Full Judgment Text
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CASE NO.:
Appeal (civil) 3124 of 2008
PETITIONER:
Babu Singh & Ors
RESPONDENT:
Ram Sahai @ Ram Singh
DATE OF JUDGMENT: 30/04/2008
BENCH:
S.B. Sinha & V.S. Sirpurkar
JUDGMENT:
J U D G M E N T
REPORTABLE
CIVIL APPEAL NO. 3124 OF 2008
(Arising out of SLP (C) No.10288 of 2006)
S.B. Sinha, J.
1. Leave granted.
2. Interpretation of Section 69 of the Evidence Act, 1872 is in question
in this appeal which arises out of a judgment and order dated 11.11.2005
passed by the High Court of Punjab & Haryana.
3. One Ram Bux executed a Will dated 25.9.1981 in favour of the
respondent herein bequeathing his right, title and interest in the property in
question.
Appellants claimed themselves to be the owner and in possession of
the suit property which is a shop, as a co-sharer to the extent of 6 marlas out
of the land measuring 3 kanal and one marla appertaining to Khasra No.53
situated in the area of Chhoti Haveli, Tehsil and District Ropar.
4. Learned Trial Court, inter alia, raised the following issues :
"1. Whether the plaintiff is owner of the suit
property? OPP
2. Whether the Plaintiffs are entitled to the
possession of the shop in question? OPP
XXX XXX XXX
6. Whether the defendants are entitled to the
counter claim to the effect that they are
owner of the shop in question and co-sharer
to the extent of 0-6 marlas of the land fully
detailed in the counter claim? OPD"
We need not go into other issues between the parties.
5. The learned Trial Judge, although opined that the suit was bad for
non-impleading Karam Kaur and Dalwinder Kaur, daughters of the testator
as parties to the suit, proceeded to consider the validity of the Will in order
to avoid any possibility of remand by the Trial Court, stating :
"The plaintiff was duty bound to examine at least
one attesting witnesses to prove the execution of
the Will Ex.P/2. It has come in evidence that
Lambardar Mohan Singh expired before he could
be examined as a witness. Other attesting
witnesses House was alive and had been given up
by the plaintiff on the plea that he had been won
over by the other party. Thus, Will Ex.P/2 has not
been proved according to Section 68 of the Indian
Evidence Act."
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6. The learned Judge, however, noticed that one of the attesting
witnesses, namely, Harnek Singh @ House, according to the learned
counsel for the plaintiff, had gone outside India and another attesting
witness, namely, Lambardar Mohan Singh being dead, the Will must be held
to have been duly proved. It was held :
"Though there is no plausible and cogent evidence
on record to show that House had gone to foreign
country. But even if for argument sake the plea of
the Plaintiff is taken to be correct. Even in that
eventuality the Sub-Registrar has only identified
the signatures on the will to be that of Mohan
Singh as attesting witness. Though the Plaintiff
also examined PW-9 Davinder Parshad
Handwriting expert who examined the signatures
of the executant on the Will Ex.P/2 and the sale
deed but he took all these signatures as standard
signatures. The sale deeds, however, have not
been proved by the Plaintiff to contain the
signatures of Ram Bux. Expert compared these
standard signatures with the questioned signatures
on the family settlement. Therefore, there is
nothing on record to suggest that Handwriting
expert took the signatures of will as questioned and
compared the same with admitted or proved
signatures of Ram Bux. Therefore, the Plaintiff
miserably failed to show that the Will Ex.P/2
contained the signatures of Ram Bux.
Consequently, the Plaintiff failed to prove the due
execution of the Will Ex.P/2, as per the
requirement of Section 69 of the Indian Evidence
Act.
In result, the Plaintiff failed to show that
deceased Ram Bux executed legal and valid will
dated 25.9.1981 in his favour. In view of this
finding I need not dilate on the argument of the
learned counsel for the defendants that the Will
Ex.P/2 was surrounded by suspicious
circumstanced."
