IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA RSA No. 87 of 1999 Date of Decision : September 22, 2010 Smt. Kanti Appellant Versus Sh. Rulia Respondent Coram: The Hon’ble Mr. Justice Sanjay Karol, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. B. K. Malhotra, Advocate, for the appellant. For the respondent : Mr. R. K. Gautam, Senior Advocate, with Mr. Vikrant Chandel, Advocate, for the respondent. Sanjay Karol, J. (Oral) This is a regular second appeal filed under Section 100 of the Code of Civil Procedure. 2. Smt. Kanti (appellant referred to as the plaintiff) filed a suit for declaration against Sh. Rulia (respondent referred to as the defendant). 3. Facts necessary for adjudication of the present appeal are simple. Sh. Pohlo owned certain immoveable properties in District Mandi, H.P. There is no dispute that plaintiff is his daughter. Defendant also claims to be his son. Sh. Pohlo died on 7.8.1983. According to the plaintiff in his life time Sh. Pohlo executed a Will in Whether reports of Local Papers may be allowed to see the judgment? 2 her favour which was registered on 17.12.1982. He bequeathed his estate in her favour. However on the basis of another Will dated 17.5.1983 defendant illegally got mutation No. 224 dated 26.11.1983 attested in his favour. The said Will is an act of fraud and the entries are illegal and void. Defendant also forcibly took possession of the suit land. Consequently plaintiff filed a suit praying as under:- It is, therefore, respectfully prayed that in view of the reason stated above, a decree for declaration to the effect that the alleged will purported to have been executed by Pohlo deceased in favour of the defendant is false document and void abinitio and has got no legal effect at all on the rights of the Plaintiff concerning the suit land may kindly be passed in favour of the plaintiff and against the Defendant and the Plaintiff be declared as exclusive heir of Pohlo deceased in accordance with the Will executed by Pohlo deceased and a decree for possession as a consequential relief may kindly be passed against the defendant and in favour of the Plaintiff concerning the suit land described in para No. 1 of the Plaint and/or any other relief to which the Plaintiff may be found entitled to in the circumstances of the case under consideration may also be granted and justice be done. The costs of the suit may also be awarded in favour of the Plaintiff from the defendant.” 4. Defendant resisted the suit inter alia on the ground that plaintiff got the Will executed by playing a fraud. The same was a 3 result of coercion and undue influence. Sh. Pohlo freely executed Will in his favour out of natural love and affection. 5. Trial Court struck the following issues:- “1. Whether the plaintiff is owner in possession of the land in suit? OPP 2. Whether Pohlo deceased has not executed any will in favour of the defendant: OPP 3. Whether Sh. Pohlo had executed a valid will in favour of the plaintiff as alleged? OPP 4. Whether Sh. Pohlo was not competent to bequeath the suit land to any one of them the defendant being Hindu coparcenary as alleged? OPD 5. Relief.” 6. In terms of judgment and decree dated 19.12.1990 passed by the Sub Judge Ist Class, Sundernagar, H.P. in Civil Suit No. 92/85, titled as Kanti versus Rulia, trial Court decreed the plaintiff’s suit by holding the Will (Ext. PA) dated 17.12.1982 propounded by the plaintiff to be valid and Will (Ext. D-1) dated 17.5.1983 propounded by the defendant to be not genuine. Plaintiff’s suit was decreed in toto. 7. Aggrieved of the same defendant preferred an appeal which stands allowed in terms of judgment and decree dated 26.11.1998 passed by the learned District Judge, Mandi, H.P. in Civil Appeal No. 2/91/ 32 of 1998, titled as Rulia versus Kanti. Plaintiff’s suit stands dismissed. Finding of the trial Court on the validity of the Will (Ext. D-1) were upheld but lower appellate Court found that plaintiff had failed to prove the execution of the Will (Ext. PA) in accordance with 4 the provisions of Section 63 of the Indian Succession Act, 1925 (hereinafter referred to as the Act). The Court found that out of the two attesting witnesses plaintiff only examined Sh. Bhagat Ram (PW-5) in Court who did not depose that he had signed the Will in the presence of the testator or that he had seen the testator affix his thumb impression on the same. 8. This appeal was admitted on the following substantial questions of law:- “1. Whether in the facts and circumstances of the case, the ld. Appellate Court is right in law in holding that Sub Registrar who registered the Will and the person who scribed the Will can never be attesting witnesses of the Will? 2. Whether the ld. Appellate court below was right in law in upsetting the Will in favour of the appellant, the validity of which was never challenged in the appeal before the ld. Appellate Court? 