Viewed in premise, Section 71 of the 1872 Act has
to be necessarily accorded a strict interpretation. The
two contingencies permitting the play of this provision,
namely, denial or failure to recollect the execution by the
attesting witness produced, thus a fortiori has to be
extended a meaning to ensure that the limited liberty
granted by Section 71 of 1872 Act does not in any
manner efface or emasculate the essence and efficacy of
Section 63 of the Act and Section 68 of 1872 Act. The
distinction between failure on the part of a attesting
witness to prove the execution and attestation of a Will
and his or her denial of the said event or failure to
recollect the same, has to be essentially maintained. Any
unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the
predication of Section 63 of the Act and Section 68 of the
1872 Act, otiose. The propounder can be initiated to the
benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced
and in clear terms either denies /deny the execution of
the document or cannot recollect the said incident. Not
only, this witness/witnesses has/have to be credible and
impartial, the evidence adduced ought to demonstrate
unhesitant denial of the execution of the document or
authenticate real forgetfulness of such fact. If the
testimony evinces a casual account of the execution and
attestation of the document disregardful of truth, and
thereby fails to prove these two essentials as per law, the
propounder cannot be permitted to adduce other
evidence under cover of Section 71 of the 1872 Act. Such
a sanction would not only be incompatible with the
scheme of Section 63 of the Act read with Section 68 of
the 1872 Act but also would be extinctive of the
paramountcy and sacrosanctity thereof, a consequence,
not legislatively intended. If the evidence of the witnesses
produced by the propounder is inherently worthless and
lacking in credibility, Section 71 of Act 1872 cannot be
invoked to bail him (propounder) out of the situation to
facilitate a roving pursuit. In absence of any touch of
truthfulness and genuineness in the overall approach,
this provision, which is not a substitute of Section 63 (c )
of the Act and Section 68 of the 1872 Act, cannot be
invoked to supplement such failed speculative endeavour
45.2 Section 71 of the 1872 Act, even if assumed to be
akin to a proviso to the mandate contained in Section 63
of the Act and Section 68 of the 1872 Act, it has to be
assuredly construed harmoniously therewith and not
divorced therefrom with a mutilative bearing. This
underlying principle is inter alia embedded in the
decision of this Court in the Commission of Income Tax,
Madras Appellant Versus Ajax Products Limited
Respondent AIR 1965, Supreme Court 1358.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.4181-4182 OF 2015
(ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014
JAGDISH CHAND SHARMA .
Vs.
NARAIN SINGH SAINI (DEAD)
THROUGH HIS LRs & Ors.
Citation;AIR 2015 SC2149
AMITAVA ROY, J.
Leave granted.
1. The genesis of the lingering dissension in the instant
proceeding lies in the Will claimed by the appellant
herein to have been executed on 22-10-1973 by Nathu
Singh (since deceased), the predecessor in the interest of
the respondents, thereby bequeathing the property
mentioned therein to him (appellant). The judgment and
order dated 15-05-2007 passed in P C No. 249/1980
(re-numbered as PC No. 160/2006), by the District
Judge, Tis Hazari Court, Delhi, granting Letter ofPage 2
2
Administration to him, has been reversed by the High
Court of Delhi by its judgment and order dated
02-07-2014 rendered in FAO No. 279 of 2007 as assailed
herein.
2. We have heard Mr. Paras Kuhad, Sr. Advocate for the
appellant and Mr. Daljeet Singh, Senior Advocate for the
respondents.
3. A brief outline of the pleaded facts would portray the
rival orientations. The appellant, to reiterate, filed an
application under Section 276 of the Indian Succession
Act 1925 (for short hereinafter referred to as the Act) with
the Will annexed, seeking grant of Letter of
Administration. He stated that the Will had been
executed by Mr. Nathu Singh on 22-10-1973, as the sole
and absolute owner amongst others of Municipal House
Tax No. 807 (Private No. A/152 to A/162/1) situated at
Sukhdev Nagar, Kotla Mubarakpur, New Delhi,
bequeathing the same to him. The appellant stated that
the testator nursed great love and affection for him forPage 3
3
the services rendered by him and was not favourably
disposed towards his sons for their disagreeable conduct
and activities. It was mentioned that the testator expired
on 02-08-1980 at Delhi whereafter, Shri Harswaroop
Sharma, resident of 41, Subhash Market, Kotla
Mubarkpur, informed him to receive the Will lying in his
custody. It was, thereafter, according to the appellant
that the application for Letter of Administration was filed.
In the petition, he averred the names and particulars of
the sons and daughters of the deceased testator and
disclosed further that the subject matter of the Will was
located in New Delhi. That the Will was executed and
made in Delhi was also mentioned. The appellant did
provide and sign a verification declaring the correctness
of the statements made therein. Further another
verification subscribed by Mr. G. C. Kumar, Advocate,
Delhi in the capacity of an attesting witness to the Will,
was also made. Page 4
4
4. On the receipt of the notice of the proceedings
registered on this petition, objections were filed by Mr.
Jaswant Singh (since deceased) son of the testator and
also by his other sons and daughters separately. For the
sake of brevity the substance of the objections registered
by the children of the testator would be synopsised.
5. It was pleaded that the property said to have been
bequeathed was ancestral joint Hindu family property
and thus, the testator had no authority to execute the
Will in favour of the appellant. While denying the claim
that the appellant did enjoy the love and affection of the
testator, it was asserted that he (appellant) in fact had
been appointed by the testator as his rent collector on
11-05-1973 and was endowed with a registered power of
attorney. The objectors averred that as the appellant
failed to render his sincere services, the power of attorney
was revoked. That the appellant did create tenancy in
favour of his wife, Shrimati Santosh Kumar Sharma in
respect of shop No.F–16 belonging to the testator withoutPage 5
5
his knowledge for which he (testator) had instituted a
suit against him (appellant) in the year 1975 for recovery
of damages was also stated. The objectors did further
refer to several complaints made by the testator against
the appellant for his unsatisfactory services and misuse
of power including misappropriation of rents collected by
him. They also stated that the appellant had appeared
as a witness in a criminal case against the deceased and
was also placed under suspension by his employer where
he served as a teacher.
6. The respondents/objectors averred further that the
appellant was present at the time of execution of two
other Wills by the testator in favour of one Kisan Lal and
Vimala Devi and suggested that he (appellant) by playing
fraud on him (testator) might have got his Will signed, in
the process of getting the above two documents executed.
In all, the respondents/objectors assertively emphasized
that the facts and circumstances prevailing at the
relevant point of time did not at all warrant/justifyPage 6
6
execution of any Will by Mr. Nathu Singh in favour of the
appellant by depriving his children. They, in categorical
terms, denied the execution of the Will and also the
signatures and the thumb impressions of the Mr. Nathu
Singh thereon as claimed by the appellant. They averred
as well that the testator was conversant only with Hindi
language and that the contents of the Will in English had
never been read over or explained to him.
7. In his rejoinder, the appellant refuted the
respondent’s cavil based on jointness of the property.
While insisting that the property was the self acquired
asset of the deceased, the appellant stated that therefrom
the testator, not only, had conveyed portions by way of
sale, but also, had gifted some to his children. He
categorically denied the allegation of his disagreeable
activities and misuse of powers. He instead, did impute
fraudulent act of the respondent, Mr. Jaswant Singh in
getting his name mutated in the revenue records in place
of Mr. Nathu Singh for which, a litigation between thePage 7
7
two did ensue. He accused the said respondent for being
responsible for institution of cases against him by Mr.
Nathu Singh.
8. On these competing pleadings, the following issues
were framed:
1. Whether Mr. Nathu Singh Saini, deceased
executed the Will dated 22-10-1973, validly while
possessed of a sound disposing mind?
2. Relief.
8.1 The parties thereafter adduced oral and documentary
evidence. Whereas, the appellant examined six witnesses
including himself, Mr. G. C. Kumar, Advocate (attesting
witness), AW 3 Mr. A. K. Jain, Sub-Registrar, New Delhi
and AW 5 Mr. Budh Ram (attesting witness), the
respondents offered 8 witnesses in support of their case.
Needless to say, the appellant proved amongst the others
the Will, Exhibit A-1.
9. The learned Trial Court, on its assessment of the
evidence adduced, concluded that the appellant couldPage 8
8
prove that the Will dated 22-10-1973 Exhibit A -1 was
executed by the testator in a sound disposing state of
mind after fully understanding its contents and that it
was duly registered. Having held so, it observed that the
onus of proving that the document was not a genuine
Will did shift to the respondents. On an analysis of the
evidence offered by the respondents, the learned Trial
Court was of the view that the same was inadequate to
displace the validity of the Will. It thus returned a
finding that the Will dated 22-10-1973 Exhibit A-1 had
been validly executed by the testator with a sound
disposing state of mind in presence of two attesting
witnesses. Consequently, the Letter of Administration as
prayed for, by the appellant vis-à-vis the said Will was
granted.
10. Aggrieved, the respondents preferred appeal being
FAO 279/2007 in the High Court of Delhi. By the
impugned judgment and order, as adverted to herein
above, the verdict of the learned Trial Court has beenPage 9
9
reversed. The High Court on a threadbare evaluation of
the pleadings and the evidence on record, on the
touchstone of the relevant provisions of the Act and the
Indian Evidence Act, 1872 (for short hereinafter referred
to as Act 1872), determined that the Will dated
22-10-1973 had not been proved as per law and that no
Probate or Letter of Administration could be granted.
Referring to the testimony of the attesting witnesses, the
High Court held that they could not prove the execution
of the Will as well as the attestation thereof within the
meaning of Section 63 (c) of the Act, a mandatory legal
edict. The High Court also dismissed the plea based on
Section 71 of the Act, 1872 noting that the evidence of
the attesting witnesses produced by the appellant, did
not only demonstrate lack of intention to attest the Will,
but also, rendered the execution of the document and
their signatures thereon doubtful. The High Court
noticed as well the circumstances attendant on the
bequest to render it doubtful in view of the suspicious
bearing thereof. It amongst others noted therefore toPage 10
10
arrive at this conclusion, that the deceased/testator was
versed only in Urdu and that the Will was drafted in
English, and that on the very same day he had executed
two other Wills involving different properties with the
possibility that the Will in question, was got signed, by
representing it to be a part of the other transactions. The
history of past litigation between the testator and the
appellant involving allegations of his unauthorized acts
and misuse of power also did weigh with the High Court
to deduce that it was unlikely that the testator would out
of natural love and affection bequeath his property or any
portion thereof to such a person, by depriving his own
children. The decision of the Trial Court was thus
interfered with.
11. Mr. Kuhad has insistently argued that the impugned
judgment and order suffers from apparent misreading of
pleadings and evidence on the record and is thus liable to
be annulled. Relying in particular on the testimony of
the witnesses AW 1 and AW 5, the learned senior counselPage 11
11
has urged that the execution and the attestation of the
Will in question have been duly proved as required under
Section 63 of the Act. Drawing sustenance from Section
71 of Act 1872, the learned senior counsel has
maintained that even assuming that the testimony of AW
1 and AW 5 was deficient vis-à-vis the requirement of the
Section 63 (c) of the Act, the appellant having examined
both the attesting witnesses, it was permissible for him to
prove the execution and attestation of the Will by
adducing other evidence. Mr. Kuhad has thus argued
that the evidence of AW 3, Sub-Registrar before whom,
the Will had been registered on completion of all legal
formalities, did as well assuredly establish the execution
and attestation of the Will as required by law and thus
the High Court had erred in holding to the contrary. As
the testimony of AW 3, the Sub-Registrar amply proved
all the essentials of Section 63 (c) of the Act, the learned
Trial Court had validly granted the Letter of
Administration, he maintained. Referring to the evidence
of AW 1, Mr. G. C. Kumar, Advocate, Mr. Kuhad urgedPage 12
12
that the verification signed by him at the foot of the
application for Letter of Administration did buttress, the
correctness of the contents thereof and, thus the stray
deviations in his version at the trial ought to have been
discarded as inconsequential. In any case, the
casualness of the testimony of the attesting witnesses
does not adversely impact upon the validity of the Will, as
such conduct could have been the yield of an endeavour
of the respondents to gain them over. While repudiating
the conclusions of the High Court inferring denial of
execution by the attesting witnesses and lack of animus
on their part to attest the Will as well as the suspicious
circumstances noticed by it, to be perverse and opposed
to the weight of the materials on record, the learned
senior counsel insisted that having regard to the basic
requisites of valid Will in law, namely, free and sound
disposing state of mind of the testator, understanding of
the implication of the bequest, admission of execution
thereof by him/her and due attestation thereof, the
deductions of the High Court contrary thereto arePage 13
13
indefensible and are thus liable to be negated. Apart
from contending that the respondents had failed to
discharge their onus to prove their objections in the face
of the overwhelming evidence of execution and attestation
of the Will in law, the learned senior counsel has urged
that the High Court had fallen in error as well in acting
upon the additional evidence adduced before it under
Order 41 Rule 27 of the Civil Procedure Code (for short
hereinafter referred as Code), without offering an
opportunity to the appellant to counter such prayer. The
following decisions were relied upon to reinforce the
above contentions.
