JAGDISH CHAND SHARMA Vs. NARAIN SINGH SAINI (DEAD) THR. LRS. & ORS

Tags Will Evidence

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Civil), 4181-4182 of 2015, Judgment Date: May 01, 2015

14.  As would be evident from the contents of Section 63 of the Act that  to
execute the Will as contemplated therein, the testator would  have  to  sign
or affix his mark to it or the same has to be signed by  some  other  person
in his presence and on his direction. Further the signature or mark  of  the
testator or the signature of the person signing for him has to be so  placed
that it would appear that it was intended thereby  to  give  effect  to  the
writing as Will.  The Section further mandates that the Will shall  have  to
be attested by two or more witnesses each of  whom  has  seen  the  testator
sign or affix his mark to it or has seen some other persons sign it, in  the
presence and on the direction of the testator,  or  has  received  from  the
testator, personal acknowledgement of a signature or mark, or the  signature
of such other persons and that each of the witnesses has signed the Will  in
the presence of the testator.  It is, however, clarified that it  would  not
be necessary that more than one witness be present  at  the  same  time  and
that no particular form of attestation would be necessary.

15.1.  In the evidentiary context Section 68 of the Act  1872  enjoins  that
if a document is required by law to be attested, it would  not  be  used  as
evidence unless one attesting witness, at least, if alive,  and  is  subject
to  the  process  of  Court  and  capable  of  giving  evidence  proves  its
execution.  The proviso attached to this Section  relaxes  this  requirement
in case of a document,  not  being  a  Will,  but  has  been  registered  in
accordance with the provisions of the Indian Registration  Act  1908  unless
its execution by the person by whom it purports to have  been  executed,  is
specifically denied.

15.2. These statutory provisions, thus, make it  incumbent  for  a  document
required by law to be attested to have its execution proved by at least  one
of the attesting witnesses, if alive, and  is  subject  to  the  process  of
Court  conducting  the  proceedings  involved  and  is  capable  of   giving
evidence.  This rigour is,  however,  eased  in  case  of  a  document  also
required to be attested but not a Will, if the same has been  registered  in
accordance with the provisions of the Indian Registration Act,  1908  unless
the execution of this document by  the  person  said  to  have  executed  it
denies the same.  In  any  view  of  the  matter,  however,  the  relaxation
extended by the proviso is of no avail qua a Will.  The proof of a  Will  to
be admissible  in  evidence  with  probative  potential,  being  a  document
required by law to be attested by  two  witnesses,  would  necessarily  need
proof of its execution through at least one of the attesting  witnesses,  if
alive, and  subject to the process of the Court concerned and is capable  of
giving evidence.

15.3  Section 71 provides, however, that if the attesting witness denies  or
does not recollect the execution of  the  document,  its  execution  may  be
proved by other evidence. The interplay of the  above  statutory  provisions
and the underlying legislative objective would be  of  formidable  relevance
in  evaluating  the  materials  on  record  and  recording  the  penultimate
conclusions.  With this backdrop, expedient it would be, to  scrutinize  the
evidence adduced by the parties.

42.  This Court underlined that Section 71 of the  Act  1872  was  meant  to
lend assistance and come to the rescue of a party who  had  done  his  best,
but driven to a state of helplessness and impossibility and  cannot  be  let
down without any other opportunity of  proving  the  due  execution  of  the
document by other evidence. That, however, Section 71 cannot be  invoked  so
as to absolve the party  of  his  obligation  under  Section  68  read  with
Section 63 of the Act and to liberally allow him, at his will or choice,  to
make available or not, necessary witness otherwise  available  and  amenable
to jurisdiction of the Court, was highlighted in  emphatic  terms.  That  no
premium upon such omission or lapse so as to enable him to give a go-bye  to
the  mandates  of  law  relating  to  proof  of  execution  of  a  Will,  as
contemplated by these statutory provisions, was  precisely  underlined.   In
the facts and circumstances of that case, as the  second  attesting  witness
though available had not been summoned, the benefit of  Section  71  of  Act
1872 was not extended.  The Will was thus held to  be  not  proved  for  the
failure of the  attesting  witness  so  produced,  to  testify  as  per  the
ordainment of Section 63 (c) of the Act.

45.  A Will as an instrument of testamentary disposition of  property  being
a legally acknowledged mode of bequeathing a testator’s acquisitions  during
his lifetime, to be acted upon only on his/her demise, it is no  longer  res
integra, that it carries with it an overwhelming element  of  sanctity.   As
understandably, the testator/testatrix, as the case may be, at the  time  of
testing the document for its validity, would  not  be  available,  stringent
requisites for the proof thereof have been statutorily enjoined to rule  out
the possibility of any manipulation.  This is more so, as many a times,  the
manner of dispensation is in stark departure from the prescribed  canons  of
devolution of property  to  the  heirs  and  legal  representatives  of  the
deceased.  The rigour of Section 63 (c) of the Act and Section  68  of  1872
Act is thus befitting the underlying exigency to  secure  against  any  self
serving intervention contrary to the last wishes of the executor.

45.1  Viewed in premise, Section 71 of the 1872 Act has  to  be  necessarily
accorded a strict interpretation.   The  two  contingencies  permitting  the
play  of  this  provision,  namely,  denial  or  failure  to  recollect  the
execution by the attesting witness produced,  thus  a  fortiori  has  to  be
extended a meaning to ensure that the limited liberty granted by Section  71
of 1872 Act does not in any manner efface  or  emasculate  the  essence  and
efficacy of Section 63  of  the  Act  and  Section  68  of  1872  Act.   The
distinction between failure on the part of a attesting witness to prove  the
execution and attestation of a Will and his or her denial of the said  event
or failure to recollect the same, has  to  be  essentially  maintained.  Any
unwarranted indulgence, permitting extra liberal flexibility  to  these  two
stipulations, would render the predication of Section  63  of  the  Act  and
Section 68 of the 1872 Act, otiose.  The propounder can be initiated to  the
benefit  of  Section  71  of  the   1872   Act   only   if   the   attesting
witness/witnesses, who is/are alive and is/are produced and in  clear  terms
either denies /deny the execution of the document or  cannot  recollect  the
said incident.  Not only, this witness/witnesses  has/have  to  be  credible
and impartial, the evidence adduced ought to demonstrate  unhesitant  denial
of the execution of the document or authenticate real forgetfulness of  such
fact.  If the testimony evinces  a  casual  account  of  the  execution  and
attestation of the document disregardful of  truth,  and  thereby  fails  to
prove these two essentials as per law, the propounder  cannot  be  permitted
to adduce other evidence under cover of Section 71 of the 1872 Act.  Such  a
sanction would not only be incompatible with the scheme  of  Section  63  of
the Act read with Section 68 of the 1872 Act but also  would  be  extinctive
of  the  paramountcy  and  sacrosanctity   thereof,   a   consequence,   not
legislatively intended. If the evidence of the  witnesses  produced  by  the
propounder is inherently worthless and lacking in  credibility,  Section  71
of Act 1872 cannot be invoked to bail him (propounder) out of the  situation
to facilitate a roving pursuit. In absence of any touch of truthfulness  and
genuineness in  the  overall  approach,  this  provision,  which  is  not  a
substitute of Section 63 (c ) of the Act and Section 68  of  the  1872  Act,
cannot be invoked to supplement such failed speculative endeavour.

