JUDGMENT
Devinder Gupta, J.
1. Defendant’s appeal was admitted on the following two questions of law:
“1. Whether will dated 8/6/1983 is executed in accordance with Section 63 of the Indian Succession Act?
2. Whether the interpretations and inferences drawn from the statements Exhibit D.B., statement of PW 1 Sh. Hans Raj and other evidence on record by the District Judge are correct for holding that will dated 8/6/1983 is a valid will whereas the will dated 19-6-1983 is shrouded in suspicious circumstances?”
2. The suit of the plaintiffs-respondents for grant of a decree for declaration as regards their title to part of the estate of one Saudagar, on the basis of Will Ex. PB dated 8th June, 1983 was dismissed upholding the legality and validity of another Will Ex. DA bequeathing the entire property by deceased Saudagar in favour of his daughter Punni, defendant-appellant. The lower appellate Court allowed the plaintiffs’ appeal through the impugned judgment and decree dated 27th May, 1989 upholding the legality and validity of the Will Ex. PB (wrongly mentioned as Ex. PA) and discarding the Will Ex. DA dated 9th June, 1983. The suit of the plaintiffs was decreed. It is this judgment and decree which is under challenge in this appeal.
3. Plaintiffs claimed a decree aforementioned alleging that Saudagar owned and possessed the suit properties situate in village Bhooppur in Tehsil Paonta Sahib, District Sirmaur. Punni defendant was the only daughter of Saudagar. Wife of Saudagar had died about 30 years ago. There was none else
to look after him, since he had already married off his daughter Punni to Partap Singh, who was settled in village Kedarpur. Plaintiffs’ father Hans Raj being the son-in-law of his brother was living with Saudagar. Plaintiffs’ father and the plaintiffs were looking after and maintaining Saudagar. Nither his daughter, nor her husband were taking any care of Saudagar and thus he (Saudagar) had developed great love and affection for the plaintiffs and their father, who did not leave any stone unturned in looking after and maintaining him so that he could lead a happy life.
4. It is also alleged that on 31st March, 1983, a Will had been executed by Saudagar bequeathing his property in favour of plaintiffs as well as defendants, which was cancelled by him executing another Will Ex. P3 on 8th June, 1983, by which part of the property was bequeathed in favour of the plaintiffs, part in favour of his daughter Punni and part in favour of other two defendants, namely, Inder Singh and Sunder Singh. This Will was got registered with Sub Registrar Paonta Sahib, After the execution of the Will, the beneficiaries were put in possession on the different parcels of land and thus the plaintiffs and defendants were holding and occupying the properties separately. Saudagar is stated to have died on 16th August, 1983, after remaining ill for about more than two months, During the last stage of his life, he was not in a position to move about. After the death of Saudagar, plaintiffs came to know that defendants, in collusion with some other persons had forged a document purporting to be a. Will executed by the deceased and on that basis she was claiming an exclusive title to the entire property and denying the title of the plaintiffs and the proforma defendants. It was alleged that the Will Ex. PB dated 8th June, 1983 was the last valid Will executed by the deceased and thus title was claimed on that basis by the plaintiffs. The suit was instituted on 26th December, 1984.
5. Defendant Punni contested the suit. It was denied that the plaintiffs or their father had been looking after or maintaining the
deceased. It is also denied that neither she, nor her husband looked after or maintained Saudagar. Though she admitted that she had been residing at Kedarpur but stated that she had also been visiting her father. It is alleged by her that there was no occasion for her father to have executed a Will in favour of the plaintiffs or the other two defendants. There was also no occasion to have executed the Will dated 31 st August, 1983, which is alleged to have been superseded the Will Ex. PB dated 8th June, 1983. She claimed her title, firstly as daughter and claimed that the Will Ex. DA dated 19th June, 1983 was executed by the deceased bequeating his entire properties in her favour and also superseding the earlier Wills, which according to her had been got executed from the deceased by the plaintiffs’ father. It may be noticed at this stage that defendants 2 and 3, who are also the beneficiaries to some extent by virtue of the Will set up by the plaintiff at no point of time contested the proceedings or put up appearance in the trial court or before the lower appellate court or in this court. From the aforementioned narration of facts, it becomes clear that the plaintiffs are claiming title to the suit property, on the basis of Will Ex. PB alleged to have been executed on 8th June, 1993, whereas the defendant claims that the Will Ex. PB was superseded by a subsequent Will Ex. DA dated 19th June, 1983 or in the alternative no valid Will was ever executed by the deceased as claimed by the plaintiffs and she being the natural heir had rightly inherited the estate of the deceased.