AIR 1955 SC 346 Bhaiya Guruji Dutt Singh Vs Gangotri
Dutt Singh, AIR 1959 SC 443 H Venkatachala Iyengar Vs
B N Thimmajamma and Others,(1974) 2 SCC 600 Kewal
Pati (Smt) Vs State of UP and Others, (1995) 4 SCC 459
Surendra Pal and Ors. Vs. Dr. (Mrs.)Saraswati Arora and
Anr.,(2003) 2 SCC 91 Janki Narayan Bhoir Vs. Narayan
Namdeo Kadam, (2005) 8 SCC 67 PentakotaPage 14
14
Satyanarayana and Ors. Vs. Pentakota Seetharatnam
and Ors., (2013) 7 SCC 490 M.B. Ramesh (D) by LRs. Vs.
KM Veeraje Urs (D) by LRs and Ors.
12. Per contra, Mr. Singh has argued that it being
apparent on the face of the records that neither the
execution nor the attestation of the Will involved had
been proved by any of the witnesses, the impugned
judgment is unassailable and thus the instant petition is
liable to be dismissed in limine. The findings recorded by
the High Court being founded on an indepth scrutiny of
the materials on record, are unmistakably conclusive and
thus this Court would not embark upon a fresh appraisal
thereof, he maintained. The learned senior counsel by
referring to the evidence of the witnesses AW 1, AW 5 in
particular has emphatically pleaded that as the appellant
had failed to prove either the execution or the attestation
of the Will, Section 71 of the Act of 1872 is inapplicable
to the facts of the present case, and thus the testimony of
AW 3 is wholly irrelevant. Without prejudice to this, thePage 15
15
learned senior counsel has urged that the evidence of AW
3 as well falls short of the requirements of Section 63 (c)
of the Act and thus, cannot be invoked to the advantage
of the appellant. As the evidence of AW 1 and AW 5 does
not attract the contingencies enumerated in Section 71 of
Act 1872, the version of AW 3, in any view of the matter,
is of no avail to the appellant, he asserted. The learned
senior counsel maintained that even de hors the
additional evidence laid before the High Court under
Order 41 Rule 27 of the Code, the findings recorded in
the impugned judgment and order are sustainable in law
and on facts and thus no interference therewith is called
for. Mr. Singh relied on the decisions hereunder to
endorse his arguments.
(1977) 1 SCR 925 Smt. Jaswant Kaur Vs Smt. Amrit Kaur
and Ors., (2001) 9 SCC 503 Neki Ram and Ors. Vs. Ama
Ram Godara and Ors., (2003) 2 SCC 91 Janki Narayan
Bhoir Vs. Narayan Namdeo Kadam.Page 16
16
13. The contentious pleadings and the assertions based
thereon in the backdrop of the evidence as a whole have
been duly analysed by us. The competing perspectives
notwithstanding, the purport and play of Section 63 of
the Act read with Sections 68 and 71 of Act 1872 as
deciphered by various judicial enunciations would have a
decisive bearing on the process of resolution of the
irreconcilable issues that demand to be addressed. It
would thus be apt, nay, imperative to refer to these legal
provisions before embarking on the appreciation of the
evidence to the extent indispensible. Section 63 of the
Act and Sections 68 and 71 of the Act 1872, are thus
extracted hereunder for ready reference.
Indian Succession Act, 1922
“63. Execution of unprivileged Wills.- Every
testator, not being a soldier employed in an
expedition or engaged in actual warfare, 1
[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. Page 17
17
(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 acknowledgement 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 by
present at the same time, and no particular form of
attestation shall be necessary.
Indian Evidence Act 1872
68. Proof of execution of document required by
law to be attested- 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;
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless
its execution by the person by whom it purports to
have been executed is specifically denied.
71. Proof when attesting witness denies the
execution.-If the attesting witness denies or does
not recollect the execution of the document, its
execution may be proved by other evidence. Page 18
18
14. As would be evident from the contents of Section 63
of the Act that to execute the Will as contemplated
therein, the testator would have to sign or affix his mark
to it or the same has to be signed by some other person
in his presence and on his direction. Further the
signature or mark of the testator or the signature of the
person signing for him has to be so placed that it would
appear that it was intended thereby to give effect to the
writing as Will. The Section further mandates that the
Will shall have to be attested by two or more witnesses
each of whom has seen the testator sign or affix his mark
to it or has seen some other persons sign it, in the
presence and on the direction of the testator, or has
received from the testator, personal acknowledgement of
a signature or mark, or the signature of such other
persons and that each of the witnesses has signed the
Will in the presence of the testator. It is, however,
clarified that it would not be necessary that more than
one witness be present at the same time and that no
particular form of attestation would be necessary.Page 19
19
15. It cannot be gainsaid that the above legislatively
prescribed essentials of a valid execution and attestation
of a Will under the Act are mandatory in nature, so much
so, that any failure or deficiency in adherence thereto
would be at the pain of invalidation of such
document/instrument of disposition of property.
15.1. In the evidentiary context Section 68 of the Act
1872 enjoins that if a document is required by law to be
attested, it would not be used as evidence unless one
attesting witness, at least, if alive, and is subject to the
process of Court and capable of giving evidence proves its
execution. The proviso attached to this Section relaxes
this requirement in case of a document, not being a Will,
but has been registered in accordance with the provisions
of the Indian Registration Act 1908 unless its execution
by the person by whom it purports to have been
executed, is specifically denied.
15.2. These statutory provisions, thus, make it
incumbent for a document required by law to be attestedPage 20
20
to have its execution proved by at least one of the
attesting witnesses, if alive, and is subject to the process
of Court conducting the proceedings involved and is
capable of giving evidence. This rigour is, however, eased
in case of a document also required to be attested but not
a Will, if the same has been registered in accordance with
the provisions of the Indian Registration Act, 1908 unless
the execution of this document by the person said to
have executed it denies the same. In any view of the
matter, however, the relaxation extended by the proviso
is of no avail qua a Will. The proof of a Will to be
admissible in evidence with probative potential, being a
document required by law to be attested by two
witnesses, would necessarily need proof of its execution
through at least one of the attesting witnesses, if alive,
and subject to the process of the Court concerned and is
capable of giving evidence.
15.3 Section 71 provides, however, that if the attesting
witness denies or does not recollect the execution of thePage 21
21
document, its execution may be proved by other
evidence. The interplay of the above statutory provisions
and the underlying legislative objective would be of
formidable relevance in evaluating the materials on
record and recording the penultimate conclusions. With
this backdrop, expedient it would be, to scrutinize the
evidence adduced by the parties.
15.4 As hereinbefore mentioned, the appellant has
endeavoured to prove the execution and attestation of the
Will, Ex. A–1 through AW 1 Mr. G. C. Kumar and AW 5
Mr. Budh Ram. He has examined as well AW 3 Mr. A. K.
Jain, Sub Registrar, New Delhi before whom the Will was
registered on the very same day of its execution i.e.,
22-10-1973.
15.5. Be that as it may, AW 1 Mr. Kumar deposed on
oath that he was enrolled as a lawyer in or about 1971
and used to assist his father who was a deed writer in
Urdu language. The witness stated that he used to come
to Tis Hazari Court for attending his cases. He testifiedPage 22
22
to have seen the Will Ex. A-1 which he claimed had been
drafted by him. He failed to remember as to whether the
testator, Mr. Nathu Ram Singh had come to his father in
his presence or that his father had given him instructions
to write the Will. The witness even failed to remember
whether the Will had been given to him by his father or to
the testator. He also could not recall as to whether he
was present when the testator had signed the Will. The
witness, however, admitted that Ex. A-1 did bear his
signatures as an attesting witness but deposed that due
to lapse of time, he did not remember whether any other
person was also present and had attested the document
when he had signed it. He, however, stated to have been
present in the office of the Sub Registrar when the Will,
Ex. A-1 was presented for registration. He also admitted
to have signed the document on the backside thereof in
the presence of the clerk of the office. The witness stated
that he had also identified the testator before the Sub
Registrar but clarified that it was as per the prevalent
practice for an identifying witness to do so. He added byPage 23
23
stating that he had signed the document only in that
capacity. The witness deposed further, that he could not
say whether the thumb impression and the signatures of
the testator at the time of the registration and appearing
on the back of page one of the Will had been obtained in
his presence or not. He even failed to recall as to
whether the contents of the Will had been read over and
explained to the testator by him or by his father.
15.6 This witness was declared hostile and was
cross-examined on behalf of the appellant in course
whereof he deposed that he could not say whether he had
signed the Will in presence of the testator. When
confronted, he admitted to have signed the certificate at
the foot of the application in Section 276 of the Act
praying for grant of Letter of Administration but denied to
have done so as an attesting witness of the Will. He
stated instead that he had put his signatures as the
appellant wanted him to do so. He even denied to have
read the contents of the certificate. He refuted thePage 24
24
suggestion that he had made a false statement in Court
being won over by the respondents.
16. AW 2 Shri. Harswaroop has stated on oath that in
November, 1973, the testator had handed over to him
one Will with a direction to deliver it to the appellant
upon his death. According to this witness, he did so
after the demise of Mr. Nathu Singh and handed over the
Will to the appellant. The witness stated to have seen the
Will Ex. A-1, bearing the signature of Mr. Nathu Singh at
several places. He claimed of being conversant with the
handwriting and signature of the Mr. Nathu Singh.
Admittedly, however, this witness is neither one to the
execution of the Will, nor the attestation thereof as
obligated by law.
17. Before reverting to AW 3 in the ordinary sequence,
the testimony of AW 5 figuring in the chain of attestation
as presented by the appellant would be referred to. This
witness, Mr. Budh Ram claimed to have known the
deceased/testator. He stated on oath that he had seenPage 25
25
the document Ex. A-1 and identified his signatures
thereon. He deposed to have signed the document in
presence of the testator. He, however, hastened to add
that he had not seen the testator signing the Will. He
denied to have appeared before the Sub Registrar or to
have identified the testator before the said authority. He
stated that he had signed the document outside the
office. Though, he asserted that testator was mentally
alert on the date on which he (witness) had signed the
Will, he clarified that he did not do so on the asking of
the testator. The witness, however, admitted the
presence of the testator at that time.
17.1 In cross-examination, the witness disclosed that
the appellant was also present on the date on which he
had signed the document and that he did not know the
contents of the said document. He stated further that he
had not been told that any Will was executed by Mr.
Nathu Singh and that he was to attest it. Noticeably, this
witness had not been declared to be hostile.Page 26
26
18. AW 3 Mr. A. K. Jain who at the relevant time was the
Sub Registrar, New Delhi, on oath, stated that the Will
Ex. A-1 had been presented before him for registration on
22-10-1973. According to this witness, the testator was
identified before him by one Mr. Budh Ram and Mr. G. C.
Kumar, Advocate. The witness stated that these persons
did sign the document in his presence as identifying
witnesses on the back of page No. 1 of Ex. A-1. He
deposed as well that the testator was read out the
contents of the document and was asked as to whether
he was executing the Will himself and that on his
acknowledgement in the affirmative, he (witness) made
his endorsement on the document in his own hand.
While proving his endorsement, the witness iterated that
the testator had admitted the execution of the Will and
also proved his (testator) signatures and thumb
impressions thereon.
18.1 In his cross-examination, the witness stated that
he did not know the testator personally and that he hadPage 27
27
made his endorsements on the Will in the capacity of a
registering authority only. He admitted that on the very
same date, another document purporting to be a Will
executed by Mr. Nathu Singh was also presented for
registration for which the identifying witnesses had been
the same.
19. The testimony of AW 4 Mr. Ramchander Sharma is
to the effect that the appellant had borne the expenses
for the firewood of the funeral pyre of the deceased Nathu
Singh. The testimony of AW 7 Mr. M. S. Santosh Goel
and AW 8 Mr. Satish Kumar being insignificant vis-à-vis
issues involved is not necessary to be dilated upon.
20. AW 6 Mr. Jagdish Chander Sharma, appellant
deposed that he had joined the deceased Mr. Nathu
Singh, in the year 1952 on the recommendation of his
brother-in-law. He stated that the deceased entrusted
him the duty to realise rent of his property and also to
look after the matters pertaining to litigation in
connection therewith. The witness stated that in thePage 28
28
process, he was also made the attorney of the deceased
and while realising rent used to accompany Mr. Jaswant
Singh, his (Nathu Singh) son. He referred to some
differences between the father and the son with regard to
alleged wrong doings of the latter qua immovable
properties resulting in institution of a suit by Mr. Nathu
Singh against Mr. Jaswant Singh. According to this
witness, Mr. Jaswant Singh was inimically disposed
towards him for which he made a complaint against him
in his department for which he was placed under
suspension. He stated that Mr. Nathu Singh thereafter,
in the interest of his job, cancelled his power of attorney
but asked him to look after the property and to realise
the rents. According to the witness, Mr. Jaswant Singh
out of his persisting animosity caused a raid to be
conducted in his house, and after the demise of Mr.
