Ajay Kumar v. The State and Ors.

Delhi High Court · 05 Jul 2017 · 2017:DHC:3299

Valmiki J. Mehta

FAO No. 39/2007

2017:DHC:3299

civil appeal_allowed Significant

AI Summary

The Delhi High Court allowed probate of a Will despite technical deficiencies in attesting witness evidence, holding that liberal interpretation under Sections 63, 68, and 71 of the Indian Succession and Evidence Acts suffices to prove due execution.

Full Text

FAO No. 39/2007 HIGH COURT OF DELHI FAO No. 39/2007
5th July, 2017 AJAY KUMAR ..... Appellant
Through: Mr. Atul Bandhu, Advocate.

VERSUS

THE STATE AND ORS. ..... Respondents
Through: Mr. Yudhvir Singh Chauhan, Adv. with R-2.

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not? YES VALMIKI J. MEHTA, J (ORAL)

JUDGMENT

1. This first appeal under Section 299 of the India Succession Act, 1925 is filed challenging the impugned judgment dated 28.10.2006 dismissing the probate petition filed by the present appellant.

2. The facts of the case are that the appellant filed the subject petition for grant of probate of the Will dated 17.8.1999 of Sh. Amar Singh in his favour. The appellant/petitioner is the grand-son of Sh. Amar Singh who expired on 6.12.2000. Late Sh. Amar Singh is said to have left behind his Will dated 17.8.1999 and which was duly registered in the office of the Sub-Registrar, Seelampur, Delhi vide 2017:DHC:3299 document no. 24491 in Additional Book No. 3, Volume No. 2504 on pages 97 to 98. Objections to the probate petition were filed on behalf of respondent nos. 2 to 4 to the petition, and who are also the respondent nos. 2 to 4 in the appeal.

3. The probate court framed the sole issue as regards the due execution of the Will dated 17.8.1999. Appellant/petitioner examined two witnesses being himself as also one attesting witness Sh. Pawan Kumar as PW-2. Respondents however led no evidence.

4. The court below has dismissed the probate petition on the technical ground that Will cannot be said to have been proved as the attesting witness Sh. Pawan Kumar who appeared as PW-2 did not depose that the other attesting witness Sh. Pradeep Kumar signed the Will in the presence of the PW-2 or in the presence of the testator or that the testator signed in the presence of both the attesting witnesses.

5. On the first blush the observations of the probate court seem to be justified inasmuch as it is the requirement of law as per Section 63 of the Indian Succession Act that a Will must be proved as having been executed by the testator who signs in the presence of the attesting witnesses and the attesting witnesses sign in the presence of the testator and there is seemingly a lacunae in the evidence led by the attesting witness PW-2 as regards lack of deposition of the attestation of the Will by the second attesting witness. However, I may note at this stage that the finding of the court below that the attesting witness must sign in the presence of each other is not a legally correct statement because in Indian law all that is required is that the testator must sign in the presence of the attesting witness and the attesting witness must sign in the presence of the testator and it is not required that the attesting witnesses have to sign in the presence of each other.

6. (i) Let me at this stage reproduce the deposition of PW-2, and this deposition of PW-2 reads as under:- “PW-2 Pawan Kumar S/o Sh. Rajinder Singh Aged 35 years R/o Village Bhuri District Sonepat, Farmer On S.A:- I know Amar Singh. In 1999, I accompanied Amar Singh to an advocate who prepared the Will. Thereafter, I went to the office of Sub Registrar where Amar Singh singed and thumb marked his Will and I also signed the Will as an attesting witness. I identify the signature of Amar Singh at point- A and thumb marked at point-B and I identify my signature at point-C on the Will.”

(ii) PW-2 has not been cross examined by the objectors.

7. Before I examine the deposition of PW-2 as to whether it amounts to proving of the subject Will, let me at this stage reproduce the ratio of a recent judgment of the Supreme Court in the case of M.B. Ramesh (Dead) By LRs. Vs. K.M. Veeraje Urs (Dead) by LRs and Others (2013) 7 SCC 490. In this judgment facts were more or less similar to the facts of the present case inasmuch as it was found in the case before the Supreme Court that the evidence of the attesting witness who deposed was silent as regards the issue of execution of the Will by the testator in the presence of the second attesting witness and as to whether the second attesting witness signed as an attesting witness in the presence of the testator. The Supreme Court in the case of M.B. Ramesh (supra) however by reference to the provision of Section 68 of the Indian Evidence Act, 1872 and more particularly Section 71 of the Indian Evidence Act thereof held that the evidence must be liberally read and any shortcoming in the deposition should be cured in terms of Section 71 of the Indian Evidence Act and it should be held that the Will stands proved. Accordingly it was held in M.B.Ramesh’s case (supra) that in spite of there not existing a specific deposition of the attesting witness having signed in the presence of the testator, the same can be inferred from the other evidence which is led in the case. The relevant paras of the judgment in M.B.Ramesh’s case (supra) are paras 18, 19, 20, 24, 25, 26, 27, 28, 29 and 30 and which paras read as under:-

