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Rajasthan High Court · body

2022 DIGILAW 2781 (RAJ)

Santosh Kumar v. Harkhas Aam

2022-11-17

BIRENDRA KUMAR

body2022
ORDER 1. In this appeal under Section 384 of the Indian Succession Act, the appellant has challenged the order dated 06.07.2017 passed in Miscellaneous Succession Application No.21/2011 filed under Section 372 of the Indian Succession Act, whereby prayer for grant of succession certificate in respect of the property left by Khubi Ram, uncle of the appellant was refused. Claim of the appellant is based on a registered deed of Will said to be executed on 20.09.2003 by Late Khubi Ram, father of respondent No.2 and uncle of the appellant. The Will was registered on 24.09.2003 and Khubi Ram died on 27.09.2003. 2. Respondent No.2, Mithlesh is daughter of Late Khubi Ram. She appeared and contested the matter by stating that Khubi Ram had never executed any Will in favour of the applicant, rather applicant Santosh had committed forgery to claim and grab the pensionary benefits of Khubi Ram. Respondent No.2 asserted that Late Khubi Ram (her father) never expressed any desire that the benefits arising out of his service should go to Santosh (the appellant). She has specifically stated that Late Khubi Ram before his death never visited any Office rather in between the period of alleged execution of the Will and its registration Late Khubi Ram was hospitalized and respondent No.2 was taking his care. 3. The learned Court below refused the prayer on the ground that attesting witnesses on the Will were not examined during the proceeding, hence, the ’Will’ cannot be probated and accordingly refused succession certificate which was claimed on the basis of the Will. 4. From the record, it is evident that instead of seeking for a probate of the Will, a case for succession certificate was filed though the appellant herein was not a successor of the deceased rather the real successor was his daughter Mithlesh. One of the issue before the Court below was whether the produced Will was the last Will of Late Khubi Ram duly executed under the law. 5. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills. The present one is an unprivileged Will. Section 63 reads as follows :- ’63. 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 present one is an unprivileged Will. Section 63 reads as follows :- ’63. 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 acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary." 6. The original Will available as Exhibit-P1 does not show that the testator signed in presence of the attesting witnesses and attesting witnesses also singed at the request of the testator in his presence. The witnesses of the Will namely, Ajay Singh Gurjar and Chhitaria were not examined. It is settled proposition that if the law requires anything to be done in a particular manner, it should be done in that manner only. Section 68 of the Evidence Act provides for proof of execution of document required by law to be attested. The provisions of Section 68 of the Evidence Act reads as follows :- "68. It is settled proposition that if the law requires anything to be done in a particular manner, it should be done in that manner only. Section 68 of the Evidence Act provides for proof of execution of document required by law to be attested. The provisions of Section 68 of the Evidence Act reads as follows :- "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 specifically denied." 7. Recently in the case of V. Kalyanaswamy through LRs vs. L. Bakthavatsalam through LRs. reported in 2020(9) SCALE 367 , Hon’ble Supreme Court considered the requirement and nature of proof of attestation and affect of non-proof of attestation in Para-68 of the judgment which reads as follows :- "The further question is, as posed by us, whether despite the fact that both the attesting witnesses were dead, the matter to be proved under Section 69 of the Evidence Act, is the same as a matter to be proved under Section 68 of the Evidence Act. In other words, under Section 68 of the Evidence Act, in the case of a Will covered under Section 63 of the Indian Succession Act, it is indispensable that at least one attesting witness must not only be examined to prove attestation by him but he must also prove the attestation by the other attesting witness. This Court has taken the view that while it is open to prove the will and the attestation by examining a single attesting witness, it is incumbent upon him to prove attestation not only by himself but also attestation by the other attesting witness." 8. The Hon’ble Supreme Court concluded ’the language of the Section is clear and unambiguous. This Court has taken the view that while it is open to prove the will and the attestation by examining a single attesting witness, it is incumbent upon him to prove attestation not only by himself but also attestation by the other attesting witness." 8. The Hon’ble Supreme Court concluded ’the language of the Section is clear and unambiguous. Section 68 of The Evidence Act, as interpreted by this Court, contemplates attestation of both attesting witnesses to be proved.’. 9. Evidently, one of the attesting witness, who was alive ought to have been examined to prove the attestation of the Will by him as well as by another attesting witness. The evidence required to prove the attestation would be of the nature that the attesting witnesses deposed before the Court that the testator signed in his presence on the Will and the witness also signed in presence of the testator on his request. Likewise, another attesting witness also signed in presence of the witness on the Will and he had also witnessed the signature of the testator. 10. Learned counsel for the appellant contend that the scribe of the Will was examined and he deposed that the testator had signed in his presence and the Will was drafted as per dictation of the testator. 11. In the case of Benga Behera and Another vs. Braja Kishore nanda and Others reported in 2007(9) SCC 728 , the Hon’ble Supreme Court examined what is ’attestation’ and stated in Para-35 which reads as follows :- "35. 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. The term ’attestation’ means: 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." 12. None of the witnesses produced by the appellant stated that the testator had signed in his presence on the Will and he had also signed in presence and on the dictate of the testator. None of the witnesses produced by the appellant stated that the testator had signed in his presence on the Will and he had also signed in presence and on the dictate of the testator. Mere fact that the witnesses identified the signature of the testator or the evidence that the testator signed in his presence, would not suffice to fulfill the requirement of law. Therefore, it is held that the appellant failed to prove that the Will in question was executed according to law. Therefore, no relief could have been granted to the appellant on the strength of said Will. 13. Accordingly, this Court is not inclined to interfere with the impugned order and this appeal stands dismissed.