HiGHCQURTOFCHHATTJSGARHATBjLASPU^^ Singie Bench : Hoh'bie Shri DIIIp Raosaheb Deshmukh, J. \ Appeilant Piaintiff Respondents Defendants Second Appea! No.622 of2003 Kamal Narayan Saini, s/o Late Beni Ram Saini, r/o Kankali Para, Raipur, Tehsil & District Raipur, C.G. versus 1. Smt. Sushil Bai, wl/o Bhagela Saini. 2. Smt. Shanti Bai, wd/o Late Chotelal Saini, d/o Bhagela Saini. Both r/o In front of Shitla Mandir, Shitlapara, Raipur, C.G. 3. Punamchand Saini, s/o Late Dularchand Saini, r/o Kankalipara. Raipur, present address Shankar Nagar, Raipur, C.G. 4. Smt. Gulabkali wd/o Late Sugam Saini. 5. Rajesh Saini s/o Late Sugam Saini. No.4 and 5 r/o Kankalipara, Raipur, Tehsil & District Raipur, C.G. SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE Present : Shri A.K. Prasad, counsel for the appellant/plaintiff. Shri S.C.Verrinia, counsel for the respondente/defendants ORAL4UDGM6NT (Delivered on this 04th day of May, 2007) The appellanVplaintiff is aggrieved by the judgment and decree dated 18.092003 passed in Civil Appeal No. 22-A of 2002 by the 4th Additional District Judge, Raipur reversingttie judgment and decree dated ..frY".^ ';*' ^ ^ 17 - ^. l.^'-l'l^. 10.07.2002 passed in CMI Suit No. 17-A of 2001 by the 9th Civil Judge CIass-JI, Raipur. 2. The appellant/plaintiff instituted a Civil Suit No.17-A of 2001 before the 9th Civil Judge Class-11, Raipur for a declaration of a right to worship in the Shitla Mata Mandir, situated in Purana Basti, Raipur, on Uie basis of a registered Will executed by Poojari Ram Kishun on 02.07.1980. 3. The respondents/defendante resisted the suit while specificaily denying execution of Will by Ram Kishun. 4. For proving the execution ofthe registered will dated 02.07.1980 by Ram Kishun, the appellant/plaintiff examined the sole survivlng attesting witness Radheshyam Agrawat P.W.1 and also addyced the evidence of Dwarka, son of the deceased attesting witness Ghasiram to prove the signatures of Ram Kishun on the Will dated 02.07.1980. Itwas also urged before the trial Court that Poonamchand D.W.2 had, in his testimony paragraph 8, admitted the signature of Ram Kishun on the document Will Ex.P.1. 5. The learned triai Court decreed the suit jn favour of the plaintiff while holding that execution of fiie Will by Ram Kishun w&s proved in accordance with law on the following grounds: a) that the Will was a registered document and was therefore beyond susplcion; b) that signatures of the testator Ram Kishun on ttie Witl dated 02.07.1980 was not only proved by Dwarka P.W.2 ^r \ c) i.e. the son of the deceased attesting wtoess Ghasiram but also by the admission of Poonamchand D.W.2 in paragraph 8 ofthe testimony; and the testimony of Radheshyam Agrawal that Poojari Ram Kishun had asked him te> sign the document as an attestingwitness. V- 6. Aggrieved by the above mentioned judgment and decree, the defendants preferred Civil Appeal No. 22-A of 2002 before the 4th Additionat District Judge, Raipur, which recorded a finding that execution of the Will by Ram Kishun on 02.07.1980 vide Ex.P.1 as required by law was not established since the sole surviving attesting witness Radheshyam had admitted that testator Ram Kishun didnot sign in his presence on the Will. Regarding the testimony of Dwarka P.W.2 and the admission made by Poonamchand D.W.2, it was held that it would not satisty the requirement of law for proving the execution of the Will under Section 63 of the Indian Succession Act as aiso ^ of the Evidence Act. On these premises, theappeal was allowed. 7. Being aggrieved by the impugned judgment and decree passed in Civi! Appeal No. 22-Aof 2002, the appelianVplaintiff is before this Court. 8. The foliowing substantial question of law arises for determination in thisappeal: "Whether the finding of the lower appellate Court that executjon ofWill by Ram Kishun on 02.07.1980 videdocument Ex.P.1 was not proved, is sustainabfe under law? 9. Shri A. K. Prasad, learned counsel for the appellant/piaintiff placing reiiance on Ram Rattan (dead) by legal representatives v. BajrangLal iIBB ^iiiji ^ and others AIR 1978 SC 1393 urged that right to worship by turn is immoveable property and could be bequeathed by a Will. Reliance was placed on Meenakshiammal (dead) through LRs. and others vs. Chandrasekaran and another (2005) 1 SCC 280 in support of his contention that once it is estabiished that the Will Ex.P.1 dated 02.07.1980 bears the signatures of the testator i.e. Ram Kishun PoojaN, the onus of proving the suspicious circumstances, if any, surrounding the execution of the Will wouid shift to the defendant. Reiiance was placed on Chfnmoyee Saha v. Debendra Lal Saha AIR 1985 Cat 349, which was relied on by the Apex Court in the aforesaid judgment. Evidence of Radheshyam Agrawal, Dwarka and Poonamchand was read in extenso by the learned counsel for the appelSanVplaintiff during the course of arguments. 