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Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.1071 OF 2006
M.B. Ramesh (D) By LRS. …Appellants
Versus
K.M. Veeraje Urs (D) By LRS. & Ors. …Respondents
J U D G E M E N T
H.L. Gokhale J.
This Civil Appeal raises the question as to
whether
the will of one Smt. Nagammanni was validly executed, and
whether the same was duly proved by the respondent no.1
and another (original plaintiffs).
There is one more connected
issue raised in this appeal as to
whether a learned Judge of
the High Court of Karnataka was right in interfering in Second
Appeal, into the concurrent findings of the Trial Court and the
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Lower Appellate Court in exercise of High Court’s powers
under Section 100 of Code of Civil Procedure.
Facts leading to this Civil Appeal are as follows:-
2. The respondent no.1 and another, the original
plaintiffs are the sons of a cousin of one Smt. Nagammanni
who died on 21.11.1970. It is claimed by them that she left
behind a will executed way back on 24.10.1943, and
registered with the Sub-Registrar at Mysore, on 25.10.1943.
The original plaintiffs claimed that through the said will she
has bequeathed her property in their favour. The property
referred in the will is her ancestral property. The property of
late Smt. Nagammanni consisted of 11 parcels of dry land
situated in village Mallinathpuram, and 2 parcels of wet land
situated in village Kaggalli, both in taluk Mallavalli in district
Mandya, State of Karnatka. Out of these 11 parcels of dry
land those at Sl. Nos.2, 5 and 10 (from the list referred in the
plaint) were not covered in the will.
3. It was the case of the original plaintiffs that they
were in possession of these parcels of land, and their
possession was sought to be disturbed by the appellant herein
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(original defendant no.1 and others). Smt. Nagammanni is
the widow of one C. Basavaraje Urs, whereas the appellant is
the son of this C. Basavaraje Urs from his second wife. After
the death of Smt. Nagammanni, the plaintiffs, as well as the
defendants, applied for entering their names in the revenue
records as the owners of the concerned lands. The Mutation
Registrar however passed an order on 29.3.1971, in favour of
the defendants. The plaintiffs preferred an appeal against the
same to the Assistant Commissioner Mandya. However, when
they found that taking advantage of the said order the
defendant No 1 was trying to disturb their possession over the
suit properties, they were required to file a suit, on the basis
of the will, which they filed in the Court of Principal Civil Judge
at Mandya, and which was numbered as Suit No.32 of 1975.
They prayed for a declaration of their title to the suit property,
and for a permanent injunction restraining the defendants
from interfering with their possession thereof. Alternatively,
they prayed that in case it is held that they were not in
possession, a decree be granted for recovery of possession of
the property with future mesne profits.
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4. The suit was contested by the defendants, the
appellant herein, by contending that Smt. Nagammanni was
not the owner of the suit property, and in any case the will
relied upon by the respondents was not a valid one. It was
additionally submitted that the relations of Smt. Nagammanni
and the appellant were cordial, and the claimed will must
have been revoked, which revocation was being suppressed
by the respondents.
5. The learned trial judge raised in all ten issues. The
first out of these issues was whether the plaintiffs proved that
the suit property rightly belonged to Smt. Nagammanni, and
the learned Judge answered it in the affirmative. This finding
has not been disturbed by the fist appellate court, nor
seriously contested in the present Civil Appeal also. It is the
second issue framed by the trial judge which is the crucial
one, namely, whether the plaintiffs prove that Smt.
Nagammanni executed a registered will dated 24.10.1943 in
favour of the plaintiffs, and bequeathed the suit properties to
them.
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6. The plaintiff no.1 (PW-1) examined himself in
support of his case. He examined three more witnesses in
support, out of whom the second witness P. Basavaraje Urs
(PW-2) is the most relevant one. The defendants examined
three witnesses though nothing much turns on their evidence.
Documentary evidence was also produced by both the
parties, which has been considered by the courts below. The
respondent no.1/plaintiff identified the signatures made by
Smt. Nagammanni at two different places on the will (exhibit
P-3). Those signatures were marked as P-3 (a) and P-3(d).