6. The trial court, as noticed above, on consideration of the entire evidence found that the plaintiffs had failed to prove the due and valid execution of the Will Ex. PB, whereas the legality and validity of the Will Ex. DA was upheld. The lower appellate court reversed the findings of fact. The Will Ex. PB dated 8th June. 1983 was found to have been validly executed. It was also held that the plaintiffs had discharged the onus, which lay upon them in dispelling the alleged suspicious circumstances taken note of by the trial court in the execution of the Will. Referring to the evidence adduced by the defendant, it was held that the execution of
Will Ex. DA was shrouded with suspicious circumstances, which the defendant Punni had failed to successfully repell. During the course of arguments in this appeal, learned counsel for the parties have taken me through the entire oral and documentary evidence and have tried to support the respective Wills. In these circumstances, it will be necessary to refer to the evidence in extenso to decide the questions formulated for determination in this appeal. Learned counsel for the parties have also made reference to number of decisions of Supreme Court as well as various High Courts, for which wherever necessary reference will be made.
7. The question as to whether the Will set up by the propounder is proved to be the last Will of the testator has to be decided in light of the provisions of Sections 67 and 68 of the Evidence Act as also Sections 59 and 63 of the Indian Succession Act. A party laying a claim under a Will, no doubt seeks to prove a document. Sections 67 and 68 of the Evidence Act thus become relevant in coming to the conclusion as to whether a document has not been proved, in accordance with law. Section 67 of the Evidence Act deals with the mode of proof of signature and handwriting of a person alleged to have signed or written the document. If a document is alleged to have been signed by any person, the signature of the said person must be proved to be in his handwriting. There are number of modes of proving signature or writings of persons, such as, by calling the person who signed or wrote the document; by calling a person in whose presence the document was signed or written; by calling a handwriting expert; by calling a person acquainted with the handwritings of the person by whom the document is supposed to be signed or written; by comparison in court of the disputed signatures or writings with some admitted signatures or writings; by proof of an admission by the person, who is alleged to have signed or written the document that he signed or wrote it etc. etc.
8. Section 68 of the Evidence Act deals with the proof of execution of documents, which are required by law to be attested and it says that if a document is required by law to
be attested, it shall not be used as evidence unless at least one attesting witness has been called for the purpose of proving its execution.
9. The aforementioned provisions of the Evidence Act prescribe the requirements and the nature of proof, which must be satisfied by the party, who relies on a document in a court of law. In case the document happens to be a Will, there is a slight distinction, which has to be kept in mind. Unlike other documents, the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot be called upon to say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and testament of the departed testator. In dealing with the proof of Will the Court will start on the same enquiry as in the case of the proof of document with the additional requirements of Sections 59 and 60 of the Indian Succession Act.
10. Section 59 of the Indian Succession Act deals with the testator’s testamentary capacity. Section 63 lays down certain formalities, which are required to be observed in the execution and attestation of the Will. For the purpose of decision in this appeal, Section 63 of the Indian Succession Act is relevant, which is reproduced hereunder:–
“63. Execution of unprivileged wills. –Every testator, not being a soldier employed in an expedition nor engaged in actual warfare, 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 marks 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 a effect to the writing as a will.
(c) The will shall he 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 acknowledgment of his signature or mark, or of 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 be present at the same time, and no particular form of attestation shall be necessary,”
11. As regards attestation, Clause (c) aforementioned requires that the Will shall be attested by two or more witnesses. It is not necessary that both of them be present simultaneously at the time of putting their signatures but the requirement is that each of the attesting witness must have seen the testator sign or affix his mark to the Will or has received from the testator a personal acknowledgment of his signature or mark on the Will. There is also an additional requirement that each of the attesting witness shall also sign the Will in the presence of the testator. In Girja Datt Singh v. Gangotri Datt Singh. AIR 1955 SC 346 it was held that in order to prove the due attestation of the will the propouder of the will has to prove that the two attesting witnesses saw the testatory sign the will and that they themselves signed the same in the presence of the testator. As regards the proof and attestation, reference was made to Section 68 of the Evidence Act and it was held this it is necessary to comply with the provisions of the Evidence Act to prove the due execution and attestation of the Will by calling at least one attesting witness in case he is alive and one cannot presume from the mere signatures appearing at the foot of the endorsement of registration or at the foot of the document that the witnesses had appended their signatures to the documents as attesting witnesses. On the proof of a Will, onus of proof as also the nature of evidence required to be led, in H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443, it was held that (at pp. 451 and 452 of AIR):
“… 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.
