-:1:- S.B.CIVIL MISC. APPEAL NO.841/1994. IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B.CIVIL MISC. APPEAL NO.841/1994 ROKED CHAND VERSUS SMT.RAJESHWARI DEVI. S.B.CIVIL MISC. APPEAL UNDER SECTION 384 OF THE INDIAN SUCCESSION ACT AND UNDER ORDER 41 C.P.C. AGAINST THE JUDGMENT AND ORDER DATED 03.06.1994 PASSED BY THE LEARNED DISTRICT JUDGE, ALWAR IN CIVIL MISC. APPLICATION NO.186/1982. Date of Judgment. : April 16, 2009. PRESENT HON'BLE MR.JUSTICE DALIP SINGH HON'BLE MR.JUSTICE DALIP SINGH Mr.Anant Bhandari, for the appellant. Mr.Manu Bhargava ] Mr.Pankaj Jain ] for the respondent. BY THE COURT : REPORTABLE This appeal under Section 384 of the Indian Succession Act, 1925 has been filed against the judgment dated 03.06.1994 passed by the learned District Judge, Alwar in Civil Misc. Application No.186/1982 allowing the application filed by the respondent under Section 372 of the Indian Succession Act, 1925 for the grant of succession certificate in respect of the property left behind by the deceased Bhagwan Sahai. -:2:- S.B.CIVIL MISC. APPEAL NO.841/1994. The facts, in brief, are that the appellant and the respondent belong to the same family. With a view to understand their relationship, the following pedigree may be perused:- _________________________________________ | | Bhagwan Sahai Birdhi Chand (Died issueless) | | _________________________________________| | | | Shiv Narain Chand Behari Rokad Chand | | (Appellant) Beni Prasad Wife Rajeshwari (Respondent) The property was that of the deceased Bhagwan Sahai who died on 15.11.1982. Bhagwan Sahai never married and he left behind a registered Will dated 11.11.1982 by which he bequeathed his entire property both movable and immovable, as mentioned in the said Will executed on 11.11.1982, in favour of the respondent Rajeshwari Devi wife of Shri Chand Behari @ Ram Behari. The deceased had a post office savings account with an amount of Rs.6,000/- which was a time deposit account and the dispute centers around the money lying in the said account. The respondent Rajeshwari Devi filed an application for the grant of succession certificate under Section 372 of the Indian -:3:- S.B.CIVIL MISC. APPEAL NO.841/1994. Succession Act, 1925 in respect of the aforesaid amount of Rs.6,000/- claiming the same on the basis of the registered Will dated 11.11.1982, executed by the deceased Bhagwan Sahai in her favour. The respondent contested the said application interalia denying the execution of the Will and that the amount lying in the post office savings account was in the joint account of the deceased as well as the appellant Rokad Chand wherein it was provided that the amount may be withdrawn by either of them or survivor. On the basis of the above, it was contended that the appellant alone was entitled to recover the said amount. It may also be stated here that the execution of the Will was denied and it was stated that the deceased had in fact executed a Will in favour of the appellant Rokad Chand in the year 1973 wherein the property was left by the deceased in favour of the appellant Rokad Chand. The learned District Judge framed four issues which are reproduced as under:- “1. क् या मृतक भगवानसहाय ने िद.11.11.82 को ूाथȸया ौीमती राजेँ वरी देवी के पक्ष में वसीय त सम् पािदत करा पंजीबƨ करायी ? 2. क् या मृतक भगवानसहाय Ʈारा ूतापगढ़ पोः ट ओिफस में 6000/- रू. की रािश जमा कराई ? 3. क् या उक् त वसीयत नामा के आधार पर ूाथȸया मृतक -:4:- S.B.CIVIL MISC. APPEAL NO.841/1994. भगवानसहाय Ʈारा ूतापगढ़ पोः ट ओिफस में जमा कराये 6000/- रूपये की रािश के िलए उत् तरािधकार ूमाण पऽ पाने की अिधकारी है ? 4. क् या मृतक भगवानसहाय ने अूाथȸ रोकड़चंद के पक्ष में िदनांक 11.10.73 को वसीयत नामा सम् पािदत िकया था । यिद हॉ तो उसका क् या ूभाव है ? 