Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1600 OF 2009
(Arising out of SLP (Crl.) No.4258 of 2007)
Yumnam Ongbi Tampha …..
Appellant
Ibemma Devi
Versus
Yumnam Joykumar Singh & Ors. …..Respondents
J U D G M E N T
Dr. ARIJIT PASAYAT, J.
1. Leave granted.
2. Challenge in this appeal is to the judgment of a learned Single Judge
of the Guwahati High Court in the First Appeal by the respondents. Before
the High Court challenge was to the order passed by learned Additional
District Judge (Fast Track Court) Manipur East, Imphal, in Original
(Probate) Petition No. 14/92/19 of 2003.
3. Background facts as noted by the High Court are as follows:
Shri Yumnam Joykumar Singh, Smt. Yumnam Ningol Khumanthem
Ongbi Bijanbala and Smt. Yumnam Ningol Binodini Dcvi, who are the
respondents, are the son and daughters of late Yumnam Gouramani Singh.
Smt. Yumnam Ongbi Tampha Ibema Devi, who is the appellant in this
appeal, is the widow of late Yumnam Mani Singh, son of the said late
Yumnam Gouramani Singh, Smt. Yumnam Ningol Harijabam Ongbi
Binodkumari Devi, who is the respondent No.2 in this appeal, is a daughter
of late Gouramani respondent. Smt. Loitongbam Ningol Yumnam Ongbi
Ibeyaima Devi, Yumnam Raynold Singh and Kumari Yumnam Rina alias
Riya Devi, are widow, son and daughter respectively of late Yumnam
Birmani Singh, son of the said late Yumnam Gouramani Singh. Smt.
Yumnam Ongbi Lalitabi Devi, is the widow of the said late Yumnam
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Gouramani Singh. Shri R.K. Barunisana Singh, who is the proforma
respondent in the appeal, is the husband of Binodini. Appellant filed an
application alleging that her father in-law Yumnam Gouramani Singh duly
executed his last will on 13-8-86 in accordance with law in presence of two
attesting witnesses bequeathing the plot of land under C.S. Dag No. 16/2720
measuring ‘053 acres of Patta No. 304 of Unit A-1, Imphal Municipality at
Thangal Bazar along with building standing thereon in her favour. In this
application, the appellant prayed for granting letters of administration with
the Will annexed in her favour.
The appellant before the High Court and respondent Nos. 6, 7 and
proforma respondent No.8 opposed the application by filing a written
statement wherein they denied the alleged due execution of the will. It was
submitted that there was no execution of a will much less in accordance
with law. It was also stated that on the alleged date of execution of the will
i.e. 13.8.1986, the said Yumnam Gouramani Singh was staying in U.P. and
not in Imphal. It was also alleged that there were suspicious circumstances
which ought to be considered before the will could be accepted as genuine.
It is to be noted that in the proceedings before the learned Additional
District Judge the following three issues were framed.
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“(1) Whether late Yumnam Gouramani Singh left behind a Will
dated 13.8.1986 bequeathing the plot of land under C.S. Dag
No. 16/2720 measuring 53 acres of patta No. 304-A of Unit A-
1 Imphal Municipality to the petitioner Yumnam Tampha
Ibema Devi?
(2) Is the Court fee paid properly?
(3) Is the petitioner Yumnam Tampha Ibema Devi entitled to
the relief claimed?”
It appears that by judgment and order dated 9.4.2004 the learned
Additional District Judge accepted the prayer and directed as follows:
“Heard Learned counsel for the parties. And also
for the discussion, observations and reasons aforesaid, I
am of the view that (L) Y. Gouramani Singh had
executed the will Ext.A/1 in favour of the petitioner. In
the result, it is ordered and decreed that a letter of
administration be issued in favour of petitioner on her
deposit of the requisite stamp as required by the Indian
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Succession Act, 1925, minus the plot of land given in
Exts. B/1,B/2,B/3 and B/4. Case is accordingly disposed
of.”