However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator. Even so, in dealing with the proof of wills the court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily, when the evidence adduced lin support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator’s mind and his signature as required by law, courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts-just indicated.”
12. The court also dealt with the requirement, which a propounder has to comply, namely, leading, sufficient and cogent evidence in dispelling any suspicious circumstances attending the due execution of the Will, which need not be reiterated here. Out of the tests, on which emphasis was laid on the determination of the question as to whether a
testament produced before the court is or is not the last Will of the testator, is the full and solemn satisfaction that it has been validly executed by the testator, who is no longer alive. Reiterating that no hard and fast or inflexible rules can be laid down for the appreciation of evidence, it was observed that (AIR 1959 SC 443 at p. 452):
“…. a propounder of the will has. to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and broad principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Du Pared in Harmes v. Hinkson, (1946) 50 Cal WN 895 : AIR 1946 PC 156 ‘where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an abdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicion, a resolute and impenetrable incredulity. He is never required to close his mind to the truth’. It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in the such cases the judicial mind must always be open though vigilent, cautious and circumspect.”
13. The aforementioned principles were followed and applied in Rani Purnima Devi v. Khagendra Narayan Dev, AIR 1962 SC 567 and it may be stated without contradiction that the same hold good till date and have been applied by the apex court in deciding the questions, which govern the proof of Wills. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee (deceased), AIR 1964 SC 529 and in Ramchandra Rambux v. Champabai, AIR 1965 SC 354, again the principles were reiterated.
14. Thus in the light of the aforementioned principles the evidence deserves to be appreciated. Firstly I will deal with the Will Ex. PB propounded by the plaintiffs. It is a
typed document on two sheets of non-judicial papers. Mr. T.S. Shah, Advocate of Paonta Sahib is the scribe. Sadhu Ram and I rider Singh are shown to be the two attesting witnesses. The Will is dated 8th June, 1983 and is stated to have been presented for registration on the same day by the testator and was registered in the office of Sub Registrar Paonta Sahib, on the identification of Mr. T.S. Shah, Advocate. Mr. Shah has been produced as PW 3 and Sadhu Ram been examined as PW 2. Neither the Sub Registrar nor the other witness, namely, Inder Singh has been examined. Serious challenge, on behalf of the defendants is as regards the evidence adduced by the plaintiff by contending that even by examining PWs 2 and 3, plaintiffs have failed to discharge the onus, which lay upon them in proving the due execution thereof. It is stated that it is not shown or proved on record that the provisions of Section 63 of the Indian Succession Act have been duly complied with. The argument of the learned counsel for the respondents is that reading the two statements would show that the Will was scribed by Mr. Shah on the instructions of Saudagar, who was identified by Sadhu Ram and after it had been typed out, it was read over and explained and whereafter the witnesses had signed the same. It was also put up for registration and was duly registered at Mr. Shah’s identification. It is contended that it was not necessary to have examined the other witness, namely, Inder Singh, since the requirement was met by examining Sadhu Ram or in any case Mr. Shah can also be considered the second attesting witness. Learned counsel for the appellant laid much emphasis on the status of Mr. Shah that he had not put his signature as an attesting witness but had only described his capacity as scribe and thus he cannot be considered to be an attesting witness. Neither in the statement of Mr. Shah nor in the statement of Mr. Sadhu Ram, it is proved that the other attesting witness had signed in the presence of the testator or that he had also received from the testor an acknowledgment of having singed the Will.
