Whether evidence of attesting witness can be discarded if he has not read the content of will?

I have gone through the evidence of Mr. Ghadage, attesting witness and I found it reliable, cogent consistent and stood to the test of cross examination. Thus, there is a compliance of provisions of Section 68 of the Evidence Act. However, evidence of this witness has been disbelieved by the learned appellate Court, only on the ground that, this witness did not read the contents of the Will and put his signature at the instance of Mr. Salunke (scribe). The learned appellate Court thus held that since the attesting witness knew nothing about the contents of the Will, his evidence was falling short of the requirements of Section 68 of the Evidence Act.

19. In my view, the reasons for discarding the evidence of this attesting witness are unfounded and not acceptable. The requirement of Section 68 of the Evidence Act is to prove the execution of document, which is required by law to be attested. Therefore, what is to be proved, is execution of the Will and not the contents of it. Thus, the learned Appellate Court has committed an error by discarding the evidence of this witness.

IN THE HIGH COURT OF BOMBAY

Second Appeal No. 538 of 2015 and Civil Application No. 353 of 2012

Decided On: 01.03.2019

 Chandrakala Krishna Dhole Vs.  Bhimrao Dattu Kadam and Ors.

Hon'ble Judges/Coram:

Sandeep K. Shinde, J.

Citation: 2019(4) MHLJ 949

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Whether contents of document can be proved by mere identification of signature?

It may be mentioned that in the plaint filed by the
appellant, the plea set up was that at the instigation of the
defendants and in collusion with them, the Mill Mazdoor
Sabha has refused to give its permission to the sale of the mill
premises of Defendant No. 1 to the plaintiff. It was not a case
set up by the appellant that the Mill Mazdoor Sabha had
agreed to the proposed sale on certain conditions offered by
the respondents. In view of the settled position of law, fresh
pleadings and evidence which is in variation to the original
pleadings cannot be taken unless the pleadings are
incorporated by way of amendment of the pleadings. In our
considered opinion, the Division Bench of the High Court was
perfectly justified in holding that unless the plaint is amended
and a specific plea is taken that the Mill Mazdoor Sabha had
agreed for the proposed sale on certain terms and conditions
offered by the respondents herein, the two letters viz., Exh
Nos. P-27 and P-28 could not have been taken into
consideration at all. Further, it is the case of the appellant
that the aforesaid two letters were given by one Shri M.P.
Agrawal-a former Director of the Respondent No. 1. Shri M.P.

Agrawal has not been produced as a witness so as to establish
that these two letters were in fact given by the Mill Mazdoor
Sabha. Further, in the statement of Mr. Vasant Gupte (PW-2),
he has only stated that the letter must have ben sent by the
Mill Mazdoor Sabha and the post-script might have been
written by Mr. Pathak as it bears his signature. He had not
stated that it was written in his presence. Mere identifying the
signature of Mr. Pathak does not prove the contents of the said
letter which is being relied upon by the appellant. Even if the
two letters viz., Exh. Nos. P-27 and P-28 are taken into
consideration, from a reading of the said letters, it appears
that the contents are contradictory of one another.
 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 1148 OF 2010
Nandkishore Lalbhai Mehta .... Appellant(s)
Versus
New Era Fabrics Pvt. Ltd. & Ors. .... Respondent(s)
 WITH
CIVIL APPEAL NOs. 1131-1132 OF 2010
Citation:(2015) 9 SCC755
R.K. Agrawal, J.

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When court can permit oral evidence in respect of contents of document?

 Before starting appreciation of evidence, the defence
which is available to present defendants need to be discussed in
brief. It is because the Trial Court had held that the aforesaid
defence taken in the written statement is not available to the
defendants in view of the provision of section 92 of the Evidence
Act. The relevant portion, proviso (2) of section 92 is as under :-
"92. Exclusion of evidence of oral
agreement.- When the terms of any such
contract, grant or other disposition of property, or
any matter required by law to be reduced to the
form of a document, have been proved according
to the last section, no evidence of any oral
agreement or statement shall be admitted, as
between the parties to any such instrument or
their representatives in interest, for the purpose of
contradicting, varying, adding to, or subtracting
from, its terms:

Proviso (1).-----------
Proviso (2).- The existence of any separate
oral agreement as to any matter on which a
document is silent, and which is not inconsistent
with its terms, may be proved. In considering
whether or not this proviso applies, the Court shall
have regard to the degree of formality of the
document.
Proviso (3).- ............"
20) On the aforesaid point, the learned counsel for
respnodents/defendants placed reliance on the case reported as
AIR 1982 SUPREME COURT 20 [Smt. Gangabai Vs. Smt.
Chhabubai]. The relevant observations are as under :-
"(B) Evidence Act (1 of 1872),S.92(1)-Bar of,
as to adducing of oral evidence –
Applicability.
The bar imposed by sub-sec.(1) of Section 92
applies only when a party seeks to rely upon the
document embodying the terms of the transaction.
In that event, the law declares that the nature and
intent of the transaction must be gathered from
the terms of the document itself and no evidence
of any oral agreement or statement can be
admitted as between the parties to such document
for the purpose of contradicting or modifying its
terms. The sub-section is not attracted when the
case of a party is that the transaction recorded in
the document was never intended to be acted

upon at all between the parties and that the
document is a sham. Such a question arises when
the party asserts that there was a different
transaction altogether and what is recorded in the
document was intended to be of no consequence
whatever. For the purpose, oral evidence is
admissible to show that the document executed
was never intended to operate as an agreement
but that some other agreement altogether, not
recorded in the document, was entered into
between the parties. AIR 1936 PC 70, Foll."
21) In view of nature of defence taken by the defendants
which is already quoted and the aforesaid position of law, this
Court has no hesitation to hold that the defendants cannot be
prevented from taking such defence. On this point, the learned
counsel for appellant placed reliance on the case reported as
2010 (6) Mh.L.J. 653 BOMBAY HIGH COURT [Shriram s/o.
Tukaram Avatade Vs. Ramrao Udaji Khadase]. In this
reported case, this Court held in view of the facts of that case
that there was no evidence to override the legal effect of the suit
agreement. This proposition is not disputed and on facts it was
held that the defence taken was not proved.

IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
SECOND APPEAL NO. 188 OF 2010
Kashinath S/o Yadeo Hiwarde,

Versus
 Osman Baig Sandu Baig @ Amir Baig,




CORAM : T.V. NALAWADE, J.
DATED : 10th December, 2015.
Citation; AIR2016(NOC)266 Bom

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Whether contents of document can be proved by proving signature on said document?

It was conceded that the report was an authentic public document of the Genoese Government. the statements, however, contained in the report were not based on the evidence of any of the relatives of the consul at Genoa. The information contained therein did not appear to have been received from any member of Mangini's family. One of the well-recognised exceptions under the English Law of Evidence to the reception of hearsay evidence is the evidence relating to pedigree. The only question, which their Lordships of the House of Lords were considering was, whether the contents of the report fell within the purview of the above exception and their Lordships held that it did not, because the statements contained in the report were not bases on the evidence given before the dispute started by any of the members of the deceased's family. We are not concerned with that part of the decision of the House of Lords in the present case. The point to be noted is that the statements contained in the report were treated as hearsay and since they did not fall within the well-recognised exceptions, they were excluded from evidence. To conclude this part of the discussion, we hold, in the first place, that what has been formally proved is the signature of Abrea and not the writing of the body of the document at Ex.28 and secondly, that even if the entire document is held formally proved, that does not amount to a proof of the truth of the contents of the document. The only person competent to give evidence on the truthfulness of the contents of the document was Abrea.

Bombay High Court

Mohammed Yusuf And Anr. vs D. And Anr. on 14 July, 1961

Equivalent citations: AIR 1968 Bom 112, (1966) 68 BOMLR 228, ILR 1966 Bom 420

Bench: Desai, Naik

Read full judgment here; click here

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Whether contents of a document can be proved by mere identification of signature of person on that document?

Further, it is the case of the appellant
that the aforesaid two letters were given by one Shri M.P.
Agrawal-a former Director of the Respondent No. 1. Shri M.P.

Agrawal has not been produced as a witness so as to establish
that these two letters were in fact given by the Mill Mazdoor
Sabha. Further, in the statement of Mr. Vasant Gupte (PW-2),he has only stated that the letter must have ben sent by theMill Mazdoor Sabha and the post-script might have been
written by Mr. Pathak as it bears his signature. He had not
stated that it was written in his presence. Mere identifying the
signature of Mr. Pathak does not prove the contents of the saidletter which is being relied upon by the appellant. Even if the
two letters viz., Exh. Nos. P-27 and P-28 are taken into
consideration, from a reading of the said letters, it appears
that the contents are contradictory of one another. In the
letter dated 05.12.1977 (Exh. P-27), in the underlined portion
reproduced above, we find that the Mill Mazdoor Sabha had
demanded an option to provide alternate employment and to
pay full compensation to those workers who do not want
alternate employment as per the law. In the note below the
said letter, a mention has been made that a proposal was
given to pay 60 per cent compensation which was not
acceptable.

 In the earlier part of the letter dated 10.01.1978 (Exh.
P-28), it has been specifically mentioned that they do not agree
to the proposed sale and the matter be treated as closed.
However, in the note, it is mentioned that they are agreeable to
the proposal given in the discussion and to the proposed sale.
Letter dated 10.01.1978 is contradictory to the earlier part of
the letter, and therefore, in our considered opinion, the
Division Bench had rightly disbelieved these two letters viz.,
Exh. P-27 and Exh. P-28.

 REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
 CIVIL APPEAL NO. 1148 OF 2010
Nandkishore Lalbhai Mehta .... Appellant(s)
Versus
New Era Fabrics Pvt. Ltd. & Ors. .... Respondent(s)
 WITH
CIVIL APPEAL NOs. 1131-1132 OF 2010
Citation;(2015) 9 SCC 755

Read full judgment here; click here

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Whether it is necessary to explain contents of document if thumb mark is affixed by illiterate person?

 Coming to the agreement to sell (Ext. 1) both the courts below have held that the document is not genuine and is a forged one, and this finding being based on appreciation of evidence is a finding of fact. But. as much argument was advanced, I have to look to the evidence in relation to the execution of the document and its genuineness. Under Section 67 of the Evidence Act execution of document has to be proved, which denotes a conscious act of subscribing to a document. In order to prove the execution of a document it must be shown that the person executing it consciously subscribed to it in the sense that he put his mark or signature on it after having known and understood its contents. Mere proof that the person's signature appears on the document cannot, by itself, amount to execution of the document. It is also settled that if an illiterate person affixes his thumb mark to a document, the onus to prove that the document was properly explained to the person affixing his thumb mark so as to make him understand its true import is on the person relying on the document.

Madhya Pradesh High Court

Ramjan Khan And Ors. vs Baba Raghunath Dass And Ors. on 5 December, 1990

Bench: S Dubey

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