JUDGMENT
Hari Shankar Prasad, J.
1. The appeal has arisen out of judgment dated 12.4.1999 passed in Title (Probate) Suit No. 1 of 1997 (Probate Case No. 8 of 1997), whereby and whereunder the learned 5th Additional District Judge, Dhanbad dismissed the suit.
2. The case of the appellant, who is petitioner in probate case, is that Nandlal Basu was the brother of the husband of the petitioner-appellant, who executed a Deed of Will on 27.10.1978 and made petitioner Maya Rani Basu as executor of the Will. The appellant-petitioner filed a petition under Section 276 of the Indian Succession Act for grant of Probate stating inter alia therein that she has been appointed executor of the Will and that Nandlal Basu was the brother of her husband. Nandlal Basu died on 1.1.1986 and before his death on 27.10.1978 he had executed a Will appointing her as executor of the Will. It is further alleged that at the time of execution of the Will, the ordinary residence of the testator was at Bastakola atta chakki, Dhanbad within the jurisdiction of the Court and that was his fixed place of residence. Notices were issued to the relations of Nandlal Basu and one Saroj Kumar Basu was made opposite party in the petition, who appeared in the case and filed an objection on 25.5.1988 and contested the case, but before conclusion of the case, the appellant-petitioner added some other persons as opposite parties and thereafter all the persons appeared and filed another joint objection petition on 18.3.1993 and contested the case and the grounds taken by the first objector are more or less similar to the grounds taken by other objectors. In the objection petition, it was alleged that this petition is not maintainable and that Nandlal Basu never executed any Will on 27.10.1978 or on any other date during his lifetime and thereby he did not make dispossession of his property situated at Bastakola. Nandlal Basu was suffering from hypertension and various other ailments and he was not in a position to make dispossession of his property. The objector has taken other grounds that Nandlal Basu never executed a Deed of Sale and so-called Deed has not been properly executed and attested and, therefore, petition for grant of probate should be dismissed.
3. On the basis of the aforesaid allegations of the parties, the learned Court below framed three issues, which are as follows :–
I. Had Nandlal Basu testamentary capacity to execute the Will?
II. Whether Nandlal Basu executed the Will in question in favour of petitioner Maya Rani Basu and whether it was duly attested?
III. Is the petitioner entitled for the grant of Probate?
4. The learned Court below, after recording evidence of both the sides, both oral and documentary and while deciding issue No. 1 held that the deceased Nandlal Basu was in good health and was in a position to make dispossession of his property and he had capacity to execute deed of Will and decided issue No. 1 in favour of the appellant-petitioner but while deciding issue No. 2, learned Court below came to a finding that the Will has not been duly attested and on this fresh ground, the learned Court below came to a finding that the petitioner is not entitled to grant of Probate.
5. Learned counsel for the appellant submitted that the learned Court below committed an error of law in deciding that the Will in question is not duly attested and to that effect evidence has not been brought on record and, therefore, he came to an erroneous finding that the appellant-petitioner is not entitled to grant of probate. He placed reliance upon a number of rulings to show that evidence has been brought on record about due attestation by the witnesses and in this connection he has placed reliance upon AIR 1998 Delhi 390 and submitted that examination of only one witness is sufficient to prove attestation. In this connection he referred to Section 68 of the Evidence Act, wherein it has been laid down that to prove a Will at least one attesting witness be examined and examination of only one witness to prove attestation is sufficient and therefore, there is compliance of Section 68 of the Evidence Act. The learned counsel further pointed out that the Court is empowered to draw comparison of signature on the basis of admitted signature. The learned counsel further placed reliance upon AIR 1998 HP 37, wherein it has been held that “scribe of Will stating that Will was scribed by him at the instance of testator, who was in fit state of health, mind and that Will was signed by testator after it was read over to him by scribe whereafter marginal witnesses and he himself also signed. The statement of marginal witnesses corroborating statement of scribe can be taken to be statement of attesting witnesses. He further place reliance upon AIR 1972 Patna 214 (V 59 C 55), and submitted that signatures of witnesses at the end or somewhere on the instrument are sufficient to show, without any explanation, that the witnesses put their signatures by way of saying that they had seen the document being executed and had received an acknowledgement. It is not necessary for them to state on the document that they put their signatures in presence of testator.
6. In course of submission, learned counsel for the objectors-respondents submitted that scribe cannot be an attesting witness. On the other hand, learned counsel for the petitioner-appellant submitted that even scribe can be a competent witness and in this connection he placed reliance upon AIR 1986 P&H 230, wherein it has been held that scribe can prove the will as attesting witness and the scribe can also be an attesting witness. The learned counsel further placed reliance upon AIR 1977 SC 63, wherein it has been held that circumstances surrounding execution surrounded with suspicion, then satisfactory evidence is essential.
7. On the other hand, learned counsel for the respondents submitted that without attestation, the execution of Deed of Will is not valid and no witness has deposed that the alleged Will was signed by deceased in his presence or that he had attested the document and in that case it will be held that there was no due execution of the Deed of Will.
8. The learned Court below recorded evidence of both the sides and after carefully examining the evidences of the witnesses and the documents produced on their behalf, came to a finding that Nandlal Basu was in a fit state of mind and was capable to understand the fact and in that state of mind he made dispossession of his property and executed the Will in favour of the appellant-plaintiff. The learned Court below also came to a finding that Nandlal Basu had testamentary capacity at the relevant point of time. But on the other hand, while deciding issue No. 2, came to a finding that the witnesses, who have been examined, have not proved due execution of the Will, but from perusal of materials on record it appears that PW 5 is scribe of the Will and he appeared as PW 5 and gave evidence about due execution of the Will. He was cross-examined by the first objector and was discharged but when some objectors were again added as party then he could not be produced for his again cross-examination because at that time he was dead and therefore, he could not be cross-examined by the newly added objectors. The learned Court below held the evidence of this witness admissible under Section 33 of the Indian Evidence Act, Section 33 of the Indian Evidence Act is quoted hereinbelow :–
“33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated.–Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable :
Provided :–
that the proceeding was between the same parties or their representatives in interest;
that the adverse party in the first proceeding had the right and opportunity to cross-examine;
that the questions in issue were substantially the same in the first as in the second proceeding.
Explanation.–A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.”
9. From perusal of the provisions of Section 33 of the Evidence Act, it will appear that for the same proceeding at a later stage, the evidence of a witness, who is either dead or whose presence cannot be secured, without an amount of delay, will be admissible provided that the parties are the same and at the first instance the adverse party had the right to cross-examine him. Here in the instant case first objector had the opportunity to cross-examine this witness but after other new objectors were added, this witness could not be produced due to his death and, therefore, his evidence recorded earlier is admissible in evidence and he had proved the execution as well as due attestation. Since an scribe can also be an attesting witness and respondent No. 5 was an scribe and he has proved due attestation of the Will, hence it will be deemed that due execution of the Will has been proved and, therefore, there is substantial compliance of Section 68 of the Indian Evidence Act.
10. In the result, this appeal is allowed and the judgment of the learned Court below is hereby set aside.