45.2  Section 71 of the 1872 Act, even if assumed to be akin  to  a  proviso
to the mandate contained in Section 63 of the Act  and  Section  68  of  the
1872 Act, it has to be assuredly construed harmoniously  therewith  and  not
divorced therefrom with a mutilative bearing.  This underlying principle  is
inter alia embedded in the decision of  this  Court  in  the  Commission  of
Income Tax, Madras Appellant Versus Ajax  Products  Limited  Respondent  AIR
1965, Supreme Court 1358.

48.  The High Court, in our estimate, has appropriately appreciated the  law
and the facts in the right perspective and the impugned  decision  does  not
call for any interference.  The appeals are dismissed.

[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.4181-4182 OF 2015

(ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014

JAGDISH CHAND SHARMA ...….APPELLANT

Vs.

NARAIN SINGH SAINI (DEAD) …..RESPONDENTS
THROUGH HIS LRs & Ors.

J U D G M E N T

AMITAVA ROY, J.

Leave granted.

1. The genesis of the lingering dissension in the instant proceeding lies
in the Will claimed by the appellant herein to have been executed on 22-10-
1973 by Nathu Singh (since deceased), the predecessor in the interest of
the respondents, thereby bequeathing the property mentioned therein to him
(appellant). The judgment and order dated 15-05-2007 passed in P C No.
249/1980 (re-numbered as PC No. 160/2006), by the District Judge, Tis
Hazari Court, Delhi, granting Letter of Administration to him, has been
reversed by the High Court of Delhi by its judgment and order dated 02-07-
2014 rendered in FAO No. 279 of 2007 as assailed herein.

2. We have heard Mr. Paras Kuhad, Sr. Advocate for the appellant and Mr.
Daljeet Singh, Senior Advocate for the respondents.

3. A brief outline of the pleaded facts would portray the rival
orientations. The appellant, to reiterate, filed an application under
Section 276 of the Indian Succession Act 1925 (for short hereinafter
referred to as the Act) with the Will annexed, seeking grant of Letter of
Administration. He stated that the Will had been executed by Mr. Nathu
Singh on 22-10-1973, as the sole and absolute owner amongst others of
Municipal House Tax No. 807 (Private No. A/152 to A/162/1) situated at
Sukhdev Nagar, Kotla Mubarakpur, New Delhi, bequeathing the same to him.
The appellant stated that the testator nursed great love and affection for
him for the services rendered by him and was not favourably disposed
towards his sons for their disagreeable conduct and activities. It was
mentioned that the testator expired on 02-08-1980 at Delhi whereafter, Shri
Harswaroop Sharma, resident of 41, Subhash Market, Kotla Mubarkpur,
informed him to receive the Will lying in his custody. It was, thereafter,
according to the appellant that the application for Letter of
Administration was filed. In the petition, he averred the names and
particulars of the sons and daughters of the deceased testator and
disclosed further that the subject matter of the Will was located in New
Delhi. That the Will was executed and made in Delhi was also mentioned.
The appellant did provide and sign a verification declaring the correctness
of the statements made therein. Further another verification subscribed by
Mr. G. C. Kumar, Advocate, Delhi in the capacity of an attesting witness to
the Will, was also made.

4. On the receipt of the notice of the proceedings registered on this
petition, objections were filed by Mr. Jaswant Singh (since deceased) son
of the testator and also by his other sons and daughters separately. For
the sake of brevity the substance of the objections registered by the
children of the testator would be synopsised.

5. It was pleaded that the property said to have been bequeathed was
ancestral joint Hindu family property and thus, the testator had no
authority to execute the Will in favour of the appellant. While denying
the claim that the appellant did enjoy the love and affection of the
testator, it was asserted that he (appellant) in fact had been appointed by
the testator as his rent collector on 11-05-1973 and was endowed with a
registered power of attorney. The objectors averred that as the appellant
failed to render his sincere services, the power of attorney was revoked.
That the appellant did create tenancy in favour of his wife, Shrimati
Santosh Kumar Sharma in respect of shop No.F–16 belonging to the testator
without his knowledge for which he (testator) had instituted a suit against
him (appellant) in the year 1975 for recovery of damages was also stated.
The objectors did further refer to several complaints made by the testator
against the appellant for his unsatisfactory services and misuse of power
including misappropriation of rents collected by him. They also stated
that the appellant had appeared as a witness in a criminal case against the
deceased and was also placed under suspension by his employer where he
served as a teacher.

6. The respondents/objectors averred further that the appellant was
present at the time of execution of two other Wills by the testator in
favour of one Kisan Lal and Vimala Devi and suggested that he (appellant)
by playing fraud on him (testator) might have got his Will signed, in the
process of getting the above two documents executed. In all, the
respondents/objectors assertively emphasized that the facts and
circumstances prevailing at the relevant point of time did not at all
warrant/justify execution of any Will by Mr. Nathu Singh in favour of the
appellant by depriving his children. They, in categorical terms, denied
the execution of the Will and also the signatures and the thumb impressions
of the Mr. Nathu Singh thereon as claimed by the appellant. They averred
as well that the testator was conversant only with Hindi language and that
the contents of the Will in English had never been read over or explained
to him.

7. In his rejoinder, the appellant refuted the respondent’s cavil based on
jointness of the property. While insisting that the property was the self
acquired asset of the deceased, the appellant stated that therefrom the
testator, not only, had conveyed portions by way of sale, but also, had
gifted some to his children. He categorically denied the allegation of his
disagreeable activities and misuse of powers. He instead, did impute
fraudulent act of the respondent, Mr. Jaswant Singh in getting his name
mutated in the revenue records in place of Mr. Nathu Singh for which, a
litigation between the two did ensue. He accused the said respondent for
being responsible for institution of cases against him by Mr. Nathu Singh.

8. On these competing pleadings, the following issues were framed:

Whether Mr. Nathu Singh Saini, deceased executed the Will dated 22-10-1973,
validly while possessed of a sound disposing mind?

Relief.

8.1 The parties thereafter adduced oral and documentary evidence. Whereas,
the appellant examined six witnesses including himself, Mr. G. C. Kumar,
Advocate (attesting witness), AW 3 Mr. A. K. Jain, Sub-Registrar, New
Delhi and AW 5 Mr. Budh Ram (attesting witness), the respondents offered 8
witnesses in support of their case. Needless to say, the appellant proved
amongst the others the Will, Exhibit A-1.

9. The learned Trial Court, on its assessment of the evidence adduced,
concluded that the appellant could prove that the Will dated 22-10-1973
Exhibit A -1 was executed by the testator in a sound disposing state of
mind after fully understanding its contents and that it was duly
registered. Having held so, it observed that the onus of proving that the
document was not a genuine Will did shift to the respondents. On an
analysis of the evidence offered by the respondents, the learned Trial
Court was of the view that the same was inadequate to displace the validity
of the Will. It thus returned a finding that the Will dated 22-10-1973
Exhibit A-1 had been validly executed by the testator with a sound
disposing state of mind in presence of two attesting witnesses.
Consequently, the Letter of Administration as prayed for, by the appellant
vis-à-vis the said Will was granted.