18. That takes us to the crucial issue involved in the present case viz. with respect to the validity and proving of the concerned will. A Will, has to be executed in the manner required by Section 63 of the Succession Act. Section 68 of the Evidence Act requires the will to be proved by examining at least one attesting witness. Section 71 of the Evidence Act is another connected section "which is permissive and an enabling section permitting a party to lead other evidence in certain circumstances", as observed by this Court in paragraph 11 of Janki Narayan Bhoir v. Narayan Namdeo Kadam and in a way reduces the rigour of the mandatory provision of Section 68. As held in that judgment Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but would otherwise be let down if other means of proving due execution by other evidence are not permitted. At the same time, as held in that very judgment the section cannot be read to absolve a party of his obligation under Section 68 of the Evidence Act read with Section 63 of the Succession Act to present in evidence a witness, though alive and available.

19. The relevant provisions of these three sections read as follows: Section 63 of the Succession Act

"63. Execution of unprivileged wills.- Every testator, not being a

soldier employed in an expedition or engaged in actual warfare, or

an airman so employed or engaged, or a mariner at sea, shall

execute his will according to the following rules:

(a)-(b) *****

21,512 characters total

(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 of 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 be present at the same time, and no particular form of attestation shall be necessary.

Section 68 of the Evidence Act:

“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 it's execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence.”

Section 71 of the Evidence Act:

“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.

20. In the present matter, there is no dispute that the requirement of Section 68 of the Evidence Act is satisfied, since one attesting witness i.e. PW-2 was called for the purpose of proving the execution of the will, and he has deposed to that effect. The question, however, arises as to whether the will itself could be said to have been executed in the manner required by law, namely, as per Section 63(c) of the Succession Act. PW-2 has stated that he has signed the will in the presence of Smt. Nagammanni, and she has also signed the will in his presence. It is however contended that his evidence is silent on the issue as to whether Smt. Nagammanni executed the will in the presence of M. Mallaraje Urs, and whether M. Mallaraje Urs also signed as attesting witness in the presence of Smt. Nagammanni. Section 63(c) of the Succession Act very much lays down the requirement of a valid and enforceable will that it shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will, and each of the witnesses has signed the will in the presence of the testator. As held by a bench of three judges of this Court (per Gajendragadkar J, as he then was) way back in H. Venkatachala Iyengar v. B.N. Thimmajamma, that a will has to be proved like any other document except that evidence tendered in proof of a will should additionally satisfy the requirement of Section 63 of the Succession Act, apart from the one under Section 68 of the Evidence Act. xxxxx xxxxx xxxxx

24. In the present case, we may note that in para 21 of his cross examination, P. Basavaraje Urs has in terms stated, "Mr. Mallaraje Urs and Smt. Nagammanni, myself and one Sampat Iyanger were present while writing the will." One Mr. Narayanmurti was also present. In para 22 he has stated that Narayanmurti had written Ext. 3 (will) in his own handwriting continuously. The fact that M. Mallaraje Urs was present at the time of execution of the will is not contested by the Defendants by putting it to PW[2] that M. Mallaraje Urs was not present when the will was executed. As held by a Division Bench of the Calcutta High Court in a matter concerning a will, in para 10 of A.E.G. Carapiet v. A.Y. Derderian: (AIR p.362) " 10. …..Wherever the opponent has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed at all… It is a rule of essential justice". As noted earlier the will was executed on 24.10.1943 in the office of the advocate Shri Subha Rao situated at Mysore, and was registered on the very next day at Mysore. The fact that the will is signed by Smt. Nagammanni in the presence of PW[2] on 24.10.1943 has been proved, that PW[2] signed in her presence has also been proved. Can the signing of the will by Smt. Nagammanni in the presence of M. Mallaraje Urs and his signing in her presence as well not be inferred from the above facts on record? In our view, in the facts of the present case, the omission on the part of PW[2] to specifically state that the signature of M. Mallaraje Urs on the will (which he identified) was placed in the presence of Smt. Nagammani, and that her signature (which he identified) was also placed in the presence of M. Mallaraje Urs, can be said to be a facet of not recollecting about the same. This deficiency can be taken care of by looking to the other evidence of attendant circumstances placed on record, which is permissible under Section 71 of the Evidence Act.