While cross-examining him, the appellant produced two inland
letters written by Smt. Nagammanni to claim that their
relations had become cordial, but it must also be noted that
therein she had claimed her maintenance amount from the
appellant.
The respondent no.1 identified the signatures of
Smt. Nagammanni on those two letters, and they were
marked as Exhibits D4 and D5.
Theses signatures were clearly
comparable with her signatures on the will.
This was
accepted by the learned trial judge by observing that “on a
comparison of the signatures I find there is some force in this
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contention. The signatures tally”. This finding of the trial
judge is neither disturbed by the first appellate court nor by
the High Court.
7. The next witness on behalf of the respondent
no.1/plaintiff was one P. Basavaraje Urs (PW-2). He was
working as a Patel (Village Officer) at village Mallinathpuram,
in district Mandya, at the relevant time. He is an
attesting witness to the will. He produced land revenue
receipts containing his signatures, which were marked as
Exhibits P7 to P14 and P19. He proved his own signature on
the will by comparing it with his signatures on these Exhibits
P7 to P14 and P19. He stated in his cross-examination that,
apart from him, two other persons were attesting witnesses,
namely, M. Mallaraje Urs and Sampat Iyanger. However, by
the time his evidence was being recorded in November 1978,
both of them had passed away. He stated that he could
identify the hand writing and signature of M. Mallaraje Urs.
The signature of M. Mallaraje Urs on the will was marked as
Exhibit P3 (h). He also identified the signatures of Smt.
Nagammanni on the will i.e. P3 (a) and P3 (d). He stated that
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she signed the will in his presence and he also signed the
same in her presence. This part of the evidence of PW1 and
PW-2 has remained undisturbed. Thus, it can be safely said
that Smt. Nagammanni has executed the will (Exhibit P3)
which also bears the signatures of PW-2 P. Basavaraje Urs,
and one M. Mallaraje Urs.
8. The appellants tried to dispute the validity of the
will by drawing attention of the Court to various
circumstances. They disputed the presence of P. Basavaraje
Urs at the time of signing of the will by asking him questions
as to when did he come down to Mysore on that day from
Mallinathpuram, and what did he do on that date. The
learned trial judge, as well as the judge of the first appellate
court, has been impressed by some of the discrepancies in
this behalf appearing in his statement, and which were
highlighted by the appellant. The fact, however, remains that
PW-2 was giving his deposition some 35 years subsequent to
the execution of the will, and therefore not much credence
can be given to such discrepancies in his evidence. It was
also submitted on behalf of the appellant that it was not clear
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as to how and when the will was discovered by the
respondents/plaintiffs herein. Further, much emphasis was
laid on the fact that when the will was made by Smt.
Nagammanni, she was just about 40 years of age, and still
described herself in the will as old and infirm. It was also
contended that it was surprising that though the will was
made some 35 years ago, the respondents/plaintiffs did not
know anything about it until the death of Smt. Nagammanni.
As far as the writing of the will is concerned, certain doubts
were raised by pointing out that the writing was not so very
continuous, and the signatures thereon appeared to have
been adjusted. The evidence of PW-2 was also sought to be
assailed by contending that he was an interested witness. It
was pointed out, for that purpose, that in an earlier suit,
arising out of a mortgage of a property of Smt. Nagammanni,
he had feigned ignorance about the place where the will was
written or the persons who were present at that time.
9. As far as this objection is concerned, it must be
stated and cannot be denied that in the earlier suit, PW2 had
very much deposed that he was an attesting witness to the
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will. Similarly, about Smt. Nagammani describing herself as an
old person, it must be noted that what she had stated was
that she was getting old. Such a statement by a person will
always depend upon the perception of the person concerned
about the condition of his or her health. It appears that, in
view of her strained relations with her husband, she wanted
her property to be protected, and wanted to make a provision
that it should devolve on her relatives. It is another matter
that she lived long, thereafter. Similarly, there is no substance
in the plea of the defendant No 1 that his relations with Smt.