15. In the light of the aforementioned submissions, another question, which has been raked up is as to whether a scribe can or cannot be considered to be an attesting witness. The question posed does not require any elaborate discussion or reference to a host of decisions of various High Courts, which were cited at the bar, except by making reference at the decision of the Supreme Court in M.L. Abdul Jabbar Sahib .v. H. Venkata SASTRI AND SONS (AIR 1969 SC 1147 ), where the question was dealt with as to whether a scribe or the Sub Registrar registering a document can or cannot be considered to be an attesting witness. Reference was made to the definition of word ‘attested’ appearing in Section 3 of the Transfer of Property Act and it was held that it was essential that the attesting witness should have put his signature with the intention that the same are for the purpose of attesting a fact that he has seen the executant sign or has received from him a personal acknowledgment of his signature. It was also held that if a person puts his signature on a document with some other purpose, e.g. to certify that he is a scribe or an identifier or a registering officer, he cannot be considered to be an attesting witness. The question, which had arisen in Abdul Jabbar Sahib’s case (supra) was as to whether the security bond had been attested by the two witnesses or not. The argument was that the Sub Registrar having registered the security bond, under the provisions of the Indian Registration Act, 1908, can be regarded as an attesting witness since the endorsement on the document suggested that the same was read over and explained to the excutant, who after admitting the contents thereof had also appended his signature thereupon. Such a contention was negatived by holding that prima facie the registering officer puts his signature on the document in the discharge of his statutory duty under Section 59 of the Registration Act and not for the purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature. Emphasis was laid on the intention of the person signing the document that whether the signatures were put and meant for the purpose of attesting it or certifying
that the signatory had received from the executant a personal acknowledgment of his signatures. In para 8 of the report, it was held that:
“Attested’, in relation to an instrument, means and shall be deemed to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument In the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time and no particular form of attestation shall be necessary.’ It is to be noticed that the word ‘attested’, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly, put, the essential conditions of a valid attestation under Section 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgment of his signature; (2) with a view to attest or to bear witness to his fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an an attesting witness.”
16. Unless sufficient and cogent evidence is led showing that the person putting his signature on document signed it for the .purpose of attesting it or certifying that he has received from the executant a personal acknowledgment of his signature, he cannot be regarded as an attesting witness. In the absence of any evidence, in case signatures are appearing on the document only for the purpose of certifying that he is a scribe or an identifier or a registering officer, he is to be
considered as such and not an attesting witness. To be regarded as an attesting witness, it must be shown that he had put his signature with the intention and for the purpose of attesting it or certifying of having received from the executant a personal acknowledgment of his signature.
Prima facie, on document Ex. PB, the capacity of Mr. Shah is shown as scribe. The signatures are not for the purpose of attesting or certifying that Mr. Shah had received from the testator, namely, Mr. Saudagar the executant, a personal acknowledgment of his thumb impression or that he had seen Saudhagar putting his thumb impression on the document. As such, only Sadhu Ram and Inder Singh, who, prima facie are shown to be the witnesses, have to be regarded as attesting witnesses and not Mr. Shah. As will be noticed shortly, statement of Sadhu Ram PW 2 cannot be considered to be sufficient discharge of onus by the plaintiffs that requirement of Section 63 of the Indian Succession Act are met with. Sadhu Ram in his statement has not made any reference to Inder Singh and there are circumstances on record doubting the presence of Inder Singh at the time when Sadhu Ram is stated to have put his signature on the Will. The entire Will is typed one. The name of Mr. T.S. Shah as a scribe, that of Saudagar as executant and of Sadhu Ram Lambardar as a witness are duly typed out. Sadhu Ram has put his signature below his description as an attesting witness. The entire description is in type but the description of the other witness, Inder Singh is in hand and not typewritten. No reason is forthcoming as to why the witness Inder Singh, in case he was present at the time when the will was scribed that his description was also not typed out like that of Sadhu Ram. Mr. T.S. Shah had not himself typed out the document. The name of the person typing the Will is also not shown. According to Mr. Shah, it was one Mr. Gupta, petition-writer, who had typed out the Will. As per the usual practice, the petition-writer should have made endorsement on the document with regard to his having typed the same but no such endorsement is appearing on the document. The circumstance that the description
of Mr. Inder Singh is in hand and is not typed out, whereas it is typed out for Mr. Shah and Sadhu Ram itself leads to an inference that Inder Singh was not present at the time when the document was typed out, scribed or thereafter when Mr. Shah or Sadhu Ram put their signatures. Sadhu Ram only states that the will, Ex. PB was scribed by Tarlochan Singh in Tehsil office at the behest of Saudagar. After the same had been typed out, it was read over and after admitting the contents of the same to be true, Saudagar put his thumb impression and he had also signed the same as a witness. Neither any question was put to him, nor he has stated that either Mr. Shah or Mr. Inder Singh had put their signatures in his presence or in the presence of the testator. The statement of Mr. Shah is to the effect that after the Will had been typed out and read over, Saudagar had put his thumb impression on the same, whereafter, Sadhu Ram and Inder Singh put their signatures and it is not shown by this witness that whether Inder Singh or Sadhu Ram put their respective signatures in the presence of the testator or in his presence. Assuming that Sadhu Ram put his signature in the presence of this witness, it is neither shown nor it is clear from the statement of Mr. Shah that Inder Singh also put his signatures in his presence and in the presence of the testator. Thus it has to be held that the plaintiffs have failed to prove the compliance of Section 63 of the Indian Succession Act in the absence of which there is no other conclusion possible except to hold that the due execution of the Will Ex. PB by Saudagar is not proved. The other question raised by the learned counsel for the defendant-appellant that the execution of the Will Ex. PB is shrouded by suspicious circumstances, which have also not been dispelled, need not be considered except by making reference to one important aspect.
