IN THE HIGH COURT OF JUDICATURE AT PATNA MA No.266 of 2010 Umapati Devi, W/O Sri Raj Nandan Singh, D/O Ram Sewak Rai alias Bhola Rai, resident of Village- Alabuxpur, P.S. Gaurichak, District-Patna. ……Objector-Appellant. Versus 1. Sri Arbind Kumar, S/o Bindu Lal, resident of Village- Etwarpur, P.S., Phulwari Sharif, District-Patna. ……Plaintiff-Respondent. 2. Srimati Lila Devi @ Lilawati Devi, W/O Bindu Lal, D/O Ram Sewak Rai alias Bhola Rai, resident of Village- Etwarpur, P.S. Phulwari Sharif, District-Patna. ……consent petitioner-Respondent. For the appellant :- Mr. Sanjay Kumar Verma, Advocate. Mr. Sanjay Kumar, Advocate. Mr. Mukti Nath, Advocate. For the respondents :- Mr. Ashok Nandan Prasad, Advocate. Mr. Satya Ranjan Sinha, Advocate. Mr. Seema Kumari, Advocate. ----------- 18. 18. 1.2011. This Miscellaneous Appeal is directed against the Judgment and order dated 11th March, 2005, passed by Shri Bharat Prasad Yadav, Additional District Judge IIIrd, Patna, in Title (Probate) Suit No. 16/99 arising out of Letter of Administration Case No. 111/95 by which decreed the suit on contest with a direction that letter of administration be granted in favour of the applicant in respect of the will dated 10. 11. 1994 executed by Ram Sewak Rai. 2. The plaintiff filed a petition for grant of letter of administration in favour of the plaintiffs with respect to a 'will' alleged to have been executed by Ram Sevak Rai, deceased. However, the said petition was resisted by an objection petition filed by Umapati 2 Devi, one of the daughter of deceased, Ram Sewak Rai which lead to converting Letter of Administration Case No. 111 of 1995 into this Title (probate) Suit No. 16/99. 3. The case of the plaintiff that the testator Ram Sewak Rai, the maternal grand father of the plaintiff executed a 'will' on 10. 01. 1994 with regard to his entire property described in Schedule A of the plaint out of his free will in sound and disposing state of body and mind. The said will got attested by the two witnesses. The further case that testator had two daughters Lila Devi, and Umapati Devi, the appellant. The plaintiff-respondent is son of Lila Devi who has consented the will. Further case is that testator had fixed place of abode at Awasthichak, P.S. Phulwari. The testator died on 23. 11. 1995 in Estawarpur, P.S. Phulwari, District- Patna, and his last rites were performed by Arbind Kumar, the plaintiff-respondent at Bhanshghat in Patna on 24. 01.1995 and Shardh was performed by Arbind Kumar. 4. Lila Devi, the mother of the plaintiff- respondent has consented the will asserting that at the time of execution of the will, the testator was in sound state of body and mind and at the instance of testator, Shri Kanhaiya Prasad scribed the will which was typed by Sheo Muni lal, Typist and the contents of 3 the will was explained to the testator and after fully understanding the contents of the will the testator executed the 'will' by putting his L.T.I. on each page in the presence of attesting witnesses Raja Rai and Sukhu Sao. 5. The objector, Umapati Devi the second daughter of the testator filed an objection petition and assailed the deed of will as forged, fabricated anti dated and assertion that the will also suffers from illegality and malafide with specific assertion that the deed of will was not executed by Ram Sewak Rai in favour of Arbind Kumar. The further case of Umapati Devi that she used to serve the testator, Ram Sewak Rai who was pleased with her service. The further case is that Umapati Devi married in Alabuxpur only half kilometer away from Awasthichak where the deceased used to reside. The further case that Lila Devi married in Etwarpur at a distance of 15 kilometer from Awasthichak and Umapati used to live at Awasthichak with her father, the testator, even after her marriage. The further case is that Ram Sewak Rai had gone to meet his dauther Lilawati Devi on 23. 01.1995. However, Umapati Debi was informed on 24. 01. 1995 about the death of her father and hence asserted that death of her father, the testator in suspicious circumstance on 23.01.1995, as 4 Ram Sewak Rai was not suffering from any disease and was in quite sound state of health and mind. Ram Sewak Rai was cremated at Bhanshghat by Arbind Kumar, the plaintiff-respondent the son of Lila Devi and Nanhku Rai, the younger brother of the testator Ram Sewak Rai. The expenses of shardh ceremony met jointly by two sisters, Lilawati Devi and Umapati Devi. The further case of the objector that wife of Ram Sewak Rai died during the life time of Nanhku Rai, the brother of the deceased Ram Sewak Rai. Nanhku Rai used to manage the cultivation of Ram Sewak Rai and Ram Sewak Rai had expressed to give his house to Nanhku Rai. The further case of objector Umapati Devi is that Ram Sewak Rai executed will with respect to his house in favour of Nanhku who is in possession of the house and Umapati Devi filed a Partition Suit No. 57/95. It has further been asserted that Plot of house bearing S.P. No. 478 has wrongly been typed as S.P. No. 473 and further S.P. No. 1026 has wrongly been mentioned as 1028 and hence asserted that will is manufactured. 6. On pleading of the parties, five issues were framed. Issues framed are as follows; i. Is the suit as framed maintainable? ii. Is the will dated 10.11.1994 executed by Ram Sewak Rai alias Bhola Rai in 5 favour of Arbind Kumar is forged, fabricated and anti dated document? iii. Whether the will is genuine or not ? iv. Is the applicant entitled to grant of Letter's of administration of the will dated 10.11. 