IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 136/2004 Reserved on:11.11.2010 Decided on:3.1. 2011 ________________________________________________ Ram Asra. …Appellant. Versus Swaran Kanta. … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes For the appellant : Mr. Bhupender Gupta, Sr. Advocate with Ms. Charu Gupta, Advocate. For the Respondents :Mr. Bimal Gupta, Advocate. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal has been directed against the judgment and decree dated 26.12.2003 passed by the learned District Judge, Sirmaur at Nahan in Civil Appeal No.71-CA/13 of 2002. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that the appellant-plaintiff 1 Whether reporters of the local papers may be allowed to see the judgment? Yes. 2 (hereinafter referred to as ‘plaintiff’ for convenience sake) filed a suit against the respondent-defendant (hereinafter referred to as ‘defendant’ for convenience sake) for declaration to the effect the he is the only legal heir to inherit the property of Smt. Kartari, after her death, being real brother of her husband Rikhi Ram and the will dated 28.12.1996 propounded by Smt. Swaran Kanta is false and fraudulent as the same was never executed by Smt. Kartari. According to the plaintiff, there was no occasion for Kartari to execute any will in favour of the defendant and Smt. Kartari only gifted one bigha of land to the defendant during her life time. 3. The suit was contested by the defendant. The defendant has alleged that Rikhi Ram and Ram Asra partitioned their land. Rikhi Ram was having no issue, hence, Smt. Kartari adopted the defendant. Smt. Swaran Kanta is the daughter of Smt. Roshni. Smt. Roshni Devi was the sister of Smt. Kartari Devi. The defendant was adopted in the year 1970. She was married with Bansi Lal, who was kept as Ghar Jamai by Smt. Kartari and she was residing with Kartari since 1970. Swaran Kanta looked after her and she executed the will Ex.DW-2/A in her favour on 28.12.1996. The plaintiff filed replication and reiterated the stand taken in the plaint. 3 4. Issues were framed by the trial court on 27.3.2001. The learned trial court dismissed the suit on 23.10.2002. Plaintiff preferred an appeal before the learned District Judge, Sirmaur at Nahan against the judgment and decree dated 23.10.2002. He dismissed the same on 26.12.2003. Hence, the present Regular Second Appeal. It was admitted on substantial questions of law No.1,4,5 and 6 formulated at pages 9 and 10 of the paper book. 5. Mr. Bhupender Gupta, Senior Advocate has strenuously argued that both the courts below have not taken into consideration the settled principles of law. According to him, the will in question dated 28.12.1996 Ex.DW-2/A is shrouded by suspicious circumstances. Kartari Devi has only gifted land measuring 1 bigha to the defendant as per gift deed Ex.P-6. He lastly contended that there is no mention of the earlier will executed on 28.12.1996 by Kartari Devi in the gift deed dated 3.3.2000. 6. Mr. Bimal Gupta Advocate has supported the judgments and decrees passed by both the courts below. 7. I have heard the learned counsel for the parties and have perused the record carefully. 4 8. Since all the substantial questions of law are interconnected and interlinked, therefore, the same are taken up together for determination to avoid repetition of discussion of evidence. 9. It is not in dispute that Rikhi Ram and plaintiff were the real brothers. Plaintiff has appeared as PW-1 He has admitted that his brother was residing separately. He has also admitted that respondent and Rikhi Ram and Kartari had no issue and the possession of the land was entered in the Girdawari according to the spot. He has also admitted that the defendant is the daughter of the sister of Kartari, namely, Roshani Devi. He denied that defendant was residing with Kartari since 1970. He admitted that after the death of Rikhi Ram, property was inherited by Kartari. He has shown his ignorance about the execution of will dated 28.12.1996 in favour of the defendant. 10. Defendant has appeared as DW-1. According to her, the plaintiff was residing separately and they have about 80 bighas of land, which was joint, but they were cultivating the separate land and after the death of Rikhi Ram, the land was inherited by Kartari and she cultivated the land through labourers and her marriage was solemnized by her. Kartari Devi 5 executed will dated 28.12.1996 in her favour. She denied that on 7.3.2000, after the will, Kartari Devi gave the land measuring 1 bigha to her by way of gift deed. Kartari Devi died on 7.3.2000. 