DHANPAT versus SHEO RAM (DECEASED) THROUGH LRS. & ORS.

19. This Court in Z. Engineers Construction Pvt. Ltd. & Anr. v. Bipin Bihari Behera & Ors.8, held that even in respect of deficiency of stamp duty in the State of Orissa where a question arose as to whether possession had been delivered in pursuance of a registered power of attorney, the same was a question of fact which was required to be decided after the evidence was led.

20. There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed.

21. Now, coming to the question as to whether the defendants have proved the due execution of the Will, reference will be made to a judgment reported as H. Venkatachala Iyengar v. B.N. Thimmajamma & Ors.9. This Court while considering Section 63 of the Act and Section 68 of the Evidence Act laid down the test as to whether the testator signed the Will and whether he understood the nature and effect of the dispositions in the Will. The Court held as under: “18. …Thus 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 the light of these provisions. Has the testator signed the will? Did he understand the nature and effect of the dispositions in the will? Did he put his signature to the will knowing what it contained? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. 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.” 8 2020 SCC OnLine SC 184 9 AIR 1959 SC 443 DHANPAT v. SHEO RAM (DECEASED) THROUGH LRS. & ORS. [HEMANT GUPTA, J.]

22. This Court in a judgment reported as Seth Beni Chand (since dead) now by LRs. v. Smt. Kamla Kunwar & Ors.10 held that onus probandi lies in every case upon the party propounding a Will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. The Court held as under: “9. The question which now arises for consideration, on which the Letters Patent Court differed from the learned Single Judge of the High Court, is whether the execution of the will by Jaggo Bai is proved satisfactorily. It is well-settled that the onus probandi lies in every case upon the party propounding a will, and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. [See Jarman on Wills (8th Edn., p. 50) and H. Venkatachala Iyengar v. B.N. Thimmajamma, AIR 1959 SC 443 : 1959 Supp (1) SCR 426] By “free and capable testator” is generally meant that the testator at the time when he made the will had a sound and disposing state of mind and memory. Ordinarily, the burden of proving the due execution of the will is discharged if the propounder leads evidence to show that the will bears the signature or mark of the testator and that the will is duly attested. For proving attestation, the best evidence would naturally be of an attesting witness and indeed the will cannot be used as evidence unless at least one attesting witness, depending on availability, has been called for proving its execution as required by Section 68 of the Evidence Act….”

23. In view of the aforesaid judgments, at least one of the attesting witnesses is required to be examined to prove his attestation and the attestation by another witness and the testator. In the present case, DW-3 Maha Singh deposed that Chandu Ram had executed his Will in favour of his four grandsons and he and Azad Singh signed as witnesses. He deposed that the testator also signed it in Tehsil office. He and Azad Singh were also witnesses before the Sub-Registrar. In the cross- examination, he stated that he had come to Tehsil office in connection with other documents for registration. He deposed that Ex.D-4-the Will, was typed in his presence. He denied the question that no Will was executed in his presence. There was no cross-examination about his not being present before the Sub-Registrar. Once the Will has been proved 10 (1976) 4 SCC 554 then the contents of such document are part of evidence. Thus, the requirement of Section 63 of the Act and Section 68 of the Evidence Act stands satisfied. The witness is not supposed to repeat in a parrot like manner the language of Section 68 of the Evidence Act. It is a question of fact in each case as to whether the witness was present at the time of execution of the Will and whether the testator and the attesting witnesses have signed in his presence. The statement of the attesting witness proves the due execution of the Will apart from the evidence of the scribe and the official from the Sub-Registrar’s office.

24. Mr. Swarup referred to judgment of this Court reported as M.L. Abdul Jabbar Sahib v. M.V. Venkata Sastri & Sons & Ors.11. The primary issue discussed therein was a summary suit for recovery wherein an application for leave to defend was granted on the condition of furnishing a security for a sum of Rs.50,000/-. The question examined was whether the security bond is attested by the two witnesses and, if not, whether it was invalid. While considering the attestation, this Court discussed the question of attestation of witnesses as well and held as under: “8. “In every case the Court must be satisfied that the names were written animo attestandi”, see Jarman on Wills, 8th Edn., p. 137. Evidence is admissible to show whether the witness had the intention to attest. “The attesting witnesses must subscribe with the intention that the subscription made should be complete attestation of the will, and evidence is admissible to show whether such was the intention or not,” see Theobald on Wills, 12th Edn., p. 129. In Girja Datt v. Gangotri [AIR 1955 SC 346, 351] , the Court held that the two persons who had identified the testator at the time of the registration of the will and had appended their signatures at the foot of the endorsement by the sub-Registrar, were not attesting witnesses as their signatures were not put “animo attestandi”. In Abinash Chandra Bidvanidhi Bhattacharya v. Dasarath Malo [ILR 56 Cal 598] it was held that a person who had put his name under the word “scribe” was not an attesting witness as he had put his signature only for the purpose of authenticating that he was a “scribe”. In Shiam Sunder Singh v. Jagannath Singh [54 MLJ 43], the Privy Council held that the legatees who had put their signatures on the will in token 11 (1969) 1 SCC 573 DHANPAT v. SHEO RAM (DECEASED) THROUGH LRS. & ORS. [HEMANT GUPTA, J.] of their consent to its execution were not attesting witnesses and were not disqualified from taking as legatees.”

25. In the aforesaid case, it had been held that the person who put his name under the word “scribe” was not an attesting witness, further that the legatees who had put their signatures on the Will were not attesting witnesses. In the present case, Maha Singh and Azad Singh have signed the Will as attesting witnesses not only at the time of execution but also at the time of registration before the Sub-Registrar. Therefore, the said judgment is not helpful to the argument raised.