The primary stand before the High Court was that no issue was
framed regarding the genuineness of the Will, and the requirements of
Section 63 of the Indian Succession Act, 1925 (in short the ‘Succession
Act’) and Section 68 of the Indian Evidence Act, 1872 (in short the
‘Evidence Act’) were not kept in view. The High Court accepted the prayer
particularly with reference to the evidence of PW 2 who claimed to be one
of the attesting witnesses. The High Court allowed the appeal inter alia
holding that the evidence of PW2 is vague and it cannot be said that there
was due execution of the will in question. PW 2 was not even having
knowledge about the death of the alleged executor more than 14 years prior
to the date of his giving evidence. Though he claimed that he had reached
the house of said Gouramani Singh on being summoned, there was nobody
present when he had gone there. He stated that he had put the signature
without understanding as to why he was putting his signature and he did not
know the nature of the document on which he had put his signature. He
also did not state that said Yumnam Gouramani Singh put his signature on
the document or if the said Gouramani Singh said anything about his
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signature or mark having been put on the document. He did not say
anything about presence of any another person as an attesting witness in
respect of any document by the said Yumnam Gouramani Singh. The High
Court concluded that PW2 failed to testify anything regarding alleged due
execution and attestation of the will. Accordingly, the appeal was allowed.
4. Learned counsel for the appellant submitted that the High Court has
lost sight of the fact that PW2 deposed in court after a long lapse of time.
Merely because he omitted to say certain things that cannot be a ground to
discard the evidentiary value of his evidence and the High Court should not
have interfered with the order of the trial court.
5. Learned counsel for the respondents supported the judgment.
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
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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.
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8. In Girja Datt Singh v. Gangotri Datt Singh [AIR 1955 SC 346] this
court observed as follows:
“15. When this position was realised the learned counsel
for Gangotri fell back on an alternative argument and it
was that the deceased admitted execution and completion
of the will Ex. A-36 and acknowledged his signature
thereto before the Sub-Registrar at Tarabganj and this
acknowledgment of his signature was in the presence of
the two persons who identified him before the Sub-
Registrar viz. Mahadeo Pershad and Nageshur who had
in their turn appended their signatures at the foot of the
endorsement by the Sub-Registrar. These signatures it
was contended were enough to prove the due attestation
of the will Ex. A-36. This argument would have availed
Gangotri if Mahadeo Pershad and Nageshur had
appended their signatures at the foot of the endorsement
of registration animo attestandi . But even apart from this
circumstance it is significant that neither Mahadeo
Pershad nor Nageshur was called as a witness to depose
to the fact of such attestation if any. One could not
presume from the mere signatures of Mahadeo Pershad
and Nageshur appearing at the foot of the endorsement
of registration that they had appended their signatures to
the document as attesting witnesses or can be construed
to have done so in their capacity as attesting witnesses.
Section 68 of the Indian Evidence Act requires an
attesting witness to be called as a witness to prove the
due execution and attestation of the will. This provision
should have been complied with in order that Mahadeo
Pershad and Nageshur be treated as attesting witnesses.
This line of argument therefore cannot help Gangotri.”
9. In B. Venkatamuni v. C.J. Ayodhya Ram Singh [2006(13) SCC 449],
it was observed as follows:
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“15. It is, however, well settled that compliance with
statutory requirements itself is not sufficient as would
appear from the discussions hereinafter made.
16. The approach of the Division Bench of the High
Court did not address itself the right question. It took an
erroneous approach to the issue as would appear from
the decision of this Court in Surendra Pal v. Dr.
