In Abinash
Chandra Bidvanidhi Bhattacharya v. Dasarath Malo [ILR
56 Cal 598] it was held that a person who had put his
name under the word “scribe” was not an attesting
witness as he had put his signature only for the purpose
of authenticating that he was a “scribe”. In Shiam
Sunder Singh v. Jagannath Singh [54 MLJ 43] , the Privy
Council held that the legatees who had put their
signatures on the will in token of their consent to its
execution were not attesting witnesses and were not
disqualified from taking as legatees.”
25. In the aforesaid case, it had been held that the person who put his
name under the word “scribe” was not an attesting witness, further
that the legatees who had put their signatures on the Will were not
attesting witnesses.
26. Mr. Swarup relied on judgment reported as N. Kamalam (Dead) &
Anr. v. Ayyasamy & Anr.12 that in the absence of Maha Singh
deposing that he is the attesting witness along with Azad Singh, his
statement cannot be treated to be that of attesting witness. We do
not find any merit in the said argument. In the aforesaid case, it
was the scribe who was said to be the attesting witness. This Court
held as under:
“27. …The animus to attest, thus, is not available, so far
as the scribe is concerned: he is not a witness to the will
but a mere writer of the will. The statutory requirement
as noticed above cannot thus be transposed in favour of
the writer, rather goes against the propounder since both
the witnesses are named therein with detailed address
and no attempt has been made to bring them or to
produce them before the court so as to satisfy the
judicial conscience. Presence of scribe and his signature
appearing on the document does not by itself be taken to
be the proof of due attestation unless the situation is so
expressed in the document itself — this is again,
however, not the situation existing presently in the
matter under consideration.
REPORTABLE
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1960 OF 2020
DHANPAT Vs SHEO RAM
Dated:MARCH 19, 2020.
HEMANT GUPTA, J.
1. The challenge in the present appeal is to an order passed by the
High Court of Punjab & Haryana on 27th March, 2014 whereby the
concurrent findings of fact recorded by both the courts below were
set aside and the suit filed by the respondent-plaintiff was decreed.
2. The High Court has framed the following two substantial questions
of law:
“1. Whether the Will dated 30.4.1980 Ex.D-3 was
surrounded by suspicious circumstances and due
execution thereof was also not proved, in accordance with
the requirements of Section 63 of the Succession Act;
2. Whether the learned courts below have completely
misread, misconstrued and misinterpreted the evidence
available on record, particularly the Will Ex.D-3, because
of which the impugned judgments cannot be sustained.”
3. The admitted facts are that one Misri was the grandfather of the
Plaintiff-Sheo Ram and defendant No.5-Sohan Lal and defendant
Nos.7-9 were his granddaughters. Chandu Ram was the father of
the plaintiff and defendant Nos.5, 7-9 and the husband of Chand
Kaur had inherited the suit land from his father, Misri.
4. The plaintiff filed a suit for declaration that he along with his
mother, Chand Kaur and his sisters, defendants Nos. 7-9, were the
owners and in possession of equal shares of the suit land
measuring 489 kanals 4 marlas. He asserted that he belonged to
the Jat community and was governed by Punjab Customary Law.
Further, that his brother, defendant No. 5, got a Will dated 30th
April, 1980 executed in favour of his sons, from Chandu Ram. Such
a Will contravened Jat Customary Law and was the result of fraud
and misrepresentation. Defendant No.5 and his sons, the
beneficiaries under the Will filed a common written statement and
asserted that the custom had been abrogated after passing of the
Hindu Succession Act, 19561 and that Chandu Ram had separated
all his sons during his life time and given sufficient amount to his
daughters, defendant Nos.7-9, in the shape of dowry and other
ceremonial and customary festivities. In this regard, sufficient land
had also been given to the plaintiff, therefore, there was no Joint
Hindu Family. The Will had been executed by Chandu Ram out of
his natural love and affection and was without any inducement or
1 for short, ‘Act’
fraud or misrepresentation.