7. An appeal was preferred thereagainst.
The First Appellate Court, however, on the said issue held :
"Now so far as the Will Ex.P/2 is concerned, it was
allegedly executed by Ram Bux Singh son of Daya
Ram on 25.9.1981 and was duly got registered in
the office of the Sub-Registrar, Ropar, on the same
date. It is evident that this Will was attested by
two witnesses, namely, Harnek Singh son of Ram
Prakash and Mohan Singh, Lamberdar. So far as
Mohan Singh Lamberdar is concerned, he had
since died on 4.7.1983 vide death Certificate Ex.P3
and for this reason he could not be brought in the
witness box. However, Harnek Singh son of Ram
Parkash is alive but it is stated by Shri A.L.
Verma, counsel for the Plaintiff as well as Plaintiff
himself on 29.10.1999 that Harnek Singh witness
has joined hands with the opposite party and
moreover, he has intentionally left to a foreign
country. For this reason, Harnek Singh son of
Ram Parkash also could not be examined by him.
Now the question arises whether the statement of
the deed-writer who also knew Ram Bux Singh
can be relied upon or not and whether he can be
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treated as an attesting witness or not."
8. The High Court by reason of the impugned judgment dismissed the
Second Appeal preferred by the appellant herein opining that no substantial
question of law arose for its consideration.
9. Mr. Viraj Datar, learned counsel appearing on behalf of the appellant,
submitted that in the facts and circumstances of this case, Section 69 of the
Evidence Act cannot be said to have any application whatsoever and, thus,
the High Court committed a serious error in passing the impugned judgment.
10. Indisputably a Will is to be attested by two witnesses in terms of
Section 68 of the Indian Evidence Act (Act). Indisputably, the requirement
of Section 63(1)(c) of the Indian Succession Act is required for to be
complied with for proving a writ. Section 68 of the Act mandates proof by
attesting witnesses of not merely of execution but also attestation by two
witnesses. That is to say, not only the execution of Will must be proved but
actually execution must be attested by at least two witnesses. Attestation
must of execution of Will be in conformity with the provisions of Section 3
of the Transfer of Property Act.
’Attestation’ and ’execution’ connote two different meanings. Some
documents do not require attestation. Some documents are required by law
to be attested.
11. In terms of Section 68 of the Act, although it is not necessary to call
more than one attesting witness to prove due execution of a Will but that
would not mean that an attested document shall be proved by the evidence of
one attesting witness only and two or more attesting witnesses need not be
examined at all. Section 68 of the Act lays down the mode of proof. It
envisages the necessity of more evidence than mere attestation as the words
’at least’ have been used therein. When genuineness of a Will is in question,
apart from execution and attestation of Will, it is also the duty of a person
seeking declaration about the validity of the Will to dispel the surrounding
suspicious circumstances existing if any. Thus, in addition to proving the
execution of the Will by examining the attesting witnesses, the propounder
is also required to lead evidence to explain the surrounding suspicious
circumstances, if any. Proof of execution of the Will would, inter alia,
depend thereupon.
12. The Court, while granting probate of the will, must take into
consideration all relevant factors. It must be found that the will was product
of a free will. The testator must have full knowledge and understanding as
regards the contents thereof. For the said purpose, the background facts may
also be taken note of. Where, however, a plea of undue influence was taken,
the onus wherefor would be on the objector and not on the offender. {See
Savithri & Ors. v. Karthyayani Amma & Ors. [JT (2007) 12 SC 248]}
13. Section 69 of the Act reads, thus :
"Section 69\027Proof where no attesting witness
found\027If no such attesting witness can be found,
or if the document purports to have been executed
in the United Kingdom, it must be proved that the
attestation of one attesting witness at least is in his
handwriting, and that the signature of the person
executing the documents is in the handwriting of
that person."