10. On the other hand, Shri S. C. Verma, learned counsel for the respondents/defendants contended that the appellant/plaintiff has miserably failed to prove execution of theW'ril, as required by Section 63 ofthe indian Succession Act and Section 68 ofthe Indian Evidence Act. It was argued that the mere fect of proving the signatures of the testator would not by itself prove the execution of the Wilt since for proving the execution of the Wili, it was necessary for the appellant/plaintiff not only to prove that the Will was signed by the testator but also to prove that at the time of execution of Wiil, he was in a sound and dlsposing stete of mind, that he understood the nature and effect of the disposltion and had put his signature out of his own free wili and in presence of the witness who attested it in his presence. Learned counsel contended that sinee the inltial burden which lay on the plaintiff had not been discharged in any manner, the first lower appellate Court was wholly justified in allowing the ^ appeal and recording a finding that execution of Will was not proved in accordance with law. Reliance was placed on BhagatRam snd another y. Suresh and others AIR 2004 SC 436, N. Kamafam (tSewcl) and another v. Ayyaswamy and another AIR 2001 SG 2802 and Jank! Narayan Bhoir v. Narayan Namdeo Kadam AIR2003 SC 761. 11. Having heard learned counsel for the parties, l have perused the record of both the Courts below with utmost circumspection. A Will is defined in Section 2 (h) ofthe Indian Succession Act, as under:- "2 (h): "Will" means the legal declaration ofthe intention of a testator with respect to his property whieh he desSres to be carried into effect after his death" J-^, Thus, Will is not the mere exeeution of a doGument but ftie (egal declaration of intention of the testator with respect to his property, which he desires to be carried into effect after his death. Such intention of the testator has, therefore, to be established by examining at teast one attesting witness who saw the testator execute the Will with such intention. 12. Section 63 of the Indian Succession Act, 1925 provides the mode of execution of the Wills reads as under: 63. Execution of unpriviieged Witls.—Every testator, not being a soldier employed ir. 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 foilQwing rules:- (a) The testetor shall sign or shall afRx his marlc to the Will, or it shall be signed by some other person in his presence and by his direction. (b) The signature or mark of the testetor, or the signature of the person signing for him, shall be so piaced that it shail appear that it was intended "^St^ 0 ^o 6 thereby to give effect to the writing as a Will. (c) The Will shaSI be attested by two or more witnesses, each of whom has seen ths testator sign or affix his mark to the Wiil or has seen some other person sign the Wiil, in the presence and by the direction of the testator. or has received from the testator a personai 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 wltness be present at the same time, and no particular forre of attestatjon shail be necessary. 13. Therefore, according to this provision, for the due execution of ttie Will, (i) the testator shail sign and affix his mark to the Will; (ii) signature and mark of the testator shaill be so placed that it shalt appear that it was intended thereby to give effect to the writing as a Will; Citi) the Will shall be attested by two or more witnesses; and (iv) each of the said witnesses must have seen the testator sign or affix his mark to the Will and each of them should have signed the Wi!l in the presence of the testator. 14. The attestation of the Wili as above is not an empty formalify. It means signing a document for the purpose of te^tilying to the sigTOture of the executant. The attesting witness should put his signature on the Will animo attestafKlL It may further be noted that according to section-63 of the Indian Succession Act. it is not necessary ttiat more than one witness be present at the same time and no particular form of attestation is necessary. 