THE HON’BLE SRI JUSTICE B.SESHASAYANA REDDY SECOND APPEAL No.230 of 2010 Dated:19.03.2010 Between: Gorak Mallesh .. Petitioner And Smt. Vishwanth Yamuna Bai and others .. Respondents JUDGMENT: This Second Appeal is directed against the judgment dated 07.12.2009 passed in A.S.No.26 of 2007 on the file of the Principal District Judge at Nalgonda whereby and whereunder the learned District Judge dismissed the appeal filed under Section 96 read with Order 41 Rule 1 of the Code of Civil Procedure assailing the judgment and decree dated 09.04.2007 passed in O.S.No.42 of 2002. The background facts, in a nutshell, leading to file the Second Appeal by the third defendant in O.S.No.42 of 2002 are: V.Yamuna Bai - plaintiff, G.Saraswathi Bai and V.Ganga Bai - defendants 1 and 2, are daughters of Pumar Laxminarsaiah and Narsu Bai. The suit scheduled property belonged to Laxminarsaiah, who died on 28.09.1972. His wife Narsu Bai died on 17.11.1999. The plaintiff filed the suit for partition and separate possession of her 1/3rd share in the suit schedule property. The defendants 1 to 3 filed separate written statements. It is the case of the third defendant that Laxminarsaiah executed a Will bequeathing the suit schedule property in his favour and thereby he became the absolute owner of the suit schedule property after the death of the testator. The second defendant supported the claim of the plaintiff. The trial Court settled the following issues for trial: 1) Whether the plaintiff/defendant Nos.1 and 2 are entitled to claim 1/3rd share in the suit house? 2) Whether late Narsu Bai and defendant No.3 executed three registered simple mortgage deeds in respect of the suit house? 3) Whether the plaintiff, defendant Nos.1 to 3 are liable to redeem the mortgages creating on the suit house? 4) Whether the defendant No.3 has acquired right and title over the suit property by way of testamentary succession under the registered Will? 5) Whether the suit is barred by limitation? 6) Whether the court fee is paid in correct? 7) Whether this Court has pecuniary jurisdiction? 8) Whether the plaintiff is entitled to ask for partition and separate possession of the suit house to the extent of 1/3rd share? 9) To what relief? On behalf of the plaintiff, one witness was examined and three documents were marked as Exs.A1 to A3. On behalf of defendants Nos.1 to 3, eight witnesses as DWs.1 to 8 were examined and 20 documents were marked as Exs.B1 to B20. The trial Court, on appreciation of the evidence brought on record, came to the conclusion that the third defendant is not entitled to claim the property basing on the alleged Will dated 24.02.1972, since the original of which has not been produced. Accordingly, the trial Court by judgment dated 09.04.2007 granted preliminary decree declaring that the plaintiff is entitled to 1/3rd share in the suit schedule property. The third defendant alone assailed judgment and decree dated 09.04.2007 passed in O.S.No.42 of 2002 by filing the appeal being A.S.No.26 of 2007 on the file of the Principal District Judge, Nalgonda. Learned Principal District Judge, on re-appreciation of the evidence brought on record and on hearing the counsel appearing for the parties, framed the following issues: 1) Whether late Laxminarsaiah executed registered Will dated 24.02.1972 in favour of the third defendant? 2) Whether the plaintiff is entitled for partition and separate possession? The lower appellate Court having re-apprised the evidence brought on record, came to the conclusion that the appellant/defendant No.3 failed to prove the execution of the Will dated 24.02.1972 and thereby proceeded to dismiss the appeal by judgment dated 07.12.2009. Hence, the Second Appeal by the third defendant. Heard the learned counsel appearing for the appellant and perused the judgment impugned in the Second Appeal as well as the judgment of the trial Court. Learned counsel appearing for the appellant/defendant No.3 submits that the trial Court and the lower appellate Court have erroneously recorded the finding that the appellant/defendant No.3 failed to prove the Will propounded by him. Further submission has been made that the lower appellate Court given undue importance to the technicalities in appreciating the evidence with regard to proof of Will propounded by the appellant/defendant No.3. In support of his submissions, the reliance has been placed on the decisions of Supreme Court in Bhag Singh v Jaskirat Singh And Others[1], Naresh Charan Das Gupta v Paresh Charan Da Gupta And Another[2] and the decision of this Court in Baratam Seethamma And Others v Bora Chandravathi[3] and also the decision of the Madras High Court in Palaniammal And Others v Sundarambal And Others[4]. The issue involved in this Second Appeal is that whether there is any substantial question of law warranting admission of this Second Appeal? The appellant/defendant No.3 claimed the rights over the suit schedule property exclusively basing on the Ex.B1 Will, dated 24.02.1972. According to the appellant/defendant No.3, his father Laxminarsaiah executed the Will, dated 24.02.1972, in sound and disposing state of mind. The appellant/defendant No.3 was minor as on the date of execution of the alleged Will. Indeed, the alleged Will has not been placed on record. What is placed on record is only certified copy of the Will, which has been exhibited as Ex.B1. No proper explanation has been given by the appellant/defendant No.3 for non-production of the original Will. Indeed, the trial Court as well as lower appellant Court has taken note