10. Aggrieved, the respondents preferred appeal being FAO 279/2007 in the
High Court of Delhi. By the impugned judgment and order, as adverted to
herein above, the verdict of the learned Trial Court has been reversed.
The High Court on a threadbare evaluation of the pleadings and the evidence
on record, on the touchstone of the relevant provisions of the Act and the
Indian Evidence Act, 1872 (for short hereinafter referred to as Act 1872),
determined that the Will dated 22-10-1973 had not been proved as per law
and that no Probate or Letter of Administration could be granted.
Referring to the testimony of the attesting witnesses, the High Court held
that they could not prove the execution of the Will as well as the
attestation thereof within the meaning of Section 63 (c) of the Act, a
mandatory legal edict. The High Court also dismissed the plea based on
Section 71 of the Act, 1872 noting that the evidence of the attesting
witnesses produced by the appellant, did not only demonstrate lack of
intention to attest the Will, but also, rendered the execution of the
document and their signatures thereon doubtful. The High Court noticed as
well the circumstances attendant on the bequest to render it doubtful in
view of the suspicious bearing thereof. It amongst others noted therefore
to arrive at this conclusion, that the deceased/testator was versed only in
Urdu and that the Will was drafted in English, and that on the very same
day he had executed two other Wills involving different properties with the
possibility that the Will in question, was got signed, by representing it
to be a part of the other transactions. The history of past litigation
between the testator and the appellant involving allegations of his
unauthorized acts and misuse of power also did weigh with the High Court to
deduce that it was unlikely that the testator would out of natural love and
affection bequeath his property or any portion thereof to such a person, by
depriving his own children. The decision of the Trial Court was thus
interfered with.

11. Mr. Kuhad has insistently argued that the impugned judgment and order
suffers from apparent misreading of pleadings and evidence on the record
and is thus liable to be annulled. Relying in particular on the testimony
of the witnesses AW 1 and AW 5, the learned senior counsel has urged that
the execution and the attestation of the Will in question have been duly
proved as required under Section 63 of the Act. Drawing sustenance from
Section 71 of Act 1872, the learned senior counsel has maintained that even
assuming that the testimony of AW 1 and AW 5 was deficient vis-à-vis the
requirement of the Section 63 (c) of the Act, the appellant having examined
both the attesting witnesses, it was permissible for him to prove the
execution and attestation of the Will by adducing other evidence. Mr.
Kuhad has thus argued that the evidence of AW 3, Sub-Registrar before whom,
the Will had been registered on completion of all legal formalities, did as
well assuredly establish the execution and attestation of the Will as
required by law and thus the High Court had erred in holding to the
contrary. As the testimony of AW 3, the Sub-Registrar amply proved all the
essentials of Section 63 (c) of the Act, the learned Trial Court had
validly granted the Letter of Administration, he maintained. Referring to
the evidence of AW 1, Mr. G. C. Kumar, Advocate, Mr. Kuhad urged that the
verification signed by him at the foot of the application for Letter of
Administration did buttress, the correctness of the contents thereof and,
thus the stray deviations in his version at the trial ought to have been
discarded as inconsequential. In any case, the casualness of the testimony
of the attesting witnesses does not adversely impact upon the validity of
the Will, as such conduct could have been the yield of an endeavour of the
respondents to gain them over. While repudiating the conclusions of the
High Court inferring denial of execution by the attesting witnesses and
lack of animus on their part to attest the Will as well as the suspicious
circumstances noticed by it, to be perverse and opposed to the weight of
the materials on record, the learned senior counsel insisted that having
regard to the basic requisites of valid Will in law, namely, free and
sound disposing state of mind of the testator, understanding of the
implication of the bequest, admission of execution thereof by him/her and
due attestation thereof, the deductions of the High Court contrary thereto
are indefensible and are thus liable to be negated. Apart from contending
that the respondents had failed to discharge their onus to prove their
objections in the face of the overwhelming evidence of execution and
attestation of the Will in law, the learned senior counsel has urged that
the High Court had fallen in error as well in acting upon the additional
evidence adduced before it under Order 41 Rule 27 of the Civil Procedure
Code (for short hereinafter referred as Code), without offering an
opportunity to the appellant to counter such prayer. The following
decisions were relied upon to reinforce the above contentions.

AIR 1955 SC 346 Bhaiya Guruji Dutt Singh Vs Gangotri Dutt Singh, AIR 1959
SC 443 H Venkatachala Iyengar Vs B N Thimmajamma and Others,(1974) 2 SCC
600 Kewal Pati (Smt) Vs State of UP and Others, (1995) 4 SCC 459 Surendra
Pal and Ors. Vs. Dr. (Mrs.)Saraswati Arora and Anr.,(2003) 2 SCC 91 Janki
Narayan Bhoir Vs. Narayan Namdeo Kadam, (2005) 8 SCC 67 Pentakota
Satyanarayana and Ors. Vs. Pentakota Seetharatnam and Ors., (2013) 7 SCC
490 M.B. Ramesh (D) by LRs. Vs. KM Veeraje Urs (D) by LRs and Ors.

12. Per contra, Mr. Singh has argued that it being apparent on the face of
the records that neither the execution nor the attestation of the Will
involved had been proved by any of the witnesses, the impugned judgment is
unassailable and thus the instant petition is liable to be dismissed in
limine. The findings recorded by the High Court being founded on an
indepth scrutiny of the materials on record, are unmistakably conclusive
and thus this Court would not embark upon a fresh appraisal thereof, he
maintained. The learned senior counsel by referring to the evidence of the
witnesses AW 1, AW 5 in particular has emphatically pleaded that as the
appellant had failed to prove either the execution or the attestation of
the Will, Section 71 of the Act of 1872 is inapplicable to the facts of the
present case, and thus the testimony of AW 3 is wholly irrelevant. Without
prejudice to this, the learned senior counsel has urged that the evidence
of AW 3 as well falls short of the requirements of Section 63 (c) of the
Act and thus, cannot be invoked to the advantage of the appellant. As the
evidence of AW 1 and AW 5 does not attract the contingencies enumerated in
Section 71 of Act 1872, the version of AW 3, in any view of the matter, is
of no avail to the appellant, he asserted. The learned senior counsel
maintained that even de hors the additional evidence laid before the High
Court under Order 41 Rule 27 of the Code, the findings recorded in the
impugned judgment and order are sustainable in law and on facts and thus no
interference therewith is called for. Mr. Singh relied on the decisions
hereunder to endorse his arguments.

(1977) 1 SCR 925 Smt. Jaswant Kaur Vs Smt. Amrit Kaur and Ors., (2001) 9
SCC 503 Neki Ram and Ors. Vs. Ama Ram Godara and Ors., (2003) 2 SCC 91
Janki Narayan Bhoir Vs. Narayan Namdeo Kadam.

