1 F.A.No.1154 of 2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD FIRST APPEAL NO.1154 OF 2011 Gurmohan Sing Jaswinder Sing Saluja, Age 27 years, Occu.Business, R/o Flat No.D-01/02, Samyak Arcade, Cannought Place, Town Centre, CIDCO, Aurangabad ..APPELLANT VERSUS 1. The State of Maharashtra, through Collector, Aurangabad 2. Charanjeet Kaur Gurmukhsingh Gambhir, Age 70 years, Occup.Housewife, R/o Flat No.11, Vishnu Nagar, Besides Sindhi Colony, Aurangabad 3. Harbans Kaur Gurbhej Singh Gurditta, Age 65 years, Occu.Housewife, R/o “Prem Villa”, Plot No.RL-01, Bajaj Nagar, Waluj MIDC, Aurangabad 4. Jaswinder Singh Saluja (died) through legal heirs: 4-A) Devinder Kaur Jaswinder Singh Saluja, Age 47 years, Occup.Business, R/o Flat No.D-01/02, Samyak Arcade, Cannought Place, Town Centre, CIDCO, Aurangabad 4-B) Deepinder Singh Jaswinder Singh Saluja, Age 24 years, Occup, Business, R/o Flat No.D-01/02, Samyak Arcade, Cannought Place, Town Centre, CIDCO, Aurangabad 4-C) Hardeep Singh Jaswinder Singh Saluja, Age 24 years, Occup.Business, R/o Flat No.D-01/02, Samyak Arcade, Cannought Place, Town Centre, CIDCO, Aurangabad 2 F.A.No.1154 of 2011 5. Jagmeet Singh Rawel Singh Saluja, Age 50 years, Occup. Business, R/o Flat No.D-01/02, Samyak Arcade, Cannought Place, Town Centre, CIDCO, Aurangabad ..RESPONDENTS Mr M.V.Deshpande, Advocate for appellant Mr P.P.More, A.G.P. for respondent No.1 Mr R.L.Chhabda, Advocate for respondents 3 and 5 Respondents 2 and 4 served CORAM : MRS MRIDULA BHATKAR, J. DATE : 11th October, 2011 ORAL JUDGMENT 1. Admit. 2. This first appeal is preferred by the appellant, who is the original plaintiff challenging the judgment and order dated 19.3.2011 passed by 5th Joint Civil Judge, Senior Division, Aurangabad in MARJI No.961 of 2010. Plaintiff has filed application under Section 276 of the Indian Succession Act, 1925 for grant of probate. Appellant/original plaintiff is a grandson of deceased Rawel Singh, whose Will is under challenge. Rawel Singh made his Will and it was attested on 22.8.2010 in respect of the property City Survey No.13162 at Aurangabad and in respect of movable assets including 12 Bore DBBI gun. Said application is opposed by the respondents, i.e. daughters of deceased Rawel Singh and son of deceased Rawel Singh. It is contended in the appeal that appellant is a grandson of Rawel Singh, who was taking his care. Appellant has tendered necessary evidence to prove the Will. However, it was not properly appreciated by the Court. 3 F.A.No.1154 of 2011 3. Learned Counsel appearing for the appellant submitted that the reasons given by the trial Court while rejecting the application are not sound and the finding is erroneous. Learned Counsel argued that in view of Section 63 of the Indian Succession Act, 1925 though the Will is attested by two or more witnesses, it shall not be necessary that more than one witness shall be present at the same time and no particular form of attestation shall be necessary. He argued that applicant has examined himself and one attesting witness Mr Sharma, who has stepped in the box and has deposed about the execution of the Will by Rawel Singh. Learned Counsel submitted that Rawel Singh though lived upto 92 years, he was mentally and physically healthy, sound and he was capable of executing Will in the month of August 2010. Learned Counsel further submitted that the trial Court ought to have appreciated that the examining one attesting witness is sufficient to prove the execution of the Will in view of Section 68 of the Indian Evidence Act, 1872. Learned Counsel pointed out that the Will was executed on stamp, which was purchased in the name of Rawel Singh and in the evidence Mr Sharma has deposed that hand written draft of the Will was handed over by Rawel Singh to him to get it typed on the stamp paper and accordingly, he got it typed. Learned Counsel submitted that the trial Court has raised unnecessary doubts about the language used in the Will and the format of the Will. He submitted that draft of the Will could have been prepared by obtaining legal opinion or legal assistance to prepare the Will. He argued that there 4 F.A.No.1154 of 2011 was no reason for the trial Court to take doubt about the genuineness of the Will and the order passed by the trial Court rejecting the application is void and deserves to be set aside. 4. Learned Counsel for the appellant while meeting the arguments about the appreciation of evidence of P.W.2, submitted that though P.W.2 has not deposed about the presence or attestation of the Will by the other witness Mrs Agya Kaur Chhabda in examination-in-chief. In the cross-examination, the respondents have brought the fact that she was present at the time of execution and she has signed the said Will. 5. He submitted that when respondents have brought this in the cross-examination it is not necessary for the appellant/original applicant to prove the fact by bringing the other witnesses in the box. Alternatively, he argued that this being a valuable right matter be remanded. 