5. सहायता ?" The learned District Judge decided all the issues in favour of the respondent Smt.Rajeshwari Devi who was the applicant and ordered that the succession certificate under Section 372 of the Indian Succession Act, 1925 may be issued and held that she is the lawful successor of the deceased and she is entitled to the amount lying in the savings account No.156721 in the post office at Pratapgarh, District Alwar. It was also held under Issue No.4 that the execution of the Will dated 11.10.1973 in favour of the appellant is not proved. Learned counsel appearing for the appellant has in the first instance submitted that the Will is not a genuine one as it is surrounded by suspicious circumstances. At the same time, it has been submitted that the learned District Judge has erred in holding that the Will has been proved while the same was not proved by producing any of the attesting witnesses, as required by Section 63 of the Indian Succession Act read with Section 68 of the Indian Evidence Act. It was further submitted that the learned District Judge -:5:- S.B.CIVIL MISC. APPEAL NO.841/1994. has committed an error in giving a declaration that the respondent Rajeshwari Devi based upon the Will is successor of the deceased while the application was one for the grant of succession certificate under Section 372 of the Indian Succession Act only in respect of the amount lying in the Post Office savings account. It has further been contended that as per the provisions of the Post Office Time Deposit Rules, 1981 under Rule 4, on the death of the depositor, the surviving depositor shall be treated as the sole owner of the account and consequently the appellant being the joint account holder was entitled to receive the same exclusively irrespective of the alleged Will dated 11.11.1982. Learned counsel for the respondent, on th other hand, submitted that the Will dated 11.11.1982 has been held to be proved by the learned District Judge and the learned District Judge has come to the conclusion that the suspicious circumstances, as have been pointed out by the appellant, do not amount to such a suspicion to the extent that the Will may be considered to be a fabricated one. Learned counsel further submitted that so far as the proving the Will by producing the attesting witness is concerned, the applicant-respondent had produced AW-4 Pooranmal who is not only the scribe and the person who typed the Will but has put his signatures on the Will (Exhibit-1) at E to F after the same was marked by the -:6:- S.B.CIVIL MISC. APPEAL NO.841/1994. deceased in his presence. He, therefore, contended that in view of the definition of “attestation” as provided under Section 3 of the Transfer of Property Act, 1882 which only requires that the witness should have seen the executant putting his mark or signing the same in his presence. He referred to the statement of AW-4 Pooranmal wherein he has stated that he had typed the document (Will) Exhibit-1 which was read over by him to the deceased Bhagwan Sahai who having accepted the same to be correct put his mark (thumb impression) in acknowledgment and in execution of the said Will. He further deposed that after Bhagwan Sahai put his thumb impression, he has put his signatures below his thumb impression at E to F. In view of the above, it was contended that Pooranmal who happens to be the typist who typed the Will at the instance of the deceased and saw the deceased put his mark and then himself signed it below the mark of the executant, in the facts and circumstances of the present case, would also come within the scope of attesting witnesses of the Will and, therefore, the compliance of the Section 68 of the Indian Evidence Act, 1872 read with Section 63 of the Indian Succession Act, 1882 has been fulfilled. Learned counsel further drew the attention of the court to the fact that the learned District Judge in his judgment while deciding the issue No.4 with regard to the Will set up by the appellant alleged to have been executed by the deceased on 11.10.1973 (Exhibit-A/1) has held that Will to be forged and -:7:- S.B.CIVIL MISC. APPEAL NO.841/1994. a fabricated piece of evidence as it contains a recital about the post office savings account of the deceased which was not in existance in 1973 as the same was opened in 1982 and, therefore, a person who has himself not come with clean hands cannot be permitted to raise the objections before this court. Learned counsel for the respondent further supported the judgment of the learned District Judge in so far as the learned District