5. The learned trial court framed as many as 12 issues but for the
purpose of deciding the present appeal, Issue Nos. 1, 3 and 7 are
relevant which read as under:
“1. Whether the plaintiff and the proforma defendants are
the owners and in possession of the property in dispute?
xx xx xx
3. Whether the Will dated 30.4.1980 was validly executed
by Chandu Ram in favour of defendants No. 1 to 4?
xx xx xx
7. Whether deceased Chandu had separated all his sons
during his life time and had given sufficient amount to his
daughters in the shape of dowry etc. and land to his sons
as alleged in preliminary objection no. 5 of the written
statement? If so to what effect?”
6. In respect of Issue No. 7 relating to the partition of the property by
Chandu Ram, the defendants relied upon a judgment and decree in
a suit filed by the Plaintiff-Sheo Ram and defendant No.5, Sohan Lal
against their father Chandu Ram. Chandu Ram admitted the fact of
partition and that a judgment (Ex.D-21) and decree (Ex.D-22) to
this effect was passed. Thereafter, a mutation was also
sanctioned. Chandu Ram had filed a suit for permanent injunction
to the effect that the property in dispute fell to his share while the
defendant (present plaintiff) was given 50 acres of land situated in
Village Gawar, 15½ acres of land in Village Bairan, 10 acres of land
in Village Hariawas and 6 acres of land in Village Baliali, totaling
81½ acres. It was also pleaded that the defendant therein sold 50
acres of land of Village Gawar and 15½ acres of land of Village
Bairan after this partition. The defendant therein asserted that the
properties mentioned above were purchased by him from his
exclusive funds and, therefore, he has right to sell the same. The
certified copy of judgment and decree are Ex. D-17 and D-18.
Therefore, the learned trial court held that Chandu Ram had
separated his sons during his life time and had settled his
daughters as well. Such findings were affirmed by the learned First
Appellate Court.
7. In respect of Issue No. 3, the learned trial court held that the Will is
duly proved on the basis of statement of DW-3 Maha Singh, an
attesting witness, DW-4 Advocate D.S. Panwar, the scribe, DW-5
Sohan, the defendant and Krishan Kant, Registration Clerk as DW 2.
The Court noticed that DW-4 D.S. Panwar was Chandu Ram’s
advocate in the cases before the Civil Court who had scribed the
Will at his instance and Maha Singh had put his signatures on the
original Will in his presence. DW-4 D.S. Panwar deposed that the
original Will was stated to have been lost and that he was not sure
as to whether Ex. D-3 was the correct photocopy of the original
Will. Chand Kaur, wife of Chandu Ram was examined as PW-1
who had deposed that Chandu Ram had ousted her from his house.
Therefore, the Court found that it was natural for Chandu Ram to
execute the Will in favour of Defendant No.5, Sohan Lal’s sons. The
Court did not find any merit in the argument that a deviation from
natural succession will make the Will doubtful. It was also held that
the scribe cannot be treated as an attesting witness but that since
two attesting witnesses have signed the Will, the execution of the
Will is proved by examining one of the attesting witnesses. With
the aforesaid findings, the learned trial court dismissed the suit
filed by the plaintiff.
8. The learned First Appellate Court affirmed the findings recorded by
the trial court and dismissed the suit filed by the plaintiff vide
judgment and decree dated 11th May, 1987. It was held that the
Will had been executed by Chandu Ram in favour of the defendant
Nos. 1 to 4, i.e. the sons of Defendant No.5, Sohan Lal and was not
surrounded by suspicious circumstances.
9. In second appeal, the learned High Court allowed the appeal filed
by the plaintiff holding that the Will dated 30th April, 1980 was
surrounded by suspicious circumstances. The substantial question
of law framed by the High Court was only to this effect. It was
argued by the defendants that the finding that the Will stands
executed and was not surrounded by suspicious circumstances and
has been illegally interfered by the High Court.
10. The High Court had held that only Maha Singh was examined as
attesting witness as DW-3 whereas the second attesting witness
Azad Singh was not produced, therefore, the Will was not proved. It
also held that the Will had been completely misread, misconstrued
and misinterpreted. The High Court found that in the Will, there
was no mention of Chandu Ram’s wife and the other son i.e. the
Plaintiff, and therefore, such fact was a suspicious circumstance to
doubt the genuineness of the Will. The High Court referred to the
judgment of the trial court dated 7th December, 1981 filed by
Chandu Ram to prove that the house and agricultural land were
ancestral property though no substantial question of law on the
said aspect relating to the nature of land was framed. In fact, the
judgment dated 7th December 1981 (Ex- D-17) in the suit filed by
Chandu Ram, has been produced by the respondent with the
present appeal. A perusal of the judgment shows that Chandu Ram
had asserted partition of the property about 8-10 years back. The
Plaintiff-Sheo Ram had asserted that he is in joint possession of the
property. In the said suit, a decree for permanent injunction was
passed restraining the defendant from interfering with the disputed
property after returning a finding on Issue No. 5 that a family
partition had taken place and that the property cannot be said to
be joint property of the parties. The High Court has not referred to
the findings recorded in the suit filed by the Plaintiff-Sheo Ram.