Nagammani had become cordial and she must have revoked
the will. If that was so, he would have surely produced such a
document of revocation. Similarly, no issue can be made out
of the production and reliance on the will, some 35 years
subsequent to its execution. There is no dispute about Smt.
Nagammani’s signature on the will, and her wishes are clear.
It is only when the properties bequeathed under the will had
to be protected, that the will was required to be produced and
relied upon. A will is required to be acted upon, only after the
testator passes away, and in the instant case immediately
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when the occasion arose, the will was produced and relied
upon. In the circumstances, we do not find much force in any
of these objections.
10. As against these discrepancies in the evidence of
PW-2, it was emphasized on behalf of the respondent
no.1/plaintiff that C. Basavaraje Urs, the husband of Smt.
Nagammanni had earlier filed a suit against her, claiming
these very properties as his own properties and that suit
came to be dismissed, which finding was confirmed in appeal.
It was also pointed out that the appellant was the son of C.
Basavaraje Urs from his second wife, and was required to pay
maintenance to Smt. Nagammanni, as required by a Court
order. It was also submitted by the plaintiffs that the will was
a document which was more than 30 years old, and under
Section 90 of Evidence Act, the Court is expected to presume
that the signature in every part of the document is in the
hand writing of the person concerned, and that the document
was duly executed.
11. The trial court accepted the submissions on behalf
of the appellant herein, and held that the plaintiffs had failed
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to prove the will since it had not come in the evidence of PW-2
that Smt. Nagammanni had executed the will in the presence
of the second witness M. Mallaraje Urs, or that this M.
Mallaraje Urs had also signed the will in her presence. Thus,
the requirement of Section 63 (c) of the Indian Succession
Act, 1925 (‘Succession Act’ for short) was not fulfilled viz. that
two or more witnesses have to see the testator sign or affix
his mark to the will, and each of the witnesses have also to
sign the will in the presence of the testator. The Court,
therefore, decided issue no.2 against the plaintiffs and
dismissed the suit. The first appellate Court also took the
same view in Regular Appeal No. 30 of 1989, and dismissed
the appeal filed by the respondents herein.
12. The respondent/plaintiff thereafter filed a second
appeal bearing R.S.A No. 546 of 1996, wherein, a learned
Single Judge of the High Court framed the question of law in
the following words:-
“Whether the concurrent findings of the
Appellate Court that the plaintiff have not proved
the will is bad in law and the finding in that regard
is perverse and contrary to the evidence on
record?”
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The learned Single Judge decided the said question of law in
favour of the respondents-original plaintiffs by his impugned
judgment and order dated 23.1.2004, which has led to the
present appeal by special leave. When the special leave
petition came up for consideration on 11.10.2004, this court
issued notice and directed that the status-quo as then
obtaining be maintained. Leave to appeal was granted
thereafter on 6.2.2006. We may note that an attempt was
made to settle the dispute by referring it to mediation, but
that has not succeeded.
Consideration of the submissions of the rival
parties:
13. The first submission on behalf of the appellant has
been that the learned judge of the high Court has erred by
framing the question of law, in the manner in which he has. It
was submitted that when the trial court and the first appellate
court have given a concurrent finding about the invalidity of
the will, it was a finding of fact, and the High Court could not
have disturbed the finding of fact by framing a question of law
as to whether the finding was bad in law, and perverse or
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contrary to the evidence on record. Reliance was placed, in
this behalf, on the observations of this Court in Narayanan
Rajendran Vs. Lekshmy Sarojini reported in 2009 (5) SCC
264. That apart, it was submitted that in any case, the
findings of the Courts below could not in any way be
categorized as perverse, since they were not contrary to the
evidence on record.
14. We may, however, note in this behalf that as held
by a Constitution bench of this Court in Chunilal Mehta Vs.