3. Whether the Appellate Court is right in law in declaring a Will not to be validly executed at the instance of stranger who has no locus standi to challenge the same?” 9. The Apex Court in M. L. Abdul Jabbar Sahib versus H. Venkata Sastri and Sons and others, AIR 1969 Supreme Court 1147 has held as under:- “…It is to be noticed that the word “attested”, the thing to be defined, occurs as part of the definition itself. To attest is to bear witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 5 3 are: (1) two or more witnesses have seen the executant sign the instrument or have received from him a personal acknowledgement of his signature; (2) with a view to attest or to bear witness to this fact each of them has signed the instrument in the presence of the executant. It is essential that the witness should have put his signature animo attestandi, that is, for the purpose of attesting that he has seen the executant sign or has received from him a personal acknowledgment of his signature. If a person puts his signature on the document for some other purpose, e.g., to certify that he is a scribe or an identifier or a registering officer, he is not an attesting witness.” (Emphasis supplied) 10. The Apex Court in N. Kamalam (Dead) and another versus Ayyasamy and another, (2001) 7 SCC 503 has held as under:- “The Latin expressions onus probandi and animo attestandi are the two basic features in the matter of the civil court’s exercise of testamentary jurisdiction. Whereas onus probandi lies in every case upon the party propounding a will, the expression animo attestandi means and implies animus to attest: it means intent to attest. The attesting witness must subscribe to the intent that the subscription of the signature made stands by way of a complete attestation of the will and the evidence is admissible to show whether such was the intention or not.” (Emphasis supplied) 11. The Apex Court in Janki Narayan Bhoir versus Narayan Namdeo Kadam, (2003) 2 SCC 91 has held has under:- 6 “The requirement of due execution of a will under Section 63(c) of the Succession Act is its attestation by two or more witnesses, which is mandatory. It flows from this section that if there be an attesting witness alive, capable of giving evidence and subject to the process of the Court, he has to be necessarily examined before the document required by law to be attested can be used in an evidence. On a combined reading of Section 63 of the Succession Act with Section 68 of the Evidence Act, it appears that a person propounding the will has got to prove that the will was duly and validly executed. That cannot be done by simply prove that the signature on the will was that of the testator but it must also be proved that attestations were also made properly as required by clause (c) of Section 63 of the Succession Act. It is true that Section 68 of the Evidence Act does not say that both or all the attesting witnesses must be examined. 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 least one attesting witness even though the will has to be attested at least 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 in a position to prove the execution of a will. To put in other words, if one attesting witness can prove execution of the will in terms of clause (c) of Section 63 viz. attestation by two attesting witnesses in the manner contemplated therein, the examination of the 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 attesting witness in order to prove there was due 7 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 the 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.” “Section 71 of the Evidence Act is in the nature of a safeguard to the mandatory provisions of Section 68 of the Evidence Act, to meet a situation where it is not possible to prove the execution of the will be calling the attesting witnesses, though alive. Section 71 is permissive and an enabling section permitting a party to lead other evidence in certain circumstances. But Section 68 is not merely an enabling section. It lays down the necessary requirements, which the court has to observe before holding that a document is proved. Section 71 is meant to lend assistance and come to the rescue of a party who had done his best, but driven to a state of helplessness and impossibility, cannot be let down without any other means of proving due execution buy “other evidence” as well. At the same time Section 71 cannot be read so as to absolve a party 8 of his obligation under Section 68, Evidence Act read with Section 63 of the Succession Act and liberally allow him, at his will or choice to make available or not a necessary witness otherwise available and amenable to the jurisdiction of the court concerned and confer a premium upon his omission or lapse, to enable him to give a go-by to the mandate of law relating to the proof of execution of a will. Section 71 of the Evidence Act can only be requisitioned when the attesting witnesses who have been called failed to prove the execution of the will by reason of either denying their own signatures or denying the signature of the testator or having no recollection as to the execution of the document. Section 71 has no application to a case where one attesting witness, who alone had been summoned, has failed to prove the execution of the will and other attesting witnesses though are available to prove the execution of the same, for reasons best known, have not been summoned before the court. In a case where an attesting witness examined fails to prove the due execution of will as required under clause (c) of Section 63 of the Succession Act, it cannot be said that the will is proved as per Section 68 of the Evidence Act, It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can be proved by other evidence dispensing with the evidence of other attesting witness though available to be examined to prove the execution of the will. Yet another reason as to why other available attesting witnesses should be called when the one attesting witness examined fails to prove due execution of the will is to avert the claim of drawing adverse inference under Section 114 Illustration(g) of the 9 Evidence Act. Placing the best possible evidence, in the given circumstances, before the court for consideration, is one of the cardinal principles of the Indian Evidence Act.” (Emphasis supplied) 12. The aforesaid position stands reiterated in Bhagat Ram and another versus Suresh and others, (2003) 12 SCC 35; Benga Behera and another versus Braja Kishore Nanda and others, (2007) 9 SCC 728; and S. R. Srinivasa and others versus S. Padmavathamma, (2010) 5 SCC 274. 