{"id":248173,"date":"2002-12-17T00:00:00","date_gmt":"2002-12-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/janki-narayan-bhoir-vs-narayan-namdeo-kadam-on-17-december-2002"},"modified":"2018-03-13T11:03:49","modified_gmt":"2018-03-13T05:33:49","slug":"janki-narayan-bhoir-vs-narayan-namdeo-kadam-on-17-december-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/janki-narayan-bhoir-vs-narayan-namdeo-kadam-on-17-december-2002","title":{"rendered":"Janki Narayan Bhoir vs Narayan Namdeo Kadam on 17 December, 2002"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Janki Narayan Bhoir vs Narayan Namdeo Kadam on 17 December, 2002<\/div>\n
Author: S V Patil<\/div>\n
Bench: Doraiswamy Raju, Shivaraj V. Patil.<\/div>\n
           CASE NO.:\nAppeal (civil)  11194 of 1995\n\nPETITIONER:\nJanki Narayan Bhoir\n\nRESPONDENT:\nNarayan Namdeo Kadam\n\nDATE OF JUDGMENT: 17\/12\/2002\n\nBENCH:\nDoraiswamy Raju & Shivaraj V. Patil.\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
SHIVARAJ V. PATIL J.\n<\/p>\n
\tThis appeal by special leave is by the defendant
\nquestioning the validity and correctness of the
\nimpugned judgment and decree passed by the High Court
\nin the second appeal.  The respondent herein filed the
\nsuit for possession of the suit properties comprised of
\nagricultural land and a house as owner under the will
\nsaid to have been executed by Honaji Dama Kadam.  The
\ntrial court, accepting the will on the basis of
\nevidence placed on record, decreed the suit.  The
\nDistrict Judge in the Regular First Appeal set aside
\nthe decree passed by the trial court.  The High Court
\nin the second appeal by the impugned judgment and
\ndecree set aside the judgment of the first appellate
\ncourt and restored the judgment and decree passed by
\nthe trial court.\n<\/p>\n
\tThe contentions urged by the learned counsel for
\nthe appellant were that the will in question was not
\nproved as required by law, having regard to Section 63<\/a>
\nof Indian Succession Act read with Section 68<\/a> of the
\nIndian Evidence Act,1872 the attestation of will by two
\nwitnesses was not established; the High Court committed
\nan error in treating the scribe as an attesting witness
\nwhen he did not sign as animo attestendi.  The evidence
\nof the one attesting witness examined does not
\nestablish the attestation of the will by another
\nattesting witness; the other attesting witness though
\navailable, was not examined; the High Court committed a
\nserious error in setting aside the judgment of the
\nfirst appellate court which was based on proper
\nappreciation of evidence in the absence of any
\nsubstantial question of law that arose for
\nconsideration.\n<\/p>\n
\tOn the other hand, the learned counsel for
\nrespondent urged that although Section 63<\/a> of the
\nSuccession Act requires attestation of a will at least
\nby two witnesses but the will could be proved by
\nexamining one attesting witness as per Section 68<\/a> of
\nthe Evidence Act and by leading other evidence as per
\nSection 71<\/a> of the Evidence Act.\t He fairly conceded
\nthat the scribe was not and could not be treated as an
\nattesting witness in this case.\n<\/p>\n
\tWe have carefully considered the respective
\ncontentions urged by the learned counsel for the
\nparties.\n<\/p>\n
\tThe appellant is the only daughter of Honaji Dama
\nKadam (deceased).  The respondent is the son of cousin
\nbrother of said Honaji Dama Kadam.  The respondent is
\nclaiming the suit properties on the basis of the Will
\ndated 23.10.1975, said to have been executed by the
\ndeceased Honaji Dama Kadam.  The High Court, by the
\nimpugned judgment, set aside the judgment and decree of
\nthe first appellant court holding that the Will was
\nduly established and restored the decree passed by the
\ntrial court.  The District Judge on appreciating the
\nevidence placed on record had held that the respondent
\nfailed to prove the execution of the Will; the
\nrespondent examined only one attesting witness and his
\nevidence was not sufficient to establish that the Will
\nwas duly executed; in that view reversing the decree of
\nthe trial court dismissed the suit filed by the
\nrespondent.  One Duttatray Raikar was the scribe of the
\nWill.  Ramkrishna Wagle and Prabhakar Sinkar were the
\nattesting witnesses.  During the trial the respondent,