Saraswati Arora [1974(2) SCC 600] whereupon again
Mr V. Balachandran himself placed reliance, wherein the
law was stated in the following terms: (SCC p. 605,
para 7)
“ 7 . The propounder has to show that the will was
signed by the testator; that he was at the relevant
time in a sound disposing state of mind, that he
understood the nature and effect of the dispositions,
that he put his signature to the testament of his own
free will and that he has signed it in the presence of
the two witnesses who attested it in his presence and
in the presence of each other. Once these elements
are established, the onus which rests on the
propounder is discharged. But there may be cases in
which the execution of the will itself is surrounded
by suspicious circumstances, such as, where the
signature is doubtful, the testator is of feeble mind
or is overawed by powerful minds interested in
getting his property, or where in the light of the
relevant circumstances the dispositions appear to be
unnatural, improbable and unfair, or where there are
other reasons for doubting that the dispositions of
the will are not the result of the testator’s free will
and mind. In all such cases where there may be
legitimate suspicious circumstances those must be
reviewed and satisfactorily explained before the will
is accepted. Again in cases where the propounder
has himself taken a prominent part in the execution
of the will which confers on him substantial benefit
that is itself one of the suspicious circumstances
which he must remove by clear and satisfactory
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evidence. After all, ultimately it is the conscience of
the court that has to be satisfied, as such the nature
and quality of proof must be commensurate with the
need to satisfy that conscience and remove any
suspicion which a reasonable man may, in the
relevant circumstances of the case, entertain.”
17. In H. Venkatachala Iyengar v. B.N.
Thimmajamma [AIR 1959 SC 443] it was opined: (SCR
pp. 443-45)
“However, there is one important feature which
distinguishes wills from other documents. Unlike
other documents the will speaks from the death of
the testator, and so, when it is propounded or
produced before a court, the testator who has
already departed the world cannot say whether it is
his will or not; and this aspect naturally introduces
an element of solemnity in the decision of the
question as to whether the document propounded
is proved to be the last will and testament of the
departed testator. Even so, in dealing with the
proof of wills the court will start on the same
enquiry as in the case of the proof of documents.
The propounder would be called upon to show by
satisfactory evidence that the will was signed by
the testator, that the testator at the relevant time
was in a sound and disposing state of mind, that he
understood the nature and effect of the
dispositions and put his signature to the document
of his own free will. Ordinarily when the evidence
adduced in support of the will is disinterested,
satisfactory and sufficient to prove the sound and
disposing state of the testator’s mind and his
signature as required by law, courts would be
justified in making a finding in favour of the
propounder. In other words, the onus on the
propounder can be taken to be discharged on proof
of the essential facts just indicated.
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There may, however, be cases in which the
execution of the will may be surrounded by
suspicious circumstances. The alleged signature of
the testator may be very shaky and doubtful and
evidence in support of the propounder’s case that the
signature in question is the signature of the testator
may not remove the doubt created by the appearance
of the signature; the condition of the testator’s mind
may appear to be very feeble and debilitated; and
evidence adduced may not succeed in removing the
legitimate doubt as to the mental capacity of the
testator; the dispositions made in the will may appear
to be unnatural, improbable or unfair in the light of
relevant circumstances; or, the will may otherwise
indicate that the said dispositions may not be the
result of the testator’s free will and mind. In such
cases the court would naturally expect that all
legitimate suspicions should be completely removed
before the document is accepted as the last will of the
testator. The presence of such suspicious
circumstances naturally tends to make the initial onus
very heavy; and, unless it is satisfactorily discharged,
courts would be reluctant to treat the document as the
last will of the testator. It is true that, if a caveat is
filed alleging the exercise of undue influence, fraud
or coercion in respect of the execution of the will
propounded, such pleas may have to be proved by the
caveators; but, even without such pleas circumstances
may raise a doubt as to whether the testator was
acting of his own free will in executing the will, and
in such circumstances, it would be a part of the initial
onus to remove any such legitimate doubts in the
matter.”