Judge has held that the circumstances which were pointed out by the appellant of the Will to be suspicious were rightly negatived by the learned District Judge. He further contended that the Will was after execution presented for the registration by the deceased himself and was registered by the Sub-Registrar who had verified the fact of execution of the Will by putting this to the deceased executant and the same having been executed in favour of the applicant Smt.Rajeshwari Devi by the deceased by reading over the contents of the Will to the deceased executant who admitted the same to be correct. I have given my thoughtful consideration to the submissions made by the learned counsel for the parties before this court. So far as the submission with regard to the non- production of the attesting witness is concerned, it may be -:8:- S.B.CIVIL MISC. APPEAL NO.841/1994. necessary to first consider the statutory provisions in this behalf. Section 63 of the Indian Succession Act, 1925 reads as follows:- “63. Execution of unprivileged Wills.- 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 person 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.” (Emphasis supplied.) As would be evident from clause (c) of the above, the Will which is in writing shall be attested by two or more witnesses. The attesting witness must have seen the testator sign or affixed his mark to the Will and each of such attesting witnesses shall sign the Will in the presence of the testator. It is -:9:- S.B.CIVIL MISC. APPEAL NO.841/1994. further not necessary that all the witnesses must be present at the same time and no particular form of attestation is necessary. Section 68 of the Evidence Act which provides for the manner of the proof of execution of the Will reads as follows:- “68. Proof of execution of document required by law to be attested.- 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. Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.” (Emphasis supplied.) The aforesaid provision requires that if a document is required by law to be attested, the same shall not be used in evidence unless one attesting witness has been called for the purpose and has been examined for proving the execution of the said document. The exception which has been provided is in event of the fact that none of the attesting witnesses are alive or that they are incapable of giving evidence. While the proviso to Section 68 of the Indian Evidence Act, 1872 makes -:10:- S.B.CIVIL MISC. APPEAL NO.841/1994. an exception to the rule in so far as registered documents are concerned, to a Will which is an exception and in the case of a registered Will it is incumbent to examine the attesting witness. As to what is meant by “attestation”, Section 3 of the Transfer of Property Act, 1882 defines “attested”. The said definition reads as follows:- “attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.” (Emphasis supplied.) The aforesaid definition is almost the same as is provided under Section 63 of the Indian Succession Act, 1925 which has been noticed hereinabove. It is now, therefore, necessary to examine whether AW-4 Pooranmal can be said to have fulfilled the requirement of the above provisions contained in Section 3 of the Transfer of Property Act, 1882, Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act and in the facts and circumstances of the present case can be said -:11:- S.B.CIVIL MISC. APPEAL NO.841/1994. to be an attesting witness. The Will (Exhibit-1) has been signed the executant deceased by putting his thumb impression thereon on each page and at the places where the corrections have been carried out. It is also signed at the end at the bottom on page 3 by the deceased Bhagwan Sahai by putting his thumb impression. Three persons have signed along with the executant namely Jawahar Lal Jaiman, Kailash Chandra Sharma and Pooranmal, AW-4. Jawahar Lal Jaiman and Kailash Chandra Sharma have not been examined by the applicant-respondent in evidence. The sole person who has been examined is Pooranmal, AW-4 whose signature appear at E to F immediately below the thumb impression of the executant Bhagwan Sahai. The statement of AW-4 Poornmal reads as follows:- "...