11. It may be noticed that in view of Constitution Bench judgment of
this Court in Pankajakshi (D) through LRs & Ors. v. Chandrika
& Ors.2, substantial question of law may not be required to be
framed in Punjab and Haryana but still, the finding of fact recorded
cannot be interfered with even in terms of Section 41 of the Punjab
Courts Act, 1918. The said question was examined by this Court in
Randhir Kaur v. Prithvi Pal Singh and Others3, wherein, the
2 (2016) 6 SCC 157
3 Civil Appeal No. 5822 of 2019 decided on 24th July, 2019
scope for interference in the second appeal under Section 41 of the
Punjab Courts Act applicable in the States of Punjab and Haryana
was delineated and held as under:
“16. A perusal of the aforesaid judgments would show
that the jurisdiction in second appeal is not to interfere
with the findings of fact on the ground that findings are
erroneous, however, gross or inexcusable the error may
seem to be. The findings of fact will also include the
findings on the basis of documentary evidence. The
jurisdiction to interfere in the second appeal is only where
there is an error in law or procedure and not merely an
error on a question of fact.
17. In view of the above, we find that the High Court
could not interfere with the findings of fact recorded after
appreciation of evidence merely because the High Court
thought that another view would be a better view. The
learned first appellate court has considered the absence of
clause in the first power of attorney to purchase land on
behalf of the Plaintiff; the fact that the plaintiff has not
appeared as witness.”
12. In support of the findings recorded by the High Court, Mr. Manoj
Swarup, learned senior counsel for the plaintiff-respondent argued
that in terms of Section 69 of the Indian Succession Act, 1925, a
Will is required to be attested by two witnesses who have seen the
testator and in which the testator and two of the attesting
witnesses sign in presence of each other. It is argued that Maha
Singh, DW-3 had not deposed that all three were present at the
same time, therefore, the finding of the High Court has to be read
in that context, when the Will was found to be surrounded by
suspicious circumstances as the second attesting witness was not
examined. It is also argued that the original Will has not been
produced and no application for leading secondary evidence was
filed. Therefore, the secondary evidence could not be led by the
defendant to prove the execution of the Will.
13. Section 65(c) of the Indian Evidence Act, 18724 is applicable in the
facts of the present case as the defendants asserted that the
original Will is lost. The Section 65 reads as under:
“65. Cases in which secondary evidence relating to
documents may be given. – Secondary evidence may be
given of the existence, condition, or contents of a
document in the following cases:-
(a) xx xx xx
(b) xx xx xx
(c) when the original has been destroyed or lost, or
when the party offering evidence of its contents
cannot, for any other reason not arising from his
own default or neglect, produce it in reasonable
time;
(d) xx xx xx
(e) xx xx xx
(f) xx xx xx
(g) xx xx xx
In cases (a), (c) and (d), any secondary evidence of the
contents of the document is admissible.
xx xx xx”
14. The defendants produced a certified copy of the Will obtained from
the office of the Sub-Registrar. The defendants also produced the
photocopy of the Will scribed by DW 4- D.S. Panwar.
15. In a judgment reported as M. Ehtisham Ali for himself and in
place of M. Sakhawat Ali, since deceased v. Jamna Prasad,
4 for short, ‘Evidence Act’
since deceased & Ors.5, the appellants-plaintiffs filed a suit on
the basis of a sale deed. During trial, the stand of the plaintiffs
was that the original sale deed was lost but since it was registered,
secondary evidence by way of a certified copy prepared by the
office of the Registrar was produced. It was not disputed that the
copy produced was not the correct copy of the registered
document. The suit was dismissed for the reason that the plaintiffs
have not succeeded in satisfactorily establishing the loss of the
original sale deed. The Court held as under:
“It is, no doubt, not very likely that such a deed would be
lost, but in ordinary cases, if the witness in whose custody
the deed should be deposed to its loss, unless there is
some motive suggested for his being untruthful, his
evidence would be accepted as sufficient to let in
secondary evidence of the deed. And if in addition he was
not cross-examined, this result would follow all the more.
