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2017 DIGILAW 410 (MP)

Harinarayan v. Kusum Gupta

2017-03-27

VIJAY KUMAR SHUKLA

body2017
ORDER : Vijay Kumar Shukla, J. This is a petition filed under Article 227 of the Constitution of India, challenging the legality and validity of the orders dated 20-01-2016 and 26-04-2016, passed by Second Civil Judge Class-I, Chindwara, in Civil Suit No.5-A/2014. 2. Succinctly the facts stated in nutshell are that the petitioners filed a civil suit for declaration of title and permanent injunction against the respondents submitting that in oral partition, the suit land and the other properties were allotted to late Smt. Leela Devi and respondent no.1. Late Smt. Leela Devi had adopted his nephew i.e. respondent no.1 and executed a will bequeathing her share in the joint property. After her death, petitioner no.1 and respondent nos. 1 and 2 had orally partitioned the joint properties and the suit land and one plot was allotted to him. He obtained the vacant possession of the suit land and the plot. His name is also recorded in the revenue records and he was in continuous possession as cultivating the suit land till he handed over the vacant possession to the second petitioner in the month of March, 2013 in pursuance of the transfer of the suit land to her through registered sale deed dated 01-12-2012. 3. The petitioners filed an application for permitting them to lead secondary evidence which was allowed by the trial court by order dated 12-03-2015. Respondent nos. 1 and 2 challenged the said order in W.P.No.5939/2015. The said petition was disposed of on 27-08-2015 permitting the petitioners to lead secondary evidence and it was observed that respondent nos. 1 and 2 shall be at liberty to raise all the objections at the time of final adjudication in regard to the admissibility of the photographs as secondary evidence. 4. Shri Balaji Devre (PW-2) is one of the attesting witness of the will (Ex.P1) and second attesting witness Late Shivkumar Gupta is dead. Shri Balaji Devre (PW-2) filed his affidavit in view of his examination in chief. On 04-11- 2015 in his additional statement, he has stated on oath that Late Smt. Leelabai had executed the will (Ex.P-1) and the signatures were duly marked by her but the said witness was not permitted by the trial court to prove the thumb impression of late Smt. Leelabai on the will (Ex.P-1) on the objections of respondent nos. On 04-11- 2015 in his additional statement, he has stated on oath that Late Smt. Leelabai had executed the will (Ex.P-1) and the signatures were duly marked by her but the said witness was not permitted by the trial court to prove the thumb impression of late Smt. Leelabai on the will (Ex.P-1) on the objections of respondent nos. 1 and 2, on the ground that the said witness had already stated in his affidavit that late Smt. Leelabai had affixed her thumb impression on the will (Ex.P-1). On 30-11-2015, the petitioners filed an application (I.A.No.8) before the trial court for recalling of the order dated 04-11-2015 and to permit Balaji Devre to identity the thump impression of late Smt. Leelabai on the will (Ex.P-1) and to mark it, but the trial court erroneously dismissed it. The challenge to the other order dated 26-04-2016 by which another objection of the respondents has been allowed as on 26-04- 2016 during the additional oral examination-in-chief of petitioner no.1, the trial court on the objection of the respondents did not permit the petitioner to state the name of the photographer and about the non availability of the negatives which were in custody of the said photographer, who had closed his business and left Chhindwara for an unknown place. In the backdrop of these facts challenge has been made to the orders impugned. 5. Per contra, learned counsel for the respondents submitted that there is no illegality in the order impugned while accepting the objections of the respondents. In regard to the first objection, he submitted that the attesting witness cannot be allowed to identify thumb impression of the testator, thumb impression can only be identified and proved by the expert and not by attesting witness. He further submits that since there was no pleading in respect of the name of the photographer and therefore, the trial court had rightly sustained his objection that the petitioner cannot be permitted to name the photographer in his deposition. 6. Having considered the rival submission of the parties and record first, I would like to consider the first objection of the petitioner regarding identification of the thumb mark by attesting witness. 6. Having considered the rival submission of the parties and record first, I would like to consider the first objection of the petitioner regarding identification of the thumb mark by attesting witness. It is submitted by the learned counsel for the petitioner to prove the execution of a will with reference to the provisions of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act, it is necessary for him to examine attesting witness to prove the execution of a will. It is apposite to refer the provisions of Section 63 of the Indian Succession Act, 1925 and Section 68 of the Indian Evidence Act which are reproduced as under : "Section 63 of the Indian Succession Act: "Execution of unprivileged wills: Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules :- (a) The testator shall sign or shall affix his mark to the will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment 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." "Section 68 of the Evidence Act. "68. "68. 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: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied." It is evident that in cases where the document sought to be proved is required by law to be attested, the same cannot let be in evidence unless at least one of the attesting witnesses has been called for the purpose of proving the attestation, if any such attesting witness is alive and capable of giving evidence and is subject to the process of the Court." From a conjoint reading of the two provisions extracted about, it is evident that a will is required to be attested by two or more witnesses each of whom has seen the testator signing or affixing his mark on the will or has seen some other person signing the will in presence and by the direction of the testator or has received from the testator a personal acknowledgment of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the will in the presence of this testator. 