IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Regular Second Appeal No. 266 of 2000. Judgment Reserved on: 14.11.2008. Decidedon: 25.11.2008. __________________________________________________ Smt. Sita Devi … Appellant. Versus Smt. Gulab and Ors. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 Yes. For the appellant : Mr. B.B. Vaid, Advocate. For Respondents No. 1 : Mr. Ajay Kumar, Advocate. For Respondents No. 2 & 3 : None. ___________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree passed by the learned District Judge, Solan on 12.1.2000 in Civil Appeal No. 38-S/13 of 1998/99. Brief facts necessary for adjudication of this regular second appeal are that the appellant (hereinafter referred to as the plaintiff for convenience sake) had filed a suit for declaration and injunction whereby she has stated that respondent-defendant No. 2 and plaintiff were daughters of Shri Mansa Ram, son of Shri Daulat Ram (since deceased). Shri Mansa Ram was having two wives, named; Smt. Chamku and Smt. Sunehru and after his death, plaintiff and defendant No.2 had become 1 Whether reporters of the local papers may be allowed to see the judgment? No. 2 owner in possession of 1/3rd each and 1/3rd share was succeeded by said two widows, namely; Smt. Chamku and Smt. Sunehru in equal shares. He was more than 88 years of age and was of fickle mind. The predecessor in interest of respondent-defendant No.1 (hereinafter referred to as defendant No.1 (Shri Amar Singh) took advantage of old age of Shri Mansa Ram and got executed an illegal document, i.e. Will dated 23.1.1973. Accordingly, Will was not binding on the rights of the plaintiff and the same is shrouded with suspicious circumstances. The respondent-defendant No. 1 resisted and contested the suit by filing the written statement. It is stated in the written statement that deceased Shri Mansa Ram had executed a Will out of his free will, volition, consent, without any pressure and being in good health and sound mind. The learned Sub Judge Ist Class, Solan dismissed the suit on 28.10.1997. The plaintiff preferred an appeal before the learned District Judge, Solan. The learned District Judge, Solan dismissed the appeal on 12.1.2000. This regular second appeal was admitted on the following substantial question of law: “Whether the Will in suit could be held a valid Will merely on the statements of scribe and Sub Registrar, whereas the execution thereof is denied by both the attesting witnesses? Mr. B.B. Vaid, Advocate has strenuously argued that the Will Ext. PW4/A dated 23.1.1973 has not been executed in accordance with law and the same is shrouded with suspicion. He further contended that two attesting witnesses have not supported the execution of the Will. Mr. Ajay Kumar, Advocate has supported the judgments and decrees passed by both the learned Courts below. He strenuously argued 3 that the Will has been executed strictly in conformity with law and the findings recorded by both the learned Courts below need not be interfered with. I have heard the parties and have gone through the record carefully. The Will Ext. PW4/A dated 23.1.1973 was executed by Shri Mansa Ram. It is a registered Will. It is scribed by Giani Balwant Singh, Document Writer and was registered by PW5 Shri Mohan Lal, Sub Registrar. Shri Amar Singh has deposed that the Will was executed by Shri Mansa Ram of his own free will and without any undue influence and at the time of execution of the Will, he was in sound disposing mind. He was unable to walk so the Tehsildar and Arjinawees were taken to village Basha to register the Will. According to him, the earlier Will executed by Shri Mansa Ram was cancelled. Shri Akshra Nand, son-in-law of Shri Mansa Ram, has admitted his signatures on the Will. He was examined as DW-2. He has deposed that his father-in-law was weak and was of flickering mind. According to him, he had executed 5-7 Wills. He also deposed that he signed on the Will at the instance of Giani Balwant Singh, Petition Writer. He denied that Shri Mansa Ram and Shri Kaku Ram signed in his presence. He was ignorant whether the Tehsildar had come to village Basha or not. Shri Kaku Ram has denied that he ever signed any document in presence of Akshra Nand though he signed a Will along with one Balak Ram. 4 The Will in question has been scribed by Shri Balwant Singh. He testified that he wrote the Will at the instance of Shri Mansa Ram at village Basha. The contents of the Will were read over and explained to him in presence of the witnesses. The contents of the Will were admitted to be correct by Shri Mansa Ram and he then appended his signatures on it. Shri Akshra Nand and Shri Kaku Ram also appended their signatures and thereafter, it was registered. According to this witness, 2/3rd share was given to Shri Amar Singh by way of will dated 20.1.1973. However, vide a Will dated 23.1.1973, which is under challenge, half share has been given to Shri Amar Singh and the other half to his widow and daughters. The Will was registered by Shri Mohan Lal, who was the Sub Registrar. He has admitted his signatures on the Will. He made inquiries from the