Century Spinning and Manufacturing Company reported
in AIR 1962 SC 1314, it is well settled that the construction
of a document of title or of a document which is the
foundation of the rights of parties, necessarily raises a
question of law. That apart, as held by a bench of three
judges in Santosh Hazari Vs. Purushottam Tiwari
reported in 2001 (3) SCC 179, whether a particular question
is a substantial question of law or not, depends on the facts
and circumstances of each case. When the execution of the
will of Smt. Nagammanni and construction thereof was the
subject matter of consideration, the framing of the question of
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law cannot be faulted. Recently, in Union of India Vs.
Ibrahim Uddin reported in 2012 (8) SCC 148, this Court
referred to various previous judgments in this behalf and
clarified the legal position in the following words:-
“67. There is no prohibition to entertain a
second appeal even on question of fact, provided
the Court is satisfied that the findings of the courts
below were vitiated by non-consideration of
relevant evidence or by showing erroneous
approach to the matter and findings recorded in
the court below are perverse.”
15. At the same time we cannot accept the submission
on behalf of the respondents as well that merely because the
will was more than 30 years old, a presumption under Section
90 of the Indian Evidence Act, 1872 (‘Evidence Act’ for short)
ought to be drawn that the document has been duly executed
and attested by the persons by whom it purports to have
been executed and attested. As held by this Court in
Bharpur Singh Vs. Shamsher Singh reported in 2009 (3)
SCC 687, a presumption regarding documents 30 years old
does not apply to a will. A will has to be proved in terms of
Section 63 (c) of the Succession Act read with Section 68 of
the Evidence Act.
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16. 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 S 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 Vs. Narayan
Namdeo Kadam reported in 2003 (2) SCC 91 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
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and available.
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) .....
(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
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"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."
17. 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
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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
R. Venkatachala Iyengar Vs. B N. Thimmajamma
reported in AIR 1959 SC 443, 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.
18. The propositions laid down in Venkatachala
Iyengar (supra) have been followed and explained in
another judgment of a bench of three Judges in Smt. Jaswant
Kaur Vs. Smt Amrit Kaur, reported in AIR 1977 SC 74,
wherein the law has been crystallized by Y.V. Chandrachud J
(as he then was), into the following propositions:-
“10. There is a long line of decisions bearing
on the nature and standard of evidence required
to prove a will. Those decisions have been
reviewed in an elaborate judgment of this Court in
R. Venkatachala Iyengar v. B.N. Thirnmajamma
and Ors. [1959] Su. 1 S.C.R. 426. The Court,
speaking through Gajendragadkar J., laid down in
that case the following propositions :-
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1. Stated generally, a will has to be proved like
any other document, the test to be applied
being the usual test of the satisfaction of the
prudent mind in such matters. As in the case of
proof of other documents, so in the case of
proof of wills, one cannot insist on proof with
mathematical certainty.
2. Since Section 63 of the Succession Act
requires a will to be attested, it cannot be used
as evidence until, as required by Section 63 of
the Evidence Act, 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.
3. Unlike other documents, the will speaks from
the death of the testator and therefore the
maker of the will is never available for deposing
as to the circumstances in which the will came
to be executed. This aspect introduces an
element of solemnity in the decision of the
question whether the document propounded is
proved to be the last will and testament of the
testator. Normally, the onus which lies on the
propounder can be taken to be discharged on
proof of the essential facts which go into the
making of the will.
4. Cases in which the execution of the will is
surrounded by suspicious circumstances stand
on a different footing. A shaky signature, a
feeble mind, an unfair and unjust disposition of
property, the propounder himself taking a
leading part in the making of the will under
which he receives a substantial benefit and
such other circumstances raise suspicion about
the execution of the will. That suspicion 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
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and disposing state of mind and memory at the
time when the will was made, or that those like
the wife and children of the testator who would
normally receive their due share in his estate
were disinherited because the testator might
have had his own reasons for excluding them.
The presence of suspicious circumstances
makes the initial onus heavier and therefore, in
cases where the circumstances attendant upon
the execution of the will excite the suspicion of
the court, the propounder must remove all
legitimate suspicions before the document can
be accepted as the last will of the testator.