1004. v. To what other relief or reliefs are the applicant-plaintiff entitled to? 7. On the issues framed, the parties adduced oral and documentary evidence. Oral evidence has been adduced on behalf of Plaintiff is P.W. 1, Janak Rai, P.W.2, Sheomuni Lal, P.W.3, Arbind Kumar, P.W. Chunni Lal and P.W.5 Shrikant Choudhary. 8. The documentary evidence has been adduced by plaintiff the propounder of will is Ext. 1 to Ext. 1/5 are signature of the witnesses of the will, Ext.2 is the will, Ext. 3, is the report of finger print expert, Ext. 4 is the death certificate of Ram Sewak Rai, Ext. 5 is the certified copy of Khatiyan, Ext. 6 is certified copy of prescription, Ext.7 is original sale deed executed by Ram Sewak Rai in favour of Sheokumar Rai and Ext. 8 is certified copy of khatiyan. Material Ext. I to I/8 is negative photograph and Material ext. II to II/8 are positive photographs. 9. Oral evidence have been adduced on behalf 6 of defendants is D.W.1, Nanhku Rai, D.W.2 Umapati Devi, D.W.3 Ravishankar Kumar, D.W.4, Ram Praveshj Rai, D.W. 5 Ramchandra Rai, D.W.6 Shrikant Prasad and D.W.7 Vijay Krishna Vidyarthi. 10. Documentary evidence has been adduced on behalf of defendants is Ext. A, report of expert, Ext. B is certified copy of khatiyan and Ext. B/1 is also certified copy of khatiyan, Ext. C is the original sale deed executed by Ram Sewak rai in favour of Ramchandra Rai, Ext.D is the judgment of Title Suit No. 57/95, Ext. E is certified copy of decree of Title Suit No. 57/99 and Ext. F is final decree and Ext. G is the certified copy of deposition. 11. After taking into consideration the oral and documentary evidence and submissions made on behalf of the parties the Addl. District Judge took up Issue No. II and III together and held that Ram Sewak Rai @ Bhola Rai has executed the deed of will on 11. 11. 1994 out of his free will in favour of Arbind Kumar and the will is valid and genuine and is not forged document. 12. While deciding Issue No. IV, the court below held that will in question has been executed by Ram Sewak Rai on 10. 11. 1994 in sound state of mind in presence of the witnesses including A.W. 1 and 2 in 7 favour of the plaintiff Arbind Kumar and hence hold that will is genuine and further held that plaintiff Arbind Kumar is entitled for grant of Letter's of Administration in his favour with regard to the will dated 10.11. 1994. 13. While deciding Issue Nos. I and V held that suit is maintainable for Letter's of Administration and has been ordered that letter of administration be granted in favour of plaintiff- respondent Arbind Kumar in respect of the will executed by Ram Sewak Rai alias Bhola Rai dated 10. 12. 1994. 14. Learned counsel for the appellant, however, contended that will was executed in suspicious circumstance as signature of the Testator on the will is in margin of the will in all pages and is not at the foot of the will at end of the will. The will is unregistered and the original draft of the will has not been produced before the probate court. It is further contended that will has not been produced for registration. The expert opinion on the genuinety of L.T.I. by two sides is conflicting. It has further been contended that the will has not been proved in accordance with law as there is non-compliance of Section 68 and 71 of the Evidence Act as neither the attesting witness has not come forward to prove the 8 attestation of will for the purpose of proving its execution nor examined even today uncertain or unable to recollect the execution. It has further been contended that the attesting witnesses are alive and capable of giving evidence, but neither have been examined nor any step taken to issue process nor has come forward to depose even though, there are evidence to suggest that these attesting witnesses are alive and capable of giving evidence. Hence the plaintiff can not resort to Section 71 of the Evidence Act to prove execution of the will by other evidence to proof the execution of will unless compliance of 68 of the Evidence Act and to call at least one of the attesting witness to prove the will, hence the will has not been proved in accordance with law and has placed reliance upon decision reported in 2001 (4) PLJR 147 SC, A.I.R. 1969 SC and 2003 SAR (Civil) 104 (SC) Janui Narayan Bhoir Vrs. Narayan Navsdeo. 15. Learned counsel for the respondent, however, contendd that defendant appellant have stated that they have not seen the will and they are challenged about genuinety of will is neither reliable nor realistic as has not specifically stated how the will is forged and fabricated. Hence the contention about the genuinety of will is no realistic as she can not challenge the will and 9 the will has been proved to have been executed by the testator. 16. Hence on the respective submissions of the parties question for consideration whether the plaintiff has been able to proof the execution of will in accordance with law and further whether the will as required is suffer from any suspicious circumstances regarding its genuineness. 17. The plaintiff filed petition for grant of letter of administration of the estate of testator under the will dated 10. 11. 