7. It is condign to survey the legal authority on this point at this stage. In the case of Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others, 2009(4) SCC 780 , the Apex Court had on occasion to consider the provisions of Section 63 of the Indian Succession Act read with Section 68 of Indian Evidence Act and held as under : "6. In the case of Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh and others, 2009(4) SCC 780 , the Apex Court had on occasion to consider the provisions of Section 63 of the Indian Succession Act read with Section 68 of Indian Evidence Act and held as under : "6. As per provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the testator should sign or affix his mark to the Will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3) the Will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in presence of the testator. 7. The attestation of the Will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested witness should put his signature on the Will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and the Evidence Act which requires that at least one attesting witness has to be examined for the purpose of proving the execution of such a document. Therefore, having regards to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator. As held by the Apex Court that attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator. As held by the Apex Court that attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator. The same view has been reiterated in the case of Gopal Swaroop v. Krishna Murari Mangal and others (2010) 14 SCC 266 . 8. In the light of the above authoritative pronouncement of law, it can be held that to prove the execution of a will, it is necessary that at least one attesting witness should be examined by the Propounder to prove the will and the following ingredients must be established for the due execution of the will. (i) The testator should sign or affix his mark to the will. (ii) The signature of the mark of the testator should be so place that it should appear that it was intended thereby to give effect to the writing as a will. (iii) The will should be attested by two or more witnesses (iv) Each of the said witnesses must have seen the testator signing of affixing his mark to the will and each of them should sign the will in presence of the testator. 9. In the present case, I find force in the contention of the petitioner that the plaintiff cannot be precluded from adducing evidence to prove the execution of will and by attesting witness, he proposes to prove the thumb impression put by the testator, which is made in his presence and the other witnesses signed the same in the presence of testator. The place of the "will" showing the thumb impression of the testator was being questioned which is relevant to prove the execution of "will" and he is not being asked to prove thumb impression of the testator by comparing the other thumb impression or signatures of the testator as an expert. It is not disputed by him that the attesting witness cannot be allowed to prove the disputed thumb impression as an expert if there is any dispute or denial to the thumb mark of the testator, the Apex Court has held that the Attesting witness should speak not only about the testator's signature or affix his mark to the will but also that each of the witnesses had signed the will in the presence of the testator. It is not putforth before this court that the thumb mark of testator is disputed on the will or alleged to be obtained by fraudulent manner and the same has been sought to be examined by an expert witness. 10. Taking note of the law laid down by the Apex Court, I find that the impugned order Annexure P-5 accepting the objections of the respondents is not correct and the petitioner should be permitted to prove the signature or affix of the mark of the testator to the will but certainly he will not be allowed to identify the thumb mark by comparison with thumb impression on other document. 11. With regard to the second objection, it is submitted that the trial court accepted the objection of the respondents that the petitioner cannot be allowed to state the name of the photographer because there was no pleading in that regard. Upon perusal of the application filed by the petitioner (Annexure P-4) under Section 65 of the Indian Evidence Act it can be noted that in paras 3 and 4 of the application the name of the photographer is clearly stated hence, there was pleading in the said application in that regard. Paras 3 and 4 of the application are reproduced as under : ^^3- ;g fd Jh lqjsanz JhokLro ds }kjk ewy Nk;kfp= vkosnd dz0 1 dh ekrkth dks iznku fd;s Fks ijarq mlds usxsfVOl mUgha ds vfHkj{kk esa mUgksaus j[kk FkkA 4- ;g fd vkosnd dz0 1 us Jh lqjsanz JhokLro dh nqdku ij lk{; vkajHk gksus ds iwoZ iz'uk/khu QksVksxzkIl ds usxsfVo ysus x;k FkkA ogka irk yxk fd Jh lqjsanz JhokLro nqdku NksM+dj vU; fdlh 'kgj esa pys x;s gSaA vkosnd dz0 1 us cgqr iwNrkN fd;k ijarq mls Jh lqjsanz JhokLro dk irk ugha yxkA** It is also condign to mention that when the application regarding production of photographs to support the contention of adoption ceremony as secondary evidence was allowed by the trial court vide order dated 12-03-15, the respondents had filed W.P.No.5939/2015 and the said petition was disposed of vide order dated 27-08-2015. Relevant portion of the order is reproduced as under : "In my opinion, it would be just and proper if the plaintiffs be permitted to lead evidence and question about admissibility of photographs be considered by the trial Court at the time of final disposal of the case. Relevant portion of the order is reproduced as under : "In my opinion, it would be just and proper if the plaintiffs be permitted to lead evidence and question about admissibility of photographs be considered by the trial Court at the time of final disposal of the case. Consequently, this petition is disposed of with observation that trial Court shall decide the admissibility of the photographs as secondary evidence at the time of final adjudication. Petitioner shall be at liberty to raise all the objections at time of final adjudication in regard to admissibility of the photographs as secondary evidence." 12. I am of the considered view that the plaintiffs cannot be prevented from stating the name of photographer in his evidence as he had disclosed the name of the photographer in the application and the said application has already been allowed by the trial court by the order dated 12-03-2015 which has not been set aside by this court at the instance of the respondents in W.P. No. 5939/15. 13. The present petition is allowed. The statement of Balaji Devre (PW-2) attesting witness and the petitioner's evidence Hari Narain (PW-1) for the limited question would be recorded by the trial court as the impugned order sustaining the objection of the respondent are quashed however, the liberty is granted to the respondents to raise all the grounds at the time of final adjudication of the matter in regard to the proof of the execution of the will and also admissibility of the photograph as secondary evidence. 14. Accordingly, the petition stands disposed of.