\nRaikar, the scribe, and Prabhakar Sinkar, one of the
\nattesting witnesses, were examined.  Prabhakar Sinkar,
\nthe attesting witness, in his deposition stated that he
\ndid not know whether other attesting witness Ramkrishna
\nWagle was present in the house of the respondent at the
\ntime of execution of the Will.\tHe also stated that he
\ndid not remember as to whether himself and Raikar were
\npresent when he put his signature.  He did not see
\nwitness Wagle at that time; he did not identify the
\nperson who had put thumb impression on the Will.  The
\nscribe Raikar in his evidence stated that he wrote the
\nWill and he also stated that he signed on the Will Deed
\nas a scribe.  He further stated that attesting witness,
\nnamely, Wagle and Prabhakar Sinkar are alive.  The High
\nCourt took the view that though Wagle, the other
\nattesting witness, was not examined but his signature
\non the Will was not disputed; both the respondent and
\nRaikar deposed that Wagle and Sinkar had signed the
\nWill as attesting witnesses; in these circumstances the
\nevidence of Raikar should have been accepted.  The High
\nCourt was of the opinion that it was not necessary to
\nexamine both the attesting witnesses and in case one
\nattesting witness examined was unable to remember
\nwhether the other attesting witness was present and had
\nsigned, then it was open to the court to rely upon the
\nsurrounding circumstances as well as the testimony of
\nother witnesses.  The High Court also took the view
\nthat though Raikar had written down the Will he had
\nalso signed it and he could have been treated as an
\nattesting witness as he had also signed the Will.  Thus
\nthe High Court was of the opinion that the Will was
\nproved and the District Judge was wrong in reversing
\nthe judgment and decree of the trial court.
\n\tAt the hearing the learned counsel for the
\nrespondent fairly submitted that Raikar was only the
\nscribe and he was not the attesting witness.  Even
\nlooking to the evidence of Raikar himself it is clear
\nthat he gave evidence as the scribe.  There is nothing
\non record to indicate that he had any intention to
\nattest the Will.  The attesting witness Sinkar has not
\nstated that the other attesting witness Wagle attested
\nthe Will in his presence.  On the other hand, he has
\nstated that he did not see Wagle present at the time of
\nexecution of the Will.\tWagle, the other attesting
\nwitness, being alive ought to have been examined in
\norder to prove the Will.  Nothing is brought on record
\nto show that any attempt was made to examine Wagle or
\nthere was any impediment in examining him.  It is true
\nthat although will is required to be attested by two
\nwitnesses it could be proved by examining one of the
\nattesting witnesses as per Sections 68<\/a>, Indian Evidence
\nAct<\/a>.\n<\/p>\n
\tWe think it appropriate to look at the relevant
\nprovisions, namely, Section 63<\/a> of the Indian Succession
\nAct, 1925 and Sections 68<\/a> and 71<\/a> of the Indian Evidence
\nAct, 1872 which read:\n<\/p>\n
Section 63<\/a> of the Succession Act
\n“63. Execution of unprivileged wills.-
\nEvery testator, not being a soldier
\nemployed in an expedition or engaged in
\nactual warfare, or an airman so employed
\nor engaged, or a mariner at sea, shall
\nexecute his will according to the
\nfollowing rules:-\n<\/p>\n
\t(a) …..\n<\/p>\n
\t(b) …..\n<\/p>\n
(c) The will shall be attested by
\ntwo or more witnesses, each of
\nwhom has seen the testator sign
\nor affix his mark to the will
\nor has seen some other person
\nsign the will, in the presence
\nand by the direction of the
\ntestator, or has received from
\nthe testator a personal
\nacknowledgement of his
\nsignature or mark, or of the
\nsignature of such other person;\n<\/p>\n
and each of the witnesses shall
\nsign the will in the presence
\nof the testator, but it shall
\nnot be necessary that more than
\none witness be present at the
\nsame time, and no particular
\nform of attestation shall be
\nnecessary.”\n<\/p>\n
\tSection 68<\/a> of the Evidence Act
\n“68. Proof of execution of document required
\nby law to be attested.- If a document is
\nrequired by law to be attested, it shall not
\nbe used as evidence until one attesting
\nwitness at least has been called for the