There is no doubt that the deed was executed, for it was
registered, and registered in a regular way, and it is the
duty of the registrar, before registering, to examine the
grantor, or some one whom he is satisfied is the proper
representative of the grantor, before he allows the deed to
be registered.”
16. In another judgment reported as Aher Rama Gova & Ors. v.
State of Gujarat6, the secondary evidence of dying declaration
recorded by a Magistrate was produced in evidence. This Court
found that though the original dying declaration was not produced
but from the evidence, it is clear that the original was lost and was
not available. The Magistrate himself deposed on oath that he had
given the original dying declaration to the Head Constable whereas
5 AIR 1922 PC 56
6 (1979) 4 SCC 500
the Head Constable deposed that he had made a copy of the same
and given it back to the Magistrate. Therefore, the Court found that
the original dying declaration was not available and the
prosecution was entitled to give secondary evidence which
consisted of the statement of the Magistrate as also of the Head
Constable who had made a copy from the original. Thus, the
secondary evidence of dying declaration was admitted in evidence,
though no application to lead secondary evidence was filed.
17. Even though, the aforesaid judgment is in respect of the loss of a
sale deed, the said principle would be applicable in respect of a
Will as well, subject to the proof of the Will in terms of Section 68
of the Evidence Act. In the present case as well, the Will was in
possession of the beneficiary and was stated to be lost. The Will is
dated 30th April, 1980 whereas the testator died on 15th
January, 1982. There is no cross-examination of any of the
witnesses of the defendants in respect of loss of original Will.
Section 65 of the Evidence Act permits secondary evidence of
existence, condition, or contents of a document including the cases
where the original has been destroyed or lost. The plaintiff had
admitted the execution of the Will though it was alleged to be the
result of fraud and misrepresentation. The execution of the Will
was not disputed by the plaintiff but only proof of the Will was the
subject matter in the suit. Therefore, once the evidence of the
defendants is that the original Will was lost and the certified copy
is produced, the defendants have made out sufficient ground for
leading of secondary evidence.
18. This Court in Bipin Shantilal Panchal v. State of Gujarat &
Anr.7, deprecated the practice in respect of the admissibility of any
material evidence, where the Court does not proceed further
without passing order on such objection. It was held that all
objections raised shall be decided by the Court at the final stage.
The Court held as under:
“14. When so recast, the practice which can be a better
substitute is this: Whenever an objection is raised during
evidence-taking stage regarding the admissibility of any
material or item of oral evidence the trial court can make
a note of such objection and mark the objected document
tentatively as an exhibit in the case (or record the
objected part of the oral evidence) subject to such
objections to be decided at the last stage in the final
judgment. If the court finds at the final stage that the
objection so raised is sustainable the Judge or Magistrate
can keep such evidence excluded from consideration. In
our view there is no illegality in adopting such a course.
(However, we make it clear that if the objection relates to
deficiency of stamp duty of a document the court has to
decide the objection before proceeding further. For all
other objections the procedure suggested above can be
followed).
15. The above procedure, if followed, will have two
advantages. First is that the time in the trial court, during
evidence-taking stage, would not be wasted on account of
raising such objections and the court can continue to
examine the witnesses. The witnesses need not wait for
long hours, if not days. Second is that the superior court,
when the same objection is recanvassed and reconsidered
in appeal or revision against the final judgment of the trial
court, can determine the correctness of the view taken by
the trial court regarding that objection, without bothering
to remit the case to the trial court again for fresh disposal.
We may also point out that this measure would not cause
any prejudice to the parties to the litigation and would not
add to their misery or expenses.”
7 (2001) 3 SCC 1
19. This Court in Z. Engineers Construction Pvt. Ltd. & Anr. v.
Bipin Bihari Behera & Ors.8, held that even in respect of
deficiency of stamp duty in the State of Orissa where a question
arose as to whether possession had been delivered in pursuance of
a registered power of attorney, the same was a question of fact
which was required to be decided after the evidence was led.