Nathu Singh did openly intimidate him of dire
consequences. He denied to have visited the office of the
Sub Registrar on 22-10-1973 and insisted that AW 1 Mr.
G. C. Kumar, Advocate had signed the certificate of thePage 29
29
petition under Section 276 of the Act. He also asserted
that AW 1 had attested the Will after seeing the same.
According to this witness, the relationship of Mr. Nathu
Singh with his sons was strained as they had been
endeavouring to take over the possession of his
properties. The witness identified the signature of the
testator on the Will Ex. A-1.
21. In his detailed cross-examination, the witnesses
referred to several legal proceedings, civil and criminal
instituted by the testator which according to him,
however, did fizzle out with time without yielding any
adverse verdict against him. While mentioning that Mr.
Nathu Singh used to dispose of his properties by
executing Wills, the witness also mentioned about
litigations between him and his son Mr. Jaswant Singh.
He admitted that at the time of death of the testator, his
wife, sons, daughters and several grand children were
alive. In categorical terms, he stated that the testator
had no quarrel with his wife and daughters. He alsoPage 30
30
mentioned about gift of properties by Mr. Nathu Singh to
his sons.
22. The testimony of RW 1 Mr. Ramesh Kumar, RW 2
Mr. M. S. Rao and RW 4 Mr. Ramesh Chander Sharma
being not of any determinative significance is not being
referred to. RW 3 Mr. Narayan Singh Saini, son of the
testator deposed that his(testator) family comprised of his
wife, Smt. Chanderwati, three sons and three daughters.
He stated that during the life time of the testator, he had
executed three separate gift deeds conveying property to
each of his sons. That Mr. Nathu Singh had a host of
grand children was also stated by this witness. He
mentioned in particular that the testator had a very
cordial relationship with the children till he died so much
so that they along with the grand children used to
congregate on all family functions. He averred that the
testator had appointed the appellant as his attorney for
collecting rent from his tenants. Thereby, the testator
had also authorized the appellant to prepare documentsPage 31
31
with regard to the properties which he intended to sell
from time to time. The witness deposed that the testator
eventually had to cancel the power of attorney as the
appellant was found indulging in interpolation of
tenancies without his consent and with malafide
intention misappropriated his properties. He stated
further that at the time of his death, the testator was
aged ninety years. He reiterated that the Will in question
was deceitfully inserted amongst other documents to
procure the signature of the testator.
23. The version of RW 5 Mr. Gulab Chand and RW 6 Mr.
Bhupesh Gupta is also of not any consequence vis-à-vis
the issues involved. RW 7 Mr. Ram Chander Saini
deposed on oath that he used to represent Mr. Nathu
Singh in various legal proceedings including one
instituted against the appellant. He denied the
suggestion that Mr. Nathu Singh had a very cordial
relationship with the appellant. Page 32
32
24. RW 8 Mr. Rajinder Singh, grandson of Mr. Nathu
Singh, in his statement on oath expressed his ignorance
about any litigation between his grandfather and his
father Mr. Jaswant Singh.
25. The fascicule of the evidence viewed as hereinabove
qua the execution and the attestation of the Will thus can
be compartmentalised into two slots. The first comprising
of the testimony of AW 1 Mr. G. C. Kumar and Mr. Budh
Ram and the other of AW 3 Mr. A. K. Jain, Sub Registrar,
New Delhi.
26. Evident it would be from the deposition of AW 1 that
though he owned to be the author of the document,
having drafted it, he could not recall whether he did so
on the instruction of the testator. He did not remember
as well as to whether the Will had been handed over by
him to his father or the testator. He failed to recollect
also whether he was present when the testator had
signed the Will, Ex. A-1. Though, he admitted that the
document did bear his signatures as an attesting witnessPage 33
33
at two places being point “A” and “B”, he could not recall
whether there was any other person also present and had
similarly attested the document when he had signed at
point “A”. He was categorical in stating that he was
present in the office of the Sub Registrar when the Will
was presented for registration and had signed on the
back page thereof but clarified that he did so only as an
identifying witness. He could not say as to whether the
signatures and thumb impressions of the testator at
point “Y” and “Y–1” on the back page of the Will had been
obtained in his presence or not. He also could not state
whether the contents of the Will were read over and
explained to the testator by him or his father. He was
candid to assert that he was not sure as to whether he
had signed the Will in presence of the testator or not or
whether the testator had signed the document in his
presence. He was unequivocal in stating that he had
signed the certificate at the foot of the petition for grant
of Letter of Administration as he was asked to do so by
the appellant and he did not do so in the capacity of anPage 34
34
attesting witness to the Will. He even denied to have
gone through the contents of the certificate before
subscribing thereto.
27. The evidence of AW 1, as a whole is, therefore clearly
deficient vis-à-vis with the requirements of Section 63 (c)
of the Act. Noticeably, he does not deny either the
execution of the Will or has not failed to recollect the said
event. In clear terms, this witness stated that though he
had signed the document, he was not sure that he did so
in the presence of any other person attesting the same.
He could not also remember as to whether he was
present when the testator had signed the Will. He
clarified in no uncertain terms that his signatures on the
Will before the Sub Registrar were only as an identifying
witness. His is thus not a stance of either denial of the
execution of the Will or of failure to recollect such
execution as contemplated in Section 71 of the Act 1872.
28. To cap it all, he even endeavoured to represent that
he had signed the certificate at the foot of the applicationPage 35
35
for the Letter of Administration not voluntarily but on
being insisted upon by the appellant. He was categorical
in his testimony to the effect that he had not signed the
certificate acknowledging the fact that he was an
attesting witness. The evidence of AW 1 Mr. G. C.
Kumar, Advocate thus does not inspire confidence to be
acted upon in proof of the execution and attestation of
the Will, EX. A-1.
29. AW 5 Mr. Budh Ram was categorical in owning his
signatures on the Will at points “C” AND “Y-2” and
claimed to have to put the same in the presence of the
testator. He, however, was unhesitant in testifying that
he had not seen the testator signing the document at the
points “B”, “Y-1”. He denied to have appeared before the
Sub Registrar or to have identified the testator before the
said authority. His unambiguous statement on oath is
that he had signed the document outside the office of the
Sub Registrar. His evidence as well cannot be construed
to be one of denial of execution of the Will. This witness,Page 36
36
as his evidence would clearly demonstrate, also did
neither falter nor, was equivocal so as to suggest that he
failed to recollect the execution of the document. The
conditions, precedent for application of Section 71 of the
Act 1872, therefore, are also not available in the context
of the evidence of this witness.
29.1 On a cumulative assessment of the evidence of AW
1 and AW 5, we are of the unhesitant opinion that
Section 71 of the Act, is not invocable in the facts and
circumstances of the case so as to permit the
propounder/appellant to resort to any other evidence to
prove the execution and attestation of the Will involved
as comprehended therein. The account of the relevant
facts bearing on the execution and attestation of the Will
as provided by these witnesses though is thoroughly
inadequate qua the prescriptions of Section 63 (c) of the
Act does not amount to denial of execution or failure to
recollect the said event as contemplated in this provision.Page 37
37
30. The above notwithstanding, expedient it would be, in
the face of the protracted controversy, to examine as well
the evidence of AW 3, Mr. A. K. Jain Sub Registrar, New
Delhi, refuge whereof has been sought for by the
appellant under Section 71 of the Act, in the alternative.
30.1 This witness, to reiterate, was the Sub Registrar at
Asaf Ali road, New Delhi on the date on which, as he had
testified, the Will was laid before him for registration.
Incidentally, it was on the very same date of its execution
i.e. 22-10-1973. He deposed that the testator Mr. Nathu
Singh was identified before him by AW 1 Mr. G. C. Kumar,
Advocate, AW 1 and Mr. Budh Ram AW 5. According to
this witness, these two persons did sign the document in
his presence as identifying witnesses on the back of page
No. 1 thereof. He stated further that the contents of the
Will were read out to the testator and he was asked as to
whether he did execute the same himself. The witness
deposed that to this, the testator acknowledged in the
affirmative whereupon he (witness) endorsed the same.Page 38
38
The witness proved his endorsements at the portions
encircled “S” and “S-1”. He also stated that the testator
had signed and put his thumb marks as “Y” and “Y-1” in
his presence in acknowledgement of the execution of the
Will by him.
30.2 In cross-examination, the witness admitted that he
had made his endorsements in the capacity of a
registering authority only. While admitting that on the
very same date another document, purporting to be a Will
executed by the same testator had also been presented
before him for registration, he admitted that both the
identifying witnesses of the Will involved were also the
identifying witnesses of the other Will.
31. A plain perusal of the Will presented in course of the
arguments would reveal that the space therein meant to
mention the age and the date of execution thereof had
remained vacant till it was produced for registration. This
was though as claimed by the appellant, the document
had already been executed by the testator by putting hisPage 39
39
signature at points “B” on both the pages along with the
signatures of the attesting witnesses AW 1 and AW 5 as
well. On the back of page No. 1 of the Will, there are two
signatures and thumb impressions “Y” and “Y-1” said to
be of the testator beneath the stamped endorsements in
the official proforma signed by AW 3. On the same page,
the signature of AW 1 Mr. G. C. Kumar, Advocate, and
thumb impression of AW 5 Budh Ram are also available
at points “X” and “Y-2” respectively.
31.1 Noticeably, though the official endorsements, as
above seem to suggest that those signified admission of
execution of the document by the testator before AW 3,
the evidence of this witness on oath, does neither prove
nor demonstrate in unmistakable terms that both the
identifying witnesses had seen the testator put his
signatures and thumb impressions for the execution of
the Will. His testimony also does not establish that the
witnesses AW 1 and AW 5 had put their signature/thumb
impression before the Sub Registrar in presence of thePage 40
40
testator. This assumes significance not only as per the
non-relaxable mandate of Section 63 (c) of the Act but
also for the version of AW 1 that he had signed the
document at the time of registration only as an identifying
witness and that he did not remember as to whether the
thumb impressions and the signatures of the testator at
“Y” and “Y-1” were obtained in his presence or not. The
testimony of AW 5 to the effect that his signature as well
as thumb impression at “Y-2” though made in presence of
the testator was taken outside the Sub Registrar’s office is
significant as the same, if accepted, would mean that he
had not seen the testator signing the Will either at point
“B” or putting his signature and thumb impression at “Y”
and “Y-1” on the backside of page No. 1 of the Will. To
reiterate, he stated on oath that he had not identified the
testator before the Sub Registrar. Evidently, AW 3 was not
present at the time of initial execution of the Will and
thus could not have witnessed the said event. Page 41
41
32. In the overall perspective thus, the testimony of AW
3, in our estimate, does not conform to the imperatives of
the Section 63 (c) of the Act. His narration on affirmation
at the trial, does not either by itself meet the
essentialities of Section 63 (c) of the Act or can be
construed to be a supplement of the evidence of AW 1
and AW 5 to furnish the proof of execution and
attestation of the Will as enjoined by law.
33. The evidence of AW 1, AW 3 and AW 5, anlaysed
collectively or in isolation, does not evince animo
attestandi, an essential imperative of valid attestation of a
Will. As Section 71 of the Act, 1872 by no means can be
conceived of to be a diluent of the rigour of Section 63 of
the Act, the testimony of these witnesses fall short of the
probative content to construe Ex. A-1 to be a validly
executed and attested Will as envisaged in law.
34. In Bhaiya Guruji Dutt Singh (supra), the testimony
of the two attesting witnesses was found wanting in
credibility for which the propounder did fall back on thePage 42
42
admission of the testator about the execution of the Will
involved at the time of registration in presence of two
persons Mr. Mahadeo Prasad and Mr. Nageshur, who
also had appended their signatures at the foot of the
endorsement of the Sub Registrar. These signatures were
contended to be enough to prove due attestation of the
Will. It was held that mere signatures of these two
persons appearing at the foot of the endorsement of
registration could not be presumed to have been made as
attesting witnesses or in the capacity of attesting
witnesses and absence of animo attestandi was
underlined.
35. This Court in H. Venkatachala Iyengar (supra) while
dilating on the statutory requisites of valid execution of a
Will, observed that unlike other documents this
testamentary instrument speaks from the death of the
testator and by the time when it is produced before a
Court, the testator had departed from his temporal state
and is not available to own or disown the same. It wasPage 43
43
thus emphasised that this does introduce an element of
solemnity in the decision on the question as to whether
the document propounded is proved to be the last Will
and testament of the departed testator. In this context, it
was emphasised that the propounder would be required
to prove by satisfactory evidence that (i) the Will was
signed by the testator, (ii) he at the relevant time was in a
sound and disposing state of mind, (iii) he understood
the nature and effect of the dispositions, and that (iv) he
put his signature to the document of his own free will. It
was observed that ordinarily when the evidence adduced
in 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, the
court would be justified in making a finding in favour of
the propounder signifying that he/she had been able to
discharge his/her onus to prove the essential facts. The
necessity of removal of the suspicious circumstances
attendant on the execution of the Will, however, was
underlined as well. That no hard and fast or inflexiblePage 44
44
rule can be laid down for the appreciation of the evidence
to this effect was acknowledged.