25. The issue of validity of the will in the present case will have to be considered in the context of these facts. It is true that in the case at hand, there is no specific statement by PW[2] that he had seen the other attesting witness sign the will in the presence of the testator, but he has stated that the other witness had also signed the document. He has proved his signature, and on the top of it he has also stated in the Cross examination that the other witness (Mr. Mallaraje Urs), Smt. Nagammani, himself and one Sampat Iyanger and the writer of the will were all present while writing the will on 24.10.1943 which was registered on the very next day. This statement by implication and inference will have to be held as proving the required attestation by the other witness. This statement alongwith the attendant circumstances placed on record would certainly constitute proving of the will by other evidence as permitted by Section 71 of the Evidence Act.

26. While drawing the appropriate inference in a matter like this, a Court cannot disregard the evidence on the attendant circumstances brought on record. In this context, we may profitably refer to the observations of a Division Bench of the Assam High Court in Mahalaxmi Bank Limited v. Kamkhyalal Goenka, which was a case concerning the claim of the Appellant bank for certain amounts based on the execution of a mortgage deed. The execution thereof was being disputed by the Respondents, amongst other pleas, by contending that the same was by a purdahnashin lady, and the same was not done in the presence of witnesses. Though the evidence of the Plaintiff was not so categorical, looking to the totality of the evidence on record, the Court held that the execution of the mortgage had been duly proved. While arriving at that inference, the Division Bench observed: (AIR p.62, para 11) “11...It was, therefore, incumbent on the Plaintiff to prove its execution and attestation according to law. It must be conceded that the witnesses required to prove attestation has (sic) not categorically stated that he and the other attesting witnesses put their signatures (after having seen the execution of the document) in the presence of the executants. Nevertheless, the fact that they actually did so can be easily gathered from the circumstances disclosed in the evidence. It appears that the execution and registration of the document all took place at about the same time in the house of the Defendants. The witnesses not only saw the executants put their signatures on the document, but that they also saw the document being explained to the lady by the husband as also by the registering officer. They also saw the executants admit receipt of the consideration, which was paid in their presence. As all this happened at the same time, it can be legitimately inferred that the witnesses also put their signatures in the presence of the executants after having seen them signing the instrument.......There is no suggestion here that the execution and attestation was not done at the same sitting. In fact, the definite evidence here is that the execution and registration took place at the same time. It is, therefore, almost certain that the witnesses must have signed the document in the presence of the executants....”

27. The approach to be adopted in matters concerning wills has been elucidated in a decision on a first appeal by a Division Bench of Bombay High Court in Vishnu Ramkrishana v. Nathu Vithal. In that matter, the Respondent Nathu was the beneficiary of the will. The Appellant filed a suit claiming possession of the property which was bequeathed in favour of Nathu, by the testatrix Gangabai. The suit was defended on the basis of the will, and it came to be dismissed, as the will was held to be duly proved. In appeal it was submitted that the dismissal of the suit was erroneous, because the will was not proved to have been executed in the manner in which it is required to be, under Section 63 of Indian Succession Act. The High Court was of the view that if at all there was any deficiency, it was because of not examining more than one witness, though it was not convinced that the testatrix Gangabai had not executed the will. The Court remanded the matter for additional evidence under its powers under Order 41 Rule 27 Code of Civil Procedure. The observations of Chagla C.J., sitting in the Division Bench with Gajendragadkar J. (as he then was in Bombay High Court) in paragraph 15 of the judgment are relevant for our purpose: (AIR pp. 270-71) “15...We are dealing with the case of a will and we must approach the problem as a Court of Conscience. It is for us to be satisfied whether the document put forward is the last will and testament of Gangabai. If we find that the wishes of the testatrix are likely to be defeated or thwarted merely by reason of want of some technicality, we as a Court of Conscience would not permit such a thing to happen. We have not heard Mr. Dharap on the other point; but assuming that Gangabai had a sound and disposing mind and that she wanted to dispose of her property as she in fact has done, the mere fact that the propounders of the will were negligent - and grossly negligent- in not complying with the requirements of Section 63 and proving the will as they ought to have should not deter us from calling for the necessary evidence in order to satisfy ourselves whether the will was duly executed or not.” (Emphasis supplied)