5. It is in connection with wills, the execution of
which is surrounded by suspicious circumstance
that the test of satisfaction of the judicial
conscience has been evolved. That test
emphasises that in determining the question as
to whether an instrument produced before the
court is the last will of the testator, the court is
called upon to decide a solemn question and by
reason of suspicious circumstances the court
has to be satisfied fully that the will has been
validly executed by the testator.
6. If a caveator alleges fraud, undue influence,
coercion etc. in regard to the execution of the
will, such pleas have to be proved by him, but
even in the absence of such pleas, the very
circumstances surrounding the execution of the
will may raise a doubt as to whether the
testator was acting of his own free will. And
then it is a part of the initial onus of the
propounder to remove all reasonable doubts in
the matter.”
19. In Janki Narayan Bhoir (supra), this Court has
explained the inter-relation between Section 63 (c) of the
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Succession Act, 1925 and Section 68 and 71 of the Evidence
Act, 1872. In that matter only one attesting witness to the
will was examined to prove the will, but he had not stated in
his deposition that the other attesting witness had attested
the will in his presence. The other attesting witness, though
alive and available, was not examined. The Court noted the
relevant facts in para 5 of the judgment (as reported in SCC)
as follows:-
“Prabhakar Sinkar, the attesting witness, in
his deposition stated that he did not know whether
the other attesting witness Ramkrishna Wagle was
present in the house of the respondent at the time
of execution of the will. He also stated that he did
not remember as to whether himself and Raikar
were present when he put his signature. He did
not see the witness Wagle at that time; he did not
identify the person who had put the thumb
impression on the will. The scribe Raikar in his
evidence stated that he wrote the will and he also
stated that he signed on the will deed as a scribe.
He further stated that the attesting witnesses,
namely, Wagle and Prabhakar Sinkar are alive.”
On this background, the Court held at the end of the para 6 of
the judgment that “it is true that although a will is required to
be attested by two witnesses it could be proved by examining
one of the attesting witnesses as per Section 68 of the Indian
21Page 22
Evidence Act”, but it also noted in paragraph 9 that “that one
of the requirements of due execution of a will is its attestation
by two or more witnesses, which is mandatory.” In
paragraphs 11 and 12 of the judgment, the Court noted the
relevance of Section 71 of the Evidence Act by stating that
“aid of Section 71 can be taken only when the attesting
witnesses who have been called, deny or fail to recollect the
execution of the document to prove it by other evidence.”
“Section 71 has no application when the one attesting
witness, who alone has been summoned, has failed to prove
the execution of the will and the other attesting witness
though available has not been examined.” In the facts of the
case, therefore, the Court held that attestation of the will as
required by Section 63 of the Succession Act was not
established which was equally necessary.
20. 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
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Narayanmurti had written Exhibit 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 PW2 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 Vs. A.Y. Derderian reported
in [AIR 1961 Calcutta 359],….”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 PW2 on
24.10.1943 has been proved, that PW2 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
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facts on record? In our view, in the facts of the present case,
the omission on the part of PW2 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.
21. 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
PW2 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
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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.
22. 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
Vs. Kamkhyalal Goenka reported in [AIR 1958 Assam 56],
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
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the mortgage had been duly proved. While arriving at that
inference, the Division Bench observed:-
“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…….”
26Page 27
23. 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 Vs. Nathu Vithal reported in [AIR 1949
Bombay 266]. 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 CPC. The observations of Chagla C.J., sitting in the
Division Bench with Gajendragadkar J. (as he then was in
27Page 28
Bombay High Court) in paragraph 15 of the judgment are
relevant for our purpose:-
“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 S.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)
24. As stated by this Court also in R. Venkatachala
Iyengar and Smt. Jaswant Kaur (both supra), 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
28Page 29
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
paragraph 77 of Gurdev Kaur Vs. Kaki reported in 2006 (1)
SCC 546].
In the present matter, there is no dispute about
these factors.
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
29Page 30
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.
25. 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
30Page 31
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.
………..
………………………..J.
[ H.L. Gokhale ]
…………………………………..J.
[ Ranjana Prakash Desai ]
New Delhi
Dated : May 03, 2013
31