36. That a propounder has to demonstrate that the Will
was signed by the testator and that he was at the
relevant time in a sound disposing state of mind and that
he understood the nature and effect of the disposition
and further that he had put his signature to the
testament on his own free will and that he had signed it
in presence of two witnesses who had attested it in
presence and in the presence of each other, in order to
discharge his onus to prove due execution of the said
document was reiterated by this Court amongst others in
Surendra Pal and Ors. (supra) It was held as well that
though on the proof of the above facts, the onus of the
propounder gets discharged, there could be situations
where the execution of a Will may be shrouded by
suspicious circumstances such as doubtful signature,
feeble mind of the testator, overawed state induced by
powerful and interested quarters, prominent role of thePage 45
45
propounder, unnatural, improbable and unfair bequests
indicative of lack of testator’s free will and mind etc. In
all such eventualities, the conscience of the Court has to
be satisfied and thus the nature and quality of proof
must be commensurate to such essentiality so much so
to remove any suspicion which may be entertained by
any reasonable and prudent man in the prevailing
circumstances. It was propounded further that where the
caveator alleges undue influence, fraud and coercion, the
onus, however, would be on him to prove the same, and
on his failure, probate of the Will must necessarily be
granted if it is established that the testator had full
testamentary capacity and had in fact executed it validly
with a free will and mind.
37. In Jaswant Kumar (supra) this Court held that
suspicion generated by the distrustful circumstances
cannot be removed by the mere assertion of the
propounder that the Will bears the signature of the
testator or that the testator was in a sound and disposingPage 46
46
state of mind and memory when the Will was made or
that those like the wife and children of the testator, who
would normally receive their due share in the estate,
were disinherited because the testator might have had
seen reasons for excluding them. It was underscored that
it was obligatory for the propounder to remove all
legitimate suspicions before the document could be
accepted as the last Will of the testator.
38. In Ravindra Nath Mukharji and Another (supra) this
Court entertained the view that the, witnesses to the Will,
if interested for the propounder is perceived to be a
suspicious circumstance, the same would lose
significance if the document is registered and the Sub
Registrar does certify that the same had been read over
to the executor who on doing so admits the contents.
39. In Pentakota Satyanarayan and Others (supra) the
testator P. Mr. Ram Murthi had admitted the execution of
the Will involved. He, however, expired while the suit was
pending. The Will was registered and the signature of thePage 47
47
testator was identified by two witnesses whereupon the
Sub Registrar had signed the document. In this textual
premise, it was held that the signatures of the registering
officer and of the identifying witnesses affixed to the
registration endorsement did amount to sufficient
attestation within the meaning of the Act. It was held as
well that the endorsement of the Sub Registrar that the
executant had acknowledged before him the execution,
did also amount to attestation. The facts revealed that
the Will was executed before the Sub Registrar on which
the signature of the testator as well as signature and the
thumb impression of the identifying witnesses were taken
by the said authority, whereafter the latter signed the
deed. In general terms, it was observed that registration
of the Will per se did not dispense with the need of
proving its execution and the attestation in the manner
as provided in Section 68 of the 1872 Act. It was
enunciated as well that execution consisted of signing a
document, reading it over and understanding andPage 48
48
completion of all formalities necessary for the validity of
the act involved.
39.1 The facts as obtained in this decision are
distinguishable from those in hand and are incomparable
on many counts. No anology can be drawn from this case
to conclude that the testimony of AW 3 even if read with
that of AW 1 and AW 5 can sum up to prove valid
execution and attestation of the Will as stipulated by
Section 63 (c ) of the Act.
40. Janki Narayan Bhoir (supra) witnessed a fact
situation where one of the attesting witnesses of the Will,
though both were alive at the relevant time, was
produced to prove the execution thereof. The scribe of
the document was also examined. The attesting witness
deposed that he had not seen the other witness present
at the time of execution of the Will and further he did not
remember as to whether he along with the latter were
present either when the testator had put his signature on
the Will or that he had identified the person who had putPage 49
49
the thumb impression on the document. The issue
raised before this Court was that the evidence of the said
attesting witness had failed to establish the attestation of
the Will by the other attesting witness who though
available had not been examined and thus the Will was
not proved. The contrary plea was that though Section
63 of the Act required attestation of a Will by at least two
witnesses, it could be proved by examining one attesting
witness as per Section 68 of the 1872 Act and by
furnishing other evidence as per the Section 71 thereof.
While dwelling on the respective prescripts of Section 63
of the Act and Sections 68 and 71of Act 1872 vis-à-vis a
document required by law to be compulsorily attested, it
was held that if an attesting witness is alive and is
capable of giving evidence and is subject to the process of
the Court, he/she has to be necessarily examined before
such document can be used in evidence. It was
expounded that on a combined reading of Section 63 of
the Act and Section 68 of the 1872 Act, it was apparent
that mere proof of signature of the testator on the WillPage 50
50
was not sufficient and that attestation thereof was also to
be proved as required by Section 63 (c) of the Act. It was,
however, emphasised that though Section 68 of the 1872
Act permits proof of a document compulsorily required to
be attested by one attesting witness, he/she should be in
a position to prove the execution thereof and if it is a
Will, in terms of Section 63 (c) of the Act, viz, attestation
by two attesting witnesses in the manner as
contemplated therein. It was exposited that if the
attesting witness examined besides his attestation does
not prove the requirement of the attestation of the Will by
the other witness, his testimony would fall short of
attestation of the Will by at least two witnesses for the
simple reason that the execution of the Will does not
merely mean signing of it by the testator but connotes
fulfilling the proof of all formalities required under
Section 63 of the Act. It was held that where the attesting
witness examined to prove the Will under Section 68 of
1872 Act fails to prove the due execution of the Will, then
the other available attesting witness has to be called toPage 51
51
supplement his evidence to make it complete in all
respects.
41. Qua Section 71 of 1872 Act, it was held to be in the
form of a safeguard to the mandatory provision of Section
68 to cater to a situation where it is not possible to prove
the execution of the Will by calling the attesting
witnesses though alive i.e. if the witnesses either deny or
do not recollect the execution of the Will. Only in these
contingencies by the aid of Section 71, other evidence
can be furnished. It was further clarified that Section 71
of Act 1872 would have no application to a case where
one attesting witness who alone had been summoned
fails to prove the execution of the Will and the other
attesting witness though available to prove the execution
of the same, for reasons best known, is not summoned
before the Court.
42. This Court underlined that Section 71 of the Act
1872 was meant to lend assistance and come to the
rescue of a party who had done his best, but driven to aPage 52
52
state of helplessness and impossibility and cannot be let
down without any other opportunity of proving the due
execution of the document by other evidence. That,
however, Section 71 cannot be invoked so as to absolve
the party of his obligation under Section 68 read with
Section 63 of the Act and to liberally allow him, at his will
or choice, to make available or not, necessary witness
otherwise available and amenable to jurisdiction of the
Court, was highlighted in emphatic terms. That no
premium upon such omission or lapse so as to enable
him to give a go-bye to the mandates of law relating to
proof of execution of a Will, as contemplated by these
statutory provisions, was precisely underlined. In the
facts and circumstances of that case, as the second
attesting witness though available had not been
summoned, the benefit of Section 71 of Act 1872 was not
extended. The Will was thus held to be not proved for the
failure of the attesting witness so produced, to testify as
per the ordainment of Section 63 (c) of the Act. Page 53
53
43. In M. B. Ramesh (dead) by LRS (supra), one Smt.
Nagammanni had executed a Will. One of the attesting
witnesses P. Basavaraje Urs, in his evidence, stated
about the presence of the other witness (naming him),
the testatrix, himself and one Sampat Iyengar to be
present when the Will was written. He deposed further
that one Mr. Narayan Murthi was the scribe. This witness
proved that the Will was signed by Smt. Nagammanni
and that he had signed the document too in her
presence. On a consideration of the totality of the
circumstances emerging from the narration of the
attesting witness, this Court held that the omission on
the part of this witness to specifically state about the
signature of the other witness on the Will in presence of
the testatrix did amount to his failure to recollect the said
fact and thus the deficiency could permissibly be
replenished by the aid of Section 71 of the Act 1872. In
no uncertain terms, this Court did hold that the issue of
validity of the Will was to be considered in context of the
attendant singular facts.Page 54
54
44. The legal propositions adumbrated by the judicial
pronouncements, adverted to hereinabove, do not admit
of any exception. However, these are of no avail to the
appellant herein in the conspectus of present facts. The
evidence of the witness AW 1, AW 3 and AW 5 does not
exhibit either denial of the execution of the Will or their
failure to recollect the said phenomenon and thus, does
not attract the applicability of Section 71 of the Act 1872.
45. A Will as an instrument of testamentary disposition
of property being a legally acknowledged mode of
bequeathing a testator’s acquisitions during his lifetime,
to be acted upon only on his/her demise, it is no longer
res integra, that it carries with it an overwhelming
element of sanctity. As understandably, the
testator/testatrix, as the case may be, at the time of
testing the document for its validity, would not be
available, stringent requisites for the proof thereof have
been statutorily enjoined to rule out the possibility of any
manipulation. This is more so, as many a times, thePage 55
55
manner of dispensation is in stark departure from the
prescribed canons of devolution of property to the heirs
and legal representatives of the deceased. The rigour of
Section 63 (c) of the Act and Section 68 of 1872 Act is
thus befitting the underlying exigency to secure against
any self serving intervention contrary to the last wishes of
the executor.
45.1 Viewed in premise, Section 71 of the 1872 Act has
to be necessarily accorded a strict interpretation. The
two contingencies permitting the play of this provision,
namely, denial or failure to recollect the execution by the
attesting witness produced, thus a fortiori has to be
extended a meaning to ensure that the limited liberty
granted by Section 71 of 1872 Act does not in any
manner efface or emasculate the essence and efficacy of
Section 63 of the Act and Section 68 of 1872 Act. The
distinction between failure on the part of a attesting
witness to prove the execution and attestation of a Will
and his or her denial of the said event or failure to
recollect the same, has to be essentially maintained. Any
unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the
predication of Section 63 of the Act and Section 68 of the
1872 Act, otiose. The propounder can be initiated to the
benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced
and in clear terms either denies /deny the execution of
the document or cannot recollect the said incident. Not
only, this witness/witnesses has/have to be credible and
impartial, the evidence adduced ought to demonstrate
unhesitant denial of the execution of the document or
authenticate real forgetfulness of such fact. If the
testimony evinces a casual account of the execution and
attestation of the document disregardful of truth, and
thereby fails to prove these two essentials as per law, the
propounder cannot be permitted to adduce other
evidence under cover of Section 71 of the 1872 Act. Such
a sanction would not only be incompatible with the
scheme of Section 63 of the Act read with Section 68 of
the 1872 Act but also would be extinctive of the
paramountcy and sacrosanctity thereof, a consequence,
not legislatively intended. If the evidence of the witnesses
produced by the propounder is inherently worthless and
lacking in credibility, Section 71 of Act 1872 cannot be
invoked to bail him (propounder) out of the situation to
facilitate a roving pursuit. In absence of any touch of
truthfulness and genuineness in the overall approach,
this provision, which is not a substitute of Section 63 (c )
of the Act and Section 68 of the 1872 Act, cannot be
invoked to supplement such failed speculative endeavour
45.2 Section 71 of the 1872 Act, even if assumed to be
akin to a proviso to the mandate contained in Section 63
of the Act and Section 68 of the 1872 Act, it has to be
assuredly construed harmoniously therewith and not
divorced therefrom with a mutilative bearing. This
underlying principle is inter alia embedded in the
decision of this Court in the Commission of Income Tax,
Madras Appellant Versus Ajax Products Limited
Respondent AIR 1965, Supreme Court 1358.
46. The materials on record, as a whole, also do not, in
our comprehension, present a backdrop, in which, in
normal circumstances, the testator would have preferred
the appellant to be the legatee of his property as set out
in the Will, Ex. A-1, by denying his wife, children and
grand children who were alive and with whom he did
share a very warm affectionate and cordial relationship.
Viewed in this context, the bequest is exfacie unnatural,
unfair and improbable thus reflecting on the testator’s
cognizant, free, objective and discerning state of mind at
the time of the alleged dispensation. The suspicious
circumstances attendant on the disposition, in our
opinion, do militatively impact upon the inalienable
imperatives of solemnity and authenticity of any bequest
to be effected by a testamentary instrument.Page 59
59
47. In the wake of the determinations made herein
above, we are of the unhesitant opinion that the
challenge laid in the instant appeal lacks in merit.
48. The High Court, in our estimate, has appropriately
appreciated the law and the facts in the right perspective
and the impugned decision does not call for any
interference. The appeals are dismissed.
49. No cost.
……………………..J.
(Kurian Joseph)
……………………..J.