17. Sadhu Ram made a clear statement that in his presence, it was neither stated by Saudagar nor it was told to him that the deceased had executed another Will earlier or that the same was being cancelled. This goes counter to the contents of the Will Ex, PB, which clearly recites that the earlier Will
executed on 31st March, 1983 was being revoked. Not only the recitals to the effect that the earlier Will has been cancelled but the recitals are to the effect that by the earlier Will the property had been bequeathed in favour of Tilka, Inder, Sunder, Sumer Chand, Ram Kumar and Smt. Punni. In case the witness stated that nothing was made known to him of the earlier Will, the suspicious circumstances, as regards the due execution cannot be said to have been successfully dispelled. Another inference, which can be drawn is that neither the Will was read over and explained to the executant in the presence of Sadhu Ram nor he had put his signature after having got acknowledgment from Saudagar of the due execution of the Will.
18. Now coming to the Will Ex. DA. The evidence adduced by the defendant-appellant also cannot be said to be satisfying the requirement of law. The defendant herself appeared as DW 1 and examined the scribe of the Will Vajinder Chaudhary as DW 3 and Batna Ram, one of the attesting witness as D W 2. The lower appellate court has discarded the Will and in my view rightly so, Smt. Punni was present at the time of the alleged execution of the Will. According to her, it was at Kedarpur that the Will was scribed by Mr. Chaudhary, Advocate. The paper for scribing the same was brought by his clerk (Munshi) and Batna and Darshan, the two other witnesses were present. Another witness, according t6 her was present at the time when the Will was scribed and he was Mr. R, K. Madan, Advocate. The Will according to her was actually scribed by Asgar AH, who was the clerk of Mr. Madan Advocate. Batna the other witness stated that lawyer Shri Chaudhary had himself not scribed the Will because of the injury in the thumb, and, therefore, it was got scribed from Munshi, who was present. Saudagar, according to him, was residing at Bhooppur but the Will was scribed at Kedarpur. According to him, he was not aware as to whether Saudagar had made any other Will, other than the one scribed in his present. Even according to him, it was not stated in the Will that the earlier Wills, which had been made, were cancelled. Mr. Chaudhary stated that Asgar, who was
the clerk to Shri Madan, Advocate, asked him to visit Kedarpur, since Mr. Madan was out of station. He accompanied Mr. Asgar and ultimately the Will was scribed by Asgar, since his thumb was injured. He fhad, in fact, put his signature on the Will as scribe. Asgar has been examined by the plaintiffs in rebuttal as PW 4, who stated that the Will-Ex. DA was scribed by him in the office of Mr. R.K. Madan at Paonta and on that date, Saudagar was not present. It was in September, 1983 that the Will was scribed. The thumb impression, purporting to be that of Saudagar was already available on a blank paper and it was at the instance of Mr. R.K. Madan, Advocate, that be had scribed the Will, Thus from the evidence adduced on record it is not possible to upset the findings of the lower appellate court that due and proper execution of the Will is not proved by the defendant-appellant.
19. In view of the findings that both the
Wills, one set up by the plaintiffs and the
other by the defendant have not been proved,
the only corollary, which follows is that the
plaintiffs’ suit must be dismissed and it must
be held that on the death of Saudagar, the
property has rightly been inherited by Smt.
Punni as his sole heir being his daughter, who
admittedly is in possession of the suit
property.
20. In the result, while answering question No. 1 in negative and taking that question No. 2 does not arise for consideration, the appeal is allowed. The judgment and decree passed by the lower appellate Court is set aside and the suit of the plaintiff is dismissed.
21.No costs.