13. The contentious pleadings and the assertions based thereon in the
backdrop of the evidence as a whole have been duly analysed by us. The
competing perspectives notwithstanding, the purport and play of Section 63
of the Act read with Sections 68 and 71 of Act 1872 as deciphered by
various judicial enunciations would have a decisive bearing on the process
of resolution of the irreconcilable issues that demand to be addressed. It
would thus be apt, nay, imperative to refer to these legal provisions
before embarking on the appreciation of the evidence to the extent
indispensible. Section 63 of the Act and Sections 68 and 71 of the Act
1872, are thus extracted hereunder for ready reference.

Indian Succession Act, 1922

“63. Execution of unprivileged Wills.- Every testator, not being a soldier
employed in an expedition or engaged in actual warfare, 1[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 by present at the same time,
and no particular form of attestation shall be necessary.

Indian Evidence Act 1872

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.

71. Proof when attesting witness denies the execution.-If the attesting
witness denies or does not recollect the execution of the document, its
execution may be proved by other evidence.

14. As would be evident from the contents of Section 63 of the Act that to
execute the Will as contemplated therein, the testator would have to sign
or affix his mark to it or the same has to be signed by some other person
in his presence and on his direction. Further the signature or mark of the
testator or the signature of the person signing for him has to be so placed
that it would appear that it was intended thereby to give effect to the
writing as Will. The Section further mandates that the Will shall have to
be attested by two or more witnesses each of whom has seen the testator
sign or affix his mark to it or has seen some other persons sign it, in the
presence and on the direction of the testator, or has received from the
testator, personal acknowledgement of a signature or mark, or the signature
of such other persons and that each of the witnesses has signed the Will in
the presence of the testator. It is, however, clarified that it would not
be necessary that more than one witness be present at the same time and
that no particular form of attestation would be necessary.

15. It cannot be gainsaid that the above legislatively prescribed
essentials of a valid execution and attestation of a Will under the Act are
mandatory in nature, so much so, that any failure or deficiency in
adherence thereto would be at the pain of invalidation of such
document/instrument of disposition of property.

15.1. In the evidentiary context Section 68 of the Act 1872 enjoins that
if a document is required by law to be attested, it would not be used as
evidence unless one attesting witness, at least, if alive, and is subject
to the process of Court and capable of giving evidence proves its
execution. The proviso attached to this Section relaxes this requirement
in case of a document, not being a Will, but has been registered in
accordance with the provisions of the Indian Registration Act 1908 unless
its execution by the person by whom it purports to have been executed, is
specifically denied.

15.2. These statutory provisions, thus, make it incumbent for a document
required by law to be attested to have its execution proved by at least one
of the attesting witnesses, if alive, and is subject to the process of
Court conducting the proceedings involved and is capable of giving
evidence. This rigour is, however, eased in case of a document also
required to be attested but not a Will, if the same has been registered in
accordance with the provisions of the Indian Registration Act, 1908 unless
the execution of this document by the person said to have executed it
denies the same. In any view of the matter, however, the relaxation
extended by the proviso is of no avail qua a Will. The proof of a Will to
be admissible in evidence with probative potential, being a document
required by law to be attested by two witnesses, would necessarily need
proof of its execution through at least one of the attesting witnesses, if
alive, and subject to the process of the Court concerned and is capable of
giving evidence.

15.3 Section 71 provides, however, that if the attesting witness denies or
does not recollect the execution of the document, its execution may be
proved by other evidence. The interplay of the above statutory provisions
and the underlying legislative objective would be of formidable relevance
in evaluating the materials on record and recording the penultimate
conclusions. With this backdrop, expedient it would be, to scrutinize the
evidence adduced by the parties.

15.4 As hereinbefore mentioned, the appellant has endeavoured to prove the
execution and attestation of the Will, Ex. A–1 through AW 1 Mr. G. C. Kumar
and AW 5 Mr. Budh Ram. He has examined as well AW 3 Mr. A. K. Jain, Sub
Registrar, New Delhi before whom the Will was registered on the very same
day of its execution i.e., 22-10-1973.

15.5. Be that as it may, AW 1 Mr. Kumar deposed on oath that he was
enrolled as a lawyer in or about 1971 and used to assist his father who was
a deed writer in Urdu language. The witness stated that he used to come
to Tis Hazari Court for attending his cases. He testified to have seen the
Will Ex. A-1 which he claimed had been drafted by him. He failed to
remember as to whether the testator, Mr. Nathu Ram Singh had come to his
father in his presence or that his father had given him instructions to
write the Will. The witness even failed to remember whether the Will had
been given to him by his father or to the testator. He also could not
recall as to whether he was present when the testator had signed the Will.
The witness, however, admitted that Ex. A-1 did bear his signatures as an
attesting witness but deposed that due to lapse of time, he did not
remember whether any other person was also present and had attested the
document when he had signed it. He, however, stated to have been present
in the office of the Sub Registrar when the Will, Ex. A-1 was presented for
registration. He also admitted to have signed the document on the backside
thereof in the presence of the clerk of the office. The witness stated
that he had also identified the testator before the Sub Registrar but
clarified that it was as per the prevalent practice for an identifying
witness to do so. He added by stating that he had signed the document
only in that capacity. The witness deposed further, that he could not say
whether the thumb impression and the signatures of the testator at the time
of the registration and appearing on the back of page one of the Will had
been obtained in his presence or not. He even failed to recall as to
whether the contents of the Will had been read over and explained to the
testator by him or by his father.

15.6 This witness was declared hostile and was cross-examined on behalf of
the appellant in course whereof he deposed that he could not say whether he
had signed the Will in presence of the testator. When confronted, he
admitted to have signed the certificate at the foot of the application in
Section 276 of the Act praying for grant of Letter of Administration but
denied to have done so as an attesting witness of the Will. He stated
instead that he had put his signatures as the appellant wanted him to do
so. He even denied to have read the contents of the certificate. He
refuted the suggestion that he had made a false statement in Court being
won over by the respondents.

16. AW 2 Shri. Harswaroop has stated on oath that in November, 1973, the
testator had handed over to him one Will with a direction to deliver it to
the appellant upon his death. According to this witness, he did so after
the demise of Mr. Nathu Singh and handed over the Will to the appellant.
The witness stated to have seen the Will Ex. A-1, bearing the signature of
Mr. Nathu Singh at several places. He claimed of being conversant with the
handwriting and signature of the Mr. Nathu Singh. Admittedly, however,
this witness is neither one to the execution of the Will, nor the
attestation thereof as obligated by law.

17. Before reverting to AW 3 in the ordinary sequence, the testimony of AW
5 figuring in the chain of attestation as presented by the appellant would
be referred to. This witness, Mr. Budh Ram claimed to have known the
deceased/testator. He stated on oath that he had seen the document Ex. A-1
and identified his signatures thereon. He deposed to have signed the
document in presence of the testator. He, however, hastened to add that he
had not seen the testator signing the Will. He denied to have appeared
before the Sub Registrar or to have identified the testator before the said
authority. He stated that he had signed the document outside the office.
Though, he asserted that testator was mentally alert on the date on which
he (witness) had signed the Will, he clarified that he did not do so on the
asking of the testator. The witness, however, admitted the presence of the
testator at that time.