26. Mr. Swarup relied on judgment reported as N. Kamalam (Dead) & Anr. v. Ayyasamy & Anr.12 that in the absence of Maha Singh deposing that he is the attesting witness along with Azad Singh, his statement cannot be treated to be that of attesting witness. We do not find any merit in the said argument. In the aforesaid case, it was the scribe who was said to be the attesting witness. This Court held as under: “27. …The animus to attest, thus, is not available, so far as the scribe is concerned: he is not a witness to the will but a mere writer of the will. The statutory requirement as noticed above cannot thus be transposed in favour of the writer, rather goes against the propounder since both the witnesses are named therein with detailed address and no attempt has been made to bring them or to produce them before the court so as to satisfy the judicial conscience. Presence of scribe and his signature appearing on the document does not by itself be taken to be the proof of due attestation unless the situation is so expressed in the document itself — this is again, however, not the situation existing presently in the matter under consideration. Some grievance was made before this Court that sufficient opportunity was not being made available, we are however, unable to record our concurrence therewith. No attempt whatsoever has been made to bring the attesting witnesses who are obviously available.”

27. The said judgment has no applicability inasmuch as Maha Singh is the attesting witness and has been examined as such by the defendant. 12 (2001) 7 SCC 503

28. Mr. Swarup further relied upon a judgment of this Court reported as Janki Narayan Bhoir v. Narayan Namdeo Kadam13 to contend that if one attesting witness is examined, he has to depose about the presence of the second attesting witness by relying upon the following findings: “10. …The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by the other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.”

29. We do not find any merit in the said argument as well. The statement of Maha Singh produced on record shows that he along with Azad Singh, the other attesting witness and the testator had signed the Will. In the cross-examination, the statement that he has signed the Will had not been disputed nor that the testator or the other attesting witness was not present at that time. Therefore, the ratio of the aforesaid judgment is not applicable to the facts of the present case. In fact, it is finding of fact, recorded by the First Appellate Court.

30. In respect of an argument that some of the natural heirs were not even mentioned in the Will, therefore, the Will is surrounded by suspicious circumstances is again not tenable. Mr. Rishi Malhotra, learned counsel for the appellant referred to the judgment of this Court reported as Rabindra Nath Mukherjee & Anr. v. Panchanan Banerjee (Dead) by LRs. & Ors.14 wherein it had been held that the Will was executed 13 (2003) 2 SCC 91 14 (1995) 4 SCC 459 DHANPAT v. SHEO RAM (DECEASED) THROUGH LRS. & ORS. [HEMANT GUPTA, J.] for the exclusion of the natural heirs. The suspicious circumstances found by the High Court to deprive the natural heirs by the testatrix was not found to be sufficient. The Court held as under: “4. As to the first circumstance, we would observe that this should not raise any suspicion, because the whole idea behind execution of will is to interfere with the normal line of succession. So natural heirs would be debarred in every case of will; of course, it may be that in some cases they are fully debarred and in others only partially. As in the present case, the two executors are sons of a half-blood brother of Saroj Bala, whereas the objectors descendants of a full blood sister, the disinheritance of latter could not have been taken as a suspicious circumstance, when some of her descendants are even beneficiaries under the will.”

31. Mr. Malhotra referred to another judgment of this Court reported as Ved Mitra Verma v. Dharam Deo Verma15 wherein this Court held that the exclusion of the children of the testator and execution of the Will for the sole benefit of one of the sons by the testator, is not a suspicious circumstance. This Court held as under: “8. The exclusion of the other children of the testator and the execution of the will for the sole benefit of one of the sons i.e. the respondent, by itself, is not a suspicious circumstance. The property being self-acquired, it is the will of the testator that has to prevail.”

32. Mr. Malhotra also referred to the judgment of this Court reported as Leela Rajagopal & Ors. v. Kamala Menon Cocharan & Ors.16 wherein it was held that it is the overall assessment of the Court on the basis of the unusual features appearing in the Will or the unnatural circumstances surrounding its execution, that justifies a close scrutiny of the same before it can be accepted. Herein, the cumulative effect of the unusual features and circumstances surrounding the Will, would weigh upon the court in the determination required to be made by it. The judicial verdict will be based on the consideration of all the unusual features and suspicious circumstances put together and not upon the impact of any single feature that may be found in a Will or a singular circumstance that may appear from the process leading to its execution. The Court held as under: 15 (2014) 15 SCC 578 16 (2014) 15 SCC 570 “13. A will may have certain features and may have been executed in certain circumstances which may appear to be somewhat unnatural. Such unusual features appearing in a will or the unnatural circumstances surrounding its execution will definitely justify a close scrutiny before the same can be accepted. It is the overall assessment of the court on the basis of such scrutiny; the cumulative effect of the unusual features and circumstances which would weigh with the court in the determination required to be made by it. The judicial verdict, in the last resort, will be on the basis of a consideration of all the unusual features and suspicious circumstances put together and not on the impact of any single feature that may be found in a will or a singular circumstance that may appear from the process leading to its execution or registration. This, is the essence of the repeated pronouncements made by this Court on the subject including the decisions referred to and relied upon before us. 14. In the present case, a close reading of the will indicates its clear language, and its unambiguous purport and effect. The mind of the testator is clearly discernible and the reasons for exclusion of the sons is apparent from the will itself…” 33. In view of the above, we find that the High Court has clearly erred in law in interfering with the concurrent findings of fact recorded by both the Courts below. The entire judgment runs on misconception of law and is, therefore, not sustainable in law. The same is set aside and the decree of the First Appellate Court is restored. Accordingly, the appeal is allowed and the suit is dismissed. Kalpana K. Tripathy Appeal allowed. DHANPAT v. SHEO RAM (DECEASED) THROUGH LRS. & ORS. [HEMANT GUPTA, J.]