Srimati Bewa And Anr. vs Kasinath Chandra Behera And Anr. on 31 July, 1986

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56
Orissa High Court
Srimati Bewa And Anr. vs Kasinath Chandra Behera And Anr. on 31 July, 1986
Equivalent citations: 1986 II OLR 286
Author: H Agarwal
Bench: H Agarwal, D Mohapatra

JUDGMENT

H.L. Agarwal, C.J.

1. This is an appeal by the defendants under Chapter VII!, Rule 2 of the Orissa High Court Rules from the judgment of a learned single Judge of this Court.

2. The plaintiff – respondent; applied for grant of Letters of Administration in respect of a registered Will dated 29-1-1973 executed by one Arjuna Chandra Behera claiming himself to be his adopted son in the Court of the District Judge, Puri.

The application was contested by the appellants on various grounds, inter alia, that the Will was neither genuine nor properly executed and attested. The trial Court decreed the suit and ordered for issuing Letters of Administration along with a copy of the Will in favour of the plaintiff. The appellants challenged the judgment of the trial Court in this Court in First Appeal, but the learned single Judge dismissed their appeal and accordingly, they have filed the present appeal against that judgment.

3. The learned counsel for the appellants pressed the appeal before us mainly on the ground that on the evidence on record, due execution of the Will (Ext. 1) was not established in law and both the Courts have committed serious error of law in recording a finding to the contrary. Therefore, the question that falls for our determination is an age-old one, namely, what are the requirements of valid execution of a Will and what is the requisite legal evidence to prove the same for making it admissible in law for granting a probate of Letters of Administration.

4. Let us now proceed to examine the relevant materials on the record to answer the question. In order to prove the Will (Ext. 1) the plaintiff examined Madhusudan Das, an Advocate’s Clerk, as P. W. 1. “According to his evidence the Will had been duly executed and attested by two attestors”, and one Lakhman Kumar Sena Nayak was the scribe, and the testator had signed the Will after having gone through the same. This witness in his evidence did not speak a word regardfng the attestation by the other attesting witness, namely, Babaji Sahu. All that is said regarding the other attesting witness is that he had gone to the Court along with the testator and that the Will was scribed and attested in the Muharrirkhana (Advocate Clerks* association) and nothing else. The trial Court as also the learned single Judge, on a reference to the statement of P. W. 1 made in his examination-in-chief that the document had been duly executed and attested by two witnesses, have come to the conclusion that due attestation and execution of the Will had been proved. The finding and the conclusion of the learned single judge have been assailed by Mr. Sutaf with great vehemence. According .. to his submission, the evidence falls short of the legal requirements and, therefore, the finding in regard to the due attestation and valid execution of the Will was not legal. The learned-counsel On: behaf of the plaintiff-respondent, on the other hand, contended that the evidence-of P. W. 1 in chef to the effect the will was duly executed and accepted in the absence of any cross-examination on the point, must be accepted as sacrosanct and in full discharge of the burden of proof as required in law on the part of the profounder of Will.

5. In order to, appreciate the submissions, some provisions of the Indian Succession Act (for, short, the Act’), and the Evidence Act maybe noticed.

The relevant section of the Act is Sec: 63. According to Sub-section (c) of this, section the Will is to be ‘attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has been some other person sign the Will, in the presence and by the direction of the testator, or……”and each of the witnesses is to sign the Will in the presence of the testator. It is thus clear that the Will is required to be attested by at least two persons. Section 68 of the Evidence Act dealing with the mode of proof of such a document requires that until at least one attesting witness has been called for the purpose of proving the execution (if he is alive and capable of giving evidence), the document required by law to be attested shall not be used as evidence.

6. It cannot be dented that the execution of a Will has to be proved within the four corners of Section 63. of the Act, and law requires strict compliance of ‘this” provision. In the absence of evidence to prove that the identifying witnesses were present at the time of actual execution of the document, their attestation will not prove the due execution of the document. ..o’..