17.1 In cross-examination, the witness disclosed that the appellant was
also present on the date on which he had signed the document and that he
did not know the contents of the said document. He stated further that he
had not been told that any Will was executed by Mr. Nathu Singh and that he
was to attest it. Noticeably, this witness had not been declared to be
hostile.

18. AW 3 Mr. A. K. Jain who at the relevant time was the Sub Registrar,
New Delhi, on oath, stated that the Will Ex. A-1 had been presented before
him for registration on 22-10-1973. According to this witness, the
testator was identified before him by one Mr. Budh Ram and Mr. G. C. Kumar,
Advocate. The witness stated that these persons did sign the document in
his presence as identifying witnesses on the back of page No. 1 of Ex. A-1.
He deposed as well that the testator was read out the contents of the
document and was asked as to whether he was executing the Will himself and
that on his acknowledgement in the affirmative, he (witness) made his
endorsement on the document in his own hand. While proving his
endorsement, the witness iterated that the testator had admitted the
execution of the Will and also proved his (testator) signatures and thumb
impressions thereon.

18.1 In his cross-examination, the witness stated that he did not know
the testator personally and that he had made his endorsements on the Will
in the capacity of a registering authority only. He admitted that on the
very same date, another document purporting to be a Will executed by Mr.
Nathu Singh was also presented for registration for which the identifying
witnesses had been the same.

19. The testimony of AW 4 Mr. Ramchander Sharma is to the effect that the
appellant had borne the expenses for the firewood of the funeral pyre of
the deceased Nathu Singh. The testimony of AW 7 Mr. M. S. Santosh Goel and
AW 8 Mr. Satish Kumar being insignificant vis-à-vis issues involved is not
necessary to be dilated upon.

20. AW 6 Mr. Jagdish Chander Sharma, appellant deposed that he had joined
the deceased Mr. Nathu Singh, in the year 1952 on the recommendation of his
brother-in-law. He stated that the deceased entrusted him the duty to
realise rent of his property and also to look after the matters pertaining
to litigation in connection therewith. The witness stated that in the
process, he was also made the attorney of the deceased and while realising
rent used to accompany Mr. Jaswant Singh, his (Nathu Singh) son. He
referred to some differences between the father and the son with regard to
alleged wrong doings of the latter qua immovable properties resulting in
institution of a suit by Mr. Nathu Singh against Mr. Jaswant Singh.
According to this witness, Mr. Jaswant Singh was inimically disposed
towards him for which he made a complaint against him in his department for
which he was placed under suspension. He stated that Mr. Nathu Singh
thereafter, in the interest of his job, cancelled his power of attorney but
asked him to look after the property and to realise the rents. According
to the witness, Mr. Jaswant Singh out of his persisting animosity caused a
raid to be conducted in his house, and after the demise of Mr. Nathu Singh
did openly intimidate him of dire consequences. He denied to have visited
the office of the Sub Registrar on 22-10-1973 and insisted that AW 1 Mr. G.
C. Kumar, Advocate had signed the certificate of the petition under Section
276 of the Act. He also asserted that AW 1 had attested the Will after
seeing the same. According to this witness, the relationship of Mr. Nathu
Singh with his sons was strained as they had been endeavouring to take over
the possession of his properties. The witness identified the signature of
the testator on the Will Ex. A-1.

21. In his detailed cross-examination, the witnesses referred to several
legal proceedings, civil and criminal instituted by the testator which
according to him, however, did fizzle out with time without yielding any
adverse verdict against him. While mentioning that Mr. Nathu Singh used to
dispose of his properties by executing Wills, the witness also mentioned
about litigations between him and his son Mr. Jaswant Singh. He admitted
that at the time of death of the testator, his wife, sons, daughters and
several grand children were alive. In categorical terms, he stated that
the testator had no quarrel with his wife and daughters. He also mentioned
about gift of properties by Mr. Nathu Singh to his sons.

22. The testimony of RW 1 Mr. Ramesh Kumar, RW 2 Mr. M. S. Rao and RW 4
Mr. Ramesh Chander Sharma being not of any determinative significance is
not being referred to. RW 3 Mr. Narayan Singh Saini, son of the testator
deposed that his(testator) family comprised of his wife, Smt. Chanderwati,
three sons and three daughters. He stated that during the life time of the
testator, he had executed three separate gift deeds conveying property to
each of his sons. That Mr. Nathu Singh had a host of grand children was
also stated by this witness. He mentioned in particular that the testator
had a very cordial relationship with the children till he died so much so
that they along with the grand children used to congregate on all family
functions. He averred that the testator had appointed the appellant as his
attorney for collecting rent from his tenants. Thereby, the testator had
also authorized the appellant to prepare documents with regard to the
properties which he intended to sell from time to time. The witness deposed
that the testator eventually had to cancel the power of attorney as the
appellant was found indulging in interpolation of tenancies without his
consent and with malafide intention misappropriated his properties. He
stated further that at the time of his death, the testator was aged ninety
years. He reiterated that the Will in question was deceitfully inserted
amongst other documents to procure the signature of the testator.

23. The version of RW 5 Mr. Gulab Chand and RW 6 Mr. Bhupesh Gupta is also
of not any consequence vis-à-vis the issues involved. RW 7 Mr. Ram Chander
Saini deposed on oath that he used to represent Mr. Nathu Singh in various
legal proceedings including one instituted against the appellant. He
denied the suggestion that Mr. Nathu Singh had a very cordial relationship
with the appellant.

24. RW 8 Mr. Rajinder Singh, grandson of Mr. Nathu Singh, in his statement
on oath expressed his ignorance about any litigation between his
grandfather and his father Mr. Jaswant Singh.

25. The fascicule of the evidence viewed as hereinabove qua the execution
and the attestation of the Will thus can be compartmentalised into two
slots. The first comprising of the testimony of AW 1 Mr. G. C. Kumar and
Mr. Budh Ram and the other of AW 3 Mr. A. K. Jain, Sub Registrar, New
Delhi.

26. Evident it would be from the deposition of AW 1 that though he owned
to be the author of the document, having drafted it, he could not recall
whether he did so on the instruction of the testator. He did not remember
as well as to whether the Will had been handed over by him to his father or
the testator. He failed to recollect also whether he was present when the
testator had signed the Will, Ex. A-1. Though, he admitted that the
document did bear his signatures as an attesting witness at two places
being point “A” and “B”, he could not recall whether there was any other
person also present and had similarly attested the document when he had
signed at point “A”. He was categorical in stating that he was present in
the office of the Sub Registrar when the Will was presented for
registration and had signed on the back page thereof but clarified that he
did so only as an identifying witness. He could not say as to whether the
signatures and thumb impressions of the testator at point “Y” and “Y–1” on
the back page of the Will had been obtained in his presence or not. He
also could not state whether the contents of the Will were read over and
explained to the testator by him or his father. He was candid to assert
that he was not sure as to whether he had signed the Will in presence of
the testator or not or whether the testator had signed the document in his
presence. He was unequivocal in stating that he had signed the certificate
at the foot of the petition for grant of Letter of Administration as he was
asked to do so by the appellant and he did not do so in the capacity of an
attesting witness to the Will. He even denied to have gone through the
contents of the certificate before subscribing thereto.