parties before registering the Will and the Will in question was executed by Shri Mansa Ram by his free will and he was in the state of sound disposing mind. The plaintiff has also appeared as a witness. She has deposed that her father was an old man of 80-81 years and was not of sound disposing mind. He had executed number of Wills and thereafter, he used to cancel them. She has expressed her ignorance about the signatures of her father on the Will or execution of the Will dated 23.1.1973. What emerges from the facts enumerated above is that the Will was executed by Shri Mansa Ram on 23.1.1973. It was scribed by Shri Balwant Singh. Shri Akshra Nand and Shri Kaku Ram were the attesting witnesses. The Will was registered by PW-5 Shri Mohan Lal. To prove that Shri Mansa Ram was of flickering mind, few Wills have been placed on the record. Ext. DX-1 was executed on 21.9.1972. Ext. DX-2 5 was executed on 22.9.1964 and Ext. DX-3 was executed on 25.6.1965. He had also executed a Will dated 20.1.1973. The Will in question was executed on 23.1.1973. According to the statement of Shri Balwant Singh (PW-4), one Will was executed by Shri Mansa Ram on 20.1.1973. According to the Will dated 20.1.1973, 2/3rd share of the property of Shri Mansa Ram was bequeathed in favour of Shri Amar Singh. However, as per the Will dated 23.1.1973, the share of Shri Amar Singh was reduced to ½. Smt. Sita Devi is also one of the beneficiaries of the Will besides her mother Smt. Chemku and sister Smt. Kalawati. Shri Akshra Nand, the attesting witness of the Will, is the husband of Smt. Kalawati. Shri Akshra Nand has deposed, as noticed above, that Shri Mansa Ram was of a weak mind. He has admitted the signatures on the Will. He was an educated person and admitted signing the document. It can be safely presumed that he had gone through the contents of the same. It cannot be believed that he appended his signatures at the instance of Shri Balwant Singh. PW-5 Shri Mohan Lal, Sub Registrar has deposed that Shri Akshra Nand was present at the time of registration of the Will and signed in his presence along with Shri Kaku Ram and Shri Mansa Ram put his signatures in the presence of these witnesses. Shri Mohan Lal is an independent witness. Shri Balwant Singh has no motive in getting the signatures of Shri Akshra Nand on the Will. He has only scribed the Will at village Basha. The Will is dated 23.1.1973. The suit was filed on 5.1.1993. The statement of Shri Kaku Ram being vague has been discarded by both the learned Courts below. The plaintiff was nine years old at the time of execution of the Will. 6 Mr. B.B. Vaid, Advocate has strenuously argued that since none of the attesting witnesses has supported the case of Shri Amar Singh, execution of the Will is doubtful. The Will has to be proved by the attesting witnesses. In the present case, Shri Akshra Nand has admitted his signatures on the Will. However, he has stated that it was at the instance of Shri Balwant Singh that he signed the document. The Will has been scribed by Shri Balwant Singh. He has deposed about the execution of the document in his presence. The learned Single Judge of Hon’ble Andhra Pradesh High Court in M. Venkatasubbaiah Vs. M. Subbamma and others, AIR1956 Andhra Pradesh 195, has held that scribe can be attesting witness. The learned Single Judge has held as under: “I am inclined to agree with this submission. Section 68, Evidence Act recites: If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive and subject to the process of the Court and capable of giving evidence. Undeniably one attesting witness was alive at the relevant time. The question for consideration is whether the non-examination of one of the persons who subscribed his signature as an attesting witness results in the document being excluded from evidence. In my opinion, the proof contemplated in this section can be furnished by the scribe of the document who could speak to the execution of it and it is not essential that it should be proved only by at least one of the attesting witnesses.” 7 The learned Single Judge of Hon’ble Punjab & Haryana High Court in Sita Ram Vs. R.D. Gupta and others (AIR 1981 Punjab & Haryana 83) held that scribe of the Will could be treated as such a witness if evidence meets requirement of Clause (c) of Section 63 of the Indian Succession Act. The learned Single Judge has held as under: “The learned counsel for Amin Chand respondent on the other hand submits that it is not true that no attesting witness of the will has been produced who could vouchsafe for the due execution of the said will. He maintains that Kartar Singh, DW- 2 who is the scribe of the will has stated in his evidence that he had written the will Ex. D-1 on July 31, 1964 at the instance of Ramji Lal deceased and the latter had signed the same in his presence after understanding its contents. He too signed it then and there. He further deposed that the two attesting witnesses had also signed the said will at the very same time in the presence of the deceased. He being a regular petition writer, also proved the relevant entry in his register, pertaining to this will. The