In Guro v. Atma Singh [1992(2) SCC 507] this Court
has opined: (SCC p. 511, para 3)
“ 3 . With regard to proof of a will the law is
well settled that the mode of proving a will does
not ordinarily differ from that of proving any other
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document except as to the special requirement
prescribed in the case of a will by Section 63 of
the Succession Act, 1925. The onus of proving the
will is on the propounder and in the absence of
suspicious circumstances surrounding the
execution of the will, proof of testamentary
capacity and signature of the testator as required
by law is sufficient to discharge the onus. Where,
however there were suspicious circumstances, the
onus would be on the propounder to explain them
to the satisfaction of the court before the will
could be accepted as genuine. Such suspicious
circumstances may be a shaky signature, a feeble
mind and unfair and unjust disposal of property or
the propounder himself taking a leading part in the
making of the will under which he receives a
substantial benefit. The presence of suspicious
circumstances makes the initial onus heavier and
the propounder must remove all legitimate
suspicion before the document can be accepted as
the last will of the testator.”
19. Yet again Section 68 of the Evidence Act postulates
the mode and manner of proof of execution of document
which is required by law to be attested stating that the
execution must be proved by at least one attesting
witness, if an attesting witness is alive and subject to the
process of the court and capable of giving evidence.
20. This Court in Daulat Ram v. Sodha [2005(1) SCC
40] stated the law thus: (SCC p. 43, para 10)
“ 10 . Will being a document has to be proved by
primary evidence except where the court permits a
document to be proved by leading secondary
evidence. Since it is required to be attested, as
provided in Section 68 of the Evidence Act, 1872, it
cannot be used as evidence until one of the attesting
witnesses 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
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capable of giving evidence. In addition, it has to
satisfy the requirements of Section 63 of the
Succession Act, 1925. In order to assess as to whether
the will has been validly executed and is a genuine
document, the propounder has to show that the will
was signed by the testator and that he had put his
signatures to the testament of his own free will; that
he was at the relevant time in a sound disposing state
of mind and understood the nature and effect of the
dispositions and that the testator had signed it in the
presence of two witnesses who attested it in his
presence and in the presence of each other. Once
these elements are established, the onus which rests
on the propounder is discharged. But where there are
suspicious circumstances, the onus is on the
propounder to remove the suspicion by leading
appropriate evidence . The burden to prove that the
will was forged or that it was obtained under undue
influence or coercion or by playing a fraud is on the
person who alleges it to be so.” (emphasis
supplied)
21. Yet again in Meenakshiammal v.
Chandrasekaran [2005(1) SCC 280] it was stated: (SCC
p. 287, para 19)
“ 19 . In Chinmoyee Saha v. Debendra Lal Saha
[AIR 1985 Cal 349] it has been held that if the
propounder takes a prominent part in the execution of
the will, which confers a substantial benefit on him,
the propounder is required to remove the doubts by
clear and satisfactory evidence. Once the propounder
proves that the will was signed by the testator, that he
was at the relevant time in a sound disposing state of
mind, that he understood the nature and effect of the
disposition and put his signature out of his own free
will, and that he signed it in presence of the witnesses
who attested it in his presence, the onus, which rests
on the propounder, is discharged and when allegation
of undue influence, fraud or coercion is made by the
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caveator, the onus is on the caveator to prove the
same.”
(See also Sridevi v. Jayaraja Shetty [2005 (2) SCC 784] .
22. The principle was reiterated in Pentakota
[2005 (8)
Satyanarayana v. Pentakota Seetharatnam
SCC 67] wherein it was stated: (SCC pp. 81-82, para
24)
“ 24 . In the instant case, the propounders were
called upon to show by satisfactory evidence that
the will was signed by the testator, that the testator
at the relevant time was in a sound and disposing
state of mind, that he understood the nature and
effect of the dispositions and put his signature to
the document of his own free will. In other words,
the onus on the propounder can be taken to be
discharged on proof of the essential facts indicated
above.”