11. DW-2 Rakesh Gupta has scribed the will on 28.12.1996 Ex.DW-2/A. According to him, he read over the contents of will to the executant and she admitted the same to be true and put her thumb impression and after that the witnesses also put their thumb impressions. Kartari Devi was in disposing state of mind and was healthy. He also put his signatures on the will and entered the same at Sr.No.1244 in the register. 12. DW-3 is Shiv Ram, marginal witness. According to him, about 6 years back, Kartari Devi told him that she wanted to execute a will in favour of Swaran Kanta. Kartari Devi told DW-2 Rakesh Gupta that she wanted to execute a will in favour of Swaran Kanta and he had written the same and read over the contents to her and Kartari Devi admitted the same to be correct and put her signatures and after that he and Bhanja Ram put their signatures on Ex.DW-2/A. According to him, Kartari Devi was in disposing state of mind. Kartari Devi produced the will before Tehsildar and they also accompanied her, who also read 6 over the contents to her. Bhanja Ram identified her. Bhanja Ram has since died. According to him, Swaran Kanta was cultivating the land. DW-4 Sanjay Verma had brought the record. 13. Plaintiff has also appeared in rebuttal as PW-2. When he appeared in rebuttal, he deposed that the last rites of Kartari Devi were performed by him and the will was forged. According to him, it was never executed by Kartari Devi. 14. PW-3 Banwari Lal has deposed that he new the parties and according to him, plaintiff was looking after Kartari Devi and all the ceremonies were performed by him. 15. Mr. Bhupender Gupta, Senior Advocate has strenuously argued that the will is forged and is shrouded by suspicious circumstances. According to him, the alleged will was executed on 28.12.1996 and thereafter vide gift deed dated 3.3.2000, Kartari Devi has gifted one bigha of land to the defendant. He also argued that in the gift deed there was no recital of the will dated 28.12.1996. The Court is of the considered opinion that the will in question has been validly executed and merely non-mentioning in the gift deed that the will has already been executed on 28.12.1996, will not make the will-in-question suspicious. 7 16. What emerges from the evidence led by the parties is that Ex.DW-2/A dated 28.12.1996 is a registered will. It was scribed by DW-2 Rakesh Gupta and DW-3 Shiv Ram is the marginal witness. One Bhanja Ram, who was also one of the marginal witnesses, has since died. Witnesses DW-2 and DW-3 have categorically stated that the contents of the will were read over to the executant and she admitted the same to the true and thereafter put her thumb impression and thereafter they also put their signatures on the will. She was in disposing state of mind and healthy. The will was also registered. The Registering Authority has also read over the contents of the will to the executant and she has admitted the same and thereafter she and witnesses put their signatures. It has also come in the evidence that the defendant was adopted by Kartari Devi in the year 1970. She was married. Defendant’s husband was living as Ghar Jamai in the house of Kartari Devi. Defendant had been looking after and maintaining Kartari Devi. 17. Their Lordships of the Hon’ble Supreme Court in Yumnam Ongbi Tampha Ibema Devi Versus Yumnam Joykumar Singh and Others (2009) 4 Supreme Court Cases 780 have held that attestation of the Will is not an empty formality. It means signing a document for the purpose of 8 testifying of the signatures of the executant. The attesting witness should put his signatures on the Will animo attestandi. The Will is required to be proved as per Section 68 of the Evidence Act and Section 63 of the Succession Act. The attesting witness is required to speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the Will in the presence of the testator. Their Lordships have held as under: “11. As per provisions of Section 63 of the Succession Act, for the due execution of a Will (1) the testator should sign or affix his mark to the Will; (2) the signature or the mark of the testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a Will; (3) the Will should be attested by two or more witnesses, and (4) each of the said witnesses must have seen the testator signing or affixing his mark to the Will and each of them should sign the Will in presence of the testator. 