copy of this entry is Ex. D-3. According to him, deceased Ramjit Lal also signed in his register against this Entry No. 44. His evidence further is that he personally knew Ramji Lal deceased and the attesting witnesses of the will. He has only been asked two questions in cross- examination:- (i) as to whether the deceased knew, Punjabi Language in which the will is undoubtedly written; and (ii) that the attesting witnesses were not present at that time. 8 The later suggestion put to him was denied by him. There is no cross-examination of this witness on any other point whatsoever. On the basis of this evidence, the learned counsel for Amin Chand maintains that the evidence of this witness fully meets the requirements of Section 63 of the Indian Succession Act and he has to be treated as an attesting witness of the will. I find considerable force in this submission of the learned counsel. An attesting witness as such is neither defined nor carries any particular significance except the one that in cases of wills his evidence has to meet the requirement of Section 63 (c) of the Indian Succession Act. I find that the evidence of this witness fully meets those requirements. It is not disputed before me that in a number of cases decided by this Court as well as by other High Courts in somewhat similar circumstances a Sub Registrar in the case of the wills which were got registered, was treated to be an attesting witness. In the light of the discussion above, I find no merit in the first ground of attack launched by the learned counsel for the appellant.” The learned Single Judge of this Court in a recent judgment rendered in Capt. S.P. Kohli and others Vs. Shri Sumeet Walia and others, RSA No. 149 of 2007 decided on 2.8.2006, has held that the scribe can be treated as a witness and the validity of the Will can be proved even though the attesting witnesses have not supported the execution of the Will. The learned Single Judge has held as under: “This brings us back to the validity of the first will which is the main document. There can be no manner of doubt that if the statement of CW-1 is accepted then the first will cannot be relied upon. The plaintiff was left in a piquant situation. The scribe of the will and one of the attesting witnesses were dead. The other attesting witness stated that the will was not signed by the testator in his presence nor there was any acknowledgement of his signatures by the testator and that 9 the witness had also signed in the absence of the testator. Is the Court bound by the statement of the witnesses? In my view the answer to this question has to be emphatic no. Supposing an attesting witness for reasons best known to him decides to make a false statement the Court can never be held bound by such a statement. The duty of the Court is to reach the truth. Justice must prevail and the Court can never be held to be in a helpless situation where it is bound by a false statement of a witness. While taking this view I am fortified by the judgment of a Division Bench of the Kerala High Court in Ittoop Varghese V. Poulose and others, AIR 1975 Kerala 141. In that case both the attesting witnesses when examined in Court stated that they did not see the testator signing the will nor they received any personal acknowledgement from the testator that he had put his signatures on will. It held as follows: “5. But, as we have pointed out earlier, when the court is satisfied as in this case that the witnesses deliberately and falsely denied that they attested the will, the Court is entitled to look into the other circumstances and the regularity of the will on the face of it and come to the conclusion on the question of attestation.” The Division Bench relied upon the judgment of the Calcutta High Court reported in Brahmadat Tewari Vs. Chaudan Bibi, AIR 1916 Cal. 374 which is also relevant for the purpose of deciding the present appeal and is quoted below: “The principle is well settled that when the evidence of the attesting witnesses is vague, doubtful or even conflicting upon some material point, the Court may taken into consideration the circumstances of the case and judge from them collectively whether the requirements of the statute were complied with, in other words, the Court may, on consideration of the other evidence or of the whole circumstances of the case, come to the conclusion that their recollection is at fault, 10 that their evidence is of a suspicious character or that they are willfully misleading the Court and accordingly, disregard their testimony and pronounce in favour of the will”. I am in respectful agreement with the aforesaid law as laid down by the Kerala High Court as well as by the Calcutta High Court.” In view of the observations made hereinabove, it is clear that both the Courts below have correctly appreciated the facts and law while coming to the conclusion that the Will in question dated 23.1.1973 (Ext. PW-4/A) is valid. There was no suspicious circumstance surrounding the execution of the Will. Accordingly, there is no merit in this appeal and the same is dismissed. No costs. (Rajiv Sharma), J. November 25, 2008. (cr)