13. Relevant portion of the statement of PW-5 reads as under:- “Stated that Ext. PA bear my signature as a witness. Pohlo, on 17.12.1982, in the court of Tehsildar got executed a ‘will’ of his property and land in favour of Kanti, on which I and Paras Ram are witnesses. Pohlo stated in the presence of Sub Registrar that Kanti gave him food and clothes and he makes the ‘will’ in her favour. Sh. Ram Dass Lawyer was also there. Our signatures were obtained at the time of attestation also. Ext. PA was admitted to be correct”. 14. Now this witness does not state that deceased Pohlo had signed/put his thumb mark on the Will in his presence. He also does not state that his signatures were obtained at the time of attestation in the presence of deceased Pohlo or that the executor or the witnesses had signed/thumb marked the Will in the presence of each other. 15. There is no doubt that Sh. Ram Dutt (PW-6) who is the scribe has mentioned that the witnesses had signed the Will in the 10 presence of each other and that the testator had put his thumb impression in the presence of the witnesses. But this still would not meet the requirement of law for the reasons that (i) according to PW-5, PW-6 was not present at the relevant time (ii) that he is scribe and not a witness (iii) also does not specify the particulars of the witnesses. 16. Much reliance has been placed by the learned counsel for the plaintiff on the decision rendered by the Apex Court in Naresh Charan Das Gupta versus Paresh Charan Das Gupta and another, A.I.R. 1955 S.C. 363. The decision is not applicable being clearly distinguishable on facts. The Apex Court was dealing with a case where the attesting witnesses had stated “that the testator had signed the will in their presence and that they attested his signatures”. The witnesses in the said case had not stated that they signed the will in the presence of the testator. In this background the Court held that the execution of the will, in accordance with the provisions of law has to be inferred from the attending circumstances. As has been noticed earlier the statement of PW-5 in the instant case is entirely different. 17. The fact that the will was attested and registered would not improve the position as testimony of the Sub Registrar Sh. Prem Singh Thakur (PW-2) cannot be said to be that of an attesting witness. Admittedly Sh. Paras Ram has not been examined. It is not that he was not alive or otherwise not available. 11 18. The reliance on the decision of the Apex Court in Mathew Oommen versus Suseela Mathew, AIR 2006 Supreme Court 786 is also misconceived. The Apex Court was dealing with a case where the scribe himself was the attesting witness which is not the case in hand. 19. Therefore, no fault can be found with the findings returned by the Court below to the effect that plaintiff had failed to prove that the Will (Ext. PA) was validly executed by deceased Pohlo in her favour. 20. Substantial question of law No. 1 is no longer res integra and therefore does not arise for consideration at all. 21. Substantial question of law No. 2 does not arise for consideration at all as it was the defendant who had filed the appeal in which the judgment passed by the Trial Court stands reversed. 22. In support of the substantial question of law No. 3 my attention has been invited to para 3 of the impugned judgment wherein it is observed that “Rulia admittedly was born from previous husband of Kubja. When Kubja contracted marriage with Pohlo, she brought Rulia alongwith her”. 23. It is urged that defendant being a stranger had no locus to challenge the will. The submission needs to be rejected for the reason that (i) Parties did not go to trial on the question of the defendant’s status. There are no pleadings, issues or findings by the trial Court in this regard. Question not based on pleadings cannot be gone into in this appeal. (ii) Defendant cannot be said to 12 a stranger. He was brought up by deceased Pohlo in his house. Also from the evidence of the plaintiff’s witnesses it has come on record that defendant and plaintiff are brother and sister. (iii) In any event it is for the propounder of the Will to stand on its legs and prove its validity in accordance with law. 24. Hence suit as framed by the plaintiff needs to be dismissed and she cannot be held entitled to the relief of possession of the suit land. It is open for the plaintiff to take recourse to such remedy as is available to her in accordance with law. 25. In this background judgment cited by the learned counsel for the plaintiff reported in Ram Niranjan Das and another versus Loknath Mandal and others, AIR 1970 Patna 1 does not apply to the instant facts. For the very same reason the decision rendered by a Coordinate Bench of this Court in RSA No. 340 of 1999, titled as Bessi Devi versus Chatru Devi and another, decided on 18.9.2009 also does not apply. 26. There is no perversity, illegality or irregularity. Hence the present appeal devoid of any merit is dismissed. (Sanjay Karol), Judge. September 22, 2010 (PK)