1994 executed by Ram Sewak Rai @ Bhola Rai under Section 276 of the Indian Succession Act. Hence for grant of letter of administration the applicant is to satisfy that the testator duly executed the will in sound state of mind without undue influence and eliminating the suspicious circumstance. 18. However, before coming to the fact of the case, as the point arisen in this case whether execution of the will has been proved as required by law and hence it is required to see the legal principle how a will is required by law to be proved. Section 63 (c) of Indian Succession Act requires that will be attested by two or more witnesses each of whom has seen of the testator sign or affix his mark to the will in person and each of the witnesses has signed the will in presence of the 10 testator.Section 68 of the Evidence Act deals how to prove of the execution of a will or document required by law to be attested.It further laid condition that such document which required by law to be attested was not to be used as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be attesting witness alive and subject to the process of the court and capable of giving evidence.However, Section 71 provides that when attesting witnesses denies the execution and does not recollect the execution of the document then its execution may be proved by any other evidence. Hence on the combined reading of Sections of 63 of the Indian Succession Act and Section 68 of Evidence Act, it is apparent that person who is propounding the will has to prove that the will has been duly executed and for proving the execution of will one of the attesting witness is required to be examined as a witness to prove the execution of the will, hence the execution of the will cannot be proved simply by proving the signature of testator and witness on the will by any witness other than attesting witness, but must also prove that attestation were also made properly that is the will attested by two or more witnesses and on attesting witness has been examined to prove that each of whom 11 seen the testator sign or affix his mark and each of the witnesses signed the will in presence of the testator. Section 68 of the Evidence Act provides that document required to be attested by two or more witnesses as well shall not be used as evidence until one attesting witness at least has been examined for the purpose of proving its due execution, if such witness is alive and able to give evidence and subject to process of the court and unless this condition satisfy Section 71 of Evidence Act to prove the will by any other witness cannot be availed. Section 71 of Evidence Act provides that if attesting witness denies execution or does not re-collect the execution of the will or its execution may be proved by other evidence. But Section 71 of Evidence Act proposes it that attesting witness is produced before court examined as witness and he has denies the execution of deed or unable to re-collect execution of the will then only the will can be proved by any other witness. Hence, Section 71 of Evidence Act has no application if attesting witness has not been called though available to prove the execution of the same have not been summoned before the court. Section 71 clearly provides that propounder of the will if so likes to prove the execution of the will by other evidence then the attesting witness must be exhausted and only if the 12 attesting witness on call denies or does not recollect execution of the document then the execution may be proved by other witnesses. Hence to prove the will the attesting witness is required to be examined and the person mentioned and signed the will as attesting witness is required to be called to prove the will and not other witness like identifier or seen. 19. This proposition can well be inferred from decision reported in A.I.R. 1969 SC. 1147 and relevant to quote para 8 as follows; " "Section 3 of the Transfer of Property Act gives the definition of the word "attested" and is in these words:-. " 'Attested', in relation to an instrument, means and shall be deemed 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." 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 13 witness to a fact. Briefly put, the essential conditions of a valid attestation under Section 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 acknowledgement of his signature. If a person put his signature on the document for some other purpos for example to certify that he is a scribe or an identifier or registering officer, he is not an attesting witness". 20. In decision reported in 2001 (4) PLJR page 147 Nirmala (dead) & another Vs. Ayyasaomy & another it has been observed that the latin expression "onus probandi" and "animo attestandi" are the two basis feature of the testamentary jurisdiction by expression and animo attestandi means and implies animus to attesty i.e. it means intend to attest. Attesting witness must subscribe with the intend to attest, the attesting witness must be with the intent that subscription of the signature may stands by way of complied attestation of the will and evidence is admissibility to show whether such was intention or 14 not. "onus probandi" is to satisfy the court conscious that will was executed by the testator with under signed and disposing state of mind and onus is discharge as regards due execution if the propounder