6. Per contra, learned Counsel appearing for respondents argued that the Will is doubtful on number of grounds. He submitted that the requirement of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act are not complied with. He submitted that it is necessary for the attesting witness to state that the other witness was present or he put his signature. However, in the absence of such evidence execution of the Will is not proved. Learned Counsel drew the attention of this Court to the original Will, which was produced 5 F.A.No.1154 of 2011 before the trial Court, which is at Exh.26. He pointed out that all the signatures appearing are signatures of testator handed over the pen and the stamp paper to the another witness Mrs Agya Kaur Chhabda, who put her signature with that pen and handed over that stamp paper to him. However, though he put the signature on the stamp paper, he did not use the same pen. Learned Counsel pointed out that there are other prevailing factors i.e. the property is not bequeathed to anybody, even to wife of the testator, but it is only bequeathed to the applicant. He pointed out that the admissions given by Mr Sharma. In the cross- examination, Mr Sharma has admitted that though he claimed that he knew Mr Rawel Singh since 1974, he did not know name of the wife of deceased Rawel Singh, and sons and the daughters of deceased Rawel Singh. It shows that Mr Sharma was not at all acquainted with the testator and it is highly probable on the part of testator Rawel Singh to rely on third person and ask him to be a witness to the Will. 7. Following point arises for determination : Whether appellant proved that the order of rejecting grant of probate passed by the trial Court dated 19.3.2011 is void and illegal and is required to be set aside ? Ans : No. 6 F.A.No.1154 of 2011 8. Testator made Will on 22.8.2010 and he passed away after 17 to 18 days after he made the Will. His original Will was produced before the trial Court and the same is filed in the form of record and proceedings. The Will is filed on the stamp paper. Undoubtedly, the Will is prepared after obtaining the legal opinion. The language and the formats used in the Will discloses that the person, who made the Will is well-versed in legal language. It is signed by the testator and by two witnesses. Will is a solemn document and is required to be proved strictly by following the procedure of law as laid down in Section 68 of the Evidence Act. It is settled position that under Section 63 of the Succession Act, two witnesses are required to attest the Will. The Will discloses that two witnesses have put their signatures and have attested the Will. A Will is to be proved by observing all the steps laid down under the Evidence Act. It is not necessary for both the witnesses to enter the witness box and depose about the attestation. One of the witnesses can prove attestation and execution of the Will. However, it is necessary for him to depose specifically and mention that the other witness has also signed the Will and he was present and he has signed the Will. In the present case my attention is drawn to the evidence of attesting witness P.W.2 Mr Sharma. Mr Sharma, in examination-in-chief has deposed that he and the testator have signed the Will. He has stated that the Will was signed by Rawel Singh and it was signed by him as a witness to the said Will. This does not show that at the time, when testator signed the Will whether he was present. Moreover, witness is totally silent about the attestation by 7 F.A.No.1154 of 2011 the second witness, which is legal requirement. On this point the trial Court has rightly marshalled the evidence and has rightly placed reliance on Janaki Narayan Bhoir Vs. Narayan Namdeo Kadam, reported in (2003) 2 Supreme Court Cases 91, wherein it is held that : “10...The one attesting witness examined, in his evidence has to satisfy the attestation of a will by him and the other attesting witness in order to prove there was due execution of the will. If the attesting witness examined besides his attestation does not, in his evidence, satisfy the requirements of attestation of the will by other witness also it falls short of attestation of will at least by two witnesses for the simple reason that the execution of the will does not merely mean the signing of it by the testator but it means fulfilling and proof of all the formalities required under Section 63 of the Succession Act. Where one attesting witness examined to prove the will under Section 68 of the Evidence Act fails to prove the due execution of the will then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.” 8 F.A.No.1154 of 2011 Attestation of the Will is as per requirement of the sound proof. The learned Counsel argued that though the witness has not deposed about attestation of the Will by the other witness in the chief and if it is brought in the cross-examination, then he is discharged from the burden of proving the fact. These submissions cannot be accepted. Who applies for the probate has to prove the execution of the Will as laid down under the provisions of the Evidence Act. The initial burden never shifts while proving the Will. The question put in the cross- examination may have different direction and are put with the intention to bring some other contradictions therefore, those answers or the contradictions cannot be used to fill up the lacunae on the part of the applicant, who is supposed to discharge the burden of proving the execution. The witness was cross-examined on the point of putting signatures on the documents and at the time the answers given by the witness, on the contrary discloses inconsistency in his evidence and the physical fact in the document about the change in the colour of the ink used for the signatures of the testator and two witnesses. 9. The trial Court has dealt with number of aspects and considering the other probabilities i.e. age of the testator, the way Will is prepared, knowledge of the family members of Mr Sharma and is acquainted with the testator then disinheritance of his wife, use of English language. So also the format of the will. After considering all these probabilities he put a question mark whether that Will is genuine or not and, therefore, the leaned Trial Judge after properly assessing the evidence in a right 9 F.A.No.1154 of 2011 direction has rejected to grant probate in favour of the plaintiff. Order is based on sound reasoning and not perverse and which does not require any interference. Hence, appeal is dismissed. ( MRS MRIDULA BHATKAR, J.) (vvr/1154.11fa)