of this fact while appreciating the evidence of DW.6. DW.6 claims to be the attestor of the alleged Will. The evidence of DW.6 has been made available which finds place at page No.103 of the material papers. The trial Court as well as the lower appellate Court considered the evidence of DW.6 and proceeded to record a finding that the evidence is insufficient to prove the validity of the alleged Will said to have been executed by Laxminarsaiah on 24.02.1972. Indeed, lower appellate Court has referred the evidence of DW.6 in page No.19 of the judgment, which reads hereunder: “One Ravi Bhadra Reddy (DW.6) is examined by the third defendant to prove the execution of the Will. It is very interesting to consider the evidence of this witness for the purpose of deciding the truth or otherwise of the genuineness of Will. The evidence of this witness is that the deceased Laxminarsaiah executed a registered Will deed on 24.02.1972 in favour of the third defendant due to love and affection in respect of the schedule property and himself and M.Prakash attested the said Will as witnesses. This witness deposed that the Laxminarsaiah died 4 or 5 years after execution of Will deed and he was bed ridden for one year prior to his death. On looking the death certificate of Laxminarsaiah under Ex.B2 he died within 6 months from the date of execution of Will whereas this witness spoken that executant died 4 or 5 years after execution of the Will. This witness stated that Laxminarsaiah was bed ridden for one year prior to his death whereas the own daughter of Laxminarsaiah and the mother of the 3rd defendant spoken that he was paralytic for 3 years prior to his death. This witness stated that he do not know who scribed the original of Ex.B1 Will and he signed as only attestor along with other attestors. Except the evidence of this witness there is no other evidence on record to prove the Will. A Will is one of the documents, which is required to be attested. Just as Sections 59 and 123 of the Transfer of Property Act, require that the deeds of mortgage and gift must be attested. Section 63 of the Indian Succession Act mandates that a Will must be attested. Chapter 5 of the Evidence Act, which deals with the proof of the documentary evidence, maintains a distinction between proof of documents, which are required to be attested, on the one hand and though, which are not so required, on the other hand. Sections 68 to 71 deal with the proof of those documents, which are required to be attested under law. Section 68 directs that a document, which is required by law, to be attested, shall not be used in evidence, unless at least one attesting witness has been examined to prove its execution, proved such witness is alive, his subject to process of Court, and his capable of giving evidence. The above Section 68 carves out an exception, where the documents are registered. This exception, however, shall not be applied to Will, thereby connoting with the fact that a Will is registered, does not make any difference, when it comes to the question of the proof. Section 3 of the Transfer of Property Act speaks with regard to the attestation of a document. The only requirement is that the attestor must have been the executant of the document, sign or affix his mark on the document, or has seen some other person singing the instrument, in the presence and on the directions of the executant, and thereafter, must have signed the instrument, in the presence of the executant. It is also permissible in law for an attestor, to sign the document, though he has not seen the executant signing it, provided the latter acknowledges his signature or mark. In the present case this witness who is the attestor of the document did not speak in his evidence that the executant Laxminarsaiah signed on the Will in his presence and the other attestor signed on the will as attestor in his presence or the executant put his signature after acknowledging the contents of the Will in his presence. Therefore, this witness has to speak specifically that the executant as well as the other attestor have signed on the Will in his presence and thereafter h signed on the Will in question. In the present case there is no such evidence fulfilling the requirements of attestation as defined under Section 3 of the Transfer of Property Act. Therefore, the 3rd defendant has failed to establish that the executant Laxminarsaiah executed original of Ex.B1 while he was in sound and disposing state of mind bequeathing the property in his favour.” The sole witness to prove the alleged Will, dated 24.02.1972, is DW.6. The evidence of DW.6 is not consistent. There is no explanation by the appellant/defendant No.3 for non-production of original Will. So also DW.1, who is no other than the mother of appellant/defendant No.3, has not given proper explanation for not producing the original Will. When the original Will itself is not produced and there being no proper explanation for non-production of it, any amount of evidence may not be of much use to prove the contents therein. Once Ex.B1 Will allegedly propounded by defendant No.3 is discarded, the plaintiff is entitled to 1/3rd share in the suit schedule property. There is no substantial question of law warranting admission of the Second appeal. Accordingly, the Second Appeal is dismissed at the stage of admission. There shall be no order as to costs. _________________________ B. SESHASAYANA REDDY, J 19.03.2010 KH [1] (2010) 2 Supreme Court Cases 250 [2] AIR. 1955 SC 363 [3] 2003 (4) ALD 866 [4] AIR 2007 (NOC) 2460 (MAD.)