Research › Search › Judgment

Madhya Pradesh High Court · body

2014 DIGILAW 170 (MP)

Ram Gopal Sharma v. Munni Devi

2014-02-10

M.K.MUDGAL

body2014
ORDER 1. The appellant-plaintiff has filed this appeal under section 100 of the Code of Civil Procedure being aggrieved by the judgment and decree dated 7.12.2013 passed by the Court of ADJ, Ambah District Morena in Civil Appeal No.5-A of 2009, confirming the judgment and decree dated 21.1.2009 passed by the Court of Civil Judge, Class I, Ambah District Morena in Civil Suit No.36-A of 2006 whereby, the suit filed by the plaintiff for declaration of title and permanent injunction was dismissed holding that the plaintiff has failed to prove the execution of the Will (Ex.P-1) as per section 68 of the Evidence Act, therefore, no right has been acquired by him in the property left by Ram Narayan. In this appeal, the appellant is referred to as “plaintiff” and the respondents as “defendants”. 2. The admitted facts of the case are that the land in disputed situated in village Kamtari Tahsil Ambah District Morena was of the ownership and in possession of Ramnarayan s/o Prabhudayal. He was the father of defendant No.1 and husband of defendant No.2 and died on 10.6.2006. 3. The facts in brief of the plaint are that the 1/2 part of the land in dispute bearing Khasra No.1620 area 0.26 Aare, 1627 area 0.43 Aare, 1635 area 0.44 Aare, 1638 area 0.45 Aare, 2191 area 0.27 Aare and 2992 area 0.26 Aare situated in village Kamtari (hereinafter would be referred to as “disputed land”) was owned and possessed by Ramnarayan who died on 21.5.2005. During his life time, said Ramnarayan executed a notarized Will in favour of the plaintiff on 21.4.2005 within the knowledge of the defendants and declared him his legal heir after his death. But the defendants No1 and 2 after death of Ramnarayan got the disputed land mutated in her name in the Khasra record on the basis of a Will dated 24.11.2003. The said mutation was challenged by the plaintiff before SDO by filing appeal which is still pending. Now, in the garb of the said mutation, the defendants are trying to sell the disputed land left by the deceased and wanted to dispossess the plaintiff. Hence, the plaintiff filed a suit against the defendants for declaration of title to the disputed land, issuing injunction for restraining the defendants from alienating the disputed land and interfering in the peaceful possession of the plaintiff. 4. Hence, the plaintiff filed a suit against the defendants for declaration of title to the disputed land, issuing injunction for restraining the defendants from alienating the disputed land and interfering in the peaceful possession of the plaintiff. 4. The defendants No.1 and 2 by filing the joint written statement denied the plaint averments stating that deceased Ramnarayan executed a Will dated 30.11.2003 in favour of the defendant No.1. On the basis of the said Will, the disputed land was got mutated in the name of defendant No.1 by the Revenue Courts. The plaintiff himself admitted the defendant Munni Devi to be legal heir in a Case No.13 of 2004 before Tahsildar. After death of Ramnarayan, the defendant No.1 is in possession of the land and has been getting it cultivated. The plaintiff was never in possession of the disputed property and being son of the brother of the deceased, wanted to grab the land left by him in the garb of the forged Will which was never executed in his favour. On the contrary, during his life time, the deceased himself executed a Will dated 24.11.2003 in favour of the defendant No.1 being his sole legal heir and since the suit filed by the plaintiff was based on the wrong facts, hence, it was prayed that the suit be dismissed. 5. After framing of the eight issues, recording evidence of both the parties and having considered the recorded evidence, the learned trial Court dismissed the suit of the plaintiff against the defendants as stated above. 6. Being aggrieved by the judgment and decree passed by learned trial Court, the plaintiff filed an appeal before the first appellate Court which was also dismissed. Hence, this second appeal has been filed as stated herein above. 7. Heard learned counsel for the appellant and perused the record. 8. The learned counsel for the appellant submits that the evidence produced on record by the plaintiff has not been considered properly by both the Courts below and they have committed an error in dismissing the suit. The counsel further put forth that the Will Ex.P-1 has been successfully proved bythe plaintiff by his witnesses, however, it was rejected by both the Courts without proper consideration of the evidence. The counsel further put forth that the Will Ex.P-1 has been successfully proved bythe plaintiff by his witnesses, however, it was rejected by both the Courts without proper consideration of the evidence. The learned counsel has emphatically stressed on the statement of the witness Suresh Singh Tomar (PW4) who had drafted the said Will and proved the signature of the executant Ram Narayan Sharma but in spite of that both the learned Courts have committed an error in admitting his evidence as attesting witness of the Ex.P-1. 9. Arguments were considered. The appellant-plaintiff filed the suit for declaration of title, possession and permanent injunction of the disputed land on the basis of the Will Ex.P-1 which was allegedly executed by the deceased Ram Narayan in his favour. On perusal of the said Ex.P-1, it is evident that the Ex.P-1 was drafted by Suresh Singh Tomar (PW4) and was signed by two witnesses namely Jagdish Singh and Ramsevak Singh. Admittedly both the aforesaid witnesses were not examined to prove the signature of the executant. It is clear from the perusal of both the judgments of the Courts below that the said witnesses are neither dead nor available for recording their statement. 