27. The evidence of AW 1, as a whole is, therefore clearly deficient vis-à-
vis with the requirements of Section 63 (c) of the Act. Noticeably, he
does not deny either the execution of the Will or has not failed to
recollect the said event. In clear terms, this witness stated that though
he had signed the document, he was not sure that he did so in the presence
of any other person attesting the same. He could not also remember as to
whether he was present when the testator had signed the Will. He clarified
in no uncertain terms that his signatures on the Will before the Sub
Registrar were only as an identifying witness. His is thus not a stance of
either denial of the execution of the Will or of failure to recollect such
execution as contemplated in Section 71 of the Act 1872.

28. To cap it all, he even endeavoured to represent that he had signed the
certificate at the foot of the application for the Letter of Administration
not voluntarily but on being insisted upon by the appellant. He was
categorical in his testimony to the effect that he had not signed the
certificate acknowledging the fact that he was an attesting witness. The
evidence of AW 1 Mr. G. C. Kumar, Advocate thus does not inspire confidence
to be acted upon in proof of the execution and attestation of the Will, EX.
A-1.

29. AW 5 Mr. Budh Ram was categorical in owning his signatures on the Will
at points “C” AND “Y-2” and claimed to have to put the same in the presence
of the testator. He, however, was unhesitant in testifying that he had not
seen the testator signing the document at the points “B”, “Y-1”. He denied
to have appeared before the Sub Registrar or to have identified the
testator before the said authority. His unambiguous statement on oath is
that he had signed the document outside the office of the Sub Registrar.
His evidence as well cannot be construed to be one of denial of execution
of the Will. This witness, as his evidence would clearly demonstrate, also
did neither falter nor, was equivocal so as to suggest that he failed to
recollect the execution of the document. The conditions, precedent for
application of Section 71 of the Act 1872, therefore, are also not
available in the context of the evidence of this witness.

29.1 On a cumulative assessment of the evidence of AW 1 and AW 5, we are
of the unhesitant opinion that Section 71 of the Act, is not invocable in
the facts and circumstances of the case so as to permit the
propounder/appellant to resort to any other evidence to prove the execution
and attestation of the Will involved as comprehended therein. The account
of the relevant facts bearing on the execution and attestation of the Will
as provided by these witnesses though is thoroughly inadequate qua the
prescriptions of Section 63 (c) of the Act does not amount to denial of
execution or failure to recollect the said event as contemplated in this
provision.

30. The above notwithstanding, expedient it would be, in the face of the
protracted controversy, to examine as well the evidence of AW 3, Mr. A. K.
Jain Sub Registrar, New Delhi, refuge whereof has been sought for by the
appellant under Section 71 of the Act, in the alternative.

30.1 This witness, to reiterate, was the Sub Registrar at Asaf Ali road,
New Delhi on the date on which, as he had testified, the Will was laid
before him for registration. Incidentally, it was on the very same date of
its execution i.e. 22-10-1973. He deposed that the testator Mr. Nathu Singh
was identified before him by AW 1 Mr. G. C. Kumar, Advocate, AW 1 and Mr.
Budh Ram AW 5. According to this witness, these two persons did sign the
document in his presence as identifying witnesses on the back of page No. 1
thereof. He stated further that the contents of the Will were read out to
the testator and he was asked as to whether he did execute the same
himself. The witness deposed that to this, the testator acknowledged in
the affirmative whereupon he (witness) endorsed the same. The witness
proved his endorsements at the portions encircled “S” and “S-1”. He also
stated that the testator had signed and put his thumb marks as “Y” and “Y-
1” in his presence in acknowledgement of the execution of the Will by him.

30.2 In cross-examination, the witness admitted that he had made his
endorsements in the capacity of a registering authority only. While
admitting that on the very same date another document, purporting to be a
Will executed by the same testator had also been presented before him for
registration, he admitted that both the identifying witnesses of the Will
involved were also the identifying witnesses of the other Will.

31. A plain perusal of the Will presented in course of the arguments would
reveal that the space therein meant to mention the age and the date of
execution thereof had remained vacant till it was produced for
registration. This was though as claimed by the appellant, the document
had already been executed by the testator by putting his signature at
points “B” on both the pages along with the signatures of the attesting
witnesses AW 1 and AW 5 as well. On the back of page No. 1 of the Will,
there are two signatures and thumb impressions “Y” and “Y-1” said to be of
the testator beneath the stamped endorsements in the official proforma
signed by AW 3. On the same page, the signature of AW 1 Mr. G. C. Kumar,
Advocate, and thumb impression of AW 5 Budh Ram are also available at
points “X” and “Y-2” respectively.

31.1 Noticeably, though the official endorsements, as above seem to suggest
that those signified admission of execution of the document by the testator
before AW 3, the evidence of this witness on oath, does neither prove nor
demonstrate in unmistakable terms that both the identifying witnesses had
seen the testator put his signatures and thumb impressions for the
execution of the Will. His testimony also does not establish that the
witnesses AW 1 and AW 5 had put their signature/thumb impression before the
Sub Registrar in presence of the testator. This assumes significance not
only as per the non-relaxable mandate of Section 63 (c) of the Act but also
for the version of AW 1 that he had signed the document at the time of
registration only as an identifying witness and that he did not remember as
to whether the thumb impressions and the signatures of the testator at “Y”
and “Y-1” were obtained in his presence or not. The testimony of AW 5 to
the effect that his signature as well as thumb impression at “Y-2” though
made in presence of the testator was taken outside the Sub Registrar’s
office is significant as the same, if accepted, would mean that he had not
seen the testator signing the Will either at point “B” or putting his
signature and thumb impression at “Y” and “Y-1” on the backside of page No.
1 of the Will. To reiterate, he stated on oath that he had not identified
the testator before the Sub Registrar. Evidently, AW 3 was not present at
the time of initial execution of the Will and thus could not have witnessed
the said event.

32. In the overall perspective thus, the testimony of AW 3, in our
estimate, does not conform to the imperatives of the Section 63 (c) of the
Act. His narration on affirmation at the trial, does not either by itself
meet the essentialities of Section 63 (c) of the Act or can be construed to
be a supplement of the evidence of AW 1 and AW 5 to furnish the proof of
execution and attestation of the Will as enjoined by law.

33. The evidence of AW 1, AW 3 and AW 5, anlaysed collectively or in
isolation, does not evince animo attestandi, an essential imperative of
valid attestation of a Will. As Section 71 of the Act, 1872 by no means can
be conceived of to be a diluent of the rigour of Section 63 of the Act, the
testimony of these witnesses fall short of the probative content to
construe Ex. A-1 to be a validly executed and attested Will as envisaged in
law.