12. The attestation of the Will in the manner stated above is not an empty formality. It means signing a document for the purpose of testifying of the signatures of the executant. The attested witness should put his signature on the Will animo attestandi. It is not necessary that more than one witness be present at the same time and no particular form of attestation is necessary. Since a Will is required by law to be attested, execution has to be proved in the manner laid down in section and the Evidence Act which requires that at least one attesting witness has 9 to be examined for the purpose of proving the execution of such a document. 13. Therefore, having regards to the provisions of Section 68 of the Evidence Act and Section 63 of the Succession Act, a Will to be valid should be attested by two or more witnesses in the manner provided therein and the propounder thereof should examine one attesting witness to prove the will. The attesting witness should speak not only about the testator's signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.” 18. Their Lordships of the Hon’ble Supreme Court in Gopal Swaroop Versus Krishna Murari Mangal & Ors, 2010(12), 470 Scale have laid down the following tests for execution of the Wills, under Section 63 of the Indian Succession Act, 1925 and Section 68 of the Evidence Act 1872: 11. It is evident that in cases where the document sought to be proved is required by law to be attested, the same cannot let be in evidence unless at least one of the attesting witnesses has been called for the purpose of proving the attestation, if any such attesting witness is alive and capable of giving evidence and is subject to the process of the Court. Section 63 of the Indian Succession Act deals with execution of unprivileged Wills and, inter alia, provides that every Testator except those mentioned in the said provision shall execute his Will according to the rules stipulated therein. It reads: "63. Execution of unprivileged wills.- 10 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) The testator shall sign or shall affix his mark 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 testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will. (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 acknowledgment 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 witness be present at the same time, and no particular form of attestation shall be necessary." 12. From a conjoint reading of the two provisions extracted above it is evident that a Will is required to be attested by two or more witnesses each of whom has seen the Testator signing or affixing his mark on the Will or has seen some other person signing the Will in the presence and by the direction of the Testator or has received from the Testator a 11 personal acknowledgment of the signature or mark or his signature or the signature of such other person and that each of the witnesses has signed the Will in the presence of the Testator. Section 68 of the Evidence Act is against the use of a Will in evidence unless one attesting witness has been examined to prove the execution. 13. The question, however, is whether the Will propounded by the appellant and purporting to have been attested by two witnesses, namely, Manoj Kumar and Vilas Tikhe has been validly proved. It is not disputed that one of the said witnesses namely, Vilas Tikhe has been summoned and examined as a witness. What is to be seen is whether the examination of the said witness satisfies the requirements of Section 63 of the Evidence Act (supra). A careful analysis of the provisions of Section 63 would show that proof of execution of a Will would require the following aspects to be proved: (1) That the Testator has signed or affixed his mark to the Will or the Will has been signed by some other person in the presence and under the direction of the Testator. (2) The signature or mark of the Testator or the signature of the persons signing for him is so placed has to appear that the same was intended thereby to give effect to the writing as a Will. (3) That the Will has been attested by two or more witnesses each one of whom has signed or affixed his mark to the Will or has been seen by some other person signing the Will in the presence and by the direction of the Testator or has received from Testator a personal acknowledgement of the signature or mark or the signature of each other person. 12 (4) That each of the witnesses has singed the Will in the presence of the Testator.” 19. Both the courts below have correctly appreciated the oral as well as documentary evidence. The will stand proved in accordance with the provisions of the Indian Succession Act and Indian Evidence Act. It is also proved from the Pariwar Register Ex.DW-4/A that Bansi Lal was staying with Kartari Devi, as Ghar Jamai. 20. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. . There shall, however, be no order as to costs. (Rajiv Sharma), J. 3.1.2011. *awasthi*