\npurpose of proving it’s execution, if there
\nbe an attesting witness alive, and subject to
\nthe process of the Court and capable of
\ngiving evidence:\n<\/p>\n
Provided…”\n<\/p>\n
Section 71<\/a> of the Evidence Act
\n“71. Proof when attesting witness denies the
\nexecution.- If the attesting witness denies
\nor does not recollect the execution of the
\ndocument, its execution may be proved by
\nother evidence.”\n<\/p>\n
To say will has been duly executed the
\nrequirements mentioned in clauses (a), (b) and (c) of
\nSection 63<\/a> of the Succession Act are to be complied
\nwith i.e., (a) the testator has to sign or affix his
\nmark to the will, or it has got to be signed by some
\nother person in his presence and by his direction; (b)
\nthat the signature or mark of the testator, or the
\nsignature of the person signing at his direction, has
\nto appear at a place from which it could appear that by
\nthat mark or signature the document is intended to have
\neffect as a will; (c) the most important point with
\nwhich we are presently concerned in this appeal, is
\nthat the will has to be attested by two or more
\nwitnesses and each of these witnesses must have seen
\nthe testator sign or affix his mark to the Will, or
\nmust have seen some other person sign the Will in the
\npresence and by the direction of the testator, or must
\nhave received from the testator a personal
\nacknowledgement of signature or mark, or of the
\nsignature of such other person, and each of the
\nwitnesses has to sign the Will in the presence of the
\ntestator.\n<\/p>\n
It is thus clear that one of the requirements of
\ndue execution of will is its attestation by two or more
\nwitnesses which is mandatory.\n<\/p>\n
\tSection 68<\/a> of the Evidence Act speaks of as to how
\na document required by law to be attested can be
\nproved.\t According to the said Section, a document
\nrequired by law to be attested shall not be used as
\nevidence until one attesting witness at least has been
\ncalled for the purpose of proving its execution, if
\nthere be an attesting witness alive, and subject to the
\nprocess of the Court and capable of giving an evidence.
\nIt flows from this Section that if there be an
\nattesting witness alive capable of giving evidence and
\nsubject to the process of the Court, has to be
\nnecessarily examined before the document required by
\nlaw to be attested can be used in an evidence.\tOn a
\ncombined reading of Section 63<\/a> of the Succession Act
\nwith Section 68<\/a> of the Evidence Act, it appears that a
\nperson propounding the will has got to prove that the
\nwill was duly and validly executed. That cannot be done
\nby simply proving that the signature on the will was
\nthat of the testator but must also prove that
\nattestations were also made properly as required by
\nclause (c) of Section 63<\/a> of the Succession Act.\t It is
\ntrue that Section 68<\/a> of Evidence Act does not say that
\nboth or all the attesting witnesses must be examined.
\nBut at least one attesting witness has to be called for
\nproving due execution of the Will as envisaged in
\nSection 63<\/a>.  Although Section 63<\/a> of the Succession Act
\nrequires that a will has to be attested at least by two
\nwitnesses, Section 68<\/a> of the Evidence Act provides that
\na document, which is required by law to be attested,
\nshall not be used as evidence until one attesting
\nwitness at least has been examined for the purpose of
\nproving its due execution if such witness is alive and
\ncapable of giving evidence and subject to the process
\nof the Court.  In a way, Section 68<\/a> gives a concession
\nto those who want to prove and establish a will in a
\nCourt of law by examining at least one attesting
\nwitness even though will has to be attested at least by
\ntwo witnesses mandatorily under Section 63<\/a> of the
\nSuccession Act.\t But what is significant and to be
\nnoted is that that one attesting witness examined
\nshould be in a position to prove the execution of a
\nwill.  To put in other words, if one attesting witness
\ncan prove execution of the will in terms of clause (c)
\nof Section 63<\/a>, viz., attestation by two attesting
\nwitnesses in the manner contemplated therein, the
\nexamination of other attesting witness can be dispensed
\nwith.  The one attesting witness examined, in his
