ORDER
A.K. Shrivastava, J
1. Feeling aggrieved by the impugned judgment dated 31-1-2006 passed by learned Second Addl. District Judge, Mhow, District Indore in Civil Original Case No. 1-A/2000 (probate) dismissing the application filed by appellant to obtain probate, this appeal has been filed under Section 299 of the Indian Succession Act, 1925 (for brevity ‘the Act’).
2. An application under Section 276 of the Act was filed by the appellant Deependra Singh on the averments that Smt. Chandrakala Pal (hereinafter referred to as ‘testatrix’) wife of Murari Lal Pal executed two Wills dated 26-3-97 and 8-5-97 in his favour. Since, in the earlier Will dated 26-3-97 certain facts could not be mentioned, therefore, for clarification another Will dated 8-5-97 was executed by testatrix. According to the appellant, in these two Wills the deceased bequeathed her entire moveable and immoveable property, the description whereof has been mentioned in these two Wills in favour ol” the appellants. Apart from the moveable and immoveable property, the testatrix was having Saving Account No. 283 in State Bank of Indore, Mhow Branch and another Saving Account No. 1952. In Saving Bank Account No. 283 testatrix was having a sum of Rs. 1,34,034/- and in Saving Account No. 1952 a sum of Rs. 4,68,206/- of the testatrix has been deposited. According to the appellant, this amount is required to be paid to him. The Will dated 26-3-97 is a registered Will, however, another Will dated 8-5-97 is attested by notary. On these premised pleadings in the application filed under Section 276 of the Act, the appellant prayed to grant of the probates of the aforesaid two Wills.
3. Ramesh Chandra Pal, who is respondent No. 2 herein this appeal submitted objections in the probate proceedings and pleaded in the objections that deceased Smt. Chandrakala Pal did not execute any registered Will dated 20-3-97 or another Will dated 8-5-97 in favour of the appellant. It has also been denied that the testatrix bequeathed all her moveable and immovable properties to the appellant by these two Wills. Further contention in the objection is that by those two Wills the appellant did not become owner of the moveable and immoveable properties and other assets of the testatrix. A specific plea has been raised in the objection that the Will is forged and fabricated document. In the special pleas, it has been leaded by the objector Ramesh Chandra that the signatures on these two Wills are different to each other which itself speaks that those two Wills are manufactured in order to grab the property of the testatrix. Further, it has also been pleaded that the Will does not contain the signature of the testatrix and she never executed any Will.
4. In Para 8 of t he objections, it has been pleaded by the objector that the Will dated 20-3-97 as pleaded by the appellant in his application is not on record though, a copy of the Will dated 26-3-97 has been supplied to the objector. In these facts and circumstances, the applicant be directed to produce the said Will dated 20-3-97. Thus, according to the pleadings of the objector, there appears to be three Wills and since, the Will dated 20-3-97 is not on record, he reserves his right to raise objections in respect of the alleged Will dated 20-3-97.
5. In Para 9 of the objections, it has been specifically pleaded that testatrix was ill for several years prior to her death and she was also admitted in the hospital. As per the best knowledge of the objector, she died in Gokul Hospital at Indore. According to the objector, the testatrix was not in a position to understand and was not in a position to execute any Will. The testatrix was unable to move and stand, she was having diseases, the details of which arc mentioned in Para 10 of the objection and thus, she was not in position to go to the office of Sub-Registrar for getting the Will registered nor she was able to go to the office of the Notary to get another Will notarized. Under these facts and circumstances, both the Wills become highly suspicious and doubtful. Inter alia it was also pleaded by the objector that cash amount of his father namely Narayan Singh was with the testatrix and she was not legally entitled to bequeath the said amount of his father. On these premises objections, the prayer was made by respondent No. 2 to dismiss the application of probate.
6. The learned Probate Court on the basis of the averments made in the pleadings framed as many as three issues. The parties thereafter led their evidence and also exhibited the documents. The registered Will dated 26-3-97 is Exh. P-2 while another Will dated 8-5-97 notarized by a notary has been placed on record as Exh. P-3. The learned Probate Court after appreciating and marshalling the evidence dismissed the probate application filed by the applicant by the impugned judgment. In this manner, the present appeal has been filed by the appellant assailing the impugned judgment of the Probate Court.