However, having regard to the fact that the will was a
registered one and the propounder had discharged the
onus, it was held that in such circumstances, the onus
shifts to the contestant opposing the will to bring
material on record meeting such prima facie case in
which event the onus shifts back on the propounder to
satisfy the court affirmatively that the testator did not
( sic ) know well the contents of the will and in sound
disposing capacity executed the same.
23. Each case, however, must be determined in the fact
situation obtaining therein.
24. The Division Bench of the High Court was, with
respect, thus, entirely wrong in proceeding on the premise
that compliance with legal formalities as regard proof of the
will would subserve the purpose and the suspicious
circumstances surrounding the execution thereof is not of
much significance.”
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10. In Benga Behera v. Braja Kishora Nanda [2007(9) SCC 728] in
paragraphs 40 and 41 to 46 it was inter alia observed as follows:
“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. 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 Bhagat Ram v. Suresh 2003(12) SCC 35 .)
41. The Court granting letters of administration with a
copy of the will annexed or probate must satisfy itself
not only about the genuineness of the will but also
satisfy itself that it is not fraught with any suspicious
circumstances.
42. No independent witness has been examined to
show how the testatrix came close to Respondent 1. Why
valuable agricultural land measuring ac. 4.187 and
homestead land along with a house standing thereon had
been gifted in favour of the first respondent, has not been
explained. The original will has not been produced. Why
both the will and the sale deed should have been
executed on the same day, has not been explained.
43. The burden on the first respondent was heavy, he
being a stranger to the family. He failed to discharge the
said burden. Variance, inconsistencies and contradictions
have been brought on record, particularly in the
statements of PW 4 and PW 9 and other witnesses vis-à-
vis the contents of the document, which we have noticed
hereinbefore.
44. Learned trial Judge as also the High Court did not
take into consideration the effect of such contradictions
and inconsistencies, particularly the
interpolation/variance in the xerox copy of the will vis-à-
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vis certified copy thereof. Serious consideration was
required to be bestowed on the contention of the
appellants that thumb impressions of the testatrix on
different pages of the xerox copy did not tally. No effort
was made to compare the thumb impression appearing
on the xerox copy with the thumb impression appearing
on other admitted documents. Non-production of the
original will stating that the will got lost, gives rise to an
inference that it might have been that the will did not
contain the thumb impression of the testatrix. The
testatrix was an old and ill lady. She had no independent
adviser in the matter of the execution of the will. On the
other hand, the plaintiff-Respondent 1 and his father
being disciple of her guru were in a position to dominate
her mental process.
45. Respondent 1 was a student at the relevant time.
His father had taken an active part in the entire process
in registering and culmination of the will in favour of his
son. There are materials on record to show that although
sufficient time had been granted for examination of the
other attesting witnesses, Chandramani Das Mohapatra
was not summoned. No summon could be issued only
because his correct address had not been furnished.
46. Existence of suspicious circumstances itself may
be held to be sufficient to arrive at a conclusion that
execution of the will has not been duly proved.”
11. The position was reiterated in Anil Kak v. Sharada Raje [2008(7)
SCC 695].
12. It is to be noted that the trial court did not even record any reason for
coming to the conclusions as done. No issue was framed regarding the
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validity of the will. The evidence of PW2 does not in any way support the
claim of due execution and attestation of the will. On the contrary, it clearly
establishes that he did not sign in his presence, he did not know what was
the nature of the document. There was no attesting witness who has signed
in his presence and, therefore, the requirements of Section 68 of the
Evidence Act have to be complied with in order to show that the two
persons who claimed to have signed as attesting witness can be really
treated as attesting witnesses. Above being the position, we find no merit in
this appeal which is accordingly dismissed.
……………………………..J.
(Dr. ARIJIT PASAYAT)
……………………………..J.
(V.S. SIRPURKAR)
….…………………………..J.
(ASOK KUMAR GANGULY)
New Delhi:
March 06, 2009
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