14. It would apply, inter alia, in a case where the attesting witness is
either dead or out of the jurisdiction of the court or kept out of the way by
the adverse party or cannot be traced despite diligent search. Only in that
event, the Will may be proved in the manner indicated in Section 69, i.e., by
examining witnesses who were able to prove the handwriting of the testator
or executant. The burden of proof then may be shifted to others.
15. Whereas, however, a Will ordinarily must be proved keeping in view
the provisions of Section 63 of the Indian Succession Act and Section 68 of
the Act, in the event the ingredients thereof, as noticed hereinbefore, are
brought on record, strict proof of execution and attestation stands relaxed.
However, signature and handwriting, as contemplated in Section 69, must be
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proved.
16. Indisputably, one of the attesting witnesses was dead. Our attention,
however, has been drawn to the fact that a purported summons were taken
out against the said Harnek Singh. Admittedly, it was not served. There is
nothing on record to show that any step was taken to compel his appearance
as a witness. Ram Sahai in his deposition did not make any statement that
the said Harnek Singh had been won over by the appellant. He did not say
that despite service of summons, Harnek Singh did not appear as a witness.
In his cross-examination, he alleged that he and Harnek Singh were
enimically disposed of towards each other even prior to 1991 and in fact
"since the time of his ancestors". It was furthermore alleged that they are
not on speaking terms. A suggestion was given to him that in fact Harnek
Singh had come to Court on that day to which he denied his knowledge. It
is only in answer to a question in cross-examination, he stated that he did not
intend to examine the said Harnek Singh.
Harnek Singh may be a person who had been won over by the
appellant but there must be some evidence brought on records in that behalf.
The learned Trial Judge, in our opinion, rightly rejected the bare statement
made by the learned counsel for the plaintiff that the other attesting witness
had gone out of the country. Respondent himself did not say so on oath. He
did not examine any other witness.
He did not make any attempt to serve another summons upon him.
No process was asked for to be served by the court. Interestingly, a
statement was made by a counsel before the appellate court. That statement
is said to have been made before the appellate court by the plaintiff himself
on 29.10.1999. We are at a loss to understand how such a statement by a
counsel or by the respondent himself was taken into consideration for the
purpose of invoking Section 69 of the Indian Evidence Act. A purported
statement, not as a witness but through the counsel, cannot be said to be an
evidence. We have noticed hereinbefore that learned Trial Judge did not
accept such a statement. In that view of the matter, the first appellate Court,
in our opinion, committed a serious legal error.
17. In Hare Krishna Panigrahi Vs. Jogneswar Panda and Others [AIR
1939 Cal. 688], B.K. Mukherjea, J. referring to Section 71 stated the law
thus :
"This presupposes in my opinion that the witness
is actually produced before the Court and then if
he denies execution or his memory fails or if he
refuses to prove or turns hostile, other evidence
can be admitted to prove execution. In the case
referred to above the witness was actually before
the Court and afterwards turned hostile. In this
case however, the witness was not before the Court
at all and no question of denying or failing to
recollect the execution of the document did at all
arise. The plaintiff simply took out a summons as
against this witness and nothing further was done
later on. In a case like this where the attesting
witnesses are not before the Court, S. 71, Evidence
Act, has in my opinion, got no application. In
such cases it is the duty of the plaintiff to exhaust
all the processes of the Court in order to compel
the attendance of any one of the attesting witnesses
and when the production of such witnesses is not
possible either legally or physically, the plaintiff
can avail himself of the provisions of S. 69,
Evidence Act."
18. In Amal Sankar Sen & Ors. v. The Dacca Co-operative Housing
Society Ltd. (in liquidation) by Inspector Liquidator, Co-operative Society,
Dacca [(A.I.R (32) 1945 Calcutta 350], it was held :
"As we have already stated, that proposition of law
cannot be challenged at this date. In order that
S.69, Evidence Act, may be applied, mere taking
out of the summons or the service of summons
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upon an attesting witness or the mere taking out of