15. Section 68 of the Evidence Act reads as under: 68. Proof of execution of document requir^d by law to be attested.—ifa document is required by Saw to bs attested, it shail not be used as evidence untii one attesting witness at least has been called for the purpose of proving its L ^ ^. execution, if there be an attesting witness alive, and subject to the process ofthe Court and capable of giving evidence: Provided that it shalt not be necessary to call an attesting wltness in proof of the execution of any document, not being Wiil, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), uniess its execution by the person by whom it purports to have been executed is specifically denied. 16. Since Wiil is required by law to be attested, execution has to be proved in the manner laid down in Section 68 of the Indian Evidence Acst which requires that at least one attesting witness has to be examined for the purpose of proving execution of such a document. Therefore, if the attesting witness is alive, and is subject to the process of Court and is capable of giving evidence; yet Sf he is not examined, the Will cannot be used in evidence. 17. Thus, the combined reading of Section 68 of the Indian Evidlence Act, 1872 and Section 63 ofthe Indian Succession Act, 1925 would indicate that a Will to be valid should be attested by two or more witnesses in the manner provided therein and that the propounder thereof should examine at least one attesting witness to prove the Will. The att^ting witness should speak not only about ftie testator's signature or affixing his mark to the Will. but also that each of the wltnesses had signed the Will in the presence ofthe testator. 18. In H. Venkatachalfyengarv. BM Thimmajamma andl otffefs MR 1859 SC 443, it has been laid down that the party propounding a Will or otherwise making a ciaim under a Wiil has to discharge the burden to prove its execution in accordance with law. It has been observed that ynlike other ^ ^ \.•^.' 8 documents, the Willspeaks from the death ofthe testatorand so when it is propounded or produced before a Court, the testetor whe has already departed the world cannot say whether it is his will or not; and this aspect naturally introduces an element of solemnlty in the decision of the question as to whether the document propounded is proved to be the last wiit and testament of the departed testator. Th& propounder wovld be calted upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and dssposmg state of mind, that he understood the nature and efFect of the dispositions and put his signature to the document of his own free will. 19. In Giija Datt Singh v. Gangotri Datt Singh AIR 1986 SC 346, it has been laid down that in order to prove the due attestationofthe Witl, the propounder of the Will has to prove tiiat the two attesting wtnesses saw the testator sign the Will and they themselves signed the same in the presence of the testator. 20. In Shashf Kumar Baneiy'ee and others v. Subodff Kumar Banerjee since deased and aftw him his fegal representatfves and offters AIR 1964 SC529, it has been observed as below:- "The mode of proving a wili does not ordinarily differ from that of proving any other document except as to the special requiremerrt of attestation prescrib^d in ttie case of a Wili by S.63, SuccessionAct. The onus of proving thewill is on the propounder and in the absence of suspjcious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspidou& circumstances, the onus is on the propounder to explain them to the satisfaction of the court before the court accepte thewiil as genuine. Where the caveator alieges undue infiuence, fraud and coercion, the onus is on him to prove thesame. Even where there are no ^ 9 such pleas but the circumstances give rise to doubte, it is for the propounder to satisfy the conscience of the Court. The suspidous drcumstences may be as to the genuinenesa of the signature of the testator, the condition of the testator's mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant oircumstances or there might be other indications in the wilt to show that the testator's mind was not free. In such a case the court would naturally expect that all legitimate suspicion should be completety removed before the document is accepted as the iast Will of the testator." Simiiar proposition of law has been laid down in Smt Indu Bala Sose and others v. Manlndra Chanda Bose and another AIR 1982 SC 133. 