28. As stated by this Court also in H. Venkatachala Iyengar and Jaswant Kaur,while arriving at the finding as to whether the will was duly executed, the Court must satisfy its conscience having regard to the totality of circumstances. The Court's role in matters concerning the wills is limited to examining whether the instrument propounded as the last will of the deceased is or is not that by the testator, and whether it is the product of the free and sound disposing mind [as observed by this Court in para77 of Gurdev Kaur v. Kaki. In the present matter, there is no dispute about these factors.

29. The issue raised in the present matter was with respect to the due execution of the will, and what we find is that the same was decided by the trial Court, as well as by the first appellate Court on the basis of an erroneous interpretation of the evidence on record regarding the circumstances attendant to the execution of the will. The property mentioned in the will is admittedly ancestral property of Smt. Nagammanni. She had to face a litigation, initiated by her husband, to retain her title and possession over this property. Besides, she could get the amounts for her maintenance from her husband only after a Court battle, and thereafter also she had to enter into a correspondence with the Appellant to get those amounts from time to time. The Appellant is her stepson whereas the Respondents are sons of her cousin. She would definitely desire that her ancestral property protected by her in a litigation with her husband does not go to a stepson, but would rather go to the relatives on her side. We cannot ignore this context while examining the validity of the will.

30. In view of the above factual and legal position, we do hold that the Plaintiffs/Respondents had proved that Smt. Nagammanni had duly executed a will on 24.10.1943 in favour of the Plaintiffs, and bequeathed the suit properties to them. She got the will registered on the very next day. The finding of the Trial Court as well as the First Appellate Court on issue No. 2 was clearly erroneous. The learned Judge of the High Court was right in holding that the findings of the Trial and Appellate Court, though concurrent, were bad in law and perverse and contrary to the evidence on record. The second appeal was, therefore, rightly allowed by him. Accordingly, we dismiss the present civil appeal. The Suit No. 32 of 1975 filed by the Respondents in the Court of Principal Civil Judge at Mandya in Karnataka will stand decreed. They are hereby granted a declaration of their title to the suit property, and for a permanent injunction restraining the Defendants from interfering with their possession thereof. In case their possession has been in any way disturbed, they will be entitled to recover the possession of the concerned property, with future mesne profits. In the facts of the present case, however, we do not order any costs.” (emphasis added)

8. A reference to the aforesaid paras show that technicalities must not come as an insurmountable obstruction to defeat a litigant and once an attesting witness is examined, and his statement if read holistically shows proof of the execution and attestation of the Will then the Will should be held to be proved. The observations in M.B. Ramesh’s case (supra) apply a fortiori in the facts of the present case where the contesting respondents did not lead any evidence whatsoever.

9. I have already reproduced the statement of the attesting witness PW-2 above and this shows that the attesting witness has deposed that the testator had signed and thumb marked his Will and that attesting witness was present when the testator signed the Will and that the attesting witness PW-2 has further deposed that he also signed the Will as an attesting witness. In my opinion, the expression also is extremely relevant because this shows that another attesting witness also had signed the Will. I would not like to read the deposition of PW-2 so technically so as to deprive the grant of probate to the appellant/petitioner once otherwise all steps have been taken by the appellant/petitioner to prove the subject Will, and which is to be taken with the fact as already stated above that respondents have led no evidence i.e that they have no courage of conviction to step into the witness box by deposing on oath and being subjected to the test of cross-examination. It is also extremely relevant that there is nil crossexamination of PW-2.

10. In this view of the matter I hold that the appellant/petitioner has been successful in proving due execution and attestation of the Will dated 17.8.1999 of late Sh. Amar Singh. Appellant/petitioner hence will be granted probate of the Will Ex.PW2/1 dated 17.8.1999. Since the appellant/petitioner is the sole beneficiary of the Will, petitioner is granted a probate without filing the administration cum surety bond. Petition is accordingly allowed, leaving the parties to bear their own costs. JULY 05, 2017/ib VALMIKI J. MEHTA, J

Ajay Kumar v. The State and Ors.

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