34. In Bhaiya Guruji Dutt Singh (supra), the testimony of the two
attesting witnesses was found wanting in credibility for which the
propounder did fall back on the admission of the testator about the
execution of the Will involved at the time of registration in presence of
two persons Mr. Mahadeo Prasad and Mr. Nageshur, who also had appended
their signatures at the foot of the endorsement of the Sub Registrar. These
signatures were contended to be enough to prove due attestation of the
Will. It was held that mere signatures of these two persons appearing at
the foot of the endorsement of registration could not be presumed to have
been made as attesting witnesses or in the capacity of attesting witnesses
and absence of animo attestandi was underlined.

35. This Court in H. Venkatachala Iyengar (supra) while dilating on the
statutory requisites of valid execution of a Will, observed that unlike
other documents this testamentary instrument speaks from the death of the
testator and by the time when it is produced before a Court, the testator
had departed from his temporal state and is not available to own or disown
the same. It was thus emphasised that this does introduce an element of
solemnity in the decision on the question as to whether the document
propounded is proved to be the last Will and testament of the departed
testator. In this context, it was emphasised that the propounder would be
required to prove by satisfactory evidence that (i) the Will was signed by
the testator, (ii) he at the relevant time was in a sound and disposing
state of mind, (iii) he understood the nature and effect of the
dispositions, and that (iv) he put his signature to the document of his own
free will. It was observed that 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, the court would be justified in making a finding in favour
of the propounder signifying that he/she had been able to discharge his/her
onus to prove the essential facts. The necessity of removal of the
suspicious circumstances attendant on the execution of the Will, however,
was underlined as well. That no hard and fast or inflexible rule can be
laid down for the appreciation of the evidence to this effect was
acknowledged.

36. That a propounder has to demonstrate that the Will was signed by the
testator and that he was at the relevant time in a sound disposing state of
mind and that he understood the nature and effect of the disposition and
further that he had put his signature to the testament on his own free will
and that he had signed it in presence of two witnesses who had attested it
in presence and in the presence of each other, in order to discharge his
onus to prove due execution of the said document was reiterated by this
Court amongst others in Surendra Pal and Ors. (supra) It was held as well
that though on the proof of the above facts, the onus of the propounder
gets discharged, there could be situations where the execution of a Will
may be shrouded by suspicious circumstances such as doubtful signature,
feeble mind of the testator, overawed state induced by powerful and
interested quarters, prominent role of the propounder, unnatural,
improbable and unfair bequests indicative of lack of testator’s free will
and mind etc. In all such eventualities, the conscience of the Court has
to be satisfied and thus the nature and quality of proof must be
commensurate to such essentiality so much so to remove any suspicion which
may be entertained by any reasonable and prudent man in the prevailing
circumstances. It was propounded further that where the caveator alleges
undue influence, fraud and coercion, the onus, however, would be on him to
prove the same, and on his failure, probate of the Will must necessarily be
granted if it is established that the testator had full testamentary
capacity and had in fact executed it validly with a free will and mind.

37. In Jaswant Kumar (supra) this Court held that suspicion generated by
the distrustful circumstances cannot be removed by the mere assertion of
the propounder that the Will bears the signature of the testator or that
the testator was in a sound and disposing state of mind and memory when the
Will was made or that those like the wife and children of the testator, who
would normally receive their due share in the estate, were disinherited
because the testator might have had seen reasons for excluding them. It was
underscored that it was obligatory for the propounder to remove all
legitimate suspicions before the document could be accepted as the last
Will of the testator.

38. In Ravindra Nath Mukharji and Another (supra) this Court entertained
the view that the, witnesses to the Will, if interested for the propounder
is perceived to be a suspicious circumstance, the same would lose
significance if the document is registered and the Sub Registrar does
certify that the same had been read over to the executor who on doing so
admits the contents.

39. In Pentakota Satyanarayan and Others (supra) the testator P. Mr. Ram
Murthi had admitted the execution of the Will involved. He, however,
expired while the suit was pending. The Will was registered and the
signature of the testator was identified by two witnesses whereupon the Sub
Registrar had signed the document. In this textual premise, it was held
that the signatures of the registering officer and of the identifying
witnesses affixed to the registration endorsement did amount to sufficient
attestation within the meaning of the Act. It was held as well that the
endorsement of the Sub Registrar that the executant had acknowledged before
him the execution, did also amount to attestation. The facts revealed that
the Will was executed before the Sub Registrar on which the signature of
the testator as well as signature and the thumb impression of the
identifying witnesses were taken by the said authority, whereafter the
latter signed the deed. In general terms, it was observed that
registration of the Will per se did not dispense with the need of proving
its execution and the attestation in the manner as provided in Section 68
of the 1872 Act. It was enunciated as well that execution consisted of
signing a document, reading it over and understanding and completion of all
formalities necessary for the validity of the act involved.

39.1 The facts as obtained in this decision are distinguishable from those
in hand and are incomparable on many counts. No anology can be drawn from
this case to conclude that the testimony of AW 3 even if read with that of
AW 1 and AW 5 can sum up to prove valid execution and attestation of the
Will as stipulated by Section 63 (c ) of the Act.

40. Janki Narayan Bhoir (supra) witnessed a fact situation where one of
the attesting witnesses of the Will, though both were alive at the relevant
time, was produced to prove the execution thereof. The scribe of the
document was also examined. The attesting witness deposed that he had not
seen the other witness present at the time of execution of the Will and
further he did not remember as to whether he along with the latter were
present either when the testator had put his signature on the Will or that
he had identified the person who had put the thumb impression on the
document. The issue raised before this Court was that the evidence of the
said attesting witness had failed to establish the attestation of the Will
by the other attesting witness who though available had not been examined
and thus the Will was not proved. The contrary plea was that though
Section 63 of the Act required attestation of a Will by at least two
witnesses, it could be proved by examining one attesting witness as per
Section 68 of the 1872 Act and by furnishing other evidence as per the
Section 71 thereof. While dwelling on the respective prescripts of Section
63 of the Act and Sections 68 and 71of Act 1872 vis-à-vis a document
required by law to be compulsorily attested, it was held that if an
attesting witness is alive and is capable of giving evidence and is subject
to the process of the Court, he/she has to be necessarily examined before
such document can be used in evidence. It was expounded that on a combined
reading of Section 63 of the Act and Section 68 of the 1872 Act, it was
apparent that mere proof of signature of the testator on the Will was not
sufficient and that attestation thereof was also to be proved as required
by Section 63 (c) of the Act. It was, however, emphasised that though
Section 68 of the 1872 Act permits proof of a document compulsorily
required to be attested by one attesting witness, he/she should be in a
position to prove the execution thereof and if it is a Will, in terms of
Section 63 (c) of the Act, viz, attestation by two attesting witnesses in
the manner as contemplated therein. It was exposited that if the attesting
witness examined besides his attestation does not prove the requirement of
the attestation of the Will by the other witness, his testimony would fall
short of attestation of the Will by at least two witnesses for the simple
reason that the execution of the Will does not merely mean signing of it by
the testator but connotes fulfilling the proof of all formalities required
under Section 63 of the Act. It was held that where the attesting witness
examined to prove the Will under Section 68 of 1872 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.