21. In Bhagat Ram and anoffier v. Suresh and othef^ AIR 2004 SC 436, it was held by the Apex Court that the mere fact of registratton of a Will would not dispense with the need of proving the execution and attestation of the same, as required by law, to be proved in the manner as provided in Section 68 of the Indian Evidence Act. A plain reading of the proviso to Section 68 of the Indian Evidence Act aiso leaves no room for any doubt that iaw does not dispense with the requirement of calling Uie attesting th® witness, if alive, to prove the fact of execution of a Will, whieh has been registered in accordance with the provisions ofthe Indian Registration Act, 1908. The learned trial Court thus cleariy feil into error by assyming the genuinenessof the Witl merely on the basis of its being a registered document. 22. The document Ex.P.1 shows that it is signed by two attesting witnesses - Radheshyam Agravral and Ghasiram. Ghasiram since dead could not be examined and the remalning attesting witness was examinedl €^§1 W {,M 'b-: Ih 10 before the trial Court by the appeliant/plaintiff. Radheshyam Agrawal P.W.1 deposed in paragraph 2 that he could not identity the signatures of Ram Kishun on the Will Ex.P.1. He further admitted in paragraph 2 that the document was already in existence before he was call^l at the Regtstrar's Office and no opportunity was given to him to understand the contents of the documents. He also admitted in ctear and unambiguous words that the testator Ram Kishun did not sign the Will in his presence and his signatures had already been taken on the document before Iw was cailed to attest it In cross-examination, the testimony of this witness shows that the witness was called to the Sub-Registrar's Office merely to sign as an iattesting witness on some document and had absolutely no idea that Ram Kishun intended to execute a Will in favour of Kamal Narayan, the appellant/plaintiff. So far as the testimony of Dwarka P.W.2 i.e. the son of the deceased attesting witness— Ram Kishun is conoerned, h@ admitted in paragraph2 that he was not present at the time ofexecution of Will Ex.P.1. The admissionof Poonamchand D.W.2 in paragraph 1 of tjhe testimony about the signature of Ram Kishun on Will Ex.P.1 is also of no avail to the appellanVplaintiff because he was not present at the time ©fexecution of Will. In this view of the matter, there is absolutety no room for any doubt that attesting witness Radheshyam Agrawal did not see Ram Kishun signing the document Ex.P.1 i.e. the Will in his presence and had absolutely no idea that Ram Kishun intended to execute a Wili in favour of Kamal Narayan relating to bequeathing his right to worship at the Shitla IVSata Mandir, Raipur. 23. In N. Kamalam (dead) ancf another v. Ayyaswamy and another AIR 2001 SC 2802, it was held by the Apex Court that the mere fact that (^< 11 some witnesses had subscribed the signatures of ttie testator on the Will, w^uld not satisfy the requirement of iaw that the attesting witnesses shoutd prove the execution of the Will by the testator. it was held that the signature oftheattestingWitnesson a Will,which required attestation, is requirement of the statute, which cannot be equated with that of the scribe. In the case of CWnmoyee Saha v. Debendra Lal Saha (supra) which was relied on by the Apex Court in Meenakshiammal (dead) through LRs. and others vs» Chandrasekaran and another (supra), it was held if the propounder takes a prominent part in the execution of the will, which confers a substantial benefit on him, the propounder is required to remove the doubts by clear and satisfactory evidence. Once the propoyndter proves that the will was signed by the testator, that he was at the relevant time in a sound disposing state of mind, that he understood the nature and eifect of the disposition and put his signature out of his own free wiil, and that he signed it in presence of the witnesses who attested jt in his presence, the onus, which rests on the propounder, is discharged and when allegation of undue influence, fraud or coeroion is macte by the caveator, the onus is on the caveator to prove the same. 24. In Jankl Narayan Bhoir v. Narayan Namdeo Kadam AIR2003 SC 761, the Apex Court held as under: "9. It is thus clear that one of the reqyirements of due execution of Wiil is its attestation by two or more witnesses which is mandatory. 