दः तावेज ूदशर् 1 मेरे हाथ का टाईप िकया हआ है जो मैंने ु भगवान सहाय के कहने से टाईप िकया था । ूदशर् 1 पर ई से एफ मेरे हः ताक्षर है । यह ूदशर् 1 को मैंने कचहरी अलवर में टाईप िकया था । इसको िलखने के बाद मैंने पढ़कर सुनाया था , िजसको सही मानकर भगवान सहाय ने अपना अंगूठा िकया । भगवान सहाय के अंगूठे के नीचे जो इबारत िलखी हई है वह ु मेरे हाथ ही है ।..." (Emphasis supplied.) A look at the above statement goes to show that the witness has deposed that the document (Exhibit-1) was typed by him. He has further stated that same was typed at the instance of the deceased Bhagwan Sahai. The document after it was typed was read over by the witness to the executant -:12:- S.B.CIVIL MISC. APPEAL NO.841/1994. Bhagwan Sahai who having accepted and acknowledged the contents of the same to be correct, put his thumb impression in execution of the same on the said document (Exhibit-1) and below the aforesaid thumb impression, the writing at E to F is in his handwritting. A look at the Exhibit-1 at E to F below the thumb impression of Bhagwan Sahai shows that it is the signature of Pooranmal the witness AW-4. The aforesaid testimony of AW-4 Pooranmal, if examined in the light of the definition of “attested” as provided under Section 3 of the Transfer of Property Act, 1882 as well as the Section 63 of the Indian Succession Act , 1925, it is clear that the witness had seen the executant signing/affixing his mark to the instrument and just below the thumb impression of the deceased executant, the said witness also put his signature at E to F on Exhibit-1, the Will dated 11.11.1982. Learned counsel for the appellant sought to rely upon a decision of the Hon'ble Supreme Court in the case of Bhagat Ram and Another Vs. Suresh and Others reported in 2003 (12) SCC 35 and more particularly para 18 thereof. Para 18 of the said report reads as follows:- “18. However, facts of the present case are distinguishable from the facts of the Supreme Court decisions referred to by the learned Senior Counsel for Respondents 1 and 2. So far as the codicil is -:13:- S.B.CIVIL MISC. APPEAL NO.841/1994. concerned, it can be said to have been dictated by Mast Ram in the presence of Ram Dutt, the witness and Vijay Singh Negi, the Registrar of Deeds. The statement having been recorded, Mast Ram signed the same in the presence of Ram Dutt and Vijay Singh Negi. Ram Dutt and Vijay Singh having seen Mast Ram signing the document, both of them put their signatures on the document, obviously with a view to attesting the signatures of Mast Ram. This is what appears to have taken place by a look at the contents of the codicil below the Will. But the codicil cannot be held to be proved merely by drawing upon the imagination. It was necessary on the part of the appellants to have examined Ram Dutt and/or Vijay Singh Negi so as to prove the execution and attestation of the codicil in the manner required by Section 63 of the Succession Act read with Section 68 of the Evidence Act. None of the two were produced in the witness box. The codicil cannot be said to have been proved.” A bare perusal of the aforesaid judgment shows that same is clearly distinguishable on facts. In the aforesaid fact, the lacuna of attesting witness was sought to be cured on account of attestation by the Registrar of Deeds which is not so in the present case. In the present case AW-4, the Scribe and typist has been examined who is not only the typist but has deposed before the court that after typing the document, he read over the document to the deceased Bhagwan Sahai who accepted the same to be correct put his thumb impression on the same in execution of the document in his presence and having put his thumb impression on Exhibit-1, the witness put his signatures from E to F just below the thumb impression of the deceased Bhagwan Sahai. -:14:- S.B.CIVIL MISC. APPEAL NO.841/1994. In the facts and circumstances, therefore, merely because the respondent-applicant did not examine the two other witnesses named in the Will (Exhibit-1) namely Kailash Chand Sharma and Jawahar Lal Jaiman and has only examined Pooranmal, it