(Amitava Roy)
New Delhi
Dated: May 01, 2015
Print Page
to be necessarily accorded a strict interpretation. The
two contingencies permitting the play of this provision,
namely, denial or failure to recollect the execution by the
attesting witness produced, thus a fortiori has to be
extended a meaning to ensure that the limited liberty
granted by Section 71 of 1872 Act does not in any
manner efface or emasculate the essence and efficacy of
Section 63 of the Act and Section 68 of 1872 Act. The
distinction between failure on the part of a attesting
witness to prove the execution and attestation of a Will
and his or her denial of the said event or failure to
recollect the same, has to be essentially maintained. Any
unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the
predication of Section 63 of the Act and Section 68 of the
1872 Act, otiose. The propounder can be initiated to the
benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced
and in clear terms either denies /deny the execution of
the document or cannot recollect the said incident. Not
only, this witness/witnesses has/have to be credible and
impartial, the evidence adduced ought to demonstrate
unhesitant denial of the execution of the document or
authenticate real forgetfulness of such fact. If the
testimony evinces a casual account of the execution and
attestation of the document disregardful of truth, and
thereby fails to prove these two essentials as per law, the
propounder cannot be permitted to adduce other
evidence under cover of Section 71 of the 1872 Act. Such
a sanction would not only be incompatible with the
scheme of Section 63 of the Act read with Section 68 of
the 1872 Act but also would be extinctive of the
paramountcy and sacrosanctity thereof, a consequence,
not legislatively intended. If the evidence of the witnesses
produced by the propounder is inherently worthless and
lacking in credibility, Section 71 of Act 1872 cannot be
invoked to bail him (propounder) out of the situation to
facilitate a roving pursuit. In absence of any touch of
truthfulness and genuineness in the overall approach,
this provision, which is not a substitute of Section 63 (c )
of the Act and Section 68 of the 1872 Act, cannot be
invoked to supplement such failed speculative endeavour
45.2 Section 71 of the 1872 Act, even if assumed to be
akin to a proviso to the mandate contained in Section 63
of the Act and Section 68 of the 1872 Act, it has to be
assuredly construed harmoniously therewith and not
divorced therefrom with a mutilative bearing. This
underlying principle is inter alia embedded in the
decision of this Court in the Commission of Income Tax,
Madras Appellant Versus Ajax Products Limited
Respondent AIR 1965, Supreme Court 1358.
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos.4181-4182 OF 2015
(ARISING OUT OF SPECIAL LEAVE PETITION(C)NOs. 36311-12/2014
JAGDISH CHAND SHARMA .
Vs.
NARAIN SINGH SAINI (DEAD)
THROUGH HIS LRs & Ors.
Citation;AIR 2015 SC2149
AMITAVA ROY, J.
Leave granted.
1. The genesis of the lingering dissension in the instant
proceeding lies in the Will claimed by the appellant
herein to have been executed on 22-10-1973 by Nathu
Singh (since deceased), the predecessor in the interest of
the respondents, thereby bequeathing the property
mentioned therein to him (appellant). The judgment and
order dated 15-05-2007 passed in P C No. 249/1980
(re-numbered as PC No. 160/2006), by the District
Judge, Tis Hazari Court, Delhi, granting Letter ofPage 2
2
Administration to him, has been reversed by the High
Court of Delhi by its judgment and order dated
02-07-2014 rendered in FAO No. 279 of 2007 as assailed
herein.
2. We have heard Mr. Paras Kuhad, Sr. Advocate for the
appellant and Mr. Daljeet Singh, Senior Advocate for the
respondents.
3. A brief outline of the pleaded facts would portray the
rival orientations. The appellant, to reiterate, filed an
application under Section 276 of the Indian Succession
Act 1925 (for short hereinafter referred to as the Act) with
the Will annexed, seeking grant of Letter of
Administration. He stated that the Will had been
executed by Mr. Nathu Singh on 22-10-1973, as the sole
and absolute owner amongst others of Municipal House
Tax No. 807 (Private No. A/152 to A/162/1) situated at
Sukhdev Nagar, Kotla Mubarakpur, New Delhi,
bequeathing the same to him. The appellant stated that
the testator nursed great love and affection for him forPage 3
3
the services rendered by him and was not favourably
disposed towards his sons for their disagreeable conduct
and activities. It was mentioned that the testator expired
on 02-08-1980 at Delhi whereafter, Shri Harswaroop
Sharma, resident of 41, Subhash Market, Kotla
Mubarkpur, informed him to receive the Will lying in his
custody. It was, thereafter, according to the appellant
that the application for Letter of Administration was filed.
In the petition, he averred the names and particulars of
the sons and daughters of the deceased testator and
disclosed further that the subject matter of the Will was
located in New Delhi. That the Will was executed and
made in Delhi was also mentioned. The appellant did
provide and sign a verification declaring the correctness
of the statements made therein. Further another
verification subscribed by Mr. G. C. Kumar, Advocate,
Delhi in the capacity of an attesting witness to the Will,
was also made. Page 4
4
4. On the receipt of the notice of the proceedings
registered on this petition, objections were filed by Mr.
Jaswant Singh (since deceased) son of the testator and
also by his other sons and daughters separately. For the
sake of brevity the substance of the objections registered
by the children of the testator would be synopsised.
5. It was pleaded that the property said to have been
bequeathed was ancestral joint Hindu family property
and thus, the testator had no authority to execute the
Will in favour of the appellant. While denying the claim
that the appellant did enjoy the love and affection of the
testator, it was asserted that he (appellant) in fact had
been appointed by the testator as his rent collector on
11-05-1973 and was endowed with a registered power of
attorney. The objectors averred that as the appellant
failed to render his sincere services, the power of attorney
was revoked. That the appellant did create tenancy in
favour of his wife, Shrimati Santosh Kumar Sharma in
respect of shop No.F–16 belonging to the testator withoutPage 5
5
his knowledge for which he (testator) had instituted a
suit against him (appellant) in the year 1975 for recovery
of damages was also stated. The objectors did further
refer to several complaints made by the testator against
the appellant for his unsatisfactory services and misuse
of power including misappropriation of rents collected by
him. They also stated that the appellant had appeared
as a witness in a criminal case against the deceased and
was also placed under suspension by his employer where
he served as a teacher.
6. The respondents/objectors averred further that the
appellant was present at the time of execution of two
other Wills by the testator in favour of one Kisan Lal and
Vimala Devi and suggested that he (appellant) by playing
fraud on him (testator) might have got his Will signed, in
the process of getting the above two documents executed.
In all, the respondents/objectors assertively emphasized
that the facts and circumstances prevailing at the
relevant point of time did not at all warrant/justifyPage 6
6
execution of any Will by Mr. Nathu Singh in favour of the
appellant by depriving his children. They, in categorical
terms, denied the execution of the Will and also the
signatures and the thumb impressions of the Mr. Nathu
Singh thereon as claimed by the appellant. They averred
as well that the testator was conversant only with Hindi
language and that the contents of the Will in English had
never been read over or explained to him.
7. In his rejoinder, the appellant refuted the
respondent’s cavil based on jointness of the property.
While insisting that the property was the self acquired
asset of the deceased, the appellant stated that therefrom
the testator, not only, had conveyed portions by way of
sale, but also, had gifted some to his children. He
categorically denied the allegation of his disagreeable
activities and misuse of powers. He instead, did impute
fraudulent act of the respondent, Mr. Jaswant Singh in
getting his name mutated in the revenue records in place
of Mr. Nathu Singh for which, a litigation between thePage 7
7
two did ensue. He accused the said respondent for being
responsible for institution of cases against him by Mr.
Nathu Singh.
8. On these competing pleadings, the following issues
were framed:
1. Whether Mr. Nathu Singh Saini, deceased
executed the Will dated 22-10-1973, validly while
possessed of a sound disposing mind?
2. Relief.
8.1 The parties thereafter adduced oral and documentary
evidence. Whereas, the appellant examined six witnesses
including himself, Mr. G. C. Kumar, Advocate (attesting
witness), AW 3 Mr. A. K. Jain, Sub-Registrar, New Delhi
and AW 5 Mr. Budh Ram (attesting witness), the
respondents offered 8 witnesses in support of their case.
Needless to say, the appellant proved amongst the others
the Will, Exhibit A-1.
9. The learned Trial Court, on its assessment of the
evidence adduced, concluded that the appellant couldPage 8
8
prove that the Will dated 22-10-1973 Exhibit A -1 was
executed by the testator in a sound disposing state of
mind after fully understanding its contents and that it
was duly registered. Having held so, it observed that the
onus of proving that the document was not a genuine
Will did shift to the respondents. On an analysis of the
evidence offered by the respondents, the learned Trial
Court was of the view that the same was inadequate to
displace the validity of the Will. It thus returned a
finding that the Will dated 22-10-1973 Exhibit A-1 had
been validly executed by the testator with a sound
disposing state of mind in presence of two attesting
witnesses. Consequently, the Letter of Administration as
prayed for, by the appellant vis-à-vis the said Will was
granted.
10. Aggrieved, the respondents preferred appeal being
FAO 279/2007 in the High Court of Delhi. By the
impugned judgment and order, as adverted to herein
above, the verdict of the learned Trial Court has beenPage 9
9
reversed. The High Court on a threadbare evaluation of
the pleadings and the evidence on record, on the
touchstone of the relevant provisions of the Act and the
Indian Evidence Act, 1872 (for short hereinafter referred
to as Act 1872), determined that the Will dated
22-10-1973 had not been proved as per law and that no
Probate or Letter of Administration could be granted.
Referring to the testimony of the attesting witnesses, the
High Court held that they could not prove the execution
of the Will as well as the attestation thereof within the
meaning of Section 63 (c) of the Act, a mandatory legal
edict. The High Court also dismissed the plea based on
Section 71 of the Act, 1872 noting that the evidence of
the attesting witnesses produced by the appellant, did
not only demonstrate lack of intention to attest the Will,
but also, rendered the execution of the document and
their signatures thereon doubtful. The High Court
noticed as well the circumstances attendant on the
bequest to render it doubtful in view of the suspicious
bearing thereof. It amongst others noted therefore toPage 10
10
arrive at this conclusion, that the deceased/testator was
versed only in Urdu and that the Will was drafted in
English, and that on the very same day he had executed
two other Wills involving different properties with the
possibility that the Will in question, was got signed, by
representing it to be a part of the other transactions. The
history of past litigation between the testator and the
appellant involving allegations of his unauthorized acts
and misuse of power also did weigh with the High Court
to deduce that it was unlikely that the testator would out
of natural love and affection bequeath his property or any
portion thereof to such a person, by depriving his own
children. The decision of the Trial Court was thus
interfered with.
11. Mr. Kuhad has insistently argued that the impugned
judgment and order suffers from apparent misreading of
pleadings and evidence on the record and is thus liable to
be annulled. Relying in particular on the testimony of
the witnesses AW 1 and AW 5, the learned senior counselPage 11
11
has urged that the execution and the attestation of the
Will in question have been duly proved as required under
Section 63 of the Act. Drawing sustenance from Section
71 of Act 1872, the learned senior counsel has
maintained that even assuming that the testimony of AW
1 and AW 5 was deficient vis-à-vis the requirement of the
Section 63 (c) of the Act, the appellant having examined
both the attesting witnesses, it was permissible for him to
prove the execution and attestation of the Will by
adducing other evidence. Mr. Kuhad has thus argued
that the evidence of AW 3, Sub-Registrar before whom,
the Will had been registered on completion of all legal
formalities, did as well assuredly establish the execution
and attestation of the Will as required by law and thus
the High Court had erred in holding to the contrary. As
the testimony of AW 3, the Sub-Registrar amply proved
all the essentials of Section 63 (c) of the Act, the learned
Trial Court had validly granted the Letter of
Administration, he maintained. Referring to the evidence
of AW 1, Mr. G. C. Kumar, Advocate, Mr. Kuhad urgedPage 12
12
that the verification signed by him at the foot of the
application for Letter of Administration did buttress, the
correctness of the contents thereof and, thus the stray
deviations in his version at the trial ought to have been
discarded as inconsequential. In any case, the
casualness of the testimony of the attesting witnesses
does not adversely impact upon the validity of the Will, as
such conduct could have been the yield of an endeavour
of the respondents to gain them over. While repudiating
the conclusions of the High Court inferring denial of
execution by the attesting witnesses and lack of animus
on their part to attest the Will as well as the suspicious
circumstances noticed by it, to be perverse and opposed
to the weight of the materials on record, the learned
senior counsel insisted that having regard to the basic
requisites of valid Will in law, namely, free and sound
disposing state of mind of the testator, understanding of
the implication of the bequest, admission of execution
thereof by him/her and due attestation thereof, the
deductions of the High Court contrary thereto arePage 13
13
indefensible and are thus liable to be negated. Apart
from contending that the respondents had failed to
discharge their onus to prove their objections in the face
of the overwhelming evidence of execution and attestation
of the Will in law, the learned senior counsel has urged
that the High Court had fallen in error as well in acting
upon the additional evidence adduced before it under
Order 41 Rule 27 of the Civil Procedure Code (for short
hereinafter referred as Code), without offering an
opportunity to the appellant to counter such prayer. The
following decisions were relied upon to reinforce the
above contentions.