10. As per section 63 of the Indian Succession Act and section 68 of Evidence Act, a Will ought to have been proved by at least by one attesting witness. The definition of attestation has been given under section 3 of Transfer of Property Act. A scribe or a drafter cannot be deemed as attesting witness of a Will. In the judgment of the case of N. Kamalam (dead) and other v. Ayyaswami and others [ AIR 2001 SC 2802 ], the Hon’ble Supreme Court has held as under : “26. The effect of subscribing a signature on the part of the scribe cannot in our view be identified to be of same status as that of the attesting witnesses. The signature of the attesting witness as noticed above on a document, required attestation (admittedly in the case of a Will the same is required), is a requirement of the status thus cannot be equated with that of the scribe. The Full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons v. Rahilna Bi [ AIR 1962 Mad. The Full Bench judgment of the Madras High Court in H. Venkata Sastri and Sons v. Rahilna Bi [ AIR 1962 Mad. 111 ], wherein Ramchandra Iyer, J. speaking for the Full Bench in his inimitable style and upon reliance on Lord Cambell’s observation in Burdett v. Spilsbory [1842-43 (10) Cl and F 340 : 59 RR 105], has the following to state pertaining to the meaning to be attributed to the word ‘attestation’ (paras 3 and 4 of AIR) : “.... The definition of the term “attested” which is almost identical with that contained in section 63(c) of the Indian Succession Act, has been the result of an amendment introduced by Act 27 of 1926. Prior to that amendment it was held by this Court that the word ‘attested’ was used only in the narrow sense of the attesting witness being present at the time of execution. In Shamu Pattar v. Abdul Kadir [(1912) ILR 35 Mad. 607 (PC)], the Privy Council accepted the view of this Court that attestation of mortgage deed must be made by the witnesses signing his name after seeing the actual execution of the deed and that a mere acknowledgment of his signature by the executant to the attesting witness would not be sufficient. The amending Act 27 of 1926 modified the definition of the term in the Transfer of Property Act so as to make a person who merely obtains an acknowledgment of execution and affixed his signature to the document as a witness, an attestor. It will be noticed that although section 3 purports to define the word “attested” it has not really done so. The effect of the definition is only to give an extended meaning of the term for the purpose of the Act; the word ‘attest’ is used as a part of the definition itself. It is, therefore, necessary first to ascertain the meaning of the word “attest” independent of the statute and adopt it in the light of the extended or qualified meaning given therein. The word “attest” means according to the Shorter Oxford Dictionary “to bear witness to, to affirm the truth or genuineness of, testify, certify”. In Burdet v. Spilsbury [(1842-43)10 Cl and F 340 Lord Cambell observed at page 417], “What is the meaning of an attesting witness to a deed? The word “attest” means according to the Shorter Oxford Dictionary “to bear witness to, to affirm the truth or genuineness of, testify, certify”. In Burdet v. Spilsbury [(1842-43)10 Cl and F 340 Lord Cambell observed at page 417], “What is the meaning of an attesting witness to a deed? Why, it is, a witness who has seen the deed executed, and who signs it as a witness.” The Lord Chancellor stated, “the party who sees the Will executed is in fact a witness to it, if he subscribes as a witness, he is then an attesting witness.” The ordinary meaning of the word would show that an attesting witness should be present and see the document signed by the executant, as he could then alone vouch for the execution of the document. In other words, the attesting witness must see the execution and sign. Further, attestation being an act of a witness, i.e., to testify to the genuineness of the signature of the executant, it is obvious that he should have the necessary intention to vouch it. The ordinary meaning of the word is thus in conformity with the definition thereof under the Transfer of Property Act before it was amended by Act 27 of 1926. Before the amendment, admission of execution by the executant to a witness who thereupon puts his signature cannot make him an attestor properly so called, as he not being present at the execution, cannot bear witness to it; a mere mental satisfaction that the deed was executed cannot mean that he bore witness to execution. (4) After the amendment of section 3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received from the executant a personal, acknowledgment of his signature, mark, etc. (4) After the amendment of section 3 by Act 27 of 1926, a person can be said to have validly attested an instrument, if he has actually seen the executant sign, and in a case where he had not personally witnessed execution, if he has received from the executant a personal, acknowledgment of his signature, mark, etc. Thus of the two significant requirements of the term “attest”, namely (1) that the attestor should witness the execution, which implies his presence, then, and (2) he should certify or vouch for the execution by subscribing his name as a witness; which implies a consciousness and an intention to attest, the Amending Act modified only the first, the result is that a person can be an attesting witness, even if he had not witnessed the actual execution, by merely receiving personal acknowledgment from the executant of having executed the document and putting his signature. But the amendment did not affect in any way the necessity for the latter requirement, namely, certifying execution which implies that the attesting witness had the animus to attest.” 