cannot be said that the requirements of Section 63 of the Indian Succession Act and Section 68 of the Indian Evidence Act with regard to proving the Will have not been complied with. In the facts and circumstances, the aforesaid contention of the learned counsel for the appellant is accordingly rejected. The next contention of the learned counsel for the appellant was with regard to the suspicious circumstances. The circumstances, which have been pointed out are that the Will was executed on 11.11.1982 by Bhagwan Sahai, who passed away on 15.11.1982. On the basis of the above, it was sought to be contended that the deceased being seriously ill was in no condition to understand the effect of his act of executing the Will and, therefore, the same is surrounded by suspicious circumstances. So far as the above contention of the learned counsel for the appellant is concerned, the learned District Judge has discussed in detail in the impugned judgment while deciding -:15:- S.B.CIVIL MISC. APPEAL NO.841/1994. the issue No.1 the aforesaid contention and has rejected the theory set up by the appellant that the Will cannot be relied upon as the same is surrounded by suspicious circumstances. I am in agreement with the findings of the learned District Judge in this behalf since the Will, firstly is a registered document. It is not the case that the deceased was not taken to the office of the Registrar and in his place somebody else had been brought before the Registrar to execute the Will. On the contrary, there is evidence of the appellant/objector's witness Amar Singh, OP- 2 who had seen the deceased in the Tehsil Office (Sub- Registrar) about 5 to 7 days prior to his death. Thus, the fact stands established from the evidence of the objector himself that the deceased had 5 to 7 days prior to his death gone to the office of Sub-Registrar. In that view of the matter, the testimony of the applicant-respondent and her witness that the deceased went to the office of Sub-Registrar for the execution of the Will and registration of the same before the Sub-Registrar cannot be denied. A look at the Will (Exhibit-1) goes to show that the same is a registered document duly registered by the Sub- Registrar and which bears the following endorsements:- "आज िद. 11.11.82 को समय 2 और 3 बजे के मध् य उप पंजीयक थानागाजी के कायार्लय में समक्ष ौी भगवान सहाय पुऽ ौी रामरतन मा.सा. ूतापगढ़ Ʈारा लेख पऽ पंजीयन हेतु ूः तुत िकया गया । SD/- T.I. भगवान सहाय उप पंजीयक थानागाजी (अलवर) ौी भगवान सहाय पुऽ ौी रामरतन मा.सा. ूतापगढ़ तह. थारागाजी ने -:16:- S.B.CIVIL MISC. APPEAL NO.841/1994. मजमून दः तावेज सुन व समझ कर सही होना तः लीम िकया । वसीयतकतार् ने ौीमित राजेँ वरी देवी ः ऽी ौी राम िबहारी उफर् चन् ि िबहारी मा. ूतापगढ़ के नाम वसीयत करना ः वीकार िकया । 11.11.82 SD/- T.I. भगवान सहाय उप पंजीयक थानागाजी (अलवर) वसीयतकतार् की शनाख् त ौी सन् तोष कुमार पुऽ ौी माधोनारायण मा.सा. ूतापगढ़ व ौी ूताप नारायण पुऽ ौी जगन् नाथ मा.सा.ूतापगढ़ तह. थानागाजी ने की अत: यह दः तावेज तः दीक िकया जाता है । िद. 11-11-82 SD/- SD/- T.I.सन् तोष कुमार शमार् ूताप नारायण उप पंजीयक पुऽ ौी जगन् नाथ थानागाजी अलवर वसीयतकतार् व शनाख् त कतार्ओं के िन.अ. व हः ता. हमारे सामने कराये गये । 11-11-82 SD/- उप पंजीयक थानागाजी (अलवर)" A perusal of the above endorsements which have been made by the Sub Registrar clearly go to show along with the testimony of the objector's witness Amar Singh, OP-2 and the witnesses of the applicant that the deceased himself had gone to the office of the Sub Registrar about 5 days prior to his death, as admitted by the Objector Witness Amar Singh. He presented the Will before the Sub Registrar. The Sub Registrar read over the document to the executant who having understood the same accepted the contents thereof of having executed his Will in favour of Rajeshwari Devi, the respondent and in acceptance of the aforesaid put his thumb impression on the document in the presence of the Sub Registrar. The deceased was identified by two independent witnesses Santosh Kumar and Pratap Narayan and Santosh Kumar has -:17:- S.B.CIVIL MISC. APPEAL NO.841/1994. been examined by the respondent-applicant as AW-3 at the trial. In the facts and circumstances,