7. It has been contended by Shri M.G. Upadhyaya, learned Counsel for the appellant that the two Wills dated 26-3-97 (Exh. P-2) which is registered Will and another Will dated 8-5-97 which is notarized by the notary are supplemental to each other. The contention of learned Counsel is that the Will (Exh. P-3), dated 8-5-97 is supplement to the earlier Will dated 26-3-97. The contention of learned Counsel is that the attesting witnesses of registered Will (Exh. P-2) are Ramesh (P.W. 2) and Mukesh (not examined). The attesting witnesses of Exh. P-3, dated 8-5-97 are Suraj Bhan (not examined) and Kamlesh Tiwari (P.W. 3). By inviting our attention to the testimony of Rajesh (P.W. 2) and Kamlesh Tiwari (P.W. 3), it has been argued by the learned Counsel that the attestation of both the Wills is proved from the testimony of these two witnesses. In support of his contention, learned Counsel has placed reliance on the decision of the Supreme Court in Naresh Charan Das Gupta v. Paresh Charan Das Gupta and Anr. . It has been fairly contended by the learned Counsel for the appellant that though in the specific terms as envisaged under under Section 63(c) of the Act, the witnesses have not given the evidence in regard to the attestation of the Wills, but, if their testimony is considered in proper perspective, it would reveal that they have proved the attestation of the Wills in terms of Section 63(c) of the Act. It has been further argued by Shri Upadhyaya that if in stricto sensu the evidence of attesting witnesses is read, it would indicate that the testatrix has signed the Will in presence of the witnesses and simultaneously the attesting witnesses have also signed the Will in presence of the testatrix and if that would be the position not only the due attestation of both the Wills is proved, but, indeed both the Wills are proved and, therefore, the learned Probate Court erred in law by holding that the two Wills are not proved. By inviting our attention to the impugned judgment of the Probate Court, it has been argued that the Probate Court has held that the testatrix was not the sole owner of the property left by Shiv Narayan though she was having share in it and, therefore, since she was not having absolute share in the property of Shiv Narayan, she was not authorized to bequeath the property through Wills. Assailing this finding of learned Probate Court, learned Counsel for appellant by inviting our attention to Section 14 of the Hindu Succession Act, 1956 has contended that since the testatrix was possessing-the property left by Shiv Narayan she became absolute owner of the property up to the extent of her share and under Section 30 of the said Act was authorized to disburse the said property by Will in accordance to the provisions of the Indian Succession Act. Apart from this, it has also been argued by learned Counsel for the appellant that indeed in the proceedings of probate, the Probate Court should confined itself only in respect to the validity of the Will and nothing else and, therefore, the enquiry about the title of the property should not have been made. On these premised submissions, it has been argued by learned Counsel for the appellant that his appeal be allowed by setting aside the impugned judgment passed by the Probate Court and probate of the above said two Wills be granted in favour of appellant.
8. Combating the aforesaid submissions, it has been argued by Shri A.S. Garg, learned Senior Counsel for respondent No. 2 that indeed the aforesaid two Wills are not only forged and suspicious, but, it is also not proved that they bear the signature of the testatrix. By inviting our attention to the testimony of Rajesh (P.W. 2) and Kamlesh Tiwari (P.W. 3) it has been argued by learned Senior Counsel that the due attestation of the Will as contemplated under Section 63(c) of the Act is not proved and since the attestation is not proved, the above said two Wills are also not proved. In support of his contention, learned Counsel has placed heavy reliance on the decision of Supreme Court Janki Narayan Bhoir v. Narayan Namdeo Kadam . By inviting our attention to the Division Bench decision of this Court in Kishan Singh Ahluwalia v. Smt. Sheela Saxena and Ors. , it has been argued that since the beneficiary to the Will took active participation in getting the Will executed, the Will becomes suspicious. In that regard decision of Supreme Court in Vrindavanibai Sambhaji Mane v. Ramchandra Vithal Ganeshkar and Ors. , has also been placed reliance. Thus according to learned Senior Counsel for the respondent, the learned Probate Court did not commit any error in dismissing the application of probate filed on behalf of the appellant and this appeal sans substance and the same be dismissed.
9. Having heard learned Counsel for the parties, we are of the considered view that this appeal deserves to be dismissed.
10. Since the appellant has filed application to obtain probate of the above said two Wills (Exh. P-2 and Exh. P-3), according to us the entire case of appellant rests on the pivot of the authenticity of the Will and proof of its attestation. The Will (Exh. P-2), dated 26-3-1997 is a registered Will said to have been executed by testatrix Smt. Chandra Kala Pal in favour of the appellant. In this Will attesting witnesses are Rajesh (P.W. 2) and Mukesh (not examined). The beneficiary of the Will is appellant Deependra who is son o( 1 he sister of the testatrix. On going through this Will it is gathered that the appellant was taking care of the testatrix and therefore the testatrix became merciful to him, and bequeathed the movable and immovable properties mentioned in Exh. P-2. After near about one and half months of the execution of Will (Exh. P-2), dated 26-3-1997 another Will is said to have been executed by Smt. Chandrakala Pal in favour of appellant in which again it has been mentioned that appellant Deependra is taking care of the testatrix. In this Will it has been mentioned that she executed a registered Will on 26-3-1997 and apart from these two Wills she has not executed any other Will. On going through the later Will (Exh. P-3), dated 8-5-1997, it is gathered that earlier Will was not cancelled and it is supplement to the earlier Will. In the later Will (Exh. P-3), dated 8-5-1997 the attesting witnesses are Suraj Bhan (not examined) and Kamlesh Tiwari (P.W. 3).