warrant against him is not sufficient. It is only
when the witness does not appear even after all the
process under Order 16 Rule 10, which the Court
considered to be fit and proper had been exhausted
that the foundation will be laid for the application
of Section 69, Evidence Act. The party, namely,
the plaintiff, must move the Court for process
under Order 16, Rule 10, Civil P.C., when a
witness summoned by him has failed to obey the
summons but when the plaintiff does move the
Court but the Court refuses the process asked for
we do not see why Section 69, Evidence Act,
cannot be invoked. The other view would place
the plaintiff in an impossible position when the
witness is an attesting witness to the document on
which he has brought the suit, and the Court
refuses coercive processes contemplated in Order
16 Rule 10 Civil P.C."
19. In Doraiswami Vs. Rathnammal and others [(AIR 1978 Mad. 78], the
same principle was reiterated, stating :
"11. D. 2. 2 merely identifies the signature of
Palani Navithan found in Ex. B-1 as that of his
father. The mere fact that the signature of Palani
Navithan is proved, in our opinion, is not sufficient
to prove the due execution of the will. The
evidence of this witness is relied on for proving the
signature of one of the attesting witnesses and thus
enable the third defendant to adduce secondary
evidence regarding the due execution of the will.
The evidence of D.W. 2 will be relevant only for
the purposes of S. 69 of the Evidence Act.
Section 69 will come into play only when no
attesting witness can be found. In this case, as
already stated, an attesting witness D.W. 4 has
been examined and he has denied his attestation of
the document. Therefore S. 69 can have no
application. The evidence of D.W. 2, therefore,
even if accepted, will not help the third defendant."
20. We may notice that in Apoline D’ Souza v. John D’ Souza [(2007) 7
SCC 225], this Court held that the question as to whether due attestation has
been established or not will depend on the fact situation obtaining in each
case. Therein, it was held :
"13. Section 68 of the Evidence Act, 1872
provides for the mode and manner in which
execution of the will is to be proved. Proof of
attestation of the will is a mandatory requirement.
Attestation is sought to be proved by PW 2 only.
Both the daughters of the testatrix were nuns. No
property, therefore, could be bequeathed in their
favour. In fact one of them had expired long back.
Relation of the testatrix with the respondent
admittedly was very cordial. The appellant before
us has not been able to prove that she had been
staying with the testatrix since 1986 and only on
that account she was made a beneficiary thereof.
The will was full of suspicious circumstances. PW
2 categorically stated that the will was drafted
before her coming to the residence of the testatrix
and she had only proved her signature as a witness
to the execution of the will but the document was a
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handwritten one. The original will is typed in
Kannada, although the blanks were filled up with
English letters. There is no evidence to show that
the contents of the will were read over and
explained to the testatrix. PW 2 was not known to
her. Why was she called and who called her to
attest the will is shrouded in mystery. Her evidence
is not at all satisfactory in regard to the proper
frame of mind of the testatrix. There were several
cuttings and overwritings also in the will."
In the aforementioned situation, the Will was said to have not been
proved.
This Court therein noticed, inter alia, the decision of B. Venkatamuni
v. C.J. Ayodhya Ram Singh & Ors. [(2006) 13 SCC 449] wherein the law
has been laid down in the following terms :
"25. The Division Bench of the High Court was,
with respect, thus, entirely wrong in proceeding on
the premise that compliance of legal formalities as
regards proof of the Will would sub-serve the
purpose and the suspicious circumstances
surrounding the execution thereof is not of much
significance."
21. We generally agree with the aforementioned view of the Calcutta
High Court. Assuming, however, that even taking the course of Order XVI
of the Code of Civil Procedure might not be necessary, what was imperative
was a statement on oath made by the plaintiff. A deposition of the plaintiff
is a witness before the Court and not the statement through a counsel across
the Bar. Such a statement across the Bar cannot be a substitute for evidence
warranting invocation of Section 69 of the Evidence Act.
22. For the reasons, aforementioned, the impugned judgment of the High
Court as also the First Court of Appeal cannot be sustained. They are set
aside accordingly. Appeal is allowed with no order as to costs.