none of the attesting witnesses have been examined. The scribe, who was examined as DW.2, has not stated that he had signed the Will with the intention to attest. In his evidence, he has merely stated that he was the scribe of the Will. He even admitted that he could not remember the names of the witnesses to the Will. In such circumstances, the observations made by this Court in the case of M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons, [ (1969) 1 SCC 573 ], become relevant. Considering the question as to whether a scribe could also be an attesting witness, it is observed as follows: “It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. Considering the question as to whether a scribe could also be an attesting witness, it is observed as follows: “It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.” 41. The aforesaid observations are fully applicable in this case. Admittedly, none of the attesting witnesses have been examined. Here signature of the scribe cannot be taken as proof of attestation. Therefore, it becomes evident that the execution of a Will can be held to have been proved when the statutory requirements for proving the Will are satisfied. The High Court has however held that proof of the Will was not necessary as the execution of the Will has been admitted in the pleadings in O.S.No.233 of 1998, and in the evidence of P.W.1. 27.In the present case also, it is nowhere stated by DW-3 P.S. Saini that he has sign the “will” with intent to attest the same. 28.Accordingly, in view of the observations and analysis made hereinabove, there is no question of law much less to say substantial question of law involved in the Regular Second Appeal and the same is dismissed. Pending application(s), if any, also stands disposed of. There shall, however, be no order as to costs.