11. It is a trite law that if the authenticity of the Will is challenged, no option is left to the propounder and he is obliged not only to prove the Will but a heavy burden lies on him, to prove its clue attestation as contemplated under Section 63(c) of the Act. For ready reference it would be appropriate to quote Section 63 of the Act, which reads thus:
63. Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or 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 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 acknowledgment 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 be present at the same time, and no particular form of attestation shall be necessary.
12. On bare perusal of above said section, it is as clear like a noon day that the testator should sign or affix his mark in presence of the attesting witnesses and the witnesses shall also sign simultaneously the Will in the presence of the testator. The object of the attestation is for the testator to know that he has ocular evidence of the instrument having been subscribed by the witnesses in so far as the attesting witnesses are concerned, the only statutory requisite is that they should have necessary animus attestendi or intention to at least (sic: attest) the document. Thus, on bare perusal of Section 63(c) of the Act we have no scintilla of doubt that the Will must be attested by two or more witnesses each of whom has either seen testator sign or affix his mark to the Will or has received personal knowledge of his signature or mark from testator. Besides this it is also necessary that each of attesting witness should sign the Will in presence of the testator.
13. On the basis of above said enunciation of the law, we shall now examine the evidence of the attesting witnesses. Under Section 68 of the Indian Evidence Act 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. Since, the Will is required to be attested at least by two witnesses, it is imperative on the part of the propounder of the Will to examine at least one attesting witness to prove the execution and the attestation of the Will. It is well settled in law that the propounder of the Will is required to prove due attestation of the Will. It is also well settled in law that the propounder of Will is bound to prove the Will by removing all suspicions. In this context, we may profitably rely the decision of Supreme Court in Kalyan Singh v. Smt. Chhoti and Ors. and Smt. Jaswant Kaur v. Smt. Amrit Kaur and Ors. .
14. The appellant has examined Rajesh (P.W. 2), in order to prove the Will (Exh. P-2), dated 26-3-1997. On going through his testimony it is gathered that the testatrix has signed the Will in his presence. But, still there is a serious lacuna which goes to the root of the matter as he has not at all stated in his entire testimony that he also signed the Will in presence of the testatrix. Similarly, Kamlesh Tiwari (P.W. 3) who is one of the attesting witnesses of later Will (Exh. P-3), dated 8-5-1997 has been examined by the appellant, but, he has also not stated in his entire testimony that the testatrix has signed the Will (Exh. P-3) in his presence and he has also signed the Will in presence of the testatrix. Both these witnesses have simply proved their signature on the Will and the signature of the testatrix. But, their statement cannot be stretched up to the extent in order to hold or infer that the attestation has been proved in terms of Section 63(c) of the Act. In the case of Girja Datt Singh v. Gangotri Datt Singh , the Supreme Court has categorically held that it cannot be presumed from the mere signatures of two persons appearing at the foot of the endorsement of registration of a Will that they had appended their signatures to the document as attesting witnesses or can be construed to have done so in their capacity as attesting witness. The Apex Court in Para 14 of the said decision has laid down the law of the land that not only the attesting witness to the Will is required to depose that he has seen the testatrix signing the Will, but, it is also to be proved that they themselves signed the Will in presence of the testatrix. The Apex Court held that in absence of proof of the due attestation, the Will is not at all proved. In a later decision of Kashibai w/o Lachiram and Anr. v. Parwatibai w/o Lachiram and Ors. 1995 AIR SCW 4631, the Supreme Court again took the similar view. These two decisions of the Supreme Court were taken note of and were placed reliance by Chief Justice Shri A.K. Mathur (as His Lordship then was) in the case of Mannudas v. Govinddas and Ors. 1997 (2) Vidhi Bhasvar 199, and categorically held that in absence of proof of due attestation as envisaged under Section 63(c) of the Act, the Will cannot be said to be proved. The decision of Major Singh v. Rattan Singh (dead) by L.Rs. and Ors. , is also relevant on the point of attestation of the Will and how a Will is to be proved.
15. Much emphasis has been putforth by learned Counsel for the appellant on the decision of Supreme Court in Naresh Charan Das Gupta (supra), and has vehemently contended that looking to the mitigating circumstances the due attestation of the Will is required under the law is proved and merely because the deposition of the attesting witnesses is not in terms of the language of Section 63(c) of the Act it would not mean that the attestation is not proved. We have given our anxious and bestowed consideration to the said decision and we find in Para 12 of the said decision that in one sitting execution of the document of Will was done and in that situation it has been held by the Apex Court that the attestation is proved. However, in the present case, the situation is altogether different.
16. We find sufficient force in the submission of Shri Garg, learned Senior Counsel for respondent that execution of the Will is not at all proved since the attestation is not proved. The decision of Supreme Court Janki Narayan Bhoir (supra), placed reliance by the learned Senior Counsel governs the field.
17. For the reasons stated hereinabove, we are of the view that the attestation of both the Wills is not proved and therefore both these Wills are not legally proved and if that is the position, according to us, the learned Probate Court did not err in dismissing the application filed by the appellant for the grant of probate. Resultantly, this appeal is found to be bereft of any substance and the same is hereby dismissed with no order as to costs.