\nevidence has to satisfy the attestation of a will by
\nhim and the other attesting witness in order to prove
\nthere was due execution of the will.  If the attesting
\nwitness examined besides his attestation does not, in
\nhis evidence, satisfy the requirements of attestation
\nof the will by other witness also it falls short of
\nattestation of will at least by two witnesses for the
\nsimple reason that the execution of the will does not
\nmerely mean the signing of it by the testator but it
\nmeans fulfilling and proof of all the formalities
\nrequired under Section 63<\/a> of the Succession Act.  Where
\none attesting witness examined to prove the will under
\nSection 68<\/a> of the Evidence Act fails to prove the due
\nexecution of the will then the other available
\nattesting witness has to be called to supplement his
\nevidence to make it complete in all respects.  Where
\none attesting witness is examined and he fails to prove
\nthe attestation of the will by the other witness there
\nwill be deficiency in meeting the mandatory
\nrequirements of Section 68<\/a> of the Evidence Act.\n<\/p>\n
\tSection 71<\/a> of the Evidence Act is in the nature of
\na safeguard to the mandatory provisions of Section 68<\/a>,
\nEvidence Act<\/a>, to meet a situation where it is not
\npossible to prove the execution of the will by calling
\nattesting witnesses, though alive.  This Section
\nprovides that if an attesting witness denies or does
\nnot recollect the execution of the will, its execution
\nmay be proved by other evidence.  Aid of Section 71<\/a> can
\nbe taken only when the attesting witnesses, who have
\nbeen called, deny or fail to recollect the execution of
\nthe document to prove it by other evidence. Section 71<\/a>
\nhas no application to a case where one attesting
\nwitness, who alone had been summoned, has failed to
\nprove the execution of the will and other attesting
\nwitnesses though are available to prove the execution
\nof the same, for the reasons best known, have not been
\nsummoned before the court.  It is clear from the
\nlanguage of Section 71<\/a> that if an attesting witness
\ndenies or does not recollect execution of the document,
\nits execution may be proved by other evidence.
\nHowever, in a case where an attesting witness examined
\nfails to prove the due execution of will as required
\nunder clause (c) of Section 63<\/a> of the Succession Act,
\nit cannot be said that the Will is proved as per
\nSection 68<\/a> of the Evidence Act.\t   It cannot be said
\nthat if one attesting witness denies or does not
\nrecollect the execution of the document, the execution
\nof will can be proved by other evidence dispensing with
\nthe evidence of other attesting witnesses though
\navailable to be examined to prove the execution of the
\nwill.  Yet, another reason as to why other available
\nattesting witnesses should be called when the one
\nattesting witness examined fails to prove due execution
\nof the Will is to avert the claim of drawing adverse
\ninference under Section 114<\/a> illustration (g) of
\nEvidence Act<\/a>.  Placing the best possible evidence, in
\nthe given circumstances, before the Court for
\nconsideration, is one of the cardinal principles of
\nIndian Evidence Act<\/a>. Section 71<\/a> is permissive and an
\nenabling Section permitting a party to lead other
\nevidence in certain circumstances.  But Section 68<\/a> is
\nnot merely an enabling Section.\t It lays down the
\nnecessary requirements, which the Court has to observe
\nbefore holding that a document is proved.  Section 71<\/a>
\nis meant to lend assistance and come to the rescue of a
\nparty who had done his best, but driven to a state of
\nhelplessness and impossibility cannot be let down
\nwithout any other means of proving due execution by
\n“other evidence” as well.  At the same time Section
\n71<\/a> cannot be read so as to absolve a party of his
\nobligation under Section 68<\/a> read with Section 63<\/a> of the
\nAct and liberally allow him, at his will or choice to
\nmake available or not a necessary witness otherwise
\navailable and amenable to the jurisdiction of the court
\nconcerned and confer a premium upon his omission or
\nlapse, to enable him to give a go bye to the mandate of
\nlaw relating to proof of execution of a will.