AIR 1955 SC 346 Bhaiya Guruji Dutt Singh Vs Gangotri
Dutt Singh, AIR 1959 SC 443 H Venkatachala Iyengar Vs
B N Thimmajamma and Others,(1974) 2 SCC 600 Kewal
Pati (Smt) Vs State of UP and Others, (1995) 4 SCC 459
Surendra Pal and Ors. Vs. Dr. (Mrs.)Saraswati Arora and
Anr.,(2003) 2 SCC 91 Janki Narayan Bhoir Vs. Narayan
Namdeo Kadam, (2005) 8 SCC 67 PentakotaPage 14
14
Satyanarayana and Ors. Vs. Pentakota Seetharatnam
and Ors., (2013) 7 SCC 490 M.B. Ramesh (D) by LRs. Vs.
KM Veeraje Urs (D) by LRs and Ors.
12. Per contra, Mr. Singh has argued that it being
apparent on the face of the records that neither the
execution nor the attestation of the Will involved had
been proved by any of the witnesses, the impugned
judgment is unassailable and thus the instant petition is
liable to be dismissed in limine. The findings recorded by
the High Court being founded on an indepth scrutiny of
the materials on record, are unmistakably conclusive and
thus this Court would not embark upon a fresh appraisal
thereof, he maintained. The learned senior counsel by
referring to the evidence of the witnesses AW 1, AW 5 in
particular has emphatically pleaded that as the appellant
had failed to prove either the execution or the attestation
of the Will, Section 71 of the Act of 1872 is inapplicable
to the facts of the present case, and thus the testimony of
AW 3 is wholly irrelevant. Without prejudice to this, thePage 15
15
learned senior counsel has urged that the evidence of AW
3 as well falls short of the requirements of Section 63 (c)
of the Act and thus, cannot be invoked to the advantage
of the appellant. As the evidence of AW 1 and AW 5 does
not attract the contingencies enumerated in Section 71 of
Act 1872, the version of AW 3, in any view of the matter,
is of no avail to the appellant, he asserted. The learned
senior counsel maintained that even de hors the
additional evidence laid before the High Court under
Order 41 Rule 27 of the Code, the findings recorded in
the impugned judgment and order are sustainable in law
and on facts and thus no interference therewith is called
for. Mr. Singh relied on the decisions hereunder to
endorse his arguments.
(1977) 1 SCR 925 Smt. Jaswant Kaur Vs Smt. Amrit Kaur
and Ors., (2001) 9 SCC 503 Neki Ram and Ors. Vs. Ama
Ram Godara and Ors., (2003) 2 SCC 91 Janki Narayan
Bhoir Vs. Narayan Namdeo Kadam.Page 16
16
13. The contentious pleadings and the assertions based
thereon in the backdrop of the evidence as a whole have
been duly analysed by us. The competing perspectives
notwithstanding, the purport and play of Section 63 of
the Act read with Sections 68 and 71 of Act 1872 as
deciphered by various judicial enunciations would have a
decisive bearing on the process of resolution of the
irreconcilable issues that demand to be addressed. It
would thus be apt, nay, imperative to refer to these legal
provisions before embarking on the appreciation of the
evidence to the extent indispensible. Section 63 of the
Act and Sections 68 and 71 of the Act 1872, are thus
extracted hereunder for ready reference.
Indian Succession Act, 1922
“63. Execution of unprivileged Wills.- Every
testator, not being a soldier employed in an
expedition or engaged in actual warfare, 1
[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. Page 17
17
(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 acknowledgement 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 by
present at the same time, and no particular form of
attestation shall be necessary.
Indian Evidence Act 1872
68. Proof of execution of document required by
law to be attested- 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;
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document, not being a Will, which has been
registered in accordance with the provisions of the
Indian Registration Act, 1908 (16 of 1908), unless
its execution by the person by whom it purports to
have been executed is specifically denied.
71. Proof when attesting witness denies the
execution.-If the attesting witness denies or does
not recollect the execution of the document, its
execution may be proved by other evidence. Page 18
18
14. As would be evident from the contents of Section 63
of the Act that to execute the Will as contemplated
therein, the testator would have to sign or affix his mark
to it or the same has to be signed by some other person
in his presence and on his direction. Further the
signature or mark of the testator or the signature of the
person signing for him has to be so placed that it would
appear that it was intended thereby to give effect to the
writing as Will. The Section further mandates that the
Will shall have to be attested by two or more witnesses
each of whom has seen the testator sign or affix his mark
to it or has seen some other persons sign it, in the
presence and on the direction of the testator, or has
received from the testator, personal acknowledgement of
a signature or mark, or the signature of such other
persons and that each of the witnesses has signed the
Will in the presence of the testator. It is, however,
clarified that it would not be necessary that more than
one witness be present at the same time and that no
particular form of attestation would be necessary.Page 19
19
15. It cannot be gainsaid that the above legislatively
prescribed essentials of a valid execution and attestation
of a Will under the Act are mandatory in nature, so much
so, that any failure or deficiency in adherence thereto
would be at the pain of invalidation of such
document/instrument of disposition of property.
15.1. In the evidentiary context Section 68 of the Act
1872 enjoins that if a document is required by law to be
attested, it would not be used as evidence unless one
attesting witness, at least, if alive, and is subject to the
process of Court and capable of giving evidence proves its
execution. The proviso attached to this Section relaxes
this requirement in case of a document, not being a Will,
but has been registered in accordance with the provisions
of the Indian Registration Act 1908 unless its execution
by the person by whom it purports to have been
executed, is specifically denied.
15.2. These statutory provisions, thus, make it
incumbent for a document required by law to be attestedPage 20
20
to have its execution proved by at least one of the
attesting witnesses, if alive, and is subject to the process
of Court conducting the proceedings involved and is
capable of giving evidence. This rigour is, however, eased
in case of a document also required to be attested but not
a Will, if the same has been registered in accordance with
the provisions of the Indian Registration Act, 1908 unless
the execution of this document by the person said to
have executed it denies the same. In any view of the
matter, however, the relaxation extended by the proviso
is of no avail qua a Will. The proof of a Will to be
admissible in evidence with probative potential, being a
document required by law to be attested by two
witnesses, would necessarily need proof of its execution
through at least one of the attesting witnesses, if alive,
and subject to the process of the Court concerned and is
capable of giving evidence.
15.3 Section 71 provides, however, that if the attesting
witness denies or does not recollect the execution of thePage 21
21
document, its execution may be proved by other
evidence. The interplay of the above statutory provisions
and the underlying legislative objective would be of
formidable relevance in evaluating the materials on
record and recording the penultimate conclusions. With
this backdrop, expedient it would be, to scrutinize the
evidence adduced by the parties.
15.4 As hereinbefore mentioned, the appellant has
endeavoured to prove the execution and attestation of the
Will, Ex. A–1 through AW 1 Mr. G. C. Kumar and AW 5
Mr. Budh Ram. He has examined as well AW 3 Mr. A. K.
Jain, Sub Registrar, New Delhi before whom the Will was
registered on the very same day of its execution i.e.,
22-10-1973.
15.5. Be that as it may, AW 1 Mr. Kumar deposed on
oath that he was enrolled as a lawyer in or about 1971
and used to assist his father who was a deed writer in
Urdu language. The witness stated that he used to come
to Tis Hazari Court for attending his cases. He testifiedPage 22
22
to have seen the Will Ex. A-1 which he claimed had been
drafted by him. He failed to remember as to whether the
testator, Mr. Nathu Ram Singh had come to his father in
his presence or that his father had given him instructions
to write the Will. The witness even failed to remember
whether the Will had been given to him by his father or to
the testator. He also could not recall as to whether he
was present when the testator had signed the Will. The
witness, however, admitted that Ex. A-1 did bear his
signatures as an attesting witness but deposed that due
to lapse of time, he did not remember whether any other
person was also present and had attested the document
when he had signed it. He, however, stated to have been
present in the office of the Sub Registrar when the Will,
Ex. A-1 was presented for registration. He also admitted
to have signed the document on the backside thereof in
the presence of the clerk of the office. The witness stated
that he had also identified the testator before the Sub
Registrar but clarified that it was as per the prevalent
practice for an identifying witness to do so. He added byPage 23
23
stating that he had signed the document only in that
capacity. The witness deposed further, that he could not
say whether the thumb impression and the signatures of
the testator at the time of the registration and appearing
on the back of page one of the Will had been obtained in
his presence or not. He even failed to recall as to
whether the contents of the Will had been read over and
explained to the testator by him or by his father.
15.6 This witness was declared hostile and was
cross-examined on behalf of the appellant in course
whereof he deposed that he could not say whether he had
signed the Will in presence of the testator. When
confronted, he admitted to have signed the certificate at
the foot of the application in Section 276 of the Act
praying for grant of Letter of Administration but denied to
have done so as an attesting witness of the Will. He
stated instead that he had put his signatures as the
appellant wanted him to do so. He even denied to have
read the contents of the certificate. He refuted thePage 24
24
suggestion that he had made a false statement in Court
being won over by the respondents.
16. AW 2 Shri. Harswaroop has stated on oath that in
November, 1973, the testator had handed over to him
one Will with a direction to deliver it to the appellant
upon his death. According to this witness, he did so
after the demise of Mr. Nathu Singh and handed over the
Will to the appellant. The witness stated to have seen the
Will Ex. A-1, bearing the signature of Mr. Nathu Singh at
several places. He claimed of being conversant with the
handwriting and signature of the Mr. Nathu Singh.
Admittedly, however, this witness is neither one to the
execution of the Will, nor the attestation thereof as
obligated by law.
17. Before reverting to AW 3 in the ordinary sequence,
the testimony of AW 5 figuring in the chain of attestation
as presented by the appellant would be referred to. This
witness, Mr. Budh Ram claimed to have known the
deceased/testator. He stated on oath that he had seenPage 25
25
the document Ex. A-1 and identified his signatures
thereon. He deposed to have signed the document in
presence of the testator. He, however, hastened to add
that he had not seen the testator signing the Will. He
denied to have appeared before the Sub Registrar or to
have identified the testator before the said authority. He
stated that he had signed the document outside the
office. Though, he asserted that testator was mentally
alert on the date on which he (witness) had signed the
Will, he clarified that he did not do so on the asking of
the testator. The witness, however, admitted the
presence of the testator at that time.
17.1 In cross-examination, the witness disclosed that
the appellant was also present on the date on which he
had signed the document and that he did not know the
contents of the said document. He stated further that he
had not been told that any Will was executed by Mr.
Nathu Singh and that he was to attest it. Noticeably, this
witness had not been declared to be hostile.Page 26
26
18. AW 3 Mr. A. K. Jain who at the relevant time was the
Sub Registrar, New Delhi, on oath, stated that the Will
Ex. A-1 had been presented before him for registration on
22-10-1973. According to this witness, the testator was
identified before him by one Mr. Budh Ram and Mr. G. C.
Kumar, Advocate. The witness stated that these persons
did sign the document in his presence as identifying
witnesses on the back of page No. 1 of Ex. A-1. He
deposed as well that the testator was read out the
contents of the document and was asked as to whether
he was executing the Will himself and that on his
acknowledgement in the affirmative, he (witness) made
his endorsement on the document in his own hand.
While proving his endorsement, the witness iterated that
the testator had admitted the execution of the Will and
also proved his (testator) signatures and thumb
impressions thereon.
18.1 In his cross-examination, the witness stated that
he did not know the testator personally and that he hadPage 27
27
made his endorsements on the Will in the capacity of a
registering authority only. He admitted that on the very
same date, another document purporting to be a Will
executed by Mr. Nathu Singh was also presented for
registration for which the identifying witnesses had been
the same.
19. The testimony of AW 4 Mr. Ramchander Sharma is
to the effect that the appellant had borne the expenses
for the firewood of the funeral pyre of the deceased Nathu
Singh. The testimony of AW 7 Mr. M. S. Santosh Goel
and AW 8 Mr. Satish Kumar being insignificant vis-à-vis
issues involved is not necessary to be dilated upon.
20. AW 6 Mr. Jagdish Chander Sharma, appellant
deposed that he had joined the deceased Mr. Nathu
Singh, in the year 1952 on the recommendation of his
brother-in-law. He stated that the deceased entrusted
him the duty to realise rent of his property and also to
look after the matters pertaining to litigation in
connection therewith. The witness stated that in thePage 28
28
process, he was also made the attorney of the deceased
and while realising rent used to accompany Mr. Jaswant
Singh, his (Nathu Singh) son. He referred to some
differences between the father and the son with regard to
alleged wrong doings of the latter qua immovable
properties resulting in institution of a suit by Mr. Nathu
Singh against Mr. Jaswant Singh. According to this
witness, Mr. Jaswant Singh was inimically disposed
towards him for which he made a complaint against him
in his department for which he was placed under
suspension. He stated that Mr. Nathu Singh thereafter,
in the interest of his job, cancelled his power of attorney
but asked him to look after the property and to realise
the rents. According to the witness, Mr. Jaswant Singh
out of his persisting animosity caused a raid to be
conducted in his house, and after the demise of Mr.