27. It was next contended that in the event of there being an intent to attest, that itself should be sufficient compliance of the requirement of law. While the introduction of the concept of animus to attest cannot be doubted in any way whatsoever and also do feel it relevant in the matter of proof of a document requiring attestation by relevant statutes but the same is dependant on the fact situation. The learned Judge as noticed above has himself recorded that two significant requirements of the term ‘attest’ viz., that the attestor should witness the execution thereby thus implying his presence on the occasion and secondly that he should certify for execution by subscribing his name as a witness which implies consciousness and intention to attest. Unfortunately, however, the factual score presently available does not put depict otherwise. The scribe’s presence cannot be doubted but the issue is not what it is being said to be in support of the appeal that the scribe having subscribed his signature, question of further attestation would not arise -- this issue unfortunately we are not in a position to lend concurrence with. The Will as produced, records the following at page 4 thereof (page 106 of the P. Book) : “Witnesses L.T.I. of Masanae Gowder 1. The Will as produced, records the following at page 4 thereof (page 106 of the P. Book) : “Witnesses L.T.I. of Masanae Gowder 1. (Sd/- T. Subbiya s/o Verai Gowder) 25-298, Thomas Street Coimbatore. 2. (Sd/- B. Govindaraju s/o S. Balagurumurthy), Chettiar, 25/250, Rangai Gowder Street, Coimbatore. Sd/- Arunachalam” The animus to attest, thus, is not available so far as the scribe is concerned. He is not a witness to the Will put a mere writer of the Will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the Court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be proof of due attestation unless the situation is so expressed in the document itself. This is again however not the situation existing presently in the matter under consideration. Some grievance was made before this Court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available.” The same view has been held by the Hon’ble apex Court in the case of Janki Narayan Bhoi v. Narayan Namdev Kadam [2003(I) MPWN 130=(2003)03 SCC 91], as under : “8. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available.” The same view has been held by the Hon’ble apex Court in the case of Janki Narayan Bhoi v. Narayan Namdev Kadam [2003(I) MPWN 130=(2003)03 SCC 91], as under : “8. To say a Will has been duly executed the requirements mentioned in clauses (a), (b) and (c) of section 63 of the Succession Act are to be complied with i.e. (a) the testator has to sign or affix his mark to the Will, or it has got to be signed by some other person in his presence and by his direction; (b) that the signature or mark of the testator, or the signature of the person signing at his direction, has to appear at a place from which it could appear that by that mark or signature the document is intended to have effect as a Will; (c) the most important point with which we Aare presently 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 mark to the Will, or must have seen some other person sign the Will in the presence and by the direction of the testator, or must have received from the testator a personal acknowledgment of signature of 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. 9. It is thus clear that one of the requirements of due execution of a 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 evidence. 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 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 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 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. 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 therein, 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 supplied) 11. It is evident from the judgment of the learned trial Court that the evidence produced by the plaintiff regarding Ex.P-1 has been elaborately discussed in paras 11 to 17 and it has been concluded that the execution of the Will Ex.P-1 was not proved by the plaintiff as per section 63 of Indian Succession Act and section 68 of the Evidence Act. The learned appellate Court after having appreciated the evidence has rightly concluded that the findings recorded by the learned trial Court are absolutely justified. The findings of both the Courts are reliable as the plaintiff has failed to produce any attesting witness to have proved the execution of the Ex.P-1 as discussed and held by the Hon’ble Supreme Court in the judgments cited above. The findings of both the Courts are reliable as the plaintiff has failed to produce any attesting witness to have proved the execution of the Ex.P-1 as discussed and held by the Hon’ble Supreme Court in the judgments cited above. Since the findings of both the Courts are concurrent no flaw has been found to interfere in them and no substantial question of law crops up for admission in this appeal. Hence, it is concluded that the appeal being meritless deserves to be dismissed. 12. The application I.A. No.625 of 2014 under Order 16 rule 1 of CPC for permission to call the attesting witnesses of the Will is also meritless as aforesaid prayer was neither made before the trial Court nor before the appellate Court. Hence, this application cannot be accepted in this second appeal. Therefore, the said application is also dismissed. 13. Thus, the appeal being meritless and devoid of substance, is hereby dismissed. 14. No order as to the costs. Let the decree be drawn up accordingly.