\n\tTurning to the facts of the case on hand, it is
\nevident that only one attesting witness Prabhakar
\nSinkar, examined in the case, did not prove the
\nexecution of the Will inasmuch as he did not prove the
\nattestation of the Will by the other attesting witness
\nWagle who though available was not examined.  The
\nscribe examined in the case was not an attesting
\nwitness, which is clear from the evidence on record and
\nas rightly conceded so by learned counsel for the
\nrespondent before us. Hence, it is unnecessary to go
\ninto the question whether the scribe in this case could
\nor could not be an attesting witness. The evidence of
\nSinkar, the only attesting witness, does not satisfy
\nthe mandatory requirements of Section 68<\/a> of the
\nEvidence Act.  We are not in a position to accept the
\ncontention urged on behalf of the respondent that the
\nevidence of other witnesses, namely, that of the
\nrespondent and the scribe could be considered under
\nSection 71<\/a> of the Evidence Act.\t Section 71<\/a> has no
\napplication when the one attesting witness, who alone
\nhas been summoned, has failed to prove the execution of
\nthe will and other attesting witness though available
\nhas not been examined.\tWhen the document is not proved
\nas mandatorily required under Section 68<\/a> of the
\nEvidence Act, the provision of Section 71<\/a> of the
\nEvidence Act, which is permissive, and enabling in
\ncertain circumstances as discussed above does not help
\nthe respondent. In Vishnu Ramkrishna & Ors. v. Nathu
\nVithal & Ors<\/a>. [(AIR) 1949 Bom. 266], Chagla, C.J.,
\nspeaking for the Division Bench in similar
\ncircumstances has stated that although Section 63<\/a> of
\nthe Succession Act requires that a will has to be
\nattested by two witnesses, Section 68<\/a> of the Evidence
\nAct permits the execution of the will to be proved by
\nonly one attesting witness being called.  Where the
\nattesting witness, who is called to prove the
\nexecution, is not in a position to prove the
\nattestation of the will by the second witness, the
\nevidence of the witness called falls short to the
\nmandatory requirements of Section 68<\/a>.  Section 71<\/a> of
\nthe Evidence Act can only be requisitioned when the
\nattesting witnesses who have been called failed to
\nprove the execution of the will by reason of either
\ndenying their own signatures or denying the signature
\nof the testator or having no recollection as to the
\nexecution of the document.  This Section has no
\napplication when one attesting witness has failed to
\nprove the execution of the will and other attesting
\nwitnesses were available who could prove the execution
\nif they were called.\n<\/p>\n
\tThe view taken in Mt. Manki Kaur v. Hansraj Singh
\n& Ors. [(AIR) 1938 Patna 301], on which heavy reliance
\nwas placed by the learned counsel for the respondent,
\nin our view is not a correct view as to the scope and
\neffect of Section 71<\/a> of the Evidence Act. That case
\nrelated to an action taken on mortgage bond and not on
\na Will.\t There were four attesting witnesses.  One of
\nthem was dead, two others, who were called, denied
\nexecution.  But the absence of fourth from Court was
\nnot explained.\tOn the facts of that case, the High
\nCourt took the view that the execution of the mortgage
\nbond could be proved by other evidence having recourse
\nto Section 71<\/a> of the Evidence Act. In our opinion, the
\nposition of law explained in relation to Section 71<\/a> of
\nthe Evidence Act in the judgment of Bombay High Court
\naforementioned is a correct view which we approve.
\n\tIn the case on hand it was not established that
\nthe two witnesses attested the Will. The High Court
\ncommitted a serious error in reversing the judgment and
\ndecree of the first appellate court on a finding of
\nfact, which was based on proper and objective
\nappreciation of evidence. The High Court was also wrong
\nin treating the scribe of the Will, Raikar, as an
\nattesting witness without any basis.  Further, the High
\nCourt while reversing the judgment and decree of the
\nfirst appellate court did not indicate as to any
\nsubstantial question of law that arose for
\nconsideration between the parties to deprive the suit
\nproperties to the only daughter of deceased Honaji Dama
\nKadam.\n<\/p>\n
\tUnder these circumstances we have no hesitation in
\nholding that the High Court committed a manifest error
\nin reversing the judgment and decree of the first
\nappellate court.  In this view the impugned judgment
\nand decree cannot be sustained.\t Hence, they are set
\naside.\tThe judgment and decree of the first appellate
\ncourt are restored.  In the result, the suit filed by
\nthe respondent-plaintiff shall stand dismissed.\t There
\nshall be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Janki Narayan Bhoir vs Narayan Namdeo Kadam on 17 December, 2002 Author: S V Patil Bench: Doraiswamy Raju, Shivaraj V. Patil. CASE NO.: Appeal (civil) 11194 of 1995 PETITIONER: Janki Narayan Bhoir RESPONDENT: Narayan Namdeo Kadam DATE OF JUDGMENT: 17\/12\/2002 BENCH: Doraiswamy Raju & Shivaraj V. Patil. JUDGMENT: J U D […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-248173","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nJanki Narayan Bhoir vs Narayan Namdeo Kadam on 17 December, 2002 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/janki-narayan-bhoir-vs-narayan-namdeo-kadam-on-17-december-2002\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Janki Narayan Bhoir vs Narayan Namdeo Kadam on 17 December, 2002 - 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