Nathu Singh did openly intimidate him of dire
consequences. He denied to have visited the office of the
Sub Registrar on 22-10-1973 and insisted that AW 1 Mr.
G. C. Kumar, Advocate had signed the certificate of thePage 29
29
petition under Section 276 of the Act. He also asserted
that AW 1 had attested the Will after seeing the same.
According to this witness, the relationship of Mr. Nathu
Singh with his sons was strained as they had been
endeavouring to take over the possession of his
properties. The witness identified the signature of the
testator on the Will Ex. A-1.
21. In his detailed cross-examination, the witnesses
referred to several legal proceedings, civil and criminal
instituted by the testator which according to him,
however, did fizzle out with time without yielding any
adverse verdict against him. While mentioning that Mr.
Nathu Singh used to dispose of his properties by
executing Wills, the witness also mentioned about
litigations between him and his son Mr. Jaswant Singh.
He admitted that at the time of death of the testator, his
wife, sons, daughters and several grand children were
alive. In categorical terms, he stated that the testator
had no quarrel with his wife and daughters. He alsoPage 30
30
mentioned about gift of properties by Mr. Nathu Singh to
his sons.
22. The testimony of RW 1 Mr. Ramesh Kumar, RW 2
Mr. M. S. Rao and RW 4 Mr. Ramesh Chander Sharma
being not of any determinative significance is not being
referred to. RW 3 Mr. Narayan Singh Saini, son of the
testator deposed that his(testator) family comprised of his
wife, Smt. Chanderwati, three sons and three daughters.
He stated that during the life time of the testator, he had
executed three separate gift deeds conveying property to
each of his sons. That Mr. Nathu Singh had a host of
grand children was also stated by this witness. He
mentioned in particular that the testator had a very
cordial relationship with the children till he died so much
so that they along with the grand children used to
congregate on all family functions. He averred that the
testator had appointed the appellant as his attorney for
collecting rent from his tenants. Thereby, the testator
had also authorized the appellant to prepare documentsPage 31
31
with regard to the properties which he intended to sell
from time to time. The witness deposed that the testator
eventually had to cancel the power of attorney as the
appellant was found indulging in interpolation of
tenancies without his consent and with malafide
intention misappropriated his properties. He stated
further that at the time of his death, the testator was
aged ninety years. He reiterated that the Will in question
was deceitfully inserted amongst other documents to
procure the signature of the testator.
23. The version of RW 5 Mr. Gulab Chand and RW 6 Mr.
Bhupesh Gupta is also of not any consequence vis-à-vis
the issues involved. RW 7 Mr. Ram Chander Saini
deposed on oath that he used to represent Mr. Nathu
Singh in various legal proceedings including one
instituted against the appellant. He denied the
suggestion that Mr. Nathu Singh had a very cordial
relationship with the appellant. Page 32
32
24. RW 8 Mr. Rajinder Singh, grandson of Mr. Nathu
Singh, in his statement on oath expressed his ignorance
about any litigation between his grandfather and his
father Mr. Jaswant Singh.
25. The fascicule of the evidence viewed as hereinabove
qua the execution and the attestation of the Will thus can
be compartmentalised into two slots. The first comprising
of the testimony of AW 1 Mr. G. C. Kumar and Mr. Budh
Ram and the other of AW 3 Mr. A. K. Jain, Sub Registrar,
New Delhi.
26. Evident it would be from the deposition of AW 1 that
though he owned to be the author of the document,
having drafted it, he could not recall whether he did so
on the instruction of the testator. He did not remember
as well as to whether the Will had been handed over by
him to his father or the testator. He failed to recollect
also whether he was present when the testator had
signed the Will, Ex. A-1. Though, he admitted that the
document did bear his signatures as an attesting witnessPage 33
33
at two places being point “A” and “B”, he could not recall
whether there was any other person also present and had
similarly attested the document when he had signed at
point “A”. He was categorical in stating that he was
present in the office of the Sub Registrar when the Will
was presented for registration and had signed on the
back page thereof but clarified that he did so only as an
identifying witness. He could not say as to whether the
signatures and thumb impressions of the testator at
point “Y” and “Y–1” on the back page of the Will had been
obtained in his presence or not. He also could not state
whether the contents of the Will were read over and
explained to the testator by him or his father. He was
candid to assert that he was not sure as to whether he
had signed the Will in presence of the testator or not or
whether the testator had signed the document in his
presence. He was unequivocal in stating that he had
signed the certificate at the foot of the petition for grant
of Letter of Administration as he was asked to do so by
the appellant and he did not do so in the capacity of anPage 34
34
attesting witness to the Will. He even denied to have
gone through the contents of the certificate before
subscribing thereto.
27. The evidence of AW 1, as a whole is, therefore clearly
deficient vis-à-vis with the requirements of Section 63 (c)
of the Act. Noticeably, he does not deny either the
execution of the Will or has not failed to recollect the said
event. In clear terms, this witness stated that though he
had signed the document, he was not sure that he did so
in the presence of any other person attesting the same.
He could not also remember as to whether he was
present when the testator had signed the Will. He
clarified in no uncertain terms that his signatures on the
Will before the Sub Registrar were only as an identifying
witness. His is thus not a stance of either denial of the
execution of the Will or of failure to recollect such
execution as contemplated in Section 71 of the Act 1872.
28. To cap it all, he even endeavoured to represent that
he had signed the certificate at the foot of the applicationPage 35
35
for the Letter of Administration not voluntarily but on
being insisted upon by the appellant. He was categorical
in his testimony to the effect that he had not signed the
certificate acknowledging the fact that he was an
attesting witness. The evidence of AW 1 Mr. G. C.
Kumar, Advocate thus does not inspire confidence to be
acted upon in proof of the execution and attestation of
the Will, EX. A-1.
29. AW 5 Mr. Budh Ram was categorical in owning his
signatures on the Will at points “C” AND “Y-2” and
claimed to have to put the same in the presence of the
testator. He, however, was unhesitant in testifying that
he had not seen the testator signing the document at the
points “B”, “Y-1”. He denied to have appeared before the
Sub Registrar or to have identified the testator before the
said authority. His unambiguous statement on oath is
that he had signed the document outside the office of the
Sub Registrar. His evidence as well cannot be construed
to be one of denial of execution of the Will. This witness,Page 36
36
as his evidence would clearly demonstrate, also did
neither falter nor, was equivocal so as to suggest that he
failed to recollect the execution of the document. The
conditions, precedent for application of Section 71 of the
Act 1872, therefore, are also not available in the context
of the evidence of this witness.
29.1 On a cumulative assessment of the evidence of AW
1 and AW 5, we are of the unhesitant opinion that
Section 71 of the Act, is not invocable in the facts and
circumstances of the case so as to permit the
propounder/appellant to resort to any other evidence to
prove the execution and attestation of the Will involved
as comprehended therein. The account of the relevant
facts bearing on the execution and attestation of the Will
as provided by these witnesses though is thoroughly
inadequate qua the prescriptions of Section 63 (c) of the
Act does not amount to denial of execution or failure to
recollect the said event as contemplated in this provision.Page 37
37
30. The above notwithstanding, expedient it would be, in
the face of the protracted controversy, to examine as well
the evidence of AW 3, Mr. A. K. Jain Sub Registrar, New
Delhi, refuge whereof has been sought for by the
appellant under Section 71 of the Act, in the alternative.
30.1 This witness, to reiterate, was the Sub Registrar at
Asaf Ali road, New Delhi on the date on which, as he had
testified, the Will was laid before him for registration.
Incidentally, it was on the very same date of its execution
i.e. 22-10-1973. He deposed that the testator Mr. Nathu
Singh was identified before him by AW 1 Mr. G. C. Kumar,
Advocate, AW 1 and Mr. Budh Ram AW 5. According to
this witness, these two persons did sign the document in
his presence as identifying witnesses on the back of page
No. 1 thereof. He stated further that the contents of the
Will were read out to the testator and he was asked as to
whether he did execute the same himself. The witness
deposed that to this, the testator acknowledged in the
affirmative whereupon he (witness) endorsed the same.Page 38
38
The witness proved his endorsements at the portions
encircled “S” and “S-1”. He also stated that the testator
had signed and put his thumb marks as “Y” and “Y-1” in
his presence in acknowledgement of the execution of the
Will by him.
30.2 In cross-examination, the witness admitted that he
had made his endorsements in the capacity of a
registering authority only. While admitting that on the
very same date another document, purporting to be a Will
executed by the same testator had also been presented
before him for registration, he admitted that both the
identifying witnesses of the Will involved were also the
identifying witnesses of the other Will.
31. A plain perusal of the Will presented in course of the
arguments would reveal that the space therein meant to
mention the age and the date of execution thereof had
remained vacant till it was produced for registration. This
was though as claimed by the appellant, the document
had already been executed by the testator by putting hisPage 39
39
signature at points “B” on both the pages along with the
signatures of the attesting witnesses AW 1 and AW 5 as
well. On the back of page No. 1 of the Will, there are two
signatures and thumb impressions “Y” and “Y-1” said to
be of the testator beneath the stamped endorsements in
the official proforma signed by AW 3. On the same page,
the signature of AW 1 Mr. G. C. Kumar, Advocate, and
thumb impression of AW 5 Budh Ram are also available
at points “X” and “Y-2” respectively.
31.1 Noticeably, though the official endorsements, as
above seem to suggest that those signified admission of
execution of the document by the testator before AW 3,
the evidence of this witness on oath, does neither prove
nor demonstrate in unmistakable terms that both the
identifying witnesses had seen the testator put his
signatures and thumb impressions for the execution of
the Will. His testimony also does not establish that the
witnesses AW 1 and AW 5 had put their signature/thumb
impression before the Sub Registrar in presence of thePage 40
40
testator. This assumes significance not only as per the
non-relaxable mandate of Section 63 (c) of the Act but
also for the version of AW 1 that he had signed the
document at the time of registration only as an identifying
witness and that he did not remember as to whether the
thumb impressions and the signatures of the testator at
“Y” and “Y-1” were obtained in his presence or not. The
testimony of AW 5 to the effect that his signature as well
as thumb impression at “Y-2” though made in presence of
the testator was taken outside the Sub Registrar’s office is
significant as the same, if accepted, would mean that he
had not seen the testator signing the Will either at point
“B” or putting his signature and thumb impression at “Y”
and “Y-1” on the backside of page No. 1 of the Will. To
reiterate, he stated on oath that he had not identified the
testator before the Sub Registrar. Evidently, AW 3 was not
present at the time of initial execution of the Will and
thus could not have witnessed the said event. Page 41
41
32. In the overall perspective thus, the testimony of AW
3, in our estimate, does not conform to the imperatives of
the Section 63 (c) of the Act. His narration on affirmation
at the trial, does not either by itself meet the
essentialities of Section 63 (c) of the Act or can be
construed to be a supplement of the evidence of AW 1
and AW 5 to furnish the proof of execution and
attestation of the Will as enjoined by law.
33. The evidence of AW 1, AW 3 and AW 5, anlaysed
collectively or in isolation, does not evince animo
attestandi, an essential imperative of valid attestation of a
Will. As Section 71 of the Act, 1872 by no means can be
conceived of to be a diluent of the rigour of Section 63 of
the Act, the testimony of these witnesses fall short of the
probative content to construe Ex. A-1 to be a validly
executed and attested Will as envisaged in law.
34. In Bhaiya Guruji Dutt Singh (supra), the testimony
of the two attesting witnesses was found wanting in
credibility for which the propounder did fall back on thePage 42
42
admission of the testator about the execution of the Will
involved at the time of registration in presence of two
persons Mr. Mahadeo Prasad and Mr. Nageshur, who
also had appended their signatures at the foot of the
endorsement of the Sub Registrar. These signatures were
contended to be enough to prove due attestation of the
Will. It was held that mere signatures of these two
persons appearing at the foot of the endorsement of
registration could not be presumed to have been made as
attesting witnesses or in the capacity of attesting
witnesses and absence of animo attestandi was
underlined.
35. This Court in H. Venkatachala Iyengar (supra) while
dilating on the statutory requisites of valid execution of a
Will, observed that unlike other documents this
testamentary instrument speaks from the death of the
testator and by the time when it is produced before a
Court, the testator had departed from his temporal state
and is not available to own or disown the same. It wasPage 43
43
thus emphasised that this does introduce an element of
solemnity in the decision on the question as to whether
the document propounded is proved to be the last Will
and testament of the departed testator. In this context, it
was emphasised that the propounder would be required
to prove by satisfactory evidence that (i) the Will was
signed by the testator, (ii) he at the relevant time was in a
sound and disposing state of mind, (iii) he understood
the nature and effect of the dispositions, and that (iv) he
put his signature to the document of his own free will. It
was observed that ordinarily when the evidence adduced
in 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, the
court would be justified in making a finding in favour of
the propounder signifying that he/she had been able to
discharge his/her onus to prove the essential facts. The
necessity of removal of the suspicious circumstances
attendant on the execution of the Will, however, was
underlined as well. That no hard and fast or inflexiblePage 44
44
rule can be laid down for the appreciation of the evidence
to this effect was acknowledged.