leads evidence to show that the will bear the signature and mark of testator and the will is duly attested. However, attestation shall have to be proved in accordance with Section 68 of the Evidence Act which requires that if document is required by law to be attested which shall not be used as evidence unless at least one attesting witness has been called for the purpose of proving its execution if the attesting witness capable for giving evidence and further in the event of any suspicious surrounding circumstance then propounder remove the suspicious for leading satisfactory evidence and further held that ascribe can not be identified to the same status of attesting witness as animus to attest is not available to the subscribe. He is not witness to the will but a mere writer of the will and his presence and his signature on the document does not by itself to be taken a prove of due attestation unless the situation is so expressed in the document itself and hence it has been held that animus to attest is not available to the subscribe as he is not witness to the will but mere writer of the will and statutory requirement can not be 15 transposed in favour of the writer rather goes against propounder as two witnesses named with details address but no time to bring them or to produce them before the court so as to satisfy the judicial conscious and persons of ascribe and his signature appearing on the document or itself taken to prove of due attestation unless situation so expressed in the document and hence held the will fails to mark in effect stands out to be nonest. 21. Hence to prove a will the propounder of the will has to satisfy the Court conscious that will has executed by the testator with his dispoy state of mind and this onus required to prove in accordance with under Section 68 by proving by animo attestandi i.e. person who has signed the will with intention to an attesting witness. 22. The principle about the prove of will has again been reiterated in 2003 SAR Civil 104 that Section 63 (c) of the Indian Succession Act requires the will to be attested by two or more witnesses each of whom seen the testator sign or fixed as mark Section 68 Evidence Act provides finds that any document required by law to be attested can be proved by calling upon at least one attesting witness for proving the due execution if an attesting witness is alive and subject to 16 process of court and until the execution of document is prove by at least one of the attesting witness, it cannot be taken in evidence, i.e. if will prove by one attesting witness then examination of other attesting witness may be dispence with but one attesting witness examined then in his evidence he has to satisfy the attestation of will by him and other attesting witness in order to prove there was due execution. 23. Section 71 of Evidence Act is safeguard to Section 68 of Evidence Act. The section provides if an attesting witness denied or does not recollect the execution of the will, it execution may be proved by other evidence. Hence did Section 71 of Evidence Act can be resorted to prove the will only when the attesting witness called upon denied the execution or fails to recollect the execution of the document. Section 71 of Evidence Act has no application to a case where attesting witness summoned has failed to prove the execution of will and other attesting witness, though, are available have not been summoned before court. 24. It cannot be said that if one attesting witness denies or does not recollect the execution of the document, the execution of will can proved by other evidence dispensed with the evidence of other attesting witnesses, though, available to be examined to prove 17 the execution of will. 25. Section 71 is no application when one attesting witness has failed to prove the execution of the will and other attesting witness were available who could prove the execution if they were called. 26. Now, coming to the facts and circumstances of the present case the said will has been marked as Ext. 2 and one Janki Rai is the identifier of the will. However, two attesting witnesses are Sukho Sao and Raja Rai. One Sheo Muni Lal is the typist and the will alleged to have been executed by Ram Sewak Rai. However, two persons mentioned as attesting witnesses in the will as Raja Rai and Sukho Sao have not been examined in the case and from perusal of the record, it appears that no attempt was made for calling them as attesting witnesses to depose or prove the execution of the will. 27. However, the will has been proved by Janki Rai, the identifier as P.W.1 and he has stated in the evidence that Ram Sewak Rai executed the will in favour ‘Nati’, maternal grand son, Arbind Kumar, the testator put his signature on the said will itself in three pages and the testator put his thumb impression before whom which he identifies. He has further stated that will was drafted by Kanhaiya Babu, Advocate and was 18 typed by Sheo Muni Lal and one Raja Rai and Sukho Sao signed and has been proved signature of the attesting witnesses Ext. 1 to 1/4 . He has further contended that deed was read over by Muni Lal and also proved the signature of A/5. P.W.2, is Sheo Muni Lal and has stated that he has typed the will at the instance of Bhola Rai and has proved the will and has stated that after typing the 'will' read over the contents