10. Section 68 of the Evidence Act speaks of as to how a document required by law to be attested can be proved. According to the said Section, a document required by law to be attested shall not be used as evidence until one attesting witness at least h&^ been calied for the purpose of proving its executaon, if there be an attesting witness alive and subject to 1 h'^ 12 the process of the Court and capable of giving an evidence. It flows from this Section thatsf there be an att^ting witness alive capabie of giving evidence and subject to the process of the Court, has to be necessarily examined before the document required by law to be attested oan be used in an evidence. On a combined reading of Sec<3on 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the WiSI has got to prove that the Will was duly and validly executed. That cannot be done by simply proving that the signature on the Will was that of the testator but must also prove that attestetions were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidenee Act does not say that both or al! the attesting witnesses must be examined. But at least one attestlng wltness has to be called for proving due execution of the Wiil as envisaged in Section 63. Although Section 63 of the Succession Act requires that a Wiii has to be attested at least by two witnesses, Section 68 of the Evidence Act provides that a document, which is requlred by lav^ to be attested, shai! not be used as evidence untii one attesting witness at ieast has been examined for the purpose of provlng its due executlon If such witness is alive and capabie of giving evidence.and suDject to the process of the Court. In a way, Section 68 gives a concession to those who want to prove and establish a Will in a Court of law by examining at ieast one attesting witness even though Wiil has to be attested at ieast by two witnesses mandatorily under Section 63 of the Succession Act. But what is significant and to be noted is that one attesting witness examined should be ina position to prove the execution ofa Will. To put in other words, ifone attesting witness can prove execution ofthe Will in terms of clause (c) of Section 63, viz., attestation by two attesting witnesses in the manner contemplated therein, the examination of other attesting witness can be dispensed with. The one attesting witness examined. in his evidence has to satisfy the attestation of a Will by him and the other atkesting witness in order to prove there was due execution of the Will. !f the attesting witness examined, besides his attestation does not, in hls evidence, satisfy the requlrements of attestation of the Will by other witness also it falls short of attestation of Wili at least by two witnesses for the simpte reason that the execution of the Will does not merely mean thesigning of it by the testator but it means fulftlling and proof of all the formalities required under Section 63 of the Succession Act. Where one aftesting witness examjned to prove the Wili under Section 68 of the Evidence Act fails to prove the due execution of the Wiil then the other available attestingwitness has to be called to supplement his evidence to make it compiete in ail respecte. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be defideney in, ^ (y 13 meeting the mandatory requirements of Section 68 of the Evidence Act" 25. Having thus considered the evidence led by the appellant/ptaintiff before the lower Court and the submissions of the teamed counsel for the parties, 1 am of the considered opinion that the appellant/plaintiff had miserably failed to prove the execution of Will by Ram Kishun in favour of Kamal Narayan vide Ex.P.1 on 02.07.1980 in accordance with law. In this view of the matter, substantial question of law framed by this Court is answered against the appellant/plaintiff and in fevour of the respondents/defendante since the finding recorded by the lower appellate Courtthat execution ofWillby Ram Kishun on 02.07.1980 vide Ex.P.1 was not proved, is impeccable. 26. The appeal being devoid of merit is dismissed. No order as to costs. Sd/- Dilip Raosaheb Deshmukh Judge