36. That a propounder has to demonstrate that the Will
was signed by the testator and that he was at the
relevant time in a sound disposing state of mind and that
he understood the nature and effect of the disposition
and further that he had put his signature to the
testament on his own free will and that he had signed it
in presence of two witnesses who had attested it in
presence and in the presence of each other, in order to
discharge his onus to prove due execution of the said
document was reiterated by this Court amongst others in
Surendra Pal and Ors. (supra) It was held as well that
though on the proof of the above facts, the onus of the
propounder gets discharged, there could be situations
where the execution of a Will may be shrouded by
suspicious circumstances such as doubtful signature,
feeble mind of the testator, overawed state induced by
powerful and interested quarters, prominent role of thePage 45
45
propounder, unnatural, improbable and unfair bequests
indicative of lack of testator’s free will and mind etc. In
all such eventualities, the conscience of the Court has to
be satisfied and thus the nature and quality of proof
must be commensurate to such essentiality so much so
to remove any suspicion which may be entertained by
any reasonable and prudent man in the prevailing
circumstances. It was propounded further that where the
caveator alleges undue influence, fraud and coercion, the
onus, however, would be on him to prove the same, and
on his failure, probate of the Will must necessarily be
granted if it is established that the testator had full
testamentary capacity and had in fact executed it validly
with a free will and mind.
37. In Jaswant Kumar (supra) this Court held that
suspicion generated by the distrustful circumstances
cannot be removed by the mere assertion of the
propounder that the Will bears the signature of the
testator or that the testator was in a sound and disposingPage 46
46
state of mind and memory when the Will was made or
that those like the wife and children of the testator, who
would normally receive their due share in the estate,
were disinherited because the testator might have had
seen reasons for excluding them. It was underscored that
it was obligatory for the propounder to remove all
legitimate suspicions before the document could be
accepted as the last Will of the testator.
38. In Ravindra Nath Mukharji and Another (supra) this
Court entertained the view that the, witnesses to the Will,
if interested for the propounder is perceived to be a
suspicious circumstance, the same would lose
significance if the document is registered and the Sub
Registrar does certify that the same had been read over
to the executor who on doing so admits the contents.
39. In Pentakota Satyanarayan and Others (supra) the
testator P. Mr. Ram Murthi had admitted the execution of
the Will involved. He, however, expired while the suit was
pending. The Will was registered and the signature of thePage 47
47
testator was identified by two witnesses whereupon the
Sub Registrar had signed the document. In this textual
premise, it was held that the signatures of the registering
officer and of the identifying witnesses affixed to the
registration endorsement did amount to sufficient
attestation within the meaning of the Act. It was held as
well that the endorsement of the Sub Registrar that the
executant had acknowledged before him the execution,
did also amount to attestation. The facts revealed that
the Will was executed before the Sub Registrar on which
the signature of the testator as well as signature and the
thumb impression of the identifying witnesses were taken
by the said authority, whereafter the latter signed the
deed. In general terms, it was observed that registration
of the Will per se did not dispense with the need of
proving its execution and the attestation in the manner
as provided in Section 68 of the 1872 Act. It was
enunciated as well that execution consisted of signing a
document, reading it over and understanding andPage 48
48
completion of all formalities necessary for the validity of
the act involved.
39.1 The facts as obtained in this decision are
distinguishable from those in hand and are incomparable
on many counts. No anology can be drawn from this case
to conclude that the testimony of AW 3 even if read with
that of AW 1 and AW 5 can sum up to prove valid
execution and attestation of the Will as stipulated by
Section 63 (c ) of the Act.
40. Janki Narayan Bhoir (supra) witnessed a fact
situation where one of the attesting witnesses of the Will,
though both were alive at the relevant time, was
produced to prove the execution thereof. The scribe of
the document was also examined. The attesting witness
deposed that he had not seen the other witness present
at the time of execution of the Will and further he did not
remember as to whether he along with the latter were
present either when the testator had put his signature on
the Will or that he had identified the person who had putPage 49
49
the thumb impression on the document. The issue
raised before this Court was that the evidence of the said
attesting witness had failed to establish the attestation of
the Will by the other attesting witness who though
available had not been examined and thus the Will was
not proved. The contrary plea was that though Section
63 of the Act required attestation of a Will by at least two
witnesses, it could be proved by examining one attesting
witness as per Section 68 of the 1872 Act and by
furnishing other evidence as per the Section 71 thereof.
While dwelling on the respective prescripts of Section 63
of the Act and Sections 68 and 71of Act 1872 vis-à-vis a
document required by law to be compulsorily attested, it
was held that if an attesting witness is alive and is
capable of giving evidence and is subject to the process of
the Court, he/she has to be necessarily examined before
such document can be used in evidence. It was
expounded that on a combined reading of Section 63 of
the Act and Section 68 of the 1872 Act, it was apparent
that mere proof of signature of the testator on the WillPage 50
50
was not sufficient and that attestation thereof was also to
be proved as required by Section 63 (c) of the Act. It was,
however, emphasised that though Section 68 of the 1872
Act permits proof of a document compulsorily required to
be attested by one attesting witness, he/she should be in
a position to prove the execution thereof and if it is a
Will, in terms of Section 63 (c) of the Act, viz, attestation
by two attesting witnesses in the manner as
contemplated therein. It was exposited that if the
attesting witness examined besides his attestation does
not prove the requirement of the attestation of the Will by
the other witness, his testimony would fall short of
attestation of the Will by at least two witnesses for the
simple reason that the execution of the Will does not
merely mean signing of it by the testator but connotes
fulfilling the proof of all formalities required under
Section 63 of the Act. It was held that where the attesting
witness examined to prove the Will under Section 68 of
1872 Act fails to prove the due execution of the Will, then
the other available attesting witness has to be called toPage 51
51
supplement his evidence to make it complete in all
respects.
41. Qua Section 71 of 1872 Act, it was held to be in the
form of a safeguard to the mandatory provision of Section
68 to cater to a situation where it is not possible to prove
the execution of the Will by calling the attesting
witnesses though alive i.e. if the witnesses either deny or
do not recollect the execution of the Will. Only in these
contingencies by the aid of Section 71, other evidence
can be furnished. It was further clarified that Section 71
of Act 1872 would have no application to a case where
one attesting witness who alone had been summoned
fails to prove the execution of the Will and the other
attesting witness though available to prove the execution
of the same, for reasons best known, is not summoned
before the Court.
42. This Court underlined that Section 71 of the Act
1872 was meant to lend assistance and come to the
rescue of a party who had done his best, but driven to aPage 52
52
state of helplessness and impossibility and cannot be let
down without any other opportunity of proving the due
execution of the document by other evidence. That,
however, Section 71 cannot be invoked so as to absolve
the party of his obligation under Section 68 read with
Section 63 of the Act and to liberally allow him, at his will
or choice, to make available or not, necessary witness
otherwise available and amenable to jurisdiction of the
Court, was highlighted in emphatic terms. That no
premium upon such omission or lapse so as to enable
him to give a go-bye to the mandates of law relating to
proof of execution of a Will, as contemplated by these
statutory provisions, was precisely underlined. In the
facts and circumstances of that case, as the second
attesting witness though available had not been
summoned, the benefit of Section 71 of Act 1872 was not
extended. The Will was thus held to be not proved for the
failure of the attesting witness so produced, to testify as
per the ordainment of Section 63 (c) of the Act. Page 53
53
43. In M. B. Ramesh (dead) by LRS (supra), one Smt.
Nagammanni had executed a Will. One of the attesting
witnesses P. Basavaraje Urs, in his evidence, stated
about the presence of the other witness (naming him),
the testatrix, himself and one Sampat Iyengar to be
present when the Will was written. He deposed further
that one Mr. Narayan Murthi was the scribe. This witness
proved that the Will was signed by Smt. Nagammanni
and that he had signed the document too in her
presence. On a consideration of the totality of the
circumstances emerging from the narration of the
attesting witness, this Court held that the omission on
the part of this witness to specifically state about the
signature of the other witness on the Will in presence of
the testatrix did amount to his failure to recollect the said
fact and thus the deficiency could permissibly be
replenished by the aid of Section 71 of the Act 1872. In
no uncertain terms, this Court did hold that the issue of
validity of the Will was to be considered in context of the
attendant singular facts.Page 54
54
44. The legal propositions adumbrated by the judicial
pronouncements, adverted to hereinabove, do not admit
of any exception. However, these are of no avail to the
appellant herein in the conspectus of present facts. The
evidence of the witness AW 1, AW 3 and AW 5 does not
exhibit either denial of the execution of the Will or their
failure to recollect the said phenomenon and thus, does
not attract the applicability of Section 71 of the Act 1872.
45. A Will as an instrument of testamentary disposition
of property being a legally acknowledged mode of
bequeathing a testator’s acquisitions during his lifetime,
to be acted upon only on his/her demise, it is no longer
res integra, that it carries with it an overwhelming
element of sanctity. As understandably, the
testator/testatrix, as the case may be, at the time of
testing the document for its validity, would not be
available, stringent requisites for the proof thereof have
been statutorily enjoined to rule out the possibility of any
manipulation. This is more so, as many a times, thePage 55
55
manner of dispensation is in stark departure from the
prescribed canons of devolution of property to the heirs
and legal representatives of the deceased. The rigour of
Section 63 (c) of the Act and Section 68 of 1872 Act is
thus befitting the underlying exigency to secure against
any self serving intervention contrary to the last wishes of
the executor.
45.1 Viewed in premise, Section 71 of the 1872 Act has
to be necessarily accorded a strict interpretation. The
two contingencies permitting the play of this provision,
namely, denial or failure to recollect the execution by the
attesting witness produced, thus a fortiori has to be
extended a meaning to ensure that the limited liberty
granted by Section 71 of 1872 Act does not in any
manner efface or emasculate the essence and efficacy of
Section 63 of the Act and Section 68 of 1872 Act. The
distinction between failure on the part of a attesting
witness to prove the execution and attestation of a Will
and his or her denial of the said event or failure to
recollect the same, has to be essentially maintained. Any
unwarranted indulgence, permitting extra liberal
flexibility to these two stipulations, would render the
predication of Section 63 of the Act and Section 68 of the
1872 Act, otiose. The propounder can be initiated to the
benefit of Section 71 of the 1872 Act only if the attesting
witness/witnesses, who is/are alive and is/are produced
and in clear terms either denies /deny the execution of
the document or cannot recollect the said incident. Not
only, this witness/witnesses has/have to be credible and
impartial, the evidence adduced ought to demonstrate
unhesitant denial of the execution of the document or
authenticate real forgetfulness of such fact. If the
testimony evinces a casual account of the execution and
attestation of the document disregardful of truth, and
thereby fails to prove these two essentials as per law, the
propounder cannot be permitted to adduce other
evidence under cover of Section 71 of the 1872 Act. Such
a sanction would not only be incompatible with the
scheme of Section 63 of the Act read with Section 68 of
the 1872 Act but also would be extinctive of the
paramountcy and sacrosanctity thereof, a consequence,
not legislatively intended. If the evidence of the witnesses
produced by the propounder is inherently worthless and
lacking in credibility, Section 71 of Act 1872 cannot be
invoked to bail him (propounder) out of the situation to
facilitate a roving pursuit. In absence of any touch of
truthfulness and genuineness in the overall approach,
this provision, which is not a substitute of Section 63 (c )
of the Act and Section 68 of the 1872 Act, cannot be
invoked to supplement such failed speculative endeavour
45.2 Section 71 of the 1872 Act, even if assumed to be
akin to a proviso to the mandate contained in Section 63
of the Act and Section 68 of the 1872 Act, it has to be
assuredly construed harmoniously therewith and not
divorced therefrom with a mutilative bearing. This
underlying principle is inter alia embedded in the
decision of this Court in the Commission of Income Tax,
Madras Appellant Versus Ajax Products Limited
Respondent AIR 1965, Supreme Court 1358.
46. The materials on record, as a whole, also do not, in
our comprehension, present a backdrop, in which, in
normal circumstances, the testator would have preferred
the appellant to be the legatee of his property as set out
in the Will, Ex. A-1, by denying his wife, children and
grand children who were alive and with whom he did
share a very warm affectionate and cordial relationship.
Viewed in this context, the bequest is exfacie unnatural,
unfair and improbable thus reflecting on the testator’s
cognizant, free, objective and discerning state of mind at
the time of the alleged dispensation. The suspicious
circumstances attendant on the disposition, in our
opinion, do militatively impact upon the inalienable
imperatives of solemnity and authenticity of any bequest
to be effected by a testamentary instrument.Page 59
59
47. In the wake of the determinations made herein
above, we are of the unhesitant opinion that the
challenge laid in the instant appeal lacks in merit.
48. The High Court, in our estimate, has appropriately
appreciated the law and the facts in the right perspective
and the impugned decision does not call for any
interference. The appeals are dismissed.
49. No cost.
……………………..J.
(Kurian Joseph)
……………………..J.
(Amitava Roy)
New Delhi
Dated: May 01, 2015
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