41. Qua Section 71 of 1872 Act, it was held to be in the form of a
safeguard to the mandatory provision of Section 68 to cater to a situation
where it is not possible to prove the execution of the Will by calling the
attesting witnesses though alive i.e. if the witnesses either deny or do
not recollect the execution of the Will. Only in these contingencies by the
aid of Section 71, other evidence can be furnished. It was further
clarified that Section 71 of Act 1872 would have no application to a case
where one attesting witness who alone had been summoned fails to prove the
execution of the Will and the other attesting witness though available to
prove the execution of the same, for reasons best known, is not summoned
before the Court.

42. This Court underlined that Section 71 of the Act 1872 was meant to
lend assistance and come to the rescue of a party who had done his best,
but driven to a state of helplessness and impossibility and cannot be let
down without any other opportunity of proving the due execution of the
document by other evidence. That, however, Section 71 cannot be invoked so
as to absolve the party of his obligation under Section 68 read with
Section 63 of the Act and to liberally allow him, at his will or choice, to
make available or not, necessary witness otherwise available and amenable
to jurisdiction of the Court, was highlighted in emphatic terms. That no
premium upon such omission or lapse so as to enable him to give a go-bye to
the mandates of law relating to proof of execution of a Will, as
contemplated by these statutory provisions, was precisely underlined. In
the facts and circumstances of that case, as the second attesting witness
though available had not been summoned, the benefit of Section 71 of Act
1872 was not extended. The Will was thus held to be not proved for the
failure of the attesting witness so produced, to testify as per the
ordainment of Section 63 (c) of the Act.

43. In M. B. Ramesh (dead) by LRS (supra), one Smt. Nagammanni had
executed a Will. One of the attesting witnesses P. Basavaraje Urs, in his
evidence, stated about the presence of the other witness (naming him), the
testatrix, himself and one Sampat Iyengar to be present when the Will was
written. He deposed further that one Mr. Narayan Murthi was the scribe.
This witness proved that the Will was signed by Smt. Nagammanni and that he
had signed the document too in her presence. On a consideration of the
totality of the circumstances emerging from the narration of the attesting
witness, this Court held that the omission on the part of this witness to
specifically state about the signature of the other witness on the Will in
presence of the testatrix did amount to his failure to recollect the said
fact and thus the deficiency could permissibly be replenished by the aid of
Section 71 of the Act 1872. In no uncertain terms, this Court did hold
that the issue of validity of the Will was to be considered in context of
the attendant singular facts.

44. The legal propositions adumbrated by the judicial pronouncements,
adverted to hereinabove, do not admit of any exception. However, these are
of no avail to the appellant herein in the conspectus of present facts.
The evidence of the witness AW 1, AW 3 and AW 5 does not exhibit either
denial of the execution of the Will or their failure to recollect the said
phenomenon and thus, does not attract the applicability of Section 71 of
the Act 1872.

45. A Will as an instrument of testamentary disposition of property being
a legally acknowledged mode of bequeathing a testator’s acquisitions during
his lifetime, to be acted upon only on his/her demise, it is no longer res
integra, that it carries with it an overwhelming element of sanctity. As
understandably, the testator/testatrix, as the case may be, at the time of
testing the document for its validity, would not be available, stringent
requisites for the proof thereof have been statutorily enjoined to rule out
the possibility of any manipulation. This is more so, as many a times, the
manner of dispensation is in stark departure from the prescribed canons of
devolution of property to the heirs and legal representatives of the
deceased. The rigour of Section 63 (c) of the Act and Section 68 of 1872
Act is thus befitting the underlying exigency to secure against any self
serving intervention contrary to the last wishes of the executor.

45.1 Viewed in premise, Section 71 of the 1872 Act has to be necessarily
accorded a strict interpretation. The two contingencies permitting the
play of this provision, namely, denial or failure to recollect the
execution by the attesting witness produced, thus a fortiori has to be
extended a meaning to ensure that the limited liberty granted by Section 71
of 1872 Act does not in any manner efface or emasculate the essence and
efficacy of Section 63 of the Act and Section 68 of 1872 Act. The
distinction between failure on the part of a attesting witness to prove the
execution and attestation of a Will and his or her denial of the said event
or failure to recollect the same, has to be essentially maintained. Any
unwarranted indulgence, permitting extra liberal flexibility to these two
stipulations, would render the predication of Section 63 of the Act and
Section 68 of the 1872 Act, otiose. The propounder can be initiated to the
benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced and in clear terms
either denies /deny the execution of the document or cannot recollect the
said incident. Not only, this witness/witnesses has/have to be credible
and impartial, the evidence adduced ought to demonstrate unhesitant denial
of the execution of the document or authenticate real forgetfulness of such
fact. If the testimony evinces a casual account of the execution and
attestation of the document disregardful of truth, and thereby fails to
prove these two essentials as per law, the propounder cannot be permitted
to adduce other evidence under cover of Section 71 of the 1872 Act. Such a
sanction would not only be incompatible with the scheme of Section 63 of
the Act read with Section 68 of the 1872 Act but also would be extinctive
of the paramountcy and sacrosanctity thereof, a consequence, not
legislatively intended. If the evidence of the witnesses produced by the
propounder is inherently worthless and lacking in credibility, Section 71
of Act 1872 cannot be invoked to bail him (propounder) out of the situation
to facilitate a roving pursuit. In absence of any touch of truthfulness and
genuineness in the overall approach, this provision, which is not a
substitute of Section 63 (c ) of the Act and Section 68 of the 1872 Act,
cannot be invoked to supplement such failed speculative endeavour

45.2 Section 71 of the 1872 Act, even if assumed to be akin to a proviso
to the mandate contained in Section 63 of the Act and Section 68 of the
1872 Act, it has to be assuredly construed harmoniously therewith and not
divorced therefrom with a mutilative bearing. This underlying principle is
inter alia embedded in the decision of this Court in the Commission of
Income Tax, Madras Appellant Versus Ajax Products Limited Respondent AIR
1965, Supreme Court 1358.

46. The materials on record, as a whole, also do not, in our
comprehension, present a backdrop, in which, in normal circumstances, the
testator would have preferred the appellant to be the legatee of his
property as set out in the Will, Ex. A-1, by denying his wife, children and
grand children who were alive and with whom he did share a very warm
affectionate and cordial relationship. Viewed in this context, the bequest
is exfacie unnatural, unfair and improbable thus reflecting on the
testator’s cognizant, free, objective and discerning state of mind at the
time of the alleged dispensation. The suspicious circumstances attendant on
the disposition, in our opinion, do militatively impact upon the
inalienable imperatives of solemnity and authenticity of any bequest to be
effected by a testamentary instrument.

47. In the wake of the determinations made herein above, we are of the
unhesitant opinion that the challenge laid in the instant appeal lacks in
merit.

48. The High Court, in our estimate, has appropriately appreciated the law
and the facts in the right perspective and the impugned decision does not
call for any interference. The appeals are dismissed.

49. No cost.

……………………..J.
(Kurian Joseph)

……………………..J.
(Amitava Roy)
New Delhi
Dated: May 01, 2015

Back to Judgments