20. There is no requirement that an application is required to be filed in
terms of Section 65(c) of the Evidence Act before the secondary
evidence is led. A party to the lis may choose to file an application
which is required to be considered by the trial court but if any party
to the suit has laid foundation of leading of secondary evidence,
either in the plaint or in evidence, the secondary evidence cannot
be ousted for consideration only because an application for
permission to lead secondary evidence was not filed.
21. Now, coming to the question as to whether the defendants have
proved the due execution of the Will, reference will be made to a
judgment reported as H. Venkatachala Iyengar v. B.N.
Thimmajamma & Ors.9. This Court while considering Section 63
of the Act and Section 68 of the Evidence Act laid down the test as
to whether the testator signed the Will and whether he understood
the nature and effect of the dispositions in the Will. The Court held
as under:
“18. …Thus the question as to whether the will set up by
the propounder is proved to be the last will of the testator
8 2020 SCC OnLine SC 184
9 AIR 1959 SC 443
has to be decided in the light of these provisions. Has the
testator signed the will? Did he understand the nature and
effect of the dispositions in the will? Did he put his
signature to the will knowing what it contained? Stated
broadly it is the decision of these questions which
determines the nature of the finding on the question of
the proof of wills. It would prima facie be true to say that
the will has to be proved like any other document except
as to the special requirements of attestation prescribed
by Section 63 of the Indian Succession Act. As in the case
of proof of other documents so in the case of proof of wills
it would be idle to expect proof with mathematical
certainty. The test to be applied would be the usual test of
the satisfaction of the prudent mind in such matters.”
22. This Court in a judgment reported as Seth Beni Chand (since
dead) now by LRs. v. Smt. Kamla Kunwar & Ors.10 held that
onus probandi lies in every case upon the party propounding a Will,
and he must satisfy the conscience of the court that the instrument
so propounded is the last will of a free and capable testator. The
Court held as under:
“9. The question which now arises for consideration, on
which the Letters Patent Court differed from the learned
Single Judge of the High Court, is whether the execution of
the will by Jaggo Bai is proved satisfactorily. It is wellsettled
that the onus probandi lies in every case upon the
party propounding a will, and he must satisfy the
conscience of the court that the instrument so
propounded is the last will of a free and capable testator. [
See Jarman on Wills (8th Edn., p. 50) and H. Venkatachala
Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 : 1959
Supp (1) SCR 426] By “free and capable testator” is
generally meant that the testator at the time when he
made the will had a sound and disposing state of mind
and memory. Ordinarily, the burden of proving the due
execution of the will is discharged if the propounder leads
evidence to show that the will bears the signature or mark
of the testator and that the will is duly attested. For
proving attestation, the best evidence would naturally be
10 (1976) 4 SCC 554
of an attesting witness and indeed the will cannot be used
as evidence unless at least one attesting witness,
depending on availability, has been called for proving its
execution as required by Section 68 of the Evidence
Act….”
23. In view of the aforesaid judgments, at least one of the attesting
witnesses is required to be examined to prove his attestation and
the attestation by another witness and the testator. In the present
case, DW-3 Maha Singh deposed that Chandu Ram had executed
his Will in favour of his four grandsons and he and Azad Singh
signed as witnesses. He deposed that the testator also signed it in
Tehsil office. He and Azad Singh were also witnesses before the
Sub-Registrar. In the cross-examination, he stated that he had
come to Tehsil office in connection with other documents for
registration. He deposed that Ex.D-4-the Will, was typed in his
presence. He denied the question that no Will was executed in his
presence. There was no cross-examination about his not being
present before the Sub-Registrar. Once the Will has been proved
then the contents of such document are part of evidence. Thus, the
requirement of Section 63 of the Act and Section 68 of the
Evidence Act stands satisfied. The witness is not supposed to
repeat in a parrot like manner the language of Section 68 of the
Evidence Act. It is a question of fact in each case as to whether the
witness was present at the time of execution of the Will and
whether the testator and the attesting witnesses have signed in his
presence. The statement of the attesting witness proves the due
execution of the Will apart from the evidence of the scribe and the
official from the Sub-Registrar’s office.
24. Mr. Swarup referred to judgment of this Court reported as M.L.
Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons & Ors.11.