7. The Supreme Court in the case of Beni Chaind v. Smt. Kamla KunwSr and others‘ (AIR 1977 S. C. 63), explained the meaning of the expression “attestation” and indicated that by attestation is meant the signing of a document’ to signify that the attestor is a witness to the execution of the document, namely, the person who signs the document in the presence of the executants after seeing the execution of the document or after receiving a personal acknowledgment from the executants as regards the execution of the document although labeling is not necessary.

The evidence of the attesting witness (P. W. 1) in this case, in my .opinion, falls short-of the due execution as he did not prove the attestation by the other witness, namely Babaji Sahu. He only made a general statement that Babaaji Sahu was produced. by the testator as an attestor. Therefore, attestation of the will .by. two witnesses as required by Section 63 of the .Act is not duly established in the eye of law. This view finds full support from a decision of the, supreme Court an the case of Girja Datt Singh. Gangotri Datt Singh, (AlR 1955 S. C. 346). In the above case, the Supreme Court laid down as hereunder:

(i) “In order to prove the due attestation of the will of a testator, the propounder of the testamentary document has to prove that the two witnesses, namely, ‘A’ and ‘B’ saw the testator sign the will and that .they themselves signed the will in the presence of the testator.

(ii) It cannot be presumed from the mere signatures of the two persons, which appear at the foot of the* endorsement or registration of a will, that the two persons had appended their signatures to the document as attesting witnesses nor can it be construed that they have done so as attesting witnesses.

8. The statement of P. W. 1, on which strong reliance has been placed by the learned counsel for the respondents and has also been referred in the judgments of the ‘trlal Court and of this Court, that the Will was duty executed, in my considered view, would not serve and fulfil the legal requirement in the absence of further elucidation by P. W. 1 satisfying the condition of a witness being an attesting witness. An attesting witness should speak not only about the testator’s signature or putting of his mark, etc, or that he had attested the Will after taking acknowledgment from the testator, he should also speak that each of the witnesses had signed the Will in the presence of the testator. Any evidence short of this could not satisfy the burden of proof on the propounder, and the Will not be deemed to have been duly proved and thus cannot be used for any purpose. I find that the (earned single judge himself in the case of T. Venkat Sitaram Rao and Anr. v. T. Kamakshiamma and others, (AIR 1978 Ori. 145), has taken a similar view.

9. The learned counsel for the plaintiff-respondent cited a catena of decisions, namely, (1) AIR 1981 Mad. 252 ( Pattammal and Anr. v. Kanniammal and others), (2) AIR 1981 Punjab and Haryana 83 ( Sita Ram v. R. D. Gupta and others), (3) AIR 1982 S C. 133 : ( Smt. Indu Bala Bose and Ors. v. Manlndra Chandra Bose and another); (4) AIR 1982 Call. 236 (Anath Nath Das and Ors. v. Smt. Bijali Bala Mondal) : (5) (1983) 56 CLT 301 ( Gopal Charars Mohanty and Anr. v. Adarmanj Debi and others); (6) AIR 1984 All. 66 (Shri Ram and anothe v. Smt. KasturS Devi and another); (7) AIR 1984 Punj. and Haryana 270 (Labh Singh end others v. Plara Singh and another), (8) AIR 1985 Cal. 349 ( 8mt. Chinmovee Saba v. Debendra Lal Saha and others), and (9) o AIR 1958 Ori 232 ( Sarada Charan Misra v. Smt. Prafulla), but none of them is on the point. Those decisions are on the mode and onus of proof and do not consider the specific question that arises in this case, namely, that where an attesting witness merely says that the deed was duly executed and attested it would amount to sufficient evidence for proving the Will. A witness has to state the relevant facts on which a judicial conclusion or opinion can be reached by the Court. He, instead, cannot impose his own opinion on a question of law which requires some pre-conditions to be established. , therefore, need not discuss any of the cases to encumber my judgment.

10. The irresistible conclusion that must follow from the above discussions is that the plaintiff has failed to prove the due execution of the Will (Ext. 1). The appeal, therefore, must succeed. I would accordingly allow the same and set aside the judgments and orders of the Courts under appeal. The plaintiff must pay the costs of this appeal to the appellants.

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