The primary issue discussed therein was a summary suit for
recovery wherein an application for leave to defend was granted on
the condition of furnishing a security for a sum of Rs.50,000/-. The
question examined was whether the security bond is attested by
the two witnesses and, if not, whether it was invalid. While
considering the attestation, this Court discussed the question of
attestation of witnesses as well and held as under:
“8. “In every case the Court must be satisfied that the
names were written animo attestandi”, see Jarman
on Wills, 8th Edn., p. 137. Evidence is admissible to
show whether the witness had the intention to attest.
“The attesting witnesses must subscribe with the
intention that the subscription made should be complete
attestation of the will, and evidence is admissible to
show whether such was the intention or not,”
see Theobald on Wills, 12th Edn., p. 129. In Girja
Datt v. Gangotri [AIR 1955 SC 346, 351] , the Court held
that the two persons who had identified the testator at
the time of the registration of the will and had appended
their signatures at the foot of the endorsement by the
sub-Registrar, were not attesting witnesses as their
signatures were not put “animo attestandi”. In Abinash
Chandra Bidvanidhi Bhattacharya v. Dasarath Malo [ILR
56 Cal 598] it was held that a person who had put his
name under the word “scribe” was not an attesting
witness as he had put his signature only for the purpose
of authenticating that he was a “scribe”. In Shiam
Sunder Singh v. Jagannath Singh [54 MLJ 43] , the Privy
Council held that the legatees who had put their
signatures on the will in token of their consent to its
execution were not attesting witnesses and were not
disqualified from taking as legatees.”
11 (1969) 1 SCC 573
25. In the aforesaid case, it had been held that the person who put his
name under the word “scribe” was not an attesting witness, further
that the legatees who had put their signatures on the Will were not
attesting witnesses. In the present case, Maha Singh and Azad
Singh have signed the Will as attesting witnesses not only at the
time of execution but also at the time of registration before the
Sub-Registrar. Therefore, the said judgment is not helpful to the
argument raised.
26. Mr. Swarup relied on judgment reported as N. Kamalam (Dead) &
Anr. v. Ayyasamy & Anr.12 that in the absence of Maha Singh
deposing that he is the attesting witness along with Azad Singh, his
statement cannot be treated to be that of attesting witness. We do
not find any merit in the said argument. In the aforesaid case, it
was the scribe who was said to be the attesting witness. This Court
held as under:
“27. …The animus to attest, thus, is not available, so far
as the scribe is concerned: he is not a witness to the will
but a mere writer of the will. The statutory requirement
as noticed above cannot thus be transposed in favour of
the writer, rather goes against the propounder since both
the witnesses are named therein with detailed address
and no attempt has been made to bring them or to
produce them before the court so as to satisfy the
judicial conscience. Presence of scribe and his signature
appearing on the document does not by itself be taken to
be the proof of due attestation unless the situation is so
expressed in the document itself — this is again,
however, not the situation existing presently in the
matter under consideration. Some grievance was made
before this Court that sufficient opportunity was not
being made available, we are however, unable to record
our concurrence therewith. No attempt whatsoever has
12 (2001) 7 SCC 503
been made to bring the attesting witnesses who are
obviously available.”
27. The said judgment has no applicability inasmuch as Maha Singh is
the attesting witness and has been examined as such by the
defendant.
28. Mr. Swarup further relied upon a judgment of this Court reported as
Janki Narayan Bhoir v. Narayan Namdeo Kadam13 to contend
that if one attesting witness is examined, he has to depose about
the presence of the second attesting witness by relying upon the
following findings:
“10. …The one attesting witness examined, in his
evidence has to satisfy the attestation of a will by him
and the other attesting witness in order to prove there
was due execution of the will. If the attesting witness
examined besides his attestation does not, in his
evidence, satisfy the requirements of attestation of the
will by the other witness also it falls short of attestation
of will at least by two witnesses for the simple reason
that the execution of the will does not merely mean the
signing of it by the testator but it means fulfilling and
proof of all the formalities required under Section 63 of
the Succession Act. Where one attesting witness
examined to prove the will under Section 68 of the
Evidence 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. Where one attesting witness is examined
and he fails to prove the attestation of the will by the
other witness there will be deficiency in meeting the
mandatory requirements of Section 68 of the Evidence
Act.”
29. We do not find any merit in the said argument as well. The
13 (2003) 2 SCC 91
statement of Maha Singh produced on record shows that he along
with Azad Singh, the other attesting witness and the testator had
signed the Will. In the cross-examination, the statement that he
has signed the Will had not been disputed nor that the testator or
the other attesting witness was not present at that time.
Therefore, the ratio of the aforesaid judgment is not applicable to
the facts of the present case. In fact, it is finding of fact, recorded
by the First Appellate Court.
30. In respect of an argument that some of the natural heirs were not
even mentioned in the Will, therefore, the Will is surrounded by
suspicious circumstances is again not tenable. Mr. Rishi Malhotra,
learned counsel for the appellant referred to the judgment of this
Court reported as Rabindra Nath Mukherjee & Anr. v.
Panchanan Banerjee (Dead) by LRs. & Ors.14 wherein it had
been held that the Will was executed for the exclusion of the
natural heirs. The suspicious circumstances found by the High
Court to deprive the natural heirs by the testatrix was not found to
be sufficient. The Court held as under:
“4. As to the first circumstance, we would observe that
this should not raise any suspicion, because the whole
idea behind execution of will is to interfere with the
normal line of succession. So natural heirs would be
debarred in every case of will; of course, it may be that in
some cases they are fully debarred and in others only
partially. As in the present case, the two executors are
sons of a half-blood brother of Saroj Bala, whereas the
objectors descendants of a full blood sister, the
disinheritance of latter could not have been taken as a
suspicious circumstance, when some of her descendants
14 (1995) 4 SCC 459
are even beneficiaries under the will.”
31. Mr. Malhotra referred to another judgment of this Court reported as
Ved Mitra Verma v. Dharam Deo Verma15 wherein this Court
held that the exclusion of the children of the testator and execution
of the Will for the sole benefit of one of the sons by the testator, is
not a suspicious circumstance. This Court held as under:
“8. The exclusion of the other children of the testator and
the execution of the will for the sole benefit of one of the
sons i.e. the respondent, by itself, is not a suspicious
circumstance. The property being self-acquired, it is the
will of the testator that has to prevail.”
32. Mr. Malhotra also referred to the judgment of this Court reported as
Leela Rajagopal & Ors. v. Kamala Menon Cocharan & Ors.16
wherein it was held that it is the overall assessment of the Court on
the basis of the unusual features appearing in the Will or the
unnatural circumstances surrounding its execution, that justifies a
close scrutiny of the same before it can be accepted. Herein, the
cumulative effect of the unusual features and circumstances
surrounding the Will, would weigh upon the court in the
determination required to be made by it. The judicial verdict will be
based on the consideration of all the unusual features and
suspicious circumstances put together and not upon the impact of
any single feature that may be found in a Will or a singular
circumstance that may appear from the process leading to its
execution. The Court held as under:
“13. A will may have certain features and may have been
executed in certain circumstances which may appear to
be somewhat unnatural. Such unusual features
15 (2014) 15 SCC 578
16 (2014) 15 SCC 570
19
appearing in a will or the unnatural circumstances
surrounding its execution will definitely justify a close
scrutiny before the same can be accepted. It is the
overall assessment of the court on the basis of such
scrutiny; the cumulative effect of the unusual features
and circumstances which would weigh with the court in
the determination required to be made by it. The judicial
verdict, in the last resort, will be on the basis of a
consideration of all the unusual features and suspicious
circumstances put together and not on the impact of any
single feature that may be found in a will or a singular
circumstance that may appear from the process leading
to its execution or registration. This, is the essence of the
repeated pronouncements made by this Court on the
subject including the decisions referred to and relied
upon before us.
14. In the present case, a close reading of the will
indicates its clear language, and its unambiguous purport
and effect. The mind of the testator is clearly discernible
and the reasons for exclusion of the sons is apparent
from the will itself…”
33. In view of the above, we find that the High Court has clearly erred
in law in interfering with the concurrent findings of fact recorded by
both the Courts below. The entire judgment runs on misconception
of law and is, therefore, not sustainable in law. The same is set
aside and the decree of the First Appellate Court is restored.
Accordingly